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https://www.courtlistener.com/api/rest/v3/opinions/5285507/ | Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
01/07/2022 01:06 AM CST
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. BETANCOURT-GARCIA
Cite as 310 Neb. 440
State of Nebraska, appellee, v. Rosario
Betancourt-Garcia, appellant.
___ N.W.2d ___
Filed December 3, 2021. No. S-20-538.
1. Postconviction: Constitutional Law: Appeal and Error. In appeals
from postconviction proceedings, an appellate court reviews de novo a
determination that the defendant failed to allege sufficient facts to dem-
onstrate a violation of his or her constitutional rights or that the record
and files affirmatively show that the defendant is entitled to no relief.
2. Effectiveness of Counsel: Appeal and Error. Claims of ineffective
assistance of counsel involve mixed questions of law and fact.
3. ____: ____. When reviewing claims of ineffective assistance of counsel,
an appellate court reviews the factual findings of the lower court for
clear error and the legal determinations de novo.
4. Postconviction: Final Orders: Appeal and Error. Within a post
conviction proceeding, an order granting an evidentiary hearing on some
issues and denying a hearing on others is a final, appealable order as to
the claims denied without a hearing. Such an order is appealable because
as to the denied claim, it is a “final judgment” under Neb. Rev. Stat.
§ 29-3002 (Reissue 2016).
5. Postconviction: Constitutional Law: Proof. A defendant seeking relief
under the Nebraska Postconviction Act, Neb. Rev. Stat. § 29-3001 et
seq. (Reissue 2016), must show that his or her conviction was obtained
in violation of his or her constitutional rights.
6. Postconviction: Appeal and Error. Postconviction relief is a narrow
category of relief and is not intended to secure a routine review for any
defendant dissatisfied with his or her sentence.
7. ____: ____. A motion for postconviction relief cannot be used to secure
review of issues that were known to the defendant and which were or
could have been litigated on direct appeal.
8. Postconviction: Constitutional Law: Judgments: Proof. An eviden-
tiary hearing on a motion for postconviction relief is required on an
appropriate motion containing factual allegations which, if proved,
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. BETANCOURT-GARCIA
Cite as 310 Neb. 440
constitute an infringement of the movant’s rights under the Nebraska or
federal Constitution, causing the judgment against the defendant to be
void or voidable.
9. Postconviction: Proof. An evidentiary hearing on a motion for post
conviction relief is not required if (1) the motion does not contain factual
allegations of a violation or infringement of the prisoner’s constitutional
rights, (2) the motion alleges only conclusions of fact or law, or (3) the
record affirmatively shows that the prisoner is entitled to no relief.
10. Postconviction: Effectiveness of Counsel: Proof: Appeal and Error.
When a district court denies postconviction relief without conducting
an evidentiary hearing, an appellate court must determine whether the
petitioner has alleged facts that would support a claim of ineffective
assistance of counsel and, if so, whether the files and records affirma-
tively show that he or she is entitled to no relief.
11. Postconviction: Effectiveness of Counsel: Proof. If the petitioner has
not alleged facts which would support a claim of ineffective assistance
of counsel or if the files and records affirmatively show he or she is
entitled to no relief, then no evidentiary hearing is necessary.
12. Effectiveness of Counsel: Proof. To prevail under a claim of ineffective
assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984), a defendant must first show that
his or her attorney’s performance was deficient, meaning it objectively
did not equal that of a lawyer with ordinary training and skill in crimi-
nal law.
13. ____: ____. To show that defense counsel’s performance was deficient,
a defendant must show that counsel’s performance did not equal that of
a lawyer with ordinary training and skill in criminal law.
14. Effectiveness of Counsel: Proof: Words and Phrases. To show preju-
dice, the defendant must demonstrate a reasonable probability that but
for counsel’s deficient performance, the result of the proceeding would
have been different. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.
15. Criminal Law: Weapons. The operability of a handgun is not relevant
to whether it is a firearm used under Neb. Rev. Stat. § 28-1205(1)(a)
(Reissue 2008).
16. Criminal Law: Statutes: Legislature. Under Nebraska law, all crimes
are statutory and no act is criminal unless the Legislature has in express
terms declared it to be so.
17. Constitutional Law: Effectiveness of Counsel: Conflict of Interest:
Words and Phrases. An actual conflict of interest for Sixth Amendment
purposes is defined broadly. The phrase “actual conflict of interest”
encompasses any situation in which a defense counsel faces divided loy-
alties such that regard for one duty tends to lead to disregard of another.
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. BETANCOURT-GARCIA
Cite as 310 Neb. 440
18. Effectiveness of Counsel: Conflict of Interest. An actual conflict of
interest for Sixth Amendment purposes is one that adversely affects
counsel’s performance.
19. Criminal Law: Conspiracy: Intent: Proof. With respect to proving the
intent element of a conspiracy, direct evidence of a positive agreement
to jointly participate in the violation of a criminal statute is not required
to establish a crime.
20. ____: ____: ____: ____. A criminal conspiracy must necessarily be
entered into with the intent to defraud the State or to violate a criminal
law, and intent being a matter of the mind, it is rarely possible to prove
that element of the crime except by circumstances.
21. Criminal Law: Conspiracy. Conspiracy may be charged in both the
place of the agreement, as well as any locale where any overt act by any
one of the conspirators took place.
Appeal from the District Court for Madison County: Mark
A. Johnson, Judge. Affirmed in part, and in part reversed and
remanded with direction.
Brad J. Montag, of Egley, Fullner, Montag, Morland &
Easland, P.C., for appellant.
Douglas J. Peterson, Attorney General, and Austin N. Relph
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, and Papik,
JJ., and Harder and Masteller, District Judges.
Miller-Lerman, J.
I. NATURE OF CASE
Rosario Betancourt-Garcia (Betancourt), who is serving
sentences of imprisonment for his convictions for kidnap-
ping, use of a firearm to commit a felony, and conspiracy to
commit kidnapping, filed a petition for postconviction relief.
The district court for Madison County granted an evidentiary
hearing on three of Betancourt’s claims and denied the bal-
ance of Betancourt’s petition without an evidentiary hearing.
Betancourt appeals. He claims on appeal that he was entitled
to an evidentiary hearing generally concerning several layered
claims of ineffective assistance of appellate counsel, related to,
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. BETANCOURT-GARCIA
Cite as 310 Neb. 440
inter alia, the handling of lost or destroyed evidence, potential
plea offers, translation discrepancies, witness investigations,
and a sentencing error. Because Betancourt alleged ineffective
assistance of counsel for failing to object on remand to the
unauthorized sentence of “life imprisonment without parole”
on the conspiracy conviction, we remand this cause to the dis-
trict court for a hearing. With respect to the remaining claims,
because Betancourt failed to allege facts that show he was
entitled to relief, or the record or law refute his claims, we
affirm the judgment of the district court.
II. STATEMENT OF FACTS
The facts surrounding Betancourt’s convictions are set forth
in our opinion in State v. Betancourt-Garcia, 295 Neb. 170,
887 N.W.2d 296 (2016) (Betancourt I), abrogated on other
grounds, State v. Guzman, 305 Neb. 376, 940 N.W.2d 552
(2020). See, also, State v. Betancourt-Garcia, 299 Neb. 775,
910 N.W.2d 160 (2018) (Betancourt II). The evidence at trial
reflected that Betancourt and Leonel Torres-Garcia (Torres) kid-
napped Betancourt’s nephew, Pedro Jesus Rayon-Piza (Pedro),
bound him, gagged him, threatened him with a gun, and placed
him in a shed. The State’s theory was that Betancourt believed
that Pedro or his brother Jose Rayon-Piza (Jose) knew the
whereabouts of Betancourt’s wife, Gabriela Ortiz, from whom
Betancourt was separated. Betancourt believed that Jose was
“going out” with Ortiz. Pedro testified that Betancourt told him
that he was going to leave him there, bring Jose to the same
location, and kill them both. Pedro, still bound, managed to
stand, exit the open door of the shed, and jump to the nearest
house, evidently where Paula Chadwick and Bob Chadwick
lived and where officers found Pedro. Torres also testified that
he and Betancourt had kidnapped Pedro.
In 2015, following a jury trial, Betancourt was convicted
of count I, kidnapping, a Class IA felony, for which he was
originally sentenced to a term of life imprisonment; count II,
use of a firearm to commit a felony, a Class IC felony, for
which he was originally sentenced to a term of 10 to 30 years’
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. BETANCOURT-GARCIA
Cite as 310 Neb. 440
imprisonment, including a mandatory minimum of 5 years’
imprisonment; and count III, conspiracy to commit kidnap-
ping, a Class II felony, for which he was originally sentenced
to a term of 30 to 50 years’ imprisonment. The sentences for
kidnapping and conspiracy were to be served concurrently, and
the sentence for use of a firearm was to be served consecu-
tively thereto.
Prior to trial, Betancourt was variously represented by the
Madison County public defender and, subsequently, by pri-
vate counsel. Through trial and sentencing, Betancourt was
again represented by the Madison County public defender’s
office, through a different public defender and a deputy pub-
lic defender. Betancourt had different counsel for his direct
appeal and subsequent resentencing and still other counsel in
Betancourt II, one of whom continues to represent Betancourt
in this postconviction proceeding.
On the direct appeal, we affirmed the convictions and
affirmed the sentence in part and remanded the sentence in
part for resentencing on the conspiracy count to impose a life
sentence rather than a range of years. Betancourt I, supra. On
January 27, 2017, without objection, Betancourt was resen-
tenced on his conspiracy conviction “to life imprisonment
without parole.”
On February 27, 2017, Betancourt filed a motion for foren-
sic DNA testing seeking to have certain items of physical evi-
dence, including duct tape, tennis shoes, and shoelaces, tested
for DNA evidence. The record showed that the evidence had
been destroyed prior to the filing of the motion. Although orig-
inally arrested in 2004, Betancourt was deported and rearrested
in 2013. At the time the evidence was destroyed in 2010,
Betancourt had been deported, his whereabouts were unknown,
and the charges against him had been pending for 7 years.
Following a hearing, the district court overruled Betancourt’s
motion for DNA testing. Because the material sought to be
tested was not in the actual or constructive control of the
State or others as required by Neb. Rev. Stat. § 29-4120(1)(b)
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. BETANCOURT-GARCIA
Cite as 310 Neb. 440
(Reissue 2016), we affirmed the district court’s order. See
Betancourt II, supra.
On October 19, 2017, Betancourt filed a verified petition
for postconviction relief. Following a records hearing on the
operative postconviction motion, the district court granted an
evidentiary hearing on three of Betancourt’s claims, including
his claim that appellate counsel failed to raise the issue of the
trial counsel’s failure to explore an alibi defense; the choice to
pursue a misidentification defense; and the failure to object to
Betancourt’s invalid sentence for count II, which should not
have included a mandatory minimum. The district court denied
Betancourt’s remaining claims without an evidentiary hear-
ing. The district court found, with respect to the unsuccessful
claims addressed in the order, they either were insufficiently
alleged, were affirmatively refuted by evidence in the record,
or were not examples of ineffective assistance of trial and/or
appellate counsel.
Betancourt appeals.
III. ASSIGNMENTS OF ERROR
Betancourt assigns, summarized and restated, that the dis-
trict court erred when it denied him an evidentiary hearing
generally on the issues of (1) lost or destroyed evidence, (2)
ineffective assistance of appellate counsel for failing to raise
the trial counsel’s ineffectiveness ensuring Betancourt under-
stood a plea offer, and (3) other claims of ineffective assistance
of appellate counsel. The other claims of ineffectiveness of
appellate counsel generally relate to failing to raise trial coun-
sel’s ineffectiveness for the following:
• Claim 3(a), not moving to quash counts I (kidnapping) and
II (use of a firearm to commit a felony) of the information
based on the statute of limitations;
• Claim 3(b), not moving to quash and/or dismiss count II (use
of a firearm to commit a felony);
• Claim 3(c), not objecting to hearsay testimony at a prelimi-
nary hearing;
• Claim 3(d), not securing a different translator;
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. BETANCOURT-GARCIA
Cite as 310 Neb. 440
• Claim 3(e), operating under a conflict of interest within the
Madison County public defender’s office;
• Claim 3(f), not calling Ernest Nino-Mucia to testify regarding
inaccurate translations;
• Claim 3(g), not moving for a directed verdict on count III
(conspiracy);
• Claim 3(h), not investigating, deposing, and subpoenaing the
Chadwicks to testify on their observations of Pedro;
• Claim 3(i), not moving for a new trial based on alleged lack
of opportunity to confront Paula Chadwick;
• Claim 3(j), not objecting to Ortiz’ testimony regarding
Betancourt’s domestic assault;
• Claim 3(k), not objecting to jury instructions Nos. 2, 4, 8, 13,
and 15;
• Claim 3(l), not adequately advising Betancourt about his right
not to testify;
• Claim 3(m), not objecting on remand to the district court’s
sentence of “life imprisonment without parole” on the con-
spiracy conviction; and
• Claim 3(n), failing to raise plain error on the district court’s
refusal to instruct the jury on the lesser-included offense of
first degree false imprisonment.
IV. STANDARDS OF REVIEW
[1] In appeals from postconviction proceedings, an appellate
court reviews de novo a determination that the defendant failed
to allege sufficient facts to demonstrate a violation of his or her
constitutional rights or that the record and files affirmatively
show that the defendant is entitled to no relief. State v. Malone,
308 Neb. 929, 957 N.W.2d 892 (2021), modified on denial of
rehearing 309 Neb. 399, 959 N.W.2d 818.
[2,3] Claims of ineffective assistance of counsel involve
mixed questions of law and fact. Id. When reviewing claims of
ineffective assistance of counsel, an appellate court reviews the
factual findings of the lower court for clear error and the legal
determinations de novo. Id.
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. BETANCOURT-GARCIA
Cite as 310 Neb. 440
V. ANALYSIS
[4] As an initial matter, we observe that Betancourt’s appeal
of the district court’s order of July 1, 2020, is properly before
us, because within a postconviction proceeding, an order grant-
ing an evidentiary hearing on some issues and denying a
hearing on others is a final, appealable order as to the claims
denied without a hearing. State v. Koch, 304 Neb. 133, 933
N.W.2d 585 (2019). Such an order is appealable because as to
the denied claim, it is a “final judgment” under Neb. Rev. Stat.
§ 29-3002 (Reissue 2016). State v. Koch, supra.
Below, we analyze each of Betancourt’s assignments of
error. We find merit only to Betancourt’s claim that upon
remand occasioned by Betancourt I, Betancourt’s counsel was
deficient for failing to object to the district court’s imposition
of a sentence for conspiracy (count III) of “life imprisonment
without parole,” rather than “life imprisonment.” We remand
the cause to the district court for a hearing on this claim,
and we affirm the order of the district court with respect to
Betancourt’s remaining claims.
[5-7] A defendant seeking relief under the Nebraska
Postconviction Act, Neb. Rev. Stat. § 29-3001 et seq. (Reissue
2016), must show that his or her conviction was obtained in
violation of his or her constitutional rights. State v. Johnson,
298 Neb. 491, 904 N.W.2d 714 (2017). Postconviction relief
is a narrow category of relief and is not intended to secure a
routine review for any defendant dissatisfied with his or her
sentence. See State v. Malone, supra. A motion for postconvic-
tion relief cannot be used to secure review of issues that were
known to the defendant and which were or could have been
litigated on direct appeal. Id.
[8,9] An evidentiary hearing on a motion for postconviction
relief is required on an appropriate motion containing factual
allegations which, if proved, constitute an infringement of the
movant’s rights under the Nebraska or federal Constitution,
causing the judgment against the defendant to be void or
voidable. State v. Johnson, supra. Section 29-3001(2) of the
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. BETANCOURT-GARCIA
Cite as 310 Neb. 440
Nebraska Postconviction Act entitles a prisoner to an eviden-
tiary hearing on a motion for postconviction relief unless the
motion and the files and records of the case show to the sat-
isfaction of the court that the prisoner is entitled to no relief.
State v. Malone, supra. An evidentiary hearing is not required
if (1) the motion does not contain factual allegations of a viola-
tion or infringement of the prisoner’s constitutional rights, (2)
the motion alleges only conclusions of fact or law, or (3) the
record affirmatively shows that the prisoner is entitled to no
relief. Id.
[10,11] Thus, when a district court denies postconviction
relief without conducting an evidentiary hearing, an appellate
court must determine whether the petitioner has alleged facts
that would support a claim of ineffective assistance of counsel
and, if so, whether the files and records affirmatively show that
he or she is entitled to no relief. State v. Johnson, supra. If the
petitioner has not alleged facts which would support a claim
of ineffective assistance of counsel or if the files and records
affirmatively show he or she is entitled to no relief, then no
evidentiary hearing is necessary. Id.
Our ineffective assistance of counsel jurisprudence stems
from Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984), which held that a criminal defendant’s
rights under U.S. Const. amend. VI may be violated if he or
she is afforded inadequate representation by his or her attor-
ney. State v. Malone, 308 Neb. 929, 957 N.W.2d 892 (2021),
modified on denial of rehearing 309 Neb. 399, 959 N.W.2d
818. Under Strickland, we apply a two-step analysis for deter-
mining whether a defendant is entitled to postconviction relief
based on a claim of ineffective assistance of counsel. State v.
Malone, supra.
[12-14] To prevail under Strickland, a defendant must first
show that his or her attorney’s performance was deficient,
meaning it objectively did not equal that of a lawyer with
ordinary training and skill in criminal law. State v. Malone,
supra. Second, the defendant must show that he or she suffered
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310 Nebraska Reports
STATE v. BETANCOURT-GARCIA
Cite as 310 Neb. 440
prejudice as a result of the attorney’s deficient performance. Id.
To show that defense counsel’s performance was deficient, a
defendant must show that counsel’s performance did not equal
that of a lawyer with ordinary training and skill in criminal
law. State v. Weathers, 304 Neb. 402, 935 N.W.2d 185 (2019).
To show prejudice, the defendant must demonstrate a reason-
able probability that but for counsel’s deficient performance,
the result of the proceeding would have been different. Id. A
reasonable probability is a probability sufficient to undermine
confidence in the outcome. Id. The two prongs of this test
may be addressed in either order, and the entire ineffective-
ness analysis should be viewed with a strong presumption that
counsel’s actions were reasonable. Id.
1. Destroyed Evidence
Betancourt contends that he received ineffective assistance
of counsel when, in his direct appeal, his appellate counsel
failed to raise trial counsel’s ineffectiveness for failing to argue
that the destruction and unavailability of destroyed evidence
violated his right to due process. The evidence, which was
destroyed prior to Betancourt’s rearrest, included tape and cord
that bound Pedro’s face, ankles, and wrists, and Betancourt
contends that such evidence could have contained the perpe-
trator’s skin cells or hair stuck to the tape. Betancourt rea-
sons that if the evidence could have been tested, the absence
of Betancourt’s DNA or inclusion of DNA other than that of
Betancourt or Torres would have supported his defenses of mis-
identification or alibi. He contends that the evidence points to
bad faith handling of the evidence, because of the method, the
procedure, and the seriousness of the felonies involved.
The record, including testimony on Betancourt’s motion
for DNA testing, shows that a local law enforcement officer
burned the evidence as part of an initiative to clean out the
evidence locker of evidence from old cases. See Betancourt II,
supra. At that time, Betancourt was deported, his whereabouts
were unknown, and the charges against him had been pending
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STATE v. BETANCOURT-GARCIA
Cite as 310 Neb. 440
for 7 years. Even if the evidence was potentially exculpatory,
the record shows that its destruction was not done in bad faith,
and under Arizona v. Youngblood, 488 U.S. 51, 109 S. Ct.
333, 102 L. Ed. 2d 281 (1988), the State’s acts did not violate
Betancourt’s right to due process. A hearing on this claim was
not warranted.
2. Plea Offer
Betancourt claims that appellate counsel was deficient for
not raising trial counsel’s allegedly deficient conduct concern-
ing plea offers. Betancourt generally asserts that he was not
properly advised of the penalty for conspiracy to commit kid-
napping and that he did not understand the sentencing recom-
mendation from the State. He claims an interpreter contacted
Betancourt’s counsel and advised that because Betancourt
believed he was ineligible for good time as an undocumented
immigrant, Betancourt did not understand the good time law.
Betancourt claims in particular that counsel failed to present to
him a plea offer of a Class II felony and a recommendation of
50 to 50 years’ imprisonment.
Betancourt does not allege, and the record does not suggest,
that appellate counsel knew or should have known to raise this
claim. The record shows that Betancourt rejected a plea offer
of a Class II felony and a recommendation of 20 to 20 years’
imprisonment. Thus, there is little reason to believe that he
would have accepted a 50 to 50 years’ imprisonment offer if
presented to him in a different way. Even if the claim concern-
ing counsel’s conveyance of the plea offer reflected deficient
performance, Betancourt was not prejudiced thereby. A hearing
on this claim was not warranted.
3. Other Claims
(a) Motion to Quash Counts I and II of the
Information Based on a Statute of
Limitations Defense
Betancourt asserts that his appellate counsel was deficient
for not raising ineffectiveness of trial counsel for not filing
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STATE v. BETANCOURT-GARCIA
Cite as 310 Neb. 440
a motion to quash count I, kidnapping, and count II, use of a
firearm to commit a felony. The district court did not adjudi-
cate this allegation in its order. However, the claim is affirma-
tively refuted by the record as we determined in Betancourt I,
wherein we concluded that counts I and II were filed within
the statute of limitations. Further, Betancourt’s counsel filed a
motion to quash the State’s amended information based on the
statute of limitations and specifically sought dismissal on count
III, conspiracy.
The record showed that on November 17, 2003, the State
timely filed an initial information charging counts I and II and
obtained an arrest warrant 2 days after the crimes were com-
mitted. The State filed an amended information on May 21,
2014. The district court conducted a hearing on Betancourt’s
motion to quash count III. The court heard evidence on whether
Betancourt fled from justice for purposes of Neb. Rev. Stat.
§ 29-110(7) (Reissue 2008), which provides that the time
limitation for filing charges “shall not extend to any person
fleeing from justice.” That evidence showed the events involv-
ing Betancourt’s ultimate arrest in Texas to where Betancourt
had fled and subsequent extradition to Nebraska. Given the
undisputed evidence that Betancourt had fled Nebraska and
by application of § 29-110(7), the district court overruled
Betancourt’s motion to quash count III. A motion to quash on
counts I and II would have been similarly unsuccessful under
§ 29-110(7). Betancourt I, supra. A hearing on this claim was
not warranted.
(b) Motion to Quash and/or Dismiss Count II,
Use of a Firearm to Commit a Felony
Betancourt claims that his appellate counsel was ineffective
for not raising trial counsel’s ineffectiveness for not moving to
quash or dismiss the use of a firearm to commit a felony charge
on the ground that the State did not recover the gun described
by witnesses. Betancourt claims that without the gun, the State
could not have demonstrated that it met the requirements of
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STATE v. BETANCOURT-GARCIA
Cite as 310 Neb. 440
Neb. Rev. Stat. § 28-1201 (Reissue 2008), which generally
describes an operable firearm.
[15,16] In State v. Lee, 195 Neb. 348, 237 N.W.2d 880
(1976), we held that the State is not required to prove that a
firearm is operable under a predecessor to our statute criminal-
izing possession of a firearm by a prohibited person, Neb. Rev.
Stat. § 28-1206 (Reissue 2008). We stated: “[E]vidence of pos-
session of a revolver or gun of prohibited description, which
is in apparently good condition and has the characteristics and
appearance commonly understood to be those of the firearm it
purports to be, is prima facie evidence sufficient to go to the
jury.” State v. Lee, 195 Neb. at 350, 237 N.W.2d at 882. We log-
ically apply this rationale to § 28-1201(1), which provides that
“[f]irearm shall mean any weapon which is designed to or may
readily be converted to expel any projectile by the action of an
explosive or frame or receiver of any such weapon.” Thus, the
operability of a handgun is not relevant to whether it is a fire-
arm used under Neb. Rev. Stat. § 28-1205(1)(a) (Reissue 2008)
(use of deadly weapon to commit felony). See State v. Clark,
10 Neb. App. 758, 766, 637 N.W.2d 671, 677 (2002) (firearm
did not have to be operable to prove use of deadly weapon to
commit felony). If courts required a firearm to be operable, we
effectively would be adding an element to this statute. Under
Nebraska law, all crimes are statutory and no act is criminal
unless the Legislature has in express terms declared it to be so.
State v. Burlison, 255 Neb. 190, 583 N.W.2d 31 (1998). “‘Had
the legislature wished to draw a distinction between operable
and inoperable firearms, it would have done so with clear and
distinct language.’” State v. Clark, 10 Neb. App. at 765, 637
N.W.2d at 676-77 (quoting Armstrong v. Commonwealth, 36
Va. App. 312, 549 S.E.2d 641 (2001)).
The district court did not adjudicate this allegation. However,
the claim is affirmatively refuted by the record by evidence
that Betancourt and his coconspirator both used a “firearm.”
Torres admitted at trial that he and Betancourt threatened Pedro
with guns, took him to the shed, and left him there while they
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STATE v. BETANCOURT-GARCIA
Cite as 310 Neb. 440
looked for Pedro’s brother Jose. A hearing on this claim was
not warranted.
(c) Hearsay Testimony at Pretrial Hearing
Betancourt claims ineffectiveness of appellate counsel for
failing to raise that trial counsel did not object to hearsay
testimony during the pretrial hearing on Betancourt’s motion
for absolute discharge. The testimony consisted of a law
enforcement officer’s reading from the information contained
in the records of the Madison County sheriff’s office about
Betancourt’s arrest in Texas in 2004. Betancourt’s claim is
affirmatively refuted by the record. The hearing was prelimi-
nary, and the rules of evidence did not apply pursuant to Neb.
Rev. Stat. § 27-1101 (Reissue 2008). A hearing on this claim
was not warranted.
(d) Change of Interpreter
Betancourt claims that his appellate counsel was ineffective
for not raising trial counsel’s ineffectiveness for not secur-
ing a different translator for Betancourt’s recorded jail phone
calls. Betancourt alleged that the Madison County Attorney
suspected Betancourt was tampering with witnesses and that in
his conversations, Betancourt expressed consciousness of guilt.
The county attorney directed interpreter Izabel Chavez to lis-
ten, translate, and transcribe Betancourt’s recorded phone calls.
The transcriptions were used against Betancourt. Betancourt
claims that Chavez had a conflict of interest because, in addi-
tion to translating for court appearances and attorney visits,
Chavez was working under the supervision of the county attor-
ney. He claims numerous errors with the quality of Chavez’
translations.
The district court did not adjudicate this allegation. Our
review of the allegations is that they are insufficient to show
that a different translator of the jail phone calls would have
changed the substance of the translation or that Betancourt was
prejudiced by counsel’s alleged inattentiveness to this claim. A
hearing on this claim was not warranted.
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(e) Conflict of Interest of Public
Defender’s Office
Betancourt claims that his trial counsel operated under a
conflict of interest, because the district court reappointed the
Madison County public defender’s office to represent him even
though he had previously fired an attorney from that office for
“not answering his phone calls, investigating the case, contact-
ing . . . alibi witnesses and communicating with Betancourt.”
Brief for appellant at 30. Betancourt claims he was unaware
that he had a conflict of interest with the Madison County pub-
lic defender’s office, which, if raised, could have compelled
the court to appoint different attorneys.
[17,18] We define an actual conflict of interest for Sixth
Amendment purposes broadly. State v. Malone, 308 Neb. 929,
957 N.W.2d 892 (2021), modified on denial of rehearing 309
Neb. 399, 959 N.W.2d 818. The phrase “actual conflict of
interest” encompasses any situation in which a defense counsel
faces divided loyalties such that regard for one duty tends to
lead to disregard of another. Id. An actual conflict of interest is
one that adversely affects counsel’s performance. Id. We have
recognized that “‘[n]ot all conflicts of interest that affect the
attorney’s “duty of loyalty” have the same consequences . .
. .’” State v. Avina-Murillo, 301 Neb. 185, 198, 917 N.W.2d
865, 875 (2018).
Betancourt’s claim of ineffectiveness based on trial counsel’s
conflict of interest is insufficiently alleged. He does not claim
that he notified his appellate counsel of the conflict. Further,
appointment of a public defender where the defendant has pre-
viously worked with the same office and requests appointment
of counsel from that office, even if it is a conflict, is not the
type of conflict from which we presume prejudice. See id. A
hearing on this claim was not warranted.
(f ) Testimony of Nino-Mucia on
Inaccurate Translations
Betancourt claims that his appellate counsel was ineffective
for not raising the ineffectiveness of trial counsel for failing
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to call interpreter Nino-Mucia to testify regarding inaccurate
translations. Betancourt alleges that Nino-Mucia would have
testified that the translations performed by Chavez in the
course of the case (1) were incomplete because the “industry
standards required that the original Spanish be included in the
translation transcription”; (2) were of poor quality; (3) included
omissions, mislabeling of speakers, punctuation errors, and
typographical errors; (4) included several “fix/add” in the tran-
scriptions; (5) were, in his professional opinion, of poor qual-
ity; and (6) were unfit such that they posed a legal issue. Brief
for appellant at 33. On appeal, Betancourt contends that if
Nino-Mucia had testified, “one of the jury members could have
concluded that [Chavez’] translation/transcription was of such
bad quality” that Betancourt could not fully understand the trial
proceedings and the nature of the decisions made by his attor-
neys. Id. at 34. The petition for postconviction relief offers no
examples of substantive weaknesses of the translations.
We agree with the district court that the allegations were
insufficiently alleged to warrant an evidentiary hearing. A hear-
ing on this claim was not warranted.
(g) Motion for Directed Verdict
on Count III, Conspiracy
Betancourt claims that appellate counsel was ineffective
for failing to raise trial counsel’s ineffectiveness because no
motion for a directed verdict of acquittal was filed on count
III, conspiracy to commit kidnapping. Betancourt asserts that
the State failed to prove beyond a reasonable doubt that he and
his coconspirator, Torres, had an agreement or understanding to
kidnap Pedro. He points to testimony by Torres that Betancourt
asserts shows they had different intentions and objectives on
the day the crimes were committed. Betancourt claims that trial
counsel did not make clear to the trial court that Betancourt
and Torres did not share intentions.
[19,20] The district court did not adjudicate this allegation.
However, this claim is affirmatively refuted by the record.
Betancourt’s trial counsel moved for a directed verdict and
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renewed the motion. Each motion was overruled. Recasting
trial counsel’s motion for a directed verdict as a more spe-
cific argument concerning Betancourt’s intent would not have
changed the ultimate issue decided by the trial court. We have
held that with respect to proving the intent element of a con-
spiracy, “direct evidence of a positive agreement” to jointly
participate in the violation of a criminal statute is not required
to establish a crime. See Beyl v. State, 165 Neb. 260, 272, 85
N.W.2d 653, 660 (1957). A criminal conspiracy must neces-
sarily be entered into with the intent to defraud the State or to
violate a criminal law, and intent being a matter of the mind,
it is rarely possible to prove that element of the crime except
by circumstances. Id. Pedro testified to coordinated and joint
illegal actions by Betancourt and Torres continuing beyond the
initial abduction. A hearing on this claim was not warranted.
(h) Inquiry Into Paula Chadwick
and Bob Chadwick
Betancourt claims that appellate counsel was ineffective for
not raising trial counsel’s decision not to investigate, depose,
and subpoena both Paula Chadwick and Bob Chadwick, the wit-
nesses who encountered Pedro after the kidnapping and called
law enforcement. He claims that the Chadwicks may have been
able to testify that Pedro was released voluntarily.
The district court did not adjudicate this allegation. On our
review of the record, we determine that this claim was specula-
tive and, as alleged, is refuted by the record. The testimony sug-
gested by Betancourt regarding how Pedro’s tape was removed
following his kidnapping and arrival at the Chadwicks’ house
while still bound would not have supported a lesser crime and
would not have changed the outcome of the trial. A hearing on
this claim was not warranted.
(i) Motion for New Trial
Betancourt claims that appellate counsel was ineffective for
not raising trial counsel’s failure to move for a new trial on the
basis of his constitutional right to confront Paula Chadwick.
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He claims that her testimony would have shown that she con-
taminated the crime scene by helping to cut tape from Pedro’s
face, ankles, and wrists.
This claim is affirmatively refuted by the record. Paula
Chadwick was not a witness at trial, and no testimonial state-
ments from her were offered into evidence at the trial. U.S.
Const. amend. VI provides, in relevant part, that “[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to
be confronted with the witnesses against him . . . .” Because
Paula Chadwick was not a witness against Betancourt, U.S.
Const. amend. VI does not grant him the right to confront
her. See Crawford v. Washington, 541 U.S. 36, 51, 124 S. Ct.
1354, 158 L. Ed. 2d 177 (2004) (observing that “‘witnesses’
against the accused,” for Confrontation Clause purposes, are
“those who ‘bear testimony’”). A hearing on this claim was
not warranted.
( j) Ortiz’ Testimony on Domestic Assault
Betancourt claims that appellate counsel was ineffective
for failing to assign that trial counsel was ineffective when
counsel did not object to the testimony of Betancourt’s wife,
Ortiz. Such an objection would be based on the grounds of
spousal privilege and relevance. Ortiz testified that she had
two children with Betancourt, that she left Betancourt without
telling him where she went, that she intended to hide from
Betancourt, and that she had been hiding from Betancourt for
13 years. Betancourt claims that trial counsel performed defi-
ciently by not informing Ortiz that, if she chose, she would not
be compelled to testify against her husband. See Trammel v.
United States, 445 U.S. 40, 100 S. Ct. 906, 63 L. Ed. 2d 186
(1980). Further, Betancourt claims that his trial counsel should
have objected to Ortiz’ testimony based on relevance and
forced a hearing pursuant to Neb. Rev. Stat. § 27-403 (Reissue
2016) to determine if her testimony was relevant and, even if
relevant, whether its probative value was outweighed by its
prejudice to Betancourt. Betancourt claims a § 27-403 hearing
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would have prevented him from being found guilty by the jury
on an “emotional basis.” Brief for appellant at 42.
With respect to spousal privilege, this claim is affirmatively
refuted by the record. Betancourt’s trial counsel objected to
Ortiz’ testimony on spousal privilege grounds and was over-
ruled on the basis of Neb. Rev. Stat. § 27-505(3)(a) (Reissue
2016) (providing, in relevant part, that spousal privilege may
not be claimed “[i]n any criminal case where the crime charged
is a crime of violence . . .”) Trial counsel was not deficient and,
similarly, appellate counsel was not deficient in not pursuing
this argument. A hearing on this claim was not warranted.
(k) Jury Instructions
Betancourt next claims that appellate counsel was inef-
fective for not raising trial counsel’s ineffectiveness for not
objecting to jury instructions Nos. 2 (presumption of inno-
cence), 4 (prior inconsistent statements), 8 (definition of
intent), 13 (presence in Madison County), and 15 (elements
of conspiracy). Reading the jury instructions together, and as
a whole, the record affirmatively refutes Betancourt’s claims
with respect to instructions Nos. 2, 4, 8, and 15; the instruc-
tions are a correct statement of the law, not misleading, and
adequately cover the issues supported by the pleadings and
evidence. Instruction No. 13, regarding Betancourt’s physical
presence in Madison County, was correct as to count I, kidnap-
ping, and count II, use of a firearm to commit a felony, but
was erroneous with respect to count III, conspiracy. However,
this error is harmless.
Jury instruction No. 2, regarding the presumption of inno-
cence, read in relevant part as follows: “The defendant has
pled not guilty to each of these crimes. He is presumed to be
innocent. That means you must find him not guilty unless you
decide that the State has proved him guilty beyond a reason-
able doubt.” Contrary to Betancourt’s assertion, the court’s use
of the word “unless” rather than the phrase “unless and until”
in instruction No. 2 did not make the instruction defective. See,
e.g., State v. Henry, 292 Neb. 834, 875 N.W.2d 374 (2016).
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Regarding instruction No. 4, contrary to Betancourt’s asser-
tion, the typographical errors to which he draws our attention
were insignificant and did not detract from the instruction’s
meaning or purpose. With respect to instruction No. 8, con-
trary to Betancourt’s assertion, the inclusion of the second
paragraph, which is not in NJI2d Crim. 5.1, was an accurate
statement of the law. See State v. Kennedy, 239 Neb. 460, 476
N.W.2d 810 (1991). Regarding instruction No. 15, contrary to
Betancourt’s assertion, whether Betancourt fled from justice
was in fact relevant to whether the conspiracy charge was time
barred and whether Betancourt could be found guilty of the
conspiracy charge. See § 29-110(7) (tolling statute of limita-
tions when defendant has fled). See Taylor v. State, 138 Neb.
156, 292 N.W. 233 (1940). Further, contrary to Betancourt’s
assertion, it did not improperly shift the burden of proof
to Betancourt.
[21] Instruction No. 13 read: “An issue in this case is whether
[Betancourt] was present in Madison County, Nebraska, on
November 15, 2003. The State must prove that he was.” We
agree with Betancourt and the State that with respect to count
III, conspiracy, instruction No. 13 was an inaccurate statement
of the law because Betancourt’s physical presence in Madison
County need not have been proved for purposes of the conspir-
acy. Neb. Rev. Stat. § 28-202(1) (Reissue 2008), which defines
criminal conspiracy, states:
A person shall be guilty of criminal conspiracy if, with
intent to promote or facilitate the commission of a felony:
(a) He agrees with one or more persons that they or one
or more of them shall engage in or solicit the conduct or
shall cause or solicit the result specified by the definition
of the offense; and
(b) He or another person with whom he conspired com-
mits an overt act in pursuance of the conspiracy.
Thus, the crime of conspiracy does not require the physical
presence of the accused. It has been noted that conspiracy
may be charged in both the place of the agreement, as well as
any locale where any overt act by any one of the conspirators
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took place. See 2 Wayne R. LaFave, Substantive Criminal Law
§ 12.1(b)(2) (3d ed. 2018).
Instruction No. 13 was an accurate statement of the law as to
count I, kidnapping, and count II, use of a firearm to commit a
felony, and we conclude that although erroneous as applied to
the conspiracy charge, any such error was harmless. See State
v. Abram, 284 Neb. 55, 815 N.W.2d 897 (2012). The undis-
puted evidence was that all three alleged crimes physically
took place in Madison County, and as such, instruction No. 13
would not have confused the jury. A hearing on this claim was
not warranted.
(l) Right Not to Testify
Betancourt claims that appellate counsel did not raise that
trial counsel did not adequately advise him about his right not
to testify and that if he decided not to testify, that fact could not
be considered an admission of guilt and must not influence the
verdict in any way. Regardless of whether trial counsel advised
Betancourt he had a right not to testify, the record shows that
he was so advised by the court. At his arraignment, Betancourt
was advised of his right not to testify, as well as advised that if
he chose not to testify, that fact could not be used against him.
Thus, even if trial counsel failed to advise Betancourt in this
regard, he was not prejudiced thereby and appellate counsel
was not ineffective in not pursuing this argument. A hearing on
this claim was not warranted.
(m) Sentence for Count III, Conspiracy
Betancourt claims that appellate counsel, while serving as
trial counsel upon remand for resentencing on the conspiracy
conviction, was ineffective for not objecting to the district
court’s imposition of a sentence of “life imprisonment without
parole.” The State concedes that Betancourt’s conspiracy sen-
tence of “life imprisonment without parole” is not authorized.
In Betancourt I, the direct appeal, we remanded the cause
for resentencing on the conspiracy conviction with directions
to impose a life sentence. We said:
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Turning again to plain error, where, after a conviction
following a jury trial, the trial judge imposed an incorrect
sentence, we have found plain error and ordered the trial
court to correct the sentence. See State v. Thorpe, 280
Neb. 11, 26, 783 N.W.2d 749, 762 (2010) (remanding
with directions to resentence to life imprisonment because
“life imprisonment without parole” was not a valid sen-
tence for first degree murder). In this instance, the incor-
rect sentence constituted plain error, and we remand for
imposition of a sentence of life imprisonment.
Betancourt I, 295 Neb. at 192, 887 N.W.2d at 313. Despite this
direction, the district court on January 27, 2017, resentenced
Betancourt to a term of “life imprisonment without parole.”
We agree with Betancourt and the State that counsel was
deficient by failing to object to an improper sentence for count
III, conspiracy to commit kidnapping. Because this is a post
conviction proceeding brought under the provisions of § 29-3001
et seq., rather than vacating this sentence, this court is required
to remand the cause to the trial court for a hearing. See State v.
Rolling, 218 Neb. 51, 352 N.W.2d 175 (1984).
(n) Jury Instruction on Lesser-Included Offense
of First Degree False Imprisonment
Betancourt claims that his appellate counsel was ineffective
for not challenging the district court’s refusal to instruct the
jury on the lesser-included offense of first degree false impris-
onment. He claims that such an instruction would have allowed
the jury to determine whether Betancourt intended to commit
kidnapping or the crime of first degree false imprisonment.
The lesser-included offense instruction was not warranted by
the evidence. This claim is affirmatively refuted by the record.
We have stated:
“Where the prosecution has offered uncontroverted evi-
dence on an element necessary for a conviction of the
greater crime but not necessary for the lesser offense,
a duty rests on the defendant to offer at least some
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evidence to dispute this issue if he or she wishes to have
the benefit of a lesser-offense instruction.”
State v. Stabler, 305 Neb. 415, 424-25, 940 N.W.2d 572, 580
(2020). It is the intent to terrorize that distinguishes kidnapping
from first degree false imprisonment. State v. Becerra, 261
Neb. 596, 624 N.W.2d 21 (2001). In this case, the State offered
ample evidence that Betancourt and Torres intended to terror-
ize Pedro through their words and acts, and Betancourt did not
introduce evidence to dispute the issue of intent to terrorize. A
hearing on this claim was not warranted.
VI. CONCLUSION
The district court erred when it failed to determine that
Betancourt was entitled to an evidentiary hearing regarding
his claim that counsel who appeared with Betancourt at the
resentencing upon remand from Betancourt I was deficient for
failing to object to the resentence of “life imprisonment with-
out parole” for conspiracy. This is not an authorized sentence;
a sentence of life imprisonment is authorized. The judgment
of the district court is reversed with respect to this claim, and
the cause is remanded to the district court with directions to
conduct a hearing on Betancourt’s sentence for conspiracy. On
Betancourt’s remaining claims, we affirm the judgment of the
district court that denied postconviction relief without an evi-
dentiary hearing.
Affirmed in part, and in part reversed
and remanded with direction.
Funke and Freudenberg, JJ., not participating. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284412/ | Mary R. Russell, Judge
The issue on appeal here is whether the trial courts erred in entering judgments on the pleadings in five wrongful death lawsuits on the basis that the causes of action were time-barred by the three-year limita*705tion in section 537.100.1 The plaintiffs argue the claims were not barred by the statute of limitation as the defendants intentionally and fraudulently concealed the tortious nature of the decedents’ deaths. This Court finds that Frazee v. Partney, 314 S.W.2d 915 (Mo. banc 1958), remains good law and reaffirms both its holdings that a wrongful death claim accrues at death and that courts may not add exceptions to a special statute of limitation. Accordingly, despite the harsh result, this Court is obligated to follow the mandate of the statute. The plaintiffs’ claims are time-barred because the three-year statute of limitation had passed when the lawsuits were filed, and section 537.100 does not provide for delayed accrual or an exception for fraudulent concealment. The judgments of the trial courts are affirmed.
I. Factual and Procedural Background
The circumstances of these cases are tragic and deeply concerning. This appeal arises from five sepárate but essentially identical wrongful death claims brought by Sally Boland, Sherri Lynn Harper, David C. Gann, Jennirae Littrell, and Helen Pittman (the plaintiffs) against Community Health Group, Saint Luke’s Health Systems, Inc., and Saint Luke’s Hospital of Chillieothe (collectively, “the hospital”). The eases are now consolidated before this Court. Because the trial courts entered judgment on the pleadings in favor of the hospital, the following allegations of the plaintiffs are treated as admitted for purposes of this appeal. See Emerson Elec. Co. v. Marsh & McLennan Cos., 362 S.W.3d 7,12 (Mo. banc 2012).
The plaintiffs all had family members die while being treated at Hedrick Medical Center in Chillieothe in 2002. Sally Bo-land’s father died February 3, 2002. Sherri Lynn Harper’s husband died March 22, 2002. David C. Gann’s father died March 30, 2002. Jennirae Littrell’s father died April 15, 2002. Helen Pittman’s sister died March 9,2002.
The petitions allege that Jennifer Hall, a former employee of the hospital, was responsible for the deaths. Specifically, the allegations are that over a period of time, Hall, a respiratory specialist, intentionally administered a lethal dose of succinylcho-line, insulin, and/or other medication that resulted in the death of each of the decedents.2 Hall’s actions are alleged to have caused at least nine suspicious deaths and 18 suspicious “codes,” which are medical emergencies, often involving cardiac arrest or the inability to breathe.
Further, the petitions allege that the hospital was aware of Hall’s actions and acted affirmatively to conceal the suspicious nature of the deaths by: (1) threatening and coercing its employees to conceal information concerning Hall’s , actions; (2) failing to request autopsies so as to conceal the causes of death when there were several suspicious deaths; (3) informing or instructing its employees to notify patients’ families that the causes of death were “natural” rather than due to Hall’s actions; (4) disbanding committees put into place to evaluate codes and determine preventative measures; (5) failing to inform appropriate individuals and medical committees that had authority to act about Hall’s behavior so that future harm by Hall could be prevented; (6) failing to *706investigate, and/or monitor Hall when requested to do so by law enforcement; Suc-cinylcholine is a muscle relaxant that paralyzes the respiratory muscles and normally is used to allow the insertion of a breathing tube into the throat of a patient who is still conscious. When administered in larger doses, succinylcholine will resült in paralysis, and the patient suffocates to death. (7) removing patients’ medical records so they were inaccessible to the patients’ physicians; (8) discarding or failing to preserve crucial material evidence contained in Hall’s locker regarding her misconduct; • and (9) impeding law enforcement’s investigation of Hall.
Dr. Cal Greenlaw was a physician working at the hospital during- the relevant period. In February 2002, Dr. Greenlaw treated a patient in the emergency room .who suddenly “coded” due to a cardiovascular collapse. He could not account for the patient’s unusual blood sugar/insulin events. He had previously become aware of two suspicious codes and resulting deaths prior to this incident and subsequently came to suspect that someone had been attempting- to kill patients by injecting them with insulin or some other drug.
Dr. Greenlaw voiced these concerns to the hbspital administration but was told by the hospital’s director of nurses that there was no problem and not to discuss his suspicions further. Later, he told the hospital’s1 administrator that he suspected Hall was intentionally killing patients at the hospital but was again told to abandon the matter for fear that the hospital’s admissions would be jeopardized. However, he continued to gather evidence and, ultimately, became aware of 18 “code blues” and nine suspicious deaths at the hospital from February to May 2002 that occurred while Hall was on duty.
Aleta Boyd was a registered nurse and longtime employee of the hospital during the relevant period. She worked as the hospital’s risk manager for internal events. In March 2002, she became aware of a dramatic increase in code blue events and deaths. She ultimately came to suspect that patients were intentionally being injected with insulin and/or other drugs and began an internal investigation. She concluded that Hall was- the cause of the events and communicated the findings to the director of nursing and to the hospital’s administrator. Boyd, however, was instructed to keep the matter confidential and not to involve anyone else. She continued to receive reports of code blue events and deaths, ultimately becoming aware of approximately 15 patients who either coded or died under suspicious circumstances in which Hall was listed in the patient’s record. Boyd and other nurses finally met with the hospital administration and communicated a desire to alert the media if the hospital failed to stop Hall.
Hall was suspended and later fired in May 2002 after another patient died under suspicious circumstances. After Hall’s suspension, a bottle of insulin was found in her locker, despite there being no reason for her to have insulin or to administer medication to patients. The suspicious codes and deaths apparently ceased once Hall was fired.
The Joint Commission on Accreditation of Healthcare Organizations ultimately investigated the events at the hospital and identified a number of “sentinel” events occurring during 2002. A sentinel event is defined as “an unexpected occurrence involving death or serious physical or psychological injury, or the risk thereof.” A health care provider is required to report such events to patients and their families. The plaintiffs, however, allege- they were not notified of the circumstances surrounding the deaths of their family members *707until shortly before their petitions were filed.
The plaintiffs filed petitions against the hospital arguing they were entitled to damages under Missouri’s wrongful death statute, section 5S7.08Ó. The hospital filed motions for judgments on the pleadings, arguing that the claims were time-barred by section 537.100, the three-year wrongful death statute of .limitation. The trial courts granted the hospital’s motions. The plaintiffs appeal.3
IL Standard of Review
. When reviewing the trial court’s grant of a motion for judgment on the pleadings, this Court must determine “whether the moving party is entitled to judgment as a matter of law on the face of the pleadings.” Emerson Elec. Co., 362 S.W.3d at 12. The judgments will be affirmed if the facts pleaded by the plaintiffs, considered by the court as admitted, demonstrate that they could not prevail under any. legal theory. Id.
III. Statutory Provisions
Wrongful death in Missouri is statutory and has no common law antecedent. Sanders v. Ahmed, 364 S.W.3d 195, 203 (Mo. banc 2012). Section 537.080 provides, in relevant part:
Whenever the death of a person results from any act, conduct, occurrence, transaction, or circumstance which, if death had not ensued, would have entitled such person to recover damages in respect thereof, the person or party who, or the corporation which, would have been liable if death had hot ensued shall be liable in an action for damages, notwithstanding the death of the person injured....
A limitation period within which all wrongful death claims must be . brought is found in section 537.100. It provides that “[e]very action instituted under section 537.080 shall be commenced within three years after the cause of action shall accrue.” Section 537.100 contains two exceptions to the statute of limitation: a tolling provision for defendants.who abscond from the state to avoid personal service and a one-year savings provision if This Court granted transfer after opinion by the court of appeals. Mo. Const, art. V, sec. 10. the plaintiff files a voluntary non-suit or the plaintiffs judgment. is reversed ' and remanded on appeal. There are no other exceptions in the language -of section 537.100.
By contrast,' in chapter 516, the general statutes of limitation chapter, there is an exception for fraudulent concealment. Section 516.280 provides that, “[i]f any person, by absconding or concealing himself,. or by any other improper act, prevents] the commencement of an action, such action may be commenced within the time herein limited, after the commencement of such action shall have ceased to be so prevented.” Section 516.300, however, provides that: “[t]he provisions of sections 516.010 to 516.370 shall not extend to any action which is or shall be otherwise limited by any statute; but such action shall be brought within the time limited by such statute.” In short, section 516.300 states that the general statutes of limitation and exceptions found in chapter 516 are not applicable to causes of action that contain their own special statutes of limitation. Section 537.100 is a special statute of limitation for wrongful death. As a result, the fraudulent concealment tolling exception in section 516.28Ó is not applicable to this case.
*708IV. Analysis
All parties agree that neither of section 537.100’s two exceptions apply to this case. Instead, the plaintiffs argue that the trial courts erred in granting the hospital’s motions for judgment on the pleadings because, due to the hospital’s fraudulent concealment, their wrongful death claims did not accrue until they learned of the wrongfulness of the hospital’s conduct and were not time-barred by section 537.100. Alternatively, they contend that the statute of limitation was equitably tolled by the hospital’s concealment, that the statute of limitation did not run, or that equitable estoppel precludes the hospital from relying on the statute of limitation as a defense. In other words, the plaintiffs argue either for delayed accrual under section 537.100 or for a de facto exception to the limitation period for fraudulent concealment. The hospital counters that delayed accrual for wrongful death is not recognized in Missouri and that courts may not judicially graft a tolling mechanism onto a special statute of limitation that is not specifically provided for by the legislature.
A. Frazee v. Partney Remains Good Law
At the center of both of the plaintiffs’ arguments is this Court’s decision in Frazee v. Partney, 314 S.W.2d 915 (Mo. 1958). In Frazee, a family was involved in a car accident caused by a driver who fell asleep at the wheel. Id. at 917. Two people were killed, but the driver was unaware an accident had occurred because he did not see where the family’s car went off the road. Id. The driver considered whether to go back and investigate but elected to proceed ahead to his destination. Id. The accident occurred in 1954, but the plaintiffs did not learn the driver’s identity until March 1956. Id. They filed a wrongful death suit against the driver in September of 1956. Id. at 916. The defendant pleaded section 537.100, which at that time provided a one-year limitation period for wrongful death claims. Id. This Court considered two questions: (1) when á wrongful death cause of action accrues, and (2) whether the defendant’s allegedly fraudulent concealment of his identity tolled or extended the limitation period in section 537.100. Id. at 917.
With respect to delayed accrual, this Court addressed whether a wrongful death claim accrues at death or at the point when the suit “could be validly commenced and maintained against an ‘actual’ defendant,” i.e., when the identity of the defendant became known. Id. at 917. Frazee distinguished between the existence of a defendant and the identity of the defendant and noted that the language of section 537.100 specifically provided that the limitation period began at the accrual of the cause of action — when the plaintiffs injury was complete and not at the point when a lawsuit could be effectively commenced. Id. at 920-21. Frazee held that, despite the harshness of the outcome, the wrongful death claim accrued at the moment of death, even though the plaintiff argued the identity of the defendant had been fraudulently concealed. Id. at 921.
In addressing the driver’s identity, Frazee rejected the argument that .such concealment, even if fraudulent, tolled or extended the limitation period and held that section 537.100 “must carry its own exceptions”:
This court has uniformly held that where a statute of limitations is a special one, not included in the general chapter on limitations, the running thereof cannot be tolled because of fraud, concealment or any other reason not provided in the statute itself.... No other exceptions whatever are engrafted on that *709statute, and it is not the duty or the right of the courts to write new provisions into the statute.
Id. at 919. In reaching this conclusion, the Court noted that it was bound to consider only the plain language of section 537.100 and the legislative intent that language evidenced. Id. at 921. Frazee further found it significant that the legislature had twice amended section 537.100 since its adoption and added two exceptions yet never saw fit to craft a fraudulent concealment exception like the one codified at section 516.280. Id. at 920. “We are forced to construe the cold, clear words of the statute, and if its scope is to be enlarged we feel that the remedy is legislative, not judicial.” Id. at 921.
The plaintiffs question the validity of Frazee in light of two subsequent decisions. First, in O’Grady v. Brown, 654 S.W.2d 904, 906-07 (Mo. banc 1983), this Court considered whether a fetus qualified as a “person” under the wrongful death statute. O’Grady held that the wrongful death statute was not in derogation of the common law and should be construed “with a view to promoting the apparent object of the legislative enactment.” Id. at 908. In holding that the fetus was a “person” for purposes of wrongful death, this Court noted three basic objectives underlying the wrongful death statute: (1) to compensate bereaved plaintiffs for their loss, (2) to ensure that tortfeasors pay for the consequences of their actions, and (3) to deter future harmful conduct that might lead to death. Id. at 909.
Second, 'the plaintiffs cite Howell v. Murphy, 844 S.W.2d 42 (Mo. App. 1992), which relied on O’Grady. The plaintiffs argue that Howell abrogated Frazee. In Howell, the plaintiffs filed wrongful death claims against a man who murdered their loved ones and concealed the evidence for more than five years. Id. at 45. The plaintiffs could .not file their claims within three years because the victims had not been found and, by statute, were presumed missing and not dead until five years had passed. Id. at 47. The court favorably cited O’Grady as a “major shift” in the interpretation of wrongful death, holding that the statute of limitation “should not be. so strictly construed as to avoid the wrongful death statute’s purposes.” Howell, 844 S.W.2d at 46. It held that, due to the defendant’s concealment of the bodies and the statutory presumption of life, section 537.100 was tolled “until the plaintiffs could, by reasonable diligence, ascertain they had an action.” Id. at 47. In its discussion, Howell also stated that “the reasoning of Frazee is superseded by O’Grady.” Id. at 46.'
Howell is in error. Frazee was never referenced or cited by this Court in O’Grady. Absent a contrary showing, an opinion of this Court is presumed not to be overruled sub silentio. State v. Wade, 421 S.W.3d 429, 433 (Mo. banc 2013). Additionally, Frazee and O’Grady are dissimilar because the statute of limitation was not at issue in O’Grady. As a result, Frazee remains good law. To the extent that Howell stated that Frazee is superseded by O’Grady, it should no longer be followed.4
*710
B. Delayed Accrual
To determine whether a statute of limitation bars recovery, it is necessary to establish when the cause of action accrued. Jepson v. Stubbs, 555 S.W.2d 307, 311 (Mo. banc 1977). A cause of action accrues, and the limitation period begins to run, when the right to sue arises. Hunter v. Hunter, 361 Mo. 799, 237 S.W.2d 100, 103 (1951). Frazee held that a wrongful death claim accrues at death. This has long been the rule in Missouri. See Coover v. Moore, 31 Mo. 574, 576 (Mo.1862); Cummins v. Kansas City Pub. Serv. Co., 334 Mo. 672, 66 S.W.2d 920, 929 (1933); Nelms v. Bright, 299 S.W.2d 483, 487 (Mo. banc 1957). That rule is now reaffirmed. The language of section 537.100 is unambiguous, and this Court’s precedent is clear: the plaintiffs’ claims accrued, at the decedents’ deaths, and- section 537.100 does not provide for delayed accrual under these circumstances.
C. Fraudulent Concealment Exception
As the plaintiffs’ claims accrued at death, the claims are time-barred unless an exception or tolling mechanism applies. The plaintiffs argue that due to the hospital’s fraudulent concealment, the statute of limitation was equitably tolled, did not run, or that equitable estoppel prevents the hospital from relying on the statute, of limitation as a defense. Though these are distinct legal concepts, under these circumstances they amount to an argument for a de facto exception tó Section 537.100 for fraudulent concealment.
Faced with statutory language that does not provide the fraudulent concealment exception they seek, the plaintiffs contend that this Court should construe the limitation period for wrongful death found in section 537.100 to avoid frustrating the remedial purpose behind wrongful death. They argue that section 537.100 can be interpreted “with reference to its spirit and reason so that, even if a case falls within the letter of the statute, courts are not bound thereby if the case is not within the spirit and reason of the law and the plain intention of the legislature.” Essentially, they argue that the wrongful death statutory scheme’s purposes can be used to override or amend its statutory language. They believe Frazee was wrongly decided, particularly in light of law in other jurisdictions.5
This Court is presented with an extremely difficult decision. What occurred here is undoubtedly a tragedy, and the plaintiffs put forth what amounts to a compelling policy argument for why their suits should be allowed to proceed. This proposed “freewheeling” approach to statutory interpretation, however, is also troubling, particularly when the precedent of this Court counsels a different result.6
*7111. Precedent Cautions Against Judicially-Created Exceptions
As noted above, Fmzee re mains good law and is directly on point in this case. It unambiguously held that “[a] special statute of limitation must carry its own exceptions and we may not engraft others upon it.” 314 S.W.2d at 919. Despite the difficult result for the plaintiff, Fmzee held that “[t]he legislature has not seen fit to enact for death actions either a tolling provision or a delayed accrual on account of fraud, concealment, or other improper act” and that it was “not the duty or the right” of the courts to add exceptions not provided for by statute. Id. at 919, 921. The principles of legislative deference as well as stare decisis must be respected.
Moreover, this is not the first time this Court, has declined appealing policy arguments when applying statutes of limitation. In Laughlin v. Forgrave, 432 S.W.2d 308 (Mo. banc 1968), this Court, in construing section 516.140, RSMo 1959, held that a plaintiffs medical malpractice action was barred by the statute of limitation despite the claim that the injury — a foreign object left in the plaintiffs back following a surgery in 1951 — could not have been discovered within the limitation period. This is because the statute of limitation did not contain a discovery provision. Id. at 313. In rejecting the plaintiffs argument for the discovery rule, this Court stated that:
This argument is appealing and has some force, so far as justice is concerned; in that respect the conclusion we reach is distasteful to us. But, the legislative branch of the government has determined the policy of the state and clearly fixed the time when the limitation period begins to run against actions for malpractice. This argument addressed to the court properly should be addressed to the General Assembly. Our function is to interpret the law; it is not to disregard the law as written by the General Assembly.
Laughlin, 432 S.W.2d at 314. Addressing the result of Laughlin, the General Assembly in 1976 repealed section 516.140 and enacted section 516.105, a new special statute of limitation for medical malpractice actions with a specific provision that, for foreign objects left inside the body, the limitation period began to run from the date of discovery. 1976 Mo. Laws 767 (codified as amended at section 516.105, RSMo 2000).
Similarly, in Weiss v. Rojanasathit, 975 S.W.2d 113 (Mo. banc 1998), this Court again addressed the statute of limitation for a medical malpractice action under section 516.105, RSMo 1994. In Weiss, the plaintiff received a routine gynecological examination and was told she would be notified of any abnormal results. Id. at 116. The plaintiff was not notified that the test indicated a cancerous or precancerous condition; Id. During another examination nearly four years later, she discovered she had Stage lib endoeervix cancer. Id. She brought a medical malpractice action based on failure to notify, arguing that because her injury was not capable of being discovered until the subsequent examination, her claim was not barred by ’the two-year limitation period of section 516.105, RSMo 1994. Id. at 117.
Weiss rejected the various proffered discovery theories and held that the discovery exception added after Laughlin was limited to cases concerning foreign objects. Id. *712at 120. Citing the above language from Laughlin, the Court noted that the outcome was a hardship to the plaintiff but that “[t]he general assembly evidenced its clear intent to limit a discovery rule to cases concerning foreign objects. That is its prerogative. This Court must follow the policy determination expressed there.” Id. at 121. Additionally, the plaintiffs argument that equitable estoppel should prevent the defendant from asserting the statute of limitation as a defense was rejected. Id. at 120. In response, during the next legislative session in 1999, the General Assembly amended section 516.105, adding a discovery exception for cases where the act of negligence is “negligent failure to inform the patient of the results of medical tests.” 1999 Mo. Laws 329.
Frazee, Laughlin, and Weiss do not seek to incentivize fraudulent acts. Rather, they stand for the principle that it is this Court’s role to interpret the law, not rewrite it. Accordingly, the plaintiffs’ argument here is one better made to the General Assembly, which is in the best position to determine policy on exceptions to statutes of limitation. See Hunter, 237 S.W,2d at 104 (exceptions to statutes of limitation are matters of public policy for the General Assembly; exceptions are to be strictly construed and not enlarged by courts upon considerations of hardship).7
It is further noted that, although the result the plaintiffs argue for is appealing, the method of using a common law equitable maxim to work around the dictates of section 537.100 is inherently problematic. Equity should not be deployed in a manner that countermands the clear intent and language of the legislature, particularly in regard to a statutorily created cause of action. This Court has previously held that:
Equity Courts may not disregard a statutory provision, for where the Legislature has enacted a statute which governs and determines the rights of the parties under stated circumstances, equity courts equally with courts of law are bound thereby. Equity follows the laiv more circumspectly in the interpretation and application of statute law than otherwise.
Milgram v. Jiffy Equip. Co., 362 Mo. 1194, 247 S.W.2d 668, 676-77 (1952) (emphasis added) (internal citations omitted). Implicit in the plaintiffs’ argument is that all equitable maxims become a part of all statutory schemes unless expressly written out of the law by the legislature. This merely invites the future reexamination by courts of otherwise settled areas of statutory interpretation, and this Court declines to so hold.
2. Legislative Intent of Section 537.100
The plaintiffs argue that the legislature could not have intended for the wrongful death statutory scheme to operate in this manner and that the primary rule of interpretation is to give effect to the legislature’s intent as reflected in the plain language of the statute. See Fred Weber, Inc. v. Dir. of Revenue, 452 S.W.3d 628, 630 (Mo. banc 2015). Though it is rendered somewhat tertiary in light of the *713plain language of section 537.100 and precedent regarding judicially created exceptions to special statutes of limitation, the legislative history of section 537.100 .indicates a legislative intent not to provide the exception the plaintiffs seek.
Prior to the result in Fmzee, the General Assembly twice amended section 537.100 to add exceptions. In 1905, a one-year savings provision to allow a new suit following dismissal without prejudice ' was added. 1905 Mo. Laws 137 (codified at section 2868, RSMo 1906). In 1909, a tolling provision for defendants who abscond from the state to avoid personal service was added. 1909 Mo. Laws 463 (codified at section 5429, RSMo 1909). In enacting these two exceptions to the limitation period, the General Assembly declined to adopt an exception for fraudulent concealment. Yet it appears the legislature was well aware of how to provide for a fraudulent concealment exception to a statute of limitation as such an exception, currently codified at section 516.280, has existed in Missouri for over 150 years. See Limitation: art. 8, sec. 3, RSMo 1836. The legislature could have added a fraudulent concealment exception to section 537.100, but it did not.
Even after Fmzee, the General Assembly twice more amended section 537.100 but has never seen fit to craft a fraudulent concealment exception. Instead, it chose to alleviate the result in Fmzee by enlarging the limitation period — first from one year to two years in 1967, then to three years in 1979. 1967 Mo. Laws 665; 1979 Mo. Laws 631. The Court respects these legislative choices and “presumels] that the legislature acted with a full awareness and complete knowledge of the present state of the law.” State v. Rumble, 680 S.W.2d 939, 942 (Mo. banc 1984). .
V. Conclusion
Without commenting on whether the plaintiffs have other viable remedies at law, the conclusion that the plaintiffs are without a remedy for wrongful death is a difficult one; But as it was written over a century ago, “[h]ard cases ... are apt to introduce bad law.” Winterbottom v. Wright, (1842)152 Eng. Rep. 402 (Exch.). In that regard, this Court echoes the sentiment of baughlin in recognizing that, though the outcome is distasteful, “the legislative branch of the government has determined the policy of the state and clearly fixed the time when the limitation ' period begins to run.... Our function is to interpret 'the law; it is not to disregard the law as written by the General Assembly.” 432 S.W.2d at 314. The judgments of the trial courts are affirmed.
Breckenridge, C.J., Fischer, and Wilson, JJ., concur;
Draper, J., concurs in part and dissents in part in separate opinion filed;
Stith and Teitelman, JJ., concur in opinion of Draper, J.
. All statutory references are to RSMo 2000 unless otherwise indicated.
. Succinylcholine is a muscle' relaxant that paralyzes the respiratory muscles and normally is used to allow the insertion of a breathing tube into the throat of a patient who is still conscious. When administered in larger doses, succinylcholine will result ’ in paralysis, and the patient suffocates to death.
. This Court granted transfer after opinion by the court of appeals. Mo. Const, art V, sec. 10.
. The plaintiffs argue that Howell, controls this case. However, Howell is distinguishable. There, the plaintiffs were not aware they had a wrongful death claim because they could not be certain that a death had occurred due to the defendant’s fraudulent concealment and the statutory presumption of life. Howell, 844 S.W.2d at 46. Here, by contrast, the plaintiffs had knowledge of their decedents’ deaths; they lacked knowledge of the hospital’s wrongful conduct regarding treatment of their decedents. The cases are inapposite, and Howell does not control.
. The plaintiffs cite numerous cases from other jurisdictions in support of a fraudulent concealment exception to section 537.100. This citation of authority is impressive and spans nearly 200 years. However, law from other states or the federal courts is not controlling in applying section 537.100.
. The dissenting opinion argues this opinion ignores binding precedent on the interpretation of the wrongful death statute, citing O'Grady. Yet, notwithstanding the fact that O’Grady stated its holding was limited to the facts presented, 654 S.W.2d at 911, the language on which the dissent relies was made in a very different factual and legal context than here. And though the dissent casts aside the distinction, O’Grady does not control because it did not consider the statute of limitation. O’Grady weighed only the broad purposes behind the wrongful death statute. When a statute of limitation is also in play, however, its unique purposes should also be weighed. O'Grady never had to consider the purposes of the wrongful death statute in light of the purposes of the statute of limitation. Absent such analysis, O’Grady cannot conclusively determine this outcome. Frazee, how*711ever, which the dissent agrees is valid and binding, not only considered the wrongful death statute and section 537.100, but it did so in a similar context as this case — fraudulent concealment. Frazee controls over O’Grady.
. There is also historical precedent for this view:
It was at one time held in regard to these [statutes of limitations], that where by reason of the defendant’s fraud the existence of a cause of action was concealed, it would furnish an equitable exception to the express language of the statute. [B]ut the idea
that implied and equitable exceptions, which the Legislature has not made, are to be engrafted by the courts on a statute of limitations is now generally abandoned.
Theodore Sedgwick, A Treatise on the Rules Which Govern the Interpretation and Construction of Statutory and Constitutional Law, 277 (Pomeroy, ed., 2d ed. 1874, reprint 2012). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284414/ | ORDER
Per Curiam:
Orlando Omar Cruz 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/5284415/ | *745ORIGINAL PROCEEDING IN PROHIBITION
Mark D. Pfeiffer, Presiding Judge
This action arises out of petitions in prohibition filed by Ideker, Inc. (“Ideker”) and the Missouri Department of Natural Resources (“MDNR”) in response tó ah Order dated May 4, 2015, issued by the Honorable Kenneth R. Garrett III, Jackson County Circuit Judge (“Respondent”). Respondent’s Order denied Ideker’s and MDNR’s motions to dismiss the underlying lawsuit styled Concerned Citizens for AIR, Inc., et al, Plaintiffs v. Missouri Department of Natural Resources, et al., Defendants, Case No. 1316-CV25675, pending in the Circuit Court of Jackson County, Missouri (“Underlying Lawsuit”).1 This Court issued its Order dated June 5, 2015, staying any action in the Underlying Lawsuit until further order of this Court.
We now issue our peremptory writ of prohibition and remand this case with instructions.2
Factual and Procedural Background3
On October 11, 2013, Concerned Citizens for AÍR, Inc., a not-for-profit corporation, and the City of Grandview, Missouri (collectively, “Grandview”), filed the Underlying Lawsuit, a Petition for Judicial Review and Declaratory and Injunctive Relief and Motion for Temporary Restraining Order. Grandview’s petition alleged that in 2012 MDNR unlawfully approved an air emissions permit (Permit No.- 1343A), which failed to meet lawful .air quality emission requirements, for Ideker’s operation of a portable hot -mix asphalt plant at 5600 East 150 Highway in Kansas City, Missouri. The petition also alleged that MDNR intended to issue Ideker another permit to authorize a permanent stationary asphalt plant in the same location (Permit No. 1369). The first paragraph of the petition summarized Grandview’s claims and requested “judicial review of a determination by the [MDNR] to approve Permit No. 1343A,” “an order vacating Permit No. 1343A,” and an order enjoining the “imminent issuance of Proposed Permit No. 1369.”
On October 23, 2013, the circuit court granted Grandview’s request for a temporary restraining order, restraining MDNR from issuing the permanent permit for at *746least fifteen days. Two days later, Ideker filed a motion to intervene 'as of right, which motion was denied. This Court considered Ideker’s petition for a writ of mam damus and issued an opinion directing the circuit court to allow Ideker to'intervene in the Underlying Lawsuit. See State ex rel. Ideker, Inc. v. Grate, 437 S.W.3d 279 (Mo.App.W.D.2014), On January 2, 2014, MDNR issued a permanent permit to Ideker to operaté a stationary asphalt plant.
MDNR and Ideker each filed a motion to dismiss the Underlying Lawsuit, asserting that Respondent exceeded his statutory authority by granting judicial review because Grandview did not exhaust their administrative remedies and that MDNR’s issuance to Ideker of the permanent permit rendered Grandview’s claims moot. Respondent issued an Order dated May 4, 2015, denying both motions to dismiss.
MDNR and Ideker each filed a petition for writ of prohibition with this Court. Each asserted that Respondent has no statutory authority to judicially review Grandview’s- claims because Grandview did not exhaust their administrative remedies. Each further asserted that a justiciable controversy no longer exists for resolution because both the remedies sought by Grandview have been rendered moot by the issuance of a permanent permit to Ideker. This Court ordered the writ cases consolidated and stayed any proceedings in the Underlying Lawsuit until further order.
Additional facts relevant to the disposition .of, this-writ proceeding will be set forth as relevant to the analysis of the issues presented'.
Standard of Review
.Article V, section 4.1 of the Missouri Constitution authorizes this Court to issue and determine original remedial writs, A writ of prohibition is discretionary and will be issued only:
(1) to prevent a usurpation of judicial power when the circuit court lacks authority or jurisdiction; (2) to remedy an excess of authority, jurisdiction or abuse of discretion when the lower court lacks the power to act as intended; or (3) when a party may suffer irreparable harm if relief is not granted. Prohibition may be appropriate to prevent un-necéssary, inconvenient, and expensive litigation.
State ex rel. St. Charles Cnty. v. Cunningham, 401 S.W.3d 493, 495 (Mo. banc 2013) (citation omitted) (internal quotation marks omitted).
Analysis
Administrative Review Process
Any person or entity who wishes to construct and operate any regulated air containment source is required to submit a permit application to MDNR in accordance with rules established by the Air Conservation Commission (“ACC”). § 643.073.2.4 Any person or entity aggrieved by an MDNR permit decision may appeal by filing a petition with the Administrative Hearing Commission . (‘.‘AHC”).5 § 643.075.6; 10 CSR 10-1.030(3)(A). The AHC hearing officer’s recommendation and' record are reviewed by .the ACC, and *747the ACC issues a final, written determination, which includes findings of fact and conclusions of law. 10 CSR 10-1.030(4)(B). All final orders or determinations of the ACC are subject to judicial review, pursuant to the. provisions of sections 536.100 to 536.140. § 643.130.6 “No judicial review shall be available hereunder, however, unless and until all administrative remedies are exhausted.” Id. Section 536.100 provides that judicial review is limited to “[a]ny person who has exhausted all administrative remedies provided by law” and who is aggrieved by a final ACC decision.
Exhaustion of Administrative Remedies
“It is well settled that when an administrative remedy is available!!,] such remedy must be exhausted before a court may give injunctive or declaratory relief.” Mo. Health Care Ass’n v. Mo. Dep’t of Soc. Servs., 851 S.W.2d 567, 569 (Mo.App.W.D. 1993). “This principle is founded upon the theory that agencies have special expertise and a factual record can be developed more fully by pursuing the designated channels for relief within the agency.” Premium Standard Farms, Inc. v. Lincoln Twp. of Putnam Cnty., 946 S.W.2d 234, 237 (Mo. banc 1997). “The issue also may be resolved through the procedures set forth by the agency for resolution of complaints, thereby rendering unnecessary review by the courts.” Id.
An exception to the exhaustion doctrine is found in section 536.050.1, which gives the courts of this state the authority to render .declaratory judgments respecting the validity of agency rules or the threatened application thereof, whether or not the plaintiff has first requested the agency to pass upon the question presented. A person bringing a ■ declaratory judgment action attacking the validity of administrative rules under section 536.050.1 is not required to exhaust an administrative remedy if:
(1) The administrative agency has no authority to grant the relief sought or the administrative remedy is otherwise inadequate; or
(2) The only issue presented for adjudication is a constitutional issue or other question of law; or
(3) Requiring the person to exhaust any administrative remedy would result in.undue prejudice because the person may suffer irreparable harm if unable to secure immediate judicial .consideration of the claim. ■
§ 536.050.2(1)(2)(3). “All of the statutory exceptions to the exhaustion requirement deal with actions attacking the validity of ‘rules.’ ” Willamette Indus., Inc. v. Clean Water Comm’n, 34 S.W.3d 197, 201 (Mo.App.W.D.2000).
“If an action involves an agency rule, the exhaustion of administrative remedies does not apply. If it involves an agency decision[,] the exhaustion rule does apply.” Mo. Health Care Ass’n, 851 S.W.2d at 569. “The non-exhaustion rationale of [section] 536.050.1 rests on the distinction between an agency rule and an agency decision.” Id. (internal quotation omitted). A “decision,” by definition, “includes decisions and orders whether negative or affirmative in form” on specific facts. § 536.010(5). On the other hand, a “rule,” by definition, “means each agency statement of general applicability that implements, interprets, or prescribes law or *748policy, or that describes the organization, procedure, or practice requirements of any agency.” § 536.010(6). Stated differently, “[a]n agency rule is a statement of policy or interpretation of law .of future effect which acts on unnamed and unspecified persons or facts. An agency decision engages the agency expertise on specific facts and requires exhaustion of administrative remedies.” Mo. Health Care Ass’n, 851 S.W.2d at 569 (internal quotation omitted). A rule “declares in advance of facts whether that implementation conforms to the statute of delegation or other requirements of law.” Id. (internal quotation omitted). Therefore, the test of whether or not an action involves an agency rule or an agency decision is “whether or not the action seeks a declaration concerning a statement of policy or interpretation of law of future effect which acts on unnamed and unspecified persons or facts, or whether the action involves specific facts and named or specified persons or facts.” Id. at 570. “In .the former situation the action involves an agency rule, in the latter an agency decision.” Id. MDNR’s permitting decision in this case applies state and federal environmental laws regarding air quality standards to a “specific set of facts and so promulgates a decision and not a rule.” Id. (internal quotation omitted).
Although Grandview attempts to camouflage the true purpose of the Underlying Lawsuit by alleging’ that they are only challenging the legal authority of. MDNR to issue an air quality construction permit that they claim misinterprets or ignores applicable federal and state environmental laws,7 the real nature of the suit .emerges in the first paragraph of the petition summarizing Grandview’s claims and requesting “judicial review of a determination by the [MDNR] to approve Permit No. 1343A,” “an. order vacating Permit Nq. 1343A,” and an order enjoining the “imminent issuance of Proposed Permit No. 1369.” Likewise, Grandview’s petition alleges factual disputes as to MDNR’s analysis of the Ideker asphalt plant’s “de min-imis emission levels,” “calculations related to predicted emissions,” “calculations related to ambient impact limits,” and “maximum design capacity emissions,” to name a few. These are fact-specific findings that relate specifically to the Ideker permits and provide a factually disputed basis for challenging MDNR’s application of federal and state environmental standards to the permitting process in this instance. In short, Grandview is not challenging the legal authority of MDNR to issue asphalt plant permits — it is challenging MDNR’s decision to issue a permit to Ideker under the specific facts, of this specific permit application as governed by relevant state and federal environmental regulations.
Likewise, the action brought by Grandview is not one for declaratory judgment respecting the validity of a rule, which may be properly brought in the circuit court pursuant to section 536.050.1. Rather, the- action by Grandview is a challenge to MDNR’s decision to issue .permits for the operation of Ideker’s asphalt plant. *749Statutory authority to hear an appeal of a permit decision by the MDNR is vested in the AHC under section 621.250. Because Grandview challenges an agency decision and not an agency rule, section 536.050.1 does not authorize them to bring a declaratory judgment action in the circuit court.8 Therefore, the circuit court had no statutory authority to entertain the Underlying Lawsuit.9
Conclusion
The stay entered by this Court’s Order of June 5, 2015, is lifted. We enter our peremptory writ of prohibition. Respondent is ordered to vacate the May 4, 2015 Order. Respondent shall enter an order dismissing Grandview’s petition in Concerned Citizens for AIR, Inc., et al., Plaintiffs v. Missouri Department of Natural Resources, et al., Defendants, Case No. 1316-CV25675.
Victor C. Howard and James Edward Welsh, Judges, concur.
. Rule 84.24(j) permits this Court to exercise its judgment in dispensing with such portions of the procedure for the consideration and/or issuance of original writs as is necessary in the interest of justice. We have elected to dispense with the issuance of a preliminary writ of prohibition and to dispense with the briefing schedule that would ordinarily thereafter ensue, as the parties' suggestions in support and suggestions in opposition filed in connection with the motions to dismiss in the Underlying Lawsuit, and the suggestions i,n support and suggestions in opposition filed in connection with Relators’ petitions for writ of prohibition have addressed the legal issues considered in this opinion, rendering additional briefing unnecessary, and rendering the delay that would be associated with the issuance of a preliminary writ contrary to the interest of justice. We are expressly authorized by Rule 84.24(1) to issue this peremptory writ without - the issuance, of a prelimiriary writ.
.In ruling on the motion to dismiss, the trial court was obligated to assume that all of plaintiff’s averments were true. Nazeri v. Mo. Valley Coll., 860 S.W.2d 303, 306 (Mo. banc 1993).' Therefore, the facts relevant to this Court’s determination are found in the language of the petition in the Underlying Law- ■ suit, see State ex rel. Henley v. Bickel, 285 S.W.3d 327, 330-31 (Mo. banc 2009), and in the factual background in State ex rel. Ideker, Inc. v. Grate, 437 S.W.3d 279 (Mo.App.W.D. 2014), without further attribution.
. All statutory references are to the Revised Statutes of Missouri 2000, as supplemented.
. . Pursuant to section 621.250.1, all authority to hear contested case administrative appeals granted to the Air Conservation Commission (“ACC") has been transferred to the Administrative Hearing Commission (“AHC”), which renders a recommended decision for the ACC to consider. “The authority to render final decisions after hearing on appeals heard by the [AHC] ” remains with the ACC. Id.
. See also Rule 100.01 ("The provisions' of sections 536.100 through 536.150,- RSMo, shall govern procedure in circuit courts for judicial review of actions of administrative agencies unless the statute governing a particular agency contains different provisions for such review.”).
. Grandview cites to Premium Standard Farms, Inc. v. Lincoln Township of Putnam County, 946 S.W.2d 234, 237 (Mo. banc 1997), and City of Bridgeton v. City of St. Louis, 18 S.W.3d 107, 112 (Mo.App.E.D. 2000), for the proposition that questions of legal authority are strictly legal issues to which the doctrine of exhaustion does not apply. However, as we point out in our ruling, Grandview's petition belies their “exclusively legal issue” argument — and instead demonstrates numerous factual disputes that weigh upon the permitting decision challenged in the Underlying Lawsuit. Accordingly, the precedent they cite supports the position of Ideker and MDNR, not Grand-view.
. Even if we were to determine that Grand-view’s petition includes a challenge to the validity of a rule, exhaustion of administrative remedies is still required because the petition also seeks relief as to a specific permitting decision. See State ex rel. Goldberg v. Darnold, 604 S.W.2d 826, 831-32 (Mo.App.W.D. 1980).
. Given our decision regarding failure to exhaust administrative remedies, we need not address the mootness issue. However, we note that "[a] cause of action is rendered moot when an event occurs making it impossible for the court to grant relief.” State ex rel. Mo. Parks Ass’n v. Mo. Dep’t of Natural Res., 316 S.W.3d 375, 384 (Mo.App.W.D. 2010) (internal quotation omitted). Grand-view’s requested relief — to enjoin the issuance of a permanent permit to Ideker and to vacate the temporary permit issued to Ideker — appears to have become moot when MDNR issued the permanent permit on January 2, 2014. That said, given our ruling today, we need not and do not decide the mootness issue and any exceptions thereto. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284416/ | ORDER
Per Curiam:
Mr, Clyde Ham appeals the decision of the Labor and Industrial Relations Commission denying a request for unemployment benefits.
For reasons- stated in the memorandum provided to the parties, we affirm. Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284417/ | ORDER
PER CURIAM.
Naren Chaganti (Appellant) appeals from the judgment of the trial court granting a new trial to Condos of Wydown on the basis of improper jury instruction following a jury verdict on Appellant’s civil action. We have reviewed the briefs of the parties and the record on appeal, and we find Appellant’s claims of error to be without merit. An' extended opinion would have no precedential value. We have, however, provided a memorandum setting forth the reasons for our decision to the parties for their use only. We affirm the judgment pursuant to Missouri Rule of Civil Procedure 84.16(b) (2015). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284418/ | ORDER
PER CURIAM
Ronell-Johnson (Defendant) appeals the St. Louis Circuit Court’s judgment convicting him of failure to drive within a single lape, § 304.015, RSMo Supp. 2010, and failure to yield to an emergency vehicle, § 304.022, RSMo Supp. 2012. Defendant raises two claims, of insufficient evidence, claiming. that the State failed to adduce evidence that (1) he made an unsafe lane change in violation of § 304.015 and (2) that the officer’s car was equipped with the required lights or sirens as required by§ 304.022. Weaffirm.
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/5284419/ | ORDER
PER CURIAM
Duron Cockrell (Movant) appeals the motion court’s denial of his Rule 29.15 motion for post-conviction relief without an evidentiary hearing. Movant claims trial counsel was ineffective for adducing and failing to object to evidence about Mov-ant’s prior bad acts. We affirm.
*787We have reviewed the briefs of the parties and the record on appeal and find that the motion court did not clearly err in denying post-conviction relief. Ah éxtend-ed 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. Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284420/ | KURT S. ODENWALD, Judge
Introduction
Appellant Steven Tucker (“Tucker”) appeals from the trial court’s grant of summary judgment in favor of Respondent Michael Vincent (“Vincent”) on Tucker’s petition for accounting malpractice and negligent misrepresentation against Vincent. On appeal, Tucker contends that if the trial court’s grant of summary judgment was based upon a finding that Tucker’s claims are subject to the mandatory arbitration provision in the Stock Purchase Agreement (“SPA”) entered into between Tucker and Electromedico, LLC, then the trial court erred because Tucker’s tort claims against Vincent are not subject to the SPA. Tucker further argues that if the trial court granted summary judgment ber cause it found that Tucker’s claims barred by res judicata, then the trial court erred because res judicata does not apply to this action. Lastly, Tucker maintains that if it is necessary to determine the basis of the trial court’s summary judgment ruling, we must find that the trial court limited its ruling to a finding that Tucker must pursue his claims in arbitration.
Because no valid agreement to arbitrate existed between Tucker and Vincent, and because the limited circumstances under which a non-party to an arbitration agreement may compel arbitration are not present here, Tucker’s claims are not subject to mandatory arbitration. Because there is no identity of parties between the Florida arbitration proceeding and Tucker’s present lawsuit, and no identity of the causes of action filed in Pinellas County and Tucker’s present lawsuit, Tucker’s claims for accounting malpractice and negligent misrepresentation are not barred by the principles of res judicata. Accordingly, the trial court erred in granting summary judgment. We reverse the judgment of the trial court and' remand for proceedings consistent with this opinion.
Factual and Procedural History
I. The 2007 SPA
In 2001, David Tucker (“David”),1 Tucker’s brother, started a business called *790Electromedical Solutions, Inc. (“ESI”). Tucker later purchased 49 percent of ESI’s shares with the intention of serving as a passive investor in the company. Throughout this time, Vincent served as David’s personal accountant" and the 'accountant for ESI. Vincent also was Tucker’s personal accountant during this time.
In 2007, David decided to sell ESI. David and Tucker each owned 49 percent of the shares of ESI, while a third party, Dorothy Quinn' (“Quinn”) owned the remaining two percent. Vincent emerged as a prospective buyer, and the SPA was structured and consummated to that' effect. Under the terms of the SPA, dated June 26, 2007, David, Tucker, and Quinn sold their respective shares of ESI to Eleetromedico, LLC (“Eleetromedico”), an entity formed by Vincent. The total purchase price paid by Eleetromedico for all of the shares of ESI was $1,250,000. David, Tucker, and Quinn were listed as the Sellers;. each signed the SPA in their individual capacities. Eleetromedico was listed as the Buyer; Vincent signed the SPA on behalf of Eleetromedico, as its Manager. The SPA contained an arbitration clause which read, in relevant part:
Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association- in accordance with its Commercial Rules of Arbitration and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
II. Florida Proceedings
In 2009, Eleetromedico filed suit against both David and Tucker in Florida alleging breach of representations and warranties in the SPA regarding the value of ESI’s assets transferred as part of the sale. In accordance with the arbitration clause in the SPA, the claims .were submitted to binding arbitration. In 2011, Electromedi-co filed a statement of .claim with the American Arbitration Association (“AAA”). The statement of claim alleged that, following execution of the SPA, Vincent discovered that David and Tucker had not fully disclosed certain information about ESI and had made certain misrepresentations about the value of ESI. Specifically, Eleetromedico alleged that the amount of accounts receivable for ESI was much lower than the amount represented by David and Tucker. Eleetromedico also alleged that ESI did not own certain assets itemized on its financial statements, and that there were issues with ESI’s customer accounts.
David and Tucker filed an answer to the claim of arbitration. In their answer, they asserted numerous affirmative defenses, including that Eleetromedico failed to act with due negligence in running ESI; that Eleetromedico had equal or greater access to the means of verifying any representations made by David and Tucker; and that the complained-of “representations” were mere opinion or “puffing.” Finally, David and Tucker asserted that they-were entitled to a setoff against any recovery by Eleetromedico due to the undervaluation of ESI when it was sold to Eleetromedico. David and Tucker alleged that Vincent undervalued ESI when he represented to them that $1,250,000 was the fair value of ESI, when in fact ESI had a significantly greater value.
While the arbitration proceeding was pending, David and Tucker filed a lawsuit against Vincent and his accounting firm in the Circuit Court of Pinellas County, Florida. , In their lawsuit David and Tucker asserted claims for professional negligence *791and failure to comply with a request for insurance information, the latter claim a violation of Florida statute.2 David and Tucker alleged that Vincent offered to buy all of the outstanding shares of ESI for $1,250,000 and told Tucker that $1,250,000 represented the fair value of ESI. David and Tucker alleged that they relied on Vincent’s knowledge of and familiarity with ESI, accepted and relied upon his valuation of the company, and, entered into the subsequent SPA with Electromedico with $1,250,000 as the purchase price. David and Tucker further alleged that they became aware in 2012 that ESI had been undervalued by Vincent and was worth substantially more than the purchase price.
In support of their professional negligence claims, David and Tucker averred that both Vincent and his accounting firm had a duty to exercise reasonable professional care, including the specific duties of objectivity and integrity; a duty to refrain from knowingly misrepresenting facts to clients; and a duty to obtain sufficient relevant data to afford a reasonable basis for any conclusions, advice, or recommendations made to clients. David and Tuck: er alleged that conclusions, advice, or recommendations made to clients. David and Tucker alleged that Vincent and his firm breached these duties by acting negligently in the following ways: (1) by acquiring a direct financial interest in ESI (through Electromedico) during the time of Vincent’s professional engagement as ESI’s accountant; (2) by using his position as their accountant to influence David and Tucker for his own personal gain by suggesting that the fair value of ESI was only $1,250,000; (3) by failing to recommend retaining another CPA or expert to provide advice in evaluating Electromedico’s purchase offer of $1,250,000; (4) by failing to use'reasoriable care in valuing ESI; (5) by failing to obtain sufficient data to make a recommendation on the fair value of ESI; (6) by knowingly misrepresenting the value of ESI to David and - Tucker prior to the sale of ESI to Electromedico; (7) by representing to David and Tucker that $1,250,000 was the fair value of ESI when Vincent knew they would accept that valuation as true, and when the true value was, in fact, much higher;':and (8) by making fraudulent representations in. violation of various Florida statutes. :
On May 18, 2012, while the arbitration proceeding was pending but subsequent to David and Tucker filing suit in Pinellas County against Vincent, David and Tucker filed a motion in the pending arbitration for leave to amend to. add a third-party claim. The motion sought leave to amend the pleadings in the arbitration proceeding to assert aigainst Vincent, who was not a party' to the arbitration proceeding, -the same claims David and Tucker brought against Vincent in the Pjnellas County lawsuit. The-motion noted that thefinal arbitration hearing was set for May 21, 2012. The arbitration hearing proceeded as scheduled on May 21, 2012.. The arbitration panel never granted David and Tucker leave to amend their pleadings.
Following the final arbitration hearing, the arbitration panel entered an award of $1,070,743.09 in favor of Electromedico against David and Tucker, jointly and severally. A judgment confirming the arbitration award was subsequently entered. In October of 2013,. after the arbitration panel’s final award, .David and Tucker’s Pinellas County lawsuit was dismissed with prejudice.
III. Tucker’s 2013 Missouri action against Vincent
In December of 2013, Tucker fíléd suit against Vincent and Vincent’s accounting *792firm (collectively referred to throughout this opinion as “Vincent”) in the Circuit Court of St. Louis County. Tucker’s petition asserted claims against Vincent for accounting malpractice (Count I) and negligent misrepresentation (Count II). Tucker’s petition alleged that in 2007, when David decided to sell ESI, Vincent expressed an interest in buying the company. The petition further alleged that, while Vincent’s purchase of ESI was being considered, but before it was consummated, David, Tucker, and Vincent held a conference call. During that call, Tucker stated his desire to have the transaction structured so that Tucker would first transfer his interest in ESI to David, and that the ESI purchase and sale agreement would then proceed between Vincent and David. Tucker alleged in his petition that he asked Vincent, as his accountant, whether the transaction could be structured in that manner, and that Vincent advised Tucker it could not. Tucker’s- petition alleged tha£ the transaction could have been structured the way Tucker desired.
In support of his claim of accounting malpractice, Tucker 'alleged that Vincent, as Tucker’s accountant, breached his duty to render accounting services in a proper, skillful, and careful manner by (1) advising Tucker that the sale of ESI could not be structured’ in the way Tucker desired; and (2) omitting to tell Tucker, and concealing from him, that Vincent wanted Tucker to participate in the transaction because it would be beneficial to Vincent. Similarly, in support of his claim of negligent misrepresentation, Tucker alleged that Vincent made negligent misrepresentations and omissions to Tucker in connection with the purchase and sale of ESI; specifically, that Vincent (1) misrepresented to Tucker that the sale of ESI could not be structured in the way Tucker desired; and (2) omitting to tell Tucker, and concealing from him, that Vincent wanted Tucker to participate in the transaction because it would be beneficial to Vincent.
Vincent filed a motion for summary judgment, raising two arguments in support of his motion. First, Vincent asserted that all of Tucker’s claims were covered by the SPA and subject to the arbitration clause contained therein. Therefore Tucker’s claims should be compelled to arbitration as a matter of law. In support of this argument, Vincent noted that Tucker’s claims “directly arise from the sale of ESI to Electromedico,” and reasoned that the arbitration clause in the SPA “should be interpreted so as to encompass any kind or type of claim relating to the purchase or sale of ESI.” Vincent further argued that because Tucker’s claims take issue with alleged communications and advice regarding the structure of the ESI sale, the claims “clearly arise out of and relate to” the SPA. Vincent maintained that the arbitration clause in the SPA is “worded broadly,” compelling arbitration of “any controversy or claim arising out of or relating to” the SPA.
In the alternative, Vincent requested summaiy judgment in his favor based on the doctrine of res judicata. Specifically, Vincent argued that Electromedico’s 2009 lawsuit in Florida and the subsequent Florida arbitration proceedings barred Tucker from relitigating his claims in the 2018 Missouri lawsuit. Vincent posits that Tucker’s claims asserted in the Missouri lawsuit’ arose out of the same transaction and contract as the claims adjudicated in the Florida arbitration — the negotiation and execution of the SPA. Vincent further argued that Tucker’s claims in the 2013 suit were “very similar to the claims and issues previously decided in the Florida arbitration” because the claims pertained to alleged advice and consultation related to the SPA. For these reasons, Vincent *793concluded that the claims in Tucker’s 2013 lawsuit “clearly arise out of the same transactions and occurrences as the claims and counterclaims in the Florida arbitration.”
On October 31, 2014, the trial court entered a Judgment and Order granting Vincent’s motion for summary judgment. The trial court did not specify the grounds for its judgment. Instead, the judgment simply stated that the trial court, “being advised in the premises, grants and- sustains defendant’s motion for summary judgment,” and that as a result, “all claims in plaintiff Steven Tucker’s petition are dismissed with prejudice.” This appeal follows.
Points on Appeal
Tucker presents three points on appeal. First, Tucker contends that, if the trial court’s grant of summary judgment was based on the premise that Tucker’s claims are subject to mandatory arbitration under the SPA, the trial court erred because Tucker’s -claims fall outside the scope of the arbitration clause in the SPA. Specifically, Tucker reasons that Vincent is not a party to the SPA, and that Tucker’s claims do not arise out of or relate to the SPA. Second, Tucker avers that if the trial court’s grant of summary judgment was based on the premise that Tucker’s claims are barred by res judicata, the trial court erred because Tucker’s claims here are substantially different from those brought against Vincent in Florida by Tucker and David, and because the claims raised by Tucker in this lawsuit have not.been litigated. Finally, Tucker contends that, should it be necessary to determine the basis of the trial court’s rule granting summary judgment, it must be concluded the trial court ruled only that Tucker must pursue his claims in arbitration.
Standard of Review
In order to obtain summary judgment, the moving party must establish that “there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Rule 74.04.3 On appeal, the propriety of a trial court’s grant of summary judgment is a matter of law. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). As such, this Court reviews the grant of summary judgment de novo, giving no deference to the trial court’s findings or determinations. Stanbrough v. Vitek Solutions, Inc., 445 S.W.3d 90, 96 (Mo.App.E.D. 2014). We review the record in the light most favorable to the party against whom judgment was entered and give the non-movant the benefit of all reasonable inferences from the record. Id. We will affirm where the pleadings, depositions, affidavits, answers to interrogatories, exhibits, and admissions establish that no, genuine issue of material fact exists and the moving party .is entitled, to judgment as .a matter of law. Id.
Where the trial court does not specify the grounds upon which it granted a motion for summary judgment, the trial court is presumed to have based its decision on any or all of the grounds advanced by the movant in its motion for summary judgment. McCrary v. Truman Med. Ctr., Inc., 943 S.W.2d 695, 697 (Mo.App.W.D. 1997). The primary concern of this Court is the correctness of the result reached. Id. Accordingly, if we can sustain the trial court’s judgment under any theory, we must do so. Irwin v. Wal-Mart Stores, Inc., 813 S.W.2d 99, 101 (Mo.App,W.D. 1991).
*794
Discussion
“Summary judgment is designed to permit the trial court to enter judgment, without .delay, where the moving party has demonstrated, on the basis of facts as to which there is no genuine dispute, a right to judgment as a matter of law.” ITT Commercial Fin. Corp., 854 S.W.2d at 376. Summary judgment, however, “is an extreme and drastic remedy” which we exercise great caution in affirming. Fandel v. Empire Dist. Elec. Co., 393 S.W.3d 100, 104 (Mo.App.S.D. 2013).
Vincent’s motion set forth two arguments in support of summary judgment— first, that Tucker was compelled to submit his claims to arbitration due to the arbitration clause in the SPA; and second, that Tucker’s claims were barred by the doctrine of res judicata. Because the trial court did not specify its grounds for granting Vincent’s summary judgment, we will affirm the trial court’s judgment if any theory advanced by Vincent supports summary judgment. Irwin, 813 S.W.2d at 101. Accordingly, we consider whether éither of the grounds advanced by Vincent entitled him to judgment as a matter of law.
I. Point One — Arbitration
The arbitration clause in the SPÁ states that it is subject to the Federal Arbitration Act (“FAA”), which governs the applicability and enforceability of arbitration agreements in all contracts involving interstate commerce. Eaton v. CMH Homes, Inc., 461 S.W.3d 426, 431 (Mo. banc 2015). The FAA expresses a federal policy “favoring resolution of disputes by enforcement of arbitration agreements,” Bellemere v. Cable-Dahmer Chevrolet, Inc., 423 S.W.3d 267, 273 (Mo.App.W.D. 2013). However, “this policy is not enough, standing alone, to extend an arbitration agreement beyond its intended scope.” Id. As the United States Supreme Court has recognized, “arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which 'he has not agreed so to submit.” AT & T Technologies, Inc. v. Commc’ns Workers of Am., 475 U.S. 643, 648, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986); Dunn Indus. Grp., Inc. v. City of Sugar Creek, 112 S.W.3d 421, 435 (Mo. banc 2003). This bedrock principle “recognizes the fact that • arbitrators derive their authority to resolve disputes only because the parties have agreed in advance to submit such grievances to arbitration.” Id. at 648-49, 106 S.Ct.-1415; see also State ex rel. Hewitt v. Kerr, 461 S.W.3d 798, 807 (Mo. banc 2015).
As a result^ it is axiomatic that “a party cannot be compelled to arbitration unless the party has agreed to do so.” Bellemere, 423 S.W.3d at 273; AT & T Technologies, Inc., 475 U.S. at 648, 106 S.Ct. 1415; see also Jones v. Paradies, 380 S.W.3d 13, 17 (Mo.App.E.D. 2012) (“It is a firmly-established principle that parties can be compelled to arbitrate against their will only pursuant to an agreement whereby they have agreed to arbitrate claims.”). Precisely because arbitration is, at its core, a matter of contract, the enforceability of an arbitration agreement “never comes into play if a contract itself was never formed.” Bellemere, 423 S.W.3d at 273. Stated another way, “it logically follows that one cannot enforce an arbitration agreement if he is not a party to that agreement.” Parodies, 380 S.W.3d at 17. The existence of a valid contract, therefore, is a prerequisite to the existence of an enforceable arbitration .agreement. Thus, the first step of our analysis is to determine whether a valid contractual agreement to arbitrate was ever formed between Tucker and Vincent. AT & T Technologies, Inc., 475 U.S. at 649, 106 S.Ct. 1415 (“[T]he question of whether the *795parties agreed to arbitrate is to be decided by the court.”).
In conducting this analysis, we are required to “place arbitration agreements on an equal footing with other contracts,” AT & T Mobility LLC v. Concepcion, 563 U.S. 333,131 S.Ct. 1740,1745,179 L.Ed.2d 742 (2011), and to determine their validity by “applying state contract law principles.” Hewitt, 461 S.W.3d at 807. Missouri contract law applies to determine whether the parties have entered a valid agreement to arbitrate, and we employ “the usual rules of state contract law and canons of contract interpretation” in making that determination. Bellemere, 423 S.W.3d at 274.
In the lawsuit before us, Tucker has sued Vincent for malpractice and negligent misrepresentation in his individual capacity. Tucker asserts no claims against Elec-tromedico. We note that while Tucker was a signatory to the SPA, which contains the arbitration clause in question, Vincent was not. The record shows that Vincent signed the SPA only in his capacity as manager of Electromedico. Although Vincent refers to himself as the “sole manager” of Electromedico, that fact alone, even if true, does not negate the legal distinction between Vincent’s liability as the manager of Electromedico and Vincent’s liability in his individual capacity.
The only arbitration agreement before us is contained within the SPA, a contract to which Vincent, in his individual capacity, was not a party. Only Tucker and Elec-tromedico are parties and signatories to the SPA. Vincent, in executing' the SPA on behalf of Electromedico, did not agree to arbitrate any personal claims or disputes between he and Tucker, Likewise, we find no indication in the SPA that Tucker intended to require that any future claims he may have against Vincent, as an individual, be submitted to mandatory arbitration. Consistent with this conclusion, Vincent signed the SPA solely in his capacity as manager of Electromedico, and not in a personal capacity. As note, Tucker has asserted claims against Vincent only in his personal capacity.
It is well-settled that a person clearly signing-a contract in a corporate capacity on behalf of a disclosed principal does not become a party, in his individual capacity, to the agreement. Headrick Outdoor, Inc. v. Middendorf, 907 S.W.2d 297, 300 (Mo.AppW.D. 1995). The difference betwéen Vincent acting in his individual capacity and Vincent acting in his representative capacity as an officer of Electromedico is not a matter of semantics; the difference carries with it an important legal distinction.. There is a meaningful legal difference between bringing suit against someone in his individual versus corporate capacity.4 Vincent’s signature, made in his corporate capacity, does not subject him or entitle him .to the rights and obligations of the SPA because he is not.a party to the agreement. Paradies, 380 S.W.3d at. 17.
The record before us is void of any evidence that Tucker and Vincent entered into any agreement to arbitrate their future disputes. Tucker and Electromedico undoubtedly did so, but the- lawsuit before us presents only claims brought by Tucker *796against Vincent personally. Vincent’s argument that his status as a non-party to the SPA has “no impact on his ability to compel arbitration” ignores the law that has been clearly and forcefully explained by our Supreme Court. See, e.g., Hewitt, 461 S.W.3d at 807 (stating the “fundamental principle that arbitration is a matter of contract” and explaining that “[i]f there is no valid arbitration clause ... then there is no agreement to arbitrate”); Dunn Indus. Grp., Inc., 112 S.W.3d at 435 (“Arbitration is a matter of contract, and a party cannot be required to arbitrate a dispute that it has not agreed to arbitrate”); State ex rel. Union Pac. R. Co. v. David, 331 S.W.3d 666, 667 (Mo. banc 2011) (“Arbitration is fundamentally a matter of consent”). Arbitration is first and foremost a matter of contract, and in the absence, of any valid contract between Tucker and Vincent, there is simply no agreement to arbitrate between these two parties.
Vincent correctly notes that there are limited circumstances under which some courts have allowed a non-signatory to an arbitration agreement to enforce the arbitration agreement against a signatory. As explained by the Eighth Circuit, a non-signatory can enforce an arbitration clause against a signatory (1) . “when the relationship between the signatory and nonsignatory defendants is sufficiently close that only by permitting the nonsignatory to invoke arbitration may evisceration of the underlying arbitration agreement between the signatories be avoided;” or (2) “when the signatory to a written agreement containing an arbitration clause must rely on the terms of the written agreement in asserting its claims against the non-signatory.” CD Partners, LLC v. Grizzle, 424 F.3d 795, 798 (8th Cir. 2005).5
Even if we were to follow the guidelines set forth by the Eighth Circuit in CD Partners, we find that neither of the circumstances presented in CD Partners is present in the case before us. The record does not compel a conclusion that the relationship between Electromedico and Vincent is so close with respect to the SPA that the arbitration agreement in the SPA will be “eviscerated” if Vincent is not allowed to compel Tucker to arbitration in this case. Moreover, Tucker does not rely on the terms of the SPA in asserting his individual claims against Vincent in this action.
Our holding is guided in part by the nature of the SPA. The SPA, unlike the employment agreements at issue in CD Partners, is a purchase agreement. In CD Partners, a franchisee brought a tort suit against three individuals who were principals of a franchisor, CDWI. The franchisee alleged negligence, negligent misrepresentation, and fraudulent misrepresentation arising out of franchise agreements between CDWI and CD Partners. The three principals of the franchisor were not signatories to the franchise agreements in their individual capacities, but sought to compel arbitration of the tort lawsuit based on the arbitration clauses contained in .the franchise agreements entered into between the franchisee and franchisor. The trial court denied the motion to compel arbitration. The Eighth Circuit re*797versed, allowing the non-signatory principals to enforce the arbitration agreement and compel the lawsuit to arbitration. The Court first held that a sufficiently close relationship existed between the franchisor, CDWI, and the non-signatory principals because “the tort allegations against the three [principals] all arise out of their conduct while acting as officers of CDWI.” Id. at 799. For this reason, the Court concluded that “[e]visceration of the underlying arbitration agreement will be avoided only by allowing the three principals to invoke arbitration.” Id. The Court further held that the claims against the three non-signatory principals relied upon, referred to, and presumed the existence of the agreement between the two signatories, CDWI and CD Partners. Importantly, the Court explained that its holding was affected by the type of agreement at issue, drawing a distinction between employment agreements and purchase agreements. The Court stated that unlike a purchase agreement, which is a “one-shot transaction where the only act the non-signatory performed for the corporate signatory was that of signing the purchase agreement,” the employment agreement at issue in CD Partners “involve[d] an ongoing relationship where signatory CDWI’s promises could only be fulfilled by the future conduct of its corporate officers, employees, and agents.” Id. at 799-800. For this reason, because the “core” of the dispute involved the conduct of the non-signatories in fulfilling the signatory’s promises, the Court held that enforcement of the arbitration agreement was appropriate.
Not only is CD Partners readily distinguishable from the case at hand, but we are further guided by the distinction drawn by the Eighth Circuit between employment agreements and purchase agreements. This distinction follows the First Circuit’s reasoning in McCarthy v. Azure, 22 F.3d 351 (1st Cir.1994). In McCarthy, the Court distinguished between service contracts containing arbitration clauses and purchase agreements, -the latter of which was at issue in the case, in holding that the non-signatory could not enforce an arbitration agreement against the signatory. The Court explained that the purchase agreement in question was “primarily concerned with a transfer of assets,” which the Court deemed an important distinction. McCarthy, 22 F.3d at 357. Similar to the reasoning found in CD Partners, the Court explained that a service contract “contemplates an ongoing relationship in which the firm’s promises only can be fulfilled by future (unspecified) acts of its employees or agents stretching well into an uncertain future.” Id. Conversely, a purchase agreement consists of only “a one-shot transaction in which the purchaser’s obligations are specified and are, essentially, performed in full at the closing, or soon thereafter.” Id.
Here, the SPA was a straightforward purchase agreement concerned solely with the onetime transfer of shares. Tucker, David, and Quinn were obligated to transfer their shares of ESI to Electromedico, and Electromedico was obligated to pay the agreed-upon purchase price. The SPA did not provide for any ongoing or additional duties on the part of Electromedico after the sale. Vincent, as Manager of Electromedico, had no future duties or responsibilities with respect to fulfilling the terms of the SPA. Instead, similar to the purchase agreement in McCarthy, the SPA was a “one-shot transaction,” the terms of which were fulfilled as soon as the transfer of the ESI shares and payment of the purchase price was complete. Further, and more importantly, Tucker’s claims against Vincent do not arise out of or relate to his conduct while acting as an officer or principal of Electromedico (as was the case with the claims against the *798principals in CD Partners). Instead, the allegations against Vincent arise solely out of his conduct as Tucker’s personal accountant. We do not find a sufficiently close relationship between either Vincent and Electromedico with respect to the SPA, or thé claims brought by Tucker in this case, that allow Vincent to invoke arbitration under the SPA in the instant matter.- Denying Vincent the right to compel Tucker to arbitration on the claims raised in Tucker’s petition has no impact on the validity or enforceability of the arbitration agreement between Tucker and Electro-medico.
We further note that the claims alleged by Tucker in his petition'are not based upon and do not rely upon the terms of the SPA. See Riley v. Lucas Lofts Investors, LLC, 412 S.W.3d 285, 291-92 (Mo.App. E.D. 2013) (“a party’s tort claim is subject to arbitration only if resolution of the claim requires reference to or construction of the parties’ contract”). Tucker’s claims against Vincent do not rely on the terms of the written agreement, but are premised on Vincent’s alleged failure to comport with his various duties as an accountant in rendering advice prior to the existence and consummation of the SPA. Although Tucker’s petition references the SPA, his claims do not rely on the terms of the SPA. In fact, the specific terms of the SPA are wholly irrelevant to Tucker’s malpractice and misrepresentation claims against Vincent. The “core” of Tucker’s allegation against Vincent is Vincent’s- conduct as an accountant, which occurred outside any duties or obligations required of Electro-medico under the SPA.
To be sure, ah agreement to arbitrate exists between Tucker and Electromedico. But Vincent is not a party to that agreement. While courts recognize some situations in which a non-signatory to'an arbitration agreement may invoke the agreement and enforce its- terms against a signatory, those circumstances are limited and are not present here. As a non-party to the SPA, Vincent may not claim the benefits of the SPA and seek to enforce its terms against Tucker. The facts before us clearly demonstrate that no agreement to arbitrate disputes has been entered into between Tucker and Vincent. Without such an agreement, arbitration legally may not be compelled. Accordingly, insofar as the trial court’s grant of summary judgment was based on the premise that Tucker’s claims are subject to mandatory arbitration under the SPA, the trial court erred in so holding.
II. Point Two — Res Judicata
Tucker argues in Point Two that the trial court erred to the extent its grant of summary judgment rested on the premise that Tucker’s claims are barred by res judicata. We agree.
The doctrine of res judicata “operates as a bar to the reassertion of a cause of action that has been previously adjudicated in a proceeding between the same parties or those in privity with them.” Lauber-Clayton, LLC v. Novus Properties Co., 407 S.W.3d 612, 618 (Mo.App.E.D. 2013). Res judicata is based on the principle that parties “should not be allowed to litigate a claim and then, after an adverse judgment, seek to relitigate the identical claim in a second proceeding.” Andes v. Paden, Welch, Martin & Albano, P.C., 897 S.W.2d 19, 21 (Mo.App.W.D. 1995). For res judicata to adhere, “four identities” must occur: (1) identity of the things sued for; (2) identity of the cause of action; (3) identity of the persons or parties to the action; and (4) identity of the quality or status of the person for or against whom the claim is made. Lauber-Clayton, LLC, 407 S.W.3d at 618. When those four identities concur, res judicata *799operates to bar “any claim that was previously litigated between the same parties or those in privity with them.” Id. Additionally, if res judicata applies, the doctrine precludes a litigant from bringing “claims that should have been brought in the first suit.” Id. However, res judicata does not operate to preclude any later litigation, including those claims that could have been brought, unless the four identities first occur. Id.
Vincent argues that Tucker’s claims in his Missouri lawsuit are sufficiently similar to the claims decided,in the prior Florida proceedings that the present claims should be barred by res judicata. Vincent alternatively argues that even if the claims are not the same, res judicata nevertheless bars litigation of Tucker’s current claims because those claims should have been raised in the Florida proceedings. We are not persuaded.
We note two prior proceedings that may potentially bar Tucker’s current claims, on the basis of res judicata: the Florida arbitration proceeding, which addressed claims between Electromedico and David and Tucker; and the.Pinellas County lawsuit, in which David and Tucker brought claims against Vincent.6 We conclude that, neither prior proceeding bars the claims raised by Tucker in his current lawsuit.
First, the Florida arbitration proceeding cannot act as a bar to Tucker’s current lawsuit because there lacks the required' identity of parties between the actions. “A party is identical, for purposes of res judicata, when it is the same party that .litigated the prior suit or when the new party was in privity with the party that litigated the prior suit.” Id. at 619. The Florida arbitration proceeding involved claims brought by Electromedico against David and Tueker. Vincent, in his individual capacity, was not a party to the Florida arbitration proceeding, David and Tucker sought leave to amend their pleading in the arbitration proceeding to assert claims against Vincent individually, but leave was never • granted. Further, although David and Tucker raised certain affirmative defenses referencing Vincent, Vincent was never added as a party to the arbitration proceeding. Because Tucker’s present lawsuit asserts claims solely against Vincent individually, there is no identity of the parties present between the prior Florida arbitration proceeding and Tucker’s Missouri lawsuit.
Second, the Pinellas County lawsuit cannot act as a bar to Tucker’s Missouri lawsuit because it lacks the identity of the cause of action. In determining whether the identity of the cause of action exists, courts look to “whether the, claims arose out of the same act, contract or transaction.” Bendis v. Alexander & Alexander, Inc., 916 S.W.2d 213, 217 (Mo.App. W.D, 1995). In doing so, the claims are to be construed to include “all of the facts and circumstances which constitute the foundation of a claim.” Id. ■ The concept of “ ‘[c]ause of action’ does not refer to the form of action in which the claim is asserted, but to -the cause for action, i.e., the underlying facts combined with the law giving the party a right to a remedy of one form or another based thereon,” Barkley v. Carter Cnty. State Bank, 791 S.W.2d 906, 912 (Mo.App.S.D. 1990). The Pinellas County lawsuit was filed by David and Tucker against Vincent and his accounting *800firm and asserted claims for professional negligence arising out of Vincent’s alleged undervaluation of ESI. The factual basis for the claims in the Pinellas County lawsuit was that Vincent misrepresented to David and Tucker that $1,250,000 was the fair value of ESI, and David and Tucker relied on that advice and entered into the SPA with Electromedico with $1,250,000 as the purchase price. Thus, the professional negligence claims raised in the Pinellas County lawsuit stem from the same factual nucleus — Vincent’s alleged misconduct in undervaluing ESI for purposes of the SPA.
Tucker’s Missouri lawsuit against Vincent is not premised upon the claim of undervaluation asserted in the Florida action. Instead, Tucker asserts claims of accounting malpractice and negligent misrepresentation based on Vincent’s professional advice regarding how a potential sale of ESI could be structured. The factual basis for Tucker’s claims is that, before the SPA was entered into, and while a sale of ESI to Vincent was still being considered, Vincent advised Tucker that sale of ESI could not be structured in the way Tucker desired when in reality the transaction could have been so structured. Tucker’s claims in the present lawsuit are based on this advice, which Tucker alleges was a misrepresentation by Vincent. With respect to each claim, Tucker alleged that Vincent, as his personal accountant, breached a duty owed to Tucker in two ways: first, by advising Tucker that the sale of ESI could not be structured so that Tucker would transfer his interest in ESI to David, with the subsequent purchase and sale transaction proceeding only between Vincent and David; and second, by omitting to tell Tucker, and concealing from him, that Vincent wanted Tucker to be a participant in the sales transaction because that structure would benefit Vincent. Thus, the claims asserted in Tucker’s present lawsuit all arise from the same factual nucleus — Vincent’s allegedly erroneous advice regarding the structure of a potential sale of ESI, prior to the existence of the SPA.
It is clear that the claims adjudicated in the Pinellas County lawsuit rest upon a different factual and circumstantial foundation than those found in Tucker’s present lawsuit. The underlying facts which gave rise to Tucker’s claims in the present lawsuit are entirely different than the underlying facts which gave rise to Tucker’s claims in the Pinellas County lawsuit. The facts underlying the prior proceeding and the current proceeding, respectively, took place at different points in time and involved different transactions between Tucker and Vincent. Tucker’s present claims involve factual allegations that Vincent rendered erroneous and self-interested advice about the structure of the contemplated sale of ESI before the SPA came into existence or had been entered into by the parties. In contrast, the Pinel-las County lawsuit involved claims that Vincent undervalued ESI within the context of the SPA, which was already in existence. Further, Tucker’s present claims arise solely out of Vincent’s alleged misconduct in rendering very specific advice about a single issue, the structure of a potential sale of ESI. The prior proceeding, meanwhile, dealt solely with Vincent’s alleged misconduct in determining the value of ESI in order to ascertain an appropriate purchase price for purposes of the SPA. The claims and issues adjudicated in the Pinellas County lawsuit concern a different set of underlying facts than those found -in Tucker’s Missouri lawsuit. Although both proceedings involve the same parties, the claims in each are based upon separate conduct between Tucker and Vincent which occurred at different points in time. Vincent’s argument that there exists an identity of the cause of action be*801tween the prior Pinellas County lawsuit and the current proceeding is unavailing.
Res judicata does not adhere and does not act to bar Tucker’s current claims. Nor does the doctrine operate to bar Tucker’s current claims on the basis that they should have been brought during the Florida proceedings. Res judicata does not operate to preclude any later litigation, including those claims that could have been brought, unless the four identities first occur. Lauber-Clayton, LLC, 407 S.W.3d at 618. Accordingly, insofar as the trial court’s grant of summary judgment was based on the premise that Tucker’s claims are barred by res judicata, the trial court erred in so holding.
Conclusion
The judgment of the trial court granting Vincent’s motion for summary judgment is reversed and the cause is remanded for proceedings consistent with this opinion. Accordingly, Tucker’s third point on appeal is moot.
Sherri B. Sullivan, P.J., concurs.
Patricia L. Cohen, J., concurs.
. David Tucker is referred to by first name to avoid confusion with the appellant in this *790case. This Court intends no disrespect in doing so.
. David and Tucker’s latter claim is irrelevant to'our analysis.
. All rule references are to Mo. R. Civ. P.
. See, e.g. Paradies, 380 S.W.3d 13. In Para-dies, this Court distinguished between those lawsuits where corporate officer defendants are alleged to ‘have been acting on behalf of the corporation in the course of their wrongdoing, and those lawsuits where corporate officer defendants are alleged to have been “acting for themselves — not for the corporation” in the course of their wrongdoing. Id. at 17-18. This Court explained that in the former types of cases, corporate officers are treated as the corporation, while in the iatter, corporate officers are treated as individuals. Id.
. The Missouri Supreme Court has aiso suggested that a non-signatory may enforce an arbitration agreement if the non-signatory is a third-party beneficiary of the agreement. Nitro Distrib., Inc. v. Dunn, 194 S.W.3d 339, 345 (Mo. banc 2006). Vincent does not argue that he is a third-party beneficiary, nor do we find any support in the record for such a conclusion. To be bound as a third-party beneficiary, the terms of the contract must clearly express intent to benefit that party; an incidental benefit is not sufficient. Id. No such intent appears in the SPA.
. Vincent asserts in his brief that the claims Tucker raised "in his third party complaint in arbitration” also operate to bar Tucker’s current claims. The record does not indicate that Tucker filed a third-party complaint during the arbitration proceeding. Tucker filed a motion for leave, to file such a complaint, but it does not appear that leave was granted or that Tucker ever filed said complaint. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284421/ | ORDER
PER CURIAM
Kenneth Wilson appeals the denial without an evidentiary hearing of his Rule 24.035 motion for post-conviction relief. Wilson raises two points on appeal: 1) that trial counsel was ineffective because he was unprepared for trial thereby rendering Wilson’s guilty plea involuntary; and 2) that trial counsel was ineffective for failing to review with Wilson surveillance footage of one of the robberies thereby rendering his plea unknowing. 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/5284422/ | ORDER
PER CURIAM.
Thoele, Inc., D/B/A St. Peters Zephyr Service, Inc. (Thoele) appeals from the trial court’s Order, Judgment and Decree entering judgment in favor of Darby O’Toole’s Pub & Grub, LLC (Darby) in the amount of $83,192.80 on Darby’s‘petition and Thoele’s counterclaim petition. We have reviewed the briefs of the parties and the record on appeal and conclude the judgment of the trial court is supported by substantial evidence, is not against the weight of the evidence, and did not erroneously declare or apply the law. Brittany Sobery Family Ltd. P’ship v. Coinmach Corp., 392 S.W.3d 46, 49 (Mo.App.E.D. 2013). An extended opinion would have no precedential value. We have, however, provided a memorandum setting forth the reasons for our decision to the parties for their: use only. We affirm the judgment pursuant to Missouri Rule of Civil Procedure 84.16(b). ■ | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5285516/ | Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
01/07/2022 01:07 AM CST
- 389 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
IN RE ESTATE OF LAKIN
Cite as 310 Neb. 389
In re Estate of Charles E. Lakin, deceased.
Charles E. Lakin Foundation, Inc., appellant, v.
Thomas Pribil and William Kilzer, Copersonal
Representatives of the Estate of
Charles E. Lakin, appellees.
In re Trust of Charles E. Lakin, deceased.
Charles E. Lakin Foundation, Inc., appellant, v.
Thomas Pribil and William Kilzer, Cotrustees
of the Charles E. Lakin Revocable
Trust, et al., appellees.
___ N.W.2d ___
Filed November 19, 2021. Nos. S-20-093, S-20-094.
supplemental opinion
Appeals from the County Court for Douglas County:
Stephanie S. Shearer, Judge. Former opinion modified.
Motions for rehearing overruled.
Zachary W. Lutz-Priefert, Frederick D. Stehlik, William J.
Lindsay, Jr., and John A. Svoboda, of Gross & Welch, P.C.,
L.L.O., for appellant.
Edward D. Hotz, Amanda M. Forker, and Benjamin C.
Deaver, of Pansing, Hogan, Ernst & Bachman, L.L.P., for
defendants-appellees Thomas L. Pribil and William A. Kilzer.
Trenten P. Bausch and Megan S. Wright, of Cline, Williams,
Wright, Johnson & Oldfather, L.L.P., for appellee Thomas L.
Pribil in his individual capacity.
- 390 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
IN RE ESTATE OF LAKIN
Cite as 310 Neb. 389
Cathy S. Trent-Vilim and Brian J. Brislen, of Lamson,
Dugan & Murray, L.L.P., for appellee William A. Kilzer, an
individual.
Heavican, C.J., Cassel, Stacy, Funke, and Freudenberg,
JJ.
Per Curiam.
This case is before us on three motions for rehearing filed
by the appellees, Thomas Pribil and William Kilzer—in their
individual capacities and their capacities as copersonal rep-
resentatives and cotrustees—concerning our opinion in In re
Estate of Lakin. 1 While there is no substantive merit to the
motions, Pribil and Kilzer point out that this court incorrectly
found that the check used to pay Pribil was not in our record.
The check appears in exhibit 59.
We overrule the motions, but modify the original opinion
to substitute language as follows. In the paragraph under the
subheading “7. § 6-1437,” we withdraw the third and fourth
sentences and substitute: “Our record is not clear on the
source of the payment and the capacity of the person making
the payment.”
The remainder of the opinion shall remain unmodified.
Former opinion modified.
Motions for rehearing overruled.
Miller-Lerman and Papik, JJ., not participating.
1
In re Estate of Lakin, 310 Neb. 271, 965 N.W.2d 365 (2021). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284423/ | PER CURIAM.
ORDER
Gary Moore (“Appellant”) appeals the decision of the Labor and Industrial Relations Commission (“the Commission”) *803dismissing his claim for unemployment benefits. The Commission affirmed the decision of the Division of Employment Security’s Appeals Tribunal dismissing Appellant’s appeal for failing to appear. We find the Commission did not err in affirming the Appeals Tribunal’s decision.
No jurisprudential purpose would be served by a written opinion! We have, however, provided the parties a memorandum setting forth the reasons for our decision. The decision of the Commission is affirmed under Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284424/ | ORDER
PER CURIAM
Arthur Jones appeals the denial without an evidentiary hearing of his Rule 29.15 motion for post-conviction relief. Jones raises two points on appeal: 1) that trial counsel was ineffective when he failed to object to the hammer instruction (MAI-CR 3d 312.10) given to the jury; and 2) that trial counsel was ineffective when he failed to obtain and introduce into evidence a bloodstained shirt. 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/5284425/ | *804
ORDER
PER CURIAM.
Leonard Slocum appeals from the judgment of the motion court denying his Rule 29.151 motion for post-conviction relief without an evidentiary hearing. We have reviewed the briefs of the parties and the record on appeal and conclude the motion court’s findings and conclusions are not clearly erroneous. Rule 29.15(k); Burston v. State, 343 S.W.3d 691, 693 (MoApp.E.D. 2011). An extended opinion would have no precedential value. We have, however; provided a memorandum setting forth the reasons for our decision to the parties for their use only. We affirm the judgment pursuant to Missouri Rule of Civil Procedure 84.16(b).
. AH rule references are to Mo. R. Crím. P. 2014, unless otherwise indicated. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284426/ | ORDER
PER CURIAM
Roosevelt Livingston appeals from the motion court’s judgment denying, after 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 conclude the judgment of the motion court 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).
. 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/5284427/ | ORDER
PER CURIAM
Margaret Irving appeals the judgment entered upon her conviction by jury of producing more than five grams of marijuana, maintaining a public nuisance, and possessing more than 35 grams of marijuana. We have reviewed the briefs of the parties and the record on appeal and conclude that no reversible error occurred. An extended opinion would have no jurisprudential purpose. We have, however, provided a memorandum setting forth the reasons for our decision to the parties for their use only. We affirm the judgment pursuant to Missouri Rule of Criminal Procedure 30.25(b) (2015). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284428/ | Patricia L. Cohen, Judge
Introduction
The Monarch Fire Protection District and its Board of Directors (collectively, Monarch) appeal the judgment granting the petition for writ of mandamus and application for injunction filed by Thomas Beauchamp, Dana Buckley, Craig Sullivan, and the Professional Firefighters of Eastern Missouri, Local 2665 (collectively, Petitioners); Monarch claims the trial court erred in issuing the writ of mandamus and permanent injunction because: (1) Petitioners failed to demonstrate that Monarch had a “clear, unequivocal, ministerial duty to promote an employee to captain”; (2) the trial court improperly relied upon extrinsic evidence in construing the parties’ collective bargaining agreement; (3) Petitioners failed to establish the existence of a vacant captain position; and (4) Petitioners *807had adequate, alternative remedies and they failed to demonstrate the likelihood of irreparable harm. We reverse and remand.
Factual and Procedural Background
Monarch and the Professional Firefighters of Eastern Missouri, Local 2665 of the International Association of Fire Fighters (Union) entered a collective bargaining agreement (CBA), which governed the parties’ employment relationship. Pursuant to RSMo. Section 105.520, Monarch enacted Ordinance No. 28 adopting the terms of the CBA.
Section 2.01 of’the CBA, entitled “Management Rights,” provides: '
The Union recognizes that all management functions not specifically limited by this agreement aré vested exclusively in the District. Such functions include, but are not limited to, the direction of the working force; the utilization of employees on any work assignment whether connected to their customary job or riot; the right to hire, discipline, transfer, promote, demote, layoff, and discharge employees; to determine the number or complement of employees required at any work location, or on any job; to set work schedules or change schedules already set; to control overtime and the necessity of an employee working overtime; to make and implement reasonable rules and regulations; and do all other management and operation of the District.
Any of the management’s rights, powers, functions, or authority which the District had prior to the signing of this agreement with the Union are retained by the District, except as to those rights, powers, functions, or authority which are specifically and expressly abridged or modified by this agreement. (emphasis' added). Section 2.06 of the CBA, entitled “Filling Temporary Vacancies and Promotions,” governs Monarch’s promotional process. Under Section 2.06, promotions, to fire captain positions “shall be taken sequentially from a promotional list.” After specifying the procedure for testing and ranking candidates eligible for promotion, Section 2.06 states:
This system shall provide the Fire Chief a list of eligible candidates. ■. Permanent positions shall -then bé filled from the top three (3) candidates on the list. Acting positions shall be similarly filled by individual shift. The Fire Chief shall recommend, to the Board of Directors, one of -the top three (3)' candidates on the current list for permanent promotion. If for any reason, a candidate is passed over, that candidate is entitled to ari explanation as to why he was passed over and what would-be-necessary to improve his skills in-order to qualify.
The CBA requires Monarch to create a new promotional list every two years.
Section 2.09 of the CBA sets forth Monarch’s six-step grievance procedure." The CBA defines the term “grievance” to mean “any actual complaint, dispute ■ or difference between the employer and an employee or group of employees in the bargaining unit concerning an alleged violation, interpretation or application of this Agreement....” The CBA requires that “[a]ll grievances shall be settled” pursuant to its six-step procedure.
On September 25, 2013, Captain Bob Church announced, his decision to retire, and Fire Chief Tom Vineyard recommended the Board of Directors (Board) promote Beauchamp to Capt. Church’s position. At that time, Beauchamp, Buckley, and Sullivan were the top three candidates on the 2011-2013 promotional list, which was dué to expiré in November 2013. The Board did not act upon Chief Vineyard’s *808recommendation but instead “tabled” the filling of Capt. Church’s vacant position.
On October 25, 2013, Beauchamp, Buckley, and Sullivan filed grievances with the Union alleging that the CBA required the Board to promote one of them to the vacant captain position. Five days later, Beauchamp, Buckley and Sullivan filed a petition for writ of mandamus compelling Monarch “to immediately promote one (1) of the three (3) Relators to the vacant Captain position.”1 In addition, the three employees filed an “application for a temporary restraining order, with notice pursuant to Rule 92.02(b) and preliminary and permanent injunction” requesting the trial court enjoin Monarch “from conducting any further promotional testing, from promoting any candidates, other than Petitioners, to the vacant Captain’s position, and from allowing the current promotional list to expire[.]”
Monarch filed a response to the petition for writ of mandamus arguing, inter alia, that: (1) Petitioners failed to. state a claim upon which relief may be granted; (2) Petitioners failed to exhaust the grievance procedure contained in the CBA; (3) under the CBA and RSMo. Sections 321.200 and 321.220, Monarch retained “the sole right to determine how many Captains it will employ, as well as the sole right to determine if/when a need to promote an employee to Captain exists”; (4) Petitioners improperly requested the trial court adjudicate contractual rights; and (5) Petitioners had an adequate remedy at law. The following day, the parties entered a consent order, pursuant to which the parties agreed that Monarch: (1) “will not promote anyone into the position of captain, other than Beauchamp, Buckley or Sullivan”; and (2) “may continue the process of developing, testing, etc. for the 2013-2015 captain’s list, but will not prepare, create, or publish this list.”
On November 12, 2013, the trial court heard evidence on the petition for a writ of mandamus and application for preliminary and permanent injunction.2 At the hearing, Petitioners presented the CBA, the 2011-2013 promotional list, and the testimony of numerous Monarch employees who described staffing at Monarch’s fire houses, the competitive testing process, and Monarch’s past promotional practices. In regard to the potential harm faced by Petitioners, a captain from the department affirmed that “[i]f the promotional process is permitted to continue and a new list is created prior to the District promoting one of the three Petitioner/Relators, Beau-champ, Buckley, or Sullivan, [it is] possible that they may no longer hold the top three spots on the promotional list.” Chief Vineyard testified that he believed the vacant captain position should “be filled as soon as possible” because “there’s a great value in consistency” in staffing work shifts and “in having qualified individuals that are filling those positions.”3 On cross-examination, Beauchamp, Buckley, and Sullivan affirmed that they each had filed grievances that were pending before the Board. On November 13, 2013, the trial court entered an order directing the parties to submit memoranda of law and stating that the October 31, 2013 consent order “re*809main in force and effect until the court has ruled on the Writ and Requests for Preliminary and Permanent Injunction.”
On November 20, 2013, the Board issued a “Step Four Decision” denying the Petitioners’ grievances. In its decision, the Board stated that the grievances were untimely and, even if they were timely:
no contract violation has been presented by the grievants/union. Nothing in the CBA requires the District to replace Captain Church with another Captain. Nothing in the CBA requires the District to employ any particular number of employees and/or Captains. In fact, Section 2.01 gives the District the exclusive right to “promote” and “determine the number or complement' or employees required at any work location, or on any job.
The Board concluded: “These grievances are now eligible to be moved to Step Five (nonbinding arbitration) if the union requests arbitration within fourteen days of this decision.” The Union did not request the non-binding arbitration provided in Step Five. After the expiration of the fourteen-day period, Monarch unsuccessfully moved the trial court to reopen the record to admit a copy of the Step Four Decision.4
In July 2014, the trial court issued its order and judgment granting the Petitioners’ request for a writ of mandamus and permanent injunction. The trial court reasoned that mandamus was appropriate because the CBA “imposes upon the District and the Board the unequivocal and clear duty to promote one of the realtors to the vacant Captains position by use of the process and mechanism described in the CBA and specifically § 2.06.”5 According to the trial court, the “provisions of section 2.06 of the CBA do not provide discretion to the District or its Board in the. operation of the mechanism of promotion[.]” The . trial court denied that its findings required interpretation ■ of the CBA and stated that, “[t]o the extent that the provisions of the CBA do not specifically articulate a timeframe for [promotions], a reasonable time will be applied by the court.”
In regard to the application for a permanent injunction, the trial court found that the Petitioners:
will suffer irreparable harm including as the evidence supportsf:] 1.) the loss of opportunity vis a vis their individual test performance and the applicant pool as it currently .-exists, 2.) the loss of-a fairly and equitably applied promotion process, 3.) the loss of the firefighter’s [sic] confidence that they can rely on the terms and conditions of the CBA, 4.) the loss of necessary personnel in the Fire Department under the District’s control, and 6.) the resulting loss of adequate fire protection by the citizens that the District serves.
In addition, the trial court concluded that monetary awards were “inadequate to meet the immediate and irreparable harm present in this instance” and “do not address the germane matters at' issue.” Monarch appeals.
Standard of Review
The parties agree that the appropriate standard for reviewing the trial court’s entry of the writ of mandatóus and injunction is the same as any court-tried, civil matter. “In a court-tried case, the judgment of the trial court will be sustained *810unless there is no substantial evidence to support it, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law.” King-Willmann v. Webster Groves Sch. Dist., 361 S.W.3d 414, 416 (Mo. banc 2012) (citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)). We review questions of law de novo. Chastain v. Kansas City Mo. City Clerk, 337 S.W.3d 149, 154 (Mo.App. W.D.2011).
Discussion
■ In its fourth point relied on, Monarch contends that the trial court erred in issuing the writ of mandamus and permanent injunctioh because Petitioners had adequate remedies at law.6 More specifically, Monarch asserts that mandamus and injunctive relief were inappropriate because: (1) the CBA provided a grievance procedure, which Petitioners failed to exhaust; (2) Petitioners “had available a monetary remedy”; and (3) Petitioners failed to demonstrate irreparable harm.7 In response, Petitioners assert that the writ of mandamus and permanent injunction were appropriate because Petitioners “were not required to exhaust their administrative remedies, did not have an adequate remedy at law, and adduced substantial evidence, supporting the trial court’s determination that [Petitioners] would be irreparably harmed.”
1. Writ of Mandamus
“There is no remedy that a court can provide that is more drastic, no exercise of raw judicial power that is more awesome, than that available through the extraordinary writ of mandamus.” State ex rel. Kelley v. Mitchell, 595 S.W.2d 261, 266 (Mo. banc 1980). The purpose of a writ of mandamus is to “compel the performance of a ministerial duty that one charged with the duty has refused to perform.” Lemay Fire Prot. Dist. v. St. Louis County, 340 S.W.3d 292, 294 (Mo.App.E.D. 2011) (quoting State ex rel. Pub. Counsel v. Pub. Serv. Comm’n, 236 S.W.3d 632, 635 (Mo. banc 2007)). A petitioner seeking mandamus must allege and prove that he or she has a “clear, unequivocal, specific right to have the act performed as well as a corresponding present, imperative, and unconditional duty on the part of the respondent to perform the action sought.” State ex rel. Lee v. City of Grain Valley, 293 S.W.3d 104, 109 (Mo.App.W.D. 2009) (emphasis omitted) (quotation omitted). “[T]he purpose of mandamus is to execute and not to adjudicate; it coerces performancé of a duty already defined by law.” State ex rel. City of Crestwood v. Lohman, 895 S.W.2d 22, 27 (Mo.App.W.D. 1994).
“It is a long-established principle of law that mandamus does not issue where there is another adequate remedy available to relator.” State ex rel. Kelley, 595 S.W.2d at 265. In other words, “the writ of mandamus is to be used only as a last resort on the failure of any adequate alternative remedy.” Id. at 267. For this reason, “[mjandamus is not an available remedy for an alleged breach of contract.” *811State ex rel. Capitol Queen & Casino, Inc. v. Mo. Gaming Comm’n, 926 S.W.2d 55, 58 (Mo.App.W.D.1996) (quoting State ex rel. Bates v. Am. Polled Hereford Ass’n, 863 S.W.2d 350, 353 (Mo.App.W.D.1993)). See also State ex rel. Porter v. Hudson, 226 Mo. 239, 126 S.W. 733, 740 (Mo.1910) (“[Mandamus] does not go where there is any other adequate remedy, and it never issues to enforce a right resting merely on a contractual obligation^]”).
In their petition for a writ of mandamus, Petitioners alleged that Monarch had a “clear, unequivocal, ministerial duty to appoint one (1) of the top three (3) ranked candidates from the promotional list to the vacant Captain position, as set forth in the CBA.” (emphasis added) Petitioners did not allege that they had no "adequate, alternative remedy to a writ of mandamus compelling Monarch to promote one of the top three candidates from the 2011-2013 list. To the contrary, at the hearing on the petition for a writ of mandamus and application for a permanent injunction, Beauchamp, Buckley, Sullivan each testified to filing grievances as provided for in the CBA.
In its judgment granting the writ of mandamus, the trial court found that Monarch had an “unequivocal and clear duty to promote one of the [Petitioners] to the vacant Captain position by use of the process and mechanism described in the CBA and ■ specifically in § 2.06” and that the CBA did “not provide discretion to the District or its Board in the operation of the mechanism of promotion articulated therein.” In regard to alternative remedies, the trial court stated simply: “The award of back-pay and other monetary remedies at law, suggested by [Monarch] as adequate and available to [Petitioners] are in fact proven ... inadequate to meet the immediate and irreparable harm present in this instance, as such monetary awards do not address the germane matter at issue.” The “germane matter[s]” identified by the trial court included the potential loss of:.- opportunity for promotion; employees’. confidence in the CBA; and adequate personnel and fire protection. The trial .court.did not address.whether the CBA’s six-step grievance procedure constituted an adequate, alternative remedy to a petition for, a writ of mandamus.
Monarch maintains that Petitioners had available the adequate, alternative remedies of the grievance procedure set forth in the CBA and/or an action for breach of contract. In their response brief, Petitioners do not deny that the CBA’s grievance procedure was an adequate, alternative remedy.8 However, at argument, counsel for' Petitioners suggested that the grievance procedure was inadequate because it required “non-binding arbitration.”
Petitioners cite and wé find no authority for the proposition that an agreement to resolve a grievance in non-binding arbitration is necessarily an inadequate remedy.9 It is undisputed, however, that Petitioners filed grievances with the Union and pro*812cessed their grievances through Step Four. The fact that Petitioners initiated the CBA’s grievance procedure tends to suggest its adequacy. See State ex rel. Kelley, 595 S.W.2d at 267 (alternative remedy to writ of mandamus was available where, by filing action for a declaratory judgment, appellant “demonstrated his willingness to submit the controversy ... to the judgment of the court”).
In any event, we need not determine whether the CBA’s six-step grievance procedure constituted an adequate, alternative remedy because other remedies were available to Petitioners. For example, declaratory judgment may be a proper remedy to determine parties’ rights and obligations under a collective bargaining agreement. See Brackett v. Easton Boot & Shoe Co., 388 S.W.2d 842, 843 (Mo.1965). In addition, Petitioners could have filed an action for either an actual or anticipated breach of the CBA. When asked at argument why Petitioners did not file an action for .breach of contract, counsel for Petitioners, answered “because the clock was ticking for thes.e three [petitioners] ... if we file for breach of contract, how much time goes by?”
Inconvenient delay does not- render an alternative remedy inadequate. State ex rel. Kelley, 595 S.W.2d at 268. “As the Missouri Supreme Court observed, mandamus is not a ‘short cut for the speedy resolution of disputes that adequately may be resolved by other means.’” State ex rel. KelCor, Inc. v. Nooney Realty Trust Inc., 966 S.W.2d 399, 402 (Mo.App.E.D. 1998) (quoting State ex rel. Kelley, 595 S.W.2d at 268). Furthermore, “[m]anda-mus is not an available remedy to obtain relief for an alleged breach of contract.” State ex rel. St. Joseph Hosp. v. Fenner, 726 S.W.2d 393, 395 (Mo.App.W.D.1987) (petitioner’s allegations of a contractual relationship and expectancy of future privileges “do not support the use of mandamus.”).
Given that, here, Petitioners are attempting to enforce rights resting “merely on a contractual obligation” and had available other remedies, we conclude that the trial court erred in granting the extraordinary remedy of mandamus relief. Point IV is granted as to-the writ of mandamus.
2. Permanent Injunction
Monarch also contends that the trial court erred in issuing “the companion Injunction” because Petitioners “had available a monetary remedy and no substantial evidence supported the trial court’s finding that [Petitioners] would be irreparably harmed.” In response, Petitioners assert that injunctive relief was appropriate because they presented evidence of “the amount of time necessary for an employee to adequately prepare” for the promotional test and the possibility that, absent an injunction, Beauchamp, Buckley, and Sullivan “could have lost their position as the top three (3) candidates eligible for promotion.” Petitioners further argued that monetary relief would not remedy the “unascertainable damages that would have been suffered by [Petitioners] had [Monarch] moved forward in beginning the new promotional process.... ”
As an.initial matter, we note that Monarch’s . brief focuses almost exclusively upon the writ of mandamus and only superficially develops an argument in regard to the permanent injunction. The sole case Monarch cites in support of its argument, Walker v. Hanke, 992 S.W.2d 925 (Mo.App.W.D.1999), is of no assistance. Likewise, Petitioners’ argument in support of the permanent injunction is conclusory and unsupported by relevant authority.
. Despite the absence of relevant case law from either party, we note that, *813like a writ of mandamus, an “injunction is an extraordinary and harsh remedy and should not be employed where there is an adequate remedy at law.” Goerlitz v. City of Maryville, 333 S.W.3d 450, 455 (Mo. banc 2011) (quotation omitted). To obtain a permanent injunction, a party must demonstrate that: (1) he or she has no adequate remedy at law; and (2) irreparable harm will result if the injunction is not granted. City of Greenwood v. Martin Marietta Materials, Inc., 311 S.W.3d 258, 265 (Mo.App.W.D.2010). “An injunction will not be awarded where there is an adequate remedy at law.” Eberle v. State, 779 S.W.2d 302, 304 (Mo.App.E.D.1989).
As discussed above in regard to the writ of mandamus, the record contains no evidence of the lack of an adequate remedy at law. We therefore conclude that Petitioners failed to satisfy the burden of proving they were entitled to a permanent injunction and the trial court erred in granting such relief. Point granted as to the permanent injunction.
Conclusion
For the foregoing reasons, the judgment of the trial court is reversed and the case is remanded.
Sherri B. Sullivan, P.J., and Kurt S. Odenwald, J., concur.
. On October 31, 2013, Beauchamp, Buckley, and Sullivan amended the petition for a writ of mandamus and application for temporary restraining order to add the Union as a party.
. At the start of the hearing, the parties "agree[d] to consolidate the preliminary and permanent injunction matter[s].”
.Chief Vineyard elaborated that "as a fully promoted Captain, obviously you gain the experience, you gain the knowledge, you gain the skill set as you — as you move forward. And I think that’s a benefit to the community as well as the District"
. The record on appeal does not reveal whether the trial court ruled upon Monarch’s motion to reopen the record.
. Because Monarch’s fourth point relied on is dispositive of the appeal, we address it first.
, In their point relied on, Monarch also claims the trial court erred in denying its motion to reopen the record to admit the Board’s Step Four Decision. However, Monarch failed to develop this argument or cite any legal authority in support of its position. "To properly brief a case, an appellant is required to develop the issue raised in the point relied on in the argüment portion of the brief.” Carlisle v. Rainbow Connection, Inc., 300 S.W.3d 583, 585 (Mo.App.E.D.2009). "If a party does not support contentions with relevant authority or argument beyond con-clusory statements, the point is deemed abandoned.” Id.
. Rather, Petitioners argued that they were not required to exhaust this remedy because "the review conducted by the trial court was of an administrative decision in a non-contested case.” Petitioners further argued that they did, in fact, exhaust their administrative remedies.
. This court has noted that "[n]on-binding or advisory arbitration in an oxymoron.” Franklin v. St. Louis Bd. of Educ., 904 S.W.2d 433, 435 n. 1 (Mo.App.E.D.1995). In Franklin, we did not consider whether a grievance procedure culminating in non-binding arbitration constituted an adequate legal remedy. The issue in that case was whether the grievance procedure contained in the parties' collective bargaining agreement satisfied the requirements for a contested case so that the doctrine of exhaustion of remedies applied. Id. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284429/ | ORDER
PER CURIAM
Teresa Maurer (“Mother”) appeals from the trial court’s judgment modifying a decree of dissolution of marriage (“Modification Judgment”), inter alia, transferring legal custody from Mother to Derek Maurer (“Father”), amending child support payable from Father to Mother, entering an order of attorneys’ fees in favor of Father, and denying a child order of protection.
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.
*814The judgment is affirmed pursuant to Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284430/ | JUSTICE BROWN,
joined by • JUSTICE GREEN, concurring in the denial of the petition for writ of mandamus.
On August 28, 2015, the Court issued an order denying the relators’ petition for writ of mandamus in this case. I write to provide some explanation for that denial and to distinguish this case from a seemingly similar matter on which we recently ruled.
This case concerns the relators’ effort to amend the city charter of San Marcos tó prohibit the city from using fluoridated water. On April 2, 2015, the relators submitted a petition seeking that the proposed amendment be included on the city’s general-election ballot for November 3, 2015. Under section 3.005(c)(2) of the Election Code, the latest date any proposed city charter amendments could be added to the November ballot was August 24, 2015.
On May 5, 2015, the city clerk informed the relators that the petition was invalid because it did not include an oath or affirmation, that “the statements were true, that each signature ... is the genuine signature of the person whose name purports to be signed thereto, .and that such signatures were placed thereon in the person’s presence.” The parties dispute whether the city charter requires such an oath or affirmation in this instance.
The relators sent letters to the city on May 18 and June 16 insisting that city officials had improperly refused to perform ministerial dúties regarding - the petition and demanding,that they dó so immediately. But the relators took no legal action to force the city’s hand. Instead; on June 18 the city filed a declaratory-judgment action in district court in Hays County. Despite the looming deadline, the relators . waited until July 17 to answer the ■ city’s lawsuit and counterclaim for declaratory, injunctive,- and mandamus relief — more than ten weeks after the city had refused the petition.
On August 14, the trial court ruled for the relators and ordered the city to review their petition without requiring any affirmation or verification of the signatures. The city filed a notice of appeal the next day, staying any further action by the trial court. On August 21, six days after the city filed its notice of appeal, the relators sought mandamus relief in this Court.
We deploy mandamus as an extraordinary and discretionary remedy, not as a matter of right. Rivercenter Assocs. v. Rivera, 858 S.W.2d 366, 367 (Tex.1993) (citing Callahan v. Giles, 137 Tex. 571, 575, 155 S.W.2d 793, 795 (1941)). And though mandamus is not an equitable remedy, equitable principles govern its issuance. Id. (citations omitted). “One such principle is that ‘[ejquity aids the diligent and not those who slumber oh their rights.’ ” Id. *824(quoting Callahan, 137 Tex. at 576, 155 S.W.2d at 795). ,
The relators knew on May 5 that the city had refused to consider their petition. Yet with the August 24 statutory deadline less than 16 weeks away, the relators waited more than ten weeks before seeking mandamus relief from the district court. Even then, the relators sought mandamus only in response to the city’s request' for declaratory relief, and only after the city’s lawsuit had been on file for nearly a month. To top it off, it took the relators almost a week to ask for a mandamus from this Court once the city had appealed the trial court’s, ruling. By then the statutory deadline was just three days away.
The relators have offered no explanation for their failure to diligently pursue the remedies available to them. Instead, they blame the city for employing “procedural maneuvers” and “doing nothing to resolve its claims in a timely manner” once it had filed its lawsuit. But nothing the city did or did not do absolves the relators from their duty to diligently pursue their rights. We will not grant extraordinary remedies to litigants who “slumber on their rights” and then demand expedited relief. Callahan, 137 Tex. at 576, 155 S.W.2d at 795; see also In re Int’l Profit Assocs., 274 S.W.3d 672, 676 (Tex.2009) (per curiam) (“delaying the filing of a petition for mandamus relief may waive the right to mandamus unless the relator can justify the delay”).
The relators’ failure to diligently pursue relief likewise belies them justification for not first seeking mandamus in the court of appeals. The rules provide that “[i]f [a] petition is filed in the Supreme Court without first being presented to the court of appeals, the petition must state the compelling reason why the petition was not first presented to the court of appeals.” Tex. R. App. P. 52.3(e). In this case, the relators assert that because of the impending statutory deadline, they “have a compelling reason to submit this petition to the Supreme Court to secure finality now rather than first going to the Austin Court of Appeals.” Yet as the urgency the relators face is of their own making, it is no excuse for skipping past the court of appeals. Moreover, the fourteen courts of appeals have mandamus jurisdiction for a reason. This Court cannot be the sole arbiter of expedited extraordinary relief in a state of nearly 30 million people spread out across 254 counties.
The dissent draws some comparisons between this case and In re Woodfill, 470 S.W.3d 473 (Tex.2015) (per curiam). In Woodfill, we granted mandamus relief to order the City of Houston to either repeal an ordinance or submit it to the voters for approval in the next general election. Id. at 481. But Woodfill is easily distinguished from this case. For instance, the petition organizers in Woodfill gathered their signatures and submitted their petition over a year before the statutory deadline — not less than six months before as the relators in this case. Id. at 476. The Woodfill petition organizers also sued the city in district court for declaratory and injunctive relief immediately upon its rejection of their petition. Id. at 478. In addition, within a week of the city rejecting the petition, the petition organizers filed an original mandamus proceeding in the court of appeals. Id. The same day the court of appeals denied that mandamus, the petition organizers filed a supplemental petition in district court, requesting a writ of mandamus from that court. Id. These early attempts at extraordinary relief were denied in light of the appellate remedy the petition organizers could pursue once they had obtained a final judgment in their action for declaratory and injunctive relief. See id. It was only after *825that appellate remedy later proved inadequate, and — unlike this case — after we .had received full briefing from the petition organizers and the city, that this Court granted mandamus on July 24, 2015. Id. at 480-81. The relatively short-Hved and sporadic activity in the case at bar bears little resemblance to the protracted and relentless litigation that finally resulted in a mandamus in Woodfill.
Process matters. Regardless of the merits of their claims, the relators in this case have failed to show, under this Court’s well-established rules, principles,- and expectations, that they are entitled to the extraordinary relief they seek. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284431/ | JUSTICE DEVINE,
joined by ' JUSTICE LEHRMANN, dissenting from the denial of the petition for writ of . mandamus.
I would have granted the writ of mandamus. The City of San Marcos disregarded its own laws regarding charter amendments, ignoring the legislative prerogative of the people through citizen-initiated petitions. This is a power protected by our laws,1 our precedent,2 and the City’s own Charter.3 Here, the City Clerk óf San Marcos refused to review the signatures on a petition calling for a charter amendment. The Clerk reasoned that the petition was invalid because the signatures were not accompanied by any oath or affirmation confirming their authenticity. Because neither the City Charter nor Texas law imposes this requirement, I believe the City Clerk should have been directed to review the signatures on the petition.
The City claims the petition does not satisfy section 6.03 of the City’s Charter.
This section, however, pertains exclusively to petitions regarding ordinances:
Initiative petition papers shall contain the full text of the proposed legislation in the form of an ordinance, including a descriptive caption. Referendum petition papers shall contain a sufficient description of the ordinance' sought to be referred to identify it, or if the ordinance has been passed by the council, the full text of the ordinance sought to be referred shall be included in such papers. Before signatures on any petition paper may be counted, one of the signers of such petition paper, a qualified votér, shall make oath or affirmation before the city clerk or any other ' officer competent to administer oaths or affirmations, that the statements made therein are true, that each signature to the paper appended is the genuine signature of the person whose name purports to be signed thereto, and that such signatures were placed thereon in that person’s presence.
San Marcos, Charter, art. VI, § 3 .(emphasis added). Any requirement that signatures on petitions be verified, applies only to citizen-initiated legislation on ordinances. Indeed, the Charter does not contemplate these provisions applying to anything else. Just one example: under the Charter, if an initiative petition calls for the adoption of the ordinance, the City may choose between passing the ordinance itself or submitting it to a vote. Id. art. VI, .§ 4(a). If a referendum petition calls for the repeal of an ordinance, the City may either repeal the ordinance itself, or call an election. Id. art. VI, § 4(b). But because charter amendments always re*826quire an election — the City cannot amend the charter on its own — this section obviously does not apply to charter amendments. Tex. Eleg Code § 9.004; San Marcos, Charter, art. XII, § 11.
When it comes to Charter amendments, the Charter relies solely on state law to define the proper procedure: “Amendments to this Charter may be framed and submitted to the voters of the city in the manner provided by state law.”. San Marcos, Charter, art. XII, § 11. State law, however, does not require the verification the City CÍerk demands. , “The governing body shall submit a proposed charter amendment to the voters for their approval at an election if the submission is supported by a petition signed by a number of qualified voters of the municipality equal to at least five percent of the number of qualified voters of the. municipality_” Tex. Loc. Gov’t Code § 9.004(a). The Election Code, in turn,, specifies the requirements “[f]or a petition signature to be valid.” Tex. Elbo. Code § 277.002. .The verification requirement the City argues for is not one of the statutorily-imposed requirements.
In other words, state law does not impose these verification requirements, and the City Charter relies solely on state law for the charter-amendment process. Ño literal reading of the Charter allows the criteria of section 6.03 to be applied to charter amendments. Indeed, . mere months ago, the Court recognized a distinction exists between city charter requirements ' for citizen-initiated charter amendments as opposed to ordinances. See Dacus v. Parker, 466 S.W.3d 820, 829 (Tex.2015) (“[AJlthough the Houston charter provides no means for amending the charter, the Texas Local Government Code does.”).
The Court has long held that laws regarding citizen-initiated legislation “should be liberally construed in favor of the power reserved” to the people. In re Woodfill, 470 S.W.3d at 480 (quoting Taxpayers’ Ass’n of Harris Cnty. v. City of Houston, 105 S.W.2d 655, 657 (Tex.1937)). This case is no different. Moreover; the Election Code disfavors local technicalities that hamper the people’s right to amend their charter: “Anyrequirements for the validity or verification of petition signatures in addition to those prescribed by this chapter that are prescribed by a home-rule city charter provision or a city ordinance are effective only if the charter provision or ordinance was in effect September 1, 1985.” Tex Elec. Code § 277.004. Simply put, the City cannot amend its charter to impose,the requirements the City Clerk demands, let alone impose them here.
Though the deadline for ordering elections passed, see Tex. Elec. Code § 3.005(c); In re Woodfill, 470 S.W.3d at 480 n. 11, the people of San Marcos were not without a remedy. The City should not be able to avoid its duty under the Charter-indeed, under Texas law-merely because it failed to timely order the election. ■ If, as the Election Code states, “[fjailure to order a general election does not affect the validity of the election,” Tex. Elec, Code §• 3.007,-then neither should a late order in this case.
Here, a district court determined the City Clerk must review the petition signatures and. perform her ministerial duty. Rather than comply, the City initiated an interlocutory appeal, assuring that the deadline would pass before relief could be obtained. I would not permit a city to use a directory deadline in the Election Code in this manner to* either avoid a ministerial duty or thwart the will of the people. When the Texas Election Code and Local Government Code, as well as the City’s own Charter, require the City to act, the City may not hide behind the statutory *827deadline. Indeed, “[t]he right to vote is so fundamental in our form of government that it should be as zealously safeguarded as are our natural rights,” and election statutes must be interpreted “in favor of that right.” Thomas v. Groebl, 212 S.W.2d 625, 630 (Tex.1948). In Woodfill, we required a city to comply with its duties before the deadline, see In re Woodfill, 470 S.W.3d at 475, and I would have required compliance here as well. ,
Though the deadline does not remove a remedy,' it does foreclose any adequate remedy by appeal. See- In re Williams, 470 S.W.3d 819, 823 (Tex.2015) (per curiam); In re Woodfill, 470 S.W.3d at 480. Because we did not act, the voters were denied any timely relief.
As we have held before, a City’s “refusal to submit the proposed amendment[] to the vote of the people thwarts not only the legislative mandate”- of the Local Government Code, but also “the will of the public.” Coalson v. City Council of Victoria, 610 S.W.2d 744, 747 (Tex.1980). This case is no different. I would have granted the petition for mandamus relief and directed the City Clerk to count the signatures. Accordingly, I respectfully dissent from the denial of the petition for writ of mandamus.
. See TEX. ELEC. CODE § 277.001-.004.
. See, e.g., In re Woodfill, 470 S.W.3d 473, 475 (Tex.2015) (per curiam).
.See San Marcos, Charter, art. XII, § 11 ("Amendments to this Charter may be framed and submitted to the voters of the city in the manner provided by state law.”). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284432/ | OPINION
Michael Massengale, Justice
After Hurricane Ike caused significant damage to their homes, a group of condominium owners sued their condominium association and members of its board. The plaintiff owners argued that by failing to repair hurricane damage to the condominium complex and by demolishing it, the association acted negligently, breached the association’s declarations and bylaws, and violated the Texas Property Code. The trial court granted directed verdicts on the claims against the individual board members and denied requests for declaratory relief. After a trial on the remaining claims, a jury returned a verdict for the plaintiffs. Pursuant to the plaintiffs’ elec*881tion, the trial court entered judgment in their favor on their contract claims. The plaintiff owners now appeal the dismissal of their claims against the individual board members, while the association cross-appeals the judgment against it. Finding no error, we affirm.
Background
The Landing was a condominium complex in the City of El Lago, Texas. Built in 1969, it consisted of 17 buildings and approximately 156’ condominium units. The Landing occupied approximately seven acres of waterfront property along Clear Lake, and it featured a marina. Many of the units at the Landing had boat slips.
The formative document for The Landing was a condominium declaration which provided that an association, the Landing Council of Co-Owners, would govern and control the affairs of the complex. The Council’s responsibilities included decisions such as whether and how to make improvements or repairs to common areas and features, as well as any possible decision to terminate the condominium development and partition or sell the property. The membership of the Council consisted of all owners of condominium units in The Landing, although the affairs of the Council were directed or managed by a Board of Administrators consisting of seven members. The Council also was governed by a set of bylaws.
In September 2008, Hurricane Ike made landfall near Galveston Island, bringing high winds and flooding to the area, including the City of El Lago. The Landing sustained significant damage. Large quantities of debris washed or blew into the parking lot and marina, and multiple buildings suffered interior and exterior damage. Several buildings suffered some degree of structural damage. The storm also knocked out power throughout much of the area, including power lines to the complex. The Landing’s electrical power had-come in through a single, common line, and it proved impossible to restore power' on a building-by-building -basis. ■Power was never restored to the complex.
Because The Landing’s buildings sat at a lower elevation than the city sewer lines, pumps were used to lift wastewater to the level of the sewer lines. Without power, the pumps could not function. But the water supply to' The Landing remained active, so sewage began' flowing back through the pumps and out into Clear Lake. To prevent this, the water was also turned off on the day after the storm. Because the power was never restored, water and sewer services to the Landing also were never restored.
In accordance with Article 12 of The Landing’s declaration, the. Council asked its property management committee to mail out notices of a meeting to discuss repairs to the complex. In the event that “any part of the condominium Property shall be damaged by casualty,” Article 12 provided rules for determining “whether or not it shall be reconstructed or repaired'...”’ Those rules required the Board of the Council to call a meeting within 15 days of the casualty’s occurrence by written notice, to be delivered either personally or by certified mail, return receipt requested. The meeting itself had to occur not less -than 15 days nor more than 40 days after the casualty. At the meeting, the Council members would vote to determine whether the “required construction [to repair or rebuild the property] comprises- the whole or more than two-thirds (2/3) of the Condominium Project.” •If the Council voted that “reconstruction is required for the whole or more than 2/3 of the Condominium Project,” then the Board was required to pay out all insurance pro*882ceeds and the condominium development would be terminated, unless the co-owners unanimously’agreed to reconstruct and repair all portions of the damaged property. If the Council voted that the damage comprised less than two-thirds of the property, then the Board was required to proceed with reconstruction and repair.
The property management company tasked by the Council with sending out notices of the Article 12 meeting failed to send them by certified mail, return .-receipt requested. Co-owners of the Landing reported to the Board that they had not received their, .notices. According to Tom Jenkins, a Board Administrator, the Board did not learn of the incorrect mailing until after the 15-day period for calling the meeting had expired. Meanwhile, the postal service returned approximately 40% of the notices as undeliverable. The Board then consulted an attorney and canceled the Article 12 meeting.
In July 2009, Richard Smith, the Building Official of the City of El Lago, determined that The Landing had “been damaged or destroyed to. an extent of more than fifty-one (51) percent of its fair market value by the hurricane.” As a result, under the City’s zoning ordinance, The Landing could be repaired only if it were brought into compliance with the City’s building codes.
The Board attempted to call another Article 12 meeting in October 2009, but a group of unit owners calling itself the “Concerned Owners of The Landing Condominiums” objected on the grounds that the deadline for calling such a meeting had passed. The Concerned Owners ultimately obtained a declaratory judgment that the proposed meeting-was untimely.
In March 2010, the Board convened a meeting -under Article 10, whereby two-thirds of the owners could approve alterations or improvements to commonly-owned elements of the Landing. Failing such approval, only those owners consenting to the alterations or improvements would be obliged to pay for them. At the meeting, a majority of the Landing eoowners voted not to alter or improve the property.
After a hearing on April 26, 2010, the City determined that The Landing’s building's constituted substandard housing and a public nuisance. The Council was ordered to apply within 30 days for either a permit to repair the property or a permit to demolish it. If the Council elected .to repair the property, it was to include “explicit details and assurances” that it would bring the property into compliance with existing codes. Some of the co-owners of The Landing sought to challenge that determination by appealing to Smith and to the mayor of the City of El Lago. The City responded that no order, decision, or other determination had been made from which an appeal could be taken; such an appeal would 'be possible only after The Landing sought -a permit to repair or rebuild.
In late 2010, a fire caused further damage to the Landing. Four buildings , were damaged directly by the fire. The Board called another meeting after the fire, this time under both Article 12 and Article 13, which governs termination of the condominium development. At the meeting, approximately 59.5% of the co-owners voted not to répair or reconstruct the property.
Ultimately, the Council obtained a demolition permit from the City of El Lago, and The Landing was demolished in April 2011.
In September 2010, several co-owners of The Landing — Bull Capital Company,1 *883Carl Kivela, Ryan Meischen, Danford Meischen, Jerry Savoy,' Howard Janson, Larry Thomas, Cheryl Thomas, and Terri Tiedemann — sued the Council and several current and former members of the Board in their individual capacities, namely: William Henslee, Tom Jenkins, Troy Jones, David Marks, Barnard ■ Pearl,' Thomas Walsh, Stan Williams,' and Jack Ereira. During the course of the litigation, condominium owners Doreen Mardemess, James Huseman, Patrick Koelling, and Frank Genzer, Jr., joined the suit as plaintiffs, and former Board Administrator Andrew Rosenberg was named as an additional defendant. The plaintiffs asserted claims for breach of fiduciary duty, negligence, breach of The Landing’s declaration and bylaws, and gross negligence. They also sought to recover their attorney’s fees.
Co-owner Lee Ann Wheelbarger also sued the named defendants, seeking declaratory relief for breach of fiduciary duty, negligence, gross negligence, tortious interference with contract, slander of title, damage to title, breach of contract, and conspiracy.2 Although she also sought damages for these claims in'her live pleading, she failed to produce evidence of those damages in response to discovery requests. The trial court therefore excluded evidence of her damages, and the jury was not asked to award Wheelbarger any damages. Finally, the plaintiffs sued Timothy Patak, a Board Administrator and former consultant to the Board, arguing that he aided and abetted the defendants’ alleged breaches of fiduciary duty.
The trial' Cburt directed a verdict dismissing all claims against the individual defendants. A jury found that the Council breached The Landing’s declarations and bylaws and breached fiduciary duties owed to all of the plaintiffs. The jury awarded damages to ‘ each plaintiff; excluding Wheelbarger and former plaintiffs Mary Lou and James Durham, about whom no damages questions were submitted. The jury also awarded attorney’s fees to each plaintiff, including Wheelbarger. The trial court entered judgment in favor of the plaintiffs, awarding the damages found by the jury. It found that the declaratory relief requested by Wheelbarger would affect the rights of - all co-owners of The Landing, including those not party to. the suit, and that her pleadings did not support all of the requested declaratory relief The court therefore denied the requested relief It also awarded, the attorney’s fees found by. the jury, with the exception that it did not award any fees to Wheelbarger, who had obtained neither monetary .nor equitable relief Finally, the trial court awarded prejudgment and postjudgment interest, with the former running from November 20, 2012 until the date of judgment.
•Wheelbarger, Tiedemann, Marderness, Savoy, Janson, Kivela, Huseman, Bull Capital, Koelling, and Genzer (collectively, Appellants3), raise three issues on appeal. *884First, they argue that the trial court erred by directing a verdict as to claims against the individual board members. Second, they contend that the trial court used an incorrect date for calculation of prejudgment interest and should have used one of two earlier dates. Third, Wheelbarger argues that the trial court-erred by dismissing her claims for declaratory relief and attorney’s fees.
The Council cross-appeals and also raises three issues. First, it challenges the damages award as supported by insufficient evidence based on defects in the testimony of the plaintiffs’ expert witness on damages. Second, the Council insists that the City had considered and rejected the evidence upon which plaintiffs rely to show that the Council had reason and a duty to challenge the City’s substantial-damage determination; thus, legally insufficient evidence supports the jury’s findings that the Council should have challenged that determination and that' the failure to raise such a challenge damaged the plaintiffs. Third, the Council argues that no finding or cause of action supports the trial court’s award of attorney’s fees to the plaintiffs.
Analysis
When parties present multiple grounds for reversal of a judgment- on appeal, we must first address those issues that would afford the appellant the greatest relief. CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex.2000); Bradleys’ Elec., Inc. v. Cigna Lloyds Ins. Co., 995 S.W.2d 675, 677 (Tex.1999). We therefore first consider whether the trial court improperly directed a verdict on- Appellants’ claims against the individual defendants, which would require a remand for trial on those claims. We then consider the Council’s challenges to the sufficiency of the evidence regarding liability and damages. Finally, we turn to the parties’ arguments on prejudgment interest, declaratory relief, and attorney’s -fees,. each of which would result in lesser- forms of relief if sustained. .
I. Plaintiffs’! appeal: Directed verdict on claims against individual Board Administrators
. Appellants first argue that the trial court erred by granting a directed verdict at the close of their case-in-chief as to all claims against the individual defendants. They contend that sufficient evidence showed that the Board breached certain fiduciary and contractual duties and that the individual defendants were members of the Board at relevant times. They therefore conclude that the evidence would have supported a conclusion that the individual defendants violated their own duties as fiduciaries of the co-owners of The Landing.4
*885We review a directed verdict under the same standard as a no-evidence summary-judgment. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex.2003); Miles v. Lee Anderson Co., 339 S.W.3d 738, 741 (Tex.App.—Houston [1st Dist.] 2011, no pet.). “Accordingly, we review the evidence in the light most favorable to the non-movant, disregarding all contrary evidence and inferences.” King Ranch, 118 S.W.3d at 751. “A no evidence point will be sustained when (a) there is a complete absence of evidence of a vital fact, (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence conclusively establishes the opposite of the vital fact.” Id. (quoting Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997)). Therefore, the trial court should not grant the motion if “there is any evidence of probative value to raise an issue of material fact on the question presented.” Exxon Corp. v. Emerald Oil & Gas Co., L.C., 348 S.W.3d 194, 220 (Tex.2011).
Fiduciary duties arise either from formal relationships that are recognized as fiduciary as a matter of law, or in some cases, from the existence of an informal, “confidential” relationship between the parties. Ins. Co. of N. Am. v. Morris, 981 S.W.2d 667, 674 (Tex.1998). The elements of a claim foi breach of fiduciary duty are (1) the existence of a fiduciary relationship between the plaintiff and defendant; (2) the defendant’s breach of a fiduciary duty arising from that relationship; and (3) injury to the plaintiff, or benefit to the defendant, resulting from that breach. Id,
The individual defendants moved for a directed verdict on the grounds that the plaintiffs introduced evidence only as to actions taken by. the Board that constituted negligence or breached a fiduciary or contractual duty, not those* duties owed or breached by the individual defendants. On appeal, Appellants make six arguments that the directed verdict was improper. Three of .these arguments focus on the evidence presented at trial, while the others address primarily legal arguments for imposing liability on the individual defendants. However, because Appellants fail to show what actions any individual took that gave rise to a cause of action, all of their arguments fail.
A. Lack of evidence of individual Board Administrators’ wrongful actions
First, Appellants argue that they presented expert testimony from Charles Jacobus, a board-certified real estate attorney and expert in homeowner association law, regarding the duties owed by the Board to The Landing’s owners and the Board’s breaches of those duties. While Jacobus did offer such testimony, his testimony focused on the duties of the Board itself, not the duties of the Board’s members. He did not testify about any action taken by any of the individual defendants, in any capacity.
Second, Appellants argue that they presented sufficient evidence that the plaintiffs sustained damages due to the wrongful demolition of The Landing. They did' not connect such damages to any individual’s acts, nor do they do so on appeal. Rather, the damages flowed from the demolition of the property, which resulted from actions taken by the Board as a whole.
*886Third, Appellants argue that they presented legally sufficient evidence as to the membership of the Board at relevant times.' In support, they point to -40 “examples of evidence in the record.” These examples include various summaries of the evidence, such as “the oral testimony of Lee-Ann Wheelbarger ... that a demolition permit was submitted on May 26, 2010, with no attempt to appeal and no denial of any permit ever having been returned.” Another is that “Williams, Pa-tak and Jones accompanied [a building inspection company] during its inspection.” Yet another is that “the City refused to recognize [plaintiffs’] attempt to appeal [the determination that The Landing was substantially damaged] on November 24, 2009 because no permit had been submitted and refused as of that date.”
None of this evidence demonstrates that any particular individual took any action in violation of any particular duty. As Wheelbarger concedes in her reply brief, these 40 facts do not bear “on the existence of a duty or breach of duty of the board members,” but they prove, at most, the membership of the Board at various times. And as the defendants observed in argument on the motion for directed verdict, no witness ever mentioned Administrators Henslee or Walsh by name in testimony during Appellants’ case-in-chief; the names of many other Board members were mentioned only in passing. While Appellants point to numerous actions of the Board and note repeatedly that no Board member appealed the substantial-damage determination or applied for a repair permit, they make no effort to show how any individual acted in a way that was legally improper. Instead, they attempt to impute actions of the entire Board to each Board member, individually, without showing, for example, which Board members voted to take a particular action. Indeed, a major theme of trial was the inability of co-owners to take actions as individuals with respect to repairing, rebuilding, or preventing the demolition of The Landing. At most, Appellants point to certain attitudes, predispositions, or knowledge that certain Board members purportedly held, not actions taken in breach of any particular duty.5
B. Inapplicability of personal liability under Property Code Chapter 82
Finally, Appellants contend that the Board members are subject to personal liability for their alleged breach of fiduciary duties based upon several sections of the Property Code. First, Section 82.103(a) provides: “All acts of [a condominium] association must be by and through the board unless otherwise provided by the declaration or bylaws or by law.” Tex Prop.Code § 82.103(a). Further, “[e]ach officer or member of the board is liable as a fiduciary of the unit owners for the officer’s or member’s acts or omissions.” Id, Finally, Section 82.161 provides: “If a declarant or any other person subject to this chapter violates this chapter, the declaration, or the bylaws, any person or class of persons adversely affected by the violation has a claim for appropriate relief.” Id. § 82.161. These statutes- do not support Appellants’ position that the individual Board members are liable for the Board’s actions. Rather, to apply these statutes requires that the indi*887vidual Board member take'some action for which liability may lie; Appellants failed to prove that any particular Board member took such an action.
Appellants rely on two cases to advance this theory of individual liability. In the first, Harris v. Spires Council of Co-Owners, 981 S.W.2d 892 (Tex.App.—Houston [1st Dist.] 1998, no pet.), this court held that an association did not breach a duty of ordinary care in recommending a former association employee. to two co-owners seeking a housekeeper, even though that person had been fired on suspicion of theft and later misappropriated the co-owners’ funds. Harris, 981 S.W.2d at 894, 898. Appellants also rely on Sassen v. Tanglegrove Townhouse Condominium Ass’n, 877 S.W.2d 489 (TexApp.—Texarkana 1994, writ denied), in which the court of appeals reinstated a jury verdict holding an association liable for breaching a fiduciary duty to the condominium owners. Neither Harris nor Sassen, however, involves allegations against the condominium board’s members, individually, and neither supports Appellants’ argument that all actions of the Board can be attributed to each Board member individually without proof of that member’s own actions. These cases thus have no bearing on this appeal; :
Appellants failed to demonstrate that any particular Board member took any action that constituted a tort or breach of fiduciary or contractual duty. They further failed to demonstrate that any particular Board member had any duty to act in a particular manner, independently of the rest of the Board, but failed to act accordingly. The individual defendants were therefore entitled to a directed verdict on the claims against them. We overrule Appellants’ first issue.6
II. Council’s cross-appeal: Evidence of feasibility of repairs
We next turn to the Council’s second argument, that the evidence was legally insufficient to establish that it should have challenged the City’s substantial-damage determination and that the failure to raise such a challenge damaged the plaintiffs. Specifically, it argues that the condominium owners’ claims all hinge on the premise that The Landing cotrld have been repaired and restored to pre-hurri-cane status but for the Council’s failures and inactions. According to' the Council, there is no evidence to support that theory, as the evidence that repairs were feasible — the evidence upon which any challenge to the City’s determination would have been brought — was either rejected by the City or unavailable before the May 26, 2010 deadline for the application for a repair or demolition permit. Thus, the Council argues that there is no evidence that the Board could or should have appealed, that such an appeal would have been successful, or that the failure to a‘ct damaged the plaintiffs.
When a party challenges the legal sufficiency of the evidence supporting a judgment, the reviewing court must look at all of the evidence admitted and determine whether, after disregarding all evidence that a reasonable trier-of-fact could disregard, more than a scintilla of evidence supports the judgment. City of Keller v. Wilson, 168 S.W.3d 802, 827-28 (Tex.2005). Evidence is legally insufficient if the rec*888ord reveals the “complete absence of evidence of a vital fact”; if the only evidence supporting a judgment is incompetent, such that a court cannot consider it; if “the evidence does not rise above a scintilla [such that] ... jurors would have to guess whether a vital fact exists”; or if the evidence “conclusively establishes the opposite of a vital fact.” Id. at 811-14. In conducting a legal-sufficiency analysis, we review all of the evidence in the light most favorable to the verdict. Id. at 822.
We begin by noting that the jury did not make any explicit findings of the sort of which the Council complains. The jury charge did not ask whether the Council should have challenged the substantial-damage determination or whether the failure to mount such a challenge damaged the plaintiffs. Rather, to the extent the jury considered any such questions, it would have done so only in the process of answering questions actually presented in the jury charge. The question before us, then, is not whether sufficient evidence supports the hypothetical findings that the Council attacks, but whether the purported absence of evidence to support those findings undermines the verdict that the jury actually made and upon which the judgment relies. See id. at 827-28.
The plaintiffs elected breach of contract as their remedy. As such, they recovered damages only for the Council’s breach of the bylaws and declarations. The plaintiffs presented evidence at trial that the Council breached its obligations under these documents in numerous ways,, including by failing to timely call and hold an Article 12 meeting, by failing to take actions to mitigate the damage caused by the hurricane and fire, by failing to pay out or use insurance proceeds in a timely manner, by ceasing to make and collect assessments, and by demolishing The Landing without a proper vote by the co-owners. The plaintiffs also presented evidence that The Landing could have been repaired, but its condition deteriorated with the passage of time while the buildings lacked power and running water. The jury could have found that the Council breached its obligations under the declarations and bylaws and damaged the plaintiffs in a number of ways; it was not limited to deciding upon the failure to appeal the substantial-damage determination. We hold that legally sufficient evidence supported the jury’s findings regarding breach of contract and resulting damages. See id. at 811-14.
Because legally sufficient evidence supports the jury’s breach-of-contract findings, we overrule the Council’s second issue.
III. Council’s cross-appeal: Damages
The Council also argues that the damages awards must be overturned because (1) the plaintiffs’ expert failed to account for the residual value of the land associated with The Landing, (2) the expert made and acknowledged an error in calculating damages attributable to plaintiff Genzer’s unit, and (3) the award of damages allows for a double recovery, given that the plaintiffs have already received insurance proceeds.
The admission of expert testimony is governed by Rule of Evidence 702. See E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 554 (Tex.1995). “Expert testimony is admissible if (1) the expert is qualified, and (2) the testimony is relevant and based on a reliable foundation.” Cooper Tire & Rubber Co. v. Mendez, 204 S.W.3d 797, 800 (Tex.2006). Expert testimony is unreliable if it is no more than subjective belief or unsupported speculation. Robinson, 923 S.W.2d at 557 (quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 599, 113 S.Ct. 2786, 2800, 125 L.Ed.2d 469 (1993)). Expert *889testimony is also unreliable if there is too great an analytical gap between the data the expert relies upon and the opinion offered. Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 727 (Tex.1998). In applying this reliability standard, the trial court determines whether the analysis used to reach the expert’s conclusions is reliable. Id. at 728.
When a party challenges an expert opinion as unreliable and constituting no evidence, we independently consider whether the evidence at trial would enable reasonable and fair-minded jurors to reach the verdict. Whirlpool Corp. v. Camacho, 298 S.W.3d 631, 638 (Tex.2009). “[A] no-evidence review encompasses the entire record, including contrary evidence tending to show the expert opinion is incompetent or unreliable.” Id.
A. Method of calculating damages
The Council argues that plaintiffs’ damages expert, David Dominy, failed to account for the value of the land upon which The Landing once stood and in which each plaintiff holds an undivided interest. Under Texas law, “Condominium ownership is the merger of two estates in land into one: the fee simple ownership of an apartment or unit in a condominium project and a tenancy in common with other co-owners in the common elements.” Dutcher v. Owens, 647 S.W.2d 948, 949 (Tex.1983). According to the Council, Dominy’s testimony accounted only for the former, ignoring the latter, and his methodology was thus unreliable for purposes of calculating the fair market value of each plaintiffs ownership interest.
The Council argues that Dominy’s opinion therefore should have accounted for both the value of the now-demolished buildings and the value of the land in order to be reliable evidence of market value of the plaintiffs’ ownership interests. Domi-ny defined “market value” as “the price that a willing buyer would pay a willing seller, assuming neither party were under duress.” But a condominium owner may not sell a unit without also conveying that ownership share of the property owned in common with the other condominium owners. Id.
' In the critical portion of Dominy’s testimony, he was asked, given that plaintiff “Genzer’s unit had been demolished ... what value does Mr. Genzer’s unit have?” He answered, “Zero.” Immediately after Dominy gave this answer, the Council’s attorney conducted the following cross-examination:
Q. It has a zero value, are you aware that there’s property that’s he got an interest that he can recover? I mean, he’s still got the property value, did you not take that into consideration when you did this?
A. He asked me what that unit was worth, and that unit is worth zero.
Q. What Mr. Genzer is entitled to as a unit owner is a percent of the total, correct, in this case, the total of the property?
A. I agree with that.
Q. So, in fact, what the value that Mr. Genzer, as an example, and all the plaintiffs have in that property, they would still have a percent of the value that the property is worth?
A. They have a residual interest, they don’t have the value of their unit as they had it before.
(Emphasis supplied.)
Contrary to the Council’s- characterization, Dominy’s testimony that the value of Genzer’s “unit” is zero did not ignore the value of plaintiffs’ interests in the land. Rather, Dominy ■ explicitly acknowledged that the plaintiffs still have “a residual interest” in common elements of the prop*890erty. Throughout the questioning, Domi-ny used “uflit” in a manner that referred specifically to certain improvements on the land (i.e., the particular condominium “units”), sepárate and apart from a 'plaintiffs joint ownership interest in the commonly-owned land and improvements. The jury could have understood Dominy’s testimony as addressing the pre-casualty and post-demolition values of plaintiffs’ individual ownership interests in the improvements. No party contended that The Landing’s actions damaged the land; only the portion of market value attributable to the improvements was in dispute.
The calculations Dominy made were supported by testimony about his methodology, his experience appraising real estate, comparable buildings in the area, and various other facts that he identified as bases for his opinions. They did not consist only of subjective beliefs or unsupported speculation. On the contrary, while Dominy testified as to his methodology in detail, the Council did not attempt to demonstrate that his methods were Unreliable under the Robinson factors. Instead, it simply argues on appeal that Dominy’s testimony can be understood only as assigning no value to the land or as having included the land in the appraisal of pre-casualty value, but not in his determination of post-casualty value.. According to the Council, either understanding would be incompatible with the evidence at trial that the land has a positive value, rendering Dominy’s testimony unreliable. We disagree that these are the only reasonable interpretations of Dominy’s testimony regarding the value of Genzer’s “unit.”
We hold that Dominy’s testimony regarding the valuation of the plaintiffs’ “units”' was sufficiently reliable to support the jury’s Verdict regarding the plaintiffs’ damages. See Cooper Tire, 204 S.W.3d at 800; Robinson, 923 S.W.2d at 557.
B. Plaintiff Genzer’s unit
The Council next argues that Dominy made and admitted to a calculation error in determining the value of the unit belonging to plaintiff Frank Genzer, Jr., and that this error requires a new trial. Dominy performed two appraisals of units at the Landing. In the first appraisal, he calculated the valuations of the units twice, using two effective dates in December 2010, just before and just after the fire. ' In that appraisal, he stated the size of Genzer’s unit as 981 square feet. In the second appraisal, he calculated the values with an effective date in September 2012 and stated the size of Genzer’s unit as 1,887 square feet.
According to the Council, Pommy’s first appraisal is evidence of the correct size of Genzer’s unit. The jury, however, awarded damages in the amount that Dominy calculated in the second appraisal, using the larger size. Specifically, Dominy calculated $70 .as the value per square foot of Genzer’s unit. Multiplying by 1,887 square feet and adding a $20,000 premium for Genzer’s boat slip, he arrived at a total value for Genzer’s unit of $152,090, and the jury awarded damages in this amount. According to the Council, Dominy should have used 981 square feet in his calculations, resulting in a value of no more than $88,670.
The Council argues that Dominy admitted that he used the wrong square footage. Specifically, it points to the following testimony:
Q. Okay. We compare that 83,765 in December of 2010 to the September 2012 number of 152,000, correct?
A. Well, the difference is the unit size. Those would be in “C-l-C” unit.
Q. You have identified it as a “B” unit, but you’re saying it should be “C-l-C?”
*891A. Let me see here just a second. Well, it is supposed to be [a] 1,887 square-foot unit, and for some reason on this other chart, it shows up as a 987 square-foot unit.
Q. So the calculations are wrong in one of the exhibits?
A. Well, probably just the designation of a number was wrong in the first report.
According to the Council, Dominy thus admitted that he made a calculation error by using the 1,887 square-foot size. Domi-ny’s testimony clearly stated the opposite: the 1,887 square-foot size was correct, and the earlier report incorrectly used a smaller size. No other testimony addresses the size of Genzer’s unit.
The Council also points to the declaration establishing The Landing, which states the size of unit 144, Genzer’s unit, as 981 square feet. According to the Council, this conclusively demonstrates that Domi-ny’s assumptions regarding the facts were incorrect; rendering his testimony legally insufficient to support the judgment. We disagree that the square-footage number in this document, a number about which the record contains no testimony, conclusively established the size of the unit as 981 square feet, much less that Dominy’s valuation of Genzer’s unit was necessarily unreliable or incorrect.
“It is the province of the jury to resolve conflicts in the evidence.” City of Keller, 168 S.W.3d at 820. “Accordingly, courts reviewing all the evidence, in a light favorable to the verdict must assume that jurors resolved all conflicts in accordance with that verdict.” Id. Here, the jury was entitled to accept Dominy’s testimony regarding which report was in error and regarding the size of Genzer’s unit. Accordingly, we reject the Council’s argument that the purported error in valuation of one unit requirés a new trial: '
C. Double recovery
The Council also argues that the trial court’s judgment permits a double recovery, allowing the co-owner plaintiffs to profit from a casualty by recovering both insurance proceeds and damages for their claims against the Council. For example, Mary Lou Durham, though not herself a plaintiff at trial, testified that she intended to collect both insurance proceeds and damages from the Council. And as the Council correctly observes, undisputed testimony established that various plaintiffs received' insurance payments for the damages suffered during the hurricane and fire. But as Appellants point out in response, the Council did not plead’ offset as an affirmative defense, nor did it obtain any jury findings on the amounts of the plaintiffs’ insurance payments.
A party who argues that a judgment should be discounted by insurance proceeds or that a damages award is unrecoverable in whole or part due to payment of such proceeds is asserting the defense of offset. Brown v. Am. Transfer & Storage Co., 601 S.W.2d 931, 936 (Tex. 1980). .“The right of offset is an affirmative defense.” Id. “The burden of pleading offset and of proving facts necessary to support it are on the party making the assertion.” Id, (citing Sw. Bell Tel. Co. v. Gravitt, 551 S.W.2d 421 (Tex.Civ.App.— San Antonio 1977, writ refd n.r.e.)); see also TexR. Civ. P. 94. But the Council did not plead offset as a defense, nor did it object to the jury' questions regarding damages or request alternative questions. The argument is therefore waived. See Tex. R. ' Civ. P. 272, 274; Brown, 601 S.W.2d at 936.
IV. Plaintiffs’ appeal: Prejudgment Interest
In their second issue, Appellants argue that the trial court erred by calculating *892prejudgment interest using a “trigger date” of November 20, 2012. They argue that the correct date is 180 days' from September 26, 2008, when Appellants first gave written notice of their claim, or, alternatively, September 10, 2010, when they filed suit.
Prejudgment interest is governed by Section 304.104 of the Texas Finance Code, which provides, “Except as provided by Section 304.105 or 304.108, prejudgment interest accrues on the amount of a judgment during the period beginning on the earlier of the 180th day after the date the defendant receives written notice of a claim or the date the suit is filed and ending on the day preceding the date judgment is rendered.” Tex Fin. Code § 304.104. “A ‘claim’ is ‘a demand for compensation or an assertion of a right to be paid.’ ” Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 531 (Tex.1998) (quoting Robinson v. Brice, 894 S.W.2d 525, 528 (Tex.App.— Austin 1995, writ denied)). A defendant has notice of a claim for purposes of prejudgment interest only if the plaintiffs written notice communicates that the plaintiff is claiming a right to compensation and provides enough information that the defendant could plausibly settle the claim without incurring interest. M; see also Owens-Ill, Inc. v. Estate of Burt, 897 S.W.2d 765, 769 (Tex.1995).
Appellants first argue that they gave written notice of their claim on- September 26, 2008, and that prejudgment interest should therefore run from 180 days after that date. The purported notice in question is an email from Mary Lou Durham (an officer of condominium.owner and plaintiff Bull Capital) to Andrew Rosenberg (who became a Council Board Administrator in 2009, but was not an Administrator in 2008). In a series of emails, Durham explained that she was dissatisfied with the Board’s handling of the damages inflicted by Hurricane Ike two weeks earlier and described meeting with an attorney. . Rosenberg discussed the attorney in question and opined, in an email on September 27, that Rick Butler, the Council’s attorney, had violated The Landing’s bylaws. The document did not make a demand; that anyone pay money to anyone else, nor did it specify any amounts by which anyone had been damaged or any reasons why such a payment should be made.
Durham was not a plaintiff at the time of trial or when judgment was rendered. Although she initially participated in the suit in. her role as an officer of Bull Capital, she ceased to be a party before trial. Moreover, Rosenberg was not on the Board at the time of the email in question.
We also note with respect to this document that Durham testified she was not contemplating a lawsuit when she wrote the email. Appellants argue that Board President Jenkins nonetheless interpreted the email as a threat of a lawsuit. But Jenkins testified only that Durham was “threatening lawsuits” at the time the Board decided not to proceed with the improperly called Article 12 vote in the fall of 2008, He explained that the threats were “[o]ver calling an Article 12 meeting.” He made no mention of any demand for payment of a claim. Appellants also rely on statements during argument by the defendants’ counsel that plaintiffs gave notice of their intent to sue within two weeks of the storm. The arguments of counsel are not evidence, and mere notice of the intent to sue is not legally sufficient to establish a written claim for these, purposes because a demand of compensation must be included. See Johnson & Higgins, 962. S.W.2d at 531.
We hold that the September 26, 2008 email from Mary Lou Durham, a nonplain-*893tiff, to Andrew Rosenberg, who was not then a member of the Board and thus not liable for any actions taken by the Board during the relevant time period, did not constitute a claim for purposes of triggering the accrual of prejudgment interest. See Tex. Fin.Code § 304.104; see also Lee v. Fenwick, 907 S.W.2d 88, 89-90 (Tex.App.—Eastland 1995, writ denied) (actual receipt of written notice by potential defendant is statutory requirement).
Alternatively, Appellants argue that prejudgment interest should run from the date when they filed suit in 2010. But prejudgment interest does not always run from the date on which a plaintiff files suit. Rather, the relevant date is that on which the plaintiff asserted the claim which ultimately results in a recovery. See, e.g., 1-10 Colony, Inc. v. Lee, 393 S.W.3d 467, 480 (Tex.App.—Houston [14th Dist.] 2012, pet. denied); Tex Star Motors, Inc. v. Regal Fin. Co., 401 S.W.3d 190, 203-04 (Tex.App.—Houston [14th Dist.] 2012, no pet.); see also Citizens Nat’l Bank v. Allen Rae Invs., Inc., 142 S.W.3d 459, 487-87 (Tex.App.—Fort Worth 2004, no pet.).
For example, in Tex Star Motors, Inc. v. Regal Finance Co., 401 S.W.3d 190 (Tex. App.—Houston [14th Dist.] 2012, no pet.), the plaintiff first asserted the claims on which it later recovered, in an amended petition. Tex Star Motors, 401 S.W.3d at 204. The defendant had no notice of those claims until the filing of the amended petition. Id. The court of appeals held that the plaintiff could recover prejudgment interest only from the date of the amended petition. Id.-, see also 1-10 Colony, 393 S.W.3d at 480.
In this case, the plaintiffs initially asserted only one claim: that the Council and the Board were negligent in failing to prepare for and respond to Hurricane Ike. They asserted five theories of liability: (1) failure to .ensure that • vessels were removed from, the marina or properly .secured before the storm; (2) failure to repair structures after the storm; (3) failure to appeal Smith’s substantial-damage determination; (4) waste of assets after the storm that could have been used for repairs; and (5) “other acts and omissions.” They eventually elected to recover their damages based solely on the Council’s breaches of two contracts: the bylaws and declarations. But the original petition did not contain a breach-of-contract claim. Rather, the plaintiffs asserted their breach-of-contract claim in their seventh amended petition, filed November 20,2012.
Moreover, the sole measure of damages submitted to the jury was the fair market value of each of the plaintiffs condominiums as if they had been repaired to pre-hurricane condition. This measure of damages was only relevant in the event that a property was found to be totally destroyed or damaged beyond repair; it would not have been proper for any damage to the property that could be repaired. When repairs are economically feasible, the proper measure of damages is the cost of repair; the diminution in market value of the property is the correct measure only when it is less than the cost of repairs. See N. Ridge Corp. v. Walraven, 957 S.W.2d 116,119 (Tex.App.—Eastland 1997, pet. denied); B.A. Mortg. Go., Inc. v. McCullough, 590 S.W.2d 955, 957 (Tex.Civ.App.—Fort Worth 1979, no writ). The total destruction of The Landing occurred at its demolition in April 2011, after the plaintiffs filed their original petition. That petition could not have served as notice of a claim that had not yet accrued.
Because neither the September 26, 2008 email nor the plaintiffs’ original petition put the defendants on notice of the claim upon which the plaintiffs ultimately recovered, prejudgment interest did not begin *894to accrue until the plaintiffs asserted their breach of contract claim. We hold that the trial court did not err in calculating prejudgment interest from November 20, 2012.
V. Wheelbarger’s claims for declaratory judgment and attorney’s fees
In her final issue, Wheelbarger argues that the trial court erred by denying her claims for declaratory relief and attorney’s fees.7
A. Declaratory relief
The judgment denied the request ed declaratory relief on two bases. ■ First, the trial court found “that the Declarations requested would affect the rights of all condominium owners and therefore all condominium owners [are] necessary parties to this Iitigatiop [but] not all condominium owners are parties to this litigation.” Second, it found that Wheelbarger’s pleadings did not support all of the requested declarations.' Wheelbarger challenges both of these reasons, arguing that (1) her pleadings support the requested declarations, (2) she obtained jury findings sufficient to support the declarations, (3) joinder of the other co-owners of The Landing was not required, and (4) she is entitled to attorney’s fees because the jury found that she was “adversely affected” by the Council’s actions.
Declaratory judgments are authorized by Section 37.003 of the Civil Practice and Remedies Code, which provides, “A court of record within its jurisdiction has power to declare rights, status, and other legal relations whether or not further relief is or could be claimed.” Tex. Civ. PRAc. & Rem.Code § 37.003(a). A trial court’s decision to enter or refuse a declaratory judgment therefore rests within the sound discretion of the trial court; See, e.g., Space Master Int’l, Inc. v. Porta-Kamp Mfg. Co., Inc., 794 S.W.2d 944, 947 (Tex.App.—Houston [1st Dist.] 1990, no pet.).
“It is ... within the discretion of the trial court to refuse to enter a declaratory judgment or decree if the judgment or decree would not terminate the uncertainty or controversy giving rise to the proceeding.” Id.; see also Spaw-Glass Constr. Corp. v. City of Houston, 974 S.W.2d 876, 878 (Tex.App.—Houston [14th Dist.] 1998, pet. denied); Scurlock Permian Corp. v. Brazos Cnty., 869 S.W.2d 478, 486 (Tex.App.—Houston [1st Dist.] 1993, writ denied). “The Declaratory Judgments Act was never intended to provide for the piecemeal litigation of lawsuits.” Space Master Int’l, 794 S.W.2d at 947 (citing United Serv. Life Ins. Co. v. Delaney, 396 S.W.2d 855, 858 (Tex.1965)).
Wheelbarger first argues that her live pleading requests findings that track the language of the declarations that she ultimately sought. Her live pleading requested four declarations relating to her claims against the Council and the Board members:
1. That a vote of the members of the Association to demolish The Landing was required before the Board of Administrators of the Association would have been permitted to seek a permit for and proceed with the demolition of the Landing Condominium Complex;
2. In order for the Association’s Board of Administrators to have proceeded *895to seek a permit for demolition of The Landing Condominium Complex (and then actual demolition), a vote of no less than 75% of the members of the-Association would have been required to approve such demolition;
3. The appeal requested by members of the Supporting Owners regarding the City’s “substantial damage” determination must be completed prior to a vote of the members of the Association on demolition and termination of the condominium regime; and
4. The Texas Property Code required The Landing Condominium Complex to be rebuilt or repaired unless the ' exceptions and required vote set forth in either 81.206 or 82.111(i) of the Texas Property Code were satisfied.
By contrast, in her proposed judgment Wheelbarger sought the following declarations:
1. Following Hurricane Ike in September 2008, The Landing Council of Co-Owners had a mandatory duty under Texas law to repair and rebuild all portions of The Landing Condominium Complex damaged by Hurricane Ike;
2. The Landing Council of Co-Owners failed to timely call and hold a Special Meeting of Co-Owners under Article XII of the Declarations following Hurricane Ike;
3. The legal consequence of failing to timely call and hold a Special Meeting of Co-Owners under Article XII of the Declarations following Hurricane Ike is that the Landing Council of Co-Owners’ duty to repair and rebuild the portions of The Landing Condominium Complex that was damaged by Hurricane Ike is unabated and still remains;
4. Following the fire in December 2010, The Landing Council of Co-Owners had a mandatory duty under Texas law to repair and rebuild all portions of The Landing Condominium Complex that was damaged by such fire;
5. At a Special Meeting of Co-Owners under Article XII of the Declaration held less than forty (40) days after such fire, less than sixty-seven percent (67%) of the Co-Owners of The Common Elements voted in favor of finding that more than two-thirds of The Landing Condominium Complex required reconstruction because of the fire or other casualty;
6. The legal consequence of obtaining less than 67% of the vote of the Co-Owners of The Common Elements in The Landing is that the Landing Council of Co-Owners’ duty to repair and rebuild the portions, of The Landing. . Condominium Complex that was damaged by such fire is unabated and still remains;
7. All insurance proceeds paid to the Landing Council of Co-Owners, as a result of. either Hurricane Ike or the fire,, less the expenses of the Trustee, are required to be used to repair and rebuild the portions of The Landing Condominium Complex damaged by Hurricane Ike or the fire, as applicable;..
8. The condominium regime of the Landing Condominium Complex has not been and may not be terminated pursuant to Article XII or Article XIII of the Declarations as a result of Hurricane Ike or the fire in December 2010; and
'9. The Board of Administrators of The Landing Council of Có-Owners does not have any authority to market or sell any portion of the Common Ele*896ments, including, but not limited to, the land.
There is no clear relationship between any of the declarations that Wheel-barger sought in her motion for entry of judgment and the claims for declaratory relief on which she proceeded to trial. On the contrary, the relief that Wheelbarger sought after trial is both significantly different and significantly greater than that requested in her pleadings. A trial court commits reversible error if it grants relief beyond that requested in the parties’ pleadings. Binder v. Joe, 193 S.W.3d 29, 33 (Tex.App.—Houston [1st Dist.] 2006, no pet.).
Moreover, the factual findings that Wheelbarger obtained from the jury do not support her requested declarations. The jury made only three findings of relevance to this issue. First, it found that the Council failed to obtain the consent of all co-owners and their first-lien mortgagees before obtaining a demolition permit and demolishing The Landing. Second, it found that the Council prevented the “Concerned Owners of The Landing Condominiums” from proceeding with their attempted appeal of the substantial-damage determination. Third, it found that at the Article 12 meeting in January 2011, fewer than 67% of the co-owners of The Landing’s common elements voted to find that more than two-thirds of The Landing required reconstruction because of the fire or other casualty. These findings do not support any of the declarations requested by Wheelbarger in either her live pleading or motion for entry of judgment.
Because the requested declarations are not supported by Wheelbarger’s pleadings or by the questions submitted to the jury, we hold that the trial court did not abuse its discretion in denying declaratory relief.
B. Attorney’s fees
Wheelbarger also contends that the trial court should have awarded her attorney’s fees because the jury found that she was “adversely affected” by the Council’s failure to comply with the bylaws, declarations, and Property Code. She relies on Section 82.161 of the Texas Property Code, which provides:
(a) If a declarant or any other person subject to this chapter violates this chapter, the declaration, or the bylaws, any person or class of persons adversely affected by the violation has a claim for appropriate relief.
(b) The prevailing party in an action to enforce the declaration, bylaws, or rules is entitled to reasonable attorney’s fees and costs of litigation from the nonprevailing party.
Tex. Peop. Code § 82.161. The jury found that the Council violated Section 82.111(i) of the Property Code, The Landing’s bylaws, and the declarations, and that these violations “adversely affected” Wheelbar-ger. According to Wheelbarger, she is therefore entitled to recover her attorney’s fees. Under the statute, however, she can do so only if she is a “prevailing party.”
It is well-settled under Texas law that “to prevail, a claimant must obtain actual and meaningful relief, something that materially alters the parties’ legal relationship.” Intercont’l Grp. P’ship v. KB Home Lone Star L.P., 295 S.W.3d 650, 652 (Tex.2009); see also Farrar v. Hobby, 506 U.S. 103, 109-10, 113 S.Ct. 566, 572, 121 L.Ed.2d 494 (1992). This rule applies in the context of Section 82.161: to qualify as a “prevailing party,” Wheelbarger must show not only that she was “adversely affected” but also that she suffered damages or otherwise obtained affirmative relief from the trial court. See Buttross V., Inc. v. Victoria Square Condo. Homeowners’ Ass’n Inc., No. 03-09-00526-CV, 2010 WL 3271957, at *3-4 (Tex.App.—*897Austin Aug. 18, 2010, pet. denied) (mem. op.). She obtained no relief from the trial court, however, and therefore she is not a prevailing party within the meaning of Section 82.161.
Because ■ Wheelbarger has not demonstrated that the trial court erred in denying her declaratory relief or attorney’s fees, we overrule her third issue.
VI. Council’s cross-appeal: Attorney’s fees
In the Council’s final issue, it argues that we should modify the trial court’s judgment to exclude attorney’s fees. It contends that the jury’s findings regarding violations of the Property Code cannot sustain the fees award. It further argues that the trial court erred by refusing to submit a question on excuse due to impossibility as an affirmative defense to the plaintiffs’ breach-of-contract claims, and therefore the breach-of-contract findings also cannot sustain the fees award. Specifically, it argues that it was entitled to a question regarding whether performance under the bylaws and declaration was impossible, excusing the Council’s breaches of those agreements.
A prevailing party is entitled to recover attorney’s fees incurred in pursuing a claim for breach of contract. Tex. Civ. Peac. & Rem.Code § 38.001(8). Here, the plaintiffs recovered damages for breach of the bylaws and declaration and elected those damages as their remedy. The Council argues that the omission of a question regarding the affirmative defense of excuse renders the judgment unsupportable and, along with it, the recovery of attorney’s fees.
At the charge conference, the Council requested the inclusion of the question: “Was Defendants’ failure to comply [with the bylaws or declaration] excused?” They requested as the accompanying proposed instruction: “Failure to comply by the Landing is excused by Plaintiffs’ previous failure to comply with a material obligation of the same agreement.” They also asked the trial court to add an instruction to the breach-of-contract liability questions that the Council’s failure to comply was excused if the plaintiffs waived performance. None of the requested questions or instructions relates to impossibility of performance. , The trial court refused the requested question and instructions. See Tex. R. Civ. P. 276.
By contrast, on appeal, the Council argues that the trial court should have submitted a question on excuse due to impossibility. It argues that a third party’s failure to mail notices of the Article 12 meeting, combined with delays in mail delivery and the dispersion of The Landing’s residents after the hurricane, made it impossible to hold that meeting-in a timély manner. It also argues that changes in the City of El Lago’s building codes made it impossible for the Council to repair the property to the pre-storm condition or to use insurance proceeds for that purpose.
A party is obligated to present its objections to the charge “before the charge is read to the jury.” Tex.R. Civ. P. 272. The objection must be specific; “[a] party objecting to a charge must point out distinctly the objectionable matter and-the grounds of the objection.” Tex. R. Civ. P. 274; Ford Motor Co. v. Ledesma, 242 S.W.3d 32, 43 (Tex.2007). Moreover, the party’s objection must have “stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context.” Tex.R.App. P. 33.1(a). . A party must “clearly designate the alleged error and specifically explain the basis of its. com*898plaint in its objection to the charge.” Hamid v. Lexus, 369 S.W.3d 291, 296 (Tex.App.—Houston [1st Dist.] 2011, no pet.) (quoting Carousel’s Creamery, L.L.C. v. Marble Slab Creamery, Inc., 134 S.W.3d 385, 404-05 (Tex.App.—Houston [1st Dist.] 2004, pet. dism’d)).
’ Failure to object timely to error in a jury charge constitutes a waiver of that error. Tex. R. Crv. P. 272. “Any complaint as to a question, definition, or instruction, on account of any defect, omission, or fault in pleading, is waived unless specifically included in the objections.” Tex. R. Crv. P. 274. A party also waives an objection when it is “obscured or concealed by voluminous unfounded objections, minute differentiations or numerous unnecessary requests.” Id.-, Dallas Cnty. v. Crestview Corners Car Wash, 370 S.W.3d 25, 53 (Tex.App.—Dallas 2012, pet. denied). “Failure to submit a question shall not be deemed a ground for reversal of the judgment, unless its submission, in substantially correct wording, has been requested in writing and tendered by the party complaining of the judgment; provided, however, that objection to such failure shall suffice in such respect if the question is one relied upon by the opposing party.” Téx R. Civ. P. 278. “Failure to submit a definition or instruction shall not be deemed a ground for reversal of the judgment unless a substantially correct definition or instruction has been requested in writing and tendered by the party complaining of the judgment.” Id. “Upon appeal all independent grounds of recovery or defense not conclusively established under the evidence and no element of which is submitted or requested are waived.” Tex. R. Civ. P. -279. ■
The Council’s arguments on appeal’do not comport with its requested' question and instructions at trial. Moreover, it identifies no evidence in the record, and we have not found any, supporting the questions and instructions that it actually requested regarding excuse due to prior material breach or excuse by waiver of compliance. Because the Council failed to present a question or instruction regarding excuse due to impossibility, it waived the right to complain on appeal that the charge omitted such questions or instructions. Tex.R. Civ. P. 278, 279; see also Tex.R. , Civ. P. 272, 274. And because it has not shown that the questions and instructions that it did request on the defense of excuse were supported by the evidence, it has not shown that the trial court erred in refusing the requests. E.g., Tex.R. Civ. P. 278 (questions and instructions must be supported by the evidence); see also Tex.R. Civ. P. 272 (parties must object); Tex.R. Civ. P. 274 (objection must be specific).
We hold that the trial court did not err by refusing to submit the. Council’s requested question and instructions on excuse,- and the jury’s findings that the Council breached the bylaws and declaration support the award of attorney’s fees. Tex. Crv. Prac. & Rem.Code' § 38.001(8). We therefore overrule the Council’s third issue.
Conclusion.
Having overruled all of the parties’ issues on appeal, we affirm the judgment of the trial court.
. The, officers of Bull Capital Company, Mary Lou Durham and James Durham, also sued in *883their capacities as officers. However, the Durhams were not identified as plaintiffs in the live petition at the time of trial, and they did not request or recover any damages at trial.
. Wheelbarger also named as third-party defendants the City of El Lago and Richard Smith in his official capacity, but those claims were severed from the remainder of the case and dismissed for lack of jurisdiction. This court affirmed the dismissal. Wheelbarger v. City of El Lago, 454 S.W.3d 55, 60 (Tex.App.—Houston [1st Dist.] 2014, pet. denied).
. The Meischens and Thomases, although plaintiffs at trial, do not appeal. Although the Durhams filed a notice of appeal and are identified as appellants in the parties’ briefs, they were not identified as plaintiffs in the live petition, the jury was not asked to award them damages, and they did not recover any relief at trial. Because they were not parties of record, they have no standing to appeal *884from the judgment. See Gunn v. Cavanaugh, 391 S,W.2d 723, 724 (Tex.1965); In re S.J., No. 14-11-00142-CV, 2011 WL 2150586, at *1 (Tex.App.—Houston [14th Dist.] June 2, 2011, no pet.) (mem.op.); Cent. Mut. Ins. Co. v. Dunker, 799 S.W.2d 334, 336 (Tex.App.—Houston [14th Dist.] 1990, writ denied); see also Tex.R.App. P. 25.1(b) ("The filing of a notice of appeal by any party invokes the appellate court’s jurisdiction.”). Because standing is a component of subject-matter jurisdiction, we lack jurisdiction over the Durhams’ attempt to appeal. See M.D. Anderson Cancer Ctr. v. Novak,. 52 S.W.3d 704, 708 (Tex.2001); Sosa v. Koshy, 961 S.W.2d 420, 424 (Tex.App.—Houston [1st Dist.] 1997, writ denied).
. Appellees argue that Wheelbarger has waived her arguments on this issue because no copy of her live pleading appears in the record. Wheelbarger concedes that no copy appears in the record as a standalone document. We note, however, that a copy does appear in the record as an attachment to the plaintiffs’ post-verdict brief in support of their amended joint motion for entry of judgment. No party challenges this document as inau*885thentic. In light of our disposition overruling this issue, we need not determine whether the pleading’s inclusion as an attachment to another document preserves this issue as to Wheelbarger. We therefore decline tp hold that Wheelbarger has waived her first issue.
. In light of this reasoning, we need not address Appellants’ arguments that the Charitable Immunity and Liability Act, Chapter 84 of the Civil Practice and Rerrfedies Code, does not confer immunity on the Board members or that that individual Board members are liable under a "general standard of care.” In the absence of evidence demonstrating the wrongful actions taken by individual Board members, the availability of immunity and the applicability of any particular standard of care are irrelevant.
. Appellants’ failure to present any evidence of actions taken by the individual defendants is dispositive of their claims against those individuals. We therefore do not reach the merits of Appellants’ arguments regarding the nature of any duties owed by members of the Board, to whom such duties are owed, or the availability of relief against the individual defendants in their individual capacities.
, Appellees again argue that Wheelbarger has waived this issue by failing to include her live pleading in the appellate record. For the same reasons that we declined to hold that Wheelbarger waived her challenge to the directed verdict, see supra note 4, we decline to hold that she waived her final issue. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284433/ | *57OPINION
Martha Hill Jamison, Justice
A staffing company placed a worker, later discovered to have a criminal history of theft, in a receptionist position at Davis-Lynch, Inc. (DLI). DLI later promoted the worker to head of accounting, and she embezzled millions of dollars. In two issues, DLI challenges the trial court’s grant of summary judgment in favor of appellees Asgard Technologies, LLC; Mangrove, Inc.; Talent Force, Inc.; Phoenix Offshore Services, L.L.C.; Talent Force Technical, L.L.C.; Asgard Resources, LLC; Asgard Resources of Texas, L.L.C.; and Arthur P. Grider (collectively, Asgard). Concluding that DLI raised a genuine issue of material fact regarding whether Asgard knew or should have known that, because of its acts of retaining the employee from year to year without disclosing her criminal record to DLI, the crime (or one like it) might occur, we reverse the trial court’s judgment as to DLI’s negligent retention claim and remand that issue to the trial court for proceedings consistent with our opinion. We affirm the trial court’s judgment in all other respects.
Background
DLI is an oilfield manufacturing company. Pendragon Holding, Inc., Asgard’s predecessor, was a staffing company. In 1986, DLI and Pendragon entered into a “Technical and Manufacturing Services Agreement.” The term of the agreement was for one year, but could be extended by mutual consent. Subsequent agreements were entered into between Asgard and DLI under substantially similar terms, with Asgard assuming the responsibilities of Pendragon. We refer to all relevant versions of these agreements" as “the Agreement.”
DLI outsourced its staffing and certain aspects of its management needs. Asgard or its predecessors provided personnel to DLI “to cover management, liaison, administrative, technical, maintenance, housekeeping, and clerical requirements.” As set forth in the Agreement, Asgard had continuing responsibilities to supervise personnel it placed at DLI and to supervise and operate certain departments, at DLL The personnel placed at DLI by Asgard continued to be Asgard employees even though they, worked at (and under the direction of) DLL In addition, Asgard provided a program manager “responsible for ensuring that operational, technical, and administrative ... requirements are satisfactorily performed.” The ' program manager supervised all personnel placed by Asgard at DLI “in the performance of [Agreement] requirements!” ’ Although DLI directly employed its upper management, Asgard was also to provide certain human resources functions.
Pendragon placed Nancy Moreno at DLI ,as a receptionist.1 In accordance with the staffing arrangement described above, Moreno, at all relevant times, was an employee of Asgard or one of its predecessors. Two years later, DLI promoted Moreno to accounting clerk. Moreno was supervised by Thurman Northam. Nort-ham was injured in a car accident and could not return to work. DLI’s president, Carl Davis,, and vice president, Frank Cole, promoted Moreno to head of accounting. Moreno hired several personnel to work in the accounting department, *58including close relatives. She had access to financial records; was responsible for accounts payable, accounts receivable, preparation of checks, assembling of invoices for approval by Davis; and had access to company credit cards.
Approximately eight years after Moreno’s promotion to head- of accounting, DLI discovered that Moreno had arranged for a DLI copy machine to be delivered to her son’s place of business. DLI terminated Moreno’s employment and then discovered that Moreno had embezzled over $15 million from DLI while she was working in the accounting department. DLI also learned that Moreno had been placed on deferred adjudication in 1995 for misdemeanor theft and convicted of another misdemeanor theft in 1999.
DLI sued Asgard, bringing claims for negligence, breach of fiduciary duty, and breach of contract and seeking damages of $15 million. Additional theories of liability included respondeat superior and the individual liability of appellee Arthur P. Gri-der.
Asgard filed separate traditional and no-evidence motions for summary judgment on similar grounds, contending that Asgard was not negligent in hiring or retaining Moreno because it had no duty to perform criminal background checks under the Agreement or Texas common law, Moreno’s actions were not foreseeable, Asgard was not negligent in supervising Moreno, Asgard’s actions were not the proximate cause of DLI’s damages, there was no breach of contract, Asgard did not breach any fiduciary duty to DLI, and Grider was not individually liable for any alleged wrongdoing of the staffing companies.2 Asgard also argued the affirmative defenses of quasi-estoppel, waiver, limitations, and laches precluded its liability.
DLI responded and moved to strike Gri-der’s affidavit, which was part of Asgard’s summary judgment evidence.3 The trial court denied the motion to strike, granted the traditional motion for summary judgment, and denied the no-evidence motion.4 Asgard subsequently filed a combined traditional and no-evidence motion for summary judgment on DLI’s respondeat supe*59rior claim. The trial court granted that motion without specifying the grounds.
Discussion
In two issues, DLI contends that the trial court erred in granting Asgard’s motions for summary judgment. In its first issue, DLI complains that the trial court erred in granting Asgard’s traditional motion and denying DLI’s motion for reconsideration of the traditional motion because (1) Asgard owed it a fiduciary duty to discover and disclose material facts concerning the criminal backgrounds of Asgard employees placed at DLI; (2) Asgard breached the Agreement by failing to perform background checks; (3) Asgard was negligent in-hiring and retaining Moreno; and (4) Grider is an alter ego of Asgard and thus personally liable. In its second issue, DLI argues the trial court erred in granting Asgard’s no-evidence motion-on the respondeat superior claim because Asgard, as Moreno’s employer, was liable for her actions.
We review de novo the trial court’s grant of summary judgment. See Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex.2009). In a traditional motion for summary judgment, the movant has the burden of establishing that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Id. (citing Tex. R. Civ. P. 166a(e)). The nonmovant has no burden to respond to or present evidence regarding the motion until the movant has carried its burden to conclusively establish the cause of action or defense on which its motion is based. State v. $90,235, 390 S.W.3d 289, 292 (Tex.2013). We consider all the evidence in the light most favorable to the nonmovant, crediting evidence favorable to the non-movant if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. See Fielding, 289 S.W.3d at 848.
The evidence raises a genuine issue of fact if reasonable and fair-minded jurors could differ in their conclusions in light of all of the summary-judgment evidence. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex.2007). When, as in this case, the order granting summary judgment does not specify the grounds upon which the trial court relied, we must affirm the summary judgment if any of the independent summary-judgment grounds is meritorious. $90,235, 390 S.W.3d at 292.
When a trial court grants a summary judgment on both no-evidence and traditional grounds, we usually address the no-evidence grounds first. See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex.2004); PAS, Inc. v. Engel, 350 S.W.3d 602, 607 (Tex.App.-Houston [14th Dist.] 2011, no pet,). However, if we conclude that we must affirm the trial court’s summary judgment ruling on traditional grounds, we need not review the no-evidence grounds. See Wilkinson v. USAA Fed. Sav. Bank Trust Servs., No. 14-13-00111-CV, 2014 WL 3002400, at *5 (Tex.App.-Houston [14th Dist.] Jul. 1, 2014, pet. denied) (mem. op.); see also Tex. R. App. P. 47.1.
I. No Fiduciary Duty
DLI argues Asgard owed fiduciary duties to conduct criminal background checks on Asgard employees placed at DLI, report the results to DLI, supervise those Asgard employees, “assure trustworthy personnel were assigned to” DLI, and indemnify DLI for its losses resulting from Moreno’s embezzlement. According to DLI, these duties arose out of (1) an agency relationship between Asgard and DLI created by the Agreement, and (2) Asgard’s employer-employee relationship with Moreno.5
*60Breach of fiduciary duty requires proof of (1) a fiduciary relationship between plaintiff and defendant, (2) breach of the fiduciary duty, and (3) damages arising from the breach, either injury to the plaintiff or benefit to defendant. Lundy v. Masson, 260 S.W.3d 482, 501 (Tex.App.Houston [14th Dist.] 2008, pet. denied). Due to its extraordinary nature, the law does not recognize a fiduciary relationship lightly. See Willis v. Donnelly, 199 S.W.3d 262, 278 (Tex.2006); Hoggett v. Brown, 971 S.W.2d 472, 488 (Tex.App.Houston [14th Dist.] 1997, pet. denied). Whether such a duty exists depends on the circumstances. Hoggett, 971 S.W.2d at 488.
No Agency-Principal Relationship Giving Rise to Formal Fiduciary Duties. DLI argues the Agreement created an agency-principal relationship between DLI and Asgard. The Agreement reads as follows:
[Asgard] is hired as an independent contractor, and ... nothing herein is intended to nor shall create the relationship of employee, partner, joint venture or associate, or any other relationship between DLI and [Asgard], except that of principal and independent contractor.
(Emphasis added). Despite the plain language of the Agreement, in which the parties described their relationship as that of “principal and independent contractor,” DLI asserts that the use of the word “principal” indicates a principal-agent relationship exists between the two, which in turn created a fiduciary relationship between them.
An agency relationship arises when the principal consents to the agent acting on the principal’s behalf. See Walker Ins. Servs. v. Bottle Rock Power Corp., 108 S.W.3d 538, 549 (Tex.App.-Houston [14th Dist.] 2003, no pet.). Essential to the principal-agent relationship is the principal’s right to control the acts of the alleged agent. Id.; see also Hand v. Dean Witter Reynolds, Inc., 889 S.W.2d 483, 493 (Tex.App.-Houston [14th Dist.] 1994, writ denied) (acknowledging that to be an agent the principal must control the agent’s ac tions and manifest consent to the agent acting on the principal’s behalf). The principal-agent relationship may be created through actual or apparent authority. See CNOOC Se. Asia Ltd. v. Paladin Res. (SUNDA) Ltd., 222 S.W.3d 889, 899 (Tex.App.-Houston [14th Dist.] 2007, pet. denied). Agency is the type of special relationship that gives rise to a fiduciary duty. See Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 200 (Tex.2002).
Here, the Agreement required Asgard, an independent contractor, to place Asgard employees' in DLI facilities. We look to the substance of the Agreement in determining the -exact nature of the relationship. See Nat’l Plan Adm’rs, Inc. v. Nat’l Health Ins. Co., 235 S.W.3d 695, 702-03 (Tex.2007). Despite using the word principal to describe DLI, Asgard is defined clearly in the Agreement as an “independent contractor,” not an agent. See id. at *61703 (declining to impose general fiduciary duty when agreement provided for “independent contractor” status). Executing the Agreement was an arms’ length business transaction between two sophisticated parties.. See id. The parties themselves defined the parameters of their respective roles, and- if they had intended to create a principal-agent relationship, they could have done so expressly. See id. We decline to impose a general fiduciary duty on Asgard in light of the plain language of the Agreement.6 See id.
No Informal Fiduciary Relationship Created. DLI also argues that Asgard owed DLI a fiduciary duty to provide it' with trustworthy employees', presumably because DLI and Asgard had a relationship of trust and confidence.7- An informal fiduciary duty may arise from certain relationships of trust and confidence. Meyer v. Cathey, 167 S.W.3d 327, 330-31 (Tex.2005). However, “[i]t is well settled that not every relationship involving a high degree of trust and confidence rises to the stature of a fiduciary relationship.” Id. at 330 (citation omitted). ■ ■
Informal fiduciary duties are not owed in business transactions unless the special relationship of trust and confidence existed prior to, and apart from, the transaction at issue in the case. Id. at 33Í. As the supreme court has held, “[M]ere subjective trust does not ... transform arm’s-length dealing into a fiduciary relationship.” Ins. Co. of N. Am. v. Morris, 981 S.W.2d 667, 674 (Tex.1998) (quoting Schlumberger Tech. Corp. v. Swanson, 969 S.W.2d 171, 177 (Tex.1997)).
We conclude that no special relationship giving rise to a fiduciary duty was created under the circumstances of this case. We reached the same conclusion in Dodson v. Kung, 717 S.W.2d 385 (Tex.App.-Houston [14th Dist.] 1986, writ ref'd n.r.e.). Dodr son and Rung met when Dodson was an employee at Rung’s golf club, and the two developed a mentor-mentee relationship. Id. at 387. Some, years later, Dodson went to work for Rung’s.company, and when a dispute arose, Dodson sued, claiming a breach of an informal fiduciary duty. Id. The trial court rendered summary judgment against Dodson on that issue, and we affirmed. Id. While ácknowledging that the relationship was one of business and friendship and that Rung “was in a superi- or position because of his wealth and business experience,” we observed that Dodson “was a grown man with considerable business sense.” Id. at 389. Most importantly, there was “no evidence that these men were not dealing at arm[’]s length and on equal terms.” Id. Accordingly, we held that no fact issue had been raised as to breach of a fiduciary duty. Id.
Here; DLI had .contracted with Asgard and its predecessors to obtain staffing for more than a decade. As in Dodson, there is no evidence that these parties were operating on. any basis other than an arm’s length relationship and on equal terms. See id. There are, therefore, no genuine issues of material fact as to the creation of an informal fiduciary relationship or, as a result, breach of fiduciary duty.
We conclude that Asgard conclusively established it owed no fiduciary duties to DLI, either formal or informal.
*62II. No Breach of Contract
As an initial matter, we must decide whether — as DLI contends — Asgard’s traditional motion for summary judgment was too narrow to encompass DLLs' breach of contract claim, as amended. DLI amended its petition after Asgard filed its motion. The amendment includéd DLI’s claims that Asgard (1) failed to investigate employees; (2) placed employees at DLI with criminal backgrounds; (3) failed to disclose such oversights; and (4) failed to indemnify DLI for the losses Moreno caused.
Wé conclude that these amendments were encompassed by Asgard’s motion. DLLs “failure to investigate” allegation is a restatement of its “failure to perform background check” claim, which was addressed fully in Asgard’s motion. The same is true with respect to DLLs contention regarding indemnity. As expressly set forth in the indemnity agreement, Asgard’s indemnity obligation arises only to the extent of Asgard’s negligence, which argument was raised and developed.8 See ConocoPhillips Co. v. Noble Energy, Inc., No. 14-13-00884-CV, 462 S.W.3d 256, 265 (Tex.App.-Houston [14th Dist.] 2015, no. pet. h.) (acknowledging courts interpret contracts in light of parties’ intentions as expressed in the instrument and construe indemnity agreements under normal rules of contract construction). Finally, DLLs “failure to disclose” claim was encompassed in the portion of Asgard’s motion addressing whether Asgard owed a duty to conduct criminal background checks. Accordingly, the trial court did not grant more relief than Asgard requested. See Wortham v. Dow Chem. Co., 179 S.W.3d 189, 202 (Tex.App.-Houston [14th Dist.] 2005, no pet.) (concluding motion was broad and directed to evidence' of duty owed or breached, so that later-filed claims were addressed) (citing Lampasas v. Spring Ctr., Inc., 988 S.W.2d 428, 436-37 (Tex.App.-Houston [14th Dist.] 1999, no pet.) (holding when amended petition merely reiterated essential elements in different form, the motion applied to the changed pleading)).
DLI argues that the Agreement required Asgard to perform background checks and that Asgard breached that contractual duty. The construction of an unambiguous contract presents a question of law that we review de novo.9 Tawes v. Barnes, 340 S.W.3d 419, 425 (Tex.2011); ConocoPhillips, 462 S.W.3d at 265. Our primary concern in interpreting a contract is to ascertain and give effect to the intentions of the parties as expressed in the instrument. J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 229 (Tex.2003). We therefore give terms their plain and ordinary meaning unless the contract indicates that the parties intended a different meaning. Dynegy Midstream Servs., Ltd. P’ship v. Apache Corp., 294 S.W.3d 164, 168 (Tex.2009). We. examine and consider the entire writing in an effort to harmonize and give, effect to all provisions of the contract, so that none will be rendered meaningless. J.M. Davidson, 128 S.W.3d at 229.
*63DLI argues the. following requirements imposed on Asgard in the Agreement created a duty for Asgard to perform background checks on .its employees: (1) “providing], adequate staff to meet production quotas and other requirements established by [DLI]”; (2) “providing] the necessary personnel to cover management, liaison, administrative, technical, maintenance, housekeeping, and clerical requirements”; (3) providing logistic support; (4) maintaining accurate records, abiding by DLI’s policies, maintaining confidentiality, complying with the manufacturing license, and protecting patents; (5) providing a program manager responsible for ensuring “that operational, technical, and administrative contract requirements are satisfactorily performed” through supervision of personnel, liaising with DLI, and managing and administering logistic support; and (6) indemnifying DLI to the extent of Asgard’s negligence.10
The plain language .of the Agreement does not require Asgard to perform background checks. The Agreement was negotiated at arm’s length between sophisticated parties. See FPL Energy, LLC v. TXU Portfolio Mgmt. Co., 426 S.W.3d 59, 67 (Tex.2014) (“[Sophisticated parties have broad latitude in defining the terms of their business relationship.”). If the parties had envisioned a background check requirement, they easily could have included it in the plain language of the Agreement. See id. (“We must construe contracts by the' language contained in the document, with a mind to Texas’s strong public policy favoring preservation of the freedom to contract.”). They did not do so here. We decline to read such a provision into the Agreement. See id. at 67-68 (noting parties strike the deal they choose to strike and bind themselves in the manner they choose and concluding parties’ omission of reference to .energy in liquidated damages provision of contract was critical) (citing Tenneco Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 646 (Tex.1996) (“We have long held that, courts will not rewrite agreements to insert provisions parties could have included,”)). Asgard has conclusively established that under the unambiguous terms of the Agreement, it did not have a contractual duty to perform background checks.
III. Negligence
DLI argues that Asgard had duties to “hire, supervise, and retain competent employees who [were] fit for the work they perform[ed]” and use ordinary care in retaining Moreno and ensuring that the individuals Asgard placed at DLI were “not thieves.” A negligence claim requires proof of circumstances giving rise to a legal duty owed by the defendant to the plaintiff, a breach of that duty, and damages proximately caused by that breach. Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 782 (Tex.2001); Clark v. PFPP Ltd.. P’ship, 455 S.W.3d 283, 287 (Tex.App.-Dallas 2015, no. pet. h.). Negligent hiring, supervision, and retention claims focus on the employer’s own negligence, not the negligence of thé employee. Clark, 455 S.W.3d at 287. An employer can be liable for negligence if its failure to use due care in hiring, supervising, or retaining an employee creates an unreasonable risk of harm to others. Id.
*64Although the supreme' court has yet to set out what duty an employer has in negligent hiring or supervision claims,- it has indicated that to recover on these theories, a, plaintiff must show more than just negligent hiring practices.11 Wansey v. Hole, 379 S.W.3d 246, 247 (Tex.2012) (per curiam). The plaintiff also must show it “suffer[ed] some damages from the foreseeable misconduct of an employee” who was hired, supervised or retained pursuant to the defendant’s negligent practices. Id.
Duty is a question of law for the court to decide based upon facts surrounding the occurrence in question. Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex.1990). In determining whether a duty exists, a court is to Consider several interrelated factors such as: (1) the risk involved; (2) foreseeability of the risk; (3) likelihood of injury; ■ and (4) the social utility of the actor’s conduct and the magnitude of the burden on the defendant. See id. Of all the factors considered, foreseeability of the risk is the foremost and dominant consideration. Id. Foreseeability means that a person of ordinary intelligence should have anticipated the dangers that his negligent act created for others. Missouri Pac. R.R. Co. v. Am. Statesman, 552 S.W.2d 99, 103 (Tex.1977).
As a general rule, “a person has no legal duty to protect another from the criminal acts of a third person.” Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749, 756 (Tex.1998). This is because the criminal conduct of a third party is a superseding cause that extinguishes any liability of the previous actor. See Phan Son Van v. Pena, 990 S.W.2d 751, 753 (Tex.1999). However, if a criminal’s conduct is a foreseeable result of the prior negligence of a party, the criminal act may not excuse that party’s liability. See id. To impose liability on a defendant for negligence in failing to prevent the criminal conduct of another, the facts must show more'than conduct that creates an opportunity to commit crime — they must show both that the defendant committed negligent acts and that it knew or should have known that, because of its acts; the crime (or one like it) might occur. Barton v. Whataburger, 276 S.W.3d 456, 462 (Tex.App.-Houston [1st Dist.] 2008, pet. denied).
Thus, for a legal duty to prevent the criminal conduct of another to arise, the crime must have been reasonably foreseeable at the time the defendant engaged in negligent conduct. Foreseeability exists if the actor, as a person of ordinary intelligence, should have anticipated the dangers his negligent act creates for others. D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex.2002). A danger is foreseeable if its general character might reasonably be anticipated, if not its precise manner. Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex.1992).
Determining whether a legal duty exists, including the foreseeability element, is typically a legal question. Union Pac. R.R. Co. v. Williams, 85 S.W.3d 162, 166 (Tex.2002); Salinas v. Briggs Ranches, 350 S.W.3d 218, 226 (Tex.App.-San Antonio 2011, no pet.). However, if the essential facts about foreseeability as an element of the defendant’s duty are disputed, the question, is a fact issue for the jury. Williams, 85 S.W.3d at 166. Evidence is disputed when it “does not conclusively establish the pertinent facts or the reason*65able inferences to be drawn” from those facts. Id. -
DLI cited a laundry list of allegedly negligent acts in its live petition. Certain of these revolve around the failure of Asgard to perform a background check on Moreno: negligent hiring, retention, investigation and screening, failure to discover criminal background, failure to run background checks, failure to disclose “suspicions,” and failure to disclose criminal background. Other allegedly negligent acts include failure “to implement proper policies, procedures, and protocols to ... manage ... and evaluate the Program Manager and other employees put in positions of control and importance at [DLI]” and “failure to properly manage and supervise.”
In its traditional motion for summary judgment, Asgard argued generally that it was not foreseeable that Moreno, a receptionist, would become head of DLI’s accounting department and engage in a high-dollar embezzlement scheme. Asgard also argued that the Agreement did not require background checks and none of the named defendants hired Moreno (rather, Moreno was hired by Pendragon, a Grider company but not a named defendant). As to negligent supervision, Asgard argued that the Agreement specified certain departments that Asgard was to supervise and that the accounting department, where Moreno worked when the embezzlement occurred, was not listed. With regard to negligent hiring and retention, Asgard contended that (1) it did not hire Moreno or have a duty to perform a background check on her; (2) DLI’s promotion of Moreno to head of accounting and her embezzlement were not reasonably foreseeable to Asgard; and (3) DLI did not perform background checks on its employees. Further, Asgard asserted Moreno was not subject to Asgard’s control and DLI prevented Asgard from supervising Morenb.
In its response, DLI argued that Asgard was required to conduct background checks by custom and by common law and because of the special relationship-between the companies. DLI also argued that Asgard admitted that, after 2002, it undertook to run background checks on all employees staffed at DLI and it learned of Moreno’s theft conviction while she was employed by Asgard but did not notify DLL
No Duty to Manage and Supervise. Asgard' was required under the Agreement to supervise its employees and has conceded that it did not supervise Moreno in her position as head of accounting. However, Asgard presented uncontróverted evidence that it had no duty to supervise Moreno in the accounting department because (1) the list of departments specified in the Agreement which Asgard was required to supervise did not include the accounting department; (2) accounting personnel were not under Asgard’s control; and (3) DLI prohibited Asgard from supervising accounting personnel.
Asgard submitted DLI president Carl Davis’s deposition in support' of the motion. Davis testified that Frank Cole, DLI’s vice president, transferred -Moreno to the accounting department. At that time, Moreno reported to Thurman Nort-ham. When Northam left DLI, Davis and Cole promoted Moreno to Northam’s-position.12 Moreno then reported primarily to *66Cole.13 Davis, Cole, and others at DLI gave Moreno her job assignments in the accounting department. Asgard did not have access to DLI’s financial statements or reports, checks or supporting documents prepared by Moreno for DLI’s accounting department, DLI’s accounting system, or vendor invoices and supporting documentation handled by the accounting department. Davis also testified that he did not know how Asgard could supervise Moreno in light of Asgard’s lack of access to the accounting records. Davis conceded that the only way for Asgard to supervise Moreno would be if DLI complained about her job performance. DLI presented evidence that Tom Grider, Asgard’s program manager, knew Moreno was doing some accounting work, but did not present evidence that Asgard was required to supervise that work.
We conclude Asgard conclusively established it had no duty to manage and supervise Moreno after she was transferred to the accounting department.
Negligent Hiring and Retention. As to the duty to perform a criminal background check, both parties cite Wise v. Complete Staffing Servs., Inc., 56 S.W.3d 900 (Tex.App.-Texarkana 2001, no pet.). Wise, an employee of Mrs. Baird’s Bakery, was attacked and severely injured by a temporary worker employed by a staffing company and placed at Mrs. Baird’s as an unskilled laborer. Id. -at 901. Wise alleged that the staffing company was negligent and grossly negligent in employing the temporary worker because it did not sufficiently investigate his criminal background and that the staffing company had a “special relationship” with the temporary worker and failed to adequately supervise his activities and adequately check his credentials. Id. Wise also alleged that because of its special relationship with the temporary worker, the staffing company had a duty to discover and warn Mrs. Baird’s about the temporary, worker’s criminal background. Id. The staffing company moved for summary judgment, contending that under the facts alleged by Wise, it had no general duty to seek or obtain criminal records of its employees, no special circumstance existed that would impose any heightened level of duty on it, and there was no evidence that it assumed such a duty. Id. at 901-02.
The Wise court analyzed whether the temporary worker was placed in a situation that foreseeably created a risk of harm to others because of his employment duties. Id. at 903. The court noted that the case was unlike Arrington’s Estate v. Fields, 578 S.W.2d 173, 178 (Tex.Civ.App.-Tyler 1979, writ ref'd n.r.e.), in which an employer was found liable for negligently hiring someone as a security guard when he had a long criminal record, as it was foreseeable that a customer might be harmed by an armed employee performing a hazardous job. Wise, 56 S.W.3d at 903. The Wise court concluded that its facts were closer to Guidry v. National Freight, Inc., 944 S.W.2d 807, 811-12 (Tex.App-Austin 1997, no writ), in which a truck driver sexually assaulted a third party and the court held such “bad acts” to be unforeseeable. Wise, 56 S.W.3d at 903. The employer’s duty in Guidry did not extend to investigating non-vehicular criminal backgrounds. Wise, 56 S.W.3d at 903. The Wise court held that, similarly, the temporary worker did not injure Wise as a result of incompetence or unfitness for the job, but by an intervening criminal act and the staffing company had no duty to check *67the criminal histories of its employees unless it was directly related to the duties of the job at hand. Id.
Applying the Wise court’s analysis here, the embezzlement scheme was clearly an intervening criminal act; however, it cannot lightly be said that Moreno’s criminal history was not directly related to the duties of the job “at hand,” which was head of accounting, when the “bad acts” occurred. What is remarkable in this case is Moreno’s promotion from receptionist to head of accounting. Had she remained in the position where she was placed by Asgard, she would riot have been in a situation that foreseeably created a risk of harm to others because of her employment duties. See id.
We conclude that, considering the facts surrounding Asgard’s hiring and placement of Moreno, Asgard had no duty to perform a background check. The facts do not show that Asgard knew or should have known that, because of its acts of hiring and placing Moreno without performing a background check, the crime (or one like it) might occur.
Asgard, however, did not conclusively establish that, the circumstances foreclosed any duty to DLI regarding the retention of Moreno after Asgard became aware of her criminal history of theft.14 Grider testified that he began running criminal checks on new employees “sometime in 2002.” He also testified that he became aware of Moreno’s criminal history during her employment with DLI; Asgard, however, did not disclose this information. DLI argues that Asgard knew about Moreno’s promotion to the accounting department based on Tom Grider’s testimony that he knew Moreno “helped” Northam in accounting for a couple of years. Asgard’s • post-hiring but undisclosed knowledge of Moreno’s criminal theft history, combined with Asgard’s post-hiring knowledge that Moreno had been transferred to DLI’s accounting department, raises a fact question as to the foreseeability of Moreno’s embezzlement in the absence of disclosure by Asgard to DLI for purposes of a negligent retention claim. Accordingly, we conclude that the trial court erred in granting summary judgment in Asgard’s favor as to DLI’s negligent retention claim.
IV. Affirmative Defenses
As set forth above, we must affirm the trial court’s'judgment if any of the independent suirimary-judgment grounds is méritorious, notwithstanding our conclusion as to DLI’s negligent retention clairri. See $90,235, 390 S.W.3d at 292. Accordingly, we shall address whether Asgard conclusively established every element of any of its affirmative defenses. See Friendswood Dev. Co. v. McDade & Co., 926 S.W.2d 280, 282 (Tex.1996) (noting to prevail on a .motion for summary judgment, a defendant must conclusively establish each element, of any affirmative defense that was before the trial court). Asgard moved for summary judgment on the affirmative defenses of quasi-estoppel, waiyer, limitations, and laches. .
Quasi-estoppel and Waiver. Asgard argued in its traditional motion that DLI is estopped from complaining and waived its right to complain that Asgard was negligent in failing to perform background checks because DLI failed to independently verify whether Asgard had been performing background checks.15 In support *68of this argument, Asgard presented Davis’s deposition testimony in which he stated he “took [Asgard] at [its] word” and did not independently verify that it was performing background checks on employees'.
Quasi-estoppel precludes a party from. asserting, to another’s disadvantage, a right inconsistent with a position previously taken. Lopez v. Munoz, Hockema & Reed, L.L.P., 22 S,W.3d 857, 864 (Tex.2000). The doctrine applies only when it would be unconscionable to allow a person to maintain a position inconsistent with one to which he acquiesced or from which he accepted a benefit. Id.
DLI’s reliance on Asgard’s purported reassurance that it was conducting background checks is not the assertion of a right inconsistent with a position DLI previously had taken. Davis’s -uncontradicted testimony was that he believed Asgard kept its “word.” Asgard presented no evidence of any inconsistencies in DLI’s position.
Even if DLI were somehow asserting a right inconsistent with a position previously taken, its reliance on Asgard’s representations would not have been unconscionable. See Comiskey v. FH Partners, LLC, 373 S.W.3d 620, 638 (Tex.App.-Houston [14th Dist.] 2012, pet. denied) (“[T]o constitute quasi-estoppel ... conduct had to have been unconscionable.”). Asgard presented no evidence that DLI had any reason to independently verify that Asgard was conducting background checks or had any reason to suspect that Asgard was not doing so. DLI’s actions under these circumstances were not unconscionable.
Waiver is the intentional relinquishment of a known right or intentional conduct inconsistent with claiming that right. Tenneco, 925 S.W.2d at 643. Silence or inaction, for so long a period as to show an intention to yield the known right, may also establish waiver. Id. The elements of waiver are (1) an existing right, benefit, or advantage held by a party; (2) the party’s actual knowledge of its existence; and (3) the party’s actual intent to relinquish the right, or intentional conduct inconsistent with the right. Ulico Cas. Co. v. Allied Pilots Ass’n, 262 S.W.3d 773, 778 (Tex.2008); Clear Lake Ctr., L.P. v. Garden Ridge, L.P., 416 S.W.3d 527, 542 (Tex.App.-Houston [14th Dist.] 2013, no pet.).
' Asgard argued that DLI took no action to ensure that Asgard performed background checks “[f]or more than [10] years.” Asgard did not present evidence to support this statement. It only presented evidence that Davis believed Asgard was conducting background checks for an unspecified period of time. Moreover, actual knowledge is required to establish waiver. Garden Ridge, 416 S.W.3d at 542. Asgard did not present evidence that. DLI knew facts pertinent to the purported negligence. See id. In fact, Davis testified he believed Asgard had been conducting background checks on its employees. Asgard presented no evidence that DLI knew Asgard was not conducting background checks. Similarly, Asgard presented no evidence DLI intended to relinquish its purported right to be provided with employees who had been subjected to background checks. Accordingly, Asgard did not present conclusive evidence that DLI intentionally relinquished a known right or engaged in conduct inconsistent with that right.
*69Limitations and Laches.16 Asgard also argued in its traditional motion that DLI’s negligent'-retention claim was barred by the two-year statute of limitations because DLI’s officer and attorney James Cox learned about Moreno’s criminal history in 2006 and the lawsuit was not filed until 2011,17 See Tex. Civ. Prac. & Rem. Code § 16.003(a) (requiring certain tort claims to be brought within two years after cause of action accrues); see also JPMorgan Chase Bank, N.A. v. Prof'l Pharmacy II, No. 02-11-00373-CV, — S.W.3d -, -, 2014 WL 7473779,. at *10 (Tex.App.-Fort Worth Dec. 31, 2014, no pet.) (applying two-year statute of limitations from section 16.003(a) to negligence claim).18 As the only evidence in support of this argument, Asgard presented a letter purportedly written by Cox and sent to Arthur Grider, indicating that Cox learned in 2006 that Moreno had a misdemeanor theft charge in 1995 for which she received deferred adjudication. In response, DLI presented evidence that Cox did not write the letter.19 This raises’ a fact question as to whether Cox actually learned of Moreno’s criminal history in 2006.20 Thus, Asgard did not conclusively establish that DLI’s negligent retention claim was barred by limitations.
Asgard argued alternatively that it was entitled to summary judgment on its laches defense because DLI unreasonably delayed in bringing its negligent retention claim. To prevail on a laches defense, Asgard was required to prove DLI unreasonably delayed in asserting its rights and Asgard made a good-faith change in position to its detriment because of the delay. See Caldwell v. Barnes, 975 S.W.2d 535, 538 (Tex.1998); see also Tex. Kidney, Inc. v. ASD Specialty Healthcare, No. 14-13-01106-CV, 2014 WL 3002425, at *7 (Tex.App.-Houston [14th Dist.] July 1, 2014, no pet.) (mem. op.). Asgard again relied only on the Cox letter in support of this defense. Asgard did not present any evidence — or argument — that it made a good-fáith change in position to its detriment because of any delay by DLI in bringing its negligent rétention claim. Accordingly, Asgard did not conclusively establish that it was entitled to summary judgment on its laches defense. .
We conclude that Asgard was not entitled to summary judgment on any of its affirmative defenses..
Y. Personal Liability Claims Against Arthur Grider
Asgard’s traditional motion also chállenged DLI’s claims against Grider in his personal capacity. DLI argues for the first time on appeal that Grider is personally liable under an alter ego theory.- Because DLI did not'pléad án alter ego theory in the trial court, we do not reach this issue. DLI does not otherwise challenge the trial court’s order granting summary *70judgment as to its claims against Grider in his personal capacity.
We sustain DLI’s first issue as to the trial court’s grant of summary judgment in favor of Asgard on DLI’s negligent retention claim. We overrule that issue as to all of DLI’s other challenges to the trial court’s grant of traditional summary judgment.
VI. Respondeat Superior
In its second issue, DLI challenges the trial court’s summary judgment in favor of Asgard on DLI’s respondeat superior claim. As set forth above, Asgard filed a combined no-evidence and traditional summary judgment motion on DLI’s respondeat superior claim, and the trial court granted -that motion without specifying the grounds. Because we conclude we are required to affirm the summary judgment ruling on traditional grounds, we need not address the no-evidence grounds for summary judgment. See Wilkinson, 2014 WL 3002400, at 5.
Respondeat superior is the theory by which the employer is vicariously liable for the torts of an employee acting within the scope of employment. Baptist Mem’l Hosp. Sys. v. Sampson, 969 S.W.2d 945, 947 (Tex.1998). “[A]n employer is liable for its employee’s tort only when the tortious act falls within the scope of the employee’s general authority in furtherance of the employer’s business and for the accomplishment of the object for which the employee was hired.” Minyard Food Stores, Inc. v. Goodman, 80 S.W.3d 573, 577 (Tex.2002). In certain instances, an employee of one employer may become a borrowed employee of another and cease being an employee of the general employer. St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 537 (Tex.2002); see also Sparger v. Worley Hosp., Inc., 547 S.W.2d 582, 583 (Tex.1977). The essential inquiry under the borrowed servant doctrine is which employer had the right of control of the details and manner of the employee’s work. Alaniz v. Galena Park Indep. Sch. Dist., 833 SW.2d 204, 206-07 (Tex.App.Houston [14th Dist.] 1992, no writ) (analyzing borrowed servant doctrine in whistle-blower case). The employer that has the right to direct and control the actions of the employee is vicariously liable for the employee’s actions. See St. Joseph Hosp., 94 S.W.3d at 543.
In its summary judgment motion, Asgard asserted that the borrowed-servant doctrine barred DLI’s respondeat superior claim because DLI had the exclusive right to control Moreno’s work and Asgard did not control Moreno’s work. DLI responded that -the language of the contracts and facts relating to the right of 'control over Moreno precluded summary judgment in Asgard’s favor.
Evidence in support of Asgard’s motion for summary judgment consisted of the deposition testimony of Davis, Cole, and Bill Kelley, DLI’s manager of operations. Asgard also offered the deposition testimony, of Arthur and Tom Grider. Regarding Moreno’s placement at DLI- and Asgard’s involvement, Davis testified:
• The receptionist position for which Moreno was placed had no written job description, and in that position, she was not expected to handle financial records, prepare or process checks, handle petty cash, or issue credit cards.
• Approximately two years after Moreno began working as a receptionist, Cole moved her to the accounting clerk position. Cole obtained Davis’s approval to make this change.
• DLI promoted Moreno to the head of accounts payable and accounts receivable, and Moreno reported primarily to Cole.
*71• DLI did not have the ability to fire an Asgard employee, but it could notify Asgard that the employee was no longer needed.
• The Asgard on-site program manager — Tom Grider — did not have the ability to make job assignments within DLI facilities. Although Moreno was required to “report her performance” to the Asgard supervisor on premises, Davis did not know “exactly” how she did so.
• Davis instructed Moreno to transfer funds from the yarious DLI bank accounts, and he designated her as the “System Manager” of the Chase ■ bank account. Moreno did not seek or obtain approval from Asgard to move funds from DLI’s operating account to the savings account.
• Asgard was not responsible for approving DLI’s vendor’s invoices for payment. Davis never asked Tom Grider to review Moreno’s accounts payable or accounts receivables reports, nor did he see him do so.
• DLI issued credit cards to Moreno, and if anyone approved the charges, it would have been Cole.
Cole testified that Davis was Moreno’s boss for accounting purposes and that she reported to Cole for personnel issues. He was unequivocal in his testimony that Moreno did not report to Asgard. Kelley also testified that Moreno reported to Cole when she became head of accounting, and after 2008, Moreno reported to Davis and Kelley. Moreno was trained for her accounting work by Northam, Davis, and Cole. Kelley did hot rely on Asgard to supervise the day-to-day work of the accounting department. DLI maintained operational control over all of its departments.
Tom Grider testified that Moreno reported to Cole, and Moreno did not report to either Tom or Arthur Grider. DLI never complained about how and to whom Moreno reported. Further, Tom Grider did not direct Moreno in her job assignments, did not train Moreno for her duties in the DLI accounting department, and was not involved in the decision to move Moreno from her receptionist position to accounting. No one with Asgard had any involvement in Cole’s decision to transfer Moreno to accounting.
Finally, Arthur Grider testified that Tom Grider did not provide technical supervision to personnel staffed at DLL Arthur confirmed that either Cole or DLI’s plant manager supervised Moreno when she worked, as a receptionist and that personnel provided by Asgard in the accounting department at DLI did not report to Asgard.
In response, DLI contends that in the Agreement, Asgard agreed to supervise Moreno. As discussed above, however, Asgard had no involvement in Moreno’s promotion to head of accounting, Moreno answered only to DLI employees after her promotion, and Asgard had no authority to direct her job assignments. Asgard thus demonstrated that DLI had the exclusive right to control Moreno’s work in the accounting department, and Asgard did not do so.
DLI argues that emails between Tom Grider and Moreno show that Tom supervised Moreno’s work. Even construed in the light most favorable to DLI, the emails show only that Moreno was in the accounting department and that the two exchanged emails regarding Asgard’s administrative matter's.21 They are not evidence *72that Asgard controlled Moreno’s day-today responsibilities in that department.22
The uncontradicted evidence is that Asgard did not know of and was not consulted about DLI’s decision to transfer Moreno to the accounting department and then promote her to head of that department; Moreno did not answer to Asgard after she was transferred; and Asgard did not direct or oversee her job assignments. We conclude that Asgard conclusively established it had no right to control Moreno’s day-to-day duties in the accounting department. See St. Joseph Hosp., 94 S.W.3d at 543.
We overrule DLI’s second issue.
Conclusion
We reverse the tidal courts summary judgment as to DLI’s negligent retention claim and remand that issue to the trial court for proceedings consistent with our opinion. We affirm the trial court’s judgment in all other respects.
(Justice Donovan dissenting)
. Bill Kelley, DLI’s manager of operations, testified that Moreno was originally placed .in DLI’s international department as an administrative assistant but then transferred to reception. It is unclear from the record whether Asgard on DLI transferred her. Because both parties refer to Moreno’s initial placement as a receptionist and because it does not alter our analysis, we also refer to her job as receptionist.
. DLI argues that other employees also were involved in the embezzlement scheme. All alleged embezzlers who were employees of Asgard sometimes are referred to herein as "Moreno.”
. On appeal, DLI argues, without citing any authority, that the trial court erred in denying DLLs motion to strike Grider's affidavit because the affidavit was not based on personal knowledge, was based on hearsay, and contained legal conclusions. DLI reurges on appeal its motion to strike, but neither objected below nor objects on appeal to Grider’s authentication of documents attached to his affidavit. To the extent that DLI has properly raised an appellate issue complaining of the trial court’s denial of the motion to strike, we do not rely on the portions of the Grider affidavit to which' DLI objected in analyzing whether the trial court erred in granting the motion for summary judgment. Thus, we need not reach the issue.
.DLI filed a motion for reconsideration and request to enlarge the summary judgment record. Nothing in the record indicates that the trial judge considered the supplemental evidence (Exhibit 12), so we do not consider it on appeal. See Auten v. DJ Clark, Inc., 209 S.W.3d 695, 702 (Tex.App.-Houston [14th Dist.] 2006, no pet.) ("A trial court may accept summary judgment evidence filed late, even after summary judgment, as long as the court affirmatively indicates in the record that it accepted or considered the evidence.”); see also Benchmark Bank v. Crowder, 919 S.W.2d 657, 663 (Tex.1996) (recognizing that, unless the record affirmatively indicates trial court permitted the late filing of summary judgment evidence, the appellate court must presume the trial court did not consider the late-filed evidence).'
. In its traditional motion for summary judgment, Asgard generally argued that it did not breach any fiduciary duty and no fiduciary relationship existed between Asgard and DLI or between Grider and DLI. In its response, DLI generally argued that (1) the relationship between DLI and Asgard was one of trust and confidence, (2) a relationship of trust and confidence was created between the parties based on contractual duties that would expose placed Asgard employees to certain of DLLs confidential information, and (3) the Agreement’s use of the word "principal” created a principal/agent fiduciary relationship. In its motion for. reconsideration, DLI reiterated that a material fact exists as to whether the parties had a special relationship that rose to the level of a fiduciary relationship.
. DLI also argues that Asgard’s access to confidential information belonging to DLI created a principal-agent relationship. DLI does not elaborate on how. access. to confidential information, ■ standing alone, could create such a relationship. Asgard contractually agreed to keep such information confidential. We decline to impose an additional fiduciary duty on Asgard based on its access-to DLLs information.
. DLI argued below that it' and Asgard had a relationship of trust and confidence.
. The indemnity provision reads as follows:
[Asgard] agrees to indemnify, hold harmless and defend DLI ... from all claims ... arising out of or relating from [sic] employees of [Asgard] or [Asgard's] fraud, negligence or malfeasance and which occur during [Asgard's] performance under this contract. [Asgard] will only indemnify DLI to the extent of [Asgard’s] negligence.
. Neither party argues that the Agreement is ambiguous. However, they have conflicting views regarding whether the Agreement required Asgard to perform background checks on the employees it placed at DLI.
. As set forth above, we construe indemnity agreements under normal rules of contract construction. Gulf Ins. Co. v. Burns Motors, Inc., 22 S.W.3d 417, 423 (Tex.2000); Conoco-Phillips, 462 S.W.3d at 265 . DLI asserts that the "claim for indemnity based on a breach of fiduciary duty arises from the ‘agent-principal’ relationship that was formed by the [Agreement].” As we have held there is no agent-principal relationship, DLI’s argument regarding the indemnity agreement is without merit. .
. "We have not ruled definitively on the existence, elements, and scope of such torts and related torts such as negligent training and hiring.” Waffle House, Inc. v. Williams, 313 S.W.3d 796, 804 n. 27 (Tex.2010).
. Before Northam left DLI, he and 'Moreno had been the only employees in the accounting department. Northam did not have a job title. The department eventually grew, and Moreno’s title became accounting department supervisor.
. Davis was asked in his deposition, “When Ms. Moreno became the Accounting Supervisor, who did she report to?” Davis responded, "Well, she was an Asgard employee, but she probably answered a little bit more to Mr. Cole.”
. Moreno was hired initially in 1997. Her alleged co-conspirators were hired initially between 1998 and 2002.
. Asgard also' asserted these affirmative defenses to DLI’s negligent supervision claim. We need not address the negligent supervision claim because we hold that Asgard con*68clusively established it had no duty to manage and supervise Moreno after she was transferred to the accounting department.
. Asgard moved on these defenses as to all DLI’s claims. Our discussion is directed only to the negligent retention claim, as we conclude Asgard conclusively established it was entitled to summary judgment on DLI’s other claims.
. We note that Cox also represented Asgard.
. In cases governed by the discovery rule, a cause of action for negligence accrues when the plaintiff discovers, or should have discovered through reasonable diligence, the'injury and that it was likely, caused by the wrongful acts of another. J.M.K, 6, Inc. v. Gregg & Gregg, P.C., 192 S.W.3d 189, 196 (Tex.App.Houston [14th Dist.] 2006, no pet.).
, Cox denied writing: the letter in his deposition and in an affidavit presented in response to Asgard’s traditional motion.
. We thus need not address whether Cox’s knowledge could be imputed to DLL
. The emails involved weekly payroll deductions that needed to be corrected on an Asgard invoice, healthcare provider forms to be *72completed by an Asgard employee, and another Asgard employee’s paycheck.
. DLI cites Lara v. Lile, 828 S.W.2d 536, 538 (Tex.App.-Corpus Christi 1992, writ denied), ■for the proposition that in Texas, we presume an employer retains the right to control its own employees. That case quotes the following language from the Restatement of Agency:
[I]n the absence of evidence to the contrary, there is an inference that the actor remains in [her] general employment so long as, by the service rendered another, [she] is performing the business entrusted to [her] by the general employer. There is no inference that because the general employer has permitted a division of control, he has surrendered it.
Id. (quoting Restatement (Second) of Agency § 227 cmt. b. (1958) (first emphasis added.)). The Lara court further analyzed the case "[b]eginning with the inference that the general employer retains control” to determine "what control [it] surrendered to the special employer.” Id. Here, Asgard presented conclusive evidence that it did not control Moreno's work in the accounting department. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284435/ | OPINION ON REHEARING
LEE GABRIEL, JUSTICE
Horizon Health Corporation (Horizon) moved for a rehearing of this panel’s February 26, 2015 memorandum opinion and judgment. See Tex. R. App. P. 49.1. We grant the motion, withdraw our February 26, 2015 memorandum opinion and judgment, and substitute the following. We dismiss Horizon’s motion for en banc reconsideration as moot. See Tex. Dep’t of Public Safety v. Nail, 305 S.W.3d 673, 674 (Tex.App.-Austin 2010, no pet.) (op. on reh’g). .
This appeal raises multiple questions involving a trial court’s judgment based on the jury’s answers to a 55-page charge. We are asked to review alleged jury-charge error, the sufficiency of the evidence to support the jury’s findings, exemplary damages, attorneys’ fees, and how preservation of error or lack thereof can affect our review of all of these issues. Because we conclude the evidence is legally insufficient to support future lost-profits damages and because exemplary damages may' not be awarded jointly and severally under the facts of this case, we reverse those portions of the trial court’s judgment. Because we also substantially reduce the exemplary-damages award based on the reduction of compensatory damages upon a suggestion of remittitur, we reverse the issue of attorneys’ fees and remand that issue for a new trial. --Otherwise, we will affirm the remainder of the trial court’s judgment subject'to our suggestion of a remittitur regarding exemplary damages.
I. BACKGROUND
A. HoRizon and Project Shamrock
Horizon Mental Health Management, Inc. was formed in 1981 to manage mental-health programs for healthcare entities such as hospitals. In 2007, Horizon Mental Health Management, Inc. became Horizon Health Corporation (Horizon) and was acquired by Psychiatric Solutions, Inc. (PSI). PSI’s chief executive officer at the time was Joey Jacobs.
In early 2010, PSI considered going private and, thus, no longer being publicly traded. Several members of Horizon’s executive-management team met shortly thereafter to discuss the possibility of buying Horizon from PSI. These team mem*80bers, who called themselves “Project Shamrock,” were Mike Saul (the president of Horizon), Barbara Bayma (the chief clinical officer for Horizon), Peter Ulasew-icz (a senior vice-president of business development for Horizon), Cory Thomas (Horizon’s chief financial officer), Jack De-Vaney (a senior vice-president of operations for Horizon), and Tim Palus (also a senior vice-president of operations for Horizon). Saul approached Jacobs to express Project Shamrock’s interest in buying Horizon if PSI went private. Jacobs told Saul that “certain things would remain exactly as they were and that PSI, instead of being a publicly traded company, would just be a privately held company.”
Contrary to Jacobs’s belief, however, PSI ultimately was acquired by Universal Health Services (UHS), a large, publicly-traded, company. Project Shamrock then tried to negotiate buying Horizon from UHS, In late 2010, UHS rejected Project Shamrock’s proposal and kept Horizon under UHS’s ownership umbrella. The members of Project Shamrock remained employed by Horizon after UHS rejected their buy-out offer.
B. Acadia FoRms Subsidiary and Hires HoRizon Employees
In May 2011, Saul approached Acadia Healthcare Company1 “about the possibility of ... going over to Acadia.” Acadia owned “freestanding psychiatric, child and adolescent, residential, chemical dependency treatment” facilities. , Saul presented a business plan to Acadia’s president, Brent Turner, on May 18, 2011,; proposing that Acadia establish a subsidiary to manage mental-health programs for hospitals and other mental-health providers. In his presentation, Saul identified several companies that would be “competition” for the proposed subsidiary, including Horizon, which Saul indicated was “lost ■ in UHS bureaucracy” and would lose customers “due to relationships.” - Acadia decided to “move forward” with the proposal, and Saul forwarded his resume and the resumes of Ulasewicz, Palus, and Bayma to Turner as a “proposed management team.” Saul also told Turner that they “would go hard” after John Piechocki, a member of Ulasewicz’s sales team, based on his successful sales record at Horizon. Indeed, Ulasewicz and Saul began to. recruit Pie-chocki to work for Acadia shortly after Acadia approved Saul’s proposal.
In June 2011, Saul, Ulasewicz, Palus, and. Bayma met to discuss their anticipated move to Acadia and “their plans for [the planned Acadia subsidiary].”2 In August and September 2011, Saul, Palus, Bayma, Piechocki, and Ulasewicz resigned from Horizon. Each began working for Psychiatric Resource Partners (PRP), which was a recently formed subsidiary of Acadia borne from Saul’s May 2011 presentation. Saul began as the president of PRP. Pie-chocki told DeVaney, who stayed at Horizon,3 that PRP would “directly compete” with Horizon.
C. HoRizon Investigates
Based on these close-in-time resignations, Horizon conducted a forensic investigation of its computer system and discovered that all except Piechocki “had conferred with one another in reaching their individual decisions to leave, and in *81making preparations to leave,” including discussing strategy regarding their move to Acadia, planning the exact timing of their resignations, and noting when their employment benefits with Acadia would begin. Indeed, shortly before Saul’s presentation to Acadia, Ulasewicz e-mailed Saul and told him that several of their possible new clients would come “out of Horizon’s hide,” their departures would leave Horizon “dead,” their business strategy at Acadia should be “hurting Horizon early and often,” and “the real Horizon— Jacobs, Saul, Ulasewicz, Bayma, Palus, Piechocki” — would “need to gut punch [Horizon]” as they left.
It is undisputed that Saul, Palus, Ula-sewicz, Bayma, and Piechocki (collectively, the individual defendants) accessed their work files and made copies of several Horizon documents before they left to work for PRP. In particular, Saul bought an external hard diive for his work computer in late 2010 and placed “a massive, massive amount” of Horizon documents on it such as policies and procedures, “non-standard” contract language, financial models, monthly account listings, sales presentations, orientation materials, and legal files. Basically, Saul copied onto his external hard drive “everything that was non-financial on [Horizon’s] server.”
Additionally, during a routine human-resources audit, it was discovered- that Saul, Bayma, Palus, and Ulasewicz had signed employment agreements while employed at Horizon, mandating confidentiality and restricting solicitation and competition (collectively, the restrictive covenants). The agreements specifically mentioned the positions each had held at the time the agreements were signed, which were not the same ■ positions each had held at the time of their resignations. The covenants not to compete barred the employees from seeking employment in or independently establishing “a psychiatric contract management company that is in direct competition with [Horizon].” They were further prohibited from soliciting “any employed of [Horizon].” The confidentiality covenants barred the employees from disclosing or using Horizon’s trade secrets, confidential information, or proprietary information. Although the employees signed the agreements between 1997 and 2005, the agreements applied “for a period.,of one (1) year”, after their respective employments with Horizon ended.
In September 2011; ■ shortly after the individual defendants left their jobs with Horizon, Horizon notified Bayma, Jacobs, Palus, Piechocki, Saul, and Ulasewicz that their resignations and subsequent employments with Acadia were in violation of their employment agreements and the restrictive covenants entered into “at the inception of [their] employment” and of their common-law duties of good faith and loyalty.4 -Horizon demanded that they end their employment with Acadia and return all documents to Horizon. , •
D. PRP’s Sales Efforts .
Piechoeki, using a list of Horizon sales leads he had copied before resigning, was able to secure a consulting contract for PRP with Southwest Regional Medical Center, which was an active Horizon lead noted on its list of sales leads. Although Piechocki marked some of the leads on the list “DEAD” before he -resigned from Horizon, those leads were added to PRP’s *82“master contact list” after Piechocki joined Acadia. In January 2012, Piechocki ultimately signed Westlake Regional Hospital (Westlake) to a contract with PRP over “direct competition” from Horizon. Pie-chocki used Horizon’s financial models to “crunch[] numbers” to win the Westlake contract. Additionally, PRP agreed to pay Westlake $150,000 to upgrade its facility, which was not a concession Horizon had ever made before in its management contracts.
After joining PRP, Ulasewicz set up a meeting with Cottage Hospital, which was a potential client he had met with while employed by Horizon. Ulasewicz previously had learned while still employed by Horizon that Cottage Hospital’s impediment to using contract-management services such as those offered by Horizon and PRP possibly would be removed; however, Ulasewicz did not share this information with anyone at Horizon. PRP also began pursuing several of Horizon’s existing clients after the individual defendants left Horizon.
E. Horizon Files Suit
In October 2011, Horizon filed suit against the individual defendants for breach of fiduciary duty; misappropriation of trade secrets; conversion; accessing proprietary information in violation of the Harmful Access by Computer Act; appropriating proprietary information in violation of the Theft Liability Act, i.e., theft of trade secrets; tortious interference with existing contracts; tortious interference with prospective business relationships; and conspiracy. Against Saul, Palus, Ula-sewicz, and Bayma, Horizon additionally raised claims for breach of the restrictive covenants not to compete, fraud, and breach of contract. Horizon alleged Acadia and PRP were liable for all of these acts and omissions either because they were directly involved or under the doctrines of ratification and vicarious liability. Horizon alleged as a separate claim that Acadia and PRP “aided and abetted and provided substantial assistance” to the individual defendants “in breaching their fiduciary duties.” Horizon sought exemplary damages, attorneys’ fees, the imposition of a constructive trust, compensation forfeiture, and injunctive relief.
F. PretRial Procedure
Horizon filed a traditional motion for partial summary judgment, mainly seeking a determination that the employment agreements were valid and enforceable under Texas law; that Saul, Palus, Ula-sewicz, and Bayma had breached the restrictive covenants; and that Saul and Ulasewicz had breached the nonsolicitation provisions. See Tex. R. Civ. P. 166a(c). Acadia, PRP, and the individual defendants (collectively, the Acadia defendants) also moved for summary judgment, under both traditional and no-evidence standards, based on the absence of any genuine issues of material fact on each claim raised by Horizon and because the employment agreements were unenforceable as a matter of law. See Tex. R. Civ. P. 166a(c), (i).
The trial court granted Horizon a partial summary judgment and concluded that “the noncompetition agreements entered into by Horizon with ... Saul, Palus, Ula-sewicz, and Bayma were valid and enforceable covenants not to compete under Texas law at the time of them respective terminations of Horizon employment, without modification.” See Tex. Bus. & Com. Code Ann. § 15.51(c) (West 2011) (directing trial court to modify unreasonable limitations in otherwise enforceable covenant). The trial court denied the Acadia defendants’ motion for summary judgment.
*83Horizon also sought the imposition of sanctions against the Acadia defendants for failure to comply with the trial court’s discovery order. See Tex. R. Civ. P. 215.2(b). The trial court granted the motion but ordered only Saul to pay Horizon $41,740.80 for his “failure to timely produce all relevant documents and tangible things, and ... refusal to cooperate with his discovery obligations.” See Tex. R. Civ. P. 215.2(b)(2), 215.3. The trial court specifically saved for trial the issue of whether a spoliation instruction should be given to the jury.
G. TRIAL PROCEDURE
After a lengthy trial, the Acadia defendants orally moved for an instructed verdict on all of Horizon’s claims and on Horizon’s request for attorneys’ fees because Horizon’s evidence regarding attorneys’ fees did not “apportion[ ] the fees between the causes of action on which attorney’s fees are recoverable” or delineate what factors were considered to establish reasonableness. See Tex. R. Civ. P. 268. The trial court denied the motion. At the charge conference, the trial court determined that a spoliation instruction allowing the jury to draw an adverse inference against Saul based on his discovery abuse would be included in the charge.
On December 21, 2012, the jury rendered the following unanimous verdicts on Horizon’s claims:
• Breach of covenants not to compete: Saul, Palus, Ulasewicz, and Bayma “continuously and persistently” breached the terms of their covenants not to compete.
• Breach of nonsolicitaiton covenants: Saul and Ulasewicz breached the terms of their covenants not to solicit.
• Breach of fiduciary duties: The individual defendants, while acting within the scope of their employment with Acadia and PRP, failed to comply with their fiduciary duties to Horizon. Acadia and PRP ratified this conduct and will earn future profits as a result.5
• Intentional interference with non-competition covenants: The individual defendants, while acting in the scope of their employment with Acadia and PRP, intentionally interfered with the non-competition covenants. Acadia and PRP ratified this conduct.
• Misappropriation of trade secrets: The individual defendants, while acting in the scope of their employment with Acadia and PRP, misappropriated Horizon’s trade secrets. Acadia and PRP ratified this conduct and will earn future profits as a result.
• Conversion: The individual defendants, while acting in the scope of their employment with Acadia and PRP, converted Horizon’s proprietary information. Acadia and PRP ratified this conduct and will earn future profits as a result.
• Theft of trade secrets or property: The individual defendants intentionally committed theft of Horizon’s property and trade secrets, which were worth at least $20,000. Acadia and PRP ratified this conduct and will earn future profits as a result.
• Harmful computer access: The individual defendants, while acting in the scope of their employment with Acadia and PRP, knowingly accessed Horizon’s computers, computer network, or computer system without Horizon’s consent and with the intent to harm Horizon. Acadia and PRP ratified this conduct.
*84• Fraud: Saul,'Patas, Ulasewicz, and Baynia committed fraud and fraud by nondisclosure by submitting expense reports for trips taken in June 2011. Acadia and PRP did not benefit from this fraud or' ratify it.
• Conspiracy: The Acadia defendants participated in a conspiracy that damaged Horizon.
• Aiding and abetting: Acadia and PRP intentionally aided and abetted the individual defendants in breaching some of their fiduciary duties, intentionally interfering with the noncompetition covenants, misappropriating trade secrets, and converting Horizon’s proprietary' information, Only PRP aided and abetted the theft of Horizon’s property or trade secrets and the harmful computer access.
• Malice: The damage sustained by Horizon as a' result of the individual defendants’ breach of fiduciary duties, intentional interference with the non-competition covenants, misappropriation of trade secrets, conversion of Horizon’s proprietary information, and theft was attributable to the malice of the individual defendants, Acadia, and PRP. The individual defendants, without Horizon’s consent, intentionally solicited, accepted, or agreed to accept any benefit' from another person on the agreement that the benefit would influence his or her conduct in relation to Horizon’s affairs.
The jury awarded Horizon $898,000 in- future lost profits from the Westlake contract based on Saul’s, Palus’s, Ulasewicz’s, and Bayma’s failures to comply with their covenants not to compete and $3,300,000 in future lost profits based on Saul’s and Ulasewicz’s failures to comply with their covenants not to solicit. The jury found that Horizon suffered no past lost profits based on these failures to comply. Regarding Horizon’s claims for breach of fiduciary duty, intentional interference with the employment agreements, misappropriation of Horizon’s trade secrets, conversion of proprietary information, intentional theft of trade secrets, knowing access of Horizon’s computer system, and fraud, the jury awarded Horizon $6,003,049.24:
• $898,000 in future lost profits from the Westlake contract and $3.3 million in future lost profits from Piechocki’s sales production.6
• $50,000 as the fair market value of the property or trade secrets, which were the subject of Horizon’s claim for theft of property or trade secrets.7
• $5,049.24 in expenses charged to Horizon by Ulasewicz, Patas, and Bayma that were not associated with Horizon’s business.8
• $1.75 million in exemplary damages.
The jury also awarded Horizon $900,000 in attorneys’ fees for representation costs incurred through the conclusion of trial. The jury declined to award any appellate attorneys’ fees.
H. POST-TRIAL PROCEDURE
Saul, Patas, Ulasewicz, and Bayma filed a motion to reconsider the partial summary judgment granted in favor of Horizon, and Saul sought reconsideration of the pretrial sanctions order. Acadia and PRP filed a motion to disregard the jury’s *85findings and an alternative motion for judgment notwithstanding the verdict based On legally insufficient supporting evidence. See Tex. R. Civ. P. 301. The individual defendants also filed a motion to disregard the jury’s findings. See id. The individual defendants adopted the “reasons ... set forth” in Acadia and PRP’s motion to disregard and alternative motion for judgment notwithstanding the verdict. Similarly, Acadia and PRP adopted the individual defendants’ motion to disregard the jury’s findings and the brief in support.9 Horizon filed an “omnibus” response to the Acadia defendants’ post-trial motions.
Horizon filed a motion for entry of judgment on the verdict and a motion for judgment notwithstanding the verdict regarding the jury’s finding on appellate attorneys’ fees. See Tex. R.. Civ. P. 301, 305. The individual defendants responded to Horizon’s motion for entry of judgment, and Acadia and PRP incorporated the individual defendants’ arguments in their response to Horizon’s motion. Horizon filed an “omnibus” reply in support of its motion.
The trial court granted in part and denied in part Horizon’s motion, awarding Horizon most of the damages awarded by the jury. The trial court denied the Acadia defendants’ motion to disregard the jury’s findings, their motion to reconsider the partial summary judgment granted in favor of Horizon, and Saul’s motion to reconsider the sanctions. The trial court entered final judgment on July 1, 2013,10 The final judgment awarded Horizon the full amount of damages as found by the jury and entered $41,740 in sanctions against Saul based on the pretrial discovery-abuse ruling. The trial court, however, reduced Horizon’s trial attorneys’ fees from $900,000 to $769,432, disregarded the jury’s zero award of appellate attorneys’ fees, and awarded Horizon $97,500 for appellate attorneys’ fees.
I. Post-Judgment PROCEEDINGS
Horizon requested findings of fact, and conclusions of law regarding, among other issues, the attorneys’ fees awards in the judgment. See Tex. R. Civ. P. 296. The Acadia defendants filed a motion to modify, correct, or reform the judgment to “resolve [an] inconsistency in the final judgment ...- [and] award actual past and future damages of $4,203,049.24.” See Tex. R. Civ. P. 316, 329b. They also filed a motion for new- trial, arguing -that the jury’s findings were supported by factually insufficient evidence.11 See Tex. R. Civ. P-. 329b.
On August 8, 2013, the trial court entered findings of fact and conclusions of law, clarifying that Horizon’s submitted evidence on attorneys’ fees “segregated 25% of its total fees ... and identified this 25% as fees that were not incurred in connection with a claim for which fees may be awarded.”, Therefore, the trial court “discounted” the requested attorneys’ fees “by 25%.” The motion for new trial and the motion to modify, correct, or reform the judgment were overruled by operation of law. See Tex. R. Civ. P. 329b(c). All parties filed notices of appeal from the *86trial court’s judgment. See Tex. R. App. P. 25.1(c).
The Acadia defendants raise seven issues in their appeal challenging (l)the trial court’s partial summary judgment and (2) the jury’s findings and damages awards, mainly on the basis of insufficient eviden-tiary support. Horizon raises three issues in its appeal and argues that the trial court erred by reducing its attorneys’ fees awards by 25% based on the admitted evidence establishing the full amount requested as a matter of law.
II. DISCUSSION
A. Insufficient Evidence to SuppoRT Lost-Profits Findings
In their third issue, the Acadia defendants argue that the evidence is legally insufficient to support the jury’s award of $4,198,000 for future lost-profits damages. The majority of the Acadia defendants’ post-trial, post-judgment, and appellate arguments focused on this issue, but then-appellate brief contains an accurate summary statement of their contention regarding lost-profits damages: “Texas law does not authorize a business to recover awards of significant damages for alleged future lost profits, when that business has lost no contracts or customers, and its only evidence of damages consists of statistics generated by an expert witness.” For the following reasons, we sustain issue three.
1. Preservation
The Acadia defendants assert that the opinion by Horizon’s expert, Jeff D. Bal-combe, relating to lost profits was unreliable, speculative, and conclusory; thus, it was no evidence of lost profits suffered by Horizon.12 The Acadia defendants are attacking Balcombe’s methodology based on the lack of foundational data and are asserting that the opinion, therefore, was unreliable and inadmissible based on analytical gaps in the evaluation leading to his opinion.13 See Tex. R. Evid. 702, 705(c).
A party complaining about the reliability of expert testimony must object to the evidence before trial or when the evidence is offered to preserve a complaint on appeal that the evidence is unreliable.14 Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 409 (Tex.), cert. denied, 525 U.S. 1017, 119 S.Ct. 541, 142 L.Ed.2d 450 (1998); Faust v. BNSF Ry. Co., 337 S.W.3d 325, 332-33 (Tex.App.-Fort Worth 2011, pet. denied). If the trial court overrules an objection to expert testimony, the opposing party then may complain on ap*87peal that the evidence was legally insufficient to support the jury’s finding because the expert evidence was unreliable and, thus, constituted no evidence. Faust, 337 S.W.3d at 332-33. The Acadia defendants objected to Balcombe’s testimony on the ground that his opinion was based on insufficient facts and later specified that Bal-combe’s opinion was impermissibly based on the unsupported assumption that West-lake was a Horizon lead. , The trial court overruled the Acadia defendants’ objections and allowed Balcombe to testify regarding Horizon’s future lost profits. Additionally, the Acadia defendants argued in their motion to disregard the jury’s findings that the evidence of lost profits was legally insufficient because Balcombe’s opinion suffered from “fatal infirmities: no alternate causes were considered or ruled out by the damages expert, an analytical gap exists between the alleged wrongful conduct and the damages claimed, and the expert failed to prove that the profits were net profits after all business' expenses were considered.” The Acadia defendants preserved their argument that Balcombe’s testimony was unreliable based on an analytical gap in his methodology and, therefore, was no evidence of lost-profit damages. See, e.g., City of Dallas v. Redbird Dev. Corp., 143 S.W.3d 375, 385 (Tex.App.-Dallas 2004, no pet.) (recognizing distinction in preservation requirements between attacks to expert’s methodology and legal-sufficiency complaint).
2. Standard of Review
In a legal-sufficiency review, we determine whether more than a scintilla of evidence supports the jury’s finding by considering evidence favorable to the finding if a reasonable fact-finder could and disregarding evidence contrary to the finding unless a reasonable fact-finder could not. Cent. Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649, 651 (Tex.2007); Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex.1996).
Lost profits must be proven with reasonable certainty, and whether lost-profits evidence is reasonably certain is a fact-intensive inquiry. Phillips v. Carlton Energy Grp., LLC, — S.W.3d -, -, 58 Tex. Sup. Ct. J. 803, 2015 WL 2148951, at *9 (May 8, 2015); Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 84 (Tex.1992); Fraud-Tech, Inc. v. Choicepoint, Inc., 102 S.W.3d 366, 381 (Tex.App.-Fort Worth 2003, pet. denied). We are to focus on the experience of the .persons involved in the enterprise, the nature of the business activity, the relevant market, the nature of the client base, the sales force, the marketing plan, and the company’s track record of sales. Carter v. Steverson & Co., 106 S.W.3d 161, 166 (Tex.App.-Houston [1st Dist.] 2003, pet. denied); Fraud-Tech, 102 S.W.3d at 381. The amount of loss need not be subject to exact calculation but need only be shown by competent evidence based on objective facts, figures, or data from which the amount may be ascertained with reasonable certainty. Hunter Bldgs. & Mfg., L.P. v. MBI Global, L.L.C., 436 S.W.3d 9, 17-18 (Tex.App.-Houston [14th Dist.] 2014, pet. filed). At a minimum, however, “opinions or estimates of lost profits must be based on objective facts, figures, or data from which the amount of lost profits can be ascertained.” Heine, 835 S.W.2d at 84. A bare assertion that contracts were lost does. not show lost profits with reasonable certainty. Id. at 85. “The law is wisely skeptical of claims of lost profits from untested ventures or in unpredictable, circumstances, which in reality are little more than wishful thinking.” Phillips, — S.W.3d at -, 2015 WL 2148951, at *10.
As the Texas Supreme Court has instructed, we need not distinguish between *88Horizon’s different theories of recovery because its lost-profits damages were recoverable under several of the theories. ERI Consulting Eng’rs, Inc. v. Swinnea, 318 S.W.3d 867, 876 n.3 (Tex.2010). Indeed, the Acadia defendants do not so parse their argument.15
3. Application
As previously stated, the jury based its lost-profit awards on two measures of recovery: -(1) lost profits from the Westlake contract that Horizon, in reasonable probability, would sustain in the future and (2) lost profits from Piechocki’s production that Horizon,- in reasonable probability, would sustain in the future. For the first measure, the jury uniformly .awarded $898,000 and for the second measure, the jury awarded $3,300,000. The first measure was tied to Saul’s, Bayma’s, Ulasew-icz’s, and Palus’s failure to comply with the noncompetition covenants, breaches of fiduciary duties, intentional interference with the employment agreements, misappropriation of trade secrets, conversion of proprietary information, theft of trade secrets, knowing access of Horizon’s computer system, and fraud.. The second measure was tied to these same claims (with the exception of breach of the covenants not to compete) and Saul’s and Ulasewicz’s breaches ofrfheir covenants not to solicit. Balcombe testified as to both measures of lost-profit damages. ■
" Balcombe testified as to the “lost production” damages' Horizon suffered as a result of the individual defendants’ wrongful actions. In doing so, he attempted to determine what would have happened but for the wrongful actions — as opposed to what actually happened16 — by considering (1) how long Piechocki would have remained an employee of Horizon but for the alleged wrongful conduct, (2) how many contracts Piechocki would have sold “but for being an employee of Horizon,” and (3) what the average profit for each of those contracts would have been had he remained with Horizon. "■
To determine the first consideration, Balcombe analyzed the average amount of tirpe Horizon retained its higher-level employees and “conservatively elected to assume” that Piechocki would have stayed at Horizon two or four more years but for the alleged wrongful conduct. The four-year tenure was assumed because Piechocki presumably would have been promoted after two years and “senior vice presidents stayed longer.” After reviewing e-mails and “deposition testimony,” Balcombe concluded that Piechocki “sold more contracts, closed more deals” — 50% more than other Horizon salespeople. Thus, Balcombe opined regarding the second consideration that Piechocki would have sold six contracts in each year he stayed, up to four years, but for the wrongful conduct because other Horizon salespeople sold four contracts per year. He affirmed that he included reductions for “normal business losses that would have, occurred.” Bal-combe’s third consideration involved, a compilation of “data over the period from 2001 through 2011 or ’12 regarding the profit per contract ... to see if there were trends and how to use the data that [was] *89reliable in [his] calculation.” He concluded that $247,000 per year for each contract was “a conservative and reliable figure for a mature contract price.” In arriving at this number, Balcombe considered the Westlake contract with PRP and its profit margin of $247,000. These three considerations allowed Balcombe to estimate the amount of Horizon’s lost profits at years five ($2,237,000), ten ($3,249,000), and fifteen ($3,378,000) following Piechocki’s resignation, assuming an 80% rate of contract retention by Horizon. Balcombe testified that Horizon’s contracts were retained for seven years on average.
Balcombe also testified as to the lost profits attributable to the Westlake contract. He reviewed PRP’s contract with Westlake “along with other financial documents about that contract.” He concluded that the “lost profit or cumulative economic damages”, arising from the Westlake contract was $668,220 after five years, $871,500 after ten years, and $898,200 after fifteen years. Balcombe knew that Westlake was not a customer of Horizon but believed Westlake was a lead of Horizon’s after the individual defendants left Horizon. In fact, he admitted, that his assumption that Westlake was a Horizon lead “might be guessing.”
Balcombe’s calculations, estimates, “statistical analysis,” and “work papers” supporting his conclusions were not admitted into evidence and were merely demonstrative aids. Because this information was not admitted into evidence, some of Bal-combe’s explanations for his conclusions are difficult to decipher on appeal. For example, Balcombe explained how he calculated the per-year profit of a representative eoritract by referring to the demonstrative aid he prepared:
The top part of this calculation represents the but-for incremental profit calculations, the middle part calculated the actual incremental profit calculations, and then down here is where I’m taking the difference between the two what has happened,- = what would happen versus what could have-happened, and calculating the difference is down in this area.
An expert’s opinion is not reliable if “there is simply too great an analytical gap between the data and the opinion proffered.” Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 726 (Tex.1998). Further, an expert’s opinion is not reliable if the foundational data, is .unreliable or if the expert draws conclusions from sound data based on flawed methodology. Havner, 953 S.W.2d at 714. “In sum, case law shows expert testimony on lost profits damages cannot be reliable, and therefore is not admissible, if the expert bases his opinion and calculations on nothing more than assumptions, hearsay, speculation, and his credentials.” Jeff Patterson & Giovanna Tarantino, Is the Bar Really Lower for Nonscientific Expert Testimony? The Advoc. (Tex.) 65, 67 (2005). See generally Robert M. Lloyd, The Reasonable Certainty Requirement in Lost Profits Litigation: What it Really Means, 12 Transactions: Tenn. J. Bus. L. 11, 17-28 (2010) (collecting cases and discussing factors courts consider'in determining reasonable certainty,- including the court’s confidence that the estimate is accurate).
We conclude that Balcombe’s opinion was too speculative based on an analytical gap between the data and his opinion; thus, it was no evidence of lost profits suffered by Horizon. The calculations and estimates Balcombe relied on in reaching his lost-profits conclusion were based on nothing more than speculation that (1) Piechocki, an at-will employee, would have stayed employed by Horizon, been offered a senior vice-president posi*90tion, and accepted the position;17 (2) Horizon would have won the Westlake contract; 18 and (3) hypothetical contracts signed by Piechocki during his hypothetical tenure with Horizon would have been profitable until 202619 — fifteen years after Piechocki’s 2011 resignation from Horizon even though the average contract-retention period was seven years. Horizon produced no evidence to support a fifteen-year retention period.20 Balcombe’s testimony confirms the supreme court’s shorthand method of determining the evidentia-ry value of an expert’s opinion on lost profits: “Merely laying out the [expert’s] calculation [of lost profits], with its sweeping assumptions, demonstrates how completely conjectural it is.” Phillips, — S.W.3d at -, 2015 WL 2148951, at *11. Balcombe’s testimony, which consisted of unsupported factual assumptions and anal-yses that were not admitted into evidence, was not competent to show with reasonable certainty that Horizon suffered lost profits as a direct result of the individual defendants’ actions. See, e.g., McBeth v. Carpenter, 565 F.3d 171, 176-77 (5th Cir. 2009) (holding evidence that “later transaction” was profitable no evidence of lost profits because later transaction was “markedly different” from transaction plaintiffs alleged was lost due to defendants’ actions); Blase Indus. Corp. v. Anorad Corp., 442 F.3d 235, 239 (5th Cir.) (holding employer could not recover damages for lost profits based on at-will employee’s “speculative future earnings” because employee “could have left ... at any point during the year in question”), cert. denied, 549 U.S. 817, 127 S.Ct. 82, 166 L.Ed.2d 29 (2006); Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex.1995) (holding when assumed factual bases underlying expert’s opinion are materially different from actual facts and not supported by record evidence, expert opinion has no probative value); Szczepanik v. First S. Trust Co., 883 S.W.2d 648, 649-50 (Tex.1994) (holding evidence that company “expected to make a profit” legally insufficient because expectation based on “pure speculation” and record did not support conclusion that amount of lost profits resulted from defendant’s actions); AZZ Inc. v. Morgan, 462 S.W.3d 284, 296-98, 2015 WL 1623775, at *8 (Tex.App.-Fort Worth 2015, no pet.) (“Although the methodology utilized by [AZZ’s expert]— after making the above assumptions — to calculate AZZ’s future lost profits for *91three years or five years into the future may be valid, the underlying assumptions themselves, that is, the facts [the expert’s] future lost-profits calculations are premised on, are merely speculative.”); Ramco Oil & Gas Ltd. v. Anglo-Dutch (Tenge) L.L.C., 207 S.W.3d 801, 824-25 (Tex.App.Houston [14th Dist.] 2006, pet. denied) (op. on reh’g) (concluding evidence of lost profits legally insufficient because “Plaintiffs’ proof of lost profits is largely speculative, dependent on uncertain and changr ing market conditions, and based on risky business opportunities and the success of an unproven enterprise”); Atlas Copco Tools, Inc. v. Air Power Tool & Hoist, Inc., 131 S.W.3d 203, 209 (Tex.App.-Fort Worth 2004, pet. denied) (holding manufacturer’s evidence of lost profits insufficient because manufacturer included customers not part of distributor’s customer base and because numbers for six-year period were based on “one record year”); SBC Operations, Inc. v. Business Equation, Inc., 75 S.W.3d 462, 468-69 (Tex.App.-San Antonio 2001, pet. denied) (concluding evidence of lost profits insufficient because based on “assumptions” of increased business that “had no basis in fact”); Aquila Sw. Pipeline, Inc. v. Harmony Exploration, Inc., 48 S.W.3d 225, 245-46 (Tex.App.-San Antonio 2001, pet. denied) (although expert used ■ standard methodology to determine lost profits, evidence of lost profits insufficient because underlying facts were “merely speculative”); accord Saks Fifth Ave., Inc. v. James, Ltd., 272 Va. 177, 630 S.E.2d 304, 307-08, 311-12 (2006) (holding similar expert evidence of future lost profits attributable to departure of at-will employee insufficient because calculation “focused solely on a ‘but-for’ model of what [employer’s] profits would have been had [employee] remained employed there”). Bal-combe’s testimony was the only evidence of Horizon’s damages for lost profits; thus, the evidence was legally insufficient to support these damage findings.
Because we have concluded the evidence was' legally insufficient to' support the jury’s lost-profits findings under any liability theory, we need not address the Acadia defendants’ issues attacking the sufficiency of the evidence supporting those liability findings or the manner in which those liability theories were submitted in the jury charge.21 It is.also not necessary for us to address the Acadia defendants’ assertion that the trial court erred to conclude as a matter of law that the restrictive covenants were enforceable without modification. Thus, we do not address issue one, issue two, or portions of issue four raised by the Acadia defendants.
B. Denial op Motion to DISREGARD Jury’s Findings and Motion for New Trial 22
1. Insufficient Evidence to Support Jury’s Liability Findings
' In part of issue four, the Acadia defendants assert that the evidence was legally *92insufficient to support the jury’s findings that (1) the individual defendants breached their fiduciary duties; (2) the individual defendants misappropriated Horizon’s trade secrets;' (3) the individual defendants converted Horizon’s proprietary information; (4) the individual defendants knowingly accessed Horizon’s computer system without Horizon’s consent and with the intent to harm Horizon; (5) Saul, Pa-lus, Bayma, and Ulasewicz committed fraud and fraud by nondisclosure; (6) the individual defendants intentionally solicr ited, accepted, or agreed to accept a benefit from another knowing that the benefit would influence his or her conduct in relation to Horizon’s business affairs; and (7) the Acadia defendant's were liable for civil conspiracy.23 Because we have concluded that the evidence of lost profits was legally insufficient, we will review the sufficiency of the evidence of Horizon’s theories of liability that would allow for recovery for the trade-secret and business-expenses damages found by the jury — theft of trade secrets, fraud, and fraud' by nondisclosure — and that are raised by the Acadia defendants on appeal.
We may sustain a legal sufficiency challenge only when (l)the record discloses a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the' evidence establishes conclusively the opposite of a vital fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex.1998), cert. denied, 526 U.S. 1040, 119 S.Ct. 1336, 143 L.Ed.2d 500 (1999). Anything more than a scintilla of evidence is legally sufficient to support the finding. Cont’l Coffee, 937 S.W.2d at 450. More than a scintilla of evidence exists if the evidence, even if circumstantial, furnishes some reasonable basis for differing conclusions by reasonable minds about the existence of a vital fact. Rocor Int'l, Inc. v. Nat'l Union Fire Ins. Co., 77 S.W.3d 253, 262 (Tex.2002); Russell v. Russell, 865 S.W.2d 929, 933 (Tex.1993).
a. Theft of trade secrets
The Acadia defendants attempt to challenge the jury’s findings that the individual defendants intentionally committed theft of Horizon’s property or trade secrets.24 - Their argument seems to be that after answering “yes” that the individual defendants did so steal, misappropriate, and convert Horizon’s property or trade secrets,- the jury found that the value of the misappropriated trade secrets was zero, the value of the converted proprietary information was zero, but the fair market value of the stolen property or *93trade secrets was $50,000, which is an insupportable conflict.25 • Although- given time to review the jury verdict for any “inconsistency,” the Acadia defendants raised no objection to this alleged conflict in the jury's answers before the jury was discharged. ■ A complaint of conflicting jury findings must be raised before the jury is discharged to preserve any error for our review. Kitchen v. Frusher, 181 S.W.3d 467, 473 (Tex.App.-Fort Worth 2005, no pet.) (op. on reh’g); see also Tex. R. Civ. P. 295. The Acadia defendants failed to preserve this error, and we overrule this portion of issue four.
b. Fraud and fraud by nondisclosure
The Acadia defendants next attempt to challenge the jury’s findings that Saul,'Pa-lus, Ulasewicz, and Bayma committed fraud and fraud by nondisclosure and the jury’s attendant damages findings regarding Palus, Ulasewicz, and Bayma. The entirety of their argument focuses on the record facts surrounding these findings:
[T]he jury found that Saul, Palus, Ula-sewicz, and Bayma had committed fraud and fraud by non-disclosure in connection with expense reports for trips on June 8 and June 29, 2011. ([cite to jury charge in the clerk’s record]) These are the trips during which the four admit they met to discuss their plans for PRP. The jury awarded damages of $2,601.41 against Palus, $1,398⅝45 against Ulasew-icz, and $1,049.38 against Bayma. ([cite to jury eharge in the clerk’s record])
Although we are unsure what the Acadia defendants specifically are attacking, if they are challenging the sufficiency of the evidence to support each of these findings, the above-quoted statement is insufficient to appropriately raise such an evidentiary argument. See, e.g., McCullough v. Scarbrough, Medlin & Assocs., Inc., 435 S.W.3d 871, 912 (Tex.App.-Dallas 2014, pet. denied) We overrule this portion of issue four.
C. ExemplaRY Damages
1. Sufficiency of the Evidence
The Acadiá defendants argue as part of their fifth issue that the evidence was legally insufficient to support the jury’s malice finding against the individual defendants because there was no evidence that the individual defendants specifically intended -to cause a substantial injury that would support exemplary damages.26 The jury was- asked in question 21 whether it found “by clear and convincing evidence that the harm to Horizon from [the individual defendants’ breach of fiduciary duty, intentional interference with the non-competition covenants, misappropriation of trade secrets, conversion of proprietary information, theft of trade secrets or proper*94ty, and knowing access of Horizon’s computer system] resulted from malice by Saul, Palus, Ulasewicz, Bayma, or Pie-chocki.” Similarly, the jury was asked in question 22 whether clear and convincing evidence showed that the harm to Horizon was a result of Saul’s, Palus’s, Ulasewicz’s, and Bayma’s fraud and fraud by nondisclosure in submitting expense reports for reimbursement for the June 2011 meetings.27 The jury answered “yes” for each named individual defendant in question 21 and question 22. In response to question 23, the jury awarded Horizon $1,750,000 in exemplary damages against the individual defendants: $500,000 against Saul; $500,000 against Ulasewicz; $250,000 against Palus; $250,000 against Bayma; and $250,000 against Piechocki. The jury was not asked specifically to award exemplary damages against either PRP or Acadia.
In their reply brief, the Acadia defendants expound on their legal-insufficiency argument raised in their opening. brief:
[Insufficient evidence establishes the defendants engaged in “aggravated” conduct of the type that warrants [exemplary] damages. The defendants were competitive and eager to break into the expanding market for contract-based management services in a unique sector of the health care industry. Their enthusiasm for accessing this market did not come at Horizon’s expense, as Horizon agreed the defendants did not lure any of its existing customers away when they formed PRP. Rather, the defendant tapped new leads and customers unknown to-Horizon. This very activity— competing by tapping into new market share and -.utilizing Horizon’s forms— was the basis for Horizon’s underlying tort claims for misappropriation of trade secrets, fraud, harmful access by computer- and civil theft. Horizon did not establish, by clear and convincing evidence, “aggravated” conduct independently or qualitatively different from Horizon’s tort claims for lost profits, diminished market value, and a minor amount of expenses.
The Acadia defendants did not include any record references or citations to legal authorities to support these factual statements and legal precepts.
In any event, exemplary damages may be awarded, if Horizon produced clear' and convincing evidence that its harm resulted, from the individual defendants’ fraud or malice. See Tex. Civ. Prac. & Rem. Code Ann. § 41.003(a)-(b) (West 2015). Clear and convincing evidence is “the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.” Id. § 41.001(2) (West 2015). As the jury was charged, malice is “a specific intent by the defendant to cause substantial injury or harm to the claimant.” Id. § 41.002(7) (West 2015). In their opening brief, the Acadia defendants focus solely on the sufficiency of the evidence to show malice and do not sufficiently address fraud.28 We will do *95likewise and will also determine if the exemplary damages are reasonable and proportionate to the actual damages recovered, given that we have concluded the lost-profit award must be vacated. See id. § 41.013(a) (West 2015) (requiring intermediate appellate courts to detail reasons and specific facts in reviewing exemplary-damage awards); Bunton v. Bentley, 153 S.W.3d 50, 51 (Tex.2004) (requiring appellate court to address whether exemplary damages are excessive when compared to actual damages even if not raised oh appeal).
In reviewing the legal sufficiency of the evidence to support an actual malice finding, which must be proven by clear and convincing evidence, we must consider all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that the defendant acted with actual malice. Romero v. KPH Consol., Inc., 166 S.W.3d 212, 220-21 (Tex.2005); Sw. Bell Tel. Co. v. Garza, 164 S.W.3d 607, 609, 627 (Tex.2004). Malice may be shown through direct or circumstantial evidence. See Soon Phat, L.P. v. Alvarado, 396 S.W.3d 78, 110 (Tex.App.-Houston [14th Dist,] 2013, pet. denied).
We conclude that the evidence was legally sufficient to support the jury’s finding that the individual defendants acted with malice. Each of the individual defendants were highly-placed employees at Horizon. Part of the business plan that Saul presented to Acadia regarding the idea of forming an Acadia subsidiary recognized that Horizon’s customers would have to be targeted. Saul cautioned Acadia’s president, Turner, that any attempt to “orchestrate a management team ‘lift-out’ ” while the individual defendants were employed by Horizon carried “risk,” specifically a “claim [of] tortious interference,” One e-mail from Ulasewicz to Saul, which was sent while both were employed by Horizon, and three days before Saul made his presentation to Acadia, was particularly damning: ,
Here are my thoughts on a 12-24 month [strategy] relative to positioning. This time frame is critical to us in terms of success. Based on our preliminary sales plan as presented, we are in fact saying that we are going to take [a] certain number of agreements out of Horizon’s hide, both new deals but also terming contracts.... I would also recommend you begin to group the contracts we know are coming up over the next two years and place them in maybe three categories from In Play to Unlikely to Switch.... We also need to know not only the termination dates but much more importantly any rollover dates, this is critical.
... The more members of our senior management we bring over the greater our ability to shape and hone a message to potential clients that is based implicitly and explicitly on our knowledge that [their] Horizon exists in name only.... I do advocate we get either Palus or [Piechocki] and .. we should bring in Bayma. Hurting Horizon early and often is a business [strategy] and a good one.....
... I cannot think of a bigger body blow relative to impacting future new sales for Horizon than to get Piechocki out of there.
... The message to potential clients is Pedigree — we need to convey this is not a startup, this is a logical continuation of the undeniably established Leadership, *96Experience 'and Expertise that maintained Horizon in its number one position for the last ten years'.
[[Image here]]
... [Transition timing is very important I believe. We need to gut punch them as we leave, to me that means having all of our ducks in a row so we can move quickly into the market. Let’s make sure we talk around timelines before you commit, I know you are anxious to leave but if you wait for the right time, it will be all the sweeter. Business first — success is the best r[e]venge— trust me on this.
Once Acadia decided to proceed with Saul’s plan, Saul forwarded Ulasewicz’s, Palus’s, and Bayma’s resumes to Turner. Bayma questioned Saul extensively about the benefits she would receive as an Acadia executive. Bayma further recommended “bringfing] more technology” to Acadia clients than that provided by Horizon and “integrating clinical policies, systems with the Acadia hospitals.” Saul told Turner that Acadia should “go hard” after Piechocki, which would “put a real hurt on the competition.” Ulasewicz and Saul discussed how to convince Horizon customers to use PRP’s services. Saul requested an external hard drive for his Horizon computer, which 'Horizon paid for, and downloaded “everything that was non-financial on [Horizon’s] server.” He instructed his secretary to disable any encryption on .the computer and to not re-enable it. Saul also e-mailed many Horizon confidential documents to himself before resigning.
Before leaving Horizon, Saul, Ulasewicz, Bayma, and Palus met away from Horizon offices to discuss their plans for the subsidiary. Palus, Ulasewicz, and Bayma sought and received reimbursement from Horizon for the costs of this trip. Saul .cautioned the group to keep their “plans discrete [sic]” and described their planned, orchestrated resignations. In addition, Saul checked out the individual defendants’ personnel files in April 2011, shortly before his presentation to Acadia, and kept them until August 15, 2011, shortly before he resigned.
Before resigning to work for PRP, Pie-chocki e-mailed many Horizon documents to his personal e-mail address, ■ including Horizon’s lead list. Piechocki and Ulasew-icz later used this list to create a lead list for PRP. Ulasewicz told Saul, Palus, Pie-chocki, and Bayma that the disclosure of the newly-formed PRP lead list “or any related strategy” would “be viewed as an act of treason against the group.” Pie-chocki later used Horizon’s confidential contract form and merely substituted “PRP” everywhere it provided “Horizon.” While he was still employed by Horizon, Ulasewicz found out that a potential Horizon client, which previously had been unable to contract with Horizon, had determined it could use Horizon’s services. Ulasewicz told no one at Horizon and contacted the company after he joined PRP.
This legally sufficient evidence supports the jury’s finding of malice by the individual defendants. See, e.g., Wellogix, Inc. v. Accenture, L.L.P., 716 F.3d 867, 883-84 (5th Cir.2013); Nova Consulting Grp., Inc. v. Eng’g Consulting Servs., Ltd., 290 Fed.Appx. 727, 740-41 (5th Cir.2008); Lundy v. Masson, 260 S.W.3d 482, 496-97 (Tex.App.-Houston [14th Dist.] 2008, pet. denied). We overrule this portion of issue five.
2. Constitutional Excessiveness
Although not raised by the Acadia defendants on appeal,29 we must also ad*97dress whether the exemplary-damage awards were excessive in light of the sustainable awards for actual- damages and, thus, unconstitutional.30 See Bunton, 153 S.W.3d at 51, 54; see also Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 308 (Tex.2006) (“We review not whether the exemplary damage award is exorbitant ..., but whether it is constitutional.”). We have concluded that $55,049.24 of actual damages are recoverable: $50,000 for the fair market value' of the trade-secret items that the individual defendants misappropriated and $5,049.24 for the fraudulent reimbursements Palus, Ulasewicz, and Bayma requested from Horizon for their pre-resignation trip to meet about their plans for PRP. The jury awarded á total of $1,750,000 in exemplary damages against the individual defendants: $500,000 each against Saul and Ulasewicz and $250,000 each against Palus, Bayma, and Piechocki.
.Although exemplary damages are imposed to punish a defendant, they may not be grossly disproportionate to the gravity of the defendant’s conduct. See State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 426, 123 S.Ct. 1513, 1524, 155 L.Edüd 585 (2003). In determining whether the jury’s award is grossly excessive or disproportionate we consider (1) the degree of reprehensibility of. the defendant’s misconduct, (2) the disparity between the actual or potential harm suffered by the plaintiff and the exemplary-damages award, and (3) the difference between the exemplary damages awarded by the jury and the penalties authorized or imposed in comparable cases. Id. at 418, 123 S.Ct. at 1520.
The most important of the three considerations is the degree of reprehensibility of the defendant’s conduct. Id. at 419, 123 S.Ct. at 1521. Reprehensibility, in turn, considers' whether the 'harm caused was physical as opposed to economic, the tortious conduct evinced a reckless disregard of the health or safety of others, the target of the conduct had financial vulnerability, the conduct involved repeated actions or was an isolated incident, arid the harm was the result of intentional malice, trickery, deceit, or mere accident. Id. Here, there was no physical injury to Horizon, Horizon did not allege that the individual defendants exhibited reckless disregard for others’ health or safety, and Horizon was not financially vulnerable. However, the individual defendants’ conduct was repeated and intentional. See Bennett v. Reynolds, 315 S.W.3d 867, 874-75 (Tex.2010) (considering surrounding circumstances beyond the underlying tort in determining reprehensibility). The disparity between the exemplary damages and the compensatory damages after our reduction of Horizon’s compensatory damages is a more than thirty-to-one ratio. Finally, the criminal penalties authorized for theft of trade secrets are imprisonment for two to ten years and a maximum *98$10,000 fíne. See Tex. Penal Code Ann. § 12.34 (West 2011), § 31.05(c).
Few awards that exceed a single-digit ratio will satisfy due process, and the Supreme Court has suggested that a four-to-one ratio perhaps is the limit of what the constitution will allow. Campbell, 538 U.S. at 425, 123 S.Ct. at 1524. The Texas Supreme Court has concluded that a 4.33-to-1 ratio violated due process when only one of the reprehensibility factors was present. See Tony Gullo, 212 S.W.3d at 308-10; see also Bennett, 315 S.W.3d at 878-80 (analyzing Tony Gullo’s disapproval of 4.33-to-l ratio and concluding absence of particularly egregious act negated requested upward departure from 4-to-l ratio). While the individual defendants’ conduct may be categorized as repeated and intentional, the degree of its reprehensibility is mitigated by the economic nature of the harm to Horizon, the lack of any reckless disregard for the health or safety of others, and Horizon’s financial status. Finally, the maximum criminal fine for theft of trade secrets is $10,000. We conclude that the jury’s award of exemplary damages, given the lack of legally sufficient evidence of lost profits, was excessive and unconstitutional.
The remedy for excessive punitive damages is to suggest a remittitur, if possible, or remand for a new trial. Guevara v. Ferrer, 247 S.W.3d 662, 670 (Tex.2007). We initially ordered a remittitur amount that reflected the exemplary-damages total to be in proportion to the awarded actual damages — the total amount of exemplary damages against the individual defendants added together could not exceed the constitutional ratio to actual damages. On rehearing, Horizon argues that the proportion of actual damages to exemplary damages is measured on a per-defendant basis. The law on this point is far from clear, but we believe Horizon has the more reasoned argument and conclude that the exemplary damages against each individual defendant should be compared to and proportionate to the amount of actual damages awarded by the jury. See Carlton Energy Grp., LLC v. Phillips, 369 S.W.3d 433, 459-61 (Tex.App.-Houston [1st Dist.] 2012) (considering exemplary-damage amounts on a per-defendant basis in concluding that ratio of actual damages to exemplary damages was not constitutionally excessive), aff'd in part & rev’d in part on other grounds, — S.W.3d -, 2015 WL 2148951; Huynh v. Phung, No. 01-04-00267-CV, 2007 WL 495023, at *13-14 (Tex.App.-Houston [1st Dist.] Feb. 16, 2007, no pet.) (mem.op.) (comparing each exemplary-damage award against each defendant in determining ratio to compensatory damages and excessiveness); cf. Rose v. Doctors Hosp., 801 S.W.2d 841, 846 (Tex.1990) (op. on reh’g) (calculating wrongful-death damages governed by statutory cap on a per-defendant basis); Seminole Pipeline Co. v. Broad Leaf Partners, Inc., 979 S.W.2d 730, 751 (Tex.App.-Houston [14th Dist.] 1998, no pet.) (applying exemplary-damage cap in current section 41.008 on a per-defendant basis); 28 Tex. Jur.3d Damages § 350 (2015) (“Furthermore, the statutory cap [on exemplary damages in section 41.008] is applied on a per-defendant basis, not to the entire award of exemplary damages.”). But see Planned Parenthood of Columbia/Willamette Inc. v. Am. Coalition of Life Activists, 422 F.3d 949, 963-64 (9th Cir.2005) (“We shall remit to a sum for each plaintiff that is nine times that plaintiffs compensatory recovery, and we shall allocate that amount of punitive damages among defendants in the same proportion as the jury did in its verdicts.”), cert. denied, 547 U.S. 1111, 126 S.Ct. 1912, 164 L.Ed.2d 664 (2006); Cass v. Stephens, 156 S.W.3d 38, 77 (Tex.App.-El Paso 2004, pets, denied) (op. on remand) (“The jury assessed com*99pensatory damages of $101,300.92 against Frank and $98,780.82 against Frank and Michael jointly and severally. An appropriate amount of punitives against, Frank individually is $300,000, and against Frank and Michael jointly and severally is $300,000.”), cert. denied, 552 U.S. 819, 128 S.Ct. 115, 169 L.Ed.2d 26 (2007); 4 Andrew L. Grey et al., Bus. & Com. Litig. Fed. Cts. § 45.54 (3d ed. 2014) (“When the defendants are members of the samé corporate family and' the compensatory award is joint and several, it is ... more appropriate to calculate a single ratio using the full compensatory award as the denominator, as opposed to using the full amount of compensatory damages as the denominator for multiple ratios”). We recognize that some of the cases we cite in support of this holding addressed • other statutory caps on damages. But a cap is a cap, and a cap is applied to the total recovery on a per-defendant basis.
Here, we believe four times the $55,049.24 in actual damages awarded— $220,196.96 — would render the punitive damages against each individual defendant appropriately proportional to the gravity of their conduct and the actual damages awarded and, thus, constitutional. Therefore, we suggest a remittitur in an amount that would cause $220,196.96 in exemplary damages to be assessed against each individual defendant.31 If Horizon files this remittitur with the trial court clerk within thirty days of this opinion and notifies this court of such, we will reform this portion of the trial court’s judgment and, as reformed, affirm the exemplary-damage award. Otherwise, we will reverse portions of the trial court’s judgment and remand for a new trial on limited issues. See Tex. R. App. P. 46.3; Tex. R. Civ. P. 315; see also Bennett v. Reynolds, No. 03-05-00034-CV, 2010 WL 4670270, at *5 (Tex.App.-Austin Nov. 18, 2010) (mem. op. on remand), supplemental opinion after remittitur, 440 S.W.3d 660, 660-61 (Tex.App.-Austin 2011, no pet.).
3. Jury-Charge Error
a. Question 23
As part of their fifth issue, the Acadia defendants assert that question 23 — inquiring as to the appropriate amount of exemplary damages to be awarded to Horizon — was fatally defective and improperly submitted!32 They contend that the broad-form question “impermissibly combined numerous legal theories in a way that makes it impossible for this Court to determine the basis for the jury’s answers.”
Horizon argues that the Acadia defendants waived this argument because they did not object to question 23 at trial on the basis that the question failed to segregate between’theories of liability. At trial, the Acadia defendants objected to question 23 because “there [was] not a separate question for each Defendant. It is & Casteel problem;” Now on appeal, the Acadia defendants argue that each legal theory should have been submitted in a separate question. By referencing “Cas-teel,” the Acadia defendants were necessarily raising the issue that the question erroneously comingled valid and invalid li*100ability theories. See Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 388-89 (Tex.2000) (op. on reh’g). We disagree with Horizon and conclude that the Acadia defendants sufficiently raised this argument in the trial court. See, e.g., Tex. Comm’n on Human Rights v. Morrison, 381 S.W.3d 533, 536 (Tex.2012); Kelley & Witherspoon, LLP v. Hooper, 401 S.W.3d 841, 854 (Tex.App.-Dallas 2013, no pet.).
The jury was asked in question 23 “[w]hat sum of money, if any, if paid now in cash, should be assessed against Saul, Palus, Ulasewicz, Bayma, and Pie-chocki and awarded to Horizon as exemplary damages, if any, for the conduct found in Question No. 21 [malice by the individual defendants] or Question No. 22 [Saul’s, Palus’s, Ulasewicz’s, and Bayma’s fraud].” Broad-form questions are the preferred method of submitting issues to the jury. See Tex. R. Civ. P. 277. But a broad-form question cannot be used to “put before the jury issues that have no basis in the law or the evidence.” Romero, 166 S.W.3d at 215. Here, there was evidence to support the submission-of both fraud and malice as a basis for exemplary damages — neither was an invalid theory of recovery. Cf. Morrison, 381 S.W.3d at 537 (holding broad-form liability question harmful because included whether employer took adverse employment action against employee because employee’s - claim' she was denied promotion was an invalid theory given that she had not included claim in her EEOC complaint). Because there is a presumption in favor of broad-form submissions and because question 23 did not put an invalid theory before the jury, we conclude that the trial court did .not abuse its discretion in submitting both malice and fraud as theories of liability supporting exemplary damages. See Cimarron Country Prop. Owners Ass’n v. Keen, 117 S.W.3d 509, 511 (Tex.App.-Beaumont 2003, no pet.).
b. Question 24
.The Acadia defendants also attack the question that asked whether Horizon’s harm was attributable to any malice by Acadia or PRP — question 24 — because it did not allow this court to specify “what conduct the jury-determined was the basis for a finding of malice”.and because the question did “not allow the Court to determine that the same .twelve jurors found the malice resulted from the conduct or ratification of the same individual defendants.” At trial, the Acadia defendants objected to question.24 because it (1) improperly allowed a ratification or approval finding through a vice-principal with no evidence that any individual defendant was a corporate officer and (2) failed to “differentiate between the dates of occurrence for the various causes of action.” The Acadia defendants’ appellate arguments are substantively different from the objections raised to the trial court, and they failed to submit a substantially correct question resolving then; appellate arguments. Thus, the Acadia defendants’ arguments directed to question 24 were not preserved for our review.33 See Tex. R. Civ. P. 272, 274,278.
We overrule these portions of issue five.
3. Joint and Several Liability
The Acadia defendants argue that the trial court’s judgment awarding exemplary damages against Acadia and PRP jointly and severally was in error.34 *101In awarding exemplary damages, 'the trial court provided that each award was “jointly and severally from” each individual defendant, Acadia, and PRP. The individual defendants specifically argued to the trial court in their response to Horizon’s motion for entry of judgment that “Acadia and PRP cannot be jointly and severally liable for the. exemplary damages assessed against Saul, Palus, Ulasewicz, Bayma, and Piechocki” and that joint-and-several liability was improper based on the absence of a specific, exemplary-damage award against Acadia or PRP. Acadia and PRP seemed to adopt “all” of the individual defendants’ arguments raised in response to Horizon’s motion for entry of judgment. Indeed, Horizon filed an “omnibus” reply in support of its motion for entry of judgment and specifically argued that Acadia and PRP were jointly and severally liable for the exemplary damages awarded against the individual defendants. The Acadia defendants sufficiently raised to thé trial court the argument that Acadia and PRP could not be held jointly and severally liable for the specific exemplary damages found against the individual defendants. Cf. In re B.L.D., 113 S.W.3d 340, 353 (Tex.2003) (recognizing preservation-of-error rules support the “strong interest in ensuring that our trial courts have an opportunity to correct errors as a matter of judicial economy”), cert. denied, 541 U.S. 945, 124 S.Ct. 1674, 158 L.Ed.2d 371 (2004); Pirtle v. Gregory, 629 S.W.2d 919, 920 (Tex.1982) (“The reason for thé requirement‘that a litigant preserve a trial predicate for complaint on appeal is that one should not be permitted to waive, consent to, or neglect to complain about an error at trial and then surprise his opponent on appeal by stating his’ complaint for the first time.”).
In • actions against multiple defendants, “an award of exemplary damages must be specific as to a defendant, and each defendant is, liable ' only for the amount of the award made against that defendant.” Tex. Civ. Prac. & Rem. Code Ann. § 41.006 (West 2015). Thus, the Acadia defendants assert that the lack of a specific amount of exemplary damages awarded against Acadia and PRP by the jury renders the joint and several exemplary-damage award improper under section 41.006.
In question 24, the jury found that the harm arising from the individual 'defendants’ theft of trade secrets “resulted from malice attributable to” Acadia and PRP. The jury previously concluded that the individual defendants were acting in the course and scope of their employment with Acadia or PRP when they stole Horizon’s property or trade-secret information and that Acadia and PRP ratified this conduct. But contrary to Horizon’s contention, these findings do not allow a joint and several award of exemplary damages. See Computek Computer & Office Supplies, Inc. v. Walton, 156 S.W.3d 217, 223-24 (Tex.App.-Dallas 2005, no pet.); 2 John J. Kircher et al., Punitive Damages: Law & Prac. § 16:2 (2d ed.2015). Thus, the trial *102court’s judgment awarding exemplary damages jointly and severally was improper. We sustain this portion of issue five.
Although we agree that the joint- and-several nature of the award against Acadia and PRP was error as a matter of law, the remedy for such error is not as clear. Two appellate courts have remanded the issue to the trial court for a determination of the amount of exemplary damages to be awarded against each individual defendant. Andress v. Meah Invs. No. 2, Ltd., No. 01-07-00792-CV, 2009 WL 2882930, at *9-10 (Tex.App.-Houston [1st Dist.] Sept. 10, 2009, no pet.) (mem.op.); Computek, 156 S.W.3d at 224. However, both appeals were from bench trials, and the trial courts solely awarded exemplary damages jointly and severally, i.e., there were no individual awards of exemplary damages. Here however, Horizon proposed the jury questions regarding exemplary damages and specifically requested that the jury be asked to assign a specific dollar amount against each individual defendant but did not ask for a specific dollar amount against either Acadia or PRP. Because the jury charge, at Horizon’s request, specifically asked for dollar amounts for exemplary damages to be awarded only against each individual defendant, we need not remand to the trial court “to determine whether to award exemplary damages as to any specific defendant.” Computek, 156 S.W.3d at 224; see O’Hare, 455 Fed-Appx. at 382-83 (refusing to reverse joint award of exemplary damages because proposed jury question invited the joint assessment). The error in the form of the exemplary-damages award is its joint and several nature, not that it wholly failed to award exemplary damages against any defendant individually; thus, we are able to render an award that is not joint and several and appropriately awards amounts only against individual parties as the jury was charged and as allowed by section 41.006. See Tex. R. App. P. 43.3.
. D. Attorneys’ Fees
In their sixth- issue, the Acadia defendants assert that Horizon is not entitled to recover attorneys’ feés on its claims, Horizon failed to segregate its trial attorneys’ fees, the evidence was' insufficient to support the trial attorneys’ fee's, and the trial court erred by awarding appellate attorneys’ fees after the jury found no appellate attorneys’ fees were recoverable by Horizon. In its appeal, Horizon asserts in three issues that the trial court improperly reduced their trial and appellate attorneys’ fees.
1. Relevant Facts
At trial, Horizon’s trial counsel, Victor Vital, testified as to the amount, reasonableness, and necessity of Horizon’s attorneys’ fees and costs incurred through trial. The Acadia defendants objected to Vital’s testimony regarding attorneys’ fees, including the amount and the segregation percentage, because Horizon had not timely disclosed these details before trial. The trial court overruled this objection. Vital then testified that Horizon had incurred $875,789.50 in attorneys’ fees and $156,291.18 in expenses “up to [the] date of trial.” Vital opined that Horizon would incur between $100,000 and $150,000 in additional attorneys’ fees and expenses through the conclusion of the trial. He testified that he excluded 25% of the attorneys’ fees Horizon incurred because that percentage related to claims that did not support the award of attorneys’ fees. To reach 25%, Vital reviewed the billing records and tried to determine which of the billing entries applied to each claim, some of which were “inextricably covered.” See generally 'Tony Gullo, 212 S.W.3d at 313 (holding attorneys’ fees are not necessarily *103recoverable for all claims on basis of inseparability even if underlying facts are the same for different claims and even if attorney spent only nominal time on claim not entitled to attorneys’ fees). He also testified that, in the event of appeal, Horizon would incur a total of $130,000 in appellate attorney’s fees through appeal to the Texas Supreme Court. Vital did not segregate the appellate attorneys’ fees.
After all parties closed, the Acadia defendants orally moved for an instructed verdict “on attorney’s fees” based on the failure to segregate and on the absence of evidence regarding reasonableness. The trial court denied the motion. During closing jury arguments, Vital stated without objection that the total amount of trial attorneys’ fees Horizon requested — $904,-342.1235 — had already been reduced by 25%.
The jury charge inquired as to attorneys’ fees: “What is a reasonable fee for the necessary services of Horizon’s attorney, stated in dollars and cents?” The question then specifically asked for a dollar amount for each phase of the case from trial through “the completion of proceedings in the Supreme Court of Texas.” The Acadia defendants did not object to the submission of the attorney-fees question in the charge on the basis of nonsegregation. The jury awarded Horizon $900,000 “for representation in the trial court” but awarded no damages for appellate attorneys’ fees.
Horizon filed a motion for entry of judgment on the jury’s findings, requesting an award of $900,000 in trial attorneys’ fees, and a motion to disregard the jury’s finding on the issue of appellate attorneys’ fees based on Vital’s uncontradicted testimony. In the Acadia defendants’ motions to disregard the jury’s findings, they asserted that Vital’s segregation testimony was conclu-sory and, thus, was insufficient to show appropriate segregation. . The Acadia defendants alternatively argued that the award of trial attorneys’ fees should be “$656,842.12 ($875,789.50 x 25%), not the $900,000 requested,” The trial court entered final judgment awarding- Horizon $769,34236 in trial attorneys’ fees and a total of $97,500 in appellate attorneys’ fees.
The Acadia defendants summarily challenged the awarded attorneys’ fees in their motion for new trial.37 In its subsequent findings, the trial court explained its calculation of attorneys’ fees: “Based on the trial testimony segregating recoverable attorneys’ fees from fees that were not incurred in connection with a claim for which fees may be awarded, the Court concludes that Plaintiff is entitled to attorneys’ fees that are discounted by 25% and those discounted amounts are stated in the Final Judgment.”
*1042. Entitlement
The Acadia defendants first conténd in their sixth issue that Horizon cannot recover attorneys’ fees on its ,breach-of-contract claims because the authorizing statute relied on by Horizon in seeking attorneys’ fees — section 38.001 of the civil practice and remedies code — is preempted by the more specific Cové-nants Not to Compete Act. Compare Tex. Bus. & Com. Code Ann. §§ 15.51-.52 (West 2011), with Tex. Civ. Prac. & Rem. Code Ann. § 38.001 (West 2015).
We have concluded that the jury’s damage awards for breach of contract were supported by legally insufficient evidence of future lost profits; therefore, section 38.001(8) cannot support Horizon’s recovery of attorneys’ fees. See Mustang Pipeline, 134 S.W.3d at 201 (holding plaintiff may recover attorneys’ fees only if plaintiff prevailed on cause of action authorizing such fees and recovered damages). However, Horizon recovered under the Texas Theft Liability Act based on" the jury’s findings that the individual defén-dants intentionally stole Horizon’s property or trade secrets as prohibited by penal code section 31.05 during the course and scope of their employment with Horizon, which Acadia and' PRP ratified. See Act of May 26, 1999, 76th Leg., R.S., ch. 858, §"4, 1999‘Tex. Gen. ■ Laws 3537, 3539 (amended 2013 to remove section 31.05 from purview of Theft Liability Act upon adoption of Uniform Trade Secrets Act) (current'version at Tex.' Civ. Prac. & Rem. Code Ann.' § 134.002(2) (West Supp.2014)). The Theft Liability Act provides for the recovery of attorneys’ fees. Tex. Civ. Prac. & Rem. Code Ann. ■ § 134.005(b) (West 2011). The Acadia defendants do not assert that Horizon could not recover attorneys’ fees under the Theft Liability Act. Accordingly, Horizon was entitled to recover its attorneys’ fees. We overrule this portion of the Acadia defendants’ sixth issue.
3. Alleged Errors in Amounts Awarded for Trial and Appellate Attorneys’ Fees
The Acadia defendants argue in the remaining portion of their sixth issue that the trial and appellate attorney-fees awards were erroneous for multiple reasons. Similarly, Horizon asserts in the three issues of their cross appeal that their attorney-fees awards were improperly reduced. Because we have reduced Horizon’s compensatory damages based on insufficient- evidence of lost profits and concomitantly reduced the awarded exemplary damages upon a suggestion of remit-titur, we need not consider these arguments. The correct remedy in such a situation is to ' reverse thé trial court’s award and remand for á new trial on the issue of attorneys’ fees. See Barker v. Eckman, 213 S.W.3d 306, 313-15 (Tex.2006); see also Bossier Chrysler-Dodge II, Inc. v. Rauschenberg, 238 S.W.3d 376, 376 (Tex.2007): Young v. Qualls, 223 S.W.3d 312, 314-15 (Tex.2007).
E. Sanctions ORDER
In their seventh issue, the Acadia defendants argue that the trial court abused its discretion by ordering Saul to pay sanctions for pretrial discovery abuse.38 As previously stated, the trial court entered a pretrial order sanctioning Saul for pretrial discovery abuse and ordered him to pay Horizon $41,780.80. See Tex. R. Civ. P. 215.2(b)(2), 215.3. The trial *105court further denied Saul’s motion to reconsider the sanctions order and included the award in its final judgment. See Tex. R. Civ. P. 215.3.
The Acadia defendants argue that the sanctions order was based on Saul’s breach of fiduciary duty as alleged by Horizon; thus, the failure of that theory of recovery on appeal (as also urged by the Acadia defendants in their appeal) results in “the same relief on the issue of discovery sanctions.” But the trial court’s sanctions against Saul were based on the breach of his duty as a party to preserve relevant evidence after Horizon filed suit against Acadia, PRP, and the individual defendants. See Trevino v. Ortega, 969 S.W.2d 950, 954-57 (Tex.1998). The sanctions were not related to Horizon’s ultimate success on its claim for breach of fiduciary duty against Saul. We overrule Horizon’s seventh issue.
F. Postsubmission Brief
The Acadia defendants seek leave to file a postsubmission brief to provide “additional record references, case authority, and analysis relevant to ... three questions” posed by the panel at oral argument. Oral argument in this appeal was heard on November 4, 2014; however, the panel did not request postsübmission briefing. The Acadia defendants filed their motion for leave to file their postsubmission brief on December 1, 2014, which Horizon opposes. See 2d TexApp. (Fort Worth) Loe. R. l.C.
In their postsubmission brief, the Acadia defendants raise new issues and provide new record references and cases to support their previously-briefed arguments. Although some of the Acadia defendants’ assertions in the postsubmission brief are in response to the panel members’ questions at oral argument, their post-submission brief goes beyond merely answering those questions and strays into the impermissible territory of adding new issues to its appeal and shoring up issues that they did not brief as fully -as they might have preferred. Further, the Acadia defendants already have filed approximately 125 pages of briefing — 29,942 words — in this appeal. We recognize this is a complicated appeal but briefing must end at some point. This end point may certainly be set at oral argument. For these reasons, we deny the Acadia defendants’ motion for leave and did not consider their postsub-mission brief in our determination of this appeal. See Black v. Shor, 443 S.W.3d 154, 161 n. 2 (Tex.App.-Corpus Christi 2013, pet. denied); see also Tex. R. App. P. 38.7; Standard Fruit & Vegetable Co. v. Johnson, 985 S.W.2d 62, 65 (Tex.1998).
III. CONCLUSION
We conclude that the evidence of future lost profits was legally insufficient and the judgment for those amounts must be vacated. Although the evidence of theft of trade secrets, fraud, and fraud by nondis-' closure was sufficient to support the actual damages tied to those claims, the exemplary-damage award was excessive in light of the vacatur of the lost-profit damages. Therefore, we reverse in part the judgment of the trial court awarding Horizon future lost-profit damages and render a take-nothing judgment on Horizon’s claims upon which the jury awarded damages for future lost profits. We reverse that portion of the trial court’s judgment awarding exemplary damages jointly and severally against Acadia and PRP and render judgment that the exemplary damages are not awarded jointly and severally against Acadia and PRP. We also reverse the trial court’s judgment regarding attorneys’ fees and remand for a new trial on attorneys’ fees. See Tex. R. App. P. 43.2(a), (c), (d), 43.3.
*106We affirm the remainder of the trial court’s judgment conditioned on the remit-titur by Horizon of $649,015.20 in exemplary damages. See Tex. R. App. P. 46.3. Upon timely i*emittitur, we will reform the amount of exemplary damages awarded in the trial court’s judgment and affirm the remaining portions of the judgment as reformed. If Horizon does not timely file the remittitur, we will reverse the trial court’s judgment for a new trial on Horizon’s claims upon which
Horizon prevailed and was awarded damages that were supported by sufficient evidence. Soon Pkat, 396 S.W.3d at 95 (recognizing remand for new trial cannot be had solely on issue of exemplary damages).
. At some point after UHS bought PSI, Jacobs became the chief executive officer of Acadia.
. Horizon reimbursed Palus, Ulasewicz, and Bayma for their travel expenses related to these meetings with Saul.
. DeVaney eventually became the president of Horizon.
.. Piechocki did not sign an employment , agreement but, like all the other individual defendants, he acknowledged when he was initially hired that he had reviewed Horizon’s employee handbook, which restricted any use of Horizon’s confidential information and prohibited direct competition with Horizon.
. The jury found, however, that Acadia did not ratify any breach of fiduciary duty by Saul, Palus, Ulasewicz, or Bayma when they sought reimbursement for their June 2011 travel expenses.
.As they did regarding the individual defendants’ failure to comply with the restrictive covenants, the juty found, that Horizon suffered no past lost profits from the Westlake contract or Piechocki’s sales production.
. The jury found that the trade secrets that were the subject of Horizon’s claim for misappropriation of trade secrets had no value.
, The jury found that Saul charged no expenses to Horizon that were unassociated ■ with Horizon business.
. Because of this adoption language, we will refer collectively to the two motions to disregard as the Acadia defendants' motion to disregard.
. The trial judge who denied the post-trial motions and entered final judgment was not the trial judge who presided over the trial. The trial judge who presided over the trial retired at the . end of 2012 shortly after the conclusion of the trial at issue.
.The vast majority of their argument fo-' cused on the factual insufficiency of the evidence to support the jury’s lost-profit findings.
. Because the jury found that Horizon suffered no damages for past lost profits, our references in the remainder of this opinion to "lost profits” or “lost-profit damages” refer only to future lost profits.
. Horizon asserts that the Acadia defendants do not attack Balcombe’s methodology but only attack the reliability of his opinion. A lack of reliability is necessarily an attack on an expert's methodology based on some sort of analytical gap. See Houston Unlimited, Inc. Metal Processing v. Mel Acres Ranch, 443 S.W.3d 820, 835-38 (Tex.2014); TXI Transp. Co. v. Hughes, 306 S.W.3d 230, 235 (Tex.2010). Thus, these arguments, at least in this case, are two sides of the same coin — an opinion is unreliable and, thus, without evi-dentiary value if there is a flaw in the expert’s methodology. See, e.g., Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 714 (Tex.1997) ("[A]n expert’s testimony is unreliable even when the underlying data are sound if the expert draws conclusions from that data based on flawed methodology.’’), cert. denied, 523 U.S. 1119, 118 S.Ct. 1799, 140 L.Ed.2d 939 (1998).
.No objection is required to argue on appeal that, on the face of the record, the testimony is conclusory and speculative and therefore lacks probative value. Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 232-33 (Tex.2004); see Tex. R. Evid. 401.
. In their reply, the Acadia defendants argue that the evidence was insufficient to support the award of future lost profits "with respect to each of the tort liability findings.” But the Acadia defendants then state that they will "stand on their arguments in their opening brief concerning these redundant tort theories.” The Acadia defendants did not include a claim-by-claim analysis of the sufficiency of the evidence to show future lost profits in their opening brief.
. Indeed, Balcombe admitted that his analysis did not account for any contracts that Horizon actually lost to PRP.
. DeVaney testified that he would only have given Piechocki an "opportunity” to interview for Ulasewicz's position on either an interim or permanent basis. Piechocki testified that DeVaney stated he was going to "take his time” in tilling Ulasewicz's position and would "oversee the sales department” himself in the interim.
. Indeed, Piechocki testified that as part of PRP’s contract negotiations with Westlake, PRP paid Westlake $150,000 "toward the construction costs of the build out, just to update the facility, the unit, to current standards.” Horizon had never included such a term in its contracts.
. Piechocki testified that Westlake was not current on its management payments to PRP at the time of trial.
.We decline Horizon’s invitation on rehearing to determine the amount of lost-profit damages that are supported by the record and modify the trial court’s lost-profit award accordingly. Balcombe's testimony did not establish any amount of lost-profit damages with reasonable certainty; thus, we are unable to award Horizon a lesser amount of lost-profit damages based on Balcombe’s speculative testimony. Cf. ERI Consulting, 318 S.W.3d at 876-78 (reducing jury’s lost-profit award based on legally sufficient and largely undisputed evidence of lost profits and recognizing "uncertainty as to the fact of legal damages is fatal to recovery, but uncertainty as to the amount will not defeat recovery”).
. We recognize that typically a finding that the evidence was insufficient to support an award of actual damages results in an automatic reversal of the awards of exemplary damages and attorneys’ fees based on those unrecoverable actual damages. See Mustang Pipeline Co. v. Driver Pipeline Co., 134 S.W.3d 195, 201 (Tex.2004); Twin City Fire Ins. Co. v. Davis, 904 S.W.2d 663, 665 (Tex.1995). We address exemplary damages and attorneys' fees later in this opinion because there were liability findings upon which Horizon recovered actual damages other than lost-profits damages. ' . ,
. Although the Acadia defendants do not specifically attack the trial court’s denial of their motion to disregard the jury’s findings and motion for new trial, their legal-sufficiency issues were preserved through these procedural devices; thus, their appellate issue necessarily attacks the trial court’s denials as *92well. See T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 220-21 (Tex.1992); cf. Galaznik v. Galaznik, 685 S.W.2d 379, 384 (Tex.App.-San Antonio 1984, no writ) (“When the overruling of a motion for judgment notwithstanding the verdict is attacked, the appellate court reviews this as a 'no evidence’ point.”).
. Many of the Acadia defendants' sufficiency contentions are summarily briefed such that the entirety of their appellate contention consists of nothing more than the statement of what the jury’s finding was with no further argument. Indeed, the Acadia defendants seem to assert that their sufficiency attacks on each theory of liability are nothing more than further support for their issue that the evidence of lost profits was legally insufficient. To the extent we can divine what their specific appellate assertion is, we will address it. See Tex. R. App. P. 38.9,
. At oral argument, counsel for the Acadia defendants seemed to concede that they were not attacking the jury's damages finding regarding the fair market value of the trade-secret items that the individual defendants stole.
. To the extent the Acadia defendants are arguing anything other than this conflict, we will not address it as inadequately briefed. Even a liberal construction of their one-sentence argument in their appellate brief is insufficient to determine what their contentions or supporting facts and authorities are. See Tex. R. App. P. 38. l(i), 38.9(b).
. In their opening brief, the Acadia defendants contended that there was no evidence that they specifically intended that Horizon would suffer any injury different from its economic damages for "lost profits, diminished market value, and a minor amount of expenses.” In other words, they seemed to raise the independent-injury rule as a bar to exemplary damages in this case. Indeed, Horizon addressed the independent-injury rule in its response brief. But in their reply, the Acadia defendants assert the independent-injury rule has no application because recovery was not based on breach of contract and contend that "none of the parties have previously argued the economic loss rule in this case.” To the extent the Acadia defendants attempted to raise thp independent-injury rule in their opening brief, we will not address it.
. The Acadia defendants do not attack question 22 in their arguments regarding exemplary damages.
. Although this basis for exemplary damages alone is sufficient to justify an exemplary-damage award against Saul, Palus, Ulasewicz, and Bayma, see Tex. Civ. Prac. & Rem. Code Ann. § 41.003(a); Alahmad v. Abukhdair, No. 02-12-00084-CV, 2014 WL 2538740, at *13 (Tex.App.-Fort Worth June 5, 2014, pet. denied) (mem. op. on reh’g), we will address the Acadia defendants' - laclc-of-malice contention in an abundance of caution. Such caution especially is warranted in this case when the Acadia defendants’ counsel candidly admitted during oral argument that he did not know which of the Acadia defendants’ issues were dispositive and which issues need not be ad*95dressed based on favorable determinations of related issues. Further, the fraud found by the jury to justify exemplary damages did not extend to Piechocki.
. The Acadia defendants raised the dispro-portionality or excessiveness of the exemplary *97damages in their motion to disregard the jury's findings and supporting brief, to which Horizon responded.
. The Acadia defendants also do not assert on appeal, as they did in the trial court in their motion to disregard the jury’s findings, that the statutory cap on exemplary damages applies to reduce the jury’s exemplary-damage awards as a matter of law. See Tex. Civ. Prac. & Rem. Code Ann. § 41.008(b) (West 2015). But because the jury specifically found that the individual defendants committed theft of trade secrets as defined in the penal codei the cap would not apply." See id. § 41.008(c)(13); Tex. Penal Code Ann. § 31.05 (West 2011); cf. O’Hare v. Graham, 455 Fed.Appx. 377, 383 (5.th Cir.2011) (holding because jury made no specific findings regarding exceptions to application of statutory damages cap, cap applied to reduce awarded exemplary damages).
. Accordingly, the exemplary-damage awards against Palus, Bayma, and Piechocki would be reduced by $29,803.04, and those against Saul and Ulasewicz would be reduced by $279,803.04. This would result in a total exemplary-damage award of $1,100,984.80.
. We previously concluded that the evidence was legally sufficient to support the jury’s findings that the individual defendants acted with malice in response to question 21. The individual defendants did not attack the sufficiency of the evidence to support the jury's findings regarding fraud in question 22.
. Because any defective submission of question 24 has not been preserved, we need not address the Acadia defendants’ arguments regarding "course and scope and ratification,” which are contingent on the defective submission of question 24.
. Horizon argues that the Acadia defendants failed to raise this issue in their opening brief, *101thereby waiving it. However, the Acadia defendants argued that the trial court’s erroneous submission of the exemplary-damages questions "was compounded because it also awarded exemplary damages against Acadia and PRP under a vicarious liability theory, which is never proper under Texas law.” They further stated that "question 24 does not support a judgment against Acadia and PRP for exemplary damages." Wé conclude these arguments fairly raised the issue for our review and reject .Horizon’s contention that the Acadia defendants’ failure to specifically cite section 41.006 renders their appellate argument waived as inadequately briefed. See Tex. R. App. P. 38.1(f); see, e.g., Perry v. Cohen, 272 S.W.3d 585, 587-88 (Tex.2008); Crawford v. XTO Energy, Inc., 455 S.W.3d 245, 247-48 (Tex.App.-Amarillo 2015, pet. filed).
.The record does not clearly show what this number represents because Vital’s testimony was that Horizon had incurred $875,789.50 in attorneys’ fees up to the date of trial with an additional $100,000-$150,000 through trial. We believe the number Vital used during closing jury argument reflects a 25% reduction of $1,205,789.50, which appears to be an inaccuracy of the amount of Horizon’s attorneys’ fees to the date of trial plus attorneys' fees for the duration of the trial: $875,789.50 + $150,000 = $1,025,789.50. Of course, Vital's closing jury argument was not evidence.
. It appears this amount is a 25% discount of the correct amount of attorneys’ fees Horizon incurred through the end of the trial— $1,025,789.50.
. In a boilerplate section entitled "Points required by Rule 324(b)” in.which they raised one-sentence challenges to each jury finding, the Acadia defendants stated that the trial attorneys’ fees award was “excessive” with no further argument. See Tex.-R. Civ. P. 322.
. The Acadia defendants do not challenge the trial court's inclusion of a spoliation instruction in the jury charge. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284437/ | OPINION AND ORDÉR
NICKELL, JUDGE:
Consequences attach when a probationer violates conditions of release. This Opinion confirms the role of the Commonwealth’s Attorney in a court-initiated hearing when a probated- defendant fails to comply with the terms of release.
As the appellant, the Commonwealth argues it is a. critical player in the probation modification1 process — to protect the rights of victims, to champion the interests of all Kentuckians, and to ensure probation violators receive due process. While acknowledging KRS2 533.050,3 the statute *184governing probation violations, does not mention the Commonwealth, the .Commonwealth’s Attorney forges a role for itself because it initiated the prosecution that ultimately resulted in the punishment that triggered the probation. The Commonwealth further argues Kentucky courts have traditionally placed the burden on the Commonwealth’s Attorney to prove an alleged probation violation by a preponderance of the. evidence. Murphy v. Commonwealth, 551 S.W.2d 838, 841 (Ky.1977).
In contrast,, the appellee,- Joshua S. Goff,4 argues the Commonwealth's Attorney can play no role in probation modification whatsoever because the General Assembly did. not explicitly assign such a role in enacting KRS 533.050. The specific question posed by the Commonwealth’s Attorney is whether it may participate in a court-initiated probation hearing only if invited to do so by the -.trial- court. Between these two diametrically opposed positions we seek a resolution that is both constitutionally and statutorily sound.
PROCEDURAL BACKGROUND
The question of how .to accomplish probation modification5 arose in this case when the Jefferson Circuit Court received a written supervision report dated January 15, 2013; — a Tuesday — reciting three violations6 and stating Goff was “currently awaiting arraignment at Louisville Metro Corrections.” Goff had been arrested that day on a probation violation detainer as he arrived at the office of the Division of Probation and Parole. Conspicuously absent from the supervision report was any indication of who received a copy of the *185report. In pleadings, the Commonwealth indicates it did not receive a copy, but apparently the trial court did- because it ordered the Jefferson County Department of Corrections to deliver Goff to the court on January IT, 2013. Goff appeared in court — alone-r-for an arraignment at which the court told him to say nothing and then read to him the alleged violations from the supervision report. Immediately thereafter, without warning Goff of any of his constitutional rights or the consequences of speaking to the court — and with no defense attorney at Goffs side — the court engaged Goff in a candid exchange in which Goff essentially admitted violating the terms of probation. Absent from the courtroom during the arraignment was a representative of the Commonwealth’s Attorney and the probation and parole officer who generated the supervision report. The court gave Goff “the benefit of the doubt,” released him from jail, and credited him with the three days he had served. Out of the blue, the prosecutor received an electronic copy of the following order entered on January 18,2013:
This matter came before the Court on January 17, 2013 for arraignment following his arrest (sic) a result of the circumstances set out in on (sic) a Special Supervision Report dated January 15, 2013.
Following discussion of record and the Court being otherwise- sufficiently, advised;
IT IS HEREBY ORDERED that, for the reasons stated on the record and incorporated herein by reference, the conditions of the Defendant’s probation are MODIFIED, so as to require that he serve three (3) days (credit time served) in the Jefferson County Jail.
SO ORDERED this 17th day of January, 2013.
/s/A.C. MCKAY CHAUVIN, JUDGE ec: Hon. Stacy Greive (sic)
' Officer Laura Wesley;' Probation and Parole
Goff never complained about the modification or the manner in which it occurred. Goffs counsel argues any complaint about the trial court’s procedure was personal to Goff and he waived, any error by not seeking reconsideration of the order, or filing an appeal. :
With the above-quoted order in hand, on February 4, 2013, the Commonwealth moved the trial court to revoke Goffs probation. When the motion was called' by the court a week later, with Goff and his attorney present, -the Commonwealth requested a hearing because it had not been present on January 17, 2013, and had not had an opportunity to address the violations — especially the lack of payment toward the extreme amount of restitution7 owed to the elderly victim.- The trial court denied the. motion, .stating the violations had been adequately resolved in January and the three-day jail stay “got Mr. Goffs attention.” An order denying the motion to revoke was entered on February 12, 2013, one day after .the motion had been heard.
On February 18, 2013, the Commonwealth filed "a notice of appeal in this Court, challenging the order entered on January 18, 2013, that modified Goffs probation without the Commonwealth’s knowledge, input or participation. That same day, the Commonwealth moved the trial court to reconsider its denial of the motion to revoke without convening a hearing. When that motion was heard on February *18625, 2013, the court granted the desired hearing, but characterized the motion as “disingenuous” as set out in the following exchange:
Court: Commonwealth v. Joshua Shane Goff.
Commonwealth: The Commonwealth’s motion to reconsider the Court’s.... Court: Give you a hearing? Commonwealth: Yes.
Court: I — I’m really — um—torqued about it frankly, but I will give you the hearing. I don’t think you have ... it gets ... I think it’s a “be careful what you ask for situation” because I do this probably a thousand times and you all have never objected — EVER—so you shouldn’t object just because you don’t like the decision I made this time. It’s ... it’s troublesome.
Commonwealth: The Commonwealth is objecting because we did not (get the information about the violation). [Comment difficult to decipher because both prosecutor and court speak at once.] Court: I understand, but what I’m saying is that you all are here hundreds— literally hundreds of times — when that takes place. I send out hundreds of orders to that effect and you all have never objected — I’m guessing because you agreed with what I decided. It’s really disingenuous to object only when you don’t agree with what I decided. So that’s why I’m torqued about it. So, I’ll give you the hearing date.
A hearing on the motion to reconsider denial of the revocation without a hearing was set for April 9, 2013. Before that hearing occurred however, two more supervision reports were filed detailing even more violations.
As of March 11, 2013, Goff had again failed to submit to random drug tests and report to his probation officer. He had also absconded from supervision, prompting the probation officer to request a probation violation warrant. Then, on March 18, 2013, a special supervision report was filed stating Goff had turned himself in three days earlier, he had been arrested on the probation violation detainer without incident, and he was currently awaiting arraignment in jail. In this instance, the prosecutor who had handled Goffs original charges received copies of both reports. On March 20, 2013, Goff, with counsel at his side, was arraigned on the violations recited in the two March supervision reports and the matter was continued until April 9, 2013. It appears no prosecutor attended the arraignment.
Goff, his attorney and two prosecutors attended the hearing on April 9, 2013, at which the trial court reconsidered the Commonwealth’s motion to revoke without a hearing. At the outset, defense counsel asked for clarification of the precise claim the court was hearing that day. The trial court stated its position — since the court had scheduled the January 17, 2013, arraignment on its own initiative, the Commonwealth had no right to attend the session because only a defendant has due process rights; furthermore, the Commonwealth cannot be revoked, only a defendant can be revoked. Citing KRS 533.050(2), the Commonwealth argued a proper hearing had not occurred on January 17, 2013, to which the trial court stated it would hear evidence concerning only the newest violations and would not rehash the previously resolved violations. Thus, the trial court granted the Commonwealth’s request for a hearing, but would not allow it to prove the January violations that resulted in Goff serving three days in jail. Thereafter, the Commonwealth called Goffs probation officer to the stand and questioned her about the two March 2013 *187supervision reports.8 At the close of the hearing, Goffs probation was revoked and he was ordered to begin serving the previously imposed seven-year sentence.
On April 22, 2013, citing CR9 59.05, Goff moved to vacate the revocation, claiming there was no statutory basis in KRS Chapters 439 or 533 for the Commonwealth to actively participate in a probation revocation hearing, and the Commonwealth had filed an unauthorized pleading by moving for revocation. The Commonwealth disagreed, arguing KRS 15.725 makes the Commonwealth’s Attorney responsible for prosecuting violations of criminal and penal laws in circuit court — including probation violations. Moreover, the Commonwealth argued a probation violation must be proved by a preponderance of the evidence, Murphy, 551 S.W.2d at 841, and the prosecutor is the logical entity to develop such proof. Further, the Commonwealth asserted if the trial court attempts to develop the proof itself, it is no longer the “neutral and detached” magistrate necessary to satisfy due process. Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S.Ct. 1756, 1762, 36 L.Ed.2d 656 (1973); Marshall v. Commonwealth, 638 S.W.2d 288, 289 (Ky. App. 1982). The Commonwealth also argued excluding it from participating in a court-initiated revocation hearing places the trial court in the position of engaging in ex parte communications when a judge is ethically prohibited from personally investigating a case “and must consider only the evidence presented.” SCR10 4.300, Canon 3B(6)-(7).
After hearing Goffs motion to vacate and the Commonwealth’s opposition on June 5, 2013, the trial court allowed the revocation to stand in an order entered August 21, 2013. In its attempt to frame the issues for this appeal, the trial court concluded in that order:
The Court recognizes and appreciates that KRS 533.050 makes no reference, either explicitly or implicitly, to the Office of the Commonwealth’s Attorney (“the Commonwealth”). KRS 533.050 codifies the due process rights due a defendant facing the possibility of revocation. Defendants have due process rights. Governments and governmental agencies do riot. This is so because the purpose underlying due process rights is to protect defendants from governments and governmental agencies. The Commonwealth has no right to be present or to participate in a hearing initiated by the Court pursuant to KRS 533.050. The Commonwealth has no right to a hearing on a motion asking the Court to exercise its authority • under KRS 533.050. To the extent the Commonwealth has argued otherwise, that argument is specifically and categorically rejected. Be that as it may, it does not follow that allowing the Commonwealth to participate in a KRS 533.050 hearing is a violation of that statute or a defendant’s due process rights. This is so regardless of whether the hearing was initiated by the Court or in response to a motion by the Commonwealth asking the Court to revoke a defendant’s probation.
The statutory authority for the conduct of probation revocation hearings is set out in KRS 533.050. In keeping with same, the Court is authorized to “.summon the defendant to appear” or “issue a warrant for his arrest” upon a finding of probable cause to believe that the defendant has failed to comply with a *188condition of his sentence. ICRS 533.050(1). However, the Court may not revoke or modify the conditions of a defendant’s probation- in the absence of: (1) written notice to the defendant of the grounds for revocation or modification; and (2) a hearing at which the defendant is represented by counsel. KRS 533.050(2). KRS 533.050 does not specify the manner in which the written notice is to be provided or the hearing is to be conducted.. It is nevertheless incumbent upon the Court to insure that the notice and the.hearing are provided/conducted in a manner that .provides the Defendant with due process of law. Such was the case in the instant case. The Defendant was provided with written notice of the alleged violations. The March 11, 2013 Special Supervision Report was made a part of the court file and was appended to the Commonwealth’s Supplement to Motion to Revoke filed on March 13, 2013. As such, and because the Defendant was on notice of the alleged violations approximately thirty-eight (38) days in advance of the hearing, he was given a full and fair opportunity to prepare to address those allegations. The Defendant, who was present at the hearing with appointed counsel, was provided with a full and fair opportunity to confront and cross-examine any witnesses called against him, and to present his own witnesses and/or documentary evidence. It has not been suggested, and there is nothing in the record to suggest, that the Court failed to preside over the hearing in an appropriately neutral and detached manner. At the conclusion of the hearing the Court issued a written Order setting out the basis for ruling. As such, the Defendant was afforded due process of law. See Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S.Ct. 1756, 1761-[17]62 [36 L.Ed.2d 656] (1973); Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 6604 [2604, 33 L.Ed.2d 484] (1972); Commonwealth v. Alleman, 306 S.W.3d 484, 486 (Ky. 2010). That due process was in no way impeded or precluded by the presence and participation of the Commonwealth at the hearing.
Wherefore, IT IS HEREBY ORDERED that the Defendant’s motion to vacate the Court’s Order of April 9, 2013 revoking his probation is respectfully DENIED.
SO ORDERED this 20th day of August, 2013.' \
/s/ A.C. MCKAY CHAUVIN, JUDGE www.mckaycauvin.com
ec: Hon. Stacy Grieve
Hon. Aaron Dyke / Hon. J. David Niehaus
Goff filed notice of his intention to appeal the order denying his motion to vacate, but then filed a suggestion of mootness which a motion panel of this Court treated as a motion to dismiss and granted as of September 17, 2004.11. Once Goffs cross-appeal was dismissed, the only issue before this Court was the Commonwealth’s appeal on the limited issue of whether a trial court may'modify probation on its own initiative without a hearing in which the Commonwealth is allowed to participate.
As he had done with his own cross-appeal, Goff moved to dismiss the Commonwealth’s appeal, suggesting it, too, was moot. He claimed the ultimate revocation of his probation divested this Court of subject matter jurisdiction under Kentucky Board of Nursing v. Sullivan Uni*189versity System, Inc., 433 S.W.3d 341 (Ky. 2014), rendering the appeal moot because any appellate opinion would be advisory only and, therefore, prohibited. Acknowledging the question framed for appeal is-“technically moot,” the Commonwealth opposed the motion to dismiss arguing the issue — which so far has evaded review — is likely to be repeated, and, furthermore, the window in which Goff could request shock probation12? was still open. A motion panel of this Court passed the motion and the suggestion of mootness to this merits panel for-resolution.
During the hearing on April 9, 2013, the trial court confirmed it commonly modifies probation without input from the Commonwealth; perhaps as often as “a thousand times.” According to the Commonwealth’s brief, the practice continues in that court today. While a ruling in this case will have no “practical legal effect” on Goff, the question presented is an important one in need of resolution. Morgan v. Getter, 441 S.W.3d 94 100-03 (Ky. 2014). Thus, we deny the motion to dismiss the Commonwealth’s appeal as moot.
ANALYSIS
In this Opinion we address the limited question of whether a trial court may call a probationer before it to' answer alleged probation violations, and modify his sentence, all without notice to and participation by the Commonwealth’s Attorney and defense counsel. This is not a typical case in which we are asked to determine whether the record' supports a conclusion that probation was properly modified. Rather, we are asked to determine whether the modification procedure used by the trial court was legally sufficient. Our review of this purely legal question is de novo. Hamilton-Smith v. Commonwealth, 285 S.W.3d 307, 308 (Ky. App. 2009).
The Commonwealth has acknowledged the issue raised in 'this appeal was not preserved for our review-r-but the way it arose did not afford an opportunity' to raise the issue before the modification occurred. Per RCr1310.26, we grant palpable error review.
Our starting point is KRS 533.050(2) which dictates two events must occur before a probated sentence is modified or revoked: a hearing must be held during which the defendant is represented by counsel; and, the defendant must receive — in writing — the grounds alleged in support of modification. In reviewing the events of January 17, 2013, we conclude neither statutorily mandated event occurred; thus, the procedure used by the trial court is suspect.
First, Goff appeared for arraignment before the trial court alone — he was not represented by counsel as required by KRS 533.050(2) — a flaw we cannot overlook. Second, the trial court read the alleged violations to Goff; there is no indication in the record written ‘ notice,14 as required by statute, was provided to Goff prior to modification being ordered at arraignment — a second flaw we cannot excuse. The expedited procedure used by *190the trial court did not even .partially comply with KRS 533.050(2), although the trial court appears confident it did.
Furthermore, we are not convinced the arraignment — as conducted by the trial court — constituted the hearing envisioned by KRS 533.050(2). The trial court correctly notes the legislature has not specified how notice of the alleged violations must be delivered to the probationer, nor how the mandatory “hearing” must be conducted, and has- not assigned a role to the Commonwealth’s Attorney at that hearing. However, to pass constitutional muster, the hearing must comport with minimum due process requirements which have long been identified as:
(a) written notice of the claimed violations of parole;- (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a ‘neutral and detached’ hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole.
Morrissey, 408 U.S. at 488-89, 92 S.Ct. at 2604. A decade later, Kentucky courts applied the same minimum due process rights in the context of a probation revocation hearing. Marshall, 638 S.W.2d at 289.
Comparing Goffs arraignment to the basic rights listed in Morrissey and echoed in Marshall, we have already mentioned the failure to give written notice of the alleged violations. Next, the trial court heard no witnesses, no evidence -and no argument — three events presupposing participation by counsel for both the probationer and the Commonwealth. Goff, without -the benefit of counsel, was never told the evidence against him, nor that he could cross-examine adverse witnesses or present his own witnesses and proof. Since there were no witnesses, an opportunity to' question them never materialized. This turn of events is particularly troubling because our Supreme Court has stated “[d]ue process requires that alleged violations be established through sworn testimony, with the opportunity, for cross-examination by the probationer.” Hunt v. Commonwealth, 326 S.W.3d 437, 439-40 (Ky. 2010) (improper for unsworn probation officer to simply apprise court of violations). Based on Hunt', we conclude the trial court’s acceptance of the probation officer’s signed supervision report — without more — was insufficient proof upon which to find a violation and enter a modification.
Whether the trial court was “neutral and-detached” is also questionable. Because arraignment involved only the judge and Goff — a bailiff was in the courtroom but said nothing — the judge played multiple roles — social worker, defense attorney, prosecutor and judge — to name a few. Finally, the order modifying probation stated no facts or reasons upon which the modification was based. In the sheer interest of speed, it appears the trial court excluded the Commonwealth from participating and overlooked all six of Goffs minimal due process rights. We understand the desire to shorten the time between a probation violation and punishment, but not at the expense of the probationer’s constitutional rights. As conducted, Goffs arraignment was an inadequate precursor to probation modification. Thus, we must vacate the order of modification and remand the matter to the trial court for further proceedings consistent with this Opinion.
*191However, our review is not complete, because the revocation hearing that occurred two .months later — a hearing begrudgingly granted to the Commonwealth and then, limited in scope — was also flawed. Announcing it had read KRS 533.050 — an exercise he suggested others may have failed to do — the trial court concluded the Commonwealth had no right to participate in any court-initiated modification hearing because the word “Commonwealth” does not appear within the statute. From the absence of that single word, the trial court concluded it could exercise its discretion in conducting the hearing as it saw fit and invite the Commonwealth’s Attorney to participate if and when it so chose. We disagree. KRS 533.050 does not mention the word “Commonwealth,” but we do not read the statute as reducing the Commonwealth’s Attorney to a spectator at every court-initiated probation hearing.
First, a strict reading of KRS 533.050 mandates participation of both the defendant and defense counsel at the hearing. Allowing Goffs arraignment to morph into a modification hearing without the presence of defense counsel violated the trial court’s own insistence on strict application of the statute’s language.
Second, KRS 533.050 — first enacted in 1975 and amended as recently as 2011 — cannot be read in isolation; it must be applied in the context of the entire penal code. Pearce v. University of Louisville, by and through its Board of Trustees, 448 S.W.3d 746, 749 (Ky. 2014) (read particular statute and entire body of law to ensure logical interpretation).- For example, it must be read in tandem with KRS 15.725, enacted in 1976, which gives each Commonwealth’s Attorney:
the duty to prosecute all violations whether by adults or by juveniles subject to the jurisdiction of the Circuit Court of the criminal and penal laws which are to be tried in the Circuit Court in his judicial circuit.
By treating the prosecutor as a “by invitation only” guest at a court-initiated probation hearing, the court prevented the Commonwealth’s Attorney from doing the job the. legislature specifically assigned to it.
Third, even without KRS 15.725, absence of the word “Commonwealth” from KRS 533.050 would be insufficient reason to eliminate the prosecutor from a probation modification hearing. RCr 9.78 does not' mention the Commonwealth’s Attorney, but no one is suggesting the prosecutor is an unnecessary component in a suppression hearing. Similarly, KRS 504.100 does not contain the phrase “Commonwealth’s Attorney,” but the prosecutor is involved in a criminal defendant’s competency hearing. Finally, RCr 8.08, 8.09 and 8.10 do not mention the Commonwealth’s Attorney either,, but one would be hard-pressed to eliminate the prosecutor from the taking of a guilty plea or conditional plea, or withdrawal thereof.
Fourth, the legislature’s decision not to specify a role for the prosecutor in KRS 533.050 is not the equivalent of excluding him from the probation modification process — to require every statute to include every applicable thought would create unnecessary -redundancy. Kentucky courts have long placed the burden on the Commonwealth “to show by a preponderance of the evidence that the [probationer] has violated the terms of his probation[,]” Murphy, 551 S.W.2d at 841, and in rendering Hunt, 326 S.W.3d at 439-40, confirmed sworn testimony is required. Thus, Kentucky courts recognize the value of a prosecutor’s participation in a probation modification hearing, and
failure of the legislature to change a known judicial inteipretation of a statute *192[is] extremely persuasive evidence of the true legislative intent. There is a strong implication that the legislature agrees with a prior court interpretation when it does not amend the statute interpreted.
Hughes v. Commonwealth, 87 S.W.3d 850, 856 (Ky. 2002) (quoting Rye v. Weasel, 934 S.W.2d 257, 262 (Ky. 1996)). The 2011 legislative, session would have been a perfect opportunity to correct any .flaw in KRS 533.050 — if any flaw there was — since the General Assembly was making sweeping changes to the criminal code in an effort to reduce Kentucky’s prison population and incarceration costs, reduce crime and increase public safety. Revising KRS 533.050(2) was certainly on the General Assembly’s radar during the 2011 session because the statute was amended to reference the adoption of KRS 439.3108, which created a system of graduated sanctions a probation officer may impose for probation violations15 without court involvement. Since the legislature could have, but did not, amend the statute to muzzle the Commonwealth during cpurt-initiated probation hearings, we must conclude it agrees with the court’s long-standing interpretation that a prosecutor plays a vital role in a probation hearing and does not attend by invitation only.
Fifth, we fully recognize KRS 533.050 does not specify a role for the Commonwealth, but the -statute does - require a hearing. Hearings have essential components that are provided by attorneys on behalf of their respective parties. Here, even the trial court recognized the Commonwealth had a continuing interest in Goffs probation as evidenced when it called the case on the docket — “Commonwealth v. Goff’ — and again when it copied the Commonwealth — after the fact — on the orders it entered. Likewise, the probation officer recognized the Commonwealth’s continuing interest in Goff by copying it with the March 2013 supervision reports, even though it inexplicably did not copy the Commonwealth with the report dated January 15, 2013, which launched this odyssey.
While a probation hearing is “not part of the original criminal prosecution,” and is léss formal than a trial, Hunt, 326 S.W.3d at 439, multiple actors are required-just as we would not expect a probationer to prove his own violation, we would not expect a judge to represent a probationer, and we should not expect the Commonwealth’s Attorney to sit in the courtroom and say nothing. All parties to litigation, including the Commonwealth, are entitled to their day in court. United States v. Nixon, 418 U.S. 683, 709, 94 S.Ct. 3090, 3108, 41 L.Ed.2d 1039 (1974) (“We have elected to employ an adversary system of criminal justice in which the parties contest all issues before a court of law.”). Thus, we now hold a Commonwealth’s Attorney is entitled to receive proper notice of every court-initiated probation hearing, to attend all such hearings, and to participate therein.
WHEREFORE, the trial court’s position that the Commonwealth’s Attorney may -not participate in a probation modification or -revocation hearing initiated by the trial court — absent an, invitation from the trial court — is erroneous. Therefore, the order entered January 18, 2013, modifying Goffs probation, must be vacated and remanded for further proceedings consistent with this Opinion. Furthermore, this clarification of the law1' shall have no retroactive effect on any other similarly situated probationer.
*193
ORDER
WHEREFORE, Goff having moved to dismiss the Commonwealth’s appeal on grounds of mootness, and the Court having determined the limited issue of whether probation may be, modified ex parte by a trial court without an opportunity, for the Commonwealth to give input, and participate in a; hearing, on . the matter is one that is both capable of repetition and in need of resolution under Morgan, 441 S.W.3d at 102, we hereby DENY the motion to dismiss the appeal based on Goffs suggestion of mootness.
ALL CONCUR.
. In this Opinion we do not distinguish between probation modification and revocation.
. Kentucky Revised Statutes.
. The statute reads in its entirety:
(1) At any time before the discharge of the defendant or the termination of the sentence of probation or conditional discharge:
(a) The court may summon the defendant to appear before it or may issue a warrant for his arrest upon a finding of probable cause to believe that he has failed to comply with a condition of the sentence; or
(b) A probation officer, or peace officer acting at the direction of a probation officer, who sees the defendant violate the terms of his probation or conditional discharge may arrest the defendant without a warrant.
(2) Except as provided in KRS 439.3108, the court may not revoke or modify the conditions of a sentence of probation or conditional discharge except after a hearing with defendant represented by coun*184sel’ and following a written notice of the grounds for -revocation or modification.
.Facts of the underlying crime are irrelevant to the issue wé address, but are provided to give a complete statement of the case. Following his grandfather's death, Goff moved in with his seventy-nine-year-old grandmother who suffers from' dementia; he began using her debit card and writing checks on her bank account without her knowledge or permission. In March 2012 he was indicted for knowing exploitation of an adult over $300.00; theft by unlawful taking over $10,000.00; and, fraudulent use of a credit card over $10,000.00 — three Class C felonies each with a penalty range of five to ten years.
The Commonwealth offered a plea agreement in which it opposed probation and recommended Goff be sentenced-to serve three concurrent five-year terms; however, if the court granted probation, the Commonwealth asked that Goff receive seven years on each charge. Goff pled guilty to all-three charges in July 2012. Over the Commonwealth’s objection, he received three concurrent sentences for a total of seven years, probated for five years. As part of the agreement, Goff was to pay restitution of $42,137.00 at seven percent interest (a total of $45,086.59) in monthly installments; submit to random drug urinalysis; and comply with all directives from the Division of Probation and Parole.
Goff became a participant in the SMART Probation pilot project operating in Jefferson and four other Kentucky circuit court jurisdictions. SMART is an acronym for Supervision, Monitoring, Accountability, Responsibility and Treatment. Hallmarks of the program launched in 2011 as a result of House Bill 463; are swift recognition and punishment of probation violations with expedited hearings. Unbeknownst to the Commonwealth or defense counsel, the trial court sent a letter to Goff encouraging him to succeed on SMART probation and reminding him of the items he and Goff had discussed.
. While probation modification and revocation are two distinct- outcomes, the process for reaching that outcome — -whatever it is-— must be the same. Were we to recognize a different procedure for modification, the trial court would have to prejudge the case to determine which avenue to follow and that would be an unworkable result.
. Failure to report to probation officer; failure to submit to drug testing as directed; and failure to make restitution as directed. No ■ sanction was recommended, leaving the decision to the trial court’s discretion.
. Monthly restitution payments amounting to $45,086.59 were to begin November 1, 2012, but no payment occurred until January 15, 2013, the day Goff was arrested on three probation violations.
. This hearing occurred in two parts. The second part has no audio.
. Kentucky Rules of Civil Procedure.
. Rules of the Kentucky Supreme Court.
. Goff v. Commonwealth, 2013-CA-001471-MR, was consolidated with this appeal on October 23, 2013,’ but subsequently dismissed.
. An order was entered on November 1, 2013, granting Goffs motion for shock probation as of January 9, 2014.
. Kentucky Rules of Criminal Procedure.
. Often a probation violator receives written notice of the alleged violations when the Commonwealth attaches the supervision report to its motion to revoke. Burke v. Commonwealth, 342 S.W.3d 296, 298 (Ky. App. 2011), However, no motion to revoke was filed in this case prior to arraignment. The Commonwealth did not move to revoke Goff’s probation until after modification had" already occurred. ■
. 2011 HB 463 placed probation under the term “community supervision” as defined in KRS 439.250(6). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284438/ | , Mark D.. Pfeiffer, Presiding Judge
• This is an appeal from a judgment of the Circuit Court of Miller County, Missouri (“trial court”), granting summary judgment in favor of' defendant City of Eldon, Missouri (“City”) and against plaintiffs Joan and Glen Jungmeyer, Dennis and Linda Killday, Timothy King, Kim Ruiz-Tompkins, Robert Dunstan, Bill Koebel, and Virgil Clark (“Plaintiffs”). Because the trial court erroneously based its summary judgment on its mistaken belief that a motion to strike does not constitute a “response” to a Rule 74.041 motion for summary judgment, we reverse the trial court’s judgment and remand for further proceedings consistent with our ruling today.
Pacts and Procedural History
Plaintiffs filed a six-count petition against City alleging, inter alia, Hancock Amendment violations, Due Process Clause violations, and Equal Protection Clause violations, relating to allegations that City unlawfully charged “higher water and sewer rates than necessary for improvements to its waterworks and sewer treatment works.” City denied the allegations and ultimately filed , a motion for summary judgment pursuant to Rule 74.04. Alleging that City failed to comply with the mandatory requirements of Rule 74.04 in its motion for summary judgment, Plaintiffs objected to City’s motion for summary judgment by filing a motion to strike the City’s motion. Pending the trial court’s ruling on the motion to strike, Plaintiffs alternatively moved the trial court for leave to file their substantive response to the merits of City’s motion for summary judgment in the event the trial court would overrule Plaintiffs’ motion to striked
On August 25, 2014, the trial court issued its judgment in which it expressly concluded that Plaintiffs’ motion to strike did not constitute a “response” as contemr plated by Rule 74.04. Thus, the trial court concluded that:. Plaintiffs had not “responded” to the motion for summary judgment within the time frame required, by Rule 74.04; all of the material facts set forth in City’s motion for summary judgment were deemed true;2 and City’s motion for summary judgment was granted. Additionally, the trial court’s judgment denied Plaintiffs’ motion to strike and motion seeking leave of court to file a substantive response to City’s motion for summary judgment out of time.
Plaintiffs timely appealed, asserting that the trial court erred in: > (1) denying Plaintiffs’ motion to strike; (2) denying Plaintiffs’ motion seeking leave of court to file a substantive response to' City’s motion for summary judgment out of time; and (3) granting City’s motion for summary judgment. '
Analysis
Because our, ruling on Point III dictates the outcome of the remaining points, we analyze the points out of order:
*205Point III — Summary Judgment ■
This court reviews a grant of summary judgment de novo as a question of law. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). Summary judgment is appropriate when a party establishes “that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Rule 74.04(c)(6) (emphasis added). Summary judgment is “an extreme and drastic remedy and great care should be exercised in utilizing the procedure” because it “borders on denial of due process in that it denies the opposing party his day in court.” ITT, 854 S.W.2d at 377 (internal quotation omitted). .
Here, we have no idea whether there is a genuine dispute as to any material facts because the trial court proceddrally determined that Plaintiffs’ motion to strike did not constitute a “response” required by Rule 74.04 and thus deemed all of City’s factual assertions to be true. We disagree with the trial court’s Rule 74.04 “response” conclusion.
In previous interpretation of what “responses” to a Rule 74.04 motion for summary judgment are permissible by a non-movant, we have said, “the parties may bring defects in the affidavits [attached to the motion for summary judgment] or other supporting materials to the trial court’s attention by motion to strike or objection.” Sloss v. Gerstner, 98 S.W.3d 893, 898 (Mo.App.W.D.2003) (emphasis added). And in another setting in which one issue in the' case involved affidavits relating, to a motion for summary judgment that failed to meet the criteria of Rule 74.04(e), we noted that “neither, party moved to strike or otherwise object to the defective affidavits” Bakewell v. Mo. State Emps.' Retirement Sys., 668 S.W.2d 224, 227 n.3 (Mo.App.W.D.1984) (emphasis added). Thus, as we have previously noted, a motion to strike is a “response” to a motion for summary judgment that is contemplated by Rule 74.04.3
A movant filing a motion for. summary judgment must strictly adhere to the mandatory requirements of Rule 74.04 in filing its motion and “[t]he parties may not waive noncompliance with Rule 74.04.” Cross v. Drury Inns, Inc., 32 S.W.3d 632, 637 (Mo.App.E.D.2000). “This [summary judgment] procedure is not discretionary; it is mandatory and must be followed.” Margiotta v. Christian Hosp., 315 S.W.3d 342, 344 (Mo. banc 2010).
Rule 74.04 provides that a party moving for summary judgment “shall state with particularity in separately numbered paragraphs each material fact as to which mov-ant claims there is no genuine issue, with. specific references to the pleadings, discovery, exhibits or affidavits that, demonstrate the lack of a genuine issue as to such facts.” Rule’ 74.04(c)(1) (emphasis added). Rule 74.04 specifically requires that any such affidavits “shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affi-*206ant is competent to testify to the matters stated therein.” Rule 74.04(e).
Here, in response to City’s motion for summary judgment, Plaintiffs brought to the attention of the trial court City’s noncompliance with the mandatory requirements of Rule 74.04 via Plaintiffs’ motion to strike. In their motion to strike, Plaintiffs identified and objected to statements of undisputed “factual”' paragraphs in City’s motion for summary judgment that they claimed were “legal conclusions,” not “factual” assertions. Plaintiffs also identified and objected to “fact” allegations in City’s motion for summary judgment that they claim failed to specifically reference the record, citing State ex rel. Nixon v. Hughes, 281 S.W.3d 902, 908 (Mo.App.W.D.2009) (“[A] summary judgment motion that ... fails to specifically reference the record is legally defective... Plaintiffs identified and objected to affidavits that they claimed failed to comply yrith Rule 74.04(e), and Plaintiffs identified and objected to City’s failure to make “specific reference” to documentation supporting City’s “factual” assertion when, instead, Plaintiffs claim that only general references were made to documents that were sometimes hundreds of pages in length.
Frankly, these are appropriate objections to be made to á trial court by way of a motion to strike in response to a motion for summary judgment. Only after the trial court’s ruling can a party be expected to respond substantively' to ' whichever paragraphs of alleged “undisputed material facts” the trial court has determined comply with the mandatory requirements of Rule 74.04. Accordingly, it was error for the trial court to conclude that Plaintiffs had not “responded” to City’s motion for summary judgment when Plaintiffs had filed their motion to strike. It was further error to deem City’s claim of undisputed material facts admitted by Plaintiffs.
Point III is granted, and we remand for further proceedings necessary to properly ascertain what material facts are not genuinely in dispute before the trial court “shall decide the motion [for summary judgment].” Rule 74.04(c)(6).
Point I — Motion to Strike
Our ruling on Point III that the trial court erroneously concluded that Plaintiffs’ motion to strike was not a “response” to City’s motion for summary judgment also impacts the motion to strike itself. For, it is evident from the trial court’s judgment that the trial court did not consider the substantive merit' of Plaintiffs’ motion to strike; instead, the trial court summarily denied Plaintiffs’ motion to strike upon its mistaken belief that the motion to strike was not a motion subject.to substantive review due to procedural infirmity. Therefore, in the first instance, the trial court will be required to address the merits of the motion to strike on remand. It follows that it would be premature for this Court to comment on the merits of Plaintiffs’ motion to strike, particularly given the discretion accorded trial courts in ruling thereon. See Lero v. State Farm Fire & Cas. Co., 359 S.W.3d 74, 79 (Mo.App.W.D.2011) (“We review the circuit court’s ruling on a motion to strike for abuse of discretion.”). Instead, in response to Point I of Plaintiffs’ appeal, we remand the review of the substantive merit of Plaintiffs’ motion to strike to the trial court for its ruling thereon.
Point II — Motion Seeking Leave of Court to File Substantive Response to City’s Motion for Summary Judgment
A trial court’s ruling denying leave to file a response to a motion for summary judgment out of time is reviewed for abuse of discretion. Inman v. St. Paul Fire & Marine Ins. Co., 347 S.W.3d 569, 575 (Mo.App.S.D.2011) (citing Manor Square, Inc. v. Heartthrob of Kansas City, Inc., 854 *207S.W.2d 38, 42 (Mo.App.W.D.1993)). However, even under circumstances where a motion seeking leave of court to file a response to a motion for summary judgment is filed after the response deadline imposed by Rule 74.04, the rules contemplate that a trial court may exercise discretion to expand the time for filing a summary judgment response where “excusable neglect” is demonstrated. Id. at 576; Rule 44.01(b).
Here, Plaintiffs timely filed a motion to strike in response to City’s motion for summary judgment. But when it became clear that the trial court’s ruling on the motion to strike would not occur until after the thirty-day deadline prescribed for “responses” in Rule 74.04, Plaintiffs alternatively filed their motion seeking leave to file a substantive response to City’s summary judgment motion in the event their motion to strike was denied.
Plaintiffs’ actions were reasonable, timely, and not the product of neglect, excusable or otherwise. The trial court erred in concluding that Plaintiffs’ motion to strike did not constitute a “response” as contemplated by Rule 74.04 and compounded that error by refusing to permit the Plaintiffs alternatively to file their substantive response to City’s motion for summary judgment in the event their motion to strike was denied.
The trial court abused its- discretion in denying Plaintiffs’ motion seeking leave to file their substantive response to City’s motion for summary judgment.
Point II is granted. Upon remand, the trial court shall first rule upon the substantive merit of Plaintiffs’ motion to strike. Depending upon its ruling on the motion to strike, to the extent that a substantive response to City’s motion for summary judgment shall become necessary, the trial court shall grant Plaintiffs a reasonable time upon which to file such substantive response.
Conclusion
The trial court erred in deeming City’s statement of material and undisputed facts as being admitted due to its mistaken conclusion that Plaintiffs’ motion to strike did not constitute a “response” as contemplated by Rule 74.04; thus, the trial court erred in concluding that no material facts were in dispute and in entering judgment in favor of City as a matter of law. Likewise, the trial court failed to rule upon the substantive merits of Plaintiffs’ motion to strike and must do so upon remand, and the trial court abused its discretion in refusing to grant leave to Plaintiffs to file their substantive response to City’s motion for summary judgment, to the extent that such a substantive response is necessary after the trial 'court’s ruling upon the merits of Plaintiffs’" motion to strike. Accordingly, the trial court’s judgment in favor of City is reversed, and the case is remanded for further proceedings consistent with our ruling today.
Gary D. Witt and Anthony Rex Gabbert, Judges, concur.
. Unless otherwise indicated, all rule references are to MISSOURI COURT RULES Vol. I (2014).
. Presumably, after concluding that Plaintiffs' ■ "response” did not comply with Rule 74.04, the trial court relied upon Rule 74.04(c)(2), which states in pertinent part: "Á response that does not comply with this Rule 74.04(c)(2) with .respect to any numbered paragraph in movant’s statement [of facts] is an admission of the truth of that numbered paragraph.” ,
. Neither the trial court nor City cites to any precedent declaring that a motion to strike cannot qualify as a "response” contemplated by Rule 74.04. And to. the extent that City has alternatively suggested that Plaintiffs should have simultaneously filed a substantive response to the motion for summary judgment along with their motion to strike in order to comply with Rule 74.04, we disagree. It would defeat the purpose of a motion to strike to impose such a requirement where valid objections to the form, of a motion for summary judgment may eliminate the necessity to file any substantive response to a pending motion for summary judgment. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284439/ | ORDER
PER CURIAM
Davetta Ross (“Defendant”) appeals from a judgment after a jury trial finding her guilty of one count, of domestic assault in the first degree, in violation of Section 565.072, RSMo (Cum. Supp. 2012); one count of armed criminal action, in violation of Section 571.015, RSMo (2000); and one count of domestic assault in the second degree, in violation of Section 565.073, RSMo (Cum. Supp. 2012). Defendant was sentenced to a total of twelve 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 á 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/5284440/ | ORDER
PER CURIAM.
Terrell Hughes (Movant) appeals the judgment of the Circuit Court of the City of St. Louis denying without an evidentia-ry hearing his Rule 24.035 motion for post-conviction relief.. Movant claims the motion court clearly erred in denying his claim that plea counsel provided ineffective assistance by misadvising him in regard to the sentencing guidelines.
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 8416(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284441/ | ORDER
PER CURIAM.
William Brown appeals the, motion court’s judgment, denying his motion for post-conviction relief pursuant to Rule *21424.0351 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 evidentiary hearing. An extended opinion would have no jurisprudential purpose. We have, however, provided a memorandum setting forth the reasons for our decision to the parties for their use only. We affirm the judgment pursuant to Mo. R. Civ. P. 84.16(b) (2015).
. All rule 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/5284444/ | OPINION
Lisa S. Van Amburg, Chief Judge
Appellants Greg Wiley and Julia Mittel-stadt appeal the trial court’s judgment' in favor of Respondents Gregory F.X. Daly, as the Collector of Revenue for the City of St. Louis (Collector), and M. Jane Schweitzer, as the Circuit Clerk for the City of St. Louis (Circuit Clerk),' on Appellants’ petition for declaratory relief and reimbursement of court costs paid to Collector.1 We affirm in. part, reverse in part, vacate in part, dismiss in part, and remand with instructions.
Background
This case concerns Circuit Clerk’s assessment of $177 in court costs in suits brought by Collector against residents of the City of St. Louis for delinquent pr'op-érty taxes. ‘
Collector' brought suit against each Appellant seeking recovery of their respective delinquent property taxes along with interest, penalties, attorney fees, and the subject court costs. Both Appellants received service. Neither entered an appearance or contested the suit. Some months later and before judgment was entered, when renewing their vehicle registrations at the Collector’s office,' Appellants were required to pay their, delinquent taxes, plus the court costs, in order to receive the “paid” tax receipt necessary' for ■ license plate renewal. Appellants tendered the amount demanded, including court costs, directly to Collector’s office. Wiley submitted his payment of court costs .under protest. Mittelstadt paid without protest. *260Collector issuéd a “paid” receipt to each Appellant. Collector then forwarded the portion denominated as court costs to Circuit Clerk, who taxed them against each Appellant. The underlying collection suits were subsequently dismissed with prejudice.
Wiley then filed suit alleging that Respondents assessed court costs against him unlawfully .in that several if not all line items comprising the'total $177 bill (applied as.standard practice in every case of this kind) are not authorized by Missouri statutes, and that Collector wrongfully withheld his tax receipt to coerce payment -of costs. Wiley’s petition also sought certification of a class of similarly situated taxpayers whose tax receipts were withheld pending payment of the challenged court costs. The trial court denied class certification2 but allowed Mittelstadt to join as an additional party, after which Appellants filed an.amended petition containing three counts. Count I sought (a) class certification, (b) declaratory judgment as to the unlawfulness of specific charges, (c) an injunction prohibiting the Collector’s collection and withholding practices, and (d) creation of a reimbursement fund. Count II sought reimbursement of court costs (plus interest) for every taxpayer whom Collector sued for delinquent taxes since 2002. Count III sought declaratory judgment that the. court costs in question also violated the Hancock Amendment (Mo. Const, art. X, § 22(a)).3
Respondents moved for dismissal, or, alternatively, summary judgment on all three counts. As relevant here, Respondents argued that declaratory relief is unavailable because an adequate and exclusive remedy exists-,in §,514.270, which directs taxpayers to seek a refund of unlawfully taxed court costs in the same court that assessed such costs. Respondents further argued that Appellants’ claims are precluded by the voluntary payment doctrine and that the challenged costs do not constitute a tax within the meaning of the Hancock Amendment.
The trial court held a hearing and ultimately entered judgment in favor of Respondents. It dismissed all of Mittel-stadt’s claims, reasoning that they were barred by the voluntary payment doctrine because she failed to tender payment under protest. The court , also dismissed count III for failure to state a claim, concluding that the challenged costs are not a tax within the meaning of the Hancock Amendment.
Proceeding to the merits of Wiley’s remaining claims (counts I & II), the court deemed the costs lawful and also noted that Wiley had an opportunity to challenge the court costs within the underlying delinquency case pursuant to § 514.270 RSMo, yet he did not. Thus, the trial court granted summary judgment in favor of Respondents.
Appellants appeal and assert that the trial court erred in that: (1) the voluntary payment doctrine contravenes the statutory remedy for recovery of unauthorized costs under § 514.270; (2) the court costs in question operate as a tax for purposes of Hancock Amendment analysis; (3) specific fees comprising the bill of costs are *261not authorized by Missouri law; and (4) “a class action is a superior method of addressing the thousands of cases in which taxpayers are entitled to refunds under § 514.270.”
Standards of Review
We review de novo the trial court’s grant of a motion to dismiss. Lynch v. Lynch, 260 S.W.3d 834, 836 (Mo. 2008). A motion to dismiss for failure to state a claim upon which relief-can be granted should not be granted unless “taking-all factual allegations as true, plaintiffs pleadings are insufficient to establish a cause of action.” Grewell v. State Farm Mut. Auto. Ins. Co., Inc., 102 S.W.3d 33, 35-36 (Mo. 2003); Rule 55.27(a)(6). On a motion to dismiss for failure to state a claim, we construe the petition favorably, giving the pleader the benefit of every reasonable intendment concerning the facts alleged, and if the allegations invoke principles of substantive law that may entitle him nr her relief, the petition is not to be dismissed. Mays-Maune & Assoc., Inc. v. Werner Bros., Inc., 139 S.W.3d 201, (Mo. App. E.D. 2004). However, when, on a motion to dismiss for failure to state a claim, “matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 74.04.” Rule 55.27(a).
This Court also reviews de novo the trial court’s grant of a motion for summary judgment. ITT Comm. Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. 1993). If the “motion, the response, the reply and the sur-reply show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law... the court shall enter summary judgment forthwith.” Rule 74.04(c)(6); Conway v. St. Louis Co., 254 S.W.3d 159, 163 (Mo. App. E.D. 2008); In ruling oh a motion for suriimary judgment, we review the record in the light most favorable to the “non-moving party.” Conway, 254 S.W.3d at 163-64. Because the role of this Court is to determine whether or not the trial court reached a proper result, we will uphold, an -order granting summary judgment if -it is sustainable on any theory. McMullin v. Borgers, 761 S.W.2d 718, 719 (Mo. App. E.D. 1988).
Discussion
Voluntary Payment Doctrine (Point I)
For their first point, Appellants submit that the' trial court erred in dismissing Mittelstadt’s claims as barred by the voluntary payment doctrine because that doctrine is “patently ’ incompatible” with §' 514.270, which provides an unequivocal right to seek a refund of unlawfully taxed costs. We agree.
The voluntary payment doctrine' is a long-recognized affirmative defense in actions involving common law claims for restitution of money. See Jurgensmeyer v. Boone Hosp. Ctr., 727 S.W.2d 441, 444 (Mo. App. W.D. 1987) (applying doctrine to bar claim for money had and received) and Unverferth v. City of Florissant 419 S.W.3d 76, 106 (Mo. App. E.D. 2013) (applying doctrine to bar claim for unjust enrichment). The doctrine arose in England out of principles of equity.4 It first *262emerged in Missouri during the Civil War in Claflin v. McDonough, where, the court reasoned that “the plaintiffs paid the money with a full knowledge of all the facts and circumstances, and well knowing that they were under no legal obligations to pay it.” 33 Mo. 412, 416 (1863).5
Under the voluntary payment doctrine, a person who has voluntarily paid a defendant with full knowledge of all material facts is not entitled to later recover that payment unless it resulted from fraud or duress. Huch v. Charter Commc’ns, Inc., 290 S.W.3d 721, 726 (Mo. 2009). If the payment was induced solely by a mistake of law, the plaintiff is not entitled to restitution. Am. Motorists Ins. Co. v. Shrock, 447 S.W.2d 809, 812 (Mo. App. K.C. 1969). The reasoning behind this doctrine is that “it would be inequitable to give [the payor] the privilege of selecting his own time and convenience for litigation short of the bar of the statute of limitations ... thereby subjecting] the payee to the uncertainties and casualties of human affairs likely to affect his means of defending the claim.” Id.
The voluntary payment doctrine, however, is “not applicable in all situations.” Eisel v. Midwest BankCentre, 230 S.W.3d 335, 339 (Mo. 2007). Namely, as illustrated by Missouri precedent, the doctrine cannot be used to abrogate statutory remedies specifically intended to protect the public from unlawful practices. In Ei-sel, bank customers brought a class action alleging that the defendant bank was engaged in the unauthorized practice of law through its loan processing procedures. Id. at 337. The Missouri Supreme Court held that the voluntary payment doctrine was not available as a defense to the statutory recovery of treble damages for the unauthorized practice of law. Id. at 339-40. The Court reasoned that the activities of the bank were prohibited by statute and were “not subject to waiver, consent or lack of objection by the victim.” Id. at'339. Therefore, given the existence of a specific statutory remedy, it would be “illogical and inequitable” to hold the con: sumer, not the mortgage lender, responsible for recognizing the unauthorized practice of law and bar recovery because of a voluntary payment. Id. at 339-40.
Similarly, in Carpenter v. Countrywide Home Loans, Inc., the Missouri Supreme Court held that the voluntary payment doctrine was not available to preclude customers of a mortgage broker from recovering document preparation fees that were expressly prohibited by law. 250 S.W.3d 697, 703 (Mo. 2008) (citing Eisel, 230 S.W.3d at. 339-40). In Huch, the Court held that the voluntary payment defense was not available in actions brought under Missouri’s Merchandising Practices Act6 because to hold otherwise “would nullify the protections of the act and be contrary to the intent of the legislature.” 290 S.W.3d at 727.
Here, in accepting Respondents’ voluntary payment defense to.bar Mittel-stadt’s claims, the trial court relied on Pitman v. City of Columbia, where the court observed that, “[u]nder the doctrine, tax payments are presumed to have been *263made voluntarily, therefore it is incumbent upon the taxpayer to establish either that the doctrine should not apply or that his or her payment was made involuntarily.” 309 S.W.3d 395, 403-04 (Mo. App. W.D. 2010). But Pitman involved a common law claim for unjust enrichment where the statutory framework expressly requires a taxpayer to pay under protest in order to preserve a claim for refund. “When a challenge is made to a tax assessment, the procedure as outlined in § 139.031 involves paying taxes under protest and filing a statement with the collector.... ” Id. Thus Pitman is inapposite to our analysis. Here, Mittel-stadt challenges the assessment of court costs by invoking the specific statute intended for that purpose. Section 514.270 states:
Any person aggrieved by the taxation of a bill of costs may, upon application, have the same retaxed by the court in which the action or proceeding was had, and in such retaxation all errors shall be corrected by the court; and if the party aggrieved shall have paid any unlawful charge, by reason of the first taxation, the clerk shall pay the costs of retaxation, and also to the party aggrieved the amount which he may have paid by reason of the allowing of such unlawful charge.
Statutes passed by the legislature are expressions of public policy. State ex rel. Equality Sav. & Bldg. Ass’n v. Brown, 334 Mo. 781, 68 S.W.2d 55, 59 (1934). The clear intent of the General Assembly expressed in § 514.270 is to enable citizens to challenge unauthorized court costs and obtain a refund, absent any requirement to pay under protest. Here, as in Huch, Eisel, and Carpenter, accepting the voluntary payment doctrine as an affirmative defense would undermine the protections afforded by the statute, ignore legislative intent, and contravene public policy. The trial court erred in dismissing Mittelstadt’s Count I claims under the voluntary payment doctrine. Point I is granted.7
Hancock Amendment (Point II)
For their second point, Appellants submit that the trial court erred in dismissing their Count III claim alleging that Respondents’ imposition and collection of court costs violates the Hancock Amendment. Respondents counter that court costs do not constitute a local tax within the meaning of the Amendment. We agree.
“[T]he Hancock Amendment is intended to prohibit municipal fee increases that are taxes in everything but name.” Arbor Inv. Co., LLC v. City of Hermann, 341 S.W.3d 673, 682 (Mo. 2011). The Amendment states in pertinent part:
Counties and other political subdivisions are hereby prohibited from levying any tax, license or fees, not authorized by law, charter or self-enforcing provisions of the constitution ... or from increasing the current levy of an existing tax, license or fees, above that current levy authorized by law or charter ... without the approval of the required majority of the qualified voters of that county or *264other political subdivision voting thereon.
Mo. Const. art X, § 22(a).
To determine whether a charge is a tax under the Hancock Amendment and thus subject to voter approval, courts must consider five factors set forth in Keller v. Marion County Ambulance Dist., 820 S.W.2d 301 (Mo. 1991). Those factors are: (1) when the fee is paid; (2) who pays it; (3) whether the amount relates to the level of goods or services provided; (4) whether the fee relates to a government-provided good or service; and (5) whether the activity has historically and exclusively been provided .by the government. Id. at 304 n. 10. Each party claims to prevail on these factors. Appellants equate the costs to a tax because they were included and paid with their local property tax bills and collected by a City official charged with collecting local taxes. As a threshold matter, however, Respondents submit that the costs are not a local fee in the first place. We agree and find that fact dispositive, obviating a Keller analysis. As Respondents correctly note, the costs are imposed by state statute and Supreme Court operating rules and, once remitted to Circuit Clerk, are redistributed to various state and local funds as directed by those authorities. Section 488.012.2 provides:
The supreme court shall set the amount of court costs authorized by statute, at levels to produce revenue which shall not substantially exceed the total of the proportion of the costs associated with administration of the judicial system defrayed by fees, miscellaneous charges and. surcharges.
Pursuant to this legislative authority, Missouri Supreme Court Operating Rule 21.01 dictates the amount of costs, fees, miscellaneous charges, and surcharges associated with court filings and instructs that “[t]he court clerk shall collect and disburse the above fees.”8
Ehlmann v. Nixon is illustrative. 323 S.W.3d 787 (Mo. 2010). There, the Missouri Supreme Court addressed whether a statute creating a Deputy Sheriff Supplementation Fund violated article X, § 10(a) of the Missouri Constitution, which prohibits the General Assembly from imposing taxes on “counties or other political subdivisions or upon the inhabitants or property thereof for municipal, county or other corporate purposes.” Under the challenged statute, court-related charges were collected by the sheriff, paid into the county treasury, and then remitted to the state treasury earmarked for the special fund. The Court determined that the statute did not create a tax ón a county or municipality within the meaning of article X, § 10(a) because the disputed funds were classified as state money from the time they were collected. Id. at 789. The county was “simply a conduit”' to the state treasurer. Id.
Although Ehlmann involved a different constitutional provision, the Court’s logic applies with equal cogency here. It is undisputed that Collector was merely a conduit for the transmittal of court costs from Appellants to Circuit Clerk to various statutorily-created funds for- the benefit of the state judicial system. Thus, the costs cannot constitute a local tax within the meaning of the Hancock' Amendment. The court did not err in dismissing Appellants’ Count III. Point II is denied.
*265
Legality of Court Costs, Exclusivity of Remedy, & Collector’s Role (Point III)
For point III, Appellants assert that the court erred in dismissing Wiley’s claims for declaratory judgment and Refund because the court costs taxed in his case are not authorized by Missouri law.9 As a threshold matter, Respondents counter that the propriety of Appellants’ court costs must be litigated before the court in the underlying delinquency case and not in a separate declaratory action. The trial court agreed, as do we, but the court did not grant summary judgment on this basis; instead it ruled on the merits. In doing so, the trial court reached the right result for the wrong reason. We must affirm if summary judgment was proper under any theory. Auto Owners Mutual Insurance Co. v. Sugar Creek Memorial Post No. 3976, 123 S.W.3d 183, 190 (Mo. App. W.D. 2003). Therefore, we affirm the trial court’s summary judgment on this point, not based on its conclusion that the court costs were lawful, but because Appellants must assert their challenge in the underlying delinquency case.
Under Missouri’s Declaratory Judgment Act, circuit courts have the authority to “declare rights, status, and other legal relations whether or not further relief is or could be claimed.” § 527.010. The Act is remedial; “its purpose is to afford relief from uncertainty and insecurity ... and is to be liberally construed and administered.” Crown Diversified Holdings, LLC v. St. Louis Cnty., 452 S.W.3d 226, 230 (Mo. App. E.D. 2014). However, the Act is not a general panacea for all real and imaginary legal ills. Id. at 231. “[E]xcept in exceptional circumstances plainly appearing, it is not to be used and applied where an adequate remedy already exists.” Cronin v. State Farm Fire & Cas. Co., 958 S.W.2d 583, 587 (Mo. App. W.D. 1997). Such a remedy exists in § 514.270: “Any person' aggrieved by the taxation of-a bill of costs may, upon applR cation, have the same retaxed by the court in which the action or proceeding was had, and in such retaxation all errors shall be corrected by the court.”
In applying § 514.270, Missouri courts have long recognized that “[w]here a party complains that the judgment taxing the costs is wrong, for any reason, he must, to obtain relief, lodge his complaint with the court rendering such judgment.” Turner v. Butler, 66 Mo.App. 380, 386 (Mo. App. K.C. 1896). “If a party contests a category or specific item of costs, the remedy is by motion to retax in the court of the alleged error.” In re J.P., 947 S.W.2d 442, 444 (Mo. App. W.D. 1997). “Once court costs are taxed by the clerk, any party may file a motion to retax costs so the trial court can review the clerk’s bill of costs.” Solberg v. Graven, 174 S.W.3d 695, 701 (Mo. App. S.D. 2005). “The trial court retains jurisdiction to exercise its ministerial duty to correct errors made by the clerk in taxing court costs.” Id. . “If the court denies the party’s motion to re-tax costs, the party can then appeal such denial to this Court, because the denial of a Rule 77.05 -motion to retax costs is an appealable order.”. Id. Accord Montoya v. A-1 Mufflers. Inc., 331 S.W.3d 702, 704 (Mo. App. W.D. 2011).
“[Wjhere a statute creates a right or liability that did not exist at common law or under prior statutes, and also provides a specific remedy for the enforcement thereof, as a general rule such statutory remedy is exclusive.” Wear v. Walker, 800 S.W.2d 99, 103 (Mo. App. *266S.D. 1990) (citing Gales v. Weldon, 282 S.W.2d 522, 529 (Mo. 1955)). Because § 514.270 creates a statutory right and provides a specific remedy, that remedy is exclusive. The trial court’s summary judgment must be affirmed in that Appellants’ claims in this separate declaratory judgment action are precluded by virtue of an exclusive remedy in their underlying cases. Appellants must contest their court costs in their respective delinquency cases. In any such proceedings, however, the court will not be bound by the trial court’s substantive legal conclusions here. We vacate those determinations because the trial court erred in reaching the merits, which must be examined in accordance with § 514.270 and other applicable statutes.10
Finally, we must address Collector’s practice of withholding property tax “paid” receipts pending collection of court costs yet to be assessed by Circuit Clerk. Numerous sections of Chapter 514 make clear that the Circuit Clerk is charged with the assessment, correction, collection, and redistribution of court costs. The clerk shall tax and subscribe all bills of costs arising in any cause and shall in no case allow any item or charge unless the service was actually performed. § 514.260. The clerks who are responsible for collecting court costs shall strictly examine the accounts of all court costs accruing during any suit and shall correct the same if wrong in any manner and, if a litigant neglects or refuses to pay, then the clerk shall take such action to collect such fees as provided in Chapter 488. § 514.330. From there, certain sections of Chapter 488 imply that a clerk may delegate the task of collection. For example, the clerk “shall disburse court costs collected by or under the authority of the clerk in the manner provided by supreme court rule.” § 488.018.1. No court “or any entity collecting court costs on their behalf’ is required to refund overpayment of less than five dollars. § 488.014. However, even if there is statutory authority for Collector’s role as Circuit Clerk’s collection agent, Respondents cite no authority, and we have found none, empowering Collector to withhold “paid” receipts pending collection of court costs that Circuit Clerk has yet not assessed.
Appellants’ point III is granted in part and denied in part. The trial court erred in concluding that Appellants’ court costs were lawful, as that issue must be resolved by the court in Appellants’ delinquency cases. That determination is vacated. The trial court further erred in deeming Collector’s practices lawful. That determination is reversed and remanded for entry of declaratory judgment and an injunction in favor of Appellants. Ultimately, however, the trial court did not err in granting summary judgment in favor of Respondents, as Appellants must challenge their court costs as provided by § 514.270.
Class Certification (Point IV)
In point IV, Appellants contend that the trial court erred in denying class certification because “[a] class action is a superior method of addressing the thousands of cases in which taxpayers are entitled to refunds under § 514.270.” Respondents did not respond to the merits of this point *267but moved to strike and dismiss it for failure to comply with the appellate briefing requirements of Rule 84.04. We agree that Appellants’ brief on this point is not sufficiently developed for this court’s consideration. Point IV is therefore dismissed.11
Conclusion
The trial court erred in dismissing Mit-telstadt’s claims based on the voluntary payment doctrine (point I). The court did not err in dismissing Appellants’ challenge to the court costs based on the Hancock Amendment (point II). As to the lawfulness of Appellants’ court costs and their entitlement to a refund (point III), the trial court erred in reaching a conclusion on the merits that the taxation of court costs was lawful, but the court did not err in granting summary judgment because § 514.270 provides the' exclusive avenue for examining those claims. " Both Appellants may seek recourse accordingly in their respective underlying delinquency cases-.12 As to the lawfulness of Collector’s practice of assessing court costs at the time of filing and withholding tax receipts pending collection, the trial court erred in granting summary judgment in favor of Respondents. That particular judgment is reversed and remanded for entry of declaratory judgment and corresponding in-junctive relief in favor of Appellants. The trial court’s judgment is affirmed in part, reversed in part, vacated in part, dismissed in part, and remanded for further action consistent with this opinion.'
Lawrence E; Mooney, P.J. and Clifford H. Ahrens, Senior J. concur.
. The City of St, Louis was also named as a defendant but was dismissed by the trial court. Appellants do not appeal that order.
.. The court found that Wiley failed to prove sufficient commonality, typicality, and adequacy of representation concerning the putative class because he was the only putative class- member who tendered payment of court costs under protest. This reasoning would suggest that Mittelstadt was the better class representative, but the court dismissed her claims under the voluntary páymént doctrine, which was error, as discussed below.
. The full text of the Hancock Amendment lies in Mo. Const, art. X, §§ 16-24. Appellants invoke only § 22(a).
. In England, the doctrine appears in the case of Bilbie v. Lumley, (1802) 2 East 469 (1802 ER 448), which involved an action for money had and received by an underwriter of an insurance policy against the insured. Id. at 469. The plaintiff alleged that the money was erroneously paid based on a mistake of law. Id. at 469. The court rejected that theory, reasoning, "[ejvery man must be takeri to be cognizant of the law; otherwise there is no saying to what extent the excuse of ignorance *262might not be carried. It would be urged in almost every case.” Id. at 472.
. Claflin involved a claim to recover money paid to a defendant tax collector, but in the form of a common law claim for money had and received. Id. at 413, 416. For a thorough history of the voluntary payment doctrine, see John E. Campbell & Oliver Beatty, Huch v. Charter Communications, Inc.: Consumer Prey, Corporate Predators; and a Call for The Death of the Voluntary Payment Doctrine Defense, 46 Val. U. L.Rev. 501, 503-05 (2012).
. §§ 407.010 to 407.309.
. Alternatively, Respondents argue that we should uphold the trial court’s dismissal of Mittelstadt's claims, because she waived her claims by not contesting court costs in the underlying lawsuit. Respondents cite In re J.P., holding that "failure to file an objection to a cost bill or memorandum may constitute a waiver of the right to contest taxation of questioned items.” 947 S.W.2d 442, 445 (Mo. App. W.D. 1997). As discussed herein, Mittelstadt may pursue such action in her delinquency case. "The trial court retains jurisdiction to exercise its ministerial duty to correct errors made by the clerk in taxing court costs that do not require judicial determination or investigation.” Solberg v. Graven, 174 S.W.3d 695, 701 (Mo. App. S.D. 2005).
. For example, $10 goes to the State Courts Administrator for a legal services fund (§ 488.031 and § 477.650); $25 goes to the Department of Revenue for court reporting (Rules 21.01(a)(9) and 21.02(b)), record-keeping (§ 488.027 and Rules 21.01(a)(4) and 21/02(c)), and domestic relations resolution funding (§ 488.635 and § 452.552).
. As dismissed above, Mittelstadt's claims are not barred by the voluntary payment, so our analysis of this point applies equally to both Appellants.
. For example, in count I of their petition, Appellants itemize several standard fees that, they claim, should not have been taxed in their cases because such fees are not collectible when waived or paid by a municipality. See e.g., § 488.024, § 488.026, § 488.027, § 488.031, § 488.435, § 488.447. Pursuant to § 140.730, the Collector pays no costs in delinquency cases. In short, Appellants allege that they were taxed for fees that Collector never incurred, and in blanket fashion. Appellants further allege that, as standard practice, Collector assesses these costs upon filing suit and before taxpayers receive service of the delinquency petition. We do not opine on these claims.
. Even were we to review Appellants’ point IV, we question whether they could satisfy the criteria for a class action given the particularity with which § 514.330 requires a clerk to "strictly examine the accounts of all court costs accruing during the progress of any civil suit” and "correct tire same if wrong in any manner.”
. § 514.270 does not establish a time limit in which to file a motion seeking a retaxation of costs. See Fisher v. Spray Planes, Inc., 814 S.W.2d 628, 633-34 (Mo. App. E.D. 1991); Solberg, 174 S.W.3d at 701; Starling v. Union Pacific R. Co., 22 S.W.3d 213, 215-16 (Mo. App. W.D. 2000) (recognizing trial court retains authority to enter an order assessing statutory costs based on its review of the court clerk's action assessing such costs, even after a plaintiff has dismissed his suit). Within that proceeding, the statutory framework requires a strict examination of all court costs accruing during the progress of any suit, and both the Circuit Clerk and the court are charged with correcting any error in taxation, all in accordance with the statutes and Supreme Court operating rules authorizing specific line items, as applied to the procedural posture of Appellants' individual cases. §§ 514.270 and 514.330., | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6125636/ | Judgment affirmed. Opinion by
Smith, J. | 01-04-2023 | 02-04-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6125637/ | Judgment reversed and new trial ordered before another referee, costs to abide event. Opinion by
Hardin, J. | 01-04-2023 | 02-04-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6125638/ | Motion denied, with ten dollars costs. | 01-04-2023 | 02-04-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6125639/ | Motion for re-argument denied, with ten dollars costs. | 01-04-2023 | 02-04-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6125640/ | Judgment affirmed. Opinion by
Hardin, J. | 01-04-2023 | 02-04-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284445/ | ORDER
PER CURIAM
Avonte Stokes (Defendant) appeals from the judgment upon his convictions by a jury for two counts of child molestation in the first degree, in violation of Section 566.067, RSMo 2000.1 The trial court sus-’ pended imposition of sentence and placed Defendant on probation for a period of five years. After violating his probation, the trial court revoked Defendant’s, probation and sentenced him to seven-years’ imprisonment on each count, to be served concurrently. We affirm.
We have reviewed the briefs of the parties, the legal file, and the record on appeal and find , the claims of error to be without merit. No error of law appears. An extended opinion reciting the detailed facts and restating the principles of law applicable to this case would serve no jurisprudential purpose. We have, however, provided a memorandum opinion for the use of the parties setting forth the reasons for our decision. We affirm the judgment pursuant to Rule 30.25(b).
. Unless otherwise indicated; all future refer-enees are to RSMo 2000 as amended. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/2301157/ | 90 Cal. Rptr. 2d 549 (1999)
76 Cal. App. 4th 715
ERIC J., a Minor, etc., Plaintiff and Appellant,
v.
BETTY M. et al., Defendants and Appellants.
No. G019117.
Court of Appeal, Fourth District, Division Three.
November 30, 1999.
As Modified December 21, 1999.
Review Denied March 15, 2000.
*550 Allred, Maroko & Goldberg and Lisa Bloom, Los Angeles, for Plaintiff and Appellant.
Dennison, Bennett & Press, James H. Goudge and Michael A. Tudzin, Woodland *551 Hills, for Defendants and Appellants Betty and Edwin M.
James A. Testa and Gregory J. Testa, Vista, for Defendants and Appellants Frank and Jean M.
William B. Craig, San Clemente, for Defendants and Appellants Phillip and Eddie M.
OPINION
SILLS, P.J.
When Robert was released from prison on rehabilitative parole after having been convicted of felony child molestation four years earlier, his family might have disowned him, but they didn't. They accepted him back. And when he found a girlfriend named Helen who had an eight-year-old boy named Eric they did not tell Helen about Robert's previous conviction, no doubt hoping against hope that he had reformed himself.
Unfortunately, and unbeknownst to any members of the family or Helen herself, Robert began molesting Helen's son early on in his relationship with her. Helen, acting as Eric's guardian, has now sued various members of Robert's family for not telling her of his previous conviction. Because some of the sexual abuse occurred on property owned by family members, Helen has asserted premises liability as well as general negligence as her two theories of liability.
The trial judge granted the family members' motion for nonsuit, and we now affirm the ensuing judgment. As we explain below, under the circumstances of this case, premises liability is a make-weight because there was no relationship between the harm and any premises owned by family members on which the harm occurred. The state was willing to take a chance on Robert by releasing him on parole, and so were his family members by accepting him back, so he cannot be legally equated, as Helen would have us do for purposes of premises liability, to a dangerous animal.
As to general negligence, the family members cannot be held liable for their "nonfeasance" in failing to warn Helen because to do so would contravene one of the most important, long standing, and recently reaffirmed principles of American tort law: You are not responsible for mere inaction without some sort of special relationship which creates a duty to take some action; the law does not require people to be good Samaritans (i.e., the traditional "no duty to aid" rule).
Facts and Litigation Background
In 1978 Robert was arrested for the misdemeanor of "annoying" a minor. He pled no contest and served six months, and was on probation for the next three years.[1] During that time he committed one probation violation for taking four high school freshman boys to dinner without supervision. Again he served some time in jail and was placed on probation.
Then in 1984 he was arrested for molesting a 10-year old boy. He again pled no contest, this time to a felony count of violating section 288, subdivision (a) (lewd or lascivious act with or upon body of child under the age of 14). He served four years in state prison, getting out in August 1988.
In June 1989, Robert met Helen and her eight-year-old son Eric at Magic Mountain. A relationship developed between Robert and Helen, and, by Thanksgiving 1989, Robert invited Helen and Eric for an overnight stay at the home of his mother Dorothy in Big Bear so she and Eric could meet some of the rest of his family.
Besides Dorothy, Robert's family consists of his father Edwin, his father's wife Betty, Robert's three brothers Frank, *552 Phillip and Eddie, Frank's wife Jean, and a sister named Diane. Dorothy and Diane are not parties to this appeal.[2]
The members of Robert's family concluded that Helen was his "girlfriend." Their relationship continued until early 1992, when Robert moved to Las Vegas.
Later that year, one of Helen's friends saw a special on television regarding convicts on parole, which showed a picture of a younger, beardless Robert and revealed that he was a convicted molester.[3] She told Helen about the program, and a few days later, Helen took Eric to a police station. There, Helen learned that Robert had been molesting Eric. In June 1993 Robert was convicted of 23 counts of child molestation. He had never told Helen of his criminal history.
Helen, acting as guardian ad litem for Eric, sued various members of Robert's family. The case came to trial, during which it was learned that on several occasions Eric was molested on property owned by some of Robert's family members: Eric was molested at the Huntington Harbor home of Robert's father Edwin during a Christmas time gift exchange; Robert molested Eric for about two minutes while the two of them were apart from the others in a room where Frank and Jean's baby was sleeping. There were several other occasions when Eric was similarly[4] molested by Robert at Edwin and Betty's house, but the record does not reveal any more details (Eric could not recall any). Eric was also molested twice on a yacht owned by Edwin and Betty that was moored near their home. Once it was in the "driver's area" of the vessel, at a time when only Robert, Eric and a friend of Eric's named Jeff were around, and Jeff was cutting a rock with a rock cutter in front of the home, unable to see what was going on. Another time it was in the engine room of the yacht at a family gathering, when most of the members were on the dock; again the molestation lasted about two minutes.
Besides being molested at the home of Edwin and Betty several times, Eric was quickly molested once at each of the homes of Robert's three brothers: There was a birthday party at Phillip's house; the molestation took place in an entertainment room while the rest of the clan were in various other rooms. Another molestation occurred at brother Eddie's house, when Robert and Eric came to pick up some "stuff Robert owned; at the time Eddie was working on his stereo. Similarly, when Robert and Eric came over to pick up some stuff from the home of brother Frank and his wife Jean that Robert had left, Robert molested Eric in the garage while Frank and Jean were in the house.
Each of the relatives had various degrees of knowledge of Robert's history. Father Edwin knew the most. He knew about the 1978 and 1984 convictions. Robert came to live with him and Betty for a short period after Robert's release from prison in 1988, and was visited by a parole *553 officer shortly thereafter; she told Edwin that in her opinion Robert was a "pedophile." The parole officer also told Edwin that Robert had agreed to be put on a state parole rehabilitation program obligating him to report for psychiatric counseling, obtain gainful employment, not be alone with an unsupervised child, and allow for unannounced inspections of his residence. Edwin told Betty about the visit and the conversation.
Edwin also believed that his son was, as he would later testify in trial "truly repentant of his unfortunate situation back in 1984, that he was trying to adhere to his parole very, very vigorously." Indeed, Robert had voluntarily "participated" in the television special regarding convicts on parole against his father's advice because, as he told his father, "Dad, I want to do it to show we can succeed...."
The parole officer also visited brother Frank and his wife Jean when she learned that Robert was going to live with them for a while. She told them that Robert was a sex offender and reiterated the same parole conditions she told Edwin.
Brother Eddie learned sometime in 1989 or 1990 that Robert had been incarcerated on a molestation charge, and "wished to find out no more about it." By contrast, Robert's youngest brother Phillip thought that Robert had been in jail for kidnapping a child and understood he was on parole for that offense. He would later testify that he had "no knowledge that Bob was a felon."
The testimony was uncontroverted that none of the defendant family members ever told Helen about Robert's convictions.
After the evidence had been completed the trial court granted nonsuit motions made by the defendants in this appeal; Helen then filed a timely notice of appeal from the judgment in their favor. On appeal Helen now argues that the evidence was susceptible to liability based on either premises liability or general negligence theories.
Discussion
Premises Liability
The most common situation where landowners may be held liable in tort for the criminal actions of another person on their property merely because of their status as landowners entails commercial, business or otherwise public property, with the criminal action being tied in some way to either the nature of the business or the property, and in a context where the actual perpetrator of the crimes was personally unknown to the landowner. (See, e.g., Isaacs v. Huntington Memorial Hospital (1985) 38 Cal. 3d 112, 211 Cal. Rptr. 356, 695 P.2d 653 [attack in hospital parking lot where emergency room in high crime area drew persons under influence of drugs or alcohol]; Frances T. v. Village Green Owners Assn. (1986) 42 Cal. 3d 490, 229 Cal. Rptr. 456, 723 P.2d 573 [condominium homeowners association could be held liable for rape in plaintiffs unit because of lack of exterior lighting where project had already been scene of an "`exceptional crimewave'"]; Winn v. Holmes (1956) 143 Cal. App. 2d 501, 299 P.2d 994 [restaurant could be held liable for assault on one patron by another]; Wallace v. Der-Ohanian (1962) 199 Cal. App. 2d 141, 18 Cal. Rptr. 892 [summer camp could be held liable for attack by unknown assailant on girl staying at camp because of lack of supervision of child]; O'Hara v. Western Seven Trees Corp. (1977) 75 Cal. App. 3d 798, 142 Cal. Rptr. 487 [landlord liable for not warning tenant that a rapist had already assaulted several female tenants]; Kwaitkowski v. Superior Trading Co. (1981) 123 Cal. App. 3d 324, 176 Cal. Rptr. 494 [owners of apartment building in high crime area liable for assault where they had notice of previous attack on tenant and that other tenants feared for their own safety]; Constance B. v. State of California (1986) 178 Cal. App. 3d 200, 223 Cal. Rptr. 645 [owner of public rest stop could *554 be liable for sexual assault by assailant hidden in women's restroom because it was "dismally predictable that where there are highways there will be highwaymen and worse"]; Onciano v. Golden Palace Restaurant, Inc. (1990) 219 Cal. App. 3d 385, 268 Cal. Rptr. 96 [attack on restaurant patron coming out into unlighted, unguarded parking lot];[5]Cantwell v. Peppermill, Inc. (1994) 25 Cal. App. 4th 1797, 31 Cal. Rptr. 2d 246 [dram shop statute did not preclude liability of bar for attack on one patron by drunken assailant]; Zuniga v. Housing Authority (1995) 41 Cal. App. 4th 82, 48 Cal. Rptr. 2d 353 [owner of public housing project could be held liable for arson committed by gang members who harassed particular tenants who complained about gang activity].)
In "public" or business property, liability has been allowed when there is something foreseeably dangerous about the nature of the activity conducted on the property or the property itself which fixes on the landowner the duty to take some sort of precaution (e.g., Cantwell [operation of a bar]). Or the area may be such that the presence of miscreants is generally a foreseeable risk (Isaacs [drug addicts drawn to emergency room in high crime area], Francis T. [project was experiencing "crimewave"], O'Hara [rapist targeting females in particular apartment complex], Kwaitkowski [high crime area, previous attack], Constance B. [highways breed "highwaymen"], Zuniga [gangs in public housing project]), and Onciano [unguarded parking lot late at night[6]]), or the owner has in some way undertaken, as part of the organized activity on the land, care for the safety of the plaintiff as against criminal acts of third parties (Wallace [summer camp] and Winn [restaurant]).
The need for a connection to the actual property itself, or some activity organized upon it, is underscored by the rationale in cases where no liability has been allowed. Absence of actual notice of any prior incidents on the property was dispositive in Sharon P. v. Arman Ltd. (1999) 21 Cal. 4th 1181, 91 Cal. Rptr. 2d 35, 989 P.2d 121 [absence of any assaults in previous 10 years of operation of underground parking garage], in Ann M., supra, 6 Cal. 4th 666, 25 Cal. Rptr. 2d 137, 863 P.2d 207 [lack of any notice by the landowner of any prior similar incidents in the subject shopping center], and in 7735 Hollywood Blvd. Venture v. Superior Court (1981) 116 Cal. App. 3d 901, 172 Cal. Rptr. 528 [an apartment owner could not be held liable where there was no allegation that any crime had previously occurred on the premises], which appears to have adumbrated Sharon *555 P. and Ann M. Likewise, occurrence of the crime off the premises was dispositive in Steinmetz v. Stockton City Chamber of Commerce (1985) 169 Cal. App. 3d 1142, 214 Cal. Rptr. 405 [no liability because the assault took place in a parking lot which was not owned, possessed or controlled by the defendant], Medina v. Hillshore Partners (1995) 40 Cal. App. 4th 477, 46 Cal. Rptr. 2d 871 [owner of an apartment complex could not be liable for an assault off the property, even though it allowed gang members to congregate on the property] and Rosenbaum v. Security Pacific Corp. (1996) 43 Cal. App. 4th 1084, 50 Cal. Rptr. 2d 917 [owner of an apartment building could not be liable for an attack which occurred across the street from the victim's apartment (even though the victim had parked there precisely because the apartment's garage was unsafe) ], again emphasizing the need for a connection to the property itself.
As one might expect, far fewer cases involve criminal activity occurring on nonpublic residential property against social guests of the owners who live or whose tenants rent there. The typical case of premises liability in the residential context is, of course, the standard slip and fall or some other occurrence arising out of the condition of inanimate matter on the property. (E.g., Rowland v. Christian (1968) 69 Cal. 2d 108, 70 Cal. Rptr. 97, 443 P.2d 561 [faucet handle broke off in hand of social guest].) There do not appear to be many cases in the area involving the question of liability on the part of a landowner qua landowner for the criminal acts of unknown third persons, probably because, in the social guest-residential property context, landowners themselves actually live on the premises and are just as interested in not being assaulted as their guests.
One case relied on by Helen involving the guest-residence scenario, Pamela L. v. Farmer (1980) 112 Cal. App. 3d 206, 169 Cal. Rptr. 282 (wife of sexual offender could be held liable for offenses he committed against neighborhood girls invited onto property by wife), is not really a premises liability case at all the opinion does not even mention whether the defendant there had an ownership interest in the property though the criminal acts there did occur in her home and to the degree that it may be so construed, is based on the idea of the relationship of entrustment of a child which animated Wallace, the summer camp case. (See Pamela L., supra, 112 Cal.App.3d at pp. 211-212,169 Cal. Rptr. 282, and citing Wallace, supra, 199 Cal.App.2d at p. 144, 18 Cal. Rptr. 892.) We address Pamela L. again in our discussion of general negligence.
The plaintiff in another guest-residence case, Chaney v. Superior Court (1995) 39 Cal. App. 4th 152, 46 Cal. Rptr. 2d 73, foundered, as did the plaintiff in the commercial case of Ann M., on the defendant's actual lack of notice of the danger. In Chaney, a man molested a neighborhood girl in his home, but the defendant wife had no actual knowledge of her "husband's deviant propensities" so there was no foreseeability. (Id. at pp. 157-158, 46 Cal. Rptr. 2d 73.)
Anaya v. Turk (1984) 151 Cal. App. 3d 1092, 199 Cal. Rptr. 187 is the closest case we have found in the area because it implicates, though it does not address, the relatively complex problem which the parties have now set before us: What is the liability of a landowner qua landowner for criminal acts committed against a guest by another guest because of the criminally acting guest's prognosticated criminal "propensities"? It is a complex problem because it involves nothing less than whether landowners can incur tort liability for failing to predict the actions of a real, flesh-and-blood human being, not just a general threat of crime based on the laws of probability given statistics that the property is in a "high crime area." And it is not a problem governed by our Supreme Court's famous decision about the future acts of a specific human being in Tarasoff v. Regents of University of California (1976) 17 Cal. 3d 425, 131 Cal. Rptr. 14, 551 P.2d 334 (psychologist could be held liable for failing to warn victim of mental patient who made threats against *556 her), because the holding in the Tarasoff case was predicated on the fact the human being who committed the crime actually confided an intention to commit the crime prior to doing so (see id. at p. 430, 131 Cal. Rptr. 14, 551 P.2d 334) and the psychologist to whom the confession was made was able to "in fact predict" the future occurrence of the crime. (See id. at p. 438, 131 Cal. Rptr. 14, 551 P.2d 334.) In the present case, by contrast, there is no evidence that Robert confided any intention to anybody to molest Eric; indeed, from what he told his father it is clear that he was just as intent on keeping his molestations of Eric secret from his family as from Helen.
Anaya, however, is of only limited use on the point. There, the defendants invited both the plaintiff and another guest, who was an ex-convict, to their apartment. The reason they invited the ex-convict was to sell drugs to him. The ex-convict turned violent, and shot both the plaintiff and one of the defendants. The plaintiff asserted two causes of action based on two theories of liability: (a) the defendants had a duty to warn him of the other guest's "criminal propensities"; and (b) the defendants were conducting an activity drug dealing which increased the risk of harm to the plaintiff. (See id. at pp. 1097, 1101, 199 Cal. Rptr. 187.)
The Anaya case came to the Court of Appeal after summary judgment, and the court affirmed the judgment as to the first theory (failure to warn) which it styled as based on "mere nonfeasance (failure to intervene for the benefit of plaintiff)," reasoning that "as a matter of law" the defendants' "generalized knowledge" of the exconvict's criminal history could not support a finding of foreseeability. (See id. at pp. 1100-1102, 199 Cal. Rptr. 187.) "Mere knowledge that [the ex-convict] had been in federal prison did not constitute reasonable cause to anticipate his violent conduct," said the court. (Id. at p. 1101, 199 Cal. Rptr. 187.)
The Court of Appeal reversed, however, as to the second cause of action predicated on the dangerous activity of drug dealing, because, as one expert stated in a declaration opposing the summary judgment motion, it is "a common occurrence in drug transactions that the person buying the drugs will attempt to take them by force without paying for them, and will shoot or kill anyone in his way." (Id. at p. 1105, 199 Cal. Rptr. 187.)
While the holding of the Anaya case on the first cause of action would appear to be dispositive of any premises liability of brother Phillip, who had only the most "generalized knowledge" of Robert's past crimes, it does not speak to the other defendants here, who all knew at least (in contrast with the defendants in Anaya) what Robert had been convicted of. Nor is its holding on the second cause of action much use: Family gatherings are most assuredly not drug deals, and there is nothing in this case to suggest that absent the mere fact the Robert and Eric (and often Helen) would show up together there was any activity conducted by any of the defendants on the premises that would increase the risk. Robert's family could hardly be responsible for supervising him every moment during an innocent family gathering such as a Christmas gift exchange.
What Anaya does is to make reference to the plaintiffs "contention" that the exconvict's "dangerous propensities" (the phrase is used at least three times, see id. at pp. 1098-1100, 199 Cal. Rptr. 187) established some sort of duty on the part of the landowner, though the opinion never explores the idea of the "dangerous propensities" of specific human beings in detail.
There was obviously a subtext, however, that ran through the plaintiffs argument in Anaya, that Stanley Wilson the exconvict in the case was the functional equivalent of a dangerous animal. The argument is even closer to the surface in the present case, where the leitmotif of Helen's appellate argument is that Robert *557 because he had once been convicted of felony child molestation and once been convicted of misdemeanor annoyance of a child[7] was, when he was on the defendants' property, to be treated as if he were a vicious pit bull, for whom a landowner might be liable just for allowing it on the landowner's property.
Now, maybe in retrospect Robert was the moral equivalent of a vicious pit bull, and there is no doubt that, as a sex offender, he represented a threat. (See Wright v. Superior Court (1997) 15 Cal. 4th 521, 524, 63 Cal. Rptr. 2d 322, 936 P.2d 101.) But to say that his convictions made him for purposes of the tort liability of his fellow family members who didn't turn him away after his crime the equivalent of a brute beast without the capacity to repent, does not square with the parole scheme under which Robert was released.
The academic criminologist, James Q. Wilson, once observed that belief in rehabilitation "requires not merely optimistic but heroic assumptions about the nature of man."[8] It may have been woolly thinking to release Robert in 1988, but he was released, and released under the auspices of a state parole rehabilitation program. Perhaps when he was convicted of felony child molestation in 1984 he should have been incarcerated for life without possibility of parole (i.e., locked up and the key thrown away),[9] but that was not what the law of criminal sentencing provided. When Robert was released rehabilitation was the goal, and it cannot be said as a matter of law, even in the case of individuals who have been convicted of felony child molestation, that the rate of recidivism in such cases is 100 percent. The legislative goal of rehabilitation embodied in the very fact that Robert was indeed released on parole cannot be squared, for purposes of landowner liability, with the assumption that Robert was the legal equivalent of a dangerous animal.
The problem of predicting when a specific convict will again commit a crime was confronted by our Supreme Court in Thompson v. County of Alameda (1980) 27 Cal. 3d 741, 167 Cal. Rptr. 70, 614 P.2d 728 (albeit not in the context of premises liability), which involved stronger facts than those before us. There, a county released a juvenile offender with "`latent, extremely dangerous and violent propensities regarding young children'" (as he was described in the complaint) on temporary leave to his mother's custody even though the county knew that he would, if released, "`take the life of a young child residing in the neighborhood.'" (Id. at p. 746, 167 Cal. Rptr. 70, 614 P.2d 728.) After the offender did just that, and murdered a child of neighbors just a few doors down, the parents of the victim sued the county for failing to warn them of the offender's "`propensities.'" (Ibid.)
The Supreme Court affirmed a judgment after a demurrer was sustained without leave to amend, and specifically tackled the "troublesome" (see id. at p. 749, 167 Cal. Rptr. 70, 614 P.2d 728) problem of whether the county had a duty to warn. Justice Richardson, writing for the court majority, first noted that "a large number *558 of parole violations occur." Releasing the offender was fraught with the possibility of recidivism. (See id. at p. 753, 167 Cal. Rptr. 70, 614 P.2d 728.) But the fact that the Legislature had provided for parole and probation release programs showed that it was willing to accept the risk the "`rehabilitative effort will fail'" to gain the benefit that at least some parolees would be returned to a "productive position in society." (Ibid.) Because the case involved only "nonspecific threats of harm directed at nonspecific victims " (see id. at p. 754, 167 Cal. Rptr. 70, 614 P.2d 728, original emphasis),[10] the court concluded that as a matter of law there was no duty on the part of the county to warn of the release of "an inmate with a violent history." Essentially, noted the court, the Legislature had made a value judgment, and that judgment had certain consequences: "Obviously aware of the risk of failure of probation and parole programs the Legislature has nonetheless as a matter of public policy elected to continue those programs even though such risks must be borne by the public. [Citation.]" (Ibid.)
If the Legislature was prepared to accept the possibility of Robert's rehabilitation, he cannot be equated with an inanimate, dangerous condition, or that of a dangerous animal. This is not a case of keeping a dog which is likely to attack someone on a piece of property. (E.g., Portillo v. Aiassa (1994) 27 Cal. App. 4th 1128, 32 Cal. Rptr. 2d 755 [commercial landlord had duty to inquire as to nature of dog guard kept by commercial tenant].)
Given that Robert's mere presence on the property cannot be considered a dangerous condition of the property, there is no basis for premises liability. Nor do any of the other bases for premises liability apply. There was nothing about the nature of any activity conducted on the property to implicate such liability again, family gatherings cannot be equated with drug dealing or operating a bar open to the public. Nor was there anything about the nature of any of the properties owned by the defendants to implicate liability they were just homes, and in the case of Robert's father, a yacht. Nor was there any relationship of entrustment of a child by virtue of an activity conducted on the premises, such as happened in Wallace, the summer camp case. If anyone was responsible for Eric, even at the family gatherings or times when Robert came over to his brothers to pick up his "stuff," it was Helen. We therefore conclude that the trial court correctly granted the nonsuit motion as to Helen's premises liability theory.
General Negligence
Absent a "special relationship," one cannot be held liable for mere nonfeasance, such as not protecting another from a criminal attack by a third party. (See Totten v. More Oakland Residential Housing, Inc. (1976) 63 Cal. App. 3d 538, 541,134 Cal.Rptr. 29 ["As a basic general principle, in the absence of a special relationship or circumstance, a private person has no duty to protect another from a criminal attack by a third person."].)[11] The basic idea is often referred to as the "no duty to aid rule," which remains a fundamental and *559 long-standing rule of tort law. As the Supreme Court said in Williams v. State of California (1983) 34 Cal. 3d 18, 23, 192 Cal. Rptr. 233, 664 P.2d 137: "As a rule, one has no duty to come to the aid of another. A person who has not created a peril is not liable in tort merely for failure to take affirmative action to assist or protect another unless there is some relationship between them which gives rise to a duty to act." (See also Anaya, supra, 151 Cal.App.3d at pp. 1101-1102, 199 Cal. Rptr. 187 [first cause of action based on failure to warn, was at root "alleged liability on mere nonfeasance," which was defined as "failure to intervene for the benefit of plaintiff'].)
To the degree that Helen asserts a cause of action for negligence disconnected from premises liability, her claim essentially requires this court to depart from the rule against liability for mere nonfeasance. That rule is foundational in California tort jurisprudence. The tort law of California does not impose mandatory good samaritanism. (See generally cases collected at 6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 858, pp. 220-221; cf. also People v. Heitzman (1994) 9 Cal. 4th 189, 213-215, 37 Cal. Rptr. 2d 236, 886 P.2d 1229 [daughter could not be held criminally liable for failing to intercede against brothers' abuse of father because she had no legal duty to control their conduct].) In light of the reaffirmation of that rule as late as recently as 1983 in Williams (and impliedly in 1994 in Heitzman as well), we decline to do so.
Helen argues that Soldano v. O'Daniels (1983) 141 Cal. App. 3d 443, 190 Cal. Rptr. 310, modified the no duty to aid rule. As one commentator has noted, Soldano stands out as the only case in the United States during the thirty year period since the death of Kitty Genovese that could "be read" as adopting a duty to aid rule, though the commentator who made that statement also noted that the "court's apparent holding [was] to the contrary." (See Payne, Linking Tort Reform to Fairness and Moral Values (1995) 1995 Det. C. L.Rev. 1207, 1237 ["During this thirty year period only one case can be read as adopting a `duty to aid' rule, despite the court's apparent holding to the contrary."].)
Soldano did not abrogate the rule against liability for mere nonfeasance. Rather like Justice Scalia's observation about the famous contracts case of Hadley v. Baxendale (1854) 156 Eng.Rep. 145, it is an instance of a court knowing the right rule but simply not applying it correctly.[12] The time has come to explain why the result in the case is an aberration in American tort jurisprudence.
In Soldano, a saloon patron ran across the street to a restaurant to try to phone the police about a threat that had been made in the bar. The patron requested the bartender of the restaurant (in the fairly neutral language which the opinion used to describe the actual facts) to "either call the police or allow him to use the [restaurant] phone to call the police. The [bartender] allegedly refused to call the police and allegedly refused to allow the patron to use the phone to make his own call." (Soldano, supra, 141 Cal.App.3d at p. 446, 190 Cal. Rptr. 310.) The threat in the saloon eventually escalated into a lethal shooting.
The appellate court reversed the judgment entered after a summary judgment motion when the son of the man who was shot and killed in the saloon sued the restaurant across the street. The appellate court began its substantive discussion by saying the "facts" of the case before it "come very nearly within section 327" of the Restatement Second of Torts, which the court then paraphrased for the rather noncontroversial point that if you know a third person is going to render aid to another you shouldn't "prevent[ ]" that person "from doing so." (See Soldano, *560 supra, 141 Cal.App.3d at pp. 452-453, 190 Cal. Rptr. 310.) The opinion then quoted from a scope note making the same point, except it added the idea that you shouldn't "interfere" with another person's attempt to give aid as well as "prevent" it. (Id. at p. 453, 190 Cal. Rptr. 310.)
The problem with the court's analysis is that it subtly equated the concepts of prevention and interference as used in section 327 of the Restatement Second of Torts with the fact that the bartender had refused to allow a saloon patron from across the street use the restaurant's phone. "Interference" and refusal to allow one's property to be commandeered, even for a good purpose, are simply two different things. If the English words "prevent" and "interfere" still mean anything, they necessarily convey the notion of some sort of affirmative action, not just refusal to turn one's property over to someone else.[13]
In addition to Soldano, Helen also relies on Pamela L. v. Farmer, supra, 112 Cal. App. 3d 206, 169 Cal. Rptr. 282, which, as we noted above, is another general negligence case, not a premises liability one. In Pamela L., the appellate court held that the wife of a "sexual offender [who] had molested women and children in the past" could be held liable for telling the parents of three children that it would be "safe for them to play at her house." (Id. at pp. 208, 212, 169 Cal. Rptr. 282.) The court distinguished the case from the traditional "nonfeasance cases" because the wife's affirmative representations increased the likelihood of harm. (See id. at pp. 209-210, 169 Cal. Rptr. 282.) Indeed, she specifically invited the children to her home and thereby "assumed" a "special relationship." (Id. at p. 211, 169 Cal. Rptr. 282.) In essence, Pamela L. is a negligent or intentional misrepresentation case, not a failure to warn case at all. It is obvious that the wife in Pamela L. was seen by the court as functioning as a procurer of victims for her husband. Here, by contrast, Helen has pointed to no affirmative misrepresentations as to how "safe" Eric might have been if left alone with Robert; nor does she make any suggestion that family members were acting to facilitate any molestation.
Helen invites us to consider the duty question here under the traditional seven factors used by the courts. (E.g., Burgess v. Superior Court (1992) 2 Cal. 4th 1064, 1079-1080, 9 Cal. Rptr. 2d 615, 831 P.2d 1197.) That weighing process, however, has already been done by courts over the centuries in formulating the "no duty to aid" rule. We need only add that any result other than the one we reach today under the facts of this case would create intolerable conflicts of interest within families.
Conclusion
The judgment in favor of the respondents is affirmed. Because we affirm the judgment, the protective cross-appeal is moot.
RYLAARSDAM, J., and BEDSWORTH, J., concur.
NOTES
[1] See Penal Code section 647.6, formerly Penal Code section 647a, making it a misdemeanor to "annoy[] or molest[]" any child under the age of 18.
[2] Dorothy once left Robert and Eric alone in her house to go walk her dogs after Robert went there to fix her television. She did not receive the benefit of the nonsuit granted the other family members. We are informed in the opening brief that the jury awarded $200,000 and that the judgment has been satisfied. In this appeal, there are three sets of defense counsel: one for Edwin and Betty (Robert's father and father's wife); one for brother Frank and Frank's wife Jean, and one for the two brothers Phillip and Eddie.
[3] The friend would later testify. Her testimony seems to indicate that the point of the television special was that there was only one parole officer to supervise 100 convicts.
[4] The record indicates that all these molestations consisted of Robert orally copulating Eric for about two minutes.
[5] The viability of the holding in Onciano is questionable in light of the subsequent Supreme Court decision in Ann Al v. Pacific Plaza Shopping Center (1993) 6 Cal. 4th 666, 25 Cal. Rptr. 2d 137, 863 P.2d 207. Onciano relied on Isaacs, supra, 38 Cal. 3d 112, 211 Cal. Rptr. 356, 695 P.2d 653 to reject the idea that a lack of prior criminal activity was not dispositive in the landowner's favor, a fact which Justice Fred Woods would find troubling in a separate concurring opinion, where he lamented Isaacs' "broad brush dicta." (See Onciano, supra, 219 Cal.App.3d at pp. 396-397, 268 Cal. Rptr. 96 (cone, and dis. opn. of Woods (Fred) J.).) Liability in the face of the absence of notice of prior criminal activity, however, was dispositive in favor of the landowner in Ann Al, a rationale which Justice Mosk, in his dissent in Ann Al, criticized as being inconsistent with Isaacs. (See Ann M., supra, 6 Cal.4th at pp. 680-683, 25 Cal. Rptr. 2d 137, 863 P.2d 207 (dis. opn. of Mosk, J.).)
[6] As mentioned above, Onciano may not be viable in light of the subsequent case of Ann M. Assuming that is, however, the essential rationale of the opinion goes to the nature of the property. The court reasoned, rather similar to Constance B., that the presence of unattended cars on a parking lot late at night would act as a magnet for criminal activity. (See Onciano, supra, 219 Cal.App.3d at p. 393, 268 Cal. Rptr. 96.)
[7] Words are important, exact language makes a difference, and sometimes, Strunk and White notwithstanding, it is better to use more words than less. It would be easy to write that his family knew that Robert was a "child molester," but in the context of the law in this case, it would be inaccurate and would convey an idea that is not supported by the record, namely that they were aware of the molestation of Eric as it happened. What they knew, precisely, is that their relation had been convicted of the crime of child molestation.
[8] See Boldt, Rehabilitative Punishment and the Drug Treatment Court Movement (1998) 76 Wash. U. L.Q. 1205, 1306, referencing Lipton, et al., The Effectiveness of Correctional Treatment (1975) at p. 14.
[9] For a bibliography of academic critics of rehabilitation, see David H. Norris and Thomas Peters, Fiscal Responsibility and Criminal Sentencing in Illinois: The Time For Change Is Now (1993) 26 John Marshall L.Rev. 317, 361, fn. 69.
[10] A fact which the court used to distinguish the case from Tarasoff. (See Thompson, supra, 27 Cal.3d at p. 753, 167 Cal. Rptr. 70, 614 P.2d 728.) Justice Tobriner, in his dissenting opinion, read Tarasoff rather more broadly than the majority, concluding that it encompassed generic "predictions of danger" as distinct from threats at specific individuals. (See Thompson, supra, 27 Cal.3d at pp. 763-764, 167 Cal. Rptr. 70, 614 P.2d 728 (dis. opn. of Tobriner, J.).)
[11] Isaacs criticized as "fatally flawed" the requirement of "prior similar incidents" set forth in a series of Court of Appeal decisions, among which was Totten. (See Isaacs, supra, 38 Cal.3d at p. 125, 211 Cal. Rptr. 356, 695 P.2d 653.) Some citators may therefore show it as overruled or disapproved, albeit on another point from the proposition for which we cite it here. However, in light of what Ann M. had to say about the need for prior similar incidents (see footnote 6, above), it is questionable whether any designation that Totten had been disapproved is accurate.
[12] See Scalia, A Matter of Interpretation (Princeton U. Press 1997) at page 6 ("the miller rather than the carrier should have won the case").
[13] The Soldano opinion tried to distinguish between phones in private residences and phones in restaurants open to the public, but cited no statute or regulation that a restaurant's own phone (as distinct from, say, a pay phone in the bar or hallway that anyone could use) must be made available for emergency situations. (See id. at p. 452, 190 Cal. Rptr. 310.) | 01-04-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/5284447/ | ORDER
PER CURIAM
Kenneth Randall Hart (Defendant) appeals from the judgment upon his convictions following a jury trial for three counts of first-degree statutory sodomy,- in violation of Section 566.062, RSMo 2000,1 and one count of first-degree child molestation, in violation of Section’ 666.067. The trial court sentenced Defendant to terms of 20 years’ imprisonment on each of the statutory sodomy convictions and to 15 years’ imprisonment on the, child molestation conviction, all sentences to run. concurrently with the others. 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 30.25(b). " '■ ’ '
. Unless otherwise indicated, all further statutory references are to RSMo 2000 as amended. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284448/ | ORDER
PER CURIAM
The defendant, Robert Rice, appeals the judgment and sentence entered by the Circuit Court of the City of St. Louis after a jury convicted him of two counts of second-degree statutory rape, in violation of section 566.034 RSMo. (2000 & Supp. 2014), and two counts of incest, in violation of section 568.020 RSMo. (Supp. 2014). The trial court sentenced the defendant as a prior and persistent offender to 15 years of imprisonment for each count of statutory rape, to be served concurrently. The trial court sentenced the defendant to seven years of imprisonment for each count of incest, to be served concurrently to one another but consecutively to the statutory-rape sentences, for a total of 22 years of imprisonment. Finding no error, we affirm.
Am opinion would have no precedential value. • The parties have been provided with a memorandum, for their information only, setting forth the reasons for this decision.
We affirm the trial court’s judgment. Rule 30.25(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284449/ | ORDER
PER CURIAM.
Thomas A. Miller (Defendant) appeals the judgment of conviction that the Circuit Court of Audrain County entered after a jury found him guilty of one count of first-degree child molestation, two counts of second-degree child1 molestation, two counts of second-degree statutory sodomy, one count of child abuse, and one count of first-degree child endangerment.
We have reviewed the briefs of the parties and the record on appeal and conclude thát 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.
*271We affirm the judgment pursuant to Rule 30.25(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284451/ | OPINION
Ken Wise, Justice
Appellant MEMC Pasadena, Inc., sustained damages after an electrical accident *384at its industrial plant caused ⅛ shutdown and loss of production. MEMC sued its electrical contractor,, Triad Electric and Controls, Inc., and Triad’s subcontractor, Riddle Power, LLC, alleging that Triad breached its contract with MEMC and that both Triad and Riddle were negligent. Following a jury trial, the trial court signed a judgment awarding MEMC.dam-ages against Riddle and a take-nothing judgment -for Triad. On appeal, MEMC raises twenty-two issues, challenging the legal and factual sufficiency of the evidence and the jury charge. For the reasons explained below, we affirm.
Factual and Procedural Background
MEMC owns and operates an industrial plant in Pasadena, Texas, where it manufactures granular polysilicon.1 Granular polysilicon can be made into silicon wafers for use in the semiconductor and solar industries. Much of the polysilicon MEMC produced was transferred to separate corporations related to MEMC’s parent company to be made into silicon wafers, and some was transferred to MEMC Singapore or elsewhere for sale. MEMC would sell any remaining polysilicon on the spot market for a profit.
To increase plant capacity for poly silicon production, MEMC undertook an expansion project known as the P-23 project. MEMC hired CDI Business Solutions, Inc., to oversee and perform the engineering, procurement, and construction management services for the project. CDI also served as MEMC’s “agent for construction on-site.” MEMC delegated the' day-to-day project work to CDI and gave CDI authority to manage the project and contractors. MEMC also authorized CDI to act as its agent during the bid process and to compile bid packages, send the bid packages to prospective contractors, analyze the bids, and prepare recommendations.
On November 22, 2006, CDI extended a Request for Proposal (“RFP”) to prospective electrical and instrumentation contractors, including Triad. The RFP was for a time and materials (“T & M”) project, and it included numerous documents, including a form contract, a description of the scope of work, and commercial terms. Also included were standard terms and conditions prepared by CDI with MEMC’s approval (the “CDI T & Cs”). It also provided instructions the bidders were to follow if they disagreed with any of the terms and conditions. The RFP required the bidder to “except” (i.e., object) to those terms and provide alternate language for review on Proposal Form 11. MEMC notified the bidders that exceptions would be “highly discouraged” and would be taken into consideration when evaluating a bidder’s overall proposal. Fully completed bids were to be mailed by overnight express to be received by CDI on or before 11:00 a.m. on December 18, 2006.
After issuing the RFP, CDI provided supplemental information and terms to the bidders by addendum. An addendum became part of the RFP package, and if a bidder did not object to the addendum, it became part of the bidder’s response to the RFP. Each addendum issued was numbered sequentially, and the addenda were transmitted by email to all of the bidders at the same time. Most of the addenda are not germane to the case.
On November 29, 2006, CDI forwarded “Addendum 3” containing several blank, standardized documents, including a form *385MEMC purchase agreement for goods and services instead of a;T & M contract. The MEMC purchase agreement also contained standard terms and conditions that differed from the CDI T & Cs in the'RFP (the “Addendum 3 T & Cs”). The Addendum 3 T & Cs included a provision making the contractor responsible for any consequential damages.
On December 8, 2006, Triad submitted an exception, to the indemnity, insurance, and lien provisions of the CDI T & Cs. Triad did not except to anything in Addendum 3.
Shortly before the bid deadline, CDI emailed “Addendum 9” to Triad and the other bidders. Addendum 9 provided for a mutual waiver of consequential damages:
Neither party shall be liable to the other for consequential, indirect, incidental, or special damages including but not limited to loss of plant capacity, loss of business or any other such lost, howsoever caused, including by the negligence or strict liability of either party.
Mike Woody at Triad received Addendum 9 before the bid deadline and brought it to the attention of Philip Morgan, Triad’s general manager, who was preparing Triad’s bid. After reviewing Addendum 9, Triad submitted its bid in response to the RFP without excepting to Addendum 9 on Proposal Form 11 or otherwise informing MEMC that it objected. to the mutual waiver of consequential damages. Triad emailed its bid by the deadline, and supplemented its bid with additional information the next day.
CDI analyzed the bids and recommended Triad for the project. MEMC’s project procurement leader, Jerry Jones, awarded the contract to Triad in January 2007. MEMC subsequently issued a purchase order for the project. The purchase order erroneously identified “Performance Contractors” as the contractor. The purchase order also contained form language that “MEMC’s Purchase Order Terms and Conditions are part of this agreement” and available online at MEMC’s website (the “online T & Cs”).
Because some confusion arose over the applicable terms and conditions, Triad contacted Jones. On January 24, 2007, Jones sent correspondence to Triad’s project manager, Ryan Trueblood, informing Triad that “[f]or the. purpose of the contract, CDI T & C’s will govern.” Neither Jones nor Trueblood testified at trial. Triad understood that the “CDI T & C’s” included the terms Triad received in the original RFP and subsequent addenda.
On January 31, 2007, MEMC sent Triad a revised purchase order correcting the name of 'the contracting party (the “PO”). Although the PO contained the same form language making MEMC’s online T & Cs part of the agreement, MEMC inserted this typewritten statement: “PO CHANGE NOTICE 1/31/07 • TERMS & CONDITIONS AMENDED AS. REQUESTED — JJONES.” The PO also specified that the basis of.the T & M purchase order was Triad’s response to the RFP and “subsequent correspondence from Triad on accepted clarifications.” Additionally, the PO instructed that the scope of work at the site was “under the direction of’ CDI, that CDI “will communicate all engineering, construction and specification documents for this work,” and that CDI “will administer this work by authority of’ MEMC. This PO and the incorporated correspondence formed the contract between MEMC and Triad.
By August 2007, the project was behind schedule. To avoid having to shut down plant production, MEMC made the decision to have the electrical work performed without de-energizing a 2,400-volt transformer known as T-45. Electrical work *386done near or with energized electrical equipment is known as “close proximity” or “hot” work. Triad declined CDI’s request to do the work inside of T-45 because it did not perform hot work, so CDI asked Triad to hire Riddle, a high-voltage specialist, as a subcontractor to handle the job.
Riddle quoted a price of $6,500 for the job. Riddle’s superintendent, Charlie Holden, went out to the site before the work was to begin. He noted that the transformer box lacked three protective barriers or “deflector panels” between the part of the transformer that was energized and the part that was not, and requested they be installed. In the scope of work CDI prepared for Riddle, CDI noted that Riddle believed that the work was feasible, but that “[c]ertain added protective barriers” would need to be installed before Riddle began work. Only two of the three barriers were installed, however, leaving the bottom section open.
On August 27, 2007, the day before the accident, Riddle’s crew arrived at MEMC’s plant, pulled permits, and barricaded their work area with red warning tape. Holden saw that two of the deflector plates were present, but could not confirm the third had been installed without putting his hand inside the transformer box, which he declined to do. Riddle’s crew then began the process of pulling cable through the conduit at T-45 and terminating the cable at the switchgear inside the transformer box. Because Riddle’s supervisor, Kevin Hines, did not have a non-conductive fiberglass fishing tool, he borrowed a metal fish tape from Triad. Using that metal fish tape, Riddle’s crew pulled one cable without incident.
The next morning, Riddle’s crew returned to the plant to pull additional cable underneath the switchgear at T-45. During the course of Riddle’s work, MEMC personnel crossed the barricades Riddle had placed around the work site to complete some switching, interrupting Riddle’s work. Shortly thereafter, Hines had a disagreement with one of his co-employees, Gene Chesson, about how to pull the cable. Hines instructed Chesson to push the fish tape toward the energized switchgear as they had done the day before. Chesson walked around behind the switchgear, without communicating with Hines, and began pushing the fish tape toward the transformer. Unbeknownst to Chesson, Hines was helping a Triad employee with measurements and so was not in position and ready to intercept the fish tape before it reached the energized portion of the transformer. As Chesson pushed the metal fish tape through the conduit, it made contact with the energized “bus” inside the transformer box, causing an explosion and flash. As a result, the system shorted out and shut down the plant. No personnel were injured.
After the incident, Holden arrived at the plant and saw that the fish tape had contacted the energized bus at the transformer box. Holden also saw that the third protective barrier plate, which would have prevented the fish tape from coming into contact with the energized portion of the transformer, had not been installed.
Power was restored to the plant the next morning, and representatives from MEMC, CDI, Triad, and Riddle met to discuss the accident. Everyone at the meeting took some responsibility for the accident and acknowledged there were things they could have done differently. Ultimately, an incident investigation report identified seven contributing causes of the accident, including causes attributable to Riddle, Triad, MEMC, and CDI.
The power outage temporarily impacted MEMC’s ability to produce poly silicon. To assess Triad’s potential responsibility *387for any lost production MEMC asked CDI’s construction manager, Randy Cline, to advise MEMC on “Triad’s financial liability for this production outage under the terms of the construction agreement” Although the record does not contain Cline’s response to MEMC, in a response to an email from Trueblood at Triad concerning costs related to “down time,” Cline stated: “Consequential damages — so MEMC eats.”
MEMC sued Riddle and Triad for negligence and also asserted a breach of contract claim against Triad. At trial, MEMC sought consequential damages for lost production of 77.2 metric tons of product, which MEMC valued at overs$23 million. Although Riddle readily acknowledged some responsibility for the incident, both Triad and Riddle argued that CDI was also negligent and that CDI’s negligent acts or omissions were attributable to MEMC because CDI was MEMC’s agent. Additionally, Triad denied it breached its contract with MEMC, and the parties disputed whether MEMC’s online T & Cs were part of the contract. Central to the issue of whether Triad would be liable for any consequential damages, MEMC and Triad also disputed whether CDI was authorized to send Addendum 9 on MEMC’s behalf, and whether Addendum 9 was ever part of MEMC’s contract with Triad. Triad and Riddle also challenged MEMC’s damages calculations.
After a three-week jury trial, the jury found that the negligence of Riddle, Triad, and MEMC proximately caused the occurrence and injury in question and attributed the percentage of responsibility to Riddle, Triad, and MEMC at 30%, 30%, and 40%, respectively.2 The jury found that MEMC incurred lost profits of $300,000. As to MEMC’s contract claim against Triad, the jury found that Triad did not comply with some provisions of the contract, but concluded that MEMC suffered zero damages. Additionally, the jury found that CDI had actual or apparent authority from MEMC to send Addendum 9 to the bidders, MEMC and Triad agreed to include Addendum 9 in their contract, and MEMC was estopped from claiming that Addendum 9 was not part of its contract with Triad.
Consistent with the jury’s verdict, the trial court rendered judgment that MEMC recover $90,000.00 in damages from Riddle ($300,000 x Riddle’s -30% responsibility), plus interest and court, costs. The trial court also rendered judgment that MEMC take nothing from Triad. s.
Overview op MEMC’s Issues
MEMC raises twenty-two issues challenging the legal and factual.sufficiency of the evidence supporting the jury’s verdict and the court’s charge. MEMC discusses its evidentiary and charge error issues relating to its contract claim against Triad within the following three broad categories: (1) what was the agreement between MEMC and Triad?; (2) evidence and charge error regarding . CDI questions; and (3) evidence and charge error as to breach/damages. MEMC discusses the evidentiary and charge error issues relating to its negligence claim within five broad categories containing several sub-issues: (1) lack of evidence of MEMC’s negligence; (2) lack of evidence of CDI’s negligence; (3) lack of comparative responsibility; (4) charge error’concerning MEMC’s negligence; ' (5) Triad’s right of control — evidence and charge; and (6) errors regarding- MEMC’s damages.' Be*388cause MEMC’s evidentiary and charge issues are interwoven in its briefing, we will address the issues in the order and as necessary to resolve the appeal. We will first address MEMC’s breach of contract and negligence claims against Triad. Next, we will consider MEMC’s negligence claims and comparative responsibility.
Standards of Review
When reviewing the legal sufficiency of the evidence, we review the evidence in the light most favorable to the jury’s findings and assume that the jury resolved all conflicts in accordance with its judgment. City of Keller v. Wilson, 168 S.W.3d 802, 820 (Tex.2005). We credit favorable evidence if reasonable jurors could do so, and we disregard contrary evidence unless reasonable jurors could not do so. Id. at 827. Evidence is legally insufficient if: (1) there is a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; or' (4) the evidence establishes conclusively the opposite of the vital fact. Id. at 810. The ultimate test is whether the evidence at trial' would enable' reasonable and fair-minded people to reach the answer under review. Id. at 827.
When reviewing the factual sufficiency of the evidence, we must consider and weigh all the evidence. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex.1996) (per curiam). Findings may be overturned only if they are so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Id,. Under both standards of review, the factfinder is the sole judge of the witnesses’ testimony as well as the weight to be given to their testimony. City of Keller, 168 S.W.3d at 819; GTE Mobilnet of S. Tex. Ltd. P’ship v. Pascouet, 61 S.W.3d 599, 615-16 (Tex.App.-Houston [14th Dist.] 2001, pet. denied).
A party is entitled to a jury question, instruction, or definition if the pleadings and evidence raise an issue. Tex.R. Civ. P. 278. If there is some evidence to support the' submission, the trial court commits reversible error if it fails to submit the instruction. 4901 Main, Inc. v. TAS Auto., Inc., 187 S.W.3d 627, 631 (Tex.App.-Houston [14th Dist.] 2006, no pet.). We review a trial court’s decision to refuse a particular jury question or instruction for abuse of discretion. See Shupe v. Lingafelter, 192 S.W.3d 577, 579 (Tex.2006) (per curiam). A trial court’s error in refusing an instruction is reversible if it either “probably caused the rendition of an improper judgment” or “probably prevented the appellant from properly presenting the case to the court of appeals.” Tex.R.~ App. P. 44.1(a).
I. MEMC’s Contract and Negligence Claims against Triad
A. The Contract Issues
The' trial court submitted eight questions dealing with MEMC’s breach of contract claim. The jury found that Triad breached its contract with MEMC, but that the contract included a waiver of any consequential damages and awarded no damages. MEMC describes the “overarching issue” dominating the trial as whether the parties agreed to Addendum 9’s mutual waiver of liability for consequential damages as Triad claimed. ■
1. Issue 11: Sufficiency of Evidence to Support Question 11
In Issue 11, MEMC argues that there is no evidence to support the jury’s finding in Question 11 that MEMC and Triad expressly agreed to make Addendum 9 part of their contract, and no or insufficient evidence of an implied agree*389ment to make Addendum 9 part of the contract. We conclude that, although the parties offered conflicting versions of the circumstances surrounding Addendum 9 and each-party points to evidence favorable to its position, legally and factually sufficient evidence was presented to support the jury’s finding that MEMC and Triad agreed to include Addendum 9 in their contract.
MEMC first argues that there is no evidence to support the jury’s finding that MEMC and Triad expressly agreed to make Addendum 9 part of their contract. MEMC contends that no evidence of an express agreement exists because CDI had no authority to negotiate the contract; there is no evidence of any contract negotiations or an express agreement bétween MEMC' and Triad to include Addendum 9; and the face of the contract' is silent as to Addendum 9.
MEMC acknowledges in its brief that “CDI acted as MEMC’s agent in the RFP process to handle the bids.” CDI’s cover letter for the RFP also reflected that CDI was “acting as agents for the MEMC P-23 Project in Pasadena, TX.” Russ Miscow, CDI’s contract manager, testified that CDI handled the bid process and made recommendations for MEMC. CDI did not negotiate or enter into contracts with subcontractors for MEMC, however, and CDI never received a copy of the final contract between MEMC and Triad.
Miscow explained that CDI communicated bid information to potential subcontractors by email, and he confirmed that CDFs contract administrator, Julissa Hernandez, sent Addendum 9 to the bidders. According to Miscow, Addendum 9 would “absolutely not” have been sent without MEMC’s approval; Miscow also testified that Addendum 9 became- part of the terms and conditions of the project, and Triad would have been obligated to bid in accordance with those terms and conditions.
Hernandez likewise testified that CDI would not send out correspondence on the project without MEMC first approving it. She also stated that MEMC gave written approval, by email, for CDI to send the RFP and all nine of the addenda to the bidders. As the RFP provided, and Hernandez further explained, bidders were required to put any exceptions to the proposed terms and- condition in their December 18 proposal; if a bidder did not object to Addendum 9 (or- any other proposed term), it became part of -the contract’s terms and conditions; Triad never objected to Addendum 9; and Addendum 9 became part of Triad’s response to the RFP; Phillip Morgan of Triad also confirmed that Triad received and reviewed Addendum 9 before the bid deadline and that Triad proceeded with its bid without .submitting an exception to Addendum 9.
As MEMC points out, both Miscow and Hernandez testified that any contract would be negotiated between MEMC and Triad. And after Triad was selected, there is some evidence that Trueblood of Triad communicated with Jones of MEMC concerning alterations or clarifications to the final agreement, but neither testified at trial. MEMC also argues that the PO makes no-mention of Addendum 9, and asserts that Addendum 9 was not mentioned until after the accident when Randy Cline of CDI showed Trueblood a copy.3 *390However, Doug Rice, MEMC’s corporate representative, acknowledged that Addendum 9 was emailed and received by Triad before the bid deadline. Rice also testified that Triad “adopted” Triad’s response to the RFP as part of the contract. Moreover, the PO on its face expressly incorporates Triad’s response to the RFP as the basis for the purchase order.
Because the bid process required that negotiations concerning the proposed contract’s terms and conditions be conveyed only by email communication with CDI, and any terms and conditions not objected to by the bidder became part of the agreement between the parties, the jury could have reasonably concluded that Addendum 9 became part of the parties’ contract because CDI issued Addendum 9 on behalf of MEMC and Triad did not object to its inclusion. On these facts, the evidence is legally sufficient to support the jury’s finding' that MEMC and Triad agreed to Addendum 9.
MEMC next contends that there is factually insufficient evidence of an implied agreement to make Addendum 9 part of the contract. First, MEMC argues that Addendum 3, including the Addendum 3 T & Cs making Triad responsible for MEMC’s consequential damages, superseded the RFP and prior addenda. MEMC posits that if MEMC authorized: sending Addendum 9 (as Triad contends), then Addendum 9 “modified” the Addendum 3 T & Cs, rather than the CDI T & Cs; therefore, Triad’s argument that the CDI T & Cs are controlling impliedly rejects Addendum 9. MEMC also contends that Triad’s version of events implausibly suggests that Triad was able to obtain CDI’s consent to send its bid by email instead of overnight mail without documentation, violate the bid process, and choose to ignore Addendum 3 and instead bid against the superseded CDI T & Cs.
MEMC is correct that Triad’s position is that it was bidding against the RFP containing the CDI T & Cs and the subsequent addenda, as Morgan testified. But there was also evidence that Triad correctly relied on the CDI T & Cs because the MEMC goods and services contract (containing the'Addendum 3 T & Cs) was mistakenly included in Addendum 3. The contract was prepared by MEMC and was a different type of contract than the proposed electrical and instrumentation contract prepared by CDI and presented in the RFP. The agreement also specified that the “buyer” was MEMC Electronic Materials, Inc., not MEMC Pasadena, Inc. When shown Addendum 3, Miscow expressed surprise that a goods and services contract was sent to the bidders, because he thought that the standard terms and conditions went out with the RFP. Hernandez testified that, although MEMC instructed her to send Addendum 3, she believed MEMC sent the goods and services agreement in error. Based on this evidence, the jury reasonably could have rejected MEMC’s version of events and accepted Miscow’s and Hernandez’s testimony that MEMC sent the goods and services agreement in Addendum 3 by mistake. And although MEMC contends that Triad bid against the wrong T & Cs, the PO reflects that MEMC expressly adopted Triad’s response to the RFP as the basis of the PO.
Even if the jury believed Addendum 3 superseded the original RFP, the jury could have concluded that Addendum 9 modified Addendum 3 — as MEMC’s own argument recognizes — to provide for the mutual waiver of consequential damages. Further, to the extent that MEMC argues that Triad acted improperly in the bid process, Miscow testified that if a bidder does not follow the bid instructions, they could be disqualified, and it was MEMC’s *391decision whether to disqualify the bidder. Because MEMC chose Triad as the winning bidder, the jury could have concluded that MEMC chose to overlook any noncompliance with the bid process on Triad’s part.
MEMC also makes a related argument that Addendum 9 cannot be incorporated in the contract using Jones’s email informing Triad that “the CDI T & C’s will govern” and “isolated phrases” from the PO. In this argument, MEMC contends that “PO CHANGE NOTICE 1/81/07 • TEEMS & CONDITIONS AMENDED AS REQUESTED — JJONES” on the face of the PO is too vague to clearly mean that the CDI T & Cs were adopted by the parties, much less that they incorporated Addendum 9 into their contract. According to MEMC, Jones could have been referring to the PO’s correction of the subcontractor’s name in the original purchase order, or “most likely” was referring to Triad’s December 8, 2006, written exceptions to MEMC’s indemnity, lien, and insurance requirements. MEMC also notes that the PO references a date of “1/31/07,” while Jones’s email is dated January 24, 2007, and there is no evidence from the emails or testimony that Triad “requested” the CDI T & Cs.4
The limited documentary evidence of post-award communications between Jones and Trueblood shows that on January 15, 2007, Jones informed Miscow and others that he called Trueblood and “verbally awarded the business” to Triad. Jones also explained -that Trueblood was “completing required documents” for Jones and that the PO would be issued after True-blood returned the documents to him. That same day, Jones emailed Trueblood requesting that Trueblood complete and return the documents. Trueblood forwarded some of the documents to Jones on January 22 and the rest on January 23. The documents returned were some of the form MEMC documents that had been transmitted with Addendum 3.
On January 22, 2007, Trueblood also emailed Jones, copied to Cline, Miscow, and Morgan, concerning “a few things with the purchase agreement that Triad would like to address.” Trueblood listed three bullet points requesting proposed revisions to certain sections of the Addendum 3 T & Cs from- Addendum 3. The third point. specifically requested that MEMC change the payment terms to be consistent with those in the RFP prepared by CDI.
Cline responded to Trueblood’s email on January 23,' and the next email in the chain is Jones’s January 24 email in which he réplied to Trueblood, “I understand there is confusion tiver the conflicting T & C’s presented by CDI and MEMC. For the purpose of this contract, CDI T & C’s will govern.” On January 25, 2007, MEMC forwarded the first purchase order, dated 1/24/2007, misnaming Triad as Performance Contractors.5 Triad requested a cor*392rection, and the corrected PO, also dated 1/24/2007, was faxed on January 31.
From this evidence, the jury could have concluded that the confusion Jones was addressing in his email was Triad’s confusion over whether the CDI T & Cs or the Addendum 3 T & Cs governed the parties’ contractual relationship. The jury also could have concluded that Jones’s statement on the face of the'PO was memorializing his earlier email clarification that the CDI T & Cs would govern. As for the time lag between’January 24 and January 31, the incorrect purchase order was sent to Triad during that time and Triad requested it be corrected. The jury could have concluded that Jones merely added the change ‘notice language on January 31, the date, the corrected PO was faxed. Jones’s typewritten notation is also consistent with other language on the face of the PO that the basis of the PO was Triad’s response to the RFP, meaning the CDI T & Cs and . all addenda, including Addendum 9.
We conclude that this evidence is legally and factually sufficient to support the jury’s finding that MEMC and Triad agreed that the CDI T & Cs and subsequent addenda, including Addendum 9, applied to their contract. We overrule MEMC’s Issue 11.
2. Issues 12 qnd 13: Whether MEMC’s Online Terms and Conditions Applied as a Matter of Law
In Issue 12, MEMC contends that the trial’court committed reversible error by refusing to grant MEMC a directed verdict that its online T & Cs applied to the parties’ contract, and by submitting a question of contract construction to the jury in Question 6. In Issue 13, MEMC contends that the evidence is legally and factually insufficient to support the jury’s answer to Question 6.
Question 6 asked: “Did MEMC and Triad agree that MEMC’s Online Terms and Conditions (T’s & C’s) (MEMC Exhibit 12)' were part of the contract between them?” The jury also was instructed as follows:
In deciding whether the parties agreed that MEMC’s Online Terms and Conditions (T’s & C’s) were part of the contract between them, you may consider what they said and did in light of the surrounding circumstances. You may not consider the parties’ unexpressed thoughts or intentions.
The jury answered “no.”
In reviewing a directed verdict, we decide whether there is any evidence of probative value to raise an issue of material fact on the question presented. Exxon Corp. v. Emerald Oil & Gas Co., EC., 348 S.W.3d 194, 217 (Tex.2011). We review the evidence in the light most favorable to the party suffering the adverse judgment. Id.
MEMC points to the form language on the face of the PO that MEMC’s online T & Cs were part of the agreement and “[a]ny additional or different terms proposed by vendor to this purchase order are rejected unless expressly agreed to by MEMC in writing.”6 MEMC notes that this language' was not stricken out. MEMC also argues that Jones’s typewritten notation “PO CHANGE NOTICE 1/31/07' • TERMS & CONDITIONS *393AMENDED AS REQUESTED— JJONES” did not state that MEMC’s online T & Cs were “replaced” or that CDI’s T & Cs “were adopted,” which it contends would have been consistent with Triad’s theory. Instead; MEMC argues, Jones’s use of the word “amended” is consistent with MEMC’s argument that Jones was referring to the agreement to use Triad’s indemnity, insurance, and lien provisions.
As previously discussed in Issue 11, Jones’s typewritten notation on the PO arid the surrounding circumstances raised a fact issue concerning which set. of terms and conditions the parties intended to apply to their. contract,- Indeed, the issue was hotly contested and ultimately resolved in Triad’s favor. ■ This is not a situation in which the trial court ceded its duty to construe the terms of an unambig-uoris contract, as MEMC contends.’ Because some evidence supports the' trial court’s submission of the issue, the trial court did not err by denying MEMC’s motion for directed verdict and submitting the issue to the jury. Additionally, the evidence is factually sufficient to support the jury’s answer to Question 6. We overrule MEMC’s Issues 12 and 13.
3. Issue 14: Charge Error as to Question 6
In Issue 14, MEMC contends that the trial court reversibly erred by submitting Question 6 to the jury over MEMC’s objection and by refusing MEMC’s tender of a proper question and instruction which would have asked the jury to determine which set of terms and conditions applied to the contract between the parties. Absent such a fíndirig, MEMC argues, the jury’s answer to Question 6 was immaterial.
The gist of MEMC’s argument appears to be that there were three sets of terms and conditions in evidence — the CDI T & Cs, the Addendum 3 T & Cs, and MEMC’s online T & Cs — and the jury was required to choose between them. Because Triad bore the burden to prove Addendum 9 applied, MEMC árgues, it was not enough for the jury merely to reject MEMC’s online T & Cs; the jury also should have been asked whether the parties agreed to the CDI T & Cs. Thus, MEMC concludes, by refusing to submit a choice, any answer was immaterial since it did not’ decide which set of terms and conditions applied.
As an initial matter, MEMC’s objection below and proposed question does not' comport with its appellate argument, because‘it does not include the Addendum 3 T & Cs as an option for the jury to choose. MEMC’s proposed question asked the jury to choose between the CDI T & Cs and MEMC’s online T & Cs, but did riot offer the jury the option to choose the Addendum 3 T & Cs.7 Therefore, MEMC has not preserved the issue for review. See Bayer Corp. v. DX Terminals, Ltd., 214 S.W.3d 586, 602-03 (Tex.App.-Houston [14th Dist.] 2006, pet. denied.).
Additionally, the particular terms contained within the identified pages of CDl’s T & Cs were immaterial to any of the claims or defenses raised in the lawsuit. . A trial court is required to “submit only controlling factual issues which are essential to a right of action or defense.” Indian Oil Co., LLC v. Bishop Petroleum Inc., 406 S.W.3d 644, 658 (Tex.App.-Hous*394ton [14th Dist.] 2013, pet. denied). Therefore, the trial court did not err by refusing to submit MEMC’s proposed question. Instead, the trial court correctly submitted two questions on the controlling contract formation issues — whether the parties agreed to the material contractual provisions that were in dispute: (1) MEMC’s online T & Cs and (2) Addendum 9. We overrule MEMC’s Issue 14.
4. Issue 15: Sufficiency of Evidence of Actual or Apparent Authority
In Issue 15, MEMC argues that the evidence is legally and factually insufficient to support the jury’s finding in Question 10 that CDI had actual or apparent authority to send Addendum 9 to the bidders.
Question 10 included the following definitions of “authority” and “apparent authority”:
Authority for another to act for a party must arise from the party’s agreement that the other act on behalf of and for the benefit of the party. If a party so authorizes another to perform an act, that other party is also authorized to do whatever else is proper, usual, and necessary to perform the act expressly authorized.
Apparent authority exists if a party (1) knowingly permits another to hold itself out as having authority or, (2) through lack of ordinary care, bestows on another such indications of authority that lead a reasonably prudent person to rely on the apparent existence of authority to his detriment. Only the acts of the party sought to be charged with the responsibility for the conduct of another may be considered in determining whether apparent authority exists.
First, MEMC argues that the evidence is legally and factually insufficient to show actual authority because MEMC had never seen Addendum 9 until after the litigation was underway, and Miscow testified that he had no recollection of it. Further, Hernandez testified that there would be a record of MEMC’s email approving it, but there was none. Second, MEMC argues that the evidence is insufficient to show apparent authority because Triad relied solely on the testimony of an interested witness, Morgan, to prove Triad’s reliance on Addendum 9. According to MEMC, Morgan’s testimony that he received oral permission from Cline to email Triad’s bid could not be readily controverted because Cline did not testify, and Morgan’s assertion was not credible since CDI communicated with Triad by addenda and there was no supporting documentation of a waiver.
MEMC’s arguments ignore Miscow and Hernandez’s testimony, discussed in greater detail in Issue 11, that Addendum 9 was sent with MEMC’s approval, as were all other addenda to the RFP, and would not have been sent without MEMC’s permission. Additionally, the cover letter for the bid package reflected that CDI was “acting as agents for the MEMC P-23 Project in Pasadena, TX.” MEMC’s corporate representative, Doug Rice, acknowledged that CDI sent the bid package to Triad with MEMC’s authority, and that Triad had the right to believe that when it was talking with CDI during the bid process it was essentially dealing with MEMC. Moreover, the jury could have believed Morgan and discounted Rice’s testimony that MEMC knew nothing of Addendum 9, because Rice was not the person responsible for putting together the contract — that person was Jones, who did not testify. The jurors, as the sole judges of the credibility of the witnesses, were free to resolve any conflicts in the parties’ testimony in accordance with the verdict. See City of *395Keller, 168 S.W.3d at 819-20. We overrule MEMO’S Issue 15.
5. Issue 16: Charge Error as to Question 10
In Issue 16, MEMO argues that Question 10 should not have been submitted in light of the lack of evidence the parties explicitly or impliedly agreed to include Addendum 9 in their contract, and that ■without such evidence, the question is irrelevant and immaterial. See Salinas v. Rafati 948 S.W.2d 286, 288 (Tex.1997) (“A jury finding is immaterial only if the question should not have been submitted or if the question, though properly submitted, was rendered immaterial by other findings.”). Because we have determined that sufficient evidence supports the jury’s answer to Question 10, as discussed above in Issue 15, we overrule MEMO’s Issue 16.
6. Issue 17: Refusal of Limiting Instruction as to CDI
In Issue 17, MEMO contends that the trial court erred by refusing MEMO’s request that the jury be instructed to “not consider any statement or conduct of CDI” in Question 11. MEMO asserts that a “bright line” was needed between CDI’s involvement in the bid process and its lack of involvement in contract negotiations. Without it, MEMO argues, Triad was able to use CDI’s agency “as a .mallet” and MEMO was harmed.
We disagree that the trial court erred in refusing MEMO’s proposed instruction. Question 11 asked only whether MEMO and Triad agreed to include Addendum 9 in their contract; the jury was not instructed to consider the statements or conduct of CDI or to consider whether the actions of others may be attributed to MEMO through principles of agency. Notably, the trial court also overruled Triad’s objection and request to include an instruction on CDI’s actual or apparent authority in Question 11. Therefore, MEMO’s proposed instruction would not have assisted the jury in answering the question concerning MEMO and Triad.
7.Issues 18 and 19: Question 12’s Submission
In Issues 18 and 19, which MEMO briefs together, MEMO contends that the evidence is legally and factually insufficient to support the jury’s finding in Question 12 that MEMO was estopped from claiming that Addendum 9 was' not part of its agreement with Triad. Because the evidence was insufficient to support the question, MEMO asserts, it should not have been submitted.
Question 12 asked the jury: “Is MEMO estopped from claiming that Addendum 9 is not part of its agreement with Triad?” Question 12 included the following instructions:
Estoppel bars a party from asserting, to another’s disadvantage, a right inconsistent with' a positibn previously taken by that party. This doctrine applies when it would be unconscionable to allow a party to maintain a position inconsistent- with one in which it had acquiesced, or from which it had accepted a benefit.
In considering whether MEMO is es-topped, you are instructed that MEMO’S conduct includes the conduct of any other who acted with MEMO’S authority or apparent authority.
The instruction also included the same definitions of “authority” and “apparent authority” used in Question 10, along with a definition of “ordinary care” as “that degree of care that would be used by a person of ordinary prudence under the same or similar circumstances.” The jury answered “yes” to the question.
MEMO contends that the evidence is legally and factually insufficient, because *396the only conceivable evidence of estoppel is Cline’s email to Trueblood in which Cline stated, “Consequential damages — so MEMC eats.” :MEMC argues that the email was not copied to anyone at MEMC and there is no evidence MEMC saw it. Further, MEMC maintains that any agency status enjoyed by CDI ended after it recommended Triad. MEMC also points out that CDI never saw the final contract and asserts that Cline, CDI’s construction manager, had no authority from either MEMC or CDI to “interpret contracts.” Because there was no evidence that MEMC acquiesced in or accepted any benefit frofti' Cline’s email, MEMC maintains, it was error to submit Triad’s affirmative defense of quasi-estoppel to the jury. See Steubner Realty 19, Ltd. v. Cravens Road 88, Ltd., 817 S.W.2d 160, 164 (Tex.App.-Houston [14th Dist.] 1991, no writ) (quasi-estoppel applies “where it would be unconscionable to allow a person to maintain a position inconsistent with one in which he acquiesced, or of which he accepted a benefit”).
MEMC’s premise is flawed because there was evidence from which the jury could have concluded that MEMC led Triad to believe that Addendum 9 was included in the terms and conditions of the contract. As discussed above, there was evidence that MEMC authorized CDI to (1) send the proposed terms and conditions of the RFP, including all addenda, to Triad; (2) advise Triad that exceptions to the terms were “highly discouraged”; and (3) provide Triad with instructions on how to. except to any terms. In accordance with those terms, Triad did. not except to the inclusion of Addendum 9 in its response to the RFP. Further, when confusion arose as to which terms governed the parties’ relationship after the contract was awarded to Triad, MEMC confirmed that “CDI’s T & C’s will govern” and amended the PQ to reflect this fact.
' Even after the accident, when Triad requested that CDI, which was also MEMC’s authorized construction management company, to forward a copy of the contract with all addenda, CDI responded by sending, among other items, Addendum 9. And although MEMC complains that Cline had no authority to “interpret contracts,” MEMC emailed Cline after the accident and resulting loss of production, asking him to advise MEMC on “Triad’s financial liability for this production outage under the terms of the construction agreement.” Cline later responded to Triad that Triad had no liability: “Consequential damages, — só MEMC eats.” Additionally, Doug Rice, MEMC’s corporate representative, acknowledged that it was Cline’s job “to know and thoroughly understand” MEMC’s contract with Triad.
This evidence is legally and factually sufficient to support the jury’s finding that MEMC was estopped from claiming that Addendum 9 was not part of its agreement with Triad, and therefore the trial court did not err by submitting the question to the jury. We overrule MEMC’s Issues 18 and 19.
Because we hold that the evidence and the charge as submitted to the jury support the jury’s findings that Triad and MEMC agreed to include Addendum 9 in their contract and that MEMC is estopped from claiming that Addendum 9 is not part of its .contract with Triad, we do not reach MEMC’s Issues 20, 21, and 22 concerning the evidence supporting Triad’s negligence, the charge on damages for Triad’s breach of contract, and the jury’s refusal to award MEMC attorney’s fees,
B. Triad’s Negligence and the Economic Loss Rule
The jury found that the negligence of Triad, Riddle, and MEMC proximately *397caused the occurrence and injury in question and attributed the percentage of responsibility to Triad, Riddle, and MEMC at 30%, 30%, and 40%, respectively. However, the trial court awarded a take-nothing judgment in favor of Triad. We conclude that, as to Triad, the trial court did not err because MEMC’s negligence claim is barred by the economic loss rule.
The economic loss rule generally precludes recovery in tort when the only economic loss to the plaintiff is the subject matter of a contract. Sw. Bell Tel. Co. v. DeLanney, 809 S.W.2d 493, 494-95 (Tex.1991); Arlington Home, Inc. v. Peak, Envtl. Consultants, Inc., 361 S.W.3d 773, 779 (Tex.App.-Houston [14th Dist.] 2012, pet. denied). The nature of the injury most often determines what duty is breached. Arlington Home, 361 S.W.3d at 779. When a plaintiff seeks damages for breach of a duty created under a contract rather than a duty imposed by law, tort damages are precluded. Id.; see Jim Walter Homes, Inc. v. Reed, 711 S.W.2d 617, 618 (Tex.1986) (“When the injury is only the economic loss to the subject of a contract itself, the action sounds in contract alone.”).
MEMC admits that it alleged that Triad “did not comply with its contractual obligation to see that Riddle performed its work safely.” MEMC argues that the economic loss rule does not apply, however, because it also contended that Triad was “actively negligent by distracting the Riddle.employees, while they were working on energized equipment.” MEMC also argues that economic, damages may be recovered when accompanied by physical damage, citing Triad’s, incident reports confirming that the accident caused property damage to the transformer.8
In this case, MEMC had a contract with Triad, and MEMC sued Triad for allegedly breaching that contract by failing to properly supervise and coordinate the activities of its subcontractors. MEMC recited variations of these-same allegations in its negligence claim. The gist of MEMC’s tort claim was that Triad negligently per-, formed the contract by failing to properly supervise, coordinate, and staff the project. Moreover, at trial, MEMC sought the same economic damages — $23 million in consequential damages — for both its negligence and breach of contract claims.
Under these circumstances, MEMC’s claim against Triad sounds solely in contract and is barred by the economic loss rule. See DeLanney, 809 S.W.2d at 494-95 (plaintiffs negligence claim for lost profits arising from defendant’s failure to *398publish advertisement sounded only in contract); Jim Walter Homes, 711 S.W.2d at 617-18 (plaintiffs claim ’for builder’s alleged negligence in supervision of home construction can only be characterized as a breach of contract); Arlington Home, 361 S.W.3d at 780 (economic loss rule barred home purchaser’s neghgence claim against mold assessment consultant, as only duty allegedly breached was a duty created by contract); Stauffacher v. Coadum Capital Fund 1, LLC, 344 S.W.3d 584, 591 (Tex.App.-Houston [14th Dist.] 2011, pet. denied) (breach of fiduciary claim failed when plaintiff put on “no evidence of damages independent of those suffered” as a result of defendant’s breach of contract). We hold that the economic loss rule bars MEMO’S recovery of neghgence damages from Triad.
C. Disposition of MEMO’S Issues as to Triad
We affirm the trial court’s take-nothing judgment in favor of Triad.
II. MEMO’s Negligence Claims and Comparative Responsibility
The jury found that MEMO’s neghgence proximately caused the occurrence and injury in question and'apportioned MEMO’s comparative responsibility at 40%. In MEMO’s issues 1 through 10, MEMO challenges the legal and factual sufficiency of the evidence supporting the jury’s negligence and damages findings. MEMO also contends that the trial court’s charge on the neghgence and damages issues was flawed in several respects.
Overview of Negligence and Comparative Responsibility
Riddle and Triad bore the burden to prove MEMO was negligent and the per-centáge of comparative responsibility attributable to MEMO. See Enright v. Goodman Distr., Inc., 330 S.W.3d 392, 396 (Tex.App.-Houston [14th Dist.] 2010, no pet.).
The elements of a neghgence claim are (1) a legal duty, (2) breach of that duty, and (3) damages proximately caused-by the breach. IHS Cedars Treatment Ctr. of DeSoto, Texas, Inc. v. Mason, 143 S.W.3d 794, 798 (Tex.2004). Proximate cause has two elements — cause in fact (or substantial factor) and foreseeability. Id. These elements cannot be satisfied by mere conjecture, guess, or speculation. Id.; Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex.1995), Cause in fact is established when the act or omission was a substantial factor in bringing about the injuries, and without it, the harm would- not have occurred. IHS, 143 S.W.3d at 799; Doe, 907 S.W.2d at 477. If neghgence merely furnishes a condition that made the injuries possible, there can be no cause in fact. W. Invs., Inc. v. Urena, 162 S.W.3d 547, 551 (Tex.2005). “Foreseeability” means that the actor, as a person of ordinary intelligence, should have anticipated the dangers that his negligent act created for others, although it does not require an actor to anticipate the precise manner in which the injury will occur. Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 785 (Tex.2001).
Contributory neghgence contemplates an injured person’s failure to use ordinary care in regard to his or her own safety. Kroger Co. v. Keng, 23 S.W.3d 347, 351 (Tex.2000); see Tex. Civ. Prac. & Rem.Code § 33.002(a)(1); Because comparative responsibihty involves measuring the parties’ comparative fault in causing MEMO’s injuries, it necessitates a preliminary finding that MEMO was in fact contributorily negligent See Keng, 23 S.W.3d at 351.
*399A. Issues 2(C), 4, 5, and 6: Jury Instruction on CDI’s Agency in Question 3
In Question 3, the jury was instructed to consider CDI’s acts or omissions in the construction phase of the project as the acts of MEMC.9 According to MEMC, the trial court’s instruction was error because the defendants did not prove that CDI was MEMC’s agent in the construction phase of the P-23 project as a matter of law and therefore the instruction equating CDI to MEMC violated Casteel.10 MEMC also contends that the trial court erred by submitting the instruction over its objection and refusing MEMC’s tendered question omitting the instruction. Further, MEMC asserts, the trial court’s error infected Question 4, in which the jury was asked to apportion the comparative responsibility of MEMC, Triad, and Riddle.
An agency relationship will not be presumed, and the party asserting the relationship has the burden to prove its existence. Schultz v. Rural/Metro Corp. of New Mexico-Texas., 956 S.W.2d 757, 760 (Tex.App.-Houston [14th Dist.] 1997, no pet.). To prove the existence of an agency relationship, the proponent must show that the alleged principle has both the right to assign the agent’s task and to control the means and details of the process by which the agent will accomplish the assigned task. Id. An agency relationship may be shown by direct testimony or by circumstantial evidence showing the relationship of the parties and their conduct concerning the transaction at hand. Id.
MEMC acknowledges that it contracted with CDI for construction management, and that Rice, MEMC’s general manager and representative, testified that CDI was delegated certain tasks and provided engineering and construction management on the project. But MEMC contends that Rice’s testimony that CDI could be an agent — defined by Triad’s counsel as MEMC’s “eyes and ears on the ground”— did not demonstrate that MEMC controlled the details of how CDI was to accomplish its assigned tasks.11 MEMC also argues that the contract between it and CDI, the most determinative evidence of the parties’ relationship, was not in evidence, and suggests that CDI could have been an independent contractor. Accordingly, MEMC asserts, CDI’s agency was not proven as a matter of law and the trial court’s instruction based on its implied finding of agency was error.
As noted above, CDI’s cover letter for the RFP informed the bidders that CDI was “acting as agents for the MEMC P-23 Project.” The PO MEMC sent to Triad *400further provided that “[t]his scope of work at the MEMC Pasadena Site is under the direction of CDI”; CDI “will communicate all engineering, construction and specification documents for this work”; and CDI “will administer this work by authority of MEMC.” Rice testified that CDI was MEMC’s “agent for construction on site,” had MEMC’s “authority to deal with the actual contractors on-site,” and was “acting as [MEMC’s] agent in doing the engineering.” MEMC’s project director, James Mallinak, likewise testified that MEMC. delegated the day-to-day work on the project to CDI and that CDI was “in charge of the construction management” on MEMC’s behalf.12
This evidence. conclusively shows that CDI was MEMC’s agent. '. Because MEMC points to no contrary evidence, the trial court did not err by instructing the jury to consider CDI’s acts and omissions those of MEMC. We overrule CDI’s Issues 2(C), 4, 5, and 6.
B. Issues 1 and 2(A)-(B): Evidence of MEMC’s Negligence
In these issues, MEMC contends the evidence is legally and factually insufficient to show that MEMC’s conduct. (or that of its agent, CDI) was a proximate cause of the occurrence and injury as the jury found in Question 3. MEMC argues that the defendants alleged that MEMC and CDI were negligent in the following ways:
• MEMC’s plant did not have a backup power supply or generator system to keep the plant in operation if power was interrupted.
• CDI failed to design or procure a transformer box with a Micarta board barrier sealing the underside of the box to prevent incursion of the box when Riddle pushed the metal fish tape through the conduit. ■
• CDI failed to install the. Micarta board at Riddle’s suggestion.
• CDI prepared Riddle’s scope of work and knew a short would interrupt the power supply to the plant.
• MEMC was responsible for rushing the work because the project was ■ behind schedule.
• MEMC could' have powered down the plant to allow the work to be ' performed while the transformer box was de-energized.
• CDI did not monitor Riddle’s work;
• MEMC personnel crossed the tape barricade and interrupted Riddle’s work to perform a switching operation at the transformer.
1. MEMC Personnel Crossing the Barricades
First, MEMC acknowledges that its employees crossed Riddle’s barricades to perform a switching operation (involving switching power from one incoming line and killing another) at the T-45 transformer while Riddle and Triad personnel were already in the area. But MEMC contends the evidence shows that they left well before. Riddle began pushing the fish tape into the conduit.
According to MEMC, Riddle was aware MEMC’s personnel were coming to perform the switching operation that day. When MEMC arrived, Hines and Chesson stopped what they were doing to let MEMC work. MEMC performed the switching, operation with Riddle’s assistance, and the work took about thirty minutes. Mike Powell, MEMC’s electrical and instrumentation supervisor, told Hines that the disengaged line would be com*401pletely de-energized that morning if Riddle chose to delay its work, but Riddle declined and Powell left. Sometime later, Hines and Chesson argued about the proper way to push the fish tape. When Ches-son went around to the back and began pushing the tape from “not to hot” as Hines had instructed, Hines was having a discussion with a Triad employee and was not in a position to intercept the fish tape as planned. Powell estimated that he had been gone from the area about “five to ten minutes” when the power to the plant went down.
Because MEMC personnel had left the area well before the accident, MEMC argues that even if its act of crossing the barriers was negligent, it was not contemporaneous to Riddle’s activity and was too attenuated to have been a substantial factor in bringing about the accident. MEMC further contends that there was no evidence that MEMC could foresee its activity would have created a danger that Riddle would push the fish tape into the transformer. See IHS, 143 S.W.3d at 798-99.
In response to MEMC’s arguments, Riddle and Triad point to Chesson’s testimony. that MEMC interrupted Riddle’s work. Chesson also stated that part of what caused the. accident was “people coming into [Riddle’s] work area ..,. right before the incident happened” and “crossing] the barricades.” Chesson specifically clarified that he was referring to MEMC’s personnel. Chesson further testified MEMC’s appearance in the work area surprised them and made them “stop and take a step- back” while MEMC performed the switching- operation. Hines similarly testified that while' Riddle was working in the barricaded area, MEMC interrupted its work-by crossing the barricades. Hines also stated that he saw no Triad personnel in the area at that time. Additionally, Powell, Chesson, and others testified' that at the post-accident meeting, it was discussed that all parties, including MEMC, bore some responsibility ■ for the accident. An incident investigation report also listed MEMC’s interruption of Riddle’s work in the barricaded area as ope of the contributing causes of the accident. Further, Powell testified that two of the people who assisted in working on the switchgear were still in the area removing their gear when they saw the flash.
From this evidence, the jury reasonably could have concluded that MEMC’s interruption of Riddle’s ongoing work in the barricaded area affected Riddle’s work and contributed to the accident. The jury also could have concluded that, because MEMC employees were still near the area when the accident occurred, that the accident happened much sooner after MEMC completed its work than Powell estimated and that the effect of the interruption had not ended when the accident occurred. Therefore, the evidence was legally and factually sufficient to support a finding that MEMC’s negligence was a proximate cause of the accident.
2. CDI’s Failure to Obtain a Transformer Box with a Micarta Board Barrier to Prevent Entry of Metal Fish Tape
At trial, Triad and Riddle contended that CDI was negligent in failing to provide a transformer box with protective barriers or “deflector panels” known as Micarta board to shield the energized portion of the switchgear inside the transformer from the incursion pf the metal fish tape, which would have prevented the accident. MEMC contends that there was no evidence that CDI designed, specified,- or purchased the transformer box. Specifically, MEMC argues that CDI’s engineering/design drawings and specifications for the transformer- were not in evidence; there was no document showing CDI *402bought the transformer; Triad denied purchasing it; and Riddle merely speculated that the existence (or not) of deflector plates was a design issue.
Hines, Riddle’s supervisor on the job, testified that some switchgear comes with protective barriers and some does not, and he did not know whether it was a design issue or the choice of the owner. Hines did not know who purchased the switchgear for this particular job. There was also some testimony from MEMC and Riddle suggesting that Triad may have purchased the equipment. However, MEMC witnesses, including Mallinak and Rice, repeatedly testified that CDI was responsible for performing the engineering, procurement, and construction management for the expansion project. And although Rice did not have firsthand knowledge whether CDI or Triad purchased the particular switchgear at issue, he testified that he understood that CDI, as MEMC’s engineering and procurement representative, made the purchase. Moreover, Morgan testified that CDI controlled virtually everything about the specifications and drawings for the project, and he denied that Triad purchased the transformer. This evidence is legally and factually sufficient to support a finding that MEMC designed, specified, and purchased the transformer box and switch gear at T-45.
3. CDI’s Failure to Install the Micar-ta Board Barrier and the Scope of Work
MEMC contends that there was no evidence that CDI was negligent for failing to install the Miearta board barrier. MEMC points to a series of events beginning with Holden’s testimony that he asked Triad to install the three barriers when he first walked through the job site with Charlie Fair. CDI then prepared a written scope of work reflecting this request.13 After Riddle was awarded the contract, Holden again walked the site with Fair and saw that only two of the three Miearta boards had been installed. When he pointed out the discrepancy, Fair explained that Triad was under a time constraint and did not have time to get it done — indicating, MEMC argues, that Triad was responsible for failing to install all of the Miearta board barriers.
Other than Holden’s testimony, MEMC argues, there is no evidence as to who actually installed the Miearta board, and no testimony that CDI was involved in the installation of the Miearta board or otherwise knew the task had not been completed. Further, although Triad denied any role in the installation because Triad did not do hot work, MEMC argues that the transformer was not energized at the time Riddle requested the Miearta board be installed and so the installation would not have been hot work for Triad. MEMC also contends that the absence of a barrier is irrelevant to MEMC’s alleged contributory negligence, because Riddle was hired as the hot work expert and admitted that whether a complete set of barriers were there would not have affected the way in which Riddle approached its work.
Both Triad and Riddle witnesses testified that had the switchgear inside the transformer been protected by a Miearta *403board barrier at the bottom, it would have prevented the metal físh tape from coming into contact with the energized bus and the accident could not have-happened. CDI’s scope of work for Riddle stated that added protective barriers would be installed before Riddle began its work, and although two of the three barriers were installed, the barrier -at the bottom of the switchgear was not. Riddle denied installing the Mi-carta boards, and Triad stated that they would not have installed them because they did not do hot work. Morgan of Triad also testified that the transformer was a piece of equipment that Triad would not alter under any circumstances, the installation of the barriers was not within its scope of work, and Triad did not contract with Riddle to perform the work. Further, the scope of work prepared by CDI did not even mention Triad.
Thus, even though there was some testimony that Triad was responsible for installing the Micarta boards, there was also testimony to the contrary, and the jury was entitled to resolve any conflicts in Triad’s favor. The jury also could have inferred that if neither Triad nor Riddle installed the barriers, then CDI was responsible for installing only two of the three barriers. See City of Keller, 168 S.W.3d at 821; see also Lozano v. Lozano, 52 S.W.3d 141, 148 (Tex.2001) (noting that “[i]f circumstantial evidence will support more than one reasonable inference, it is for the jury to decide which is more reasonable”). Therefore, we conclude that the evidence is legally and factually sufficient to support a finding that CDI was responsible for failing to install the third barrier, which would have prevented the accident from occurring.
4. CDI’s Failure to Monitor Riddle’s Work
MEMC acknowledges íhat CDI would not ignore obvious safety issues if .observed. But, MEMC contends, Triad was responsible for the safety of its work and that of its subcontractor, Riddle, as evidenced by the contract between MEMC and Triad. MEMC also points to Morgan’s testimony affirming Triad’s contractual responsibility to ensure the safety of the services provided under its contract with MEMC. Further, MEMC argues that Triad’s contract with Riddle also required Riddle to comply with Triad’s safety plan subject to termination. Therefore, MEMC contends, the evidence flatly contradicts the argument that CDI was responsible for monitoring Riddle’s work.
In response, Triad and Riddle point to MEMC’s testimony that CDI had overall responsibility for safety at the site but had no one monitoring Riddle’s work on the day of the accident. Mallinak, MEMO’S project director, testified that CDI, which was in charge of construction management, was responsible for directing the construction management activities of the contractors, including coordination of the trades. Mallinak also explained that CDI’s safety organization helped administer the overall construction safety program during the expansion project, while each contractor also had its own safety program and employees.14 Similarly, Rice acknowledged that “CDI was responsible for the project, safety management” and that each contractor had its own safety responsibility as well. Rice also acknowledged that everyone involved was responsible for the safety of themselvés and others. There was also testimony that no one from CDI was present on the day of the accident to *404monitor Riddle’s activities, even though it involved a “life-critical” activity. Based on this evidence, the jury reasonably could have concluded that CDI 'bore some responsibility for safety-related failures on the day of the accident.
5. CDPs Standard of Care
Finally, MEMC contends that no expert was called to provide the standard of care applicable to CDI in its engineering, procurement, and construction management .role or whether it was breached. Specifically, MEMC argues that whether CDI properly designed or specified the proper transformer or properly discharged its legal duties as a construction manager required expert testimony. See FFE Transp. Servs., Inc. v. Fulgham, 154 S.W.3d 84, 91 (Tex.2004); 3D/I + Perspectiva v. Castner Palms, Ltd., 310 S.W.3d 27, 29 (Tex.App.-El Paso 2010, no pet.). According to MEMC, such evidence was required, and therefore lay opinion testimony was insufficient to establish proximate cause as to CDI’s acts or omissions.
However, CDI’s negligence was not based on its role as an engineer in designing a transformer, but was based in part on • CDI’s failure to install a protective barrier on the transformer — which -would have prevented the fish tape from contacting the energized switchgear and causing the accident — after CDI advised Riddle the barrier would be installed. Further, in this case, CDI’s failure to install the protective barrier, after stating it would be installed, would not be an issue beyond the common understanding of a jury for which expert testimony" was necessary. See Ching Enters., Inc. v. Barahona, No. 01-07-00454-CV, 2008 WL 4006758, at *6-8 (Tex.App.-Houston [1st Dist.] Aug. 28, 2008, no pet.) (mem.op.) (plaintiffs lay testimony that- grating machine “lacked a plate device that would have prevented her hands from getting near the blades” was sufficient to support -defendant’s negligence without expert testimony); cf. Potter v. Garner, 407 S.W.2d 537, 538-41 (Tex.Civ.App.-Tyler 1966, writ ref'd n.r.e.) (lay testimony of plaintiff that employer furnished a power saw without a protective guard supported findings of employer’s negligence). Likewise, evidence of CDI’s failure to monitor Riddle’s activities despite its responsibility for overall project safety is not a matter beyond a juror’s common understanding. See Morgan v. Compugraphic Corp., 675 S.W.2d 729, 733 (Tex.1984) (“Generally, lay testimony establishing a sequence of events which provides a strong, logically traceable connection between the event and the condition is sufficient proof of causation.”).
In summary, legally and factually sufficient evidence existed frorri which the jury could have concluded that MEMC personnel crossed Riddle’s barricades and interrupted its work shortly before the accident occurred, CDI failed to provide a transformer box with a Micarta board barrier, CDI failed to install one of the Micarta boards Riddle specifically requested, and that either CDI or MEMC failed to monitor Riddle’s work.15 The jury also could *405have concluded that any one of these alone, or any combination of them, was a proximate cause of the accident. See •Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991) (“There may be more than one proximate cause of an event.”). We overrule MEMC’s Issues 1 and 2(A)-(B).
C. Issue 3: MEMC’s Comparative Responsibility
In Issue 3, MEMC contends that there was no evidence or factually insufficient evident to support the jury’s finding that MEMC was 40% responsible for the incident and injury. According to MEMC, Riddle acknowledged it should not have done what it did, and Triad contributed to the accident by having its workers in the barricaded area and distracting Hines from .his post when Chesson began pushing the fish tape. Therefore, MEMC argues, there would have been no accident if Hines had been there. MEMC also argues that the post-accident meeting — in which the parties discussed the contributing causes of the accident and agreed that each could have done things differently — is no evidence of legal causation; instead, it is no more than a discussion of responsibility in the philosophic sense, which is too remote to be a substantial factor in bringing about the injury. See Lear Siegler, 819 S.W.2d at 472 (explaining that in certain circumstances, there may be no legal cause if the connection between the negligence and the injury is too attenuated or remote).
As discussed above, there was ample evidence supporting the jury’s findings on MEMC’s negligence and proportionate responsibility. In particular, the jury could have assigned great weight to CDI’s failure to install the Micarta board barrier Riddle requested. CDI’s scope of Work indicated that Riddle requested the installation of the barrier to make its work “feasible” and evidence showed that the installation of the barrier would have prevented the‘accident. The jury is given “wide latitude in performing its sworn duty to serve as the fact finder in allocating responsibility.” Pasadena Ref. Sys., Inc. v. McCraven, No. 14-10-0083.7-CV, 2012 WL 1693697, at *8 (Tex.App.-Houston [14th Dist.] May 15, 2012, pet. dism’d) (mem.op.). Even if the evidence could support a different percentage allocation of responsibility, we will not substitute our judgment for that of the jury. See id.; Samco Props., Inc. v. Cheatham, 977 S.W.2d 469, 478 (Tex.App.-Houston [14th Dist.] 1998, pet. denied). We overrule MEMC’s Issue 3.
D. Issue 7: Triad’s Right to Control Riddle’s Work
In Issue 7, MEMC complains that the trial court erred by refusing to grant a directed verdict that Triad retained a contractual responsibility to control the safety of Riddle’s work. A general contractor can retain the right to control an aspect of an independent contractor’s work or project so as to give rise to a duty of care to that independent contractor’s employees in two ways: by contract or by actual exercise of - control. Lee Lewis Constr., 70 S.W.3d at 783. To support its argument that Triad’s right to control safety was retained by contract as a matter of law, MEMC points to the requirement that Riddle comply with Triad’s safe*406ty policy in its subcontract with Triad, and. Morgan’s acknowledgment of this responsibility. See Tovar v. Amarillo Oil Co., 692 S.W.2d 469, 470 (Tex.1985) (per cu riam) (general contractor that exercised contractual control over subcontract liable for failing to exercise reasonable care, in supervising subcontractor’s activity).
Determining whether a contract provides for a retained right of control is generally a question- of law for the court, while determining whether someone exercised actual control is generally a question of fact for the jury. Lee Lewis Constr., 70 S.W.3d at 783. In this case, the fact that Triad may have required Riddle to “comply with Triad’s safety plan” and safety-related rules does not demonstrate that Triad had the right to “control” Riddle as a matter of law. See Hoechst-Celanese Corp. v. Mendez, 967 S.W.2d 354, 357-58 (Tex.1998) (per curiam) (“Celanese’s insistence that Mundy observe and promote compliance with federal laws, general safety guidelines, and other safety precautions did not impose an unqualified duty of care on Celanese to ensure that Mundy employees did nothing unsafe.”); Moss v. Waste Mgmt. of Tex., Inc., 305 S.W.3d 76, 82 (Tex.App,-Houston [1st Dist.] 2009, pet. denied) (contractual provisions under which the defendant retained a right to inspect, review, and monitor another company’s performance “do not indicate that [the defendant] retained control over the details of [the other company’s] work”).
The contract between Triad and Riddle nowhere assigns Triad the right to control Riddle. To the contrary, it provides that Riddle is to “[f]urnish all necessary supervision, labor, materials, tools, [and] construction equipment” and that Riddle “shall operate as an independent contractor and not as [an] agent of [Triad].” A contract expressly providing that a person is an independent contractor is determinative of the relationship absent evidence that the contract was subterfuge, that the hiring party exercised control in a manner inconsistent with the contract provision, or if the written contract has been modified by subsequent agreement, either express or implied. Weidner v. Sanchez, 14 S.W.3d 353, 373 (Tex.App.-Houston [14th Dist.] 2000, no pet.); see also Farlow v. Harris Methodist Fort Worth Hosp., 284 S.W.3d 903, 911 (Tex.App.-Fort Worth 2009, pet. denied) (same). MEMO points to no such evidence' suggesting that the parties’ legal relationship is something other than represented in the parties’ contract.
Because the contract between Triad and Riddle did not explicitly assign Triad the right to control Riddle, the trial court correctly denied MEMO’S motion for directed verdict. We overrule MEMO’s Issue 7.
E, Issue 8: Denial of MEMO’s Instruction on Triad’s Right to Control Riddle
In Issue 8, MEMO contends that the trial court erred by denying MEMO’s request for additional instructions in Question 2. In Question 2 the jury was asked whether Triad’s negligence proximately caused the occurrence and injury, accompanied by the standard definitions of “negligence,” “ordinary .care,” and “proximate cause.” MEMO contends that the trial court erred by overruling its objection to Question 2 and denying its request that the jury be instructed to consider Triad’s negligence with regard to any retained right to control the safety of Riddle’s work.
When the parties’ contract does not expressly grant a right of control, as in this case, a duty of control is not implicit and the plaintiff bears the burden to prove a right of control as a predicate to liability. Moss, 305 S.W.3d at 82. Triad points to *407the following evidence it contends demonstrates Triad’s retained actual control over the safety of Riddle’s wQrk: Holden’s discussions with Triad concerning the installation of the Micarta board; Triad’s assertion that it had not had time to install the barriers; and Triad’s failure to install pull ropes in the conduit so that a fish tool would not be needed to pull cable and providing a metal fish tape for Riddle to use instead. MEMC argues that this evi: dence shows that Triad’s acts and omissions caused Riddle to vary its own safe work procedure and the way it intended to work. MEMC also argues that if the finding that the parties agreed to waive consequential damages is unsupportable, then MEMC is harmed by the failure to submit the control instruction, since Triad would have been liable not only Tor its own 30% but also Riddle’s 30% comparative responsibility.
As explained in the discussion of Issues 1 and 2 above, there was conflicting evidence concerning which party was responsible for the installation of the Micarta board. And although the installation of pull ropes may have made’Riddle’s job easier, Riddle decided to use a fish tape to pull the cable and there was testimony that Riddle merely borrowed the metal one from Triad because its own fish tape was -not immediately available. Additionally, there was evidence that Riddle was hired because it was an expert in high-voltage work, and MEMC expected Riddle to supervise its own job. In contrast, Triad had no expertise in energized work, it did not tell Riddle how to do its work or oversee that work, and it did not prepare Riddle’s scope of work. Nor was Triad involved with Riddle’s job safety analysis or inspecting Riddle’s cable pull. The evidence at most shows that a fact issue existed concerning Triad’s exercise of a right of control over Riddle, but MEMC obtained no predicate jury issue or obtain a jury finding on whether Triad had the right to control Riddle. Nor did MEMC plead that Triad was vicariously hable for Riddle’s work. Therefore, the trial court did not err in denying the instructions.
Moreover, MEMC argues that it is harmed by the submission only if the jury’s finding that the parties agreed to waive consequential damages is unsupportable, but we have concluded otherwise. In any event, MEMC was not harmed because in Question 2, the jury found Triad negligent. Therefore, the absence of an instruction on control had no practical effect on the verdict and did not probably cause the rendition of an improper judgment. We overrule MEMC’s Issue,8. ■
F. MEMC’s Damages
The jury found MEMC’s lost profits damages were $300,000. MEMC .contends the jury’s finding is both inadequate and not based on any evidence. Further, MEMC contends the trial court failed to supply the correct measure of damages.
1. Issue 9: The Jury’s Damages Award
According to MEMC, the evidence established damages well in excess of the award. MEMC points to its evidence that the power outage completely stopped MEMC’s production of granular poly silicon, the detailed production process ré-quired multiple steps to restart, and the process required a ramp-up period. MEMC’s expert, Kien Luu, put on evidence that it took twenty days to attain pre-accident levels of production and he testified that the difference between actual production and the baseline over those twenty days was 77.2 metric tons. Another MEMC expert, Cozy Marks, testified that the market price for granular polysili-con was $340/kg and the cost of production was $12.67/kg. Multiplying a unit price of *408$307.33/kg times 77.2 metric tons of lost production, Luu determined that the value of the granular polysilicon not produced at $23,725,876.00.
MEMC contends that the" defendants’ expert, Michael Kerschen, agreed with many of MEMC’s conclusions, but testified to lost production of 33.4 metric tons. Based on,, the differing amounts of lost production, MEMC calculates that the range of damages presented to the jury was between $23,725,876 and $10,287,000. Therefore, MEMC argues, the jury’s award is inadequate and so contrary to the great weight and preponderance of the evidence as to be clearly wrong and unjust.
Under Texas law, “whethér to award damages and how much is uniquely within the factfinder’s discretion.” Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 772 (Tex.2003). A jury thus has broad discretion to award damages within the range of evidence presented at trial. City of Houston v. Harris Cnty. Outdoor Adver. Ass’n, 879 S.W.2d 322, 334 (Tex.App.-Houston [14th Dist.] 1994, writ denied). The calculation of lost profit damages is a fact-intensive determination. Bowen v. Robinson, 227 S.W.3d 86, 96-98 (Tex.App.-Houston [1st Dist.] 2006, pet. denied). There is no requirement that the evidence show precisely how the jury arrived at the specific amount awarded. See Mayberry v. Texas Dep’t of Agric., 948 S.W.2d 312, 317 (Tex.App.-Austin 1997, writ denied). Moreover, a jury is “not tied to awarding damages exactly as requested by the injured party,” and it does not have to rely solely on an expert’s opinion in calculating damages. Bayer Corp., 214 S.W.3d at 606. However, a jury must .have an evidentiary basis for its findings. Salinas, 948 S.W.2d at 289.
The defendants argue that MEMC’s alleged damages did not turn on the value of MEMC’s “lost product.” Rather, in Question 5, the jury was asked to award MEMC the “lost profits,” if any, that “resulted from the' occurrence and injury in question” and that were “a natural, probable,- and foreseeable consequence of the occurrence in question.” Under Texas law, “lost profits” are “damages for the loss of net income to a business.” Miga v. Jensen, 96 S.W.3d 207, 213 (Tex.2002); Bowen, 227 S.W.3d at 96. According to the defendants, virtually every aspect of MEMC’s damages model was challenged and controverted at trial, and the jury was provided a broad range of damages, if any, from which it could make a finding.
Among the contested issues was the extent to which MEMC was entitled to lost profits damages. The defendants argued that MEMC sold little of its production on the open market for a profit. The defendants point to Marks’s concession that MEMC’s goal was to internally “consume 100 percent of the poly it produces.” There was also evidence that MEMC’s priority was to supply other plants with the poly silicon it produced so that MEMC’s affiliates could make silicon wafers and semiconductors. Both Marks and Luu acknowledged that MEMC internally transferred polysilicon to MEMC Singapore and that the internal transfer price was only 10% above cost or $83/kg. After MEMC internally transferred .the polysilicon, MEMC Singapore or other MEMC affiliates — not MEMC — received the profit when, the polysilicon was subsequently sold: Significantly, Marks admitted that “there is no profit [to MEMC] from an internal transfer.” Rice also acknowledged that when poly silicon was internally transferred to MEMC Singapore and then sold by MEMC 'Singapore, the financial benefit from that sale would go to MEMC Singapore, not MEMC. MEMC countered that it lost the value of the product and, if it needed to replace the lost produc*409tion, it would have tó obtain polysilicon on the spot market. Therefore, MEMC maintained, its historic use of the product was irrelevant to its damages model.'
Even as to external sales, the price and production volume was disputed. For example, Marks testified about external prices of $195 and $215/kg in August 2007. Luu referr,ed to a market value between $320 and $360/kg. By using the highest ten-day average in 2007, Luu opined that MEMC could produce 8.9 metric tons of polysilicon per day. But Luu acknowledged that using a ten-day window could be “misleading.” In contrast, Kerschen testified that the spot price or market value of polysilicon at the time of the incident ranged, from $200 to $400/kg.16 Kerschen also testified that Luu’s calculation of 8.9 metric tons of polysilicon per day was “artificially inflated” and not representative of what MEMC could expect to achieve on an ongoing basis. Instead, Kerschen opined that, on average, MEMC could produce only 7.3 metric tons of po-lysilicon per year, or about six to seven metric tons per. day. Based on the assumption that production was impacted from August 28 until September 16, Luu opined that MEMC’s lost production amounted to 77..2 metric tons. Kerschen testified that Luu’s opinion was “severely overstated;” Kerschen estimated that production was impacted for only eight days, and that the lost production was, at most, 33.4 metric tons.
Notably, Luu did not testify as to MEMC’s “lost profits.” Instead, he merely opined as to “the value of [its] lost production.” But Luu admitted that MEMC was never going to externally sell 100% of the polysilicon that it produced in 2007. Luü conceded his “lost production” calculation of $23 million would be accurate only if MEMC “would not have done what [it] had done historically and instead decide[d] to sell 100 percent of what [it] did not produce on the external market.” Evidence also showed that, before and after the incident, MEMC internally transferred the majority of the polysilicon that it produced; its external sales on the spot market ranged from 4% to 15% per quarter. In 2007, MEMC and its affiliates externally sold only 158,322 kilograms of polysili-con. In contrast, MEMC transferred over two million kilograms of polysilicon to affiliates. Luu’s damages calculations did not take into .account corporate distinctions, and he. admitted that his opinions were “on behalf of the MEMC parent- corporation, not.solely on behalf of MEMC Pasadena.”
Given these conflicting opinions concerning the damages calculations, the jury was *410presented with a broad range of possible damages amounts. For example, using MEMC’S claimed market value of $320/kg (minus MEMC’s variable costs of $12/kg) and external sales of 5%, Triad demonstrated at trial that MEMC’s lost profits would be no more than $514,360. And if the jury instead believed, based on the conflicting evidence, that the external sales price would have been $200/kg and MEMC would have sold only 4% of any lost production, the evidence might support a lost profits award as low as $236,913.17 Because the $300,000 award is well within the range supported by the evidence, we overrule MEMC’s Issue 9.
2. Charge Error Concerning the Correct Measure of Damages
Lastly, MEMC contends that the trial court erred by failing to submit the correct measure of damages in the jury charge. Question 5 instructed the jury to consider the measure of MEMC’s damages as “MEMC’s lost profits that were a natural, probable, and foreseeable consequence” of the occurrence in question. MEMC objected to Question 5 and submitted a proposed instruction that would have added the following sentence: “In calculating lost profit you are instructed to consider the market value of the lost production less the cost of production.” The trial court refused MEMC’s proposed instruction.
MEMC argues that the applicable measure was that which applies to commodities such as crops — the market value of the “crop” minus the cost of harvesting and marketing. See Int’l Harvester Co. v. Kes-ey, 507 S.W.2d 195, 197 (Tex.1974) (“The general rule for assessing damages for crop losses ... is ‘the market value of the lost portion of his crop, as measured at maturity of the crop, less-the cost he would have had in harvesting and marketing the lost portion.’ ”); Engelman Irrigation Dist. v. Shields Bros., Inc., 960 S.W.2d 343, 351 (Tex.App.-Corpus Christi 1997), pet. denied, 989 S.W.2d 360 (Tex.1998) (per curiam) (“The measure of damages for lost crops is the market value of the crops, less the expenses of cultivating and bringing the crops to market.”); Maxvill-Glasco Drilling Co., Inc. v. Royal Oil & Gas Corp., 800 S.W.2d 384, 386-87 (Tex.App.-Corpus Christi 1990, writ denied) (relying on Kesey line of cases to hold that instructed verdict for defendant on lost profits was proper when plaintiff presented evidence of lost oil and gas revenues but no evidence of associated production costs).
MEMC maintains that it presented a complete damage model encompassing the lost volume of product and the variable cost of production. Further, MEMC asserts there were no costs associated with bringing poly silicon to market, because customers were coming to MEMC and the polysilicon “sold itself.” According to MEMC, the trial court’s failure to instruct the jury as to the proper measure of damages allowed the defendants to “skew” MEMC’s real damages with argument about MEMC’s historic business uses and enabled the jury to come up with a number below even the lowest of the defendants’ arguments.
MEMC has failed to demonstrate that the trial court erred by refusing its in*411struction. MEMO pleaded and sought damages for “lost profits.” None of the cases MEMO cites involve jury instructions on the proper measure of damages, and none support MEMO’S argument that its historic business use of its product is irrelevant to a determination of lost profits. Indeed, as the court explained in Maxvill-Glasco, the recovery of “net profits” requires evidence of gross receipts minus expenses incurred in carrying on the business. See 800 S.W.2d at 386-87. Here, MEMO admitted it had no net profits from the internal transfer of polysilicon. We therefore overrule MEMO’s Issue 10.
G. Disposition as to MEMO’s Negligence Claims and Comparative Responsibility
We affirm the trial court’s judgment awarding MEMO the sum of $90,000 in actual damages, consisting of the award of $300,000 multiplied by Riddle’s 30% percentage of responsibility, on its negligence claim against Riddle.
Conclusion
We overrule MEMO’s issues and affirm the trial court’s judgment.
. For. convenience and unless otherwise specified; references to MEMC will mean MEMC Pasadena; Inc. and not its parent company, MEMC Electronic Materials, Inc., which was not a party to the lawsuit.
. The court’s charge instructed the jury that when considering whether any negligence of MEMC proximately caused the occurrence .in question, "any- acts or omission of CDI in the construction phase of the project[] are included-in the acts of MEMC,”
. Documentary evidence shows that on September 10, 2007, Trueblood emailed Miscow, stating that he "had never received an addendum 9" and only had addendums "through number 4.” Trueblood requested that Mis-cow email a current copy of the agreement with all of the addendums, and in response Miscow forwarded "addendums 5-9 as requested.”
. MEMC also contends that Morgan’s testimony that Triad "concluded” that Jones was referring to the CDI T & Cs from the RFP in his email is not evidence that the parties agreed to include Addendum 9, because the court instructed the jury to consider only , what the parties said and did, and not their "unexpressed thoughts or intentions.” MEMC further suggests that Jones’s email "impermissibly varies and adds to the terms on the face of the PO Contract.” We note that the jury was instructed to consider what the parties said and did "in light of the surrounding circumstances.” MEMC’s own argument concerning what Jones intended to convey at most raises a fact issue the jury was entitled to resolve in Triad’s favor. See City of Keller, 168 S.W.3d at 820.
. The incorrect purchase order also provided that the basis of the PO was Triad's response to CDI’s RFP "issued 9/21/06, and subsequent correspondence from Triad on accepted clarifications,” which may have further added to *392Triad’s confusiqn over which set of terms and conditions would govern.
. Additionally, although MEMC contends that its online T & Cs were available at the time, MEMC’s witnesses testified that they did not know whether the online terms and conditions were available online, and Morgan testified that he looked for them in 2007, but did not find them.
. Specifically, MEMC’s proposed question asked the jury to choose either “(a) CDI Terms and Conditions marked as pages 1 through 27 contained within the RFP dated November 22, 2006.(MEMC'exhibit 13),” or "(b) the online MEMC Purchase Order Terms and Conditions (MEMC exhibit 12)." MEMC may have intended to refer to MEMC exhibit 14, the contents of the RFP, because MEMC exhibit 13 consists of a one-page cover letter on CDI’s letterhead.
. MEMC also contends that Triad failed to preserve its issue for review, noting that Triad did not plead the economic loss rule, it was not the subject of a motion for directed verdict, and was not the basis of any objection to the jury charge. . However, Triad raised the issue in a post-trial motion to disregard jury findings in which it argued that "[a]s a matter of law, any negligence.claim against Triad is barred by the economic loss doctrine.” In Holland v. Wal-Mart Stores, Inc., the Supreme Court of Texas held that a question of law asserted in a motion for judgment notwithstanding the verdict preserves an issue for review if the legal question is one that the trial court is not required to resolve before the jury could properly perform its fact-find-tag role. See 1 S.W.3d 91, 94 (Tex.1990) (per curiam). Because the trial court in this case was not required to-resolve the legal issue of whether the economic loss rule barred MEMC’s recovery of damages before the jury could properly assess whether Triad was negligent and the percentage of its responsibility, Triad has preserved the issue for review. See id. MEMC’s citation to Equistar Chemicals, L.P. v. Dresser-Rand Co., is inapposite because in that case, which involved a different application of the economic loss rule, the court held that the defendant’s challenge to the measure of damages the jury was instructed to use was not preserved when the defendant did not object to the jury charge. See 240 S.W.3d 864, 867-68 (Tex.2007).
. We normally address sufficiency issues before charge issues. See Lone Star Gas Co. v. R.R. Comm’n of Tex., 767 S.W.2d 709, 710 (Tex.1989) (per curiam) (noting that points calling for rendition of judgment should be considered before points calling for remand). In this case, however, we first address the question of whether CDI was MEMC’s agent as a matter of law because the trial court’s instruction authorized the jury to consider the acts of both MEMC and CDI when determining whether the evidence supported a negligence finding against MEMC.
. See Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 389 (Tex.2000) ("When a single broad-form liability question erroneously commingles valid and invalid liability theories and the appellant’s objection is timely and specific, the error is harmful when it cannot be determined whether the improperly submitted theories formed the sole basis for the jury’s finding.”).
.Although MEMC argued there was no or insufficient evidence to support the instruction in Question 3, MEMC did not articulate the requirements of an agency relationship or argue that the defendants failed to present evidence of any specific requirement as it does on appeal.
. During closing argument, MEMC’s counsel also admitted that ‘'[t]here’s no doubt that CDI had authority to manage the construction[].”
. The scope of work CDI prepared included the following statement: Due to the fact that Substation-45 has a 2400 volt transformer (T-45) that has been energized from previous activities, and that it is not preferable to deen-ergize this load, Riddle Power LLC, has been contacted to evaluate whether the added conductors can be established without deenergiz-ing T-45. After visiting the site and reviewing the scope of work, it has been determined by Riddle that it is feasible to perform this work energized. Certain added protective barriers will have to be installed prior to this activity but contain minimal monetary impact and will not affect the schedule.
. Mallinak also stated that MEMC had a safety manager on site, along with a couple of employees, who were "ultimately responsible for the safety of the site,” but- he .could not identify MEMC’s safety manager or say where that person was on the day of the accident.
. MEMC spends a considerable portion of Issue 1 arguing that, absent jury findings and evidence holding MEMC accountable as a premises owner, the negligence finding against MEMC cannot stand. Specifically, MEMC urges that the defendants' allegations ■ of negligenoe specific to MEMC (with the exception of crossing -Riddle’s barriers and interrupting its work) are not based on evidence of contemporaneous activity, but are instead complaints about the conditions under which Riddle performed its work, and that evidence of the condition of the premises is not evidence of proximate cause. See Urena, 162 S.W.3d at 551; Doe, 907 S.W.2d at 477. Further, because the evidence supports only a claim of premises liability and the defendants did not obtain any findings to sup*405port such a claim, MEMC maintains that the defendants have waived that theory. See Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 529 (Tex.1997). We need not address either of MEMC's contentions, however, because the evidence is sufficient to support the jury’s finding that CDI’s negligence, as .agent for MEMC, was a proximate cause of the accident based on one or more of the four negligent acts and omissions discussed above.
. MEMC points out that Kerschen acknowledged MEMC’s polysilicon was made to high quality electronic grade rather than lower quality solar ‘ grade, and asserts that Ker-schen’s spot market price did not differentiate between electronic and solar grade. MEMC also points out that Kerschen agreed that MEMC’s expert’s market price of $320 to $360/kg for electronic grade polysilicon was reasonable, and argues that the jury was not free to disregard the agreement of the experts. However, we disagree with MEMC’s premise that the that the apnount of lost production was the only variable in dispute and therefore the only reasonable range of damages available to the jury was between roughly $10 and $23 million. Given the volume of conflicting evidence presented, the jury could reasonably have concluded that some lesser award was more appropriate. Vela v. Wagner & Brown, Ltd., 203 S.W.3d 37, 48-49, 51 (Tex.App.-San Antonio 2006, no pet.) (jury was not required to accept expert’s damages model but could award amount that fell within the range of evidence presented); Howell Crude Oil Co. v. Donna Refinery Partners, Ltd., 928 S.W.2d 100, 108 (Tex.App.-Houston [14th Dist.] 1996, writ denied) (affirming award of lost profits below amount testified to by expert, even though it was unclear how the jury arrived at its calculation, because the jury could have reasonably concluded the evidence supported the lesser amount).
. This calculation is based on 33.4 metric tons x 0.04 in external sales x ($200/k market value — $12.67/kg variable costs). Riddle contends the low range could be determined by using a loss of production of 33,400 kilograms, a net price of $298 per kilogram (MEMC’s price of $318/kg minus $20 of variable costs), and a percentage sold for profit of 3% to yield a lost profit calculation of $298,596. Riddle also argues that the jury could have found zero lost profits, because it could have concluded that no further production would have been sold by MEMC for profit given the evidence of zero sales for profit in October and November of 2007. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284452/ | OPINION
Opinion by
Justice Burgess
Carlton Sewell, Relator, has filed a petition for a writ of mandamus seeking relief from an order denying his motion to withdraw deemed admissions. After considering Relator’s petition and the response by the real parties in interest (RPI),1 we hold that the trial court erred in denying Relator’s motion to withdraw his deemed admissions. We conditionally grant the writ of mandamus and order the trial court to vacate its orders denying withdrawal of Relator’s deemed admissions and to grant his motion to withdraw the deemed admissions.
1. Background Facts
On January 15, 2008, Relator obtained an order from the County Court of Hopkins County probating as a muniment of title Velma Ruth Fitzgerald’s will dated August 8, 2007 (the Will). On January 30, 2008, the RPI- filed an opposition to the probate of the Will alleging that Fitzgerald lacked testamentary capacity and that the Will was the result of undue influence exerted by Relator. The RPI alleged that Relator systematically gained psychological control over Fitzgerald by sequestering her and preventing contact between her and other family members. The RPI further alleged that Relator utilized the authority Fitzgerald granted to. him through a power of attorney to convert certain of her assets to his benefit. The contested probate proceeding was then transferred to-the County, Court at Law of Hopkins County. The issue before the Court in this original proceeding arises from Relator’s failure to timely answer requests for admissions during a period in which he was not represented by counsel.
On May 13, 2008, the RPI deposed Relator. On January 23, 2009, Relator’s original attorney was allowed to withdraw from his representation of Relator. On May 13, 2010, which was during'the period in which Relator was unrepresented by counsel, he was served with requests for admissions2 by the RPI. Relator admitted that the signature on the certified mail return receipt was his, but he did not remember the document. Relator did not answer the requests for admissions by-the deadline, and under Rule 198.2 of the Texas Rules of Civil Procedure, they were deemed admit*454ted. See Tex. R. Civ. P. 198.2(c). Relator remained unrepresented by counsel until August 4, 2010, when Frank Bauer filed his notice of appearance on Relator’s behalf. When Bauer entered his appearance, less than three months after the requests were served, he requested that all notices given and papers that had been served in the proceeding be served on him. The RPI did not serve the requests for admissions on Bauer.
The parties agree that after the requests for admissions were served,' they conducted additional discovery, including requests for disclosures, interrogatories, requests for production, and additional depositions. On April 22, 2013, Bauer was allowed to withdraw as counsel for Relator. On July 19, 2013, Relator retained the services of his current counsel, J. Brad McCampbell, to represent him in the suit.
The case was set for a jury trial on the afternoon of January 12, 2015. That morning, the RPI filed a certificate of deemed admissions, attaching the requests for admissions previously served on Relator. Neither Bauer nor McCampbell had any knowledge of the requests for admissions before the certificate was filed on the morning the case was set for trial. The trial court continued the case, and on February 10, 2015, Relator filed a motion to withdraw the deemed admissions, along with responses denying each of the requests for admissions.
On April 7, 2015, the trial court held a hearing on Relator’s motion to withdraw the deemed admissions. Shortly before the hearing, the RPI filed a motion for summary judgment based on the deemed admissions. By order dated April 14, 2015, the trial court denied Relator’s motion to withdraw the deemed admissions and set the RPI’s motion for summary judgment for a hearing. After Relator filed his petition for a writ of mandamus in this Court, the RPI filed a notice withdrawing eight of the deemed admissions that they acknowledged were merit-preclu-sive. Of the eight remaining non-withdrawn deemed admissions, the RPI admit that two are merit-preclusive. In the same filing, the RPI repudiated their motion for summary judgment.
On July 7, 2015, the trial court entered an order accepting the RPI’s withdrawal of eight deemed admissions, reaffirming its order denying Relator’s motion to withdraw the eight remaining deemed admissions, and finding that Relator did not have good cause to withdraw the admissions because he had acted with conscious indifference. The trial court accepted the RPI’s withdrawal of their motion for summary judgment.
II. General Standard of Review Applicable to Petitions Seeking a Writ of Mandamus
Mandamus issues only when the record shows (1) a clear abuse of discretion by the trial court or the failure of the trial court to perform a ministerial act or duty and (2) the absence of an adequate remedy at law. Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex.1992) (orig. proceeding); In re Ingram, 433 S.W.3d 769, 771 (Tex.App.—Texarkana 2014, orig. proceeding); In re Rozelle, 229 S.W.3d 757, 760 (Tex.App.— San Antonio 2007, orig. proceeding). The trial court errs in this context when “ ‘it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law.’ ” Walker, 827 S.W.2d at 839 (quoting Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex.1985) (orig. proceeding)); Ingram, 433 S.W.3d at 771; see also Rozelle, 229 S.W.3d at 760. Under this standard, when determining applicable law or applying the law to the facts, the trial court has no discretion. Walker, 827 S.W.2d at 840; Ingram, 433 *455S.W.3d at 771. When the trial court clearly fails to correctly analyze or apply the law in this context, mandamus may issue. Walker, 827 S.W.2d at 840; Ingram, 433 S.W.3d at 771; Rozelle, 229 S.W.3d at 761. Thus, mandamus will issue when a trial court fails to apply the proper legal standard. See NCNB Tex. Nat’l Bank v. Coker, 765 S.W.2d 398, 400 (Tex.1989).
Generally, a trial court’s orders relating to discovery can be corrected on appeal, and consequently, mandamus is typically not available with respect to discovery issues. Rozelle, 229 S.W.3d at 761, For this reason, a party seeking mandamus review of a trial court’s discovery order must also show that an ordinary appeal is an inadequate remedy. Walker, 827 S.W.2d at 841-42; Rozelle, 229 S.W.3d at 761. If the trial court imposes discovery sanctions that effectively preclude a party from presenting, his claims or defenses, such as striking pleadings, dismissing the action, or entering a default judgment, then an ordinary appeal is an inadequate remedy unless a final, ap-pealable judgment is entered simultaneously. Walker, 827 S.W.2d at 843; TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 919 (Tex.1991).
III. Burdens of Proof Applicable to Motions to Withdraw Deemed Admissions
A. Rule 198 of the Texas Rules of Civil Procedure
Under Rule 198 of the Texas Rules of Civil Procedure, if a. party does not timely respond to a request for admissions, “the request is considered admitted without the necessity of a court order.” Tex. R. Civ. P. 198.2(c). Further, any matter deemed admitted “is' conclusively established as to the party making the admission unless the court permits the party to withdraw or amend the admission,” Tex. R. Civ. P. 198.3. To obtain permission to withdraw deemed admissions, a party must show (1) good cause, (2) that the other party will not be unduly prejudiced, and (3) that the presentation of the merits of the lawsuit will be served by the withdrawal. See id.; Wheeler v. Green, 157 S.W.3d 439, 443 n. 2 (Tex.2005) (per curiam). Generally, a party demonstrates “good cause” by showing that his failure to respond “was .accidental or the result of a mistake, rather than intentional or the result of conscious indifference.” Stelly v. Papania, 927 S.W.2d 620, 622 (Tex.1996) (per curiam). “Undue prejudice depends on whether withdrawing an admission or filing a late response will delay trial or significantly hamper the opposing party’s ability to prepare for it.” Wheeler, 157 S.W.3d at 443 (citing Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 687 (Tex.2002)); Stelly, 927 S.W.2d at 622; see also Wal-Mart Stores, Inc, v. Deggs, 968 S.W.2d 354, 357 (Tex.1998) (per curiam) (finding no undue prejudice from withdrawal- of deemed admissions where plaintiff had already deposed withdrawing party). Finally, “[t]he burden of proof on all three requirements [of Rule 198.3] is on the party seeking withdrawal.” Morgan v. Timmers Chevrolet, Inc., 1 S.W.3d 803, 807 (Tex.App.— Houston [1st Dist.] 1999, pet. denied).
B. Merit-Preclusive Requests for Admissions
A different standard applies when the deemed admissions are merit-preclusive. When admissions are used in an attempt to “preclude the presentation of the merits of a case,” due process is implicated since the deemed admissions compromise a party’s right to present the merits of - his case. See Wheeler, 157 S.W.3d at 443; Rozelle, 229 S.W.3d at 763. By denying a motion to withdraw merit-*456preclusive admissions, the trial court effectively enters a case-ending discovery sanction. Marino v. King, 355 S.W.3d 629, 632 (Tex.2011) (per curiam) (“[W]hen admissions are deemed as a discovery sanction to preclude a presentation of the merits, they implicate the same due process concerns as other case-ending discovery sanctions.”). The Texas Supreme Court has held that
[t]he imposition of very severe sanctions is limited ... by constitutional due process .... When a trial court strikes a party’s pleadings and dismisses its action or renders a default judgment against it for abuse of the discovery process, the court adjudicates the party’s claims without regard to their merits but based instead upon the parties’ conduct of discovery. “[Tjhere are constitutional, limitations upon the power of courts, even in aid of their own valid processes, to dismiss an action without ^affording a party the opportunity for a hearing on the merits of his cause.” Discovery sanctions cannot be used to adjudicate the merits of a party’s claims or defenses unless a party’s hindrance of the discovery process justifies a presumption that its claims or defenses lack merit..... Sanctions which are so severe as to preclude presentation of the merits of the case should .not be, assessed absent a party’s flagrant bad faith or counsel’s callous disregard for the responsibilities of discovery under the rules.
Powell, 811 S.W.2d at 918 (citations omitted) (quoting Wheeler, 157 S.W.3d at 443); see also Marino, 355 S.W.3d at 633; Rozelle, 229 S.W.3d at 763-64. Moreover, “[a] party seeking sanctions has the burden of establishing his right to relief.” GTE Commc’ns Sys. Corp. v. Tanner, 856 S.W.2d 725, 729 (Tex.1993).
Accordingly, where a party moves to withdraw deemed admissions that are merit-preclusive, due-process requires the party opposing withdrawal to prove that the moving party’s failure to answer the admissions resulted from “ ‘flagrant bad faith or callous disregard of the rules.’ ” Time Warner, Inc. v. Gonzalez, 441 S.W.3d 661, 666 (Tex.App.—San Antonio 2014, pet. denied) (quoting Wheeler, 157 S.W.3d at 443). Thus, although a party moving to withdraw admissions ordinarily must prove the requirements of Rule 198.3, when the deemed admissions are merit-preclusive, good cause exists absent bad faith or callous disregard of the rules by the party seeking the withdrawal. Marino, 355 S.W.3d at 634; Gonzalez, 441 S.W.3d at 666. Moreover, in such instances, it is presumed that presentation of the merits would be served by allowing withdrawal of the deemed admissions. See, e.g., Marino, 355 S.W.3d at 634.3
Nevertheless, this burden of proof applies only to motions to withdraw merit-preclusive requests for admissions. If a motion to withdraw deemed admissions concerns non-merit-preclusive admissions, then the moving party must prove all of the requirements of Rule 198.3, and the trial court has broad discretion to grant or deny withdrawal. Stelly, 927 S.W.2d at 622. And, because non-merit-preclusive requests do not involve due process considerations, a trial court’s order relating to discovery, which is “merely in*457cidental to the normal trial process,” may be corrected on appeal, and mandamus is not available. Rozelle, 229 S.W.3d at 761.
IV. Application of the Standard of Review to the Present Case
A. Some of the Déemedí Admissions are Merit-Preclusive
RPI served sixteen requests for admissions on Relator. After Relator filed this action, the RPI filed their Notice of Withdrawal and Repudiation of Certain Deemed Admissions, wherein they withdrew request numbers 1, 3, 5, 8, 9, 14, 15, and 16. The trial court granted the RPI’s withdrawal. Thus, only the following eight requests for admissions are at issue iii this case:
2. ADMITORDENY
That throughout the spring and summer of 2007, Velma Ruth Fitzgerald was physically and mentally weak enough to be susceptible to undue influence.
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4. ADMIT OR DENY
That you engaged in a campaign to keep other relatives of Velma Ruth Fitzgerald from having contact with her as part of your scheme to' exert undue irifluencé over her.
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6. ADMIT OR DENY
That you suggested to your brother Truitt Sewell, that the two of you get Velma Ruth Fitzgerald to change her will to benefit the two of you.
7. ADMITORDENY
. That you told the White brothers , in Vernon .that Velma Ruth Fitzgerald was not competent when she signed . their lease contract.
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10.ADMITORDENY
That you misrepresented the nature of Velma Ruth Fitzgerald’s mental independence to Ray Johnson and his staff.
11. ADMITORDENY
That you had no contact with Velma Ruth Fitzgerald for years prior to accompanying Truitt and. Laura Sewell to Dallas to visit her in a nursing home.
12. ADMITORDENY
That you prevented Velma Ruth Fitzgerald from having telephone contact with her lifelong friend, Eurice Lee White.
13. ADMITORDENY
That you habitually subjected Velma Ruth Fitzgerald to your control during the last year of her life.
In their Reply to Relator’s Petition for Writ of Mandamus, the RPI admit that Requests 2 and 4 are merit-preclusive. Accordingly, the Motion to Withdraw Deemed Admissions involved merit-preclu-sive admissions.
B. There is no Evidence of Flagrant Bad Faith or Callous Disregard of the Discovery Rules by Relator
The record shows that Relator was served with the requests for admissions while he was unrepresented. Although he admits that his signature appears on the certified mail return receipt, he does not remember the admissions requests. Neither of the two attorneys that subsequently represented Relator had any knowledge of the requests for admissions. Further, the parties agree that after the requests for admissions were served, they conducted additional discovery, including serving and/or responding to requests for disclosures, interrogatories, requests for production, and additional depositions. Relator’s current attorney learned of the requests for admissions on the morning of *458trial and, after learning of them, filed a motion to withdraw the admissions, along with belated responses. The RPI point to Relator’s service of discovery on them while still unrepresented and after having been served with the requests for admissions as evidence that Relator “had some degree of legal sophistication.” However, neither of Relator’s discovery requests was signed, and on neither was service properly certified. None of this is evidence of flagrant bad faith or callous disregard for the Rules.
C. Withdrawal of the Deemed Admissions Would Not Unduly Prejudice the RPI
The record does not show that the RPI were unable to prepare for trial without the admissions. The RPI deposed Relator before serving their requests for admissions. Relator asserts that his deposition testimony contradicts the substance of the requests for admissions, and the RPI do not dispute this assertion in their brief. Therefore, the RPI were aware that the matters in their requests for admissions were contested. See Deggs, 968 S.W.2d at 357 (party relying on deemed admissions not unduly prejudiced by withdrawal of admissions when she had deposed withdrawing party). Although the RPI point to their decision not to depose certain third parties in reliance on the deemed admissions as evidence of undue prejudice, the RPI clearly chose to do so at their own risk since they knew the matters were contested.
The primary purpose of requests for admissions is “ ‘to simplify trials by eliminating matters about which there is no real controversy, but which may be difficult or expensive to prove.’” Stelly, 927 S.W.2d at 622 (quoting Sanders v. Harder, 148 Tex. 593, 227 S.W.2d 206, 208 (1950)). When “used to establish controverted issues that constitute the fundamental legal issues in a case,” requests for admissions are improper. Gonzalez, 441 S.W.3d at 668. Since the RPI knew that many, if not all, of the deemed admissions were improper, they cannot now point to their reliance on them as evidence that they were unable to prepare for trial. See Marino, 355 S.W.3d at 632-33; Gonzalez, 441 S.W.3d at 668-69.
Further, any prejudice to the RPI was largely of their own making. The record shows that when Bauer entered his appearance as counsel for Relator less than three months after the requests for admissions had been served, he requested that all notices that had been given and all papers that had been served in the lawsuit be served on him. Bauer’s request was made over four years before the scheduled trial of this case. Had the RPI simply notified Bauer that they had served the requests for admissions on his client, the motion to withdraw the deemed admissions could have been filed and heard years before trial, allowing the RPI more than enough time to conduct any additional discovery they thought necessary.4 We find *459that the RPI would not be unduly prejudiced by allowing Relator to withdraw the deemed admissions.
The present case is similar to Rozelle, where the court of appeals issued, a writ of mandamus to the trial court directing the withdrawal of deemed admissions because the admissions in question were merit-preclusive. Rozelle, 229 S.W.3d at 764. The court of appeals quoted counsel’s argument to the trial court in support of its ruling:
These admissions served on Mr. Rozelle contained a lot of conclusions, questions that were in- dispute and basically asked him to admit or deny he was not [a] beneficiary, admit or deny [the] trust, requested — in other words, they went to the heart of the matter. They were not admissions for the genuineness of the document or [to] admit undisputed facts as contemplated by the Legislature.
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... and the requests] for admissions, themselves, are not proper questions, Your Honor. Those are intended specifically for something like that, for a trap to be set, for a trap to be laid, and I don’t believe it’s proper. They already knew what the answers were going to be. They already deposed him.
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I again assert that it is not the purpose of requests for admissions, to try the case on [the] merits when they already had those answers. They already deposed him, knew what his responses would be. They knew he was claiming an interest of the trust. ■ That’s the whole point or basis of quite a few suits.
Id. at 763. As in Rozelle, the admissions in this case went to the heart of the matter and occurred after Relator’s deposition wherein he placed those matters in issue. Therefore, .Relator was entitled to withdraw the merit-preclusive deemed; admissions.
V. Mandamus Should Issue as to All Remaining Admissions and Not Just Those the RPI Admit are Merit-Preclusive
As noted, the RPI admit that Requests 2 and 4 are merit-préclusive. Nevertheless, the RPI assert that by virtue of their Notice of Withdrawal and Repudiation of Certain Deemed Admissions, they are free to use the remaining admissions at trial. In other words,' the RPI contend that they have excised the merit-preclusive admissions and that the remaining admissions are non-merit-preclusive. As a result, their reasoning continues, under Rule 198.3’s standard, of review applicable to non-merit-preclusive admissions, Relator’s conscious indifference negates good cause to withdraw those admissions. The trial court agreed with the RPI as evidenced by its July 7, 2015, Order Granting Contestants’ Notice of Withdrawal and Repudiation of Certain Deemed Admissions. In doing so, the trial court applied an incorrect legal'standard. '
The Texas Supreme Court has stated that the primary purpose of requests for admissions is “ ‘to simplify trials by eliminating matters about which there is no real controversy, but which may be difficult or expensive to prove.’ ” Stelly, 927 S.W.2d at 622 (quoting Sanders, 227 S.W.2d at 208). “When requests for admissions are used as intended — addressing uncontroverted matters or evidentiary ones like the authenticity or admissibility of documents — deeming admissions by 'default is unlikely to compromise presentation of the merits.” Wheeler, 157 S.W.3d *460at 443 (citing Stelly, 927 S.W.2d at 622). Thus, they were never intended to be a trap in which a' party admits he has no cause of action or defense. Marino, 355 S.W.3d at 632 (citing. Stelly, 927 S.W.2d at 622).
Clearly, using admissions to prove authenticity or admissibility of documents does not require a party to admit he has no cause of action or defense. See id. Likewise, an admission on an uncontro-verted matter does not prevent a party from litigating the merits-of his claim or defense. But whether an admission is one which precludes -litigation of a claim or defense or merely seeks admission of an uncontroverted matter may not always be apparent until the admission is evaluated in the context of the other evidence. For example, in the présent case, the RPI challenged the Will, alleging that Relator exercised undue influence over the testatrix. In In re Estate of Reno, 443 S.W.3d 143 (Tex.App.—Texarkana 2009, no pet.), we stated the elements of a claim''of undue influehce as follows:
To justify setting aside a will because of undue influence, a contestant must prove (1) the existence and exertion of an influence (2) that subverted or overpowered the mind of the testator at the time of execution of the instrument (3) so that the testator executed an instrument he or she would not otherwise have executed but for such influence.
Id. at 150. Moreover, we also held that
the general topics examined to .prove an influence was undue are: the relationship existing between the testator and the parties, the opportunities for an exertion or deception, the circumstances surrounding the drafting and execution of the will, the existence of a fraudulent motive, and any domination of the testator by another.
Id. at 151. Additionally, we held,
Even though none of the circumstances standing alone would be sufficient to • satisfy the elements of undue influence, if when considered together the circumstances produce a reasonable belief that an influence was exerted that subverted or overpowered the mind of the testator and resulted in the execution of the testament in controversy, the evidence is sufficient to sustain such conclusion.
Id.
Clearly, an admission that one exercised undue influence over the testatrix would' be merit-preclusive because undue influence is the ultimate issue in- the case. But an admission that “you habitually subjected Velma Ruth Fitzgerald to your control during the last year of her life” could also be merit-preclusive depending upon the nature and quantity of the other evidence presented. If Relator is prohibited from introducing evidence to controvert that he “habitually subjected Velma Ruth Fitzgerald to [his] control during the last year of her life” and that fact is all that remains to establish undue influence, then the request could be merit-preclusive because it conclusively establishes the missing proof.
Moreover, the cumulative effect of admitting (1) that “you suggested to your brother Truitt Sewell, that the two of you get Velma Ruth Fitzgerald to change her will to, benefit the two of you,” (2) that “you told the White brothers- in Vernon that Velma Ruth Fitzgerald was not competent when she signed their lease contract,” (3) that “you misrepresented the nature of Velma Ruth Fitzgerald’s mental independence to Ray Johnson and his staff,” (4) that, “you had no contact with Velma Ryth Fitzgerald for years prior to accompanying Truitt and Laura Sewell to ‘Dallas to visit her in a nursing home,” (5) *461that “you prevented Velma Ruth Fitzgerald from having telephone contact with her lifelong friend, Eurice Lee White,” and (6) that “you habitually subjected Velma Ruth Fitzgerald to your control during the last year of her life” could be, merit-preclusive depending upon the nature and quantity of other evidence presented to the fact-finder. If the remaining evidence is scant, then by deeming those facts admitted and prohibiting Relator from litigating the truth of those facts at trial, Relator will be precluded from contesting the merits of the claims of the RPI. Accordingly, it is not possible to determine that’ the remaining requests for admissions are not merit-preclusive without seeing the remainder of the evidence.5
Because merit-preclusive admissions operate as a’sanction that implicates due process concerns, whereas non-merit-preclusive admissions do not, then it is not enough to show that the admissions do not conclusively establish the ultimate issue in the case to escape withdrawal. Rather, the record must affirmatively show that the requests are not merit-pre-clusive, either by showing that they seek to authenticate or prove the admissibility of documents or by showing that they involve uncontroverted facts.6 Moreover, because merit-preclusive admissions implicate due process concerns, when the record does not affirmatively establish that the admissions are non-merit-preclusive, we must presume that they are merit pre-clusive. The mandamus record before us does- not affirmatively show that the requests for admissions are non-merit pre-clusive; consequently, if .the RPI cannot establish that the deemed admissions resulted from Relator’s flagrant bad faith or callous disregard of the discovery rules and if the trial court’s' denial of Relator’s motion to withdraw the deemed admissions was not accompanied by a simultaneously entered, final,i. appealable judgment, then mandamus will issue as- to all of the requests for admissions.
In the present case, the RPI concede that Requests 2 and 4 are merit-preclusive, and the record does not show that the remaining requests are non-merit preclu-sive. As a result, we must presume that they are. Therefore, Relator’s Motion to Withdraw Deemed Admissions must be granted as to all -of the -requests for admissions — -request numbers 2,’4‘, 6, 7, 10, 11, 12, and 13.
VI. Conclusion
Based on the foregoing, we conclude that the trial court erred in denying Relator’s Motion to Withdraw Deemed Admissions because it applied an incorrect legal standard. By ruling that Relator had not established good cause for withdrawal because his failure to answer the requests resulted from conscious indifference, the trial court applied the legal standard applicable to ’ non-merit-preclusive admissions. Because the RPI admit that two of the admissions in question are merit-*462preclusive and because the record does not affirmatively show that the remaining requests are non-merit preclusive, then the trial court should have applied the standard applicable to merit-preclusive admissions. Under that standard, withdrawal is required because the RPI failed to prove that Relator’s admissions resulted from flagrant bad faith or callous disregard of the discovery rules, and withdrawal will not unduly prejudice the RPI. Finally, because the trial court’s order denying withdrawal was not accompanied by a simultaneously entered, final, appealable judgment, Relator has no adequate remedy at law by appeal.
Accordingly, we conditionally grant the writ of mandamus. Because we are confident that the trial court will act promptly to (1) vacate its orders of April 14, 2015, and July 7, 2015, insofar as they deny Relator’s Motion to Withdraw Deemed Admissions, and (2) enter an order allowing Relator to withdraw all of his deemed admissions, the writ will not issue unless the trial court fails to do so within ten days of the date of this opinion.
. The real parties in interest named in the opposition to the probate of the Will are Sue Neal, Melanie Wells, Robert Wells, Harold Wells, Tracy Wright, Cynthia Terrell, Nick Wells, Alleen Neal, Nicholas Maryol, Anita Counts, and Troy Sewell.
. Most of the deemed admissions are merit-preclusive.
. The Supreme Court has not decided whether a party, moving to withdraw merit-preclu-sive admissions must prove that withdrawal would not unduly prejudice the non-moving party, or whether the non-moving party must show that withdrawal would be unduly prejudicial. Nevertheless, for the reasons stated below, we find that the RPI will not be unduly prejudiced regardless of which party bears that burden of proof. Therefore, we do not decide that issue here.
. The RPI cite Morgan v. Timmers Chevrolet, Inc., 1 S.W.3d 803, 805-06 (Tex.App.—Houston [1st Dist.] 1999, pet. denied), and Boulet v. State, 189 S.W.3d 833, 838 (Tex.App.—Houston [1st Dist,] 2006, no pet.), in support of their argument that they would be unduly prejudiced. In Morgan, the proponent of the deemed admissions pointed out the admitting party’s failure to answer the requests for admissions two years before trial, unlike here, where the RPI never notified Relator or his attorneys until the day of trial. See Morgan, 1 S.W.3d at 805-06. The court of appeals found that the admitting party’s failure to answer the requests for two years after the deficiency had been brought to his attention allowed the proponent of the admissions to rely on the deemed admissions in preparing its case. Id. In Boulet, the court of appeals held that the trial court abused its discretion *459in not allowing Boulet to withdraw merits-preclusive admissions when no flagrant bad ' faith or callous disregard for the Rules was shown. Boulet, 189 S.W.3d at 838.
. The RPI also alleged that the testatrix lacked testamentary capacity and that Relator converted estate assets through his use of the authority granted him by the testatrix through a power of attorney. For the same reasons discussed above, it is not possible to determine on this record that the remaining admissions are not merit-preclusive as to those causes of action as well.
. For example, if a plaintiff in a personal injury suit testified in his deposition that one of his injuries was not caused or aggravated by the defendant's actions at issue and the defendant followed up the deposition with a request for admission that the defendant did not cause or aggravate the particular injury, the deposition testimony would be some evidence affirmatively showing that the request for admission- concerned an uncontroverted issue; | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284453/ | OPINION OF THE COURT BY
JUSTICE VENTERS
Appellant, William R. King, appeals from a judgment of the Laurel Circuit Court convicting him of first-degree sodomy and first-degree sexual abuse. For these convictions, Appellant was sentenced to a total of twenty years’ imprisonment. Appellant now appeals as a matter of right alleging that: 1) testimony of one of the Commonwealth’s witnesses improperly bolstered the alleged victim’s credibility resulting in palpable error and manifest injustice; and 2) the trial court erred in denying his motion for a directed verdict on the sodomy charge.
For the reasons that follow, we agree with the Commonwealth that the trial court correctly ruled that Appellant was *525not entitled to a directed verdict on the sodomy charge. However, we conclude that palpable error occurred when the Commonwealth’s investigating officer testified that a local task force, on child sexual abuse, comprised of local officials and prominent citizens, recommended Appellant’s indictment, resulting in manifest injustice under RCr 10.26. Consequently, we. reverse the judgment and remand the case for a new trial.
I. FACTUAL AND PROCEDURAL BACKGROUND
Eleven-year old Thomas1 and his family attended the church where Appellant, William R. King, then aged twenty-six years, served as a youth minister. In early 2012, Thomas participated in a sleepover with other children at Appellant’s house. A few days later, Thomas told his mother that during the sleepover Appellant had subjected him to sexual acts. This information was reported to the appropriate authorities,- resulting in. Appellant being charged with first-degree sodomy and first-degree sexual abuse. At trial, Thomas testified that Appellant “touchfed] my butt ... with his tongue,” the allegation which served -as .the basis for the sexual abuse charge. Thomas also testified that later- the same evening, he was awakened because “[Appellant] had his mouth on my [penis],” the allegation which served as the basis for the sodomy charge. Appellant was convicted at trial, based in large part upon Thomas’s testimony.
II. ANALYSIS
A. Appellant’s Motion for Directed Verdict
Appellant first contends that the trial court erred by denying his motion for a directed verdict on the sodomy charge. After the Commonwealth presented all of its evidence, Appellant’s counsel moved for a directed verdict on the sodomy charge. In support of his motion, Appellant argued that the evidence that Appellant’s mouth came in contact with Thomas’s anus did not satisfy the elements.of sodomy. The trial court then clarified that the sodomy count was predicated upon the allegation of Appellant’s oral contact with Thomas’s penis rather than the act of oral-anal contact. Appellant offered no other grounds in support of his motion. The' trial court denied the motion for a directed verdict, holding thai if believed by the jury, Thomas’s allegation that Appellant made penile-' oral contact with him satisfied the elements of first-degree sodomy.
The standard for reviewing a motion for directed verdict is well established:
On motion for directed verdict, the trial court must, draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. If the evidence is sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant is guilty, a directed verdict should not be given. For the purpose of ruling on the motion, the trial court must assume that the evidence for the Commonwealth is true, but reserving to the jury questions as to the credibility and’ weight to be given to such testimony.
Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky.1991). On appellate review, the reviewing court may only direct a verdict “if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt.” Id.; see also Commonwealth v. Sawhill, 660 S.W.2d 3, 5 (Ky.1983).
KRS 510.070 provides that:
(1) A person is guilty of sodomy in the first degree when:
(a) He engages in deviate sexual intercourse with another person by forcible compulsion; or
*526(b) He engages in deviate sexual intercourse with another person who is incapable of consent because he:
1. Is physically helpless; or
2. Is less than twelve (12) years old.
As set forth in KRS 510.010(1), “ ‘[deviate sexual intercourse’ means any act of sexual gratification involving the sex organs of one person and the mouth or anus of another!)]” Thomas’s trial testimony established all the necessary elements: there was evidence of an act of sexual gratification involving Appellant’s mouth and Thomas’s sex organ (penis). As such, the Commonwealth presented evidence that Appellant engaged in deviate sexual intercourse with Thomas. There was also evidence that Thomas was less than twelve years old at the time of the incident. The Commonwealth’s evidence therefore was sufficient to establish that Appellant violated KRS 510.070(l)(b)(2).
Appellant further asserts that in this case, where Thomas’s credibility is the central issue, inconsistencies and improbable aspects of his testimony were so great as to destroy its credibility, rendering it inadequate to sustain the verdict. We disagree. The testimony of a single witness is enough to support á conviction. See Gerlaugh v. Commonwealth, 156 S.W.3d 747, 758 (Ky.2005) (citing La Vigne v. Commonwealth, 353 S.W.2d 376, 378-79 (Ky.1962)). Our courts have long held that a jury is free to believe the testimony of one witness over the testimony of others. See Adams v. Commonwealth, 560 S.W.2d 825, 827 (Ky.App.1977). In ruling on Appellant’s motion, the trial court was required to construe conflicting evidence in the light most favorable to the Commonwealth. Benham, 816 S.W.2d at 187.
Specifically, for example, Appellant argues that Thomas testified that he was lying on his stomach when Appellant put Ms mouth on Thomas’s penis, something that Appellant contends is a physical impossibility. Whatever the flaws or inconsistencies that- could be drawn from Thomas's testimony, we do not find it so fantastic as to render the testimony unworthy of belief. Thomas’s’testimony had only the kinds of routine inconsistencies and flaws common to child witnesses, all of which go to the weight to be accorded his testimony. The jury was capable of fairly weighing any conflicting or inconsistent aspects of the testimony, and rendering its verdict accordingly. Matters of a witness’s credibility and of the weight to be given to a witness’s testimony are solely within the-province of the jury. Appellate courts may not substitute their own judgment of the facts for that of the jury. Brewer v. Commonwealth, 206 S.W.3d 313, 319 (Ky.2006) (citing Commonwealth v. Jones, 880 S.W.2d 544, 545 (Ky.1994)). “Determining the proper weight to assign to conflicting evidence is a matter for the trier of fact and not an appellate court.” Washington v. Commonwealth, 231 S.W.3d 762, 765 (Ky.App.2007) (overruled on other grounds by King v. Commonwealth, 302 S.W.3d 649 (Ky.2010)) (citing Bierman v. Klapheke, 967 S.W.2d 16, 19 (Ky.1998)).
We ’ therefore conclude that the trial court did not err in denying Appellant’s motion for a directed verdict.
B. The Introduction of Improper Testimony from Detective Anderkin Was Palpable Error.
Appellant contends that palpable error occurred when Thomas’s credibility was improperly bolstered by Detective Ander-kin’s testimony relating to the discredited theory of child sexual abuse accommodation syndrome [CSAAS]2 and by Ander-*527kin’s testimony about the role of the Laurel County Task Force on Child Sexual and Physical Abuse in .the pre-indictment process. Because this portion of Ander-kin’s testimony was clearly improper and resulted in manifest injustice, we agree with Appellant and find that reversible palpable error occurred.
Detective Anderkin was the Commonwealth’s chief investigator in this case. She testified that Thomas’s five-day delay in reporting the incident to his mother was not unusual because in her experience with more than 1,500 cases, it was “very rare” for children to immediately report sexual abuse. She added, “They seldom [report sex abuse immediately]; sometimes it is years after the event.” Anderkin cited to no scientific studies or other data to confirm her claim that delayed reporting is indicative of a credible claim of sexual abuse.3 As the Commonwealth readily concedes, Appellant never claimed that Thomas’s delayed report to his mother was indicative of a false report. Therefore, it cannot be claimed that Anderkin’s statement was admissible to refute an attack on Thomas’s credibility based on the delay in his report.
Anderkin also testified about the procedure used in Laurel County for assessing whether to bring charges against a suspect in a child sexual abuse case, and she noted that this procedure was used in making the decision to prosecute Appellant. As she explained, accusations of sex abuse upon children are reviewed by the Laurel County Task Force on Child Sexual and Physical Abuse (the Task Force), a committee comprised of local law enforcement officers, the Commonwealth’s Attorney, the County Attorney, social workers, and school counselors, all of whom are experienced in the area of child sexual abuse. The Task Force reviews the evidence and if it determines that the case is meritorious, it may recommend that the prosecutor proceed with indictment ■ and prosecution. Anderkin’s testimony .thereby implies to the jury that, in addition to the ordinary grand jury review, a prestigious body of experienced law enforcement and child welfare experts reviewed - the evidence against Appellant and decided that he should be prosecuted.
Since at trial Appellant objected to neither of these- claims of improper evidence, he now argues that individually or in combination they rise to the level of palpable error. RCr 10.26 provides: ■
A palpable error which affects the substantial rights of a party may be considered by the court on motion for a new trial or by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error.
*528
1. Anderkin’s testimony of the victim’s delayed reporting of abuse
The Commonwealth concedes that the “delayed reporting” aspect of Ander-kin’s testimony was improper. We held in Miller v. Commonwealth, 77 S.W.3d 566 (Ky.2002), that testimony nearly identical to Anderkin’s was improper.4 In Hellstrom v. Commonwealth, 825 S.W.2d 612 (Ky.1992) we reversed a conviction based upon testimony that “ ‘delayed disclosure’ is common in- these types of cases.” We noted that “[b]oth sides recognize that we have reversed a number of cases because of trial error in permitting the use of testimony regarding the so-called ‘child abuse accommodation syndrome’ to bolster the prosecution’s case.” Id, at 613 (citations omitted).
The phenomenon of “delayed reporting” is but one of several (usually stated as five) symptoms claimed to be characteristic of the so-called “child sexual, abuse accommodation syndrome” (CSAAS), a theoretical construct promoted by some social and psychological professionals as a useful tool for diagnosing young victims of sexual abuse and for verifying claims of sexual abuse. That Detective Anderkin did not use the term “child abuse accommodation syndrome” and did not relate all of its symptoms to Thomas is inconsequential; omission of the term “syndrome” does not transform the objectionable nature of the testimony into reliable scientific evidence. Blount v. Commonwealth, 392 S.W.3d 393, 395 (Ky.2013).
Notably,, in the foregoing cases the error was properly preserved for ordinary appellate review, and so a showing of manifest injustice was not required. ’ Here, the'error was not preserved by a contemporaneous objection and so our review is for palpable error pursuant to RCr 10.26. “Authorities discussing palpable error consider it to be composed of two elements: obviousness and seriousness.” Ernst v. Commonwealth, 160 S.W.3d 744, 759 (Ky.2005). Given the substantial body of case law against the use of “delayed reporting” to validate a claim of sexual abuse,5 we have to conclude that the inadmissibility of Anderkin’s statement was obvious. However, with respect to the second element, we are satisfied from our review of the record that, while serious and prejudicial, the evidence was' not so damaging to Appellant’s case that it resulted in manifest injustice. This aspect of Anderkin’s testimony was not palpable error.
At this point, it is worth taking note of the history of CSAAS evidence in Kentucky. Justice Abramson’s separate opinion echoes the lament of Justice Graves’s dissenting opinion nearly twenty years ago in Newkirk v. Commonwealth, 937 S.W.2d 690 (Ky.1996): “Kentucky remains as one of the few jurisdictions that still rejects all testimony regarding the phenomenon clinically identified and demonstrated as the Child Sexual Abuse Accommodation Syndrome which provides jurors a psychological explanation for certain behavior in small children following sexual abuse.” Id. at 696. Whether that is a good thing or a bad thing is yet to be shown. Kentucky is also the only state to eliminate commercial bail bonding and the first state to institute video recording in all of its courtrooms. Being exceptional is per se neither good nor bad. What is clear is that the validity of the CSAAS theory is not readily self-*529evident. The theory is not self-proving and an appellate court cannot spontaneously decide that, from now on, CSAAS evidence should be admissible. Like khy scientific or technical theory, the validity of CSAAS as a diagnostic tool for verifying claims of sexual abuse is a matter based upon facts.. Facts are determined from evidence presented to a trial court,- ordinarily at a pre-trial- hearing by adverse parties. As far as we can tell, no trial court in Kentucky has ever been asked to hold such a hearing with respect to CSAAS.
Having reviewed every reported decision of a Kentucky court on the subject of CSAAS admissibility, we are unable to find any conscientious effort by any party to establish the validity of the CSAAS theory under either the “Frye test”6 (whether the evidence had gained general acceptance in the relevant scientific community) which was prevalent prior to 1993; or under the less restrictive “Daubert test”7 which we adopted in 1995. See Mitchell v. Commonwealth, 908 S.W.2d 100,102 (Ky.1995) (“[Pjursuant to KRE 702 and Daubert, expert scientific testimony must be proffered to a trial court. The trial court judge must conduct a preliminary hearing on the matter utilizing the standards' set forth in Daubert.”). The standards include: “(1) whether a theory or technique can be and has been tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) whether, with respect to a particular technique, there is a high known or potential rate of error and whether there are standards controlling the technique’s operation; and (4) whether the theory or technique enjoys general acceptance within the relevant scientific, technical, or other specialized community.” Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 578-79 (Ky.2000).
The first appellate decision in Kentucky to address the subject of CSAAS evidence is Bussey v. Commonwealth, 697 S.W.2d 139 (Ky.1985). In Bussey, we noted “the record does not réveal any attempt mádé by the prosecution to establish the credibility' of the child sexual abuse accommodation syndrome as a concept generally accepted in the medical community.” Id. at 141. The following year, we noted in Lantrip v. Commonwealth, “There was no evidence that the so-called ‘sexual abuse accommodation syndrome’ has attained a scientific acceptance or credibility among clinical psychologists or psychiatrists.” 713 S.W.2d 816, 817 (Ky.1986).
In the next case, Hester v. Commonwealth, 734 S.W.2d 457, 458 (Ky.1987), we held that the need .to prove the scientific validity of the CSAAS theory could not be evaded, simply by avoiding the use of the term “child sexual abuse accommodation syndrome.” The Commonwealth’s failure to offer adequate evidence to prove the validity of the theory was again noted in Mitchell v. Commonwealth, 777 S.W.2d 930 (Ky.1989):
[fy social worker] testified that this sexual abuse accommodation syndrome was generally accepted by “clinicians” without specifying what clinicians she referred to, but there was no medical testimony .of any nature whatsoever that this syndrome has become. a generally accepted medical concept. , . .
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There was no testimony that all children who are sexually abused exhibit these symptoms, nor was there testimony that children who have not been sexually abused do not' sometimes exhibit some of *530the elements of the syndrome. There was no testimony that sexual abuse by other persons than the accused could not have produced the same symptoms in the victims.
Id. at 932. See also Brown v. Commonwealth, 812 S.W.2d 502, 504 (Ky.1991)8 (“This Court held in Bussey ... that the trial court erred in allowing evidence of the Syndrome into evidence because it was not established as a ‘generally accepted medical concept.’ In the cases following Bussey, this court has consistently held that the admission of evidence of the Syndrome or symptoms thereof is reversible error.”)
In Dyer v. Commonwealth, 816 S.W.2d 647, 653 (Ky.1991),9 we noted again that “[w]e reversed all of these cases [Bussey, Lantrip, Hester, and Mitchell ] because the evidence was insufficient to admit the evidence under the ‘Frye’ test: There was no evidence that the so-called ‘sexual abuse accommodation syndrome’ has attained a scientific acceptance or credibility among clinical psychologists or psychiatrists.’ ” Id. (quoting Lantrip, 713 S.W.2d at 817) (emphasis added).
A review of all of the post -Daubert decisions relating to CSAAS reveals the same thing: many times the Commonwealth has attempted to prove its case using CSAAS evidence at trial, but not once has the Commonwealth attempted to prove at a Daubert hearing the scientific reliability and validity of the CSAAS theory. Not once. In Bussey, the very first case in which this issue arose, we highlighted the need to properly establish the validity of the theory. In the thirty years since Bus-sey, our ruling on the issue has not changed because the evidentiary record has not changed: “the record [still] does not reveal any attempt made by the prosecution to establish the credibility of the child sexual abuse accommodation syndrome.” Bussey at 141.
The validity of the theory was not self-evident in 1985 and it is not self-evident today. However, the gravity of the issue is self-evident. Given the serious personal and social consequences at stake, it would seem likely that over the past three decades the theory would have been exposed to thorough and rigorous research to enable its proponents to demonstrate the validity of the theory. To be clear: we have never ruled the theory to be inadmissible because it is demonstrably wrong; rather, we have ruled it inadmissible because no one has offered proof of its validity. That ruling is not likely to change unless proponents of the theory provide proof of the relevant factors weighing on the theory’s credibility.
2. Anderkin’s testimony that the “Task Force on Child Sexual and Physical Abuse” recommended that Appellant be prosecuted
Appellant also complains on appeal that his trial was tainted by Detective Anderkin’s testimony that prominent local officials serving on the child sex abuse task force recommended Appellant’s prosecution. Anderkin testified that after she was informed by social workers of Thomas’s claims, and after then speaking to Thomas’s parents:
I presented the matter to the members of the Laurel County MultiDisciplinary Task Force on Child Sexual and Physical Abuse ... this Task Force is mandated by Kentucky law10 *531and it’s composed of members from the Commonwealth Attorney’s office, the County Attorney’s office, victim’s advocates, social services, school guidance counselors, police officers ... and we meet once a month and we discuss, our cases ... we look at each case on its individual basis, and based upon the decision made by the Task Force it is recommended' whether, you know, you go forward with the prosecution or to the giand jury, or not. '
The prosecutor then asked Anderkin, “In this case, obviously, ah indictment was returned?” And she testified: “Yes, [indict-mentj was recommended by the Task Force.”
In purpose and effect, Anderkin’s testimony states directly to the jury that a committee of esteemed local officials and respected sex abuse experts, after carefully screening the evidence “on an individual basis,” substantiated Thomas’s claims by recommending that Appellant be charged and prosecuted. The clear implication is that such an august body would not have recommended Appellant’s prosecution if they did not believe Thomas’s testimony. Thus, by testifying that the Task Force approved the charges, the Commonwealth was permitted to vouch for Thomas’s credibility as having been verified by a panel of respected experts.
It is well established that an. opinion vouching for the truthfulness of another witness is improper. Stringer v. Commonwealth, 956 S.W.2d 883, 888 (Ky.1997) (citing Hall v. Commonwealth, 862 S.W.2d 321, 323 (Ky.1993). For example, physicians may give an opinion concerning their patients’ medical diagnosis, but they may not give an opinion as to .the truthfulness of their patient. Hall, 862 S.W.2d at 323.
We liken this case to the improper bolstering that occurred in Hoff v. Commonwealth, 394 S.W.3d 368 (Ky.2011). In Hoff, a physician who treated the child victim of an alleged rape testified that he “had no reason not to believe” what the victim told him, reasoning that the child’s explanation of the events was “within [a] reasonable medical probability” of being an- actual account of what had happened. Id. at 375. Upon-review, we determined that while the physician’s testimony regarding his medical diagnosis was proper, his statement that he did not disbelieve the victim’s story was improper bolstering culminating in palpable error. Id.
By the same line of reasoning, the testimony that the Task Force had “recommended” prosecution is the same thing as saying that it was the opinion of the members of the Task' Force that Thomas’s charges were true. The information thus relayed to the jury impermissibly bolstered the victim’s testimony with the opinion of Task Force members. In a sense, the issue is even more egregious than in Hall and Hoff because in those cases, the improper bolstering was the opinion of a witness who was present for cross-examination; here,- the victim’s testimony was bolstered by the opinion of the Task Force members who were not even present.
We also note that whether the Task Force believed Thomas’s story was obviously irrelevant to the case. The most elementary rule of evidence is that irrelevant information is not admissible. KRE 402.11 The Task Force’s recommendation *532tended neither to prove nor disprove that the sexual assault actually occurred, but its prejudicial nature is clearly apparent. The only purpose served by the introduction of the Task Force testimony was to improperly influence the jury’s perception of Thomas’s account by suggesting that knowledgeable and reputable members had already accepted his testimony as truthful. Thus even assuming that there was some relevance to the evidence, that probative value of the testimony was substantially outweighed by its prejudicial effect. KRE 403.
3. The testimony challenged on appeal resulted in manifest injustice
The second element identified in Ernst for finding palpable error, the seriousness of the error, is present when “a failure to notice and correct' such an error would ‘seriously affect the fairness, integrity, and public reputation of the judicial proceeding.’ ” Id. at 758, quoting Robert G. Lawson, The Kentuoky Evidence Law Handbook, § 1.10[8][b] (4th ed. Lexis-Nexis 2003) and 1 McLaughlin, Wein-stein’s Federal Evidence, § 103.42[3] (2d ed.2003)). The “seriousness” aspect of a palpable error determinátion is captured by the requirement of RCr 10.26, which allows for relief from unpreserved error only when it results in “manifest injustice.” THe proponent of palpable error must show the “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). “To discover manifest injustice, a reviewing court must plumb the depths of the proceeding ... to determine whether the defect in the proceeding was shocking or jurisprudentially intolerable;” Id. at 4. In other words, when reviewing'for manifest injustice, the court must discern whether there is a substantial possibility that, but for the error, the verdict would have been different or whether the error resulted in a fundamentally unfair trial. Otherwise, the unpre-served error will be held non-prejudicial. Schoenbachler v. Commonwealth, 95 S.W.3d 830, 836 (Ky.2003).
Upon review, we conclude that the prejudicial impact of the Task Force testimony resulted in manifest injustice. In Hoff, 394 S.W.3d 368 (Ky.2011), we determined that a single expert witness’s improper opinion that the victim was telling the truth compelled a reversal under our manifest injustice standard. Here, a case in which the verdict was totally, dependent upon the credibility of the accuser, the jury was erroneously informed that the esteemed local professionals on the Task Force placed their stamp of approval on Thomas’s testimony by recommending that Appellant be indicted.
The scales- were tilted even further against Appellant by the improper introduction of the delayed-reporting evidence. The gravity of these- obvious errors is such that we ate persuaded that there exists a substantial possibility that the result of the trial would have been different, but for their introduction.
These errors, compounded in a case based almost entirely upon the veracity of a single witness, resulted in a judgment that is jurisprudentially intolerable. As such, we are constrained to reverse Appellant’s convictions for first-degree sodomy and first-degree sexual abuse and remand the proceeding for a new trial.
III. CONCLUSION
‘ For the aforementioned reasons, we reverse and remand this matter to the Laurel Circuit Court for a new trial.
Minton, C.J., Cunningham and Noble, JJ., concur. Abramson, J., dissents by separate opinion, in which Barber and Keller, JJ., join.
. Thomas is a pseudonym employed by the court to protect the privacy of the child.
. In Newkirk v. Commonwealth, 937 S.W.2d 690 (Ky.1996), we noted that "[i]n an unbro*527ken line of decisions ... this Court has repeatedly expressed its distrust of expert testimony which purported to determine criminal conduct based on a perceived psychological syndrome.” Id. at 690-91. The multiple rationales for the specific rule against CSAAS testimony include "the lack of diagnostic reliability, the lack of general acceptance within the discipline from which such testimony emanates, and the overwhelmingly persuasive nature of such testimony effectively dominating the decision-making process, uniquely the function of the jury.” Id. at 691. See also Blount v. Commonwealth, 392 S.W.3d 393, 396 (Ky.2013).
. The significance of Anderkin’s accounting of delayed reports is easily overrated, and subject to misunderstanding, because her statistic, "over 1500 cases,” seems not to distinguish between delay in reports of sex abuse that actually happened, and delay in reports of false charges of sex abuse. If false reports of sex abuse have about the same rate of delayed reporting as honest reports, then An-derkin’s statement has no probative value, and significant potential for prejudice.
. In Miller,i a police investigator testified that of the 900 to 1000 cases of child sex abuse she , had investigated, 90% involved delayed .reporting of the alleged abuse. Id. at 571.
. This use is distinguished from instances in which a defendant may open the door to such evidence by insinuating that the delayed reporting indicates that the claim of. sexual abuse has been fabricated. Here, Appellant did not open that door.
. Frye v. United States, 293 F. 1013, 1014 (D.C.Cir.1923).
. Daubert v. Merrell Dcrw Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).
. Overruled on other grounds by Stringer v. Commonwealth, 956 S.W.2d 883 (Ky.1997).
. Overruled on other grounds by Baker v. Commonwealth, 973 S.W.2d 54 (Ky.1998).
.Presumably Detective Anderkin is referring to KRS 431.650-670. While the statutory purpose underlying these statutes is to enhance the investigation and prosecution of child sexual abuse cases, there is no language *531in the law making the pre-indictment screening of such charges to be an element of the prosecution that must be proven at trial.
. KRE 401 defines relevant evidence as "evidence having 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.” | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284454/ | ABRAMSON, J„
DISSENTING: -
For the reasons stated herein, I respectfully and strongly dissent. While Detective Anderkin’s ’ testimony concerning the Child Abuse Task Force was arguably improper, the error was not palpable. In addition, the time has comé for this Court to reconsider its rigid stance on the admissibility of Child Sexual Abuse Accommodation Syndrome (CSAÁS) testimony and to align itself with the overwhelming majority of our sister jurisdictions, which allow such testimony under circumstances explained more fully infra.
I. Kentucky’s Outdated Position On CSAAS Evidence is Ripe For Reconsideration.
On direct examination, Detective Ander-Mn explained that she had been notified of Thomas’s case on June 4, 2012, just four days after he had spent the night at King’s house, , She testified that, in her experience, “immediate” reporting of child sexual abuse is “very rare,” with some children delaying reporting for years. This statement fprms the basis of what the majority lambasts as erroneous CSAAS evidence (despite conceding that the statement was not palpable).12
The majority accurately recounts this Court’s prohibition against CSAAS evidence. Child sexual abuse “accommodation” as a syndrome was first introduced in 1983. See Roland Summit, The Child Sexual Abuse Accommodation Syndrome, 7 Child Abuse & Neglect 177 (1983). This Court’s first opportunity to address the use,of CSAAS evidence in a criminal case arose two years later in Bussey v. Commonwealth, 697 S.W.2d 139 (Ky.1985). The defendant in Bussey was accused of sexually abusing-his daughter. Id. at 141. Over the defendant’s objection, the, trial court admitted the .testimony of a psychiatrist who testified that it was his expert opinion that the victim exhibited symptoms associated with the “relatively new” theory of CSAAS. Id. at 140. Finding error, the Court agreed with the defendant on appeal that “the prosecution did not establish that the syndrome is a generally accepted medical concept.” Id. The Court noted that the Commonwealth made no -attempt “to establish the credibility of the child sexual abuse accommodation syndrome as a concept generally accepted in the medical community.” Id.
The Court’s position in Bussey was soon reaffirmed in Lantrip v. Commonwealth, 713 S.W.2d 816 (Ky.1986). The rule announced in these cases — that CSAAS lacked any established scientific credibility rendering it admissible — formed the basis *534of a deluge of reversals in the late 1980’s and early 1990’s. See Hester v. Commonwealth, 734 S.W.2d 457 (Ky.1987); Mitchell v. Commonwealth, 777 S.W.2d 930 (Ky.1989); Brown v. Commonwealth, 812 S.W.2d 502 (Ky.1991); Dyer v. Commonwealth, 816 S.W.2d 647 (Ky.1991); Hellstrom v. Commonwealth, 825 S.W.2d 612 (Ky.1992) (also finding-that the testimony of an expert constituted hearsay). In 1996, the Newkirk v. Commonwealth decision expanded the basis for Kentucky’s prohibition of CSAAS evidence, declarihg that such testimony constituted impermissible credibility-vouching. 937 S.W.2d 690 (Ky.1996). The 2002, Miller v. Commonwealth opinion offered yet another nuance to the preclusion, concluding that CSAAS testimony amounts to little more than inadmissible propensity evidence. 77 S.W.3d 566 (Ky.2002); see also Kurtz v. Commonwealth, 172 S.W.3d 409 (Ky.2005). The more recent Sanderson vl Commonwealth decision rejected the theory for the same reasons articulated in the previously mentioned line of CSAAS cases. 291 S.W.3d 610 (Ky.2009).
Over the past three decades, Kentucky has resisted the imagined invasion of CSAAS evidence on all conceivable fronts; and, remarkably, has recognized no exceptions to this general rule of exclusion. This Court has, in essence, set forth a bright-line prohibition against any form of CSAAS evidence, regardless of substance or style. See Hellstrom, 825 S.W.2d at 614 (avoiding the phrase “syndrome” did not make evidence of post-abuse symptoms admissible under the current state. of the law). Despite this, seemingly unbroken line of cases, the notion that Kentucky is better off'rejecting all forms of CSAAS evidence has seen' its fair share of detractors amongst the members of this Court. See Lantrip, 713 S.W.2d at 817 (Wintersheimer, J., dissenting); Hellstrom, 825 S.W.2d at 616-17 (Spain, J., dissenting); Newkirk, 937 S.W.2d at 696 (Graves, J., dissenting) and id. at 696-700 (Willett, S.J., dissenting). Justice Scott introduced his own vociferous dissent in Sanderson with the following plea to the majority to reconsider its outmoded and inflexible position:
Like the ’overwhelming majority of other states, I bélieve that such evidence, when not used impermissibly to establish the abuse but, rather, as a viable tool to explain the sometimes confusing and commonly misunderstood behavioral patterns of children who may have been subjected to abuse, should be admissible.
291 S.W.3d at 617 (Scott, J., dissenting).
I echo Justice Scott’s sentiments today. Kentucky is one of only six states that traditionally rejected CSAAS testimony on the grounds that it lacks scientific reliability.13 However, even of these six states, only Kentucky and Tennessee have adopted an iron-clad prohibition against all manner of CSAAS testimony, devoid of any exceptions.14 Every other jurisdiction *535that has. taken a position on CSAAS testimony has recognized at least one exception. The broadest form of admissibility occurs in the Eighth and Ninth Circuit Courts of Appeals, the D.C. Circuit Court of Appeals, and twenty-eight state courts that have permitted expert testimony to explain generally the common traits of sexually abused children.15 Other courts have limited an expert’s CSAAS testimony to instances where the victim exhibited a specific trait of the syndrome,16 or for the purpose of rehabilitating a witness’s credibility.17 Altogether, forty-one states recognize the admissibility of CSAAS expert testimony for some purpose.18
These changes to the-landscape are in large part attributable to the growing scientific acceptance of CSAAS in state and federal courts. In fact, most state courts have accepted CSAAS as scientifically reliable under either the Daubert or Fyre test, depending on which standard is employed in a given jurisdiction.19 Margaret H. Shiu, Unwarranted Skepticism: The Federal Courts’ Treatment Of Child Sexual Abuse Accommodation Syndrome, 18 Southern California Interdisciplinary *536Law JouRnal 651, 655-56 (2009). In the thirty years since our Bussey decision, social scientists have supported the scientific validity of CSAAS (particularly as it relates to recantation and delayed disclosure). See Thomas D. Lyon, Scientific Support for Expert Testimony on Child Sexual Abuse Accommodation, in Criti-oalTssues in Child Sexual Abuse: Historical, Legal, and Psychological Perspectives 107 (Jon R. Conte ed., Sage Publishing 2002); Lindsay C. Malloy et al., Filial Dependency and Recantation of Child Sexual Abuse Allegations, 46 J. Am. Acad. Child Adolescent Psychiatry 162, 166 (2007); Irit Hershkowitz, et al ¡Dynamics of Forensic Interviews with Suspected Abuse Victims Who Do Not Disclose Abuse, 30 ■ Child Abuse & Neglect 753 (2006); Daniel W. Smith & Elizabeth J. Letourneau, Delay in Disclosure of Childhood Rape: Results from a National Survey, 24 Child Abuse & Neglect 273 (2000). Not only have empirical studies supported the reliability of the syndrome when it comes to explaining delayed disclosure, strong support for the other elements of CSAAS (secrecy,' helplessness, and accommodation) is also present in these studies. See Shui, Unwarranted Skepticism, supra at 673 n. 194-95. This Court’s once “tried- and-true” objections to CSAAS on the basis of lack of scientific acceptance and reliability (while still “tried”) are simply no longer “true.”
The recent State v. Favoccia decision from the Supreme Court of Connecticut demonstrates one- common approach to the way CSAAS evidence may be used. 306 Conn. 770, 51 A.3d 1002 (2012). Connecticut’s high court has traditionally found CSAAS expert testimony admissible be-causé:
.. .the consequences of the unique trauma experienced by minor victims of sexual abuses are matters beyond the understanding of the average person.... Consequently, expert testimony that minor victims typically fail to provide complete or consistent disclosures of the alleged sexual abuse is of valuable assistance to the trier in assessing the minor victim’s credibility. .
Favoccia, 51 A.3d at 1013 (quoting State v. Spigarolo, 210 Conn. 359, 556 A.2d 112, 123 (1989)). The Connecticut Court in. Fa-voccia affirmed a lower court’s reversal of a defendant’s conviction, where a school psychologist’s testimony regarding CSAAS characteristics indirectly vouched for the credibility of the victim. Id. at 1005. The Favoccia Court held that, “although expert witnesses may testify about the general behavioral characteristics of sexual abuse victims, they cross the line into impermissible vouching and ultimate issue testimony when they opine that a particular complainant has exhibited those general behavioral characteristics.” Id. at 1009. The rule announced in Favoccia and embraced by many sister jurisdictions is broader, than Justice Scott’s proposed rule in the Sanderson dissent. He posited that Kentucky should permit the “introduction of [CSAAS] evidence for rehabilitation purposes only and with an accompanying admonition limiting the use to such purpose.” Sanderson, 291 S.W.3d at 622 (J. Scott, dissenting). There is, however, a common thread between Favoccia’s rule and the rule advocated in Justice Scott’s Sanderson dissent, ie., under no circumstances should an expert “tie” the symptoms of CSAAS to a particular victim. I believe Kentucky should at least adopt the narrower rule set forth in the Sanderson dissent. Under this proposed rule, general CSAAS evidence may be introduced for the purpose of rehabilitating the credibility of a child victim. Of course, the expert, offering CSAAS testimony-would be prohibited from commenting on the particular victim’s behavior. Not only is this a fair approach, it is a logical one — where else do we allow a witness’s credibility to be destroyed without recourse to rehabilitation?
*537In that vein, it should be noted that Kentucky has recognized certain types of profile evidence (e.g. “battered woman syndrome”) 20 as admissible to explain general character traits or behaviors, so long as the testifying expert refrains from offering an opinion as to the specific victim’s character or behavior. See Robert G. Lawson, The Kentucky evidence law handbook § 6.30[4] (5th ed.2003). In addition, Kentucky has allowed defendants to offer expert- evidence of post-traumatic stress disorder, including generally how people “with PTSD react to tension or stress.” See e.g., Lasure v. Commonwealth, 390 S.W.3d 139, 144 (Ky.2012). Moving closer to the issues before us, in a sexual assault on a ten-year old girl, this Court unanimously accepted evidence of “emotional injury” through the testimony of the victim’s mother. Dickerson v. Commonwealth, 174 S.W.3d 451, 471-72 (Ky.2005). This Court held that evidence that the. victim had visited a rape crisis center was indicative of emotional injury, and therefore “relevant to prove that she was sexually assaulted.” Id. at 472. Nevertheless, Kentucky currently stands on the outermost fringe of the minority when it comes to the acceptance of CSAAS evidence while almost all of our sister states recognize the value of CSAAS evidence, whether it be in assisting the trier of fact in understanding the nuances of post-child abuse behavior or rehabilitating a child victim whose credibility has been attacked.
Quite simply, crimes against children are different. There are evidentiary challenges in child abuse cases that simply do not arise in other cases. Very recently, the United States Supreme Court weighed in on the question of whether the Confrontation Clause prohibits the admission--of statements made by Child' victims to non-laW enforcement witnesses. While I am aware that King has not raised a challenge based on his coiifrontation rights, I believe that the recent Supreme Court decision warrants mention. In Ohio v. Clark, 576 U.S. -, 135 S.Ct. 2173, 192 L.Ed.2d 306 (2015), the Supreme Court unanimously agreed that a conversation between a three-year old boy and his preschool teách-ers in which allegations of physical abuse were uncovered was not testimonial in nature,21 and was therefore admissible at trial under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The context in which the statements were made — informally by the very young child, in response to questions posed by teachers — is noteworthy because ' clearly the child was not then in danger yet the Court found it to be an “emergency situation” given the child would be returning to the potential abuser at the end of the school day.
By limiting a party’s ability to rehabilitate a child victim’s credibility with scientifically valid evidence, this Court has introduced and validated extraordinary impediments to the prosecution of child sexual abuse cases. Here, Thomas was cross-examined about his failure to “cry out” at the time of the abuse (when his *538young cousin was present in the same house), and his failure to tell his mother immediately after he returned home. Although this reluctance and “delayed” reporting are common, rehabilitation was not available in Kentucky. I can think of no other example in criminal prosecutions where similarly restrictive rules are applied to allow a witness to be impeached without the option of rehabilitation.22
Our position on CSAAS evidence is outdated and wrong. While the majority laments that no one has attempted to establish the validity .of CSAAS in the trial courts, this Court’s relentless criticism of anything remotely approaching CSAAS testimony has been the obvious barrier. I, and a growing number of the members of this Court, am more than willing to consider what forty-one sister states already recognize, the admissibility of CSAAS testimony. I agree that a proper record must be made in the trial court and, having considered the applicable legal and scientific literature, I am confident that it can be made.
Additionally, I note that counsel for King made numerous objections to the portions of Thomas’s mother’s testimony that counsel characterized as CSAAS evidence, citing our then-recent decision in Blount. The trial court, for the most part, sustained those objections. However, when Detective Anderkin briefly remarked on the tendency of child victims to delay reporting abuse, counsel stood silent. Given counsel’s persistent attempts to limit the mother’s testimony on CSAAS grounds, the apparent unwillingness to make similar objections to Detective An-derkin’s statements (regarding both the delayed reporting and the Child Abuse Task Force, discussed infra) raises the specter of invited error. See e.g., Wright v. Jackson, 329 S.W.2d 560, 562 (Ky.1959) (“We have often held that a party is es-topped to take advantage of an error produced by his own act.”). The failure to raise an objection to Detective Anderkin’s statements reflects, in my view, a volitional choice on the part of King’s counsel — a choice that indicates satisfaction with the “trial court’s approach” or, in this case, satisfaction with not challenging the-testimony. See Blount v. Commonwealth, 392 S.W.3d 393, 398 (Ky.2013).
II. The Admission of Detective Ander-kin’s “Task Force” Testimony, if Error, Was Harmless.
Finally, I cannot agree with the majority’s conclusion that Detective Anderkin’s “Task Force” testimony was palpably erroneous. Assuming the discussion of the Laurel County Child and Sexual Abuse Task 'Force constituted error, it did not result in manifest injustice.
The lack of DNA evidence in this case featured prominently in King’s defense'. The Commonwealth, therefore, was deliberate in using Detective Anderkin’s testimony to reflect a comprehensive investigation. Certainly, a child sexual abuse allegation demands investigative strategies and techniques specific to that crime. As noted by the majority in a footnote, the Laurel County Task Force discussed by Detective Anderkin is (we assume) the local division of the Kentucky Multidisciplinary Commission on Child Sexual Abuse. See KRS 431.650. Detective An-derkin’s statements concerning the purpose and function of the Task Force were calculated to explain her thorough investigation to the jury, and the fact that the *539Task Force was involved in King’s case is simply reflective of the typical investiga-. tive processes employed when child sexual assault is alleged. In short, this case was handled like all other alleged child sexual assault cases.
Moreover, I find the majority’s reliance on Hoff v. Commonwealth, 394 S.W.3d 368 (Ky.2011), difficult to understand. The expert witness in Hoff, a physician, improperly vouched for the veracity of the young victim’s statements, repeating portions of the victim’s forensic interview at trial, including the victim’s identification of the defendant as the perpetrator. 394 S.W.3d at 378-79. Here, the challenged testimony concerned the steps taken by Detective Anderkin in her investigation prior to the indictment. The jury was well aware that the grand jury returned an indictment, otherwise no trial would have commenced. Therefore, the essence of Detective Ander-kin’s testimony was that she engaged in an investigation of the allegation against King, which included, as required by Kentucky statute, presenting the evidence to a Task Force which determined whether the matter should go before .a grand jury. Nothing in her testimony suggested that the Task Force replaced a trier of fact in a criminal prosecution.' The prejudicial effect of the physician’s testimony in Hoff was far greater than any so-called bolstering that could have been attributed to the testimony regarding presentation of this case to the Task Force.
Obviously, a defendant is to be presumed innocent and may be convicted only upon lawful evidence establishing guilt beyond a reasonable doubt. The detective’s Task Force testimony in this case implicates, to some extent, the concerns about the presumption of innocence expressed by the United States Supreme Court in Taylor v. Kentucky, 436 U.S. 478, 98 S.Ct. 1930, 56 L.Ed.2d 468 (1978). In that case, the Court held that weak evidence of the defendant’s guilt — little more than the victim’s word — together with “skeletal” jury instructions regarding ■ the Commonwealth’s burden of proof beyond a reasonable doubt and several suggestions by the prosecutor — including references during opening and closing statements to the grand jury’s indictment — that the jury could infer guilt from the defendant’s mere status, as such, combined to entitle the defendant to a requested instruction on the presumption of innocence. Absent such an instruction, the Court held, the circumstances in that case “created a genuine danger that the’jury would convict petitioner on the basis of those extraneous considerations, rather than on the evidence introduced at trial.” 436 U.S. at 487-88, 98 S.Ct. 1930.
Here, by contrast, although the Commonwealth’s case against King likewise rested heavily on the victim’s testimony, there is no genuine danger that the jury based its verdict on “extraneous considerations” rather than on the Commonwealth’s trial evidence. Unlike Taylor, where the prosecutor several times invited the jury to infer guilt from the defendant’s mere status as such, the prosecutor in this case never invited such an inference. As the majority notes, the detective referred to and described the Laurel County Child Sex Abuse Task Force in the course of describing her investigation of the case. ’ A Task Force review, according to the detective, is a prerequisite in that county to submission of a child sex-abuse case to the grand jury. That the Task Force approved submission of the case to the grand jury, does not, however, as the majority would have it, in any way imply that a “committee of esteemed local officials and respected sex abuse experts ... substantiated [the child’s] claims.” Like the indictment itself, Task Force approval indicates only that the Task Force thought the matter merited further looking into. That the parties understood the detective’s “Task *540Force5” reference this way is clear from the facts that defense counsel made no objection to it and the prosecutor never otherwise mentioned it, neither in his bpening nor in his closing statements. • Since King’s trial was fundamentally fair, in my view, notwithstanding an irrelevant and what may well have been an erroneous reference to the Task Force, the error, if any, cannot be deemed palpable and does not entitle King to relief.
I am troubled moreover by the practice of finding palpable error on appeal where able trial counsel clearly has elected not to raise the issue before the trial court. Here, King was represented by two attorneys who vigorously and astutely volleyed objections during the Commonwealth’s case-in-chief, including CSAAS-type objections to the mother’s testimony with specific references to Blount v. Commonwealth. ■ They also cross-examined Detective Anderkin about her investigation, questioning her repeatedly about why certain pieces of evidence were not collected and why evidence was not tested for the presence of DNA, and yet King’s counsel elected not to object to the detective’s testimony regarding the Task Force. What the majority now finds “palpable” error in that brief portion of Detective Anderkin’s testimony strikes me as very possibly “invited.” Under these circumstances, I , cannot possibly agree that the statements discussed herein rendered. King’s trial fundamentally unfair. Elery v. Com., 368 S.W.3d 78, 100 (Ky.2012).
For these reasons, I strongly dissent, and would affirm the conviction and sentence.
■Barber and Keller, JJ., join.
. While the majority calls Detective Ander-kin’s testimony "substantially identical” to the testimony of a witness in Miller, 77 S.W.3d at 566, I disagree. The Miller expert’s testimony — that there was a delay in reporting sexual abuse in 90% of the expert’s cases — differs from Detective Anderkin’s ■ testimony in that the victim in Miller, who was abused for several years waited until four weeks after the last incident to report. Here, Thomas only waited four days. This is significant in that the four-day period between the one incident in- this case and the disclosure arguably does not fit the CSAAS criteria. In short, while it is "very rare” for children to disclose sexual abuse immediately, Thomas did so within four days, a very brief period in this type of case. When viewed in the context of the - entire direct examination, Detective Anderkin’s statements that Thomas reported the incident within four days of the attack cast his behavior as inconsistent iii her experience where -children "seldom” report immediately. The defense strategy throughout the trial was that Thomas made false allegations against King so that his parents could prevail in a civil suit against the Kings' and their church. A possible explanation as to why the prosecutor would elicit this testimony from Detective An-derkin. on direct examination was to undercut any attempt by the defense to paint Thomas’s relatively prompt reporting as evidence of a false allegation.
. See Hadden v. State, 690 So.2d 573 (Fla.1997); State v. Stribley, 532 N.W.2d 170 (Iowa Ct.App.1995); State v. Foret, 628 So,2d 1116 (La.1993); State v. Davis, 64 Ohio App.3d 334, 581 N.E.2d 604 (1989); State v. Ballard, 855 S.W.2d 557 (Tenn.1993).
. See Petruschke v. State, 125 So.3d 274, 283 (Fla.Dist.Ct.App.2013) ("[T]he state is free to present evidence of a child’s behavior after an alleged incident of sexual abuse if a reasonable inference can be made, within the common knowledge of jurors, that the alleged victim’s behavior could have been caused by sexual abuse.”); State v. Seevanhsa, 495 N.W.2d 354, 357 (Iowa Ct.App.1992) ("We hold expert testimony regarding CSAAS may, in some instances, assist the trier of fact to both understand the evidence and to- determine facts in issue.”); State v. Foret, 628 So.2d at 1130 ("The expert testimony on why victims might recant or delay reporting is being offered to rebut attacks on the victim’s credibility. So long as the expert limits the testimony to general characteristics that would explain delays in reporting, recantations, and omission of details, the testimony will not substitute [the expert’s] estimation of *535credibility for that of the jury.'”) (internal citations omitted); State v. Davis, 64 Ohio App.3d 334, 346, 581 N.E.2d at 612 ("[Ejxpert testimony regarding the existence of CSAAS must be limited to the syndrome itself and, therefore, courts must not allow an expert to tell the jury that the victim is believable when the victim states that a particular individual abused her.”).
.See U.S. v. Two Elk, 536 F.3d 890 (8th Cir.2008); U.S. v. Bighead, 128 F.3d 1329 (9th Cir.1997); Mindombe v. U.S., 795 A.2d 39 (D.C.2002); W.R.C. v. State, 69 So.3d 933 (Ala.Crim.App.2010); State v. Rojas, 177 Ariz. 454, 868 P.2d 1037 (Ariz.Ct.App.1993); Chunestudy v. State, 408 S.W.3d 55 (Ark.2012); Seering v. Dept. of Social Servcs., 194 Cal.App.3d 298, 239 Cal.Rptr. 422 (1987); People v. Mintz, 165 P.3d 829 (Colo. Ct.App. 2007); State v. Favoccia, 306 Conn. 770, 51 A.3d 1002 (2012); Wittrock v. State, 630 A.2d 1103 (Del.1993); Calloway v. State, 520 So.2d 665 (Fla.Dist.Ct.App.1988); Hammock v. State, 201 Ga.App. 614, 411 S.E.2d 743 (1991); People v. Pollard, 225 Ill.App.3d 970, 168 Ill.Dec. 61, 589 N.E.2d 175 (1992); Steward v. State, 636 N.E.2d 143 (Ind.Ct.App.1994); State v. Seevanhsa, 495 N.W.2d at 357; State v. Reed, 40 Kan.App.2d 269, 191 P.3d 341 (2008); Wimberly v. Gatch, 635 So.2d 206 (La.1994); State v. McCoy, 400 N.W.2d 807 (Minn.Ct.App.1987); Hall v. State, 611 So.2d 915 (Miss.1992); State v. Baker, 422 S.W.3d 508 (Mo. Ct.App.E.D.2014); State v. Fleming, 280 Neb. 967, 792 N.W.2d 147 (Neb.2010); State v. J.Q., 130 N.J. 554, 617 A.2d 1196 (1993); People v. Ivory, 162 A.D.2d 551, 556 N.Y.S.2d 742 (1990); State v. Richardson, 112 N.C.App. 58, 434 S.E.2d 657 (1993); State v. Daniel, 97 Ohio App.3d 548, 647 N.E.2d 174 (1994); Davenport v. State, 806 P.2d 655 (Olda.Crim.App.1991); Commonwealth v. Carter, 111 A.3d 1221 (Pa,2015); State v. Edelman, 593 N.W.2d 419 (S.D.1999); Gonzales v. State, 4 S.W.3d 406 (Tex.App.1999); State v. Huntington, 216 Wis.2d 671, 575 N.W.2d 268 (1998); Frenzel v. State, 849 P.2d 741 (Wyo.1993).
. See People v. Bothuel, 205 Cal.App.3d 581, 252 Cal.Rptr. 596 (1988) (disapproved on other grounds by People v. Scott, 9 Cal.4th 331, 36 Cal.Rptr.2d 627, 885 P.2d 1040 (1994)); State v. Floray, 715 A.2d 855 (Del.Super.Ct.1997); People v. Beckley, 434 Mich. 691, 456 N.W.2d 391 (1990); State v. Stowers, 81 Ohio St.3d 260, 690 N.E.2d 881 (1998).
. See Bighead, 128 F.3d 1329; People v. Stark, 213 Cal.App.3d 107, 261 Cal.Rptr. 479 (1989); People v. Nelson, 203 Ill.App.3d 1038, 149 Ill.Dec. 161, 561 N.E.2d 439 (1990); State v. Dodson, 452 N.W.2d 610 (Iowa Ct.App.1989); People v. Peterson, 450 Mich. 349, 537 N.W.2d 857 (1995); Richardson, 434 S.E.2d 657; People v. Spicola, 16 N.Y.3d 441, 922 N.Y.S.2d 846, 947 N.E.2d 620 (2011); State v. Floody, 481 N.W.2d 242 (S.D.1992); Frenzel, 849 P.2d 741.
. Seven states (Maine, New Mexico, Nevada, Rhode Island, Utah, Virginia, West Virginia) appear not to have had occasion to address the issue.
. Daubert v. Merrell Dow Pharma., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); Frye v. United States, 293 F. 1013 (D.C.Ct.App.1923).
. [Ejvidence regarding this battered wife syndrome might be of assistance to the jury as trier of fact because it tends to explain why a person suffering from the syndrome would not leave her mate and would be driven by fear of continuing episodes of increased aggression against herself to perceive certain conduct was necessary in her self-defense. Commonwealth v. Rose, 725 S.W.2d 588, 590 (Ky.1987) (overruled by Commonwealth v. Craig, 783 S.W.2d 387 (Ky.1990) (to the extent that battered wife syndrome testimony had to be from a psychiatrist or psychologist; it can now come from other witnesses, such as a spouse abuse counselor.)).
. Specifically, the Supreme Court found that the "primary purpose” of the statements was aimed at "identifying and ending” a "threat” to the child, and not calculated to result in a criminal prosecution.
. The only example that is remotely similar is this Court’s rejection of the curative admissibility of polygraph results. However, polygraph examinations are stiE viewed as scientifically unreliable. Therefore, the rehabilitative qualities of CSAAS evidence is similar to polygraph evidence only insofar as this Court has rejected both. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284455/ | OPINION
JONES, JUDGE:
This appeal concerns a property dispute between the Appellant, KL & JL Investments Inc. (“KL & JL Investments”), and several other landowners in close proximity to KL & JL Investments’ tract of land, the Appellees (hereinafter referred to as “the Property Owners”).1 On August 31, 2012, the Hardin Circuit Court ruled that the Property Owners could enforce a restrictive covenant limiting KL & JL Investments’ development of the tract to a single-family residence. This appeal followed. For the reasons more fully explained below, we AFFIRM.
I. Factual and Procedural Background
At one time, William and Eunice Montgomery owned all the land in question (hereinafter referred to as the “Parent Tract”). Sometime in the mid-1970s, the Montgomerys subdivided the Parent Tract. Around this time, William Montgomery prepared a drawing of the planned development; it depicts the Parent Tract being divided into twelve separate lots. This drawing was never recorded.
As planned, the Parent Tract was subdivided into twelve lots that were sold to various individual property owners. Eight of the twelve lots contained virtually identical deed restrictions. The relevant restrictions state:
(2) There shall be no more than one single-family residence and no multifamily residence placed upon the above described tract.
(3) Any residence erected upon the above described tract must contain at least 1,600 square feet excluding garages and porches and basements if a one-story residence and at least 1,200 square feet on the main floor, excluding garages and porches and basements, if a two-story residence.
(4)No imitation siding of any kind may be used upon the exterior of any residence or upon the exterior of any outbuilding erected upon the above described tract.
It is unclear from the record why the other four lots did not contain the restrictions. Nevertheless, to date, it appears that all of the lots have been developed in accordance with the restrictions.
On November 12, 2010, KL & JL Investments purchased one of the deed restricted lots. - KL & JL Investments purchased the lot from Suzanne Weisshaupt for approximately $239,000. KL & JL Investments’ lot is approximately five acres in size. Thereafter, KL & JL Investments obtained approval from the Vine Grove Planning and Zoning Commission to subdivide its lot into five separate one acre lots for the purpose of constructing a single-family home on each lot. KL & JL Investments planned to offer the homes for sale to the public. In furtherance of its future development plans, KL & JL Investments also obtained a release of the deed restrictions from Eunice Montgomery, the only surviving original grantor.
On June 1, 2011, the Property Owners filed a complaint in Hardin Circuit Court seeking a declaration that KL & JL Investments was bound by the restrictive covenants contained in its deed, and therefore, could not construct more than a single-family residence on its five acre lot. The Property Owners’ lots were originally part of the Parent Tract and their chains *544of title contain the same one house per lot restriction as contained in KL & JL Investments’ chain of title.
Following a bénch trial,2 the Hardin Circuit Court charged KL & JL Investments with constructive notice of the restrictions. The circuit court determined that the restrictions, contained in a deed within KL & JL Investments’ chain of title, were covenants running with the land. The circuit court also determined that the original grantor’s purported release was ineffective because several property owners relied on' the restrictions when purchasing their property. The circuit court reasoned:
[t]he fact that' the Montgomery’s [sic] placed restrictions on eight out of the twelve tracts of land and the further fact that some of the [Property Owners] were shown the subdivision plat (which was not recorded) would indicate, that the restrictions were intended for both the grantor and the purchasers of the other lots on the plat. It would appear that the restrictions were intended to run with the land which would confer on the [property owners] a right to enforce it. The [property owners] would have standing to. seek enforcement of the restrictions. (see Bagby v. Stewart’s Ex’r, 265 S.W.2d [75] (Ky.1954)).
As such, the circuit court concluded that the disputed property was subject to the restrictive covenants and enjoined KL & JL Investments from placing more than one residence on its lot.
This appeal followed.
II. Standard op Review
Different standards of review- apply depending on whether we are reviewing findings of fact or conclusions of law. A more deferential standard of review applies to the circuit court’s factual findings than to its legal conclusions.
Our standard of review regarding the trial court’s findings of fact is expressed in Kentucky Rule of Civil Procedure (“CR”) 52.01, which directs that a trial court’s factual findings “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.” Id. A finding of fact is not clearly erroneous if it is supported by substantial evidence, which “means evidence of substance and relevant consequence having the fitness to' induce conviction in the minds of reasonable men.” Owens-Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 414 (Ky.1998).
We apply de novo review to the trial court’s conclusions of law, including the “[i]nterpretation or construction of restrictive covenants.” Colliver v. Stonewall Equestrian Estates Ass’n, Inc., 139 S.W.3d 521, 523 (Ky.App.2003). Under de novo review, we owe no deference to the trial court’s application of the law to the established facts. Interactive Gaming Council v. Commonwealth ex rel. Brown, 425 S.W.3d 107, 111 (Ky.App.2014); Cinelli v. Ward, 997 S.W.2d 474, 476 (Ky.App.1998).
III. Analysis
A. Missing Record
As an initial matter, we must address one issue concerning the record on appeal. Both parties agree that the Video record of the bench trial before the circuit court can no longer be located. KL & JL Investments asserts that the missing video record puts it at a disadvantage because “there is no way to quote testimony from witnesses or to direct the Court to legal *545arguments made by the Appellant preserving issues for appeal.” KL & JL Investments goes on to state that “the only option available at this point is to submit the Brief of the Appellant without the benefit of citations to the record.”
We sympathize with the parties’ frustration that the record has been lost through no fault of their own. However, we must point out that our Civü Rules are not without a remedy for such situations. In cases like the present, where there is no written or electronic record or where the record is insufficient, CR 75.18 does provide a remedy:
(1) In the event no stenographic or electronic record of the evidence or proceedings at a hearing "or trial was made or, if so, cannot be transcribed or are not clearly understandable from the tape or recording, the appellant may prepare a narrative statement thereof from the best available means, including his/her recollection, for use instead of a transcript or for use as a supplement to or in lieu of an insufficient electronic recording. This statement shall be served on the appellee, who may serve objections or proposed amendments thereto within 10 days after service upon him/her. Thereupon the statement, with the objections or proposed amendments, shall be submitted to the trial court for settlement and approval, and as settled and approved shall be included in the record on appeal.
(2) By agreement of the parties a narrative statement of all or any part of the evidence or, other proceedings at a hearing or trial may be substituted for or used in lieu of a stenographic transcript or an electronic recording.
Id.
Because KL & JL Investments did not avail itself of the remedy provided by CR 75.13, we must presume that any portion of the record not produced would support the circuit’s court’s decision. See Harper v. Commonwealth, 371 S.W.3d 763, 769 (Ky.App.2011) (“Ultimately, when the record is incomplete, we assume that the omitted record supports the decision of the trial court.”).
B. Mutually Enforceable Restrictive Covenant
Over the last century, Kentucky’s treatment of restrictive covenants has evolved significantly. Previously, Kentucky took the view that restrictive covenants burdened the free alienation of property and construed them strictly; any doubt regarding the grantor’s intent was resolved against the enforcement of such covenants. See Glenmore Distilleries Co. v. Fiorella, 273 Ky. 549, 117 S.W.2d 173, 176 (1938) (“It is said in substance that restrictive covenants on the use of property in derogation of the fee conveyed will not, by implication, be extended so as to include anything not clearly expressed; and in case of ambiguity or doubt, the intention of the party must be resolved in favor of the free and untrammeled use of the land.”). Over time, however, Kentucky has abandoned the rule of strict construction of restrictive covenants. See Highbaugh Enterprises Inc. v. Deatrick & James Const. Co., 554 S.W.2d 878, 879 (Ky.App.1977). Today, we view them, not as “restrictions on the use of property,” which are generally disfavored, but as “a protection to the property owner and the public[,]” Id..
“The fundamental rule in construing restrictive covenants is that the intention of the parties governs.” Colliver, 139 S.W.3d at 522. Thus, our primary task in deciding this appeal is to determine whether the restrictions were entered into for the purpose of the improvement or development of the real property or intended only to benefit the grantor. If the *546former, the Property Owners have the right to enforce the restrictions against KL & JL Investments. Black v. Birner, 179 S.W.3d 873, 878 (Ky.App.2005). If the latter, only the grantor would have the right to do so and her release would be valid. Id.
“[I]n ascertaining whether a restrictive condition in a deed is inserted for the benefit of the grantor alone or is for the benefit of common grantees (and those who take under them) the intention of the parties is ascertained from the deed itself in the light of surrounding circumstances.” Brueggen v. Boehn, 344 S.W.2d 404, 406 (Ky.1961). Additionally, we must consider “whether the covenant must affect or concern the land with which it runs, and whether privity of estate exists between the party claiming the benefit and the party who rests under the burden.” Oliver v. Schultz, 885 S.W.2d 699, 700 (Ky.1994).
We will first address the grantor’s intent. As noted, we determine the grant- or’s intent from the deed itself as well as the surrounding circumstances. In this case, the deed is strong evidence in favor of the Property Owners’ position. The original deed from the Montgomerys, which appears in KL & JL Investments’ chain of title, states that the restrictions “shall run with the land.” A declaration in the conveying instrument that restrictive covenants are to run with the land is “a significant factor” in determining that the grantor intended the restriction to benefit the land and not just his personal interests. See McCown v. Gottlieb, 465 So.2d 1120, 1123 (Ala.1985) (quoting Wright v. Cypress Shores Development Co., 413 So.2d 1115, 1124 (Ala.1982), citing Golian v. Polhironakis, 390 So.2d 187 (Fla.Dist.Ct.App.1980)).
Whether “a general scheme and plan of a subdivision is present is [also] an important factor to consider in determining the purpose and intent of the restriction.” La Vielle v. Seay, 412 S.W.2d 587, 592 (Ky.1966). “The question of the existence of a general plan is one of fact, to be determined with reference to the particulars and conditions of the laying out and sale of the lots.... ” First Sec. Nat. Bank & Trust Co. of Lexington v. Peter, 456 S.W.2d 46, 51-52 (Ky.1970).
The circuit court determined that the Montgomerys intended to create a subdivision subject to the restrictions contained in the deeds. In so finding, the circuit court relied upon: (1) the fact that Mr. Montgomery prepared a subdivision plat, which, although never recorded, was shown to some of the purchasers; (2) the Parent Tract was divided and sold as laid out in the subdivision plat; (3) some of the tracts containing the restrictions were not in close proximity to the Montgomerys’ tract; and (4) all of the tracts were approximately four to five acres in size and had been developed per the restrictions.
Having reviewed the record before us, we believe that the circuit court considered the appropriate factors in deciding whether the restrictions were part of a general plan or scheme. Furthermore, we believe that substantial evidence supported the circuit court’s factual determination that the Parent Tract was developed as part of this general plan. The only evidence in support of KL & JL Investments’ position is that the restrictions were omitted from four of the twelve tracts. While this could suggest that the Montgomerys did not intend to develop a subdivision in conformity with the restrictions, it certainly does not compel such a finding. Therefore, we do not believe that circuit court erred where other equally compelling evidence suggested an intent to develop a uniform subdivision subject to the restrictions.
We next turn to the privity of estate requirement. Kentucky courts have held that the requisite privity of es*547tate necessary to establish a mutually restrictive covenant is met when a grantor-grantee relationship exists at the time the restriction is created. Fishback v. Dozier, 362 S.W.2d 490, 491 (Ky.1962). The record in this case establishes such a, relationship existed when the Montgomerys originally transferred the tracts of land. Moreover, the Property Owners’ and KL & JL Investments’ direct chains of title can be traced back to a single piece of land owned by the Montgomerys.
Finally, we must determine whether the restrictions “touch and concern” the land. “A covenant touches and concerns the land if it affects the use, value, and enjoyment of the property.” Bank of America, N.A. v. Cannonball LLC, 382 Ill.Dec. 562, 12 N.E.3d 841, 848 (Ill.App. 2 Dist.2014). Here by limiting the type and number of structures that can be erected on the property, the restrictions unquestionably affect the use, value, and enjoyment of the subject property. Thus, the last element is satisfied.
We believe that the Property Owners presented the circuit court with substantial evidence to support its conclusions that: 1) privity of estate exists; 2) the restrictions touch and concern the land; and 3) the original grantor included the restrictions as part of a general plan or scheme of development. Accordingly, we find no error on the part of the circuit court in concluding that the restrictions run with the land.
The Property Owners all have deeds containing the restrictions. Likewise, KL and JL Investments’ deed contains the restrictions. Because the restrictions run with land, they may be enforced by subsequent grantees as against one another. Humana, Inc. v. Metts, 571 S.W.2d 622, 625-26 (Ky.App.1978). Thus, the Property Owners have standing to enforce the restrictions against KL and JL Investments. See Foos v. Engle, 295 Ky. 114,174 S.W.2d 5, 8 (1943) (“Where an owner of a tract of land subdivides it into building lots and sells parcels thereof to separate grantees, imposing restrictions in accordance with the general plan or scheme for uniform development, such restrictions inure to the benefit of the several grantees and may be enforced by one of the grantees against any'other grantee.”). Thus, we agree with the circuit court that the restrictive covenants created by William and Eunice Montgomery are enforceable by the Property Owners.3
[15] Likewise, because the restrictive covenants run with the land, the original grantor, who no longer owned any part of the original Parent Tract, could not release the restrictions to the detriment of the subsequent purchasers who relied on the restrictions contained in their chains of title. Parrish v. Newbury, 279 S.W.2d 229, 234 (Ky.1955) (“After the sale of lots, the original developers may not change the general scheme and plan of the development, even though it be indefinitely or ambiguously expressed in certain particulars, without the acquiescence of the owners of the lots.”). Therefore, we also agree with the circuit court’s conclusion that Eunice Montgomery’s purported release of the restrictions was ineffective.
Finally, KL & JL Investments asserts that even if it is technically bound by *548restrictive covenants, it should be relieved of its duty to comply due to the “Change in Neighborhood” doctrine. KL & 'JL Investments argues that the circuit court erred by focusing primarily on the character of the original twelve lots without considering the nature of the many surrounding subdivisions. ’ KL & 'JL Investments maintains that the Montgomerys at one time owned much of the additional neighboring land outside the twelve tracts of land. Thus, it contends that the circuit court should have considered changes beyond the twelve tracts. !
Generally, the right to enforce a restrictive covenant may be lost by waiver, abandonment,, or by a general change in character of the neighborhood to which the covenant applied. Bagby v. Stewart’s Executor, 265 S.W.2d 75, 77 (Ky.1954). “Kentucky law has long held that changes inside the subdivision which affect its residential character are necessary to vitiate a restrictive residential covenant in a deed.” Elliott v. Jefferson County Fiscal Court, 657 S.W.2d 237, 238 (Ky.1983). Further, “[t]he Kentucky rule recognizes that changes outside the subdivision are beyond the control of the lot owner.” Id,
In Greer v. Bornstein, 246 Ky. 286, 54 S.W.2d 927, 930 (1932), the ..court considered whether the development of contiguous parts of a neighborhood should relieve a plaintiff from restrictions., contained in her deed. It held that even though the plaintiffs lot might be affected to some degree by changes outside her immediate development, she could not rely on those changes to unburden her lot where there was no evidence that the character of the development itself had changed.
In- this case the testimony shows that in remote but not immediately contiguous parts of the neighborhood of plaintiffs lot, some business enterprises have sprung up, and further east from her lot billboards are erected, but they are all some distance away from her lot, although their construction might tend to make her lot available for business purposes, and perhaps less valuable for residence purposes. However, such alterations and changes' cannot be said to have such a fundamental effect as to entitle defendant to rely on this defense, even if it could be made available' when the changes relied on Were erected and constructed only on property adjacent to the development but not upon any part of it.'
Id.
In this case, the circuit court examined the twelve tracts originally developed by the Montgomerys, all of which have remained residential in nature and have adhered to the “one house per tract” restriction. Therefore, wé find no error in the circuit court’s conclusion that there was insufficient evidence of a change in condition sufficient to void the restrictions contained in KL & JL Investments’ deed.
IV.' Conclusion
Accordingly, for the above stated reasons the judgment of the Hardin Circuit Court is AFFIRMED.
ALL CONCUR.
. These individuals are: Donald W. Lynch, Author B. Curry, James S. Shelton, Linda C. Lynch, Mary C. Young, Patricia Hobbs, Rebecca A. Massey, Renate B. Curry, Samuel J. Young, and Virginia C. Fogle.
. Unfortunately, the record from the circuit court’s bench trial is missing. This issue is discussed in more detail below.
. It is important to note that the restrictions appear in KL & JL Investments’ direct chain to title as the lot it purchased was one of the eight lots that contain the restrictions. The result of this case might well be different if KL & JL Investments had purchased one of the four lots where the restrictions were omitted from the deeds. See Oliver v. Schultz, 885 S.W.2d 699, 700 (Ky.1994) (holding that restriction placed in a collateral chain of title cannot bind a subsequent grantee without actual notice of the restriction unless it is included in a subsequent recorded subdivision plat or deed of restrictions). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284457/ | ORDER
PER CURIAM
Scott Tillis, appearing pro se, appeals from the final award of the Labor and Industrial Relations Commission, which affirmed and adopted the decision of the Administrative Law Judge finding that Claimant sustained 15 percent permanent partial disability of the right shoulder as a result of a work-related injury, but denied Claimant benefits from the Second Injury Fund. 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 *615affirm the judgment pursuant to Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284458/ | ORDER
PER CURIAM.
Jasmine McDaniel (Appellant) appeals from the motion court’s judgment denying her Rule 24.0351 motion for post-conviction relief after an evidentiary hearing. We have reviewed the briefs of the parties and the record on appeal and conclude the motion court did not err in denying Appellant’s motion. An extended opinion would have no precedential value. We have, however, provided a memorandum setting forth the reasons for our decision to the parties for their use only. We affirm the judgment pursuant to Missouri Rule of Civil Procedure 84.16(b).
. All rule references are to Mo.R.Crim.P. 2013, unless otherwise noted. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284459/ | Order
Per Curiam:
Appellants Jack L. Beaver and similarly situated fellow class members who obtained second mortgages on Missouri real property that were acquired and/or serviced by Respondents appeal from the rulings of the Circuit Court of Jackson County, Missouri, denying the Appellants’ motion to enforce settlement agreement and judgment relating to the defined term “Active Loan”' (which - was incorporated into the 'terms of the judgment), denying the Appellants’' alternative motion to partially vacate the underlying judgment, and denying certain unnamed plaintiffs’ motion to intervene. Because a published opinion would have no jurisprudential value, we have instead provided a memorandum of law to the parties explaining our ruling. We affirm. Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5285521/ | Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
01/07/2022 01:07 AM CST
- 329 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
KAUK v. KAUK
Cite as 310 Neb. 329
Marcia A. Kauk, appellant, v.
Randall G. Kauk, appellee.
___ N.W.2d ___
Filed November 5, 2021. No. S-20-867.
1. Divorce: Child Custody: Child Support: Property Division: Attorney
Fees: Appeal and Error. In a marital dissolution action, an appellate
court reviews the case de novo on the record to determine whether
there has been an abuse of discretion by the trial judge. This standard
of review applies to the trial court’s determinations regarding custody,
child support, division of property, alimony, and attorney fees.
2. Evidence: Appeal and Error. In a review de novo on the record, an
appellate court is required to make independent factual determinations
based upon the record, and the court reaches its own independent con-
clusions with respect to the matters at issue.
3. ____: ____. When evidence is in conflict, the appellate court considers
and may give weight to the fact that the trial judge heard and observed
the witnesses and accepted one version of the facts rather than another.
4. Judges: Words and Phrases. A judicial abuse of discretion exists if the
reasons or rulings of a trial judge are clearly untenable, unfairly depriv-
ing a litigant of a substantial right and denying just results in matters
submitted for disposition.
5. Divorce: Property Division. In a dissolution action, the equitable divi-
sion of property is a three-step process. The first step is to classify the
parties’ property as either marital or nonmarital, setting aside the non-
marital property to the party who brought the property to the marriage.
The second step is to value the marital assets and marital liabilities of
the parties. And the third step is to calculate and divide the net marital
estate equitably between the parties.
6. ____: ____. Any given property can constitute a mixture of marital and
nonmarital interests; a portion of an asset can be marital property while
another portion can be separate property.
- 330 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
KAUK v. KAUK
Cite as 310 Neb. 329
7. Divorce: Property Division: Proof. The burden of proof rests with the
party claiming that property is nonmarital.
8. ____: ____: ____. The burden to show that a debt is nonmarital is on the
party making that assertion.
9. Divorce: Property Division. In a divorce action, the purpose of a
property division is to distribute the marital assets equitably between
the parties.
10. ____: ____. In a dissolution action, there is no mathematical formula
by which property awards can be precisely determined, but as a general
rule, a spouse should be awarded one-third to one-half of the marital
estate, the polestar being fairness and reasonableness as determined by
the facts of each case.
11. Equity: Parties: Contracts. All persons interested in the contract or
property involved in a suit, or whose interests therein may be affected
by the decree in equity, are necessary parties.
12. Contracts: Statute of Frauds: Proof. In order to establish that an oral
contract falls within the Neb. Rev. Stat. § 36-106 (Reissue 2016) excep-
tion to the statute of frauds found in Neb. Rev. Stat. § 36-103 (Reissue
2016), the proponent of the contract must establish by clear, satisfactory,
and unequivocal evidence the terms of the contract, that the acts done in
the performance thereof are referable solely to that contract, and that the
acts performed are of such a nature that nonperformance of the contract
by the other party would amount to a fraud upon the proponent.
13. Evidence. Admissions are words and conduct of a party opponent
offered as evidence against him or her.
14. Trial: Evidence. An extrajudicial admission is simply an item of evi-
dence in the mass of evidence adduced during a trial, admissible in
contradiction and impeachment of the present claim and other evidence
of the party making the admission.
15. Circumstantial Evidence: Proof. Circumstantial evidence is not inher-
ently less probative than direct evidence, and a fact proved by circum-
stantial evidence is nonetheless a proven fact.
16. Evidence: Proof. A finder of fact may draw reasonable inferences from
the facts and circumstances proved.
Appeal from the District Court for Howard County: Karin
L. Noakes, Judge. Affirmed.
Mark L. Eurek, of The Law Office of Eurek & Peterson,
L.L.C., for appellant.
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John B. McDermott, of Wolf, McDermott, Depue, Sabott,
Butz & Porto, L.L.C., for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Cassel, J.
INTRODUCTION
Marcia A. Kauk appeals from a marital dissolution decree,
arguing the court erred in its marital classification determina-
tions and in awarding Randall G. Kauk the marital homestead
acreage. We find no abuse of discretion. Most of the issues
turn on credibility assessments where we give weight to the
district court’s findings. We cannot say that the court’s ulti-
mate division was unreasonable or unfair. Therefore, we affirm
the decree.
BACKGROUND
Marcia and Randall were married for 34 years. Marcia is
a retired kindergarten teacher, and Randall is a farmer. Prior
to separation, the parties lived on an acreage on the corner of
a quarter section of real estate that Randall farmed. In 2018,
Randall told Marcia that he was “done” and moved into a dif-
ferent house. Marcia then filed for dissolution of the marriage.
During the proceedings, the parties stipulated to the value
and division of most of the parties’ property and debts. The
district court conducted a trial regarding the remaining issues
relating to division of property and debts.
Following the trial, the court entered a decree. Pertinent
to this appeal, the court decided three issues: (1) whether a
marital asset resulted from payments made during the marriage
regarding a quarter section of real estate, (2) whether crop-
related expenses were marital expenses because they related to
crops grown in 2018 (2018 crops) or were nonmarital because
they stemmed from those grown in 2019, and (3) how the
marital homestead acreage should be allocated. Each will be
discussed in turn.
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Real Estate of Kauk Family L.L.C.
The district court determined that Randall’s payments regard-
ing a quarter section of real estate were rental payments and
therefore were not marital assets. Before the divorce, Randall
farmed this land and made yearly payments to Kauk Family
L.L.C. (LLC), which owned the land. The LLC’s members
consisted of Randall and his siblings. They had inherited their
membership rights from their parents.
Marcia argued that Randall’s payments should be included
in the marital estate, because they were made pursuant to
a land installment contract. She did not seek the specific
performance of the contract. Instead, Marcia sought the pay-
ments to be included in the marital estate for purposes of equi-
table division.
Marcia presented two unsigned contracts that she asserted
were drafted and agreed to by the LLC and Randall—a deed of
trust agreement from 2013 and a land installment contract from
2015. The drafting attorney’s correspondence in 2015 noted
that the parties preferred to structure the transaction as a land
installment contract. The terms of the land installment contract
stated that Randall agreed to purchase the property from the
LLC for $612,000. It mandated that Randall pay $100,000
as a downpayment and make yearly payments thereafter of
$40,577.17. The contract noted that Randall had already paid
$202,000 to the LLC (the downpayment and subsequent yearly
payments). The contract also required Randall to pay real estate
taxes for 2015 and subsequent years and to repay the LLC
$16,755.32 for the 2012, 2013, and 2014 property taxes.
At trial, both Randall and his sister (a member of the LLC)
authenticated the documents and admitted that the parties
originally contemplated for the LLC to sell the real estate to
Randall. Randall testified that he paid the $100,000 down-
payment and made three yearly payments of $40,577.17, but
he denied making an additional $102,000 payment that was
reflected in the land installment contract. Randall also testified
that he never paid the property taxes for the real estate.
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However, Randall and his sister refuted the enforceability
of the contracts, because neither they nor their siblings ever
signed either contract. Further, Randall’s sister explained that
they abandoned the plan for Randall to purchase the property
after he failed to make payments and pay the property taxes,
which forced the LLC to pay them. At that point, Randall and
the LLC agreed to a rental agreement, applying all of Randall’s
payments as “rent.” Randall testified that he has paid the LLC
$35,000 in yearly rent since 2018.
The court found that the contracts were not enforceable
because they were barred by the statute of frauds, explain-
ing that neither contract was signed nor was there sufficient
evidence that the parties partly performed either contract. The
court emphasized that Marcia failed to prove the existence
of an oral contract whose terms were clear, satisfactory, and
unequivocal. Further, the court found that the parties had
abandoned any plans for a potential oral purchase agreement,
and instead, they had allowed Randall to rent the real estate.
Therefore, the court concluded that the payments made toward
the real estate were not considered a marital asset.
Crop Expenses and Jorgensen Payment
The parties disputed the valuation of the 2018 crops. Marcia
presented testimony from an accountant who reviewed the
farm’s bank statements to calculate the total revenue generated
from the 2018 crops. The court agreed with Marcia’s valuation
of the crops, but deducted $46,158.44 from the valuation. The
court’s deduction was for four payments that Randall made
in the spring of 2019—two payments for seed ($3,477.23
and $26,061.10), one for fuel ($3,736.88), and one for land
($12,883.23) the parties referred to as the “Jorgensen farm.” 1
The court found that these payments resulted from growing the
2018 crops and characterized the Jorgensen payment as rent.
Marcia argued that it was more reasonably inferable that
the fuel and seed payments were for crops grown in 2019,
1
See brief for appellee at 10.
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which were not marital assets. Further, Marcia claimed that
the Jorgensen payment was actually for real estate that she and
Randall were purchasing. She points to three items of real estate
and a corresponding marital debt shown on the joint property
statement, which were allocated by the court to Randall.
Marital Acreage
Finally, the court awarded Randall the marital acreage. The
marital acreage is a 7-acre tract of land that Marcia and Randall
owned, which features the marital home. While Randall pre-
sented no testimony regarding the acreage, Marcia’s counsel
stated at the beginning of the trial that both parties sought the
marital acreage.
The court stated that it “underst[ood Marcia’s] attachment to
the home she has made over the last 30 years.” It summarized
Marcia’s testimony regarding her use of the home and her
plans for the future. Although the court noted Randall’s argu-
ment that his workshop and machinery were located nearby, the
parties essentially conceded at oral argument that the record
contains no direct evidence regarding the location of Randall’s
workshop and machinery.
The court explained that it was “mindful” of an unpublished
decision of the Nebraska Court of Appeals. 2 In the case cited
by the court, the appellate court modified a decree which had
awarded a tract of land, including the marital house, to the
nonfarming spouse. 3 The district court’s decree here character-
ized that appellate decision as having determined that awarding
the home property to the nonfarming spouse would needlessly
interfere with the farming spouse’s operation, based upon the
home property’s location near tracts of real estate used to feed
and pasture cattle and which included a barn, outbuildings, and
equipment used in the farming operation.
2
See Tierney v. Tierney, No. A-18-338, 2019 WL 2509047 (Neb. App. June
18, 2019) (selected for posting to court website).
3
See id.
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Thus, “[i]n light of the [Court of Appeals’] decision, and
after considering the evidence presented,” the court here
awarded “the marital home and acreage” to Randall. We note
that no precise legal description of the disputed tract appears
in the record.
Marcia filed a timely appeal, which we moved to our docket. 4
ASSIGNMENTS OF ERROR
Marcia assigns, restated and reordered, that the district court
abused its discretion by (1) “failing to include in the mari-
tal estate any amount for the contract or payments made by
[Randall] with marital assets toward purchase of real estate”;
(2) classifying four payments as payments of marital debts in
valuing marital assets; and (3) awarding the marital acreage,
including the home, to Randall.
STANDARD OF REVIEW
[1,2] In a marital dissolution action, an appellate court
reviews the case de novo on the record to determine whether
there has been an abuse of discretion by the trial judge. 5 This
standard of review applies to the trial court’s determinations
regarding custody, child support, division of property, ali-
mony, and attorney fees. 6 In a review de novo on the record,
an appellate court is required to make independent factual
determinations based upon the record, and the court reaches
its own independent conclusions with respect to the matters
at issue. 7
[3] When evidence is in conflict, the appellate court consid-
ers and may give weight to the fact that the trial judge heard
and observed the witnesses and accepted one version of the
facts rather than another. 8
4
See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2020).
5
Tierney v. Tierney, 309 Neb. 310, 959 N.W.2d 556 (2021).
6
Id.
7
Id.
8
Onstot v. Onstot, 298 Neb. 897, 906 N.W.2d 300 (2018).
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[4] A judicial abuse of discretion exists if the reasons or rul-
ings of a trial judge are clearly untenable, unfairly depriving a
litigant of a substantial right and denying just results in matters
submitted for disposition. 9
ANALYSIS
[5] In a dissolution action, the equitable division of property
is a three-step process. 10 The first step is to classify the parties’
property as either marital or nonmarital, setting aside the non-
marital property to the party who brought the property to the
marriage. 11 The second step is to value the marital assets and
marital liabilities of the parties. 12 And the third step is to cal-
culate and divide the net marital estate equitably between the
parties. 13 Here, the parties address three discrete issues within
the three-step process.
[6-8] The first two issues contest the district court’s deter-
minations regarding the extent to which assets and debts were
marital or nonmarital. Any given property can constitute a mix-
ture of marital and nonmarital interests; a portion of an asset
can be marital property while another portion can be separate
property. 14 The burden of proof rests with the party claiming
that property is nonmarital. 15 Likewise, the burden to show that
a debt is nonmarital is on the party making that assertion. 16
[9,10] The last issue addresses the division of specific
assets. In a divorce action, the purpose of a property division is
to distribute the marital assets equitably between the parties. 17
9
Tierney v. Tierney, supra note 5.
10
Vanderveer v. Vanderveer, ante p. 196, 964 N.W.2d 694 (2021).
11
Id.
12
Id.
13
Id.
14
Higgins v. Currier, 307 Neb. 748, 950 N.W.2d 631 (2020).
15
Doerr v. Doerr, 306 Neb. 350, 945 N.W.2d 137 (2020).
16
Vanderveer v. Vanderveer, supra note 10.
17
Doerr v. Doerr, supra note 15.
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There is no mathematical formula by which property awards
can be precisely determined, but as a general rule, a spouse
should be awarded one-third to one-half of the marital estate,
the polestar being fairness and reasonableness as determined
by the facts of each case. 18
Real Estate of LLC
Marcia first assigns that the court abused its discretion in
finding that because the contracts were unenforceable, Randall’s
payments regarding a quarter section of real estate were rental
payments. Marcia argues that parties partly performed the land
installment contract, making it enforceable under the statute
of frauds.
[11] This argument addresses part of the first of the three
steps in the property division process. Marcia was not seeking
a decree to enforce a purported contract between Randall and
the LLC. The court here would not have had jurisdiction to do
so. All persons interested in the contract or property involved
in a suit, or whose interests therein may be affected by the
decree in equity, are necessary parties. 19 The LLC was not a
party to the dissolution action. Thus, the court could not have
enforced the purported contract. Rather, we understand Marcia
to be attacking the district court’s determination that payments
made during the marriage were not part of the marital estate
because they were properly viewed as rental payments rather
than purchase payments. Because the district court’s reasoning
rested on the requirements of the statute of frauds, we sum-
marize that law.
[12] Neb. Rev. Stat. §§ 36-103 and 36-105 (Reissue 2016)
require that contracts for the sale of real estate must be in
writing to be enforceable. However, pursuant to Neb. Rev.
Stat. § 36-106 (Reissue 2016), an oral real estate purchase
agreement is within the statute of frauds if the parties partly
18
Vanderveer v. Vanderveer, supra note 10.
19
Reed v. Reed, 277 Neb. 391, 763 N.W.2d 686 (2009).
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perform the contract. 20 In order to establish that an oral con-
tract falls within the § 36-106 exception to the statute of frauds
found in § 36-103, the proponent of the contract must establish
by clear, satisfactory, and unequivocal evidence the terms of
the contract, that the acts done in the performance thereof are
referable solely to that contract, and that the acts performed
are of such a nature that nonperformance of the contract by
the other party would amount to a fraud upon the proponent. 21
Here, in effect, Marcia is the proponent of the contract.
Marcia analogizes her claim to Herbstreith v. Walls. 22 There,
this court affirmed a district court’s decree granting specific
performance, where the parties had an unsigned written con-
tract and the buyer made payments on the contract and took
possession of the property. 23 Marcia asserts that the unsigned
land installment contract, Randall’s payment history, and his
possession of the property provided sufficient evidence that the
parties partly performed the contract.
But there is a fundamental difference between our decision
in Herbstreith v. Walls and the situation here. There, the district
court determined that the proponent satisfied his burden of
proof. Here, the district court concluded the opposite.
In the dissolution decree, the district court made exten-
sive findings of fact regarding witness testimony. The court
explained that Marcia did not satisfy her burden to prove
that the terms of the oral contract were clear, satisfactory,
and unequivocal. The court credited Randall’s and his sister’s
testimony that he and the LLC never came to complete and
final terms on an agreement to purchase the property. Further,
the court accepted the testimony that the LLC abandoned its
plans for Randall to purchase the real estate after Randall
missed payments.
20
See Halsted v. Halsted, 169 Neb. 325, 99 N.W.2d 384 (1959).
21
Johnson v. NM Farms Bartlett, 226 Neb. 680, 414 N.W.2d 256 (1987).
22
Herbstreith v. Walls, 147 Neb. 805, 25 N.W.2d 409 (1946).
23
See id.
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We give weight to the fact that the trial judge heard and
observed the witnesses and accepted one version of the facts
rather than another. The district court did not abuse its discre-
tion in finding no marital value in the LLC’s real estate.
Crop Expenses and Jorgensen Payment
In another part of the first step of the property division
process, Marcia next contends that the district court abused
its discretion by crediting Randall for four payments he made
on marital debt. Marcia presents two arguments. Each will be
addressed in turn.
First, she argues that the court should not have credited seed
and fuel payments Randall made in 2019 as an adjustment to
the value of the 2018 crops. The parties agree that the 2018
crops were marital and that the 2019 crops were not. Thus,
if the seed and fuel payments were incurred in producing the
2018 crops, the adjustment was proper. If they were payments
toward expenses for crops grown in 2019, no adjustment
should have been allowed.
As we noted above, a party claiming that a debt is non-
marital bears the burden of proving so. Here, Marcia sought to
establish that the seed and fuel payments were made for crops
grown in 2019—that is, that the debts paid were nonmarital.
Thus, she had the burden of proving so.
Marcia relied solely upon her accountant’s opinion to
argue that those payments were not related to the 2018 crops.
However, the accountant admitted on cross-examination that
she did not conduct any research to determine whether the pay-
ments were made for debts resulting from the 2018 crops or
crops grown in 2019. Instead, the accountant based her opinion
solely on the payments’ timing and “figured” Randall was pay-
ing for expenses related to the crops grown in 2019 rather than
paying past due bills.
The district court did not find the accountant’s assumptions
credible. The court concluded that Marcia failed to prove the
fuel and seed payments were nonmarital. We give weight to
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the court’s credibility assessments. We cannot find that the
court abused its discretion in making this finding.
Next, Marcia asserts that Randall should not receive a credit
for the Jorgensen payment, because the payment was to pur-
chase a marital asset. Marcia claims that she and Randall were
purchasing the Jorgensen farm and that it was included in the
parties’ stipulated property statement as real estate that Randall
was receiving. Marcia argues crediting Randall for the payment
was improper as “[Randall] would receive double the benefit
because th[e] debt has already been used to reduce the value of
the real estate he is receiving.” 24
The joint property statement does not describe any of the
real estate using the word “Jorgensen.” Nor do any of the other
exhibits set forth legal descriptions (even cryptic ones) that
would enable us to identify particular items in the joint prop-
erty statement as “Jorgensen” land.
Whether the payment was for the purchase or rental of the
Jorgensen farm was disputed. Marcia primarily relies upon a
colloquy between the court and the respective attorneys, during
Randall’s testimony, which alternatively characterized the pay-
ment as a “land payment” and a “[r]ental payment.” During the
course of the colloquy, Marcia, who was not then testifying,
interjected, “That’s the land we own.” But when she actually
testified, both in her case in chief and again in rebuttal, no tes-
timony was elicited regarding the Jorgensen payment.
Marcia also relies on a document that Randall provided
to his bank, where Randall listed “Jorgensen Ground” under
“Other Real Estate.” But in another document provided to the
same bank, Randall’s projected income and expense schedules
listed the Jorgensen payment under the “Rent - Land / Animals”
category, along with his $35,000 rent payment on the real estate
owned by the LLC.
[13,14] While both documents were included in the evi-
dence, neither was conclusive. Admissions are words and
24
Brief for appellant at 13.
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conduct of a party opponent offered as evidence against him
or her. 25 But unlike judicial admissions, extrajudicial admis-
sions are not conclusive. An extrajudicial admission is simply
an item of evidence in the mass of evidence adduced during a
trial, admissible in contradiction and impeachment of the pres-
ent claim and other evidence of the party making the admis-
sion. 26 The statements given to the bank were simply items of
evidence in the trial of this matter. They were not binding on
the trial court.
Once again, our standard of review permits us to give
weight to the district court’s resolution of disputed evidence. 27
Doing so, we find the court did not abuse its discretion finding
that the Jorgensen payment was a rental payment.
Marital Acreage
Marcia finally assigns that the court abused its discretion by
awarding Randall the marital acreage. Marcia argues that the
court incorrectly inferred that an unpublished Court of Appeals
decision 28 precluded it from awarding a marital acreage to
a nonfarming spouse where the farming spouse maintains a
nearby farming operation. Marcia also argues that there was
no evidence on the record to support the court’s reasoning
that Randall should receive the marital acreage because of the
home’s close proximity to Randall’s farming operation.
Without commenting upon the merits of the Court of
Appeals’ unpublished decision, we believe that Marcia reads
both too much and too little into the district court’s statements
regarding the allocation of the marital acreage to Randall.
The district court did not state that it was bound by the
Court of Appeals’ unpublished decision. A statute authorizes
25
Anson v. Fletcher, 192 Neb. 317, 220 N.W.2d 371 (1974).
26
Federal Nat. Mortgage Assn. v. Marcuzzo, 289 Neb. 301, 854 N.W.2d 774
(2014).
27
See Onstot v. Onstot, supra note 8.
28
See Tierney v. Tierney, supra note 2.
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the Court of Appeals to designate a particular opinion for pub-
lication. 29 And the rules of the Nebraska Supreme Court dictate
that opinions of the Court of Appeals “which the deciding
panel has designated as ‘For Permanent Publication’ shall be
followed as precedent by the courts and tribunals inferior to the
Court of Appeals until such opinion is modified or overruled
by the Nebraska Supreme Court.” 30 But the decision cited by
the court here was not designated for permanent publication
and was not related to these parties. Consequently, the district
court was not obligated to follow the unpublished opinion,
and we do not read its decree as doing so. Marcia argues
that the district court “ruled that [the unpublished decision]
required that the [c]ourt award the marital home and acreage
to [Marcia].” 31 In this respect, Marcia reads too much into the
district court’s decree.
Marcia also reads too much into the part of the explanation
summarizing Randall’s closing arguments, which are not in
our record. “[Randall] argue[d],” the district court stated, that
“his workshop and machinery are located on the home site, the
home site borders farm ground that he rents from the . . . LLC,
and the home site is in close proximity to the other ground he
farms.” The court also noted his argument that “it would be
easier for [Marcia] to relocate than for him to find or build a
new work site for his farming operation.” However, the court
did not characterize these arguments as evidence.
[15,16] Marcia also reads too little into the district court’s
explanation. While Marcia is correct that the record does not
show the location of Randall’s workshop and machinery, it does
include circumstantial evidence of the relationship between
the acreage and Randall’s farming operation. Circumstantial
evidence is not inherently less probative than direct evidence,
and a fact proved by circumstantial evidence is nonetheless a
29
See Neb. Rev. Stat. § 24-1104 (Reissue 2016).
30
Neb. Ct. R. App. P. § 2-102(E)(5) (rev. 2021).
31
Brief for appellant at 17.
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proven fact. 32 A finder of fact may draw reasonable inferences
from the facts and circumstances proved. 33 The parties’ stipu-
lated property statement identified the location of the marital
acreage by an imprecise legal description. The statement also
set forth cryptic legal descriptions of real estate that Randall
farms. The statement described the former as 7 acres in the
“SW1/4SW1/4 of 31-15-11” and two of the latter as “SW 1/4
31-15-11” and “NW 1/4 32-15-11.” These are obvious refer-
ences to section, township, and range. From these descriptions,
the court could draw inferences of the proximity of the acreage
to the farmed tracts and thus to their relationship to Randall’s
farming operation. Marcia’s testimony at trial did not include
any suggestion that there was no relationship between the acre-
age and the farming operation. The district court, in reaching
its conclusion, stated that it did so “[i]n light of the [unpub-
lished] decision, and after considering the evidence presented
. . . .” Marcia’s argument reads too much into the first part of
the court’s statement and too little into the latter part.
Ultimately, this court reviews the division of property,
including the allocation of specific assets, de novo on the
record for an abuse of discretion. Marcia does not argue that
the overall division of property falls outside of the one-third to
one-half range. While we do not minimize Marcia’s attachment
to or personal feeling about the marital acreage, we cannot
say that the district court abused its discretion in awarding the
marital acreage, including the house, to Randall.
In passing, we observe that the court’s decree included a
provision under Neb. Rev. Stat. § 25-1304 (Reissue 2016)
giving the decree the effect of a conveyance of real estate. In
addition, Neb. Rev. Stat. § 42-372.02 (Cum. Supp. 2020) pro-
vides a method for recording of a “Certificate of Dissolution
of Marriage” with the register of deeds in the appropriate
32
Jacobs Engr. Group v. ConAgra Foods, 301 Neb. 38, 917 N.W.2d 435
(2018).
33
Id.
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county or counties. The provisions of both statutes may be
frustrated by the failure to include a complete and proper legal
description in the evidence and ultimately in the decree.
CONCLUSION
The district court did not abuse its discretion in its marital
asset determinations and in awarding Randall the marital acre-
age. We affirm the court’s divorce decree.
Affirmed. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284462/ | ORDER
PER CURIAM.
Emmer Hayes Rucker and Bettie J. Boyd,1 the surviving widow of Willie R. Boyd, (collectively, “Appellants”) appeal the trial court’s judgment in'favor of Lawrence N. Albert (“Respondent”) following a bench trial. We have reviewed Appellants’ brief and the record on appeal,2 and we find: 1) the trial court did not misapply the law of parol evidence, and 2) the trial court’s judgment was not against the weight of the evidence. An extended opinion would have no jurisprudential purpose. We have, however, provided a memorandum setting forth the reasons for our decision to the parties for their use only. We affirm the judgment pursuant to Mo. R. Civ. P. 84.16(b) (2015).
. After Willie R, Boyd died on June 30, 2012, the Probate Court determined that Bettie Boyd was the heir of Willie Boyd. In accordance with the Probate Court’s Determination of Heirship, the trial court found Bettie Boyd entitled to her respective interest in this action against Respondent.
. Respondent did not file a brief with this Court. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284463/ | ORDER
PER CURIAM
Michael Schlueter appeals the denial of his Rule 29.15 motion for post-conviction relief. Schlueter raises one point on appeal, asserting that the motion court clearly erred in denying his motion because there was no factual basis in the plea-court record to support his guilty pleas for first-degree child molestation, and thus his guilty pleas were involuntary, unknowing, and unintelligent. 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/5284464/ | ORDER
PER CURIAM
Jerry Wise, (Movant) appeals from the motion court’s Findings of Fact, Conclusions of Law and Order (Judgment) on Movant’s Amended Motion to Vacate, Set Aside, or Correct Judgment and Sentence denying Movant’s Rule 29.15 claims for post-conviction relief. We affirm.
We have reviewed the briefs of the parties, the legal file, and the record on appeal and find the claims of error to be without merit. No error of law 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 *655opinion 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/5284465/ | ORDER
PER CURIAM
The defendant, Dennis Nash, appeals the judgment and sentence entered by the Circuit Court of St. Francois County following his conviction by a jury of one count of first-degree arson, in violation of section 569.040 RSMo. (Supp. 2014), and one count of first-degree property damage, in violation of section 569.100.1 The trial court sentenced the defendant as a prior and persistent offender to 25 years of imprisonment for the arson and to a concurrent term of seven years for the property damage. Finding no error, we affirm.
An opinion would have no precedential value. The parties have been provided with a memorandum, for their information only, setting forth the reasons for this decision.
We affirm the trial court’s judgment. Rule 30.25(b).
. All statutory references are to RSMo. (Supp. 2014). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284466/ | *656
ORDER
PER CURIAM
Antonio Rice (“Rice”) was convicted in the St. Charles County Circuit Court of first-degree robbery, first-degree assault, and two associated counts of armed criminal action. Rice appeals from the motion court’s denial of his Rule 29.15 motion following an evidentiary hearing. Appellant’s only point on appeal is that trial counsel was ineffective for failing to object to the prosecutors closing argument, which focused on the safety of the community and the need to put the defendants away.
We have reviewed the briefs of the parties and the record on appeal and find no error of law. No jurisprudential purpose would be served by a written opinion. However, the parties have been furnished with a memorandum opinion for their information only, setting forth the facts and reasons for this order.
The judgment of the trial court is affirmed in accordance, with Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284468/ | OPINION
Rebeca Huddle, Justice
This appeal arises from a dispute between Judith King, individually and as executor of the estate of Kenneth King, and Deutsche Bank National Trust Company regarding foreclosure of a home equity lien on the Kings’ property. King sued Deutsche Bank in the district court, contesting its right to foreclose, and Deutsche Bank counterclaimed for foreclosure. Both parties filed summary-judgment motions, and the trial court denied King’s and granted Deutsche Bank’s. On appeal, King contends that the trial court lacked jurisdiction over Deutsche Bank’s counterclaim and therefore the summary judgment order is void. We agree, vacate the judgment of the trial court, and render judgment dismissing the case for want of subject-matter jurisdiction.
Background
In June 2012, Judith King, individually and as executor of the estate of Kenneth King, sued Deutsche Bank in the district court, contesting Deutsche Bank’s application for foreclosure in an earlier-filed case in the same court. In her petition, Kang asserted that she had filed a plea in abatement in that earlier case and requested .that the foreclosure application be transferred to Harris County Probate Court No. 3. Deutsche Bank responded to the petition and counterclaimed for foreclosure against King.
A year later, Deutsche Bank moved for summary judgment on King’s claims and for summary judgment on its affirmative claim for foreclosure. It argued that it was entitled to foreclosure, that King’s petition did not state an affirmative claim against it, and that King had no evidence to support any claims she alleged. King did not file a response to the motion, and instead filed her own motion for summary judgment. She argued that Deutsche Bank was not properly appointed as a substitute trustee in the deed of trust, and therefore any foreclosure sale was void. She did not raise the issue of jurisdiction.
The trial court denied King’s motion, granted Deutsche Bank’s motion, rendered judgment in Deutsche Bank’s favor on its foreclosure claim, and rendered judgment that King take nothing.
*851Discussion
In her first and second issues, King contends that the trial court lacked subject-matter jurisdiction over the case because Harris County Probate Court No. 3 had (1) dominant jurisdiction and (2) exclusive jurisdiction over Deutsche Bank’s counterclaim. In her third issue, she argues that because the trial court lacked subject-matter jurisdiction, its judgment is void.
In response, Deutsche Bank argues that King has not proved the existence of a statutory probate court proceeding in.Harris County Probate Court No. 3. Deutsche Bank also argues that even if such a proceeding exists, the statutory probate court does not have exclusive jurisdiction over its counterclaim, and to the extent that the probate court has dominant jurisdiction, King waived her complaint by failing to file a plea in abatement. Finally, Deutsche Bank argues that King has waived her jurisdictional arguments by raising them for the first time on appeal and that King should be estopped from challenging jurisdiction because she chose to file her suit against Deutsche Bank in the district court.
A. Standard of Review and Law on Jurisdiction
Whether a trial court has subject-matter jurisdiction is a question of law that we review de novo. Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex.2002). “Subject-matter jurisdiction is ‘essential to a court’s power to decide a case.’ ” City of Houston v. Rhule, 417 S.W.3d 440, 442 (Tex.2013) (per curiam) (quoting Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553-54 (Tex.2000)). Subject-matter jurisdiction is never presumed, and cannot be waived or conferred by consent, waiver, estoppel, or agreement. Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 75 (Tex.2000).
“Without jurisdiction the court cannot proceed at all in any cause; it may not assume jurisdiction for the purpose of deciding the merits of the case.” Fin. Comm’n of Tex. v. Norwood, 418 S.W.3d 566, 578 (Tex.2013) (quoting Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 431, 127 S.Ct. 1184, 1191, 167 L.Ed.2d 15 (2007)). “The failure of a jurisdictional requirement deprives the court of the power to act (other than to determine that it has no jurisdiction), and ever to have acted, as a matter of law.” City of DeSoto v. White, 288 S.W.3d 389, 393 (Tex.2009) (quoting Univ. of Tex. Sw. Med. Ctr. v. Loutzenhiser, 140 S.W.3d 351, 359 (Tex.2004)). Thus, “[a] judgment is void if rendered by a court without subject-matter jurisdiction.” In re United Servs. Auto. Ass’n, 307 S.W.3d 299, 309 (Tex.2010) (orig. proceeding).
“[S]übject-mattér jurisdiction [may] ‘be raised for the first time on appeal by the parties or by ‘the court.’ ” Id. at 306 (quoting Loutzenhiser, 140 S.W.3d at 358). Indeed, “a court is obliged to ascertain that subject-matter jurisdiction exists regardless of whether the parties questioned it.” Id. (emphasis in original); City of Allen v. Pub. Util. Comm’n of Tex., 161 S.W.3d 195, 199 (Tex.App.-Austin 2005, no pet.) (“[T]he question of jurisdiction is fundamental and can be raised at any time in the trial of a case or On appeal.”). ■
“ ‘[W]hen one court has ... exclusive jurisdiction over a matter, any order or judgment issued by another court pertaining to the same matter is void.’ ” In re CC & M Garza Ranches Ltd. P’ship, 409 S.W.3d 106, 109 (Tex.App.-Houston [1st Dist.] 2013, orig. proceeding) (quoting Celestine v. Dep’t of Family & Protective Servs., 321 S.W.3d 222, 230 (Tex.App.Houston [1st Dist.] 2010, no pet.)). However, when the jurisdiction of two courts is concurrent, “the issue is one of dominant *852jurisdiction.” In re Puig, 351 S.W.3d 301, 305 (Tex.2011). As a'general rule, when cases involving the same subject matter and same- parties are brought in different courts, the court with the first-filed case has dominant jurisdiction, and the other ease should be abated. See Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 248 (Tex.1988); see also Perry v. Del Rio, 66 S.W.3d 239, 252 (Tex.2001). To contest a court’s' lack of dominant jurisdiction requires the filing of a plea in abatement. See In re Puig, 351 S.W.3d at 306.
B. Analysis
Section 32.005(a) of the Estates Code provides:
•In a county in which there is a statutory probate court, the' statutory probate court has exclusive ■ jurisdiction of all probate proceedings, regardless of whether contested or uncontested. A cause of action related to the probate proceeding must be brought in a statutory'probate court unless the jurisdiction of the statutory probate court is concurrent with the jurisdiction of a district court as provided by Section 32.007 or with the jurisdiction of any other court.
Tex. Est. . Code Ann. . § 32.005(a) (West 2014)1 In a county in which there is a statutory probate court, a cause of action “related to [the] probate proceeding” includes, among other things, “an action brought against a personal representative in the representative’s' capacity as a personal representative” and “an action [to] enforce[ ] a lien against [estate property].” See Tex. Est. Code Ann. § 31.002(a)(4), (5) (West 20Í4) (defining “matters related to a probate proceeding”). ■ “[A] claim' brought by a personal representative on behalf of an estate” is also a claim “related to [a] probate proceeding.” See id. § 31.002(a)(3), (c)(1) (West 2014).
Section 32.007. provides that a statutory probate qourt" has concurrent jurisdiction with a district court over several types of actions:
(1) a personal injury, survival, or wrongful death action by or against a person in the person’s capacity as a personal representative;
(2) an action by or against a trustee;
(3) ari action involving an inter vivos trust, testamentary trust, or charitable trust, including a charitable trust as defined by Section 123.001, Property Code;
(4) an action involving a personal representative of an estate in which each other party aligned with the personal representative is not an interested person in that estate;
(5) an action against an agent or former agent under a power of attorney arising out of the agent’s performance of the duties of an agent; and
(6) an action to determine the validity of a power of attorney or to determine an agent’s rights, powers, or duties under a power of attorney.
Id. § 32.007 (West 2014).
1. Did King waive her jurisdictional arguments or is she estopped from raising them?
Before we address King’s conten-, tion that the trial court lacked jurisdiction •to enter summary judgment in favor of Deutsche Bank, we address two threshold matters raised by Deutsche Bank.
*853First, Deutsche Bank argues that King has waived her jurisdictional arguments by failing to file a plea in abatement or otherwise adduce evidence in the trial court that a probate proceeding exists. Section 32.005(a) requires the existence of a probate proceeding in order for a probate court to have jurisdiction over related actions. See Tex. Est. Code Ann. § 32.005(a). Deutsche Bank argues that there is no record evidence supporting King’s claim that a probate proceeding exists in Harris County Probate Court No. 3, and therefore we cannot consider whether that court has exclusive jurisdiction over its counterclaim.
Deutsche Bank identified one of its counter-defendants as “Judith King, as Independent ■ Executor of the Estate of Kenneth King.” See Tex. Est. Code Ann. § 22.017 (West 2014) (“ ‘Independent executor’ means the personal representative of an estate under independent administration as provided” by the' Estates Code.). Deutsche Bank also represented to the trial court in its motion for summary judgment that (1) Kenneth King passed away “on or about October 2, 2010,” (2) “Judith King filed an Application to Probate Will and Issuance of Letters Testamentary on or about February 20, 2011 in the Harris County Probate Court at Law No. Three under Cause No. 402647,” and (3) “the probate court issued letters testamentary on April 13, 2011 and Judith King was named as the independent executor.” Although a party’s representations in a motion do not constitute evidence, we conclude that these representations constitute judicial admissions regarding the existence of the probate proceeding. See Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 568 (Tex.2001) (holding that party made judicial admission in summary-judgment response and counter-motion for summary judgment). Accordingly, we conclude that Deutsche Bank is estopped from asserting there is no existing probate proceeding bécause of its judicial admis- ' sions to the contrary.
Second, Deutsche Bank contends that King waived her jurisdictional arguments and is estopped from challenging jurisdiction because she elected to sue in district court. Deutsche Bank relies upon Hiles v. Arnie & Co., P.C., 402 S.W.3d 820 (Tex.App.-Houston [14th Dist.] 2013, pet. denied), and Howell v. Mauzy, 899 S.W.2d 690 (Tex.App.-Austin 1994, writ denied), to support its contention that King should be estopped from contesting jurisdiction because she affirmatively represented to the district court that it had jurisdiction. But Hiles and Howell are both dominant jurisdiction cases. See Hiles, 402 S.W.3d at 825 (noting abatement based on dominant jurisdiction is based on principles of comity, convenience, and necessity for an orderly proceeding); Gordon v. Jones, 196 S.W.3d 376 (Tex.App.-Houston [1st Dist.] 2006, no pet.) (noting doctrine of dominant jurisdiction pertains to venue, not subject-matter jurisdiction). And unlike subject-matter jurisdiction, which is at issue here, dominant jurisdiction may be waived if not timely asserted. See Hiles, 402 S.W.3d at 826; Howell, 899 S.W.2d at 698. Likewise, a party may be estopped from asserting dominant jurisdiction by its inequitable, conduct. See Hiles, 402 S.W.3d at 825; Howell, 899 S.W.2d at 698. By" contrast, subject-matter jurisdiction, which is at issue here, may be raised for the first time on appeal, and cannot be waived or conferred by consent, waiver, estoppel, or agreement. See Dubai Petroleum, Co., 12 S.W.3d at 75. Thus, King may neither waive nor be' estopped from challenging subject-matter jurisdiction. See id,
2. Does the trial court lack subject-matter jurisdiction over the partiés’ claims?
*854We conclude that the statutory probate court has exclusive jurisdiction over the parties’ claims and that the trial court therefore lacked jurisdiction to adjudicate the case. The first sentence in Section 32.005(a) of the Estates Code confers upon the statutory probate court “exclusive jurisdiction of all probate proceedings.” Tex. Est. Code Ann. § 32.005(a). The following sentence provides that “[a] cause of action related to the probate proceeding must be brought in a statutory probate court unless the jurisdiction of the statutory probate court is concurrent with the jurisdiction of a district court as provided by Section 32.007 or with the jurisdiction of any other court.” Id. Deutsche Bank’s counterclaim is a matter “related to a probate proceeding,” because it is “an action [to] enforce[ ] a lien against [estate property], and King’s claims are “related to a probate proceeding” because they are “claim[s] brought by a personal representative on behalf of an estate.’’ See id. § 31.002(a)(3), (4), (5), (c)(1). And the action is not among those enumerated in Section 32.007 for which district and probate courts have concurrent jurisdiction. See id.. § 32.007.
This Court has held that nearly identical language in the Estates Code pertaining to guardianship proceedings is jurisdictional and confers exclusive jurisdiction on statutory probate courts over actions related to guardianship proceedings. In In re CC & M Garza Ranches Limited Partnership, 409 S.W.3d 106 (Tex.App.-Houston [1st Dist.] 2013, orig. proceeding), we considered Section 607D of the Probate Code, now Section 1022.005 of the Estates Code, which provides:
(a) In a county in which there is a statutory probate court, the statutory probate court has exclusive jurisdiction of all guardianship proceedings, regardless of whether contested or uncontested.
(b) A cause of action related to a guardianship proceeding of which the statutory probate court has exclusive jurisdiction as provided by Subsection (a) must be brought in the statutory probate court unless the jurisdiction of the statutory probate court is concurrent with the jurisdiction of a district court as provided by Section 1022.006 or with the jurisdiction of any other court..
Tex. Est. Code Ann. § 1022.005 (West 2014); see In re CC & M Garza Ranches Ltd. P’ship, 409 S.W.3d at 109.
We held that this language Vested the statutory probate court with exclusive jurisdiction over claims that the statute defined as matters “related to a guardianship proceeding.” In re CC & M Garza Ranches Ltd. P’ship, 409 S.W.3d at 109; see Tex. Est. Code Ann. § 1021.001 (West 2014). We concluded that “[b]y giving the statutory probate court exclusive jurisdiction over all claims related to a guardianship proceeding, the Legislature necessarily deprived all other courts of the power to adjudicate those claims.” In re CC & M Garza Ranches Ltd. P’ship, 409 S.W.3d at 109. Thus, only the statutory probate court had the power to decide such claims, and an order or judgment issued by another court pertaining to those claims would be void. See id.
The provision of the Estates Code at issue in In re CC & M Garza Ranches Limited Partnership is virtually identical to the provision at issue here. Following the rationale in In re CC & M Garza Ranches Limited Partnership, we hold that Section 32.005(a) of the Estates Code likewise confers the statutory probate court with exclusive jurisdiction over the case.
Deutsche Bank contends that Section 32.005(a)’s requirement that a cause of action related to a probate proceeding “must be brought in a statutory probate court” suggests only dominant, and not exclusive, jurisdiction. But as Deutsche Bank ac*855knowledges in its brief, the only case that Deutsche Bank cites to support this proposition predates the “exclusive jurisdiction” language the Legislature added to the Probate Code (now Estates Code) in 2009.2 See First State Bank of Bedias v. Bishop, 685 S.W.2d 732, 736 (Tex.App.-Houston [1st Dist.] 1985, writ ref'd n.r.e.) (construing previous version of statute, which explicitly permitted suit in question to be filed in probate court or any court of proper jurisdiction, and holding that probate court had dominant, and not exclusive, jurisdiction over claims).
Deutsche Bank also relies upon Helena Chemical Company v. Wilkins, 47 S.W.3d 486 (Tex.2001), to argue that the use of the phrase “must be brought” in the second sentence of Section 32.005(a) is not jurisdictional or at most suggests dominant, and not exclusive, jurisdiction. In Helena, the Texas Supreme Court observed that “the word ■ ‘must’ is given a mandatory meaning whén followed by a noncompliance penalty.” Id. at 493 (quoting Harris Cnty. Appraisal Dist. v. Consol. Capital Props. IV, 795 S.W.2d 39, 41 (Tex.App.-Amarillo 1990, writ denied)). Deutsche Bank reasons that, because the Estates Code does not state a penalty, “must be brought” in this context is not mandatory. Deutsche Bank also points out that the Supreme Court has “held language that appears to impose a mandatory duty to be only directory when this interpretation is most consistent with, the Legislature’s intent” and that “[e]ven if a statutory requirement is mandatory, this does not mean that compliance is necessarily jurisdictional.” Id. at 493. Deutsche Bank argues that, because the Estates Code does not say “the statutory probate court has exclusive jurisdiction of all probate proceedings and all causes of action related to the probate proceeding,” we must conclude that the Legislature did not intend to give the statutory probate court exclusive jurisdiction over any causes of action related to a probate proceeding.
But Helena does not state that use of the word “must” may only be mandatory or jurisdictional when followed by a noncompliance penalty; instead, it directs that “[w]hen a statute is silent about the consequences of noncompliance, we look to the statute’s purpose to determine the proper consequences.” Id. at 494. As we have already noted, this Court held in In re CC & M Garza Ranches Limited Partnership that the purpose of a virtually identical provision of the Estates Code was to confer exclusive jurisdiction on the statutory probate court. 409 S.W.3d at 109. Deutsche Bank argues that such a reading is unreasonable, but does not address the fact that we would be required to overturn our precedent in order to so hold. See Helena Chem. Co., 47 S.W.3d at 493 (appellate court “must presume that the Legislature intends' an entire statute to be effective and that a just and reasonable *856result is intended”). And we disagree that the statute cannot reasonably be read to vest exclusive jurisdiction in the statutory probate court — the second sentence of Section 32.005(a) may reasonably be understood to mean that jurisdiction is vested exclusively in the probate court if the claim in question is not identified in Section 32.007 as a claim for which ■ concurrent jurisdiction exists. Accordingly, we follow In re CC & M Garza Ranches Limited Partnership and conclude that the statute confers on statutory probate courts exclusive jurisdiction over causes of action related to a probate proceeding unless Section 32.007 provides that the action is subject to concurrent jurisdiction in a district court or with the jurisdiction of any other court. See In re CC & M Garza Ranches Ltd. P’ship, 409 S.W.3d at 109.
Deutsche Bank contends that our construction of the statute renders Section 34.001 of the Estates Code meaningless. Section 34.001 provides, in part:
A judge of a statutory probate court, on the motion of a party to the action or on the motion of a person interested in an estate, may transfer to the judge’s court from a district, county, or, statutory court a cause of action related to a probate proceeding pending in the statutory probate court or a cause of action in which a personal representative of an estate pending in the statutory probate court is a party ....
Tex. Est. Code Ann. § 34.001(a) (West 2014). Deutsche Bank argues that a. district, county, or other statutory court would never have occasion to transfer causes of action related to probate proceedings if the probate court had exclusive jurisdiction over them.
We disagree. Our construction of Section 32.005(a) recognizes that the Estates Code provides for concurrent jurisdiction over some causes of action related to a probate proceeding. Specifically, the statutory probate court has concurrent jurisdiction with' district courts in actions enumerated in Section 32.007. Tex. Est. Code Ann. § 32.005(a). Far -from rendering Section 34.001 meaningless, our construction of Section 32.005(a) gives effect to Section 34.0Ó1 by recognizing that its function is to grant the statutory probate court discretion to transfer to itself actions identified in Section 32.007 that may properly be heard in another court with concurrent jurisdiction.
Because the statutory probate court has exclusive jurisdiction over the parties’ claims, we hold that the trial court lacked subject-matter jurisdiction over the case. See In re CC & M Garza Ranches Ltd. P’ship, 409 S.W.3d at 109. Consequently, the summary ■ judgment rendered in Deutsche Bank’s favor is void. See In re United Servs. Auto. Ass’n, 307 S.W.3d at 309 (“A judgment is void if rendered by a court without:,' subject-matter jurisdiction.”); In re CC & M Garza Ranches Ltd. P’ship, 409 S.W.3d at 109 (judgment rendered by district court when statutory probate court had exclusive jurisdiction over related actions would be void).
We sustain King’s second and third issues. Because King’s first issue would not entitle her to any relief greater than we are already granting, we do not reach her first issue. See Tex. R. App. P. 47.1.
Conclusion
We vacate the trial court’s judgment and render judgment dismissing the case for want of subject-matter jurisdiction. All pending motions are dismissed as moot.
. The Texas Probate Code has been amended and recodified sincp the underlying lawsuit was filed. See Act of May 9, 2013, 83rd Leg., R.S., ch. 161, art. 6, 2013 Tex. Gen. Laws 623, 633-57. However, the text of the applicable statutes was not substantively changed. See id. For ease of reference, we will cite to the new Texas Estates Code, which became effective January 1, 2014.
. Bishop involved a suit on a claim rejected by a personal representative. When Bishop was decided, Section 313 of the Probate Code permitted suits on a claim rejected by a personal representative to be filed' "in the court of original probate jurisdiction ‘or in any other court of proper jurisdiction.’ ” First State Bank of Bedias v. Bishop, 685 S.W.2d 732, 736 (Tex.App.-Houston [1st Dist.] 1985, writ ref’d n.r.e.). The current version of that section, Section 355.064, permits a suit on a rejected claim to be filed only “in the court of original probate jurisdiction in which the estate is pending.” Tex. Est. Code Ann. § 355.064(a) (West 2014). And before the 2009 amendments, the Probate Code did not use the term "exclusive jurisdiction,” providing only that "all applications, petitions and motions regarding probate [and] administrations ... shall be filed and heard in [statutory probate] courts” and that matters “appertaining to estates” or ."incident to an estate” shall be brought in those courts. See Act of May 28, 2003, 78th Leg., R.S., ch. 1060, §§ 1-4, 2003 Tex. Gen. Laws 3052, 3052-3054 (former Tex. Prob. Code Ann. §§ 5A(b), 5(c)). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284470/ | OPINION
J. LAMBERT, JUDGE:
The Estate of Luther Royce Mills (Luther’s estate) appeals from the Jefferson Circuit Court’s September 13, 2012, order holding that Shirley Mills and Luther Royce Mills were married at the time of Luther’s death in October 2011. After Luther’s Last Will and Testament was submitted for probate, Shirley asked the trial court to rule on the issue of whether she and Luther were married at the time of his death. Both the ’trial court and the Jefferson Circuit Court ruled that the parties were still in fact married! After careful review, we affirm the ruling of the Jefferson Circuit Court.
On December 30,1991, Luther and Shirley were married. It was their second marriage to each other. The parties subsequently separated on July 31, 1993. On April 18, 1994, the parties appeared with counsel to try their dissolution of marriage action. On. April 25, 1994, the Jefferson Circuit Court, Division One > entered its findings of fact, conclusions of law, and decree. The decree divided the parties’ property, addressed their obligations, and dissolved the parties’ marriage.
On April 27, 1994, Luther moved the court to clarify and set aside its final order. In his motion, Luther asked that he be restored his 1989- truck and that his obligation to Shirley be reduced by $9,000.00. He did not ask that the decree, insofar as it dissolved the marriage, be' set aside.
On May 5, 1994, Shirley asked the trial court to grant her a new trial “as to the issue of the amount, division, and allocation of the marital value added to the residence located at 11921 Poplarwood Drive ... and as to the issue of maintenance.” Shirley also asked that she be awarded the 1989 truck and the $5,000.00 cqin collection. Shirley did not ask that the decree, insofar as it dissolved .the marriage, be set aside..
On September 22, 1994, the trial court granted the parties a new trial. The order specifically stated; “After reading the briefs, IT' IS HEREBY ORDERED: (1) The Decree and Order of April 25,1994, is set aside and the parties are granted a new trial. (2) The case is set for trial on November 7, 1994 at 2:00 p.m.” Neither party ever appeared for said subsequent trial, and no further substantive orders were issued by the trial court.
Following the entry of the decree, Luther and Shirley continued their rocky relationship. There is mo dispute that, from time to time, Luther and Shirley cohabita-ted. Some years, Luther and Shirley filed tax returns as “married” (Tax Years 2006 and 2007). Some years, Luther and Shirley filed tax returns as “single” (Tax Years 2001, 2008, 2009, and 2010). The parties continued to return to court, however. On January 15, 2009, the parties appeared on a Domestic Violence Petition brought by Shirley. When the question of the April 25, 1994, decree -came up, Judge Jerry J. Bowles, after reviewing the pleadings, stated that Shirley and Luther might be divorced. The record reflects that the fol*96lowing exchange occurred at the DVO hearing:
Luther Mills’s Attorney: “Judge, I have not had a chance to review the file in its totality ... I can’t advise the Court of whether it’s final, or if anything has occurred after that, I don’t know, I don’t want to make any misrepresentations to the Court.”
Judge Jerry Bóteles: “This looks like a decree of dissolution in ’93. It shows it was entered in the Court on April 25, 1994 ... okay .'.. you (Ms. Mills) may want to contact a lawyer and have them look into if there was proper service or any basis for the decree not to be entered, otherwise it does appear to be a valid decree entered by Judge Potter on April 25,1994.
On October 22, 2011, Luther died. On April 30, 2012, Shirley filed her motion asking the Jefferson District Court, Probate Division to determine whether she and Luther were married at the time of his death. On June 18, 2012, the trial court conducted a brief hearing on Shirley’s motion and the objections of Luther’s Estate. On September 13, 2012, the trial court entered its final and appealable order in this matter. That order held that the decree of dissolution entered on April 25, 1994 by the Jefferson Circuit Court, Division One, did not dissolve the marriage of Luther and Shirley. For that reason, the trial court held that the marriage of Luther and Shirley was still valid at the time of Luther’s death. The court cited to Droste v. Droste, 138 Ky. 53, 127 S.W. 506, 508 (1910), for the proposition that “ a judgment for divorce may be set aside during the term at which it was rendered upon motion made by either of the parties after due notice to the other, provided the condition of the parties has not changed[.]” The court reasoned that since neither party had remarried as of the entry of the September 22, 1994, order, the order of the Jefferson Circuit Court, Division One, setting aside the decree of dissolution was appropriate and valid. On October 10, 2012, the trial court entered an order denying Luther’s Estate’s motion to vacate.
On November 9, 2012, Luther’s Estate filed its notice of appeal to the Jefferson Circuit Court. On July 12, 2013, the Jefferson Circuit Court entered its opinion and order. It held that 1) the proper standard of review was clear error, and 2) the trial court did not commit clear error in finding that Luther and Shirley were married in 2011. Luther’s Estate now appeals to this Court.
On appeal, Luther’s Estate argues that the standard of review is de novo, not clearly erroneous. Further, it argues that Luther and Shirley were not married at the time of Luther’s death.
A review of the record indicates that the Jefferson Circuit Court articulated the proper standard of review for reviewing findings of fact and the standard for reviewing questions of law. We agree that the ultimate conclusion as to whether Luther and Shirley were married at the time of Luther’s death is a legal question, and thus a de novo review is appropriate. See Revenue Cabinet v. Comcast Cablevision of the South, 147 S.W.3d 743, 747 (Ky.App.2003). See also Smith v. Smith, 235 S.W.3d 1, 6 (Ky.App.2006).
Luther’s Estate contends that on April 25, 1994, the Jefferson Circuit Court entered a decree dissolving the parties’ marriage and that such decree was final and cannot be reviewed. Our State Constitution directs that there shall be no review “... from that portion of a judgment dissolving a marriage.” Ky. Const. § 115. Luther’s Estate argues that the General Assembly has also spoken on this issue. Once a Decree is entered dissolving *97a marriage, the parties to that marriage are authorized to marry again. Kentucky Revised Statutes .(KRS) 403.010. Luther’s Estate points out that when reviewing the issue, Former Supreme Court of Kentucky Justice Keller and Hon. Louise E., Graham both concluded that the Constitution and General Assembly prohibit review of the dissolution of a marriage. 15 Ky. Prac. Domestic Relations L. Sec. 8:8.
Luther’s Estate further contends that the modern reported cases are unanimous in holding that an order granting a new trial does not set aside an actual dissolution of marriage. Clements v. Harris, 89 S.W.3d 403, 404 (Ky.2002) (citing Whitney v. Whitney, 7 Bush 520, 70 Ky. 520 (1870); Irwin v. Irwin, 105 Ky. 632, 49 S.W. 432 (1899); DeSimone v. DeSimone, 388 S.W.2d 591 (Ky.1965); and Drake v. Drake, 809 S.W.2d 710 (Ky.App.1991)). Luther’s Estate argues that the district court’s reliance on Droste was in error because the opinion was rendered prior to the enactment of Section 115 of the Kentucky Constitution and prior to the enactment of KRS 403.010. Luther’s Estate also points out that the enforceability of Droste was subsequently called .into question. In Wilburn v. Wilburn, 296 Ky. 781, 178 S.W.2d 585 (1944), the court ruled that Droste applied only in circumstances in which the parties’ marriage had been erroneously dissolved, but the decree was not void on its face.
■ Luther’s Estate argues that in the instant matter, the parties’ marriage was dissolved by a good and valid decree, and that at that time, either party was free to marry. The fact that neither did so is not relevant. The Estate argues that the only event that could have returned Shirley to the status of surviving spouse would be a remarriage to Luther.
Shirley argues that the district and circuit courts were correct in their determinations that she and Luther were married at the time of Luther’s, death. Shirley emphasizes the clear language of the Jefferson Circuit Court, Division One’s September 13, 2012, order stating, “the language [in the September 22, 1994 Order setting aside the divorce decree] could not be clearer and is certainly not within the province of the District court to find that the action of a Circuit Court judge setting aside his own decree is not valid.” Shirley contends that deference should be given to the decision of Judge Potter, the judge who presided over the divorce proceeding between Luther and Shirley, to grant the parties a new trial.
. Shirley also argues that the. cases cited by the Estate do not apply , to the factual circumstances at play here. She argues that the cases refer to an appellate court’s lack of authority to dissolve or set aside a decree of dissolution and are based on KRS 22A.020(3), which states that, “Notwithstanding any other provision in this section, there shall be no review by appeal or by writ of certiorari from that portion of a .final judgment, order, or decree of a Circuit .Court dissolving a marriage.” Shirley argues that nothing in that statute prevents the trial court from setting aside its own decree of dissolution.
While we agree that a trial judge is in the best position to determine whether fairness demands that a retrial be had, we also note that neither Luther nor Shirley petitioned the trial court .to set aside the actual divorce decree. Instead, as the record clearly reflects,, the parties, were arguing over property , and money, and both asked the trial court to amend the award of marital property. See Brown v. Louisville & N.R. Co., 144 Ky. 546, 139 S.W. 782, 783 (1911). Thus, it seems attenuated for Shirley to .now argue that she was urging the trial court to throw, out the actual decree because the parties had de*98cided to remain married. While this may have been’ the parties’ wishes after the fact, the fact of the matter is that neither of the parties petitioned the trial court to set aside the actual divorce decree.
However, we are ultimately most persuaded by Shirley’s argument that the trial court’s order in this case never became final. It is a basic tenet of Kentucky law' that a civil judgment does not become final until ten days after it has been entered. See Harris v. Camp Taylor Fire Protection District, 303 S.W.3d 479, 482 (Ky.App.2009) (citing to Mullins v. Hess, 131 S.W.3d 769, 774 (Ky.App.2004)). Thus, a decree of dissolution, like other civil judgments, does not become a final judgment until ten days after the order is issued. Ping v. Denton, 562 S.W.2d 314, 317 (Ky.1978). Because both parties'timely filed CR 52 and CR 59 motions to set aside the April 25,1994, order and to grant a new trial, which the court granted, this prevented the decree of dissolution from ever becoming a final judgment. In Atkisson v. Atkisson, 298 S.W.3d 858, 866 (Ky.App.2009), this Court stated that “[ujpon the filing of a timely CR 59.05 motion,' a ‘final judgment’ is converted into an interlocutory judgment until the motion is adjudicated.” See also Gullion v. Gullion, 163 S.W.3d 888, 891 (Ky.2005) (stating that a ruling on a post-judgment motion is necessary to achieve finality, and procedurally, a CR 59.05 motion stays finality ‘ until the new motion is ruled upon). The Jefferson Circuit Court specifically stated in the last order it entered in the divorce petition that it was setting aside its own decree and ordering a new trial. This order became the final law in this case ten days after its entry. Because a new trial never occurred and another divorce decree was never entered, the parties were still married at the time of Luther’s death. The' Jefferson District Court, Probate Division, and the Jefferson Circuit Court properly held that the parties were still married at the time of Luther’s death in 2011. Accordingly, we affirm the orders on appeal.
ALL CONCUR. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284471/ | OPINION
ACREE, CHIEF JUDGE:
We granted discretionary review in this case to address Service Financial Company’s appeal of the Franklin Circuit Court’s November 22, 2013 opinion affirming a Franklin District Court order of default judgment that limited post-judgment interest on a retail installment contract to 12% per annum. The Appellant briefed the issues; the Appellee did not file a brief. On April 10, 2015, for reasons stated hereinafter, the Court rendered an opinion affirming the trial court.
PETITION FOR REHEARING
Before proceeding to address the issues properly before us, we note and will address the fact that, on April 30, 2015, the Appellant filed a petition for rehearing pursuant to Kentucky Rule of Civil Procedure (CR) 76.32. That rule states, in pertinent part:
Except in extraordinary cases when justice demands it, a petition for rehearing shall be limited to a consideration of the issues argued on the appeal and will be granted only when it appears that the court has overlooked a material fact in the record, or a controlling statute or decision, or has misconceived the issues presented on the appeal or the law applicable thereto.
CR 76.32(l)(b).
Claiming this Court overlooked a material fact in the record, Appellant asserts that a provision of the retail installment contract is decisive of this case in its favor. Appellant’s petition states:
In Section 7 of the “Additional Terms and Conditions” of the Retail Installment Contract Ms. Ware signed, it ex*101plicitly states “In the event the Seller obtains a judgment against the Buyer,, or any one or more of them, said judgment shall bear, interest at the same Annual Percentage Rate, as stated on the front side hereof [15%][1].”
Appellant quotes this passage from “Exhibit ‘2’”. appended to the petition, although there is no citation to the certified record in the body of the petition or on the exhibit. After careful consideration, we conclude this paragraph presents a different issue than that presented to this Court in the Appellant’s original brief.
As more fully explained below, the issue presented by this case is whether the Ap-pellee agreed to pay the accrual of interest at the rate of 15% or a finance charge not considered interest under Chapter 190 of the Kentucky Revised Statutes (KRS) addressing retail installment sales of motor vehicles. Appellant is correct that we did not address the impact of Section 7 of the contract on our analysis. Had we been aware of this language, the analysis (even if not the outcome) likely would have been different.
Concerned that this Court had, in fact, overlooked a material fact in the record, we directed our attention to Appellant’s two-page “Exhibit ‘2’ ” attached to the petition. It is a copy of the front and back of the pre-printed Retail Installment Contract.
The copy of the front page is reasonably legible in its essential terms, including the bold and large-print section stating “ANNUAL PERCENTAGE RATE The cost of your credit as a yearly rate 15%.” A highlighted provision on the front page incorporates by reference additional terms printed on the back of the form contract. The Appellee’s signature appears at the bottom of this front page.
The'back page is in a.font size and type that is largely illegible, at least on the copy attached as “Exhibit ‘2’ ” to the petition.2 Despite its degrée of illegibility, we took for granted that Appellant accurately quoted that language from' its own exhibit.
Still, two important questions remained. First, did the certified record include this second page of pre-printed boilerplate terms typical of such adhesion contracts? Second, was this one of the issues argued on the appeal; that is, had Appellant previously made this argument' in its original brief to this Court by citing this language as it did in the ■ petition for rehearing?
The record is smaller than most and that allowed us to scour it for a copy of this second page of the contract.3 We found it four times in the record. The first is at page 16 and it is attached to a memorandum of law. The second is at page 25, attached to the district court complaint. The third is at page 45, attached to the Statement of' Appeal in the circuit court. Immediately thereafter, at page 46, the page appears for a fourth time. The fact that this final copy of the page is enlarged to improve its legibility is revealing.
Having assured ourselves that the Appellant’s petition for rehearing did not reference matters outside the certified record, we moved on to see how the Appellant addressed that provision in the original brief on appeal. We readily saw that the *102legal import of “Section 7 of the ‘Additional Terms .and Conditions' of the Retail Installment Contract” was not one “of the issues argued on the appeal[.]”
Carefully reading the body of the Appellant’s brief again, we see that a total of eleven pages of the record are cited. They are pages 35 through 42 and pages 56 through 58. Neither the contract provision relied upon in the petition for rehearing, nor the page on which it appears, can be found among those pages.
However, Appellant did include, an appendix to the brief. A copy of both front and back of the Retail Installment Contract-is appended as Exhibit 5. And, in compliance with CR 76.12(4)(d)(v), there is a listing of these exhibits. The listing, indicates that Exhibit 5 was taken from pages 44, 45, and 46 of the record. But the exhibit itself is only two pages. Because' it is not marked with the circuit court clerk’s page numbering, we cannot tell whether the Exhibit is actually taken from pages 15-16, or pages 24-25, or pages 44-45 of the certified record.4 Despite its specific reference in the appendix listing, the enlarged and more legible copy of the back page of the contract appearing in the record at page 46 is not included in Exhibit 5. More importantly, .neither the back page of the contract generally, nor Section 7 specifically, is ever referenced in the original brief.
The heart of the problem is that Appellant never argued, in its initial brief before this Court, that this single sentence, quoted above-from the petition and nestled as it was among-the 82 lines of boilerplate on the back of the form contract, controlled this issue. Rather, the briefs only reference to the basis of the Appellee’s liability is the “contractually agreed interest rate of 15.000%[.]”5 That figure appears on the first page in bold type to assure its conspicuousness. That argument — whether by signing a retail installment contract Appellee agreed to pay' 15% interest on her unpaid balance — is what this Court addressed in its opinion.
This case thus determines whether that figure on the first page of the retail installment contract represents an agreed-upon interest rate or simply “The cost of your credit as a yearly rate”6 under KRS Chapter 190. All of ’ that analysis, ‘presented below, is necessarily prefatory to the new issue raised in the petition for rehearing. That new issue Is this: notwithstanding our conclusion that Appellee agreed to pay a finance charge as defined by KRS 190.090(10) and not interest, can a seller nevertheless bind a buyer to pay post-judgment interest at a higher-than-statutory rate in a separate section of the contract? That issue was never presented to us and is not before us how. It would necessarily require, among other things, consideration of whether such a contract provision would be subject to the conspicu-oúsness requirements of the federal Truth *103in Lending Act, 15 U.S.C.7 1601 et seq. (“TILA”). See Marema v. First Federal Savings Bank of Elizabethtown, Inc., 405 S.W.3d 512, 515-16 (Ky.App.2012). And that issue was never before us either, and it is not before us now.
“[Ejrror raised for the. first time in a petition for rehearing will not be considered” — “failure to raise it in the original briefs would have, amounted to .a waiver.” Johnson v. Commonwealth, 450 S.W.3d 707, 713 (Ky.2014) (citations omitted). Appellant has waived this argument.
Appellant raises a second ground for granting rehearing in this case: our failure to consider TILA in our original analysis. Again, however, the original brief did not address TILA in any way, and particularly how it bears on the issue presented then. “It is incumbent upon the appellant to present to this Court before submission all of his grounds for reversal. Questions ... not argued in the briefs, will not be considered by the Court of Appeals.” Herrick v. Wills, 333 S.W.2d 275, 276 (Ky.1960) (citation omitted). We are confident our original opinion does not conflict with TILA Regardless, Appellant has also waived this argument.
Finally, with regard to this petition for rehearing, we note the exception in CR 76.32(2) that these limitations on the availability of a rehearing will not apply “in extraordinary cases when justice demands it[.]” CR 76.32(2). We do not believe this is such a case. First, the amount of money involved is small; by our calculation the first year’s lost interest, calculated at 12% instead of 15% is $117.89.8 Second, no one represented Appellee’s interest in having the circuit court’s opinion affirmed and she filed no brief on her own. If we were to address the issues Appellant raises for the first time in the petition for rehearing, our decision would not have the benefit of the adversarial process. In short, this is not an extraordinary case and justice does not require that we treat it as such.
For the foregoing reasons, we have entered a separate and contemporaneous order denying the petition for rehearing, but modifying our opinion to include the foregoing analysis. Having thusly addressed the petition for rehearing, we again affirm the Franklin Circuit Court’s opinion affirming the Franklin District Court’s default judgment.
FACTS, PROCEDURE - AND ANALYSIS '
The Appellant is the assignee of a Retail Installment Contract. ‘ Appellee Ashley Ware executed that contract, thereby agreeing to pay a certain sum of money in exchange for a used automobile. She failed to perform as promised. Appellant brought suit in Franklin District Court to collect the balance owed and Ware failed to respond to the complaint.
Appellant moved for a default judgment claiming the amount Ware owed was a liquidated- sum and claiming pre-judgment and post-judgment -interest at the rate, of 15% per annum. Without ruling whether the amount Ware owed was. liquidated or unliquidated, the district court denied the claim of 15% post-judgment interest and allowed only 12% post-judgment interest. Appellant appealed that judgment to Franklin Circuit Court.
Appellant argued before .the circuit court that KRS 360.040 requires that when a judgment is “rendered for accruing interest on a written obligation, it shall bear interest in accordance with the instrument *104reporting such accruals...KRS 360.040. The amount owed, claimed Appellant, was a liquidated sum bearing interest according to the contract of 15% and that the statute mandated an award of post-judgment interest at the rate of 15%. The circuit court disagreed.
That court held that “[t]he initial claim was for unliquidated damages and then the District Judge reduced the claim to a judgment, thus the District Judge had the discretion to set a reasonable interest rate” which it did at 12%. Thus, the circuit court interpreted the district court judgment first as being based on the factual finding that Appellant’s damages claim was unliquidated. Second, applying KRS 360.040, the circuit court concluded that “when a claim for unliquidated damages is reduced to judgment, such judgment may bear less interest than twelve percent (12%) if the court rendering such judgment, after a hearing on that question, is satisfied that the rate of interest should be less than twelve percent (12%).” KRS 360.040.
If the district court had expressly found that the damage claim was unliq-uidated, we would be compelled to reverse that finding. Liquidated damages are those which are “[m]ade certain or fixed by agreement of parties or by operation of law.” Nucor Corp. v. General Elec. Co., 812 S.W.2d 136, 141 (Ky.1991); 3D Enterprises Contracting Corp. v. Louisville & Jefferson Cnty. Metro. Sewer Dist., 174 S.W.3d 440, 450 (Ky.2005). A classic example of liquidated damages is “an unpaid fixed contract price.” Nucor, 812 S.W.2d at 141. The damages in this case were at all times determinable, fixed, non-speculative, and clear. “Mere computation” was all that was needed to establish with “reasonable certainty” the damages owed from “an unpaid fixed contract price.” 3D Enterprises, 174 S.W.3d at 450. The claim was liquidated.
However, this does not justify reversing the district court judgment. “[T]he judgment of a lower court can be affirmed for any reason in the record.” Fischer v. Fischer, 348 S.W.3d 582, 591 (Ky.2011) (citations omitted). We affirm the district court’s judgment on the alternative ground that the contract sued upon is a Retail Installment Contract in which Ware agreed to pay a finance charge but did not agree to the accrual of interest at any rate, much less a rate in excess of that stated in KRS 360.040.
To further explain our reasoning, we consider the transaction and applicable law more closely.
In 2010, Ware purchased a 1998 Nissan automobile for $5,995.00. The transaction was memorialized in a Retail Installment Contract. Such contracts are governed by KRS 190.090 to KRS 190.140. Those statutes include the following definition:
“Retail installment contract” means any agreement, entered into in this state, evidencing a retail installment sale of a motor vehicle, other than for the purpose of resale, pursuant to which title to, or a lien upon the motor vehicle is retained by the retail seller as security for the retail buyer’s obligation. This term includes a mortgage, conditional sale contract or any contract for the bailment or leasing of a motor vehicle by which the bailee or lessee contracts to pay as compensation for its use a sum substantially equivalent to the time sale price of the motor vehicle and by which it is agreed that the bailee or lessee is bound to become, or has the option of becoming for no additional consideration or for nominal additional consideration, the owner of such motor vehicle....
KRS 190.090(3) (emphasis added).
Ware’s Retail Installment Contract included a “Finance Charge” of $1,182.65 *105which she was to pay in addition to.the “Cash Price” of the vehicle listed on the contract as $5,995.00. The term “Finance Charge” is also defined by statute.
“Finance charge” means that part of the time sale price by which it exceeds the aggregate of the cash sale price, the amount, if any, included for insurance and other benefits and official fees included in the retail installment sale;
KRS 190.090(10) (emphasis added).
Both these definitions employ the term “time sale price” which is defined in the chapter of the Kentucky Revised Statutes governing contracts of all kinds, Chapter 371.
“Time sale price” means the total of the cash sale price of the goods or services and the amount, if any, included for insurance, if a separate identified charge is made therefor, and the official fees and the time price differential.
KRS 371.210(12) (emphasis added). And “time price differential” is also defined by this statute.
“Time price differential” however denominated or expressed, means the amount which is paid or payable for the privilege of purchasing goods or services to be paid for by the buyer in installments over a period of time. It does not include the amount, if any, charged for insurance premiums, delinquency charges, attorneys fees, court costs, or official fees.
KRS 371.210(9) (emphasis added).
In Ware’s contract, the time price differential was “denominated or expressed” as a finance charge of $1,182.65. This sum was calculated by the dealer who sold Ware the vehicle in accordance with KRS 190.110; the dealer applied the maximum permissible finance charge. That statute states in part:
The finance charge allowed by this subsection may be precomputed by using an add-on method. If the finance charge in a retail installment sale is precomputed it shall not exceed the following rates: Class 1. Any new. or used motor vehicle designated by the manufacturer by a year model not earlier than the year in which the sale is made — eleven dollars ($11) per one hundred dollars ($100) of principal balance, as determined pursuant to KRS 190.100(2), per year of the contract.
Class 2. Any new motor vehicle not in class 1 and any used motor vehicle designated by the manufacturer by a year model of one (1) or two (2) years prior to the year in which the sale is made— thirteen dollars ($13) per one hundred dollars ($100) of principal balance, as determined pursuant to KRS 190.100(2), per year of the contract.
Class 3. All other motor vehicles not in class 1 or 2 — fifteen dollars ($15) per one hundred dollars ($100) of principal balance, as determined pursuant to KRS 190.100(2), per year of the contract.
KRS 190.110(1). Because Ware’s vehicle was not new and was manufactured more than two (2) years prior to the sale, the vehicle was categorized as a Class 3 vehicle. This allowed the time price differential, denominated as a finance charge, to “be precomputed by using an add-on method [at] fifteen dollars ($15) per one hundred dollars ($100) of principal balance ... per year of the contract[.]” Id. In conformity with this law, the Retail Installment Contract set the time price differential, stated in the contract as the “Annual Percentage Rate,” at “15%.”
Although KRS 190.110(4) authorizes that, “[a]lternatively [to the time price differential method of calculating the finance charge], the seller may, at his option, compute the finance charge ... on a simple *106interest basis,” Ware’s seller did not so elect. This contract bore no interest— only a time price differential.
There are only two circumstances under which a court may deviate from the statutory post-judgment interest rate of 12% expressed in KRS 360.040. One circumstance is where the claim- is for unliquidat-ed damages. The claim here was for liquidated damages; therefore, this is not a basis for awarding other than 12% post-judgment interest. The second circumstance is where a party has agreed to “accruing interest on a written obligation [in which case] it shall bear interest in accordance with the instrument reporting such accruals....” KRS 360.040. Ware did not agree to accruing interest, in the Retail Installment Contract; she did not sign an instrument reporting the accrual of interest at any rate. She agreed only to purchase a vehicle at a price determined by adding (1) the cost of the vehicle-if she had paid cash and (2) the time price differential.
CONCLUSION
For the foregoing reasons, we affirm the Franklin Circuit Court’s Opinion and Order affirming the Franklin District Court’s March 29, 2013 default judgment.
ALL CONCUR.
. The Court added to this quotation the Annual Percentage Rate from the front page of the contract for clarification.
. It is possible this copy was sized smaller to fit an 8½ by 11 inch page.
.Typically, "[i]t is not the job of the appellate courts to scour the record in support of an appellant[’s] or cross-appellant’s argument.’.' Dennis v. Fulkerson, 343 S.W.3d 633, 637 (Ky.App.2011).
. It appears that appellant’s counsel engaged in the not-uncommon practice of creating an appendix from counsel’s file and citing that appendix in the body of the brief. Such practice does not satisfy the requirements of CR 76.12(4)(c)(iv) and (v).
. The Appellant’s brief lacks pagination. This quote is from the twelfth page of Appellant’s brief. Although general reference is earlier made to the fact that Appellee signed the retail installment contract, this line is the first time the brief identifies the legal basis of Appellant’s claim that. Appellee obligated herself to pay interest on the price of the vehicle she purchased.
.This phrase quoted from the front of the retail installment contract in the highlighted section identifying the "Annual Percentage Rate.”
. United States Code.
. Based on the judgment amount of $3,929.76. •oo | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284472/ | ORDER
Per Curiam:
Mitchell Moore appeals the motion court’s decision to deny his Rule 24.035 motion for post-conviction relief. We affirm. Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284473/ | ORDER
PER CURIAM
BNSF Railway Company appeals from the trial court’s judgment after a jury entered a unanimous verdict in favor of Michael Bolen on his petition filed under the Federal Employers’ Liability Act. 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/5284477/ | ORDER
PER CURIAM
Juanita McKee (“Plaintiff’) appeals from the trial court’s judgment, following a jury trial, entered in favor of Stanley Convergent Security Solutions (“Defendant”) and against Plaintiff. Plaintiff submitted her personal injury case on a breach of contract theory, alleging she suffered injuries in a November 6, 2006 house fire when an alarm system she purchased from Respondent failed to sound an alarm.
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/5284479/ | PER CURIAM.
ORDER
Sharon Brooks (“Wife”) appeals the judgment entered by the trial court dissolving her marriage to Robert Brooks (“Husband”). Wife claims the trial court erred in: (1) finding the property located *210at 2720 Hallon Street in Idaho was separate and not marital property; and (2) awarding the Ml amount of equity in 2720 Hallon Street to Husband.
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/5284480/ | ORDER
PER CURIAM.
Ronald Mills appeals his conviction and sentence for two counts of possession of child pornography.. We have reviewed the briefs of the parties and the record' on appeal and conclude that no reversible error occurred. An extended opinion would have no jurisprudential purpose. We have, however, provided a memorandum setting forth the reasons for our decision to the parties for their use only.- We affirm the judgment pursuant to Missouri Rule of Criminal Procedure 30.25(b) (2015). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284481/ | ORDER
PER CURIAM:
R.K. appeals the judgment of the juvenile court finding that he committed the delinquent act of child molestation in the first degree in violation of section 566.067, RSMo Cum. - Supp. 2006. He contends that juvenile court erred in finding sufficient evidence to establish beyond a reasonable doubt that he committed the alleged act for the purpose of arousing or gratifying his sexual desire. Because a published opinion would have no prece-dential value, a memorandum has been provided to the parties.
The judgment is affirmed. Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284482/ | OPINION
YVONNE T. RODRIGUEZ, Justice
In this case, we must decide whether a group of mineral right owners can obtain damages for alleged breaches of a lease’s assignment and operation clauses when the lessee, without notice, agreed to “farm out” part of the leasehold to a subcontractor in exchange for drilling services. No party disputes that the subcontractor performed the drilling activities necessary to perpetuate the lease; the only issue here is whether the lease expired or allowed for termination when the subcontractor tried to step into the lessee’s shoes as drilling operator. We hold it did not. We vacate the portion of the trial judgment granting an award to a non-party, reverse the remainder of the trial court’s judgment, and render a take-nothing judgment against the lessors.
BACKGROUND
Factual History
The Bass Lease
The lessors in this case are BMT O & G TX, L.P.; Goliad O & G TX, L.P.; WD O & G TX, L.P.; Keystone O & G TX, L.P.; and Thru Line O & G TX, L.P. (collectively Lessors). It is undisputed that on June 1, 2008, the Lessors and Appellant Chesapeake Exploration, L.L.C. (Chesapeake) signed an oil and gas lease covering tracts of land in Reeves County, Texas, including the Disputed Tract (the Bass Lease). The Bass Lease’s habendum clause in Paragraph 2 sets out the term length of the lease and what Chesapeake had to do to perpetuate the lease. Specifically:
Subject to the other provisions herein contained, this Lease shall remain in force for three (3) years from the Effective Date hereof (hereinafter referred to as the ‘Primary Term’) and as long thereafter as drilling operations are being conducted hereunder, as hereinafter provided, or this Lease is being maintained by other provisions hereof or oil and gas, or either one of them, are being produced in paying quantities hereunder. ...
*345Under Paragraph 6, Chesapeake was “deemed to be engaged in continuous drilling operations if the interval between the deemed date of completion of one well and the commencement of actual drilling operations ... for the next succeeding well is - not more than one-hundred and eighty (180) consecutive days.” While Paragraph 26 states that the lease creates covenants that run with the land and bind each party’s “respective successors,. legal representatives, heirs, assigns, lessees, and sublessees[,]” Paragraph 9 also creates limitations on the parties’ ability to assign their rights under the lease (the Assignment Clause):
9. Assignment. _ Any assignment, sale or transfer of, or agreement to sell, assign or transfer any interest or interests of Lessee. in or under this Lease, may not be made by Lessee, other than to Assignee’s [sic]1 subsidiaries, affiliates, internal partners, AMI partners and Petro-Hunt ,L,L.C., without the prior written consent of Lessor, which consent shall not be unreasonably withheld and any assignment, sale or transfer so made shall expressly be subject to all the terms and provisions of this Lease, and the assignee expressly agrees to be bound by the terms hereof in writing. Lessee shall furnish Assign- or [sic] a fully-executed copy of any such sale, assignment or transfer.
Paragraph 10 sets out the lease’s operational requirements (the Operator Clause):
10. Operator. Lessee shall be designated Operator as to all operations of every nature conducted on the Leased Premises including but in no way limited to, the operation of all wells on this Lease and any approved geophysical, seismic, or other operations conducted on the Leased Premises. Lessee shall remain primarily liable and obligated to Lessor for the fulfillment of all covenants, both expressed and implied, and all legal.and contractual obligations imposed upon Lessee as designated Operator hereunder. Operator must at all times adhere to all Federal, State and Local laws and regulations and maintain good partnership or corporate standing. Operator must maintain the -property free and clear of liens at all times and further must act as a prudent Operator in accordance with the provisions of this Lease and standard industry practices. Adherence to the provisions of this paragraph are material to the granting of this Lease and any violation or failure to perform the reqüirements 'of this provision' shall be considered a material breach. Any assignments to third parties of rights hereunder shall specifically notify and' set forth the requirements of this provision.
Finally, Paragraph 19 sets out both the effect of -any breach by Lessee and the lease’s notice-and-cure provisions (the Default Clause):
19. Default. The breech [sic] or default by Lessee of any of the obligations arising hereunder shall not work á forfeiture or termination ’of this lease nor cause a termination or1 reversion óf the estate created hereby nor be grounds for cancellation hereof in whole or in part until Lessor has provided written notice to Lessee that Lessor considers Lessee to be in breech [sic] or default and Lessee fails to reasonably curé or remedy such default' within sixty (60) days of Lessee’s receipt of such notice.
*346
Chesapeake Farms Out Drilling Operations to Clayton Williams Energy
The Bass Lease’s primary term began June 1, 2008 and was slated to end three years later ón June 1, 2011 per the haben-dum clause. At that time, the lease would terminate automatically unless Chesapeake had begun- drilling operations. As the Bass Lease’s primary term drew to a close, Chesapeake and co-Appellant Clayton Williams Energy, Inc. (Clayton Williams Energy) executed a “farmout agreement” on March 1, 2011 (the Farm-out Agreement).2 The terms of .the Farm out Agreement specified that Chesapeake and Clayton Williams Energy were “AMI partners.”3 Under the Farmout Agreement, Qlayton Williams Energy agreed to drill at least twenty carried wells on various Chesapeake leaseholds, including the Bass Lease, at no cost to Chesapeake by March 1, 2012. In exchange, Clayton Williams Energy would receive a 75 percent interest in 640 acres from Chesapeake’s leaseholds upon completion. If Clayton Williams Energy failed to drill the required wells,. it could face up to $15 million in penalties. Neither Chesapeake nor Clayton Williams Energy informed the Lessors about the Farmout Agreement.
At trial, the Lessors stipulated that “Clayton Williams, as operator, commenced the drilling of the 21 well [located on Bass Lease land] before the expiration of the primary term and maintained continuous operations as defined in the lease until the time of our notice on October 24th[.]”
Lessors’ Discovery of the Farmout Agreement, Petrohawk’s Offer, and Aftermath
While Appellants were entering into an agreement to drill the Bass Lease, the Lessors were also apparently entertaining offers on the Bass Lease in anticipation of its primary term expiring -without drilling operations. The Lessors were unaware of Appellants’ partnership or the Farmout Agreement.
' On July 29, 2011, nearly two months after the Bass Lease’s primary term ended, the Lessors sought to obtain a signed release of the Bass Lease from Chesapeake. Chesapeake emailed the Lessors back on August 15, 2011, stating that it believéd the Bass Lease was being held open by the drilling activities undertaken by Clayton Williams' Enérgy under the Farmout Agreement.
On October 24, 2011, the Lessors notified Chesapeake and Clayton Williams Energy by letter that Chesapeake’s farmout breached the terms of the Bass Lease. They also asserted that Chesapeake defaulted on the lease because Chesapeake was the only authorized operator, and that *347since no authorized operator had begun drilling prior to the expiration of the primary, term, the leasehold reverted back to the Lessors. Clayton Williams Energy, on behalf of itself and Chesapeake, responded on October 28, 2011. Appellants denied breaching the terms of Bass Lease, since the lease allowed Chesapeake to assign its rights to any AMI partners without the Lessors’ notice or prior consent. They also denied that the Operator' Clause prohibited Chesapeake from seeking out Clayton Williams Energy’s assistance, but maintained that if it constituted a breach, they could “undo” the breach by refiling Texas Railroad Commission paperwork naming Chesapeake as the well operator.
The cure period set by the Bass Lease’s Default Clause expired on December 23, 2011, sixty days after the Lessors provided written notice to Appellants on October 24. Clayton Williams Energy ceased drilling operations on October 24, following receipt of the Lessor’s letter. In a letter from Clayton Williams Energy to Chesapeake dated December 21, 2011, Clayton William’s counsel stated that Chesapeake and Clayton Williams Energy had agreed that Clayton Williams Energy would resign as operator, and that Chesapeake would take administrative steps to have itself named as operator with the Texas Railroad Commission by filing a P-4 Form, but that “formal recognition of the RRC Lease ID number” was a prerequisite to filing the P-4, and it had “just received the RRC ID number.” Clayton Williams Energy also apparently forwarded a copy of the P-4 to Chesapeake for its review and approval. Chesapeake’s agent purportedly signed the form on December 21. However, a stamp on the form indicates the Railroad Commission received the P-4 Form on January 18, 2012. The Railroad Commission issued an order granting the change of operators on January 26, 2012. The effective date of the change, per the order, was December 21, 2011.
The Lessors alleged in their amended petition that on January Í7, 2012, Petro-hawk Properties, L.P. offered to lease 4,022 mineral acres previously leased to Chesapeake under the Bass Lease .for a $3,000 per .acre bonus. The Lessors further alleged that they would have accepted the offer, but Chesapeake and Clayton Williams Energy’s actions- prevented them from entering into the lease with Petro-hawk.
PROCEDURAL HISTORY
In February 2012, the Lessors filed suit against Appellants. In their First Amended Petition, Lessors brought claims for trespass to try title, declaratory judgment, breach of contract as to Chesapeake, and attorneys’ fees. The trial court divided the case into two phases: the first purportedly dealt with liability, and the second with damages.4 ...
On January 29, 2013, the trial court signed the Lessors’ Proposed Findings of Fact and Conclusions • of Law. In those findings, the trial court held that Clayton Williams Energy was the actual designated operator as between Chesapeake and Clayton Williams Energy, and that Clayton Williams Energy performed drilling operations without authorization under the lease. As such, Clayton Williams Energy could not perpetuate the lease on Chesapeake’s behalf. Further, because Chesapeake never conducted drilling operations itself prior to the expiration of the primary term; the mineral estate-terminated and reverted back to the Lessors.
*348At the beginning of Phase II, Lessors suppleménted their petition to include claims for common law and Kishi5 trespass to the mineral estate, common law failure to release a lease, and slander of title.6 They also supplemented their trespass to try title and contract claims to include special damages stemming from the loss of the Petr'ohawk Lease; loss of hydrocarbons; loss of value to the mineral estate from June 1, 2011, until the date the trial court issued its Phase I Findings' óf Fact and Conclusions of Law on January 29, 2013; arid damages to the wellbore, subsurface, and reservoir. Following a trial to the bench, the trial court entered its Phase II Findings of Fact and Conclusions of Law on December 19, 2013. The trial court found inter alia that Appellants’ actions caused Lessors to lose potential income from the Petrohawk deal and deprived them of income from the mineral estate from Appellants’ unlawful holdover. The trial court assessed $2,863,476.00 'in damages and $780,000.00 in attorneys’ fees accrued through trial. On January 17, 2014, the trial court'entered a final judgment that incorporated its Phase I and Phase II findings of fact and conclusions of law by reference. Chesapeake and Clayton Williams Energy timely appealed.
DISCUSSION
Chesapeake, by four issues, and Clayton Williams Energy, by five issues, contend that the trial court erred in assessing damages against them because they never breached the Bass Lease and because Chesapeake’s leasehold never terminated prior to the Lessor’s repudiation notice. We agree.
Standard of Review
Thé threshold question in our review of a contract is whether the instrument is ambiguous or not. J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 230 (Tex.2003). Ambiguity affects both the standard and scope of appellate review. We review unambiguous contacts and mineral deeds de novo, limiting our scope of review to the “four comers” of the document and excluding any extrinsic evidence from consideration. Victory Energy Corp. v. Oz Gas Corp., 461 S.W.3d 159, 172 (Tex.App.-El Paso 2014, pet. denied). An ambiguous contract opens the door to parol evidence that sheds light on the parties’ true intent. Id. Consequently, we review interpretation of ambiguous contracts as a mixed question of fact and law. Id.
To determine if a contract is ambiguous, we look only to its text and do not consult parol. J.M. Davidson, Inc., 128 S.W.3d at 230. “[I]f a written instrument remains reasonably susceptible to more than one meaning after the established rales of interpretation have been applied, then the instrument is ambiguous[.]” Gore Oil Co. v. Roosth, 158 S.W.3d 596, 599 (Tex.App.-Eastland 2005, no pet.). If there is only one reasonable reading of a contract, the parties’ intent is a pure question of law and we are bound to interpret the terms of the contract as written and not how the parties would like them to have been written. Hitzelberger v. Samedan Oil Corp., 948 S.W.2d 497, 504 (Tex.App.-Waco 1997, pet. denied).
We review the trial court’s fact-findings under the legal and factual suffi*349ciency standards. We sustain a legal sufficiency challenge when the trial court’s decision is unsupportable as a matter of law because (1) there is “a complete absence of evidence of a vital fact,” (2) “the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact,” (3) there is “no more than a mere scintilla” of evidence proving a vital fact; or (4) the evidence conclusively establishes the opposite proposition of a plaintiffs proffered vital fact. City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex.2005). We view evidence in the light most favorable to the ruling on a legal sufficiency challenge, indulging “every reasonable inference” in the trial court’s favor. El Paso Indep. Sch. Dist. v. Pabon, 214 S.W.3d 37, 41 (Tex.App.-El Paso 2006, no pet.). “Any evidence of probative force supporting a finding requires us to uphold” the trial court’s ruling. ACS Investors, Inc. v. McLaughlin, 943 S.W.2d 426, 430 (Tex.1997). Where an outcome-determinative interpretation of evidence falls within the zone of reasonable disagreement, we are without jurisdiction to disturb the verdict or decision for legal sufficiency. Khorshid, Inc. v. Christian, 257 S.W.3d 748, 758 (Tex.App.-Dallas 2008, no pet.).
In a factual sufficiency challenge, we review the entire record in a neutral light and set aside the trial court’s ruling only where it rests on evidence so weak or the finding is so contrary to the great weight and preponderance of the evidence that it shocks the conscience or is manifestly unjust. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex.2001); El Paso Healthcare Sys, Ltd. v. Carmona, 160 S.W.3d 267, 274 (Tex.App.-El Paso 2005, pet. granted, judgm’t vacated w.r.m.). While the overlap between legal and factual sufficiency is substantial, a legally sufficient verdict may still be overturned as factually insufficient. See In re Commitment of Myers, 350 S.W.3d 122, 130 (Tex.App.-Beaumont 2011, pet. denied); In re Estate of Russell, 311 S.W.3d 528, 532 (Tex.App.-El Paso 2009, no pet.). Where an appellate court reverses a verdict or judgment on factual insufficiency grounds, it “must detail the evidence relevant to the issue and state in what regard the contrary evidence greatly outweighs the evidence in support of the verdict.” Francis, 46 S,W.3d at 242 [Internal quotation marks omitted].
Analysis
Although the Lessors and Appellants- raise numerous arguments and issues, the ultimate disposition of this appeal rests on one question: did the lease allow Chesapeake to assign its drilling rights to Clayton Williams Energy without first asking the Lessors’ permission? If so, all of the Lessors’ property and contract claims necessarily fail. We find that the lease unambiguously gave Chesapeake that right.
1. Lease Interpretation
As a threshold matter, we must construe the Bass Lease. At issue here is the interaction of two separate provisions against the backdrop of the entire lease: the Assignment Clause and the Operator Clause.
A. The Assignment Clause
We first turn our attention to the Assignment Clause. The parties fundamentally agree that the Assignment Clause gives Chesapeake the right to assign, without notice, rights to Chesapeake’s “AMI partners.” The parties also generally agree what an AMI partner is understood to be, with , both pointing to the following industry definition of “area of mutual interest agreement” from Westland Oil Dev. *350Corp. v. Gulf Oil Corp., 637 S.W.2d 903, 906 (Tex.1982):
In an area of mutual interest agreement, the parties attempt to describe a geographic area within which they agree to share certain additional leases acquired by any of them in the future. This necessarily contemplates that oil and gas leasehold interests will be conveyed.
Id. at 905.
Instead, the Lessors and Appellants' dis-' agree over which types of AMI partners' were eligible to receive assignments under the Bass Lease. Lessors argue that the purpose of the AMI partners exception to assignment was “to free a lessee who is subject to an existing AMI obligation that covers the lands within the lease being negotiated from being forced to elect between breaching the consent requirement for assigning the lease or breaching the AMI’s assignment obligation.” [Emphasis omitted]. In other words, the Lessors contend that the language shows the par-: ties intended to restrict the AMI partners exception to only AMI partnerships existing at the time the Lessors and Chesapeake consummated the lease in order to let Chesapeake transfer interests to third parties and meet any obligations it might have without violating its non-assignment agreement with the Lessors, We disagree.
Nothing in the plain language of the Assignment Clause suggests there is a temporal restriction on its scope that would freeze the parties in time and limit their ability to convey without notice their interests not only just among a certain class of trusted entities, but a class of trusted entities in existence at the time of the contract. That reading stretches the meaning of the words in the Assignment Clause too far. The Lessors point to witness testimony explaining that they understood the AMI partners language to impose such a restraint. But the Assignment Clause is not ambiguous, nor do the Lessors argue that the definition of “AMI partner” is fundamentally ambiguous; thus, we cannot consult parol evidence- to vary its terms or write new clauses into the parties’ contract. Victory Energy Co., 461 S.W.3d at 172. Under the plain terms of the lease, Chesapeake -Was free to convey whatever rights and obligations it wanted to its “AMI partners” without notifying the Lessors, regardless of whether those AMI partnerships "existed at the lease’s inception.
The Lessors urge us not to take this reading because it would- render the Assignment Clause meaningless and would lead to absurd results. But the fact that Chesapeake could create an AMI partnership after signing the Bass Lease and then transfer its interests to the AMI partner does not render the notice provisions in the Assignment Clause meaningless. Chesapeake would still have to provide notice to the Lessors if it intended to transfer interests to a non-trusted third party — and the- Lessors would still have veto power over that transfer if it was unreasonable. We also do not see how failing to read,an implicit provision into the Assignments Clause would lead to the absurd result of letting. Chesapeake circumvent notice provisions through AMI partnerships. Chesapeake could easily accomplish the same result by forming new subsidiaries or obtaining new affiliates, and the Lessors do not argue the temporal restriction applies to the entire class of trusted entities in the Assignments Clause, only to AMI partners because that was their subjective intent. As we said before, this stretches the language of the Assignments Clause too far and asks us to write in new provisions to the lease. We will not do so. ■
*351Finally, the Lessors argue that even if Chesapeake could assign its interests to AMI partners that came into existence after the Bass Lease was signed, Clayton Williams Energy cannot be Chesapeake’s AMI partner because it is a farmee. Under these facts, this is a distinction without a difference. The Farmout Agreement arose within the context of a larger AMI agreement between Appellants. As such, Clayton Williams Energy is both an AMI partner and a farmee. The Lessors 'can point to no provision in the Bass Lease that prevents an AMI partner from also being a farmee, and they cite no legal authority for their contention that an AMI partner cannot also be a farmee as a matter . of law. As such, the Assignments Clause embraces Clayton Williams Energy as Chesapeake’s AMI partner and allows Chesapeake to transfer any rights it may have to Clayton Williams Energy without prior approval from the Lessors.
B. The Operator Clause-
We next review the Operator Clause. The Lessors maintain that, notwithstanding any abilities Chesapeake may have had under' the Assignment Clause,' the Bass Lease specifically required Chesapeake to be the “designated Operator” of the leasehold. Under their reading, this phrase meant that Chesapeake had to conduct all drilling operations personally. Because Chesapeake assigned its drilling rights to Glayton Williams Energy in the Farmout Agreement and named- Clayton Williams Energy as operator for purposes of the Farmout Agreement and before' the Texas Railroad Commission, Chesapeake breached the Bass Lease’s Operator Clause. Further, because Clayton Williams Energy never received a valid assignment of drilling rights from Chesapeake, and because Clayton Williams Energy was a stranger to the Bass Lease, its drilling operations failed to perpetuate the Bass Lease, meaning that-Chesapeake’s fee simple determinable mineral estate terminated automatically and reverted back to the Lessors at the end of'the primary term. We disagree." ■- ’
First, the Lessor’s contention that the Operator Clause restrains Chesapeake from alienating its operational rights is belied by the Operator Clause' itself, which states: “Any assignments, to third parties of rights hereunder shall specifically notify and set forth the requirements of this provision.” This sentence indicates that operational rights can be assigned to third parties. The Lessors’ proposed reading renders this sentence totally nugatory. We must avoid reading textual provisions as .meaningless, if possible. Second, the Lessors’ argument that Chesapeake was required to perform drilling operations itself is also-unreasonable in light of other lease provisions. References to the Lessee .indemnifying the .Lessor against wrongful death claims arising from “Lessee’s contractors and subcontractors” in Paragraph 13 (the Indemnity Clause) and the Binding Effect Clause in Paragraph 26 that'states all terms “shall be binding upon and inure to the benefit of the Lessee, and Lessor, and each of their respective ... assigns, lessees, and sublesses [,] ” seem to indicate that the parties contemplated that Chesapeake could and would assign its rights, including operational rights. [Emphasis added]. See Jackson v. Pure Oil Operation Co., 217 S.W. 959, 961 (Tex.Civ.App.-Fort Worth 1919, writ dism’d)(lease provisions indicating that covenants and agreement bind “heirs, legal representatives and assigns” demonstrate parties intent to make lease interests eonveyable).
More to the point, the designated operator language’s position within the Bass Lease sheds light on the parties’ intent. The Lessors appears to suggest *352that the phrase “designated Operator” meant not only that Chesapeake had to personally conduct drilling operations, but also be the designated operator with the Texas Railroad Commission as evidenced by a P-4 Form. However, when interpreting a legal document, we do not cherry-pick words and read them in a vacuum; we read them in their context within the document. Additionally, although the Lessors assert that “Operator” has a “well-defined meaning in Texas” under various “Texas statutes, Commission regulations, applicable case law, treatises, and industry usage[,]” we note that in the context of interpreting this lease, all those things constitute parol evidence that we may consult only where the lease language at issue is ambiguous. See Dynegy Midstream Srvs., L.P., v. Apache Corp. Partnership, 294 S.W.3d 164, 169-70 (Tex.2009)(expert testimony on “standard practice in the industry” constitutes parol that could not vary definition of unambiguous contract term).
Language is only ambiguous in a legal document where it can be reasonably read in context two different ways. While the phrase “designated Operator” could mean the party who appears as operator on a P-4 Form with the Texas Railroad Commission, it is clear from reading the phrase in context that when the parties at bar used the phrase “designated Operator” in the Bass Lease, they intended to set up an indemnity-type arrangement between the Lessors and Chesapeake. The Operator Clause established that the Lessee, i.e. Chesapeake, would be the “designated Operator.” The Operator Clause in the next sentence states: “Lessee shall remain primarily liable and obligated to Lessor for the fulfillment of all covenants, both expressed and implied, and all legal and contractual obligations imposed upon Lessee as designated Operator hereunder.” The Operator Clause further states that “Operator must at all times adhere to all Federal, State and Local laws and regulations and maintain-good partnership or corporate standing. Operator must maintain the property free and clear of liens at all times and further must act as a prudent Operator in accordance with the provisions of this Lease and standard industry practices.” We believe that the unambiguous reading of “designated Operator” as used in the Bass Lease was that Chesapeake agreed to' oversee and remain primarily liable for any operations, and in the event something went wrong with the Bass Lease, the Lessor’s recourse would be through Chesapeake.
The Lessors maintain that Chesapeake’s designation of Clayton Williams Energy as “operator” in the Farmout Agreement invalidated the Bass Lease, which named Chesapeake as operator, because the two agreements irreconcilably conflict. Litigants raised the same argument in IMCO Oil & Gas Co. v. Mitchell Energy Corp., 911 S.W.2d 916 (Tex.App.-Fort Worth 1995, no writ). In IMCO, three oil companies — Mobil, Texaco, and Getty — all owned the mineral interests in an area known as the Lassater Field. Under a 1945 Operating Agreement, the three companies agreed that if they wanted to convey an interest in the Lassater Field, they would grant the other companies the right of first refusal. The 1945 Operating Agreement also designated. Mobil as “operator” of the Lassater Field. The three companies then executed farmouts with Westland. West-land was able to earn valid mineral rights interests from Mobil and Getty. Under the Mobil farmout, Westland executed a 1972 Operating Agreement with Mobil that designated Westland as “operator.” Later, Westland tried to sell IMCO its interest in the Lassater Field, but Mobil’s successor, which still retained rights in the Lassater Field, exercised its right of first *353refusal and purchased the land -instead. IMCO then sued Mobil’s successor for tor-tious interference with a contract. IMCO Oil & Gas Co., 911 S.W.2d at 917-18.
One of the arguments IMCO raised was that the 1972 Operating Agreement - was ineffective because it conflicted with the 1945 Operating Agreement, since the 1945 Operating Agreement named Mobil as the Lassater Field’s operator but the 1972 Operating Agreement named Westland as the Lassater Field’s operator. Id. .at 919-20. The Fort Worth Court of Appeals found this argument unpersuasive, stating that the two agreements .could be harmonized: the 1945 Operating Agreement designated Mobil as operator as between the original landowners, and the 1972 Operating Agreement designated Westland as operator for the purposes of Mobil’s subcontract. Id. Although this case differs procedurally from IMCO, our’ sister court’s interpretation of the two operating agreements is instructive and bolsters our reading of the Bass Lease and the Farm-out Agreement as non-conflicting.
Finally, the Lessors contend that even if Chesapeake could have assigned its lease rights to Clayton Williams Energy, the Farmout Agreement here did not perpetuate the lease because Clayton Williams Energy never actually received any ownership rights in the leasehold. Instead, transfer of title was contingent on fulfillment of the Agreement, which indisputably never occurred. Since Clayton Williams Energy never received title, it could not as a matter of law have done anything that have any legal effect on the lease. We again disagree.
The Lessors here conflate ownership rights with drilling rights. “The owner of a mineral estate possesses a bundle of interests which can be separated, conveyed, or reserved upon any terms as the mineral owner deems proper.” Marrs & Smith P’ship v. D.K. Boyd Oil & Gas Co., Inc., 223 S.W.3d 1, 14 (Tex.App.-El Paso 2005, pet. denied). “These mineral rights consist of the rights to participate in bonuses, rentals, and royalties; the exclusive right to enter the premises for the purpose of drilling; and the right to execute oil, gas and mineral leases.” Id. Here, the Lessors conveyed a leasehold interest to Chesapeake in the Bass Lease, which included the rights to drill. Chesapeake, in turn, could convey its own rights to other parties in whatever combination it wished, provided that those conveyances did not contravene the terms of the lease. Cf. ExxonMobil Corp. v. Valence Operating Co., 174 S.W.3d 303, 314 (Tex.App.-Houston [1st Dist.] 2005, pet. denied)(lessee’s farmout of portions of one lease to a third party violated maintenance-of-interest provision which specifically stated that a transfer- was valid only where lessee conveyed equal undivided interest in all leases in a particular area).
The Lessors are correct that under' the Farmout Agreement, Clayton Williams Energy only obtained a contingent partial ownership interest in the Bass Lease mineral estate. But that -is irrelevant to the question of whether Clayton Williams Energy received valid, fully operative drilling rights, which can be held separately from ownership rights. Marrs & Smith P’ship, 223 S.W.3d at 14. Here, as we previóüsly concluded, Clayton Williams Energy did receive drilling rights. And it is axiomatic that when an assignee receives- a transfer -of rights under a contract, the assignee steps into the assignor’s shoes for purposes of that contract. Clayton Williams Energy properly fulfilled Chesapeake’s lease obligations. See Frontier Communications Northwest, Inc. v. D.R. Horton, Inc., No. 02-1300037-CV, 2014 WL 7473764, at *1 (Tex.*354App.-Fort Worth Dec. 31, 2014, no pet.)(mem.op.).
In sum, Chesapeake validly assigned its drilling rights to Clayton Williams Energy, its AMI partner, under the aegis of the Bass Lease’s Assignment Clause. The Operator Clause imposed no substantive limitation on Chesapeake’s ability to assign operational rights, since that clause’s purpose was only to allocate liability between the original parties 'to the Bass Lease and provide the Lessors with a way to obtain recourse from Chesapeake — the “designated Operator” — in the event something went wrong. As such, Chesapeake never breached the Bass Lease’s assignment restrictions. Furthermore, Clayton Williams Energy, as Chesapeake’s drilling rights as-signee, validly stepped into Chesapeake’s shoes for the limited purpose of fulfilling Chesapeake’s obligations under-the. Bass Lease. Because the' Lessors at trial stipulated that Clayton Williams Energy1 s drilling activities would have perpetuated the Bass Lease had Chesapeake performed them, and because Clayton Williams ^Energy validly acted on Chesapeake’s behalf as its assignee, Clayton Williams Energy perpetuated the lease and Chesapeake’s fee simple determinable mineral estate continued to be in effect through the Lessors’ repudiation of the lease.
2. The Lessors’ Claims In Light of Our Lease Construction
Having construed the Bass Lease, applied undisputed facts, and reached the conclusion that Clayton Williams Energy fulfilled Chesapeake’s lease obligations and perpetuated the. mineral estate created thereunder, we review the legal sufficiency of each of the Lessor’s causes of action and find them to be untenable.
First, the Lessors brought a cause for trespass to try title and mineral trespass. “[A] trespass to try title action is the exclusive method to-adjudicate rival claims of title to real property.” Vernon v. Perrien, 390 S.W.3d 47, 54 (Tex.App.-El Paso 2012, pet. denied). “The prevailing party’s remedy is title to, and possession of, the real property interest at issue.” Id. “In a trespass-to-try-title action, the plaintiff is required to prove its title by proving (1) a regular chain of title of conveyances from the sovereign to the plaintiff; (2) a superior title to that of the defendant out of a common source; (3) title by limitations; or (4) prior ■ possession which has not been abandoned.” Id. at 54-55. Here, Chesapeake had title to the mineral rights by virtue of the unexpired lease perpetuated by Clayton Williams Energy. The Lessors’ cause for mineral trespass must also fail, since Chesapeake held a valid leasehold in the mineral estate, and Clayton Williams Energy had pérmission to drill the leasehold as Chesapeake’s limited purpose assignee.
Likewise, Chesapeake and Clayton Williams ’ Energy cannot be held liable for slander of title. “Slander of title is defined as a false and malicious statement made in disparagement of a person’s title to property which causes him special damage.” Hill v. Heritage Res., Inc., 964 S.W.2d 89, 109 (Tex.App.-El Paso 1997, pet. denied). “The elements are: (1) the uttering and publishing of the disparaging words; (2) that they were false; (3) that they were malicious; (4) that the plaintiff sustained special damages thereby; and (5) that the. plaintiff possessed an estate or interest in the property disparaged.” Id. at 110. Here, neither Chesapeake nor Clayton Williams Energy ever conveyed any false information to anyone — Chesapeake did, in fact, hold-the mineral rights to that land, and Clayton Williams Energy drilled that land pursuant to a valid' assignment.
*355Lessors’ breach of contract claims and the declaratory judgment are also unsupportable because they are based on an incorrect reading of the contract. The Lessors’ arguments before the trial and this Court were that the contract did not fundamentally permit assignment of operational rights, and the trial court agreed. However, our de novo reading indicates that the contract did permit Chesapeake to undertake the non-noticed assignment at issue here, and since the Lessors did not raise any arguments ábout violation of ancillary covenants related to assignment, wé find no breach occurred.
Finally, the Lessors’ attorneys’ fees award, which was derivative of their declaratory judgment action, must fail because the underlying declaratory judgment was incorrect. and the Lessors are not actually the “prevailing parties” as provided in Paragraph 22 of the Bass Lease and Tex.Civ.PRAC. & Rem.Code Ann. 38.001 (West 2015). In short, the Lessors were not entitled to damages under any theory presented because none of their claims was meritorious.
3. Judgment in Favor of Non-Party
Appellants also , note that the trial court awarded title and injunctive relief to a non-party: CTV O & G TX, L.P. Appellants assert that the proper remedy in this case is to vacate the award as to that non-party. We agree. “A trial court lacks jurisdiction to enter judgment for a non-litigant; to do so' constitutes fundar mental error on' its part if the error is apparent from the face of the record.” Chesapeake Operating, Inc. v. Denson, 201 S.W.3d 369, 373 (Tex.App.-Amarillo 2006, pet. denied). Reforming the trial court judgment with respect to the non-litigant is the appropriate remedy in situations such as this. Id.
CONCLUSION
Appellant Chesapeake’s four issues and Appellant Clayton Williams Energy’s five-issues are.sustained. We vacate that portion of the trial court’s judgment awarding title and injunctive relief to non-litigant CTV O & G TX, L.P. We reverse the remainder of the trial court’s judgment, and render judgment that the Appellees take nothing against the Appellants.
. Both parties agree that this was a typographical error, and that this provision should have actually said "Lessee's” and not "Assignee’s.” The same applies to "Assign- or,” which apparently • should say "Lessor.”
. “A farmout is a common form of agreement between operators, in which a lease owner that does not want to drill assigns the lease, or some portion of it, to another operator that does.” Young Refining Corp. v. Pennzoil Co., 46 S.W,3d 380, 389 (Tex.App.-Houston [1st Dist.] 2001, pet. denied). “The primary characteristic of the farmout is the obligation of the assignee to drill one or more wells on the •' acreage as a prerequisite to completion of the transfer.” Id. [Citation and emphasis omitted]. In essence, an oil company will reward another operator who fulfills its lease obligations with a sublease or rights assignment, often as a way to fulfill its contractual with the landowner while sharing financial risks of drilling operations and increasing its ability to profit off of petroleum products it may not be equipped to market by including a third party in the deal. See John S. Lowe, Analyzing Oil and Gas Farmout Agreements, 41 Sw.L.J. 759, 778-81 (1987).
. Both parties agree that "AMI” stands for "area of mutual interest." The significance of this term is addressed in the Discussion portion of this opinion below.
. We note, as explained further below, that Lessors supplemented their petition to in-elude additional substantive claims in Phase II.
. Humble Oil & Ref. Co. v. Kishi, 276 S.W. 190 (Tex.Comm’n App.1925, judgm’t affirmed), judgm’t set aside on reh’g, 291 S.W. 538 (Tex.Comm’n App.1927, holding approved).
. The Texas Supreme Court “has established that a cause of action to recover damages for the failure to release a purported, though not actual, property interest is a cause of action for slander of title.” Ellis v. Waldrop, 656 S.W.2d 902, 905 (Tex. 1983). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284483/ | OPINION
YVONNE T. RODRIGUEZ, Justice
Appellants Lucchese Boot Company, Lucehese, Inc., Jose Angel Velarde, and Jose Angel Valadaz seek reversal of the trial court’s order denying its motion to compel arbitration against former employee Hector Rodriguez. We reverse and remand.
BACKGROUND
In 2007, Rodriguez filed a non-subscriber negligence suit against Lucchese after allegedly suffering work-related injuries. Lucchese initially sought to compel arbitration against Rodriguez under the terms of its Area Brands Texas Injury Benefit Plan (the Benefit Plan). The trial court denied Lucchese’s motion to compel Rodriguez to arbitrate. Lucchese filed for a writ of mandamus compelling arbitration. We denied the writ on the basis that the Benefit Plan’s arbitration agreement was illusory. In re Lucehese Boot Co., 324 S.W.3d 211, 212-13 (Tex.App.—El Paso 2010, orig. proceeding).
Lucchese next sought to compel arbitration based on a different agreement contained in its Problem Resolution Program (the Program). The trial court struck Lucchese’s motion on the basis that Luc-chese had either waived, or was estopped from asserting, its right to seek arbitration after initially seeking it under the Benefit Plan. Lucchese appealed, and we reversed the. trial court’s strike order and reinstated Lucchese’s motion, holding that Lucchese did not waive its right to seek arbitration and that it was not estopped from offering alternate bases for its arbitration request. Lucchese, Inc. v. Rodriguez, 388 S.W.3d 354, 362-64 (Tex.App.—El Paso 2012, no pet.). On remand, the trial court denied Lucchese’s motion to compel arbitration under the Program. Lucchese appealed.. We have interlocutory jurisdiction to entertain this appeal under Tex.Civ.Prac. & Rem.Code Ann. § 51.016 (West 2015).
DISCUSSION '
In one issue, Appellants maintain the trial court erred by failing to compel arbitration, either because questions of the Program’s enforceability were reserved for the arbitrator alone or because Rodriguez cannot present any valid contractual defenses against enforcement.1
Standard of Review
We review mixed questions of fact and law in arbitration cases such as this for abuse .of discretion, deferring to. the trial court’s factual determinations and reviewing pure questions of law de novo. Delfingen US-Tex., L.P. v. Valenzuela, 407 S.W.3d 791, 797 (Tex.App.—El Paso 2013, no pet,). We review the enforceability of an arbitration agreement de novo as a *380question of law. In re 24R, Inc., 324 S.W.3d 564, 566 (Tex.2010)(orig. proceeding).
“A party seeking to compel arbitration must (1) establish the existence of a valid arbitration agreement; and (2) show that the claims asserted are within the scope of the agreement.” Delfingen, 407 S.W.3d at 797. .A trial court abuses its discretion when it “refuses to compel arbitration under a valid and enforceable arbitration agreement!)]” In re 24R, Inc., 324 S.W.3d at 566.
Relevant Contract Language
To better ground our analysis, we set out the following relevant excerpts of the Problem Resolution Program below:
Agreement to Submit Disputes to Arbitration. The Company and the Employee ... recognize that differences of opinion can, from time-to-time, arise among individuals, including between an employee and his employer, and that, ultimately, some such disagreements can only be fairly resolved by a neutral decision-maker. The Company believes, however, that resort to a neutral Arbitrator is a legally-sanctioned alternative to the judicial system which is fairer to the parties, yields a speedier final resolution, and is less expensive to both the Employee and the Company. The Company therefore establishes this Problem Resolution Program ■ (the "‘Program’), waives its right to a trial before a judge or a jury in the event of any Covered Employment Dispute as defined below (hereinafter, ‘Covered Dispute’), and agrees to submit any such dispute to final and binding arbitration. In exchange for this waiver of its rights, the Company requires, as a condition of employment/continued employment, that each of its Employees waive his right to a trial before a judge or a jury in the event of any Covered Dispute and agree to submit such dispute to final and binding arbitration. In other words, in the case of a Covered Dispute, the Company and the Employee agree to submit the Dispute to binding arbitration, unless both the Employee and the Company waive , such a right in writing prior to the initiation of any litigation arising out of said Covered Dispute.
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Covered Disputes, Covered Disputes which are subject to the exclusive provisions of the Program include only those which involve legally-protected rights which the Employee may now or in the future have against the Company or its officers, directors, shareholders, employees, or agents in their personal or official capacities, as well as any claims which the Company may now or in the future have against the Employee, including, but not limited to, matters arising out of the application for employment or an employment termination, except as expressly excluded under the heading of “Claims Not Covered” below:
The disputes covered by the Program include, but are not limited to:
• claims for wrongful failure to hire;
• claims or breach of any contract, covenant, or warranty (express -or implied);
• tort claims (including, but not limited to, claims for physical, mental or psychological injury, without regard to whether such injury was allegedly sustained in the course and scope of employment, and claims for defamation);
• claims for wrongful termination (including, bqt not limited to, retaliatory discharge claims under chapter 451 of the Texas Labor Code);
*381• claims for harassment, including, but not limited to, sexual harassment;
• claims for discrimination (including, • but not limited to, claims based on race or color, national origin, religion, sex, age, medical condition or disability);
• claims for benefits under any employee benefit plans sponsored by the Company (after- exhausting administrative remedies under the terms of such plans); and ■
• claims for violations of any other noncriminal federal, state, or other governmental law, statute, regulation or ordinance.
This' includes claims which are brought by or against Employee or his representatives, successors, spouse or heirs.
Claims Not Covered. The only claims or disputes not covered by the Program are as follows:
1. any claim by Employee for benefits under a plan or program which provides its own arbitration procedure;
2. any criminal complaint or proceeding;
3. restitution by an employee for a criminal act for which he has been found guilty, has pleaded guilty or no contest or nolo contendere, or for which he has been subject to any kind of deferred adjudication program;
4. any claim by the Company for in-junctive or other equitable relief for Employee’s alleged violation of contract, covenant against competition, unfair competition or the use or disclosure of trade secrets or other confidential information;
5. any claim for benefits arising under the workers’ compensation laws of any state;
6. any claim for unemployment compensation; and
7. any dispute involving- Employee’s work schedule, vacation, sick days, work assignments, or shift assignments, and any disagreement with co-workers other than those involving Covered Disputes as described above.
Neither Employee nor the Company may submit items 1 through 7 above to arbitration under this Program.
Procedures for Conduct of Arbitra-tions. Except to the extent that any provision of said Rules is inconsistent with the Program provisions set forth in this document or excépt where a provision of said Rules is waived in a writing signed by representatives of both the Company and the Employee, arbitra-tions under this Program shall be con- . ducted pursuant to the TAMS Employment Arbitration Rules,
I.
ARBITRABILITY AND Sc,OPE
A.
Who Decides If an Arbitration Agreement Exists?
In its first sub-issue, Appellant argues that the trial court erred by not compelling arbitration because the agreement itself strips away the trial court’s ability to decide whether the agreement’s terms are valid. We disagree.
Ordinarily, the trial court retains the power to rule on so-called “gateway” issues such as whether an- arbitration agreement exists or is enforceable. IHS Acquisition No. 131, Inc. v. Iturralde, 387 S.W.3d 785, 793 (Tex.App.—El Paso 2012, no pet.). However, through the use of binding covenants in an agreement, parties may agree to submit even fundamental *382gateway issues to arbitration. Id. -We apply ordinary contract law principles in interpreting these agreements. Id. at 791. In conducting the gateway inquiry, we do not ordinarily pass on any issues relating to the underlying arbitration agreement; rather, we look at how broadly the scope of the arbitration clause sweeps to see if subsumes even gateway issues, or is limited only to certain classes of disputes between the parties. If the arbitration clause sweeps broadly enough to subsume gateway issues into an arbitral dispute, and there is evidence that both parties agreed to the covenants, then the trial court should compel arbitration and leave issues of validity and, enforceability to the arbitrator. Iturralde, 387 S.W.3d at 793.
Lucchese maintains that the Program’s incorporation by reference of the TAMS’ procedural rules — which allow an arbitrator to rule on the issue of his own jurisdiction2 — definitively establishes the parties’ intent to submit even gateway issues to arbitration. Our sister courts have found that a broadly-worded arbitration clause, coupled with incorporation by reference of rules giving an arbitrator power to rule on his own jurisdiction, is enough to demonstrate the parties’ intent to strip the trial court of all power and submit even gateWay issues of arbitrability to an arbitrator. See Schlumberger Tech. Corp. v. Baker Hughes Inc., 355 S.W.3d 791, 802-03 (Tex.App.—Houston [1st Dist.] 2011, no pet.); Saxa Inc. v. DFD Architecture Inc., 312 S.W.3d 224, 228-29 (Tex.App.—Dallas 2010, pet. denied); In re Rio Grande Xarin II, Ltd., No. 13-10-00115-CV, 2010 WL 2697145, at *8-*9 (Tex.App.—Corpus Christi July 6, 2010, pet. dism’d)(mem.op.).
Even so, the “majority view does not mandate that arbitrators decide arbi-trability in all cases where an arbitration clause incorporates” an arbitration organization’s procedural rules by reference. Haddock v. Quinn, 287 S.W.3d 158, 173 (Tex.App.—Fort Worth 2009, orig. proceeding)[Internal citations and quotation marks, omitted]. This case is distinguishable from the other incorporation cases Appellant cites. In those cases, the arbitration agreements either applied specifically to gateway issues or otherwise purported to apply to all disputes between an employer and employee, meaning that procedural rules giving an arbitrator the power to rule on whether a. claim is even subject to arbitration were consistent with the parties’ intent to completely exclude the courts from the dispute-resolution process. See Saxa, Inc., 312 S.W.3d at 226 (arbitration clause stated that “[a]ny claim, dispute or other matter in question arising out of or related to the contract shall be subject to arbitration.”)[Intemal quotation marks omitted]; Schlumberger Tech. Corp., 355 S.W.3d at 802 (Resolution Agreement setting out arbitration terms specifically stated that “disputes relating to the interpretation, construction, alleged breach of this [Resolution] Agreement, [and] the Procedure Agreement” would be solved by process set out in Resolution Agreement; Resolution Agreement pointed to Procedure Agreement process; Procedure Agreement process incorporated AAA Commercial Arbitration Rules by reference); In re Rio Grande Xarin II, Ltd., 2010 WL 2697145, at *1 (arbitration agreement stated that “[i]f a controversy arises out of this Agreement ... or the transac*383tion contemplated herein, Buyer, Seller[,] and Agent agree that such controversy shall be settled by final, binding arbitration in accordance with the' Commercial Arbitration Rules of the American Arbitration Association ... ”)3 [Emphasis added].
By contrast, here, the agreement establishes . the scope of arbitrable issues as consisting of a certain class of “Covered Disputes” which “include only those [disputes] which involve, legally-protected rights which the Employee may now or in the future have against the Company or its officers, directors, shareholders, employees, or agents in their personal or official capacities, as well as any claims which the Company may now or in the future have against the Employee[.]” Further, while the agreement purports that a list of disputes contained in the Covered Disputes section is purely illustrative, the agreement also goes on to explicitly exclude a large class of “Claims Not Covered” that “[n]either Employee nor the Company may submit ... to arbitration under this Program[,]” including 'inter alia restitution for an employee’s criminal acts, “any claim by the Company for injunctive or other equitable relief for Employee’s alleged violation of contract ... [,] ” or “any dispute involving Employee’s work schedule, vacation, sick days, work assignments, or shift assignments^]”
In light of the arbitration agreement’s narrow application, incorporation of the TAMS rules giving an arbitrator the ability to review his own jurisdiction or reassess an agreement’s validity is not dis-positive. Appellant placed substantive restraints on the arbitrator’s power by limiting, the scope of the arbitration agreement to include only certain enumerated disputes and explicitly precluding submission of other disputes to arbitration. We presume as a matter of law that the trial court retained the power to decide gateway issues absent clear, explicit evidence to the contrary. Iturralde, 387 S.W.3d. at 793. Given that the agreement’s plain language purports to restrict the arbitrator’s power to hear only certain classes of disputes, we will not read an unwritten clause into the agreement that enlarges the arbitrator’s ability to rule .on unenumerated gateway issue disputes based on silence or mere incorporation by reference of general arbitration rules. See Haddock, 287 S.W.3d at 172; In re Estate of Anderegg, 360 S.W.3d 677, 681 (Tex.App.—El Paso 2012, no pet.)(under the maxim- expressio unius est exclusio alterius, “the expression in a contract of one or more things of a class implies the exclusion of all not expressed”)[Internal quotation marks omitted]; Grimes v. Walsh & Watts, Inc., 649 S.W.2d 724, 727 (Tex.App.—El Paso 1983, writ ref'd n.r.e.)(courts cannot read implied *384provisions into contracts absent evidence the covenant “so clearly within the contemplation of the parties that they deemed it unnecessary to express it”)[Internal citation omitted].
Simply put, the TAMS rules may give an arbitrator the ability to decide if an agreement is valid, but the terms of the agreement itself govern whether the arbitrator gets to decide this question in the first instance. Here, the parties did not express a clear intent to submit gateway issues to an arbitrator, and the trial court properly retained jurisdiction to rule on arbitrability.
B.
Proper Parties to Arbitration
We next discuss whether the arbitration agreement applies only to Luc-chese, or to defendants Velarde and Vala-daz as well. Rodriguez maintains that the trial court’s judgment was proper as to Velarde and Valadaz, since neither of them were parties to the contract between Luc-chese and Rodriguez. Lucchese counters that Velarde and Valadaz are entitled to enforce the arbitration agreement as third-party beneficiaries. We agree.
Generally, “parties must sign arbitration agreements before being bound by them.” In re Rubiola, 334 S.W.3d 220, 224 (Tex.2011)(orig. proceeding). “Arbitration agreements apply to nonsignatories only in rare circumstances.” Id. (citing Bridas S.A.P.I.C. v. Gov’t of Turkm., 345 F.3d 347, 355, 358 (5th Cir.2003). However, “[a] third-party beneficiary may enforce a contract to which it is not a party if the parties to the contract intended to secure a benefit to that third party and entered into the contract directly for the third party’s benefit.” In re Palm Harbor Homes, Inc., 195 S.W.3d 672, 677 (Tex.2006). “[T]he question of who is actually bound by an arbitration agreement is ultimately a function of the intent of the parties, as expressed in the terms of the agreement.” In re Rubiola, 334 S.W.3d at 224 [Internal quotation marks and alterations omitted].
Rodriguez correctly cites In re Merrill Lynch Trust Co. FSB, 235 S.W.3d 185 (Tex.2007)(orig. proceeding) for the proposition that “arbitration is not required merely because two claims arise from the same transaction.” Id. at 192. He also contends that In re Merrill Lynch Trust Co. establishes that Velarde and Valadaz cannot force him to arbitrate his claims against them under either an equitable estoppel theory or a concerted-misconduct estoppel theory. We need not delve into any complex estoppel issues because the plain terms of this agreement are clear. The Covered Disputes section of the Program Agreement explicitly includes claims “against the Company or its officers, directors, shareholders, employees, or agents in their personal or official capacities[.]” Although Velarde and Valadaz were not signatories to the Program Agreement, the scope of the agreement’s coverage gives them, as Lucchese employees, the right to seek arbitration. The language here clearly establishes that they are third-party beneficiaries under the Program Agreement. See In re Palm Harbor Homes, Inc., 195 S.W.3d at 674 (homebuyer must arbitrate claims against home manufacturer because terms of arbitration contract between the homebuyer and a seller explicitly stated in “inured to the benefit” of the manufacturer).
Velarde and Valadaz are proper parties to the arbitration agreement, and their ability to seek arbitration rises and falls in tandem with Lucchese.
II.
CONTRACT
Having dealt with the gateway issues, we next turn to the substantive issues. In *385its second sub-issue, Lucchese4 asserts that it proved the existence of a valid arbitration agreement in the trial court, and that Rodriguez failed to establish any meritorious contract defenses. As such, the trial court erred in failing to compel arbitration. We agree.
A.
Does An Agreement Exist?
In defense of the trial court’s judgment, Rodriguez raises two alternate reasons why a binding arbitration contract never formed between the parties.5 First, Rodriguez contends no contract formed because the agreement rested on an illusory promise from Lucchese. Second, Rodriguez maintains that the contract’s terms were not definite enough to show the parties had a meeting of the minds as to all essential terms.
1.
Illusoriness
We first address Rodriguez’s illu-soriness point. Rodriguez maintains that the language of the agreement gives Luc-chese the unilateral right to terminate the agreement at any time, rendering Luc-chese’s' promise to arbitrate illusory and causing contract formation to fail for lack of consideration. However, Rodriguez cites to and directs his argument entirely at the arbitration agreement from the Benefit Plan, which is not the subject of this appeal. Here, we review only the arbitration agreement set out in the Problem • Resolution Program. Rodriguez makes no reference to the Program’s arbitration language in his brief. , Because Rodriguez failed .to explain how the language in the Program’s arbitration agreement rendered it. illusory, we find .that Rodriguez has waived his illusoriness, defense on appeal.
2.
Meeting of the Minds
Rodriguez next maintains that the -trial court’s judgment should be upheld because Appellant failed to establish that all parties had a “meeting of the minds” on all essential terms of the arbitration agreement. Tied in with this argument is his assertion that the terms of the arbitration agreement are ambiguous. We address these two-points jointly.
“A meeting of the minds is necessary to form a binding contract.” David J. Sacks, P.C. v. Haden, 266 S.W.3d 447, 450 (Tex.2008). “Parties form' a binding contract when the following elements are present: (i) an offer; (ii) an acceptance in strict compliance with the terms of the offer; (iii) a meeting of the minds; (iv) each party’s consent to the tefm's; and (v) execution and delivery of the contract with the intent that it be mutual and binding.” Karns v. Jalapeno Tree Holdings, L.L.C., 459 S.W.3d 688, 692 (Tex.App.—El Paso 2015, pet. denied).. “Although often treated as a distinct element, meeting of the minds is a component of both offer, and acceptance measured by what the parties *386said and did and not on their subjective state of mind.” Id, [Internal quotation marks omitted]. “In order to be legally binding, a contract must be sufficiently definite in its terms so that a court can understand what the promisor undertook.” T.O. Stanley Boot Co., Inc. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex.1992). “The material terms of the contract must be agreed upon before a court can enforce the contract.” Id. “Each contract should be considered separately to determine its material terms.”' Id.
Rodriguez avers that’the essential terms of the arbitration agreement are too ambiguous to determine from the writings in the record; thus, no contract could have ever formed because the parties must not have mutually understood the other’s terms. .In making this argument, Rodriguez does not maintain that the Program’s arbitration agreement is ambiguous on its face. Rather, he contends that the Pro: gram’s arbitration agreement becomes ambiguous when read in light of the Benefit Plan’s arbitration agreement, since the two agreements irreconcilably conflict on material terms such as who will conduct an arbitration: TAMS or the American Arbitration Association.
We first note that unless the Benefit Plan was incorporated by reference into the Program Agreement, it constitutes parol evidence that must be excluded in contradicting the Program Agreement’s terms unless -the Program Agreement is ambiguous. In determining whether a contract is ambiguous, we first look only to the four comers of the document proffered and to other texts incorporated therein by reference. McDaniel Partners, Ltd. v. Apache Deepwater, L.L.C., 441 S.W.3d 530, 533-34 (Tex.App.—El Paso 2014, pet. filed); see also In re 24R, Inc., 324 S.W.3d at 567 (“Documents incorporated into a contract by reference become part of that contract.”). Only if a contract’s fully integrated terms are ambiguous will we consider conflicting extrinsic evidence that shed lights on the parties’ intent. McDaniel Partners, 441 S.W.3d at 533-34. “An unambiguous contract will be enforced as written, and parol evidence will not be received for the purpose of creating an ambiguity or to give the contract a meaning different from that which its language imports.” David J. Sacks, P.C., 266 S.W.3d at 450. This rule extends to other conflicting agreements. “If a contract is unambiguous, the parol evidence rule precludes consideration of evidence of prior or contemporaneous agreements unless an exception to the par-ol evidence rule applies.” Id. at 451. While a court may consider “a prior or contemporaneous agreement that is both collateral to and consistent with a binding agreement, and that does not vary or contradict the agreement’s express or implied terms or obligations[,]” prior or contemporaneous agreements that conflict with that contract at issue are inadmissible. Id.
Here, the Program. Agreement is not ambiguous on its face. Its terms are definite, ascertainable, and not subject to more than one reasonable interpretation. Per the terms of the Program Agreement at bar, “tort claims, (including, but not limited to, claims for physical, mental or psychological injury, without regard to whether such, injury was allegedly sustained in the course and scope of employment ...)” are subject to arbitration under the terms set out in the Program Agreement. It is undisputed that Rodriguez’s pleadings allege tort claims that would fall within the Program Agreement’s arbitral scope.
Further, the Program Agreement’s language never explicitly mentions or incorporates the Benefit Plan’s arbitration agreement by reference so as to create conflict on material terms. As such, the terms of *387the Program Agreement itself are-, those that govern here. However, the Program Agreement does apparently place the Benefit Plan in context when discussing scope, stating that “any claim by Employee for benefits under a plan or program which provides its own arbitration procedures” is excluded from the Program Agreement’s arbitration coverage. That would- as-sumedly mean that the Program Agreement’s arbitration provisions would not apply to a claim arising under the Benefit Plan, which contains its own arbitration procedures.
A copy of the Benefit Plan’s arbitration agreement does not appear in this record. Although the Defendants’ Amended Motion to Compel Arbitration makes reference to attached Exhibits D, E, and F, which are the “Area Brands Texas Injury Benefits Summary Plan Description and Injury Benefit Plan,” no such exhibits are actually attached. Absent that evidence, neither we nor the trial court can definitively establish whether Rodriguez’s tort claim would fall within the Program Agreement’s coverage exclusions. Even if Rodriguez could establish the terms of the Benefit Plan, the coverage exclusion is limited only to “any claim by Employee for benefits under a plan or program which provides its own arbitration procedure.” Here, there is no indication that Rodriguez actually “claim[ed] ... benefits under a plan or program” administered by Luc-chese. Instead, the record evidence shows this is only a standard tort claim.
In short, Lucehese presented evidence of an unambiguous, presumptively valid arbitration agreement that explicitly embraces tort claims' against the company. Rodriguez, in turn, failed to provide evidence that the claims he presented would otherwise be excluded from coverage because they were subject to the Benefits Plan. As such, we find that both prongs of the arbitration test have been met: an arbitration agreement exists, and the dispute between the parties' falls within its ambit. See Delfingen, 407 S.W.3d at 797. The trial court could not refuse to enforce the arbitration agreement on any defective formation grounds.
B.
Defenses Against Enforcement
Having determined that a valid arbitration contract formed, we next consider Rodriguez’s arguments that the trial court was justified in denying Lucchese’s motion to compel because he presented valid affirmative defenses to enforcement.
1.
Unconscionability
In the trial court and on appeal, Rodriguez argues the contract should not be enforced against him because its terms are unconscionable. Lucehese contends that Rodriguez provided insufficient evidence to establish that - arbitration agreement was unconscionable. Thus, the trial court’s summary judgment denial could not have properly rested on those grounds. We agree.
Applicable Law
“Agreements to arbitrate disputes between employers and employees are generally enforceable under Texas law; there is nothing per se unconscionable about an agreement to arbitrate employment disputes!.]” In re Poly-America, L.P., 262 S.W.3d 337, 348 (Tex.2008). The party seeking to invalidate the arbitration agreement bears the burden of proving unconscionability. Vista Quality Mkts., 438 S.W.3d at 124.
“Unconscionability of an arbitration 'agreement may exist in one or both of *388two forms: (1) procedural unconscionability, which refers to the circumstances surrounding the adoption of the arbitration provision, and (2) substantive unconsciona-bility, which refers to the fairness of the arbitration provision itself.” ReadyOne Indus., Inc. v. Flores, 460 S.W.3d 656, 666-67 (Tex.App.—El Paso 2014, pet. denied).
We measure unconscionability in light of the totality of the circumstances and' from the point the contract formed. Delfingen, 407 S.W.3d at 798. “The grounds for substantive abuse must be sufficiently shocking or gross to compel the court to intercede, and the same is true for procedural abuse — the circumstances surrounding the negotiations must be shocking.” Id. In deciding whether a contract is procedurally unconscionable, “we must examine (1) the entire atmosphere in which the agreement was made; (2) the alternatives, if any, available to the parties at the time the contract was made; (3) the non-bargaining ability of one party; (4) whether the contract was illegal or against public policy; and (5) whether the contract is oppressive or unreasonable.” Id. [Internal quotation marks omitted].The critical inquiry in reviewing an agreement for substantive unconscionability “is whether the arbitral forum in a particular case is an adequate and accessible substitute to litigation, a forum where the litigant can effectively vindicate his or her rights.” In re Olshan Found. Repair Co., L.L.C., 328 S.W.3d 883, 894 (Tex.2010)(orig. proceeding). “That inquiry is not satisfied by speculation but by specific proof in the particular case of the arbitral forum’s inadequacy.” Venture Cotton Coop. v. Freeman, 435 S.W.3d 222, 232 (Tex.2014).
Analysis
On appeal, Rodriguez-does not argue that the arbitral forum is somehow inadequate or unfair. Instead, he focuses exclusively on the process by which Luc-chese obtained his consent to. arbitration. As such, Rodriguez presents only procedural unconscionability grounds in support of the trial court’s judgment and not substantive unconscionability grounds. We focus our analysis accordingly.
Rodriguez maintains that we should affirm the trial court’s judgment because Lucchese’s “unusually unclean hands,” as demonstrated by the fact it presented an alternate arbitration agreement after being unable to compel arbitration under another agreement, strongly insinuates wrongdoing that rises to the level of procedural unconscionability. But the fact that Lucchese may have later “discovered” another on-point arbitration agreement after we struck down the first agreement is irrelevant to the procedural unconsciona-bility analysis. Our inquiry focuses solely on the surrounding circumstances at the time of contract formation. Delfingen, 407 S.W.3d at 801-03.
Here, Rodriguez provided no independent evidence regarding the circumstances of the contract formation process. Instead, he points to inconsistencies in Hilda Matthews’ deposition testimony regarding her understanding of which arbitration agreement applied in the event of a workplace injury — the Benefits Plan or the Problem Resolution Program — as proof that Lucchese lured him into entering into the Program’s arbitration agreement by having Matthews purportedly misrepresent' the nature of the agreement and tell him it was an unimportant document. These testimonial inconsistencies are not enough to establish procedural unconscion-ability beyond mere conjecture, particularly when viewed in light of the fact that a signed acknowledgment page bearing Rod-' riguez’s signature appears in the record. This suggests that even if Matthews misrepresented the terms of the agreement, *389Rodriguez presumably had the opportunity to review the actual agreement and verify its subject matter before assenting. “We presume a party, like [Rodriguez], who has the opportunity to read an arbitration agreement and signs it, knows its contents.” EZ Pawn Corp. v. Mancias, 934 S.W.2d 87, 90 (Tex.1996). Absent any other evidence, we cannot say the circumstances surrounding Rodriguez’s signing of fhe Program Agreement indicated procedural unconscionability. Compare Delfingen, 407 S.W.3d at 801-03 (procedural uncon-scionability found where company affirmatively misrepresented contents of English-language arbitration agreement to Spanish-speaking employee, obtained his signature on the English-language agreement based on those misrepresentations, then never provided employee with copy of agreement in either English or Spanish). In sum, there is insufficient evidence to uphold the trial court’s judgment on the basis of unconscionability.
2.
Waiver and Estoppel
Finally, Rodriguez maintains that we can uphold the trial court’s judgment on the basis that Lucchese waived its ability to compel arbitration under the Program when it already attempted to unsuccessfully compel arbitration under the Benefit Plan. We have already rejected Rodriguez’s waiver and estoppel points in a previous appeal, and decline to further address these merits of these issues under law of the case.
The law of the case doctrine holds that questions of law decided in one appeal govern the ease throughout subsequent stages' of litigation, including later appeals. Justice Bail Bonds v. Samaniego, 68 S.W.3d 811, 813 (Tex.App.—El Paso 2001, pet, denied). Application of this doctrine is discretionary and is “merely a practice to ensure consistency in court decisions” and “not a limit to the power of courts.” Telles v. Samaniego, No. 08-02-00234-CV, 2003 WL 22254711, at *4 (Tex.App.—El Paso Sept. 30, 2003, no pet.)(mem.op.). “Although appellate courts have discretion to depart from the doctrine in éxceptional or urgent situations, we must be mindful of. the public policy underlying law of the case; to prevent useless relitigation of issues already decided, to insure consistency, and promote judicial economy.” Tomaszewicz v. Wiman, No. 08-00-00034-CV, 2002 WL 397003, at *2 (Tex.App.—El Paso Mar. 14, 2002, no pet.)(not designated for publication). The doctrine does not apply “if the issues or facts presented in successive appeals are not substantially the same as those involved in the first decision” or if “the prior appellate ruling is clearly erroneous.” Id.
We previously decided that neither waiver nor estoppel precluded Lucchese from moving to compel arbitration when we reversed the trial court’s strike order. See Rodriguez, 388 S.W.3d at 362-64. Nothing in the record indicates that the parties’ respective positions changed meaningfully bn remand.' As such, law of the case will apply here. The trial court’s judgment cannot be upheld on waiver or estoppel grounds.
CONCLUSION
Appellant established the existence of a binding.arbitration agreement not subject to any valid defenses. The trial court erred by failing to enforce this agreement.
We reverse the trial court’s judgment and remand for further proceedings.
Barajas, Senior Judge (Sitting by' Assignment)
. Appellant’s brief also addresses the applicability of the FAA to this dispute and Rodriguez’s constitutional challenge to the FAA under the Tenth Amendment to the United States Constitution. Rodriguez’s brief raises neither of these points. We agree that the FAA applies to this case because there is evidence in the record to show that Lucchese engages in interstate commerce. See Vista Quality Mkts. v. Lizalde, 438 S.W.3d 114, 121-22 (Tex.App.—El Paso 2014, no pet). We decline to address any Tenth Amendment challenges to the FAA since Rodriguez failed to raise them in his brief on appeal, But see In re Odyssey Healthcare, Inc., 310 S.W.3d. 419, 423-24 (Tex.2010)(orig. proceeding)(holding that the FAA does not violate the Tenth Amendment).
. TAMS Rule A-8 provides in part: .
A-8 Jurisdiction
(a) The arbitrator shall have the power to rule on the issue of jurisdiction, including any objection with respect to the existence, scope or validity of the arbitration agreement.
(b) The arbitrator shall have the power to determine the existence or validity of a contract which contains an arbitration clause.
. We recognize that the Fifth Circuit, in interpreting a contract under Texas law, appears to have held that under this State’s law, mere incorporation by reference of arbitration rules “presents clear and unmistakable evidence that the parties agreed to arbitrate arbitrability." Petrofac, Inc. v. DynMcDermott Petroleum Operations Co., 687 F.3d 671, 675 (5th Cir.2012). We respectfully disagree. Incorporation of an arbitration organization’s jurisdictional rules is one factor to consider in determining the parties’ intent, but it is by no means dispositive. Haddock, 287 S.W.3d at 172. To the extent other federal circuits have also determined that incorporation of arbitrátion rules clearly shows the parties’ intent to delegate gateway issues to an arbitrator, see, e.g., Fallo v. High-Tech Inst., 559 F.3d 874, 878 (8th Cir.2009); Qualcomm Inc. v. Nokia Corp., 466 F,3d 1366, 1372-73 (Fed.Cir.2006), we note that even under the FAA, the threshold question of what a contract says is a matter of state interpretational law. See First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944, 115 S.Ct. 1920, 1924, 131 L.Ed.2d 985 (1995); ReadyOne Indus., Inc. v. Carreon, 458 S.W.3d 621, 623-24 (Tex.App.—El Paso 2014, no pet.). Thus, we are not bound by those court’s decisions interpreting other states’ laws in reaching our decision today.
. For the purposes of the remainder of this opinion, we will refer to the appellants collectively as "Lucchese.”
. As we stated previously, the trial court should compel arbitration where a movant establishes (1) thé existence of a valid arbitration contract and (2) that a claim falls within . the scope of that contract. . Iturralde, 387 S.W.3d at 793. Rodriguez does not argue that his injury falls outside the scope of the arbitration agreement. We thus assume that the parties do not dispute Prong # 2 of the arbitration test, i.e., the fact that this type of injury is - covered by the arbitration agreement. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284485/ | OPINION
YVONNE T. RODRIGUEZ, Justice
Appellants Lucchese Boot Company, Bartolo Mata, and Rigoberto Gutierrez seek reversal of the trial court’s order denying its motion to compel arbitration against former employee Jose Solano. We reverse and remand.
BACKGROUND
In 2007, Solano filed a non-subscriber negligence suit against Lucchese after allegedly suffering three work-related injuries. Lucchese initially sought to compel arbitration against Solano under the terms of its Area Brands Texas Injury Ben'efit Plan (the Benefit Plan). The trial court denied Lucchese’s motion to compel Solano to arbitrate. Lucchese filed for a writ of mandamus compelling arbitration. We denied the writ on the basis that the Benefit Plan’s arbitration agreement was illusory. In re Lucchese, Inc., 324 S.W.3d 214, 215-16 (Tex.App.—El Paso 2010, orig. proceeding). • .
Lucchese next sought to compel arbitration based on a different agreement contained in its Problem Resolution Program (the Program). The trial court struck Lucchese’s motion on the basis that Luc-chese had either waived, or was estopped from asserting, its right to seek arbitration after initially seeking it under the Benefit Plan. Lucchese appealed, and we reversed the trial court’s strike order and reinstated Lucchese’s mótion, holding that Lucchese did not waive its right to seek arbitration and that it was not estopped from offering alternate bases for its arbitration request. Lucchese, Inc.v. Solano, 388 S.W.3d 343, 347 (Tex.App.—El Paso 2012, no pet.). On remand, the-trial court denied Lucchese’s motion to compel arbitration under ■ the Program.. Lucchese appealed. We have interlocutory jurisdiction to entertain this appeal- under Tex.Civ.Prac. & Rem.Code Ann. § 51.016 (West 2015).
DISCUSSION
In one issue, Appellant maintains the trial court erred by failing to compel arbitration, either because questions of - the *410Program’s enforceability were reserved for the arbitrator alone or because Solano cannot present any valid contractual defenses against enforcement.1
Standard of Review
We review mixed questions 'of fact and law in arbitration cases such as this for abuse of . discretion, deferring to -the trial court’s factual determinations and reviewing pure questions of law de novo. Delfingen US-Tex., L.P., v. Valenzuela, 407 S.W.3d 791, 797 (Tex.App.—El Paso 2013; np pet.). We review the enforceability of an arbitration agreement de novo as a question of law. In re 24R, Inc., 324 S.W.3d 564, 566 (Tex.2010)(orig. proceeding).
“A party seeking to compel arbitration musti(l) establish the existence of a valid arbitration agreement; and (2) show that the .claims asserted are within- the scope of the agreement.” Delfingen, 407 S.W.3d at 797. A trial court abuses its discretion when it “refuses to compel arbitration under a valid and enforceable arbitration agreement[.]” In re 24R, Inc., 324 S.W.3d at 566.
Relevant Contract Language
To better ground our analysis, we set out -the following relevant excerpts of the Problem Resolution Program below:
Agreement to Submit Disputes to Arbitration. The Company and the Employee ... recognize that differences of opinion can, from time-to-time, ■ arise among individuals, including between an employee and his employer, and that, ultimately, some such disagreements can only be fairly resolved by a neutral decision-maker. ' The Company believes, however, that resort to a neutral Arbitrator is a legally-sanctioned alternative to the judicial system which is faker to the parties, yields a speedier final resolution, and is less expensive to both the Employee and the Company. The Company therefore establishes this Problem Resolution Program (the ‘Program’), waives its right to a trial before a judge or a jury in the event of any Covered Employment Dispute as defined below (hereinafter, ‘Covered Dispute’), and •agrees to submit any such dispute to final and binding arbitration. .In exchange -for this waiver of its rights, the Company requkes, as a condition of employment/continued employment, that each of its Employees waive his right to a trial before a judge or a jury in the event of any Covered Dispute.and agree to submit such dispute to final and binding arbitration. In other words, in the ' case of a Covered Dispute, the Company and the Employee agree to submit the Dispute to binding arbitration, unless both the Employee and the Company waive.such a right in writing prior to the initiation of any litigation arising, out of said Covered Dispute.
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Covered Disputes. ' Covered Disputes which are subject to the exclusive provisions of the Program include only those which involve legally-protected rights *411which the Employee" may now or in the future have against the Company or its officers, directors, shareholders, employees, or agents in their personal or official capacities, as well as any claims which the.Company may now or in the future have against the Employee,, including, but not limited to, matters arising out of the application for employment or an employment termination, except as expressly excluded under the heading of “Claims Not Covered” below:
The disputes covered by the Program include, but are not limited to:
• claims for wrongful failure to hire;
• claims or breach of any contract, covenant, or warranty (express or implied);
• tort claims (including, but not limited to, claims for physical, mental or psychological injury, without regard to whether such injury was allegedly sustained in the course and scope of employment, and claims for defamation);
• claims for wrongful termination (including, but not limited to, retaliatory discharge claims under chapter 451 of the Texas Labor Code);
• claims for harassment, including, but not limited to, sexual harassment; .
-• claims for discrimination (including, but not limited to, claims based on race or color, national origin, religion, sex, age, medical condition or disability);
• claims for benefits under any employee benefit pMns sponsored by the" Company (after exhausting administrative remedies under the terms of such plans); and
• claims ‘for violations of any other noncriminal federal, state, or other governmental law, statute, regulation * or ordinance.
■ This ■ includes . -claims - which are brought by or against Employee or his representatives, successors, spouse or heirs.
Claims Not Covered. The only claims or disputes not covered by the Program are as follows: ' ' ’
1. any claim by Employee for benefits under a plan or program which provides its own arbitration procedure;
2. any criminal complaint or proceeding;
3. restitution by an employee for a criminal act for which he has been foimd. guilty, has pleaded guilty or no contest or nolo contendere, "or for which he- has been subject to any kind -of deferred adjudication program;
4. any claim by the Company for in-junctive or other equitable relief for Employee’s alleged violation of contract, covenant against competition, unfair competition or the use or disclosure of trade secrets or other confidential information;
5. any claim for benefits arising under the workers’ compensation laws of áhy state;
6. any' claim for unemployment compensation; and
7.. any dispute involving Employee’s , work schedule, vacation, sick days, work assignments, or shift assignments, and any disagreement with co-workers other than those involving Covered Disputes, as described aboye. . ■
Neither Employee nor the. Company may submit items 1 through 7 above to arbitration under this Program.
Procedures for Conduct of . Arbitra-tions. Except to the extent that any provision';of said Rules is inconsistent *412with the Program provisions set forth in this document or except where a provision of said Rules is waived in a writing signed by representatives of both the Company and the Employee, arbitra-tions under this Program shall be conducted pursuant to the TAMS Employment Arbitration Rules.
I.
Arbitrability and Scope
A.
Who Decides If an Arbitration Agreement Exists?
In its first sub-issue, Appellant argues that the trial court erred by not compelling arbitration because the agreement itself strips away the trial court’s ability to decide whether the agreement’s terms are valid. We disagree.
Ordinarily, the trial court retains the power to rule on so-called “gateway” issues such as whether an arbitration agreement exists or is enforceable. IHS Acquisition No. 131, Inc. v. Iturralde, 387 S.W.3d 785, 793 (Tex.App.—El Paso 2012, no pet.). However, through the use of binding covenants in an agreement, parties may agree to submit even fundamental gateway issues to arbitration. Id. We apply ordinary contract law principles in interpreting these agreements. Id. at 791. In conducting the gateway inquiry, we do not ordinarily pass on any issues relating to the underlying arbitration agreement; rather, we look at how broadly the scope of the arbitration clause sweeps to see if subsumes even gateway issues, or is limited only to certain classes of disputes between the parties. If the arbitration clause sweeps broadly enough to subsume gateway issues into an arbitral dispute, and there is evidence that both parties agreed to the covenants, then the trial court should compel arbitration and leave issues of validity and enforceability to the arbitrator. Iturralde, 387 S.W.3d at 793.
Lucchese maintains that the Program’s incorporation by reference of the TAMS’ procedural rules — which allow an arbitrator to rule on the issue of his own jurisdiction 2— definitively establishes the parties’ intent to submit even gateway issues to arbitration. Our sister courts have found that a broadly-worded arbitration clause, coupled with incorporation by reference of rules giving an arbitrator power to rule on his own jurisdiction, is enough to demonstrate the parties’ intent to strip the trial court of all power and submit even gateway issues of arbitrability to an arbitrator. See Schlumberger Tech. Corp. v. Baker Hughes Inc., 355 S.W.3d 791, 802-03 (Tex.App.—Houston [1st Dist.] 2011, no pet.); Saxa Inc. v. DFD Architecture Inc., 312 S.W.3d 224, 228-29 (Tex.App.—Dallas 2010, pet. denied); In re Rio Grande Xarin II, Ltd., No. 13-10-00115-CV, 2010 WL 2697145, at *8-*9 (Tex.App.—Corpus Christi July 6, 2010, pet. dism’d)(mem.op.).
Even so, the “majority view does not mandate that arbitrators decide arbitrability in all cases where an arbitration clause incorporates” an arbitration organization’s procedural rules by reference. Haddock v. Quinn, 287 S.W.3d 158, 173 (Tex.App.—Fort Worth 2009, orig. proceeding)[Internal citations and quotation marks omitted]. This case is distinguishable from the other incorporation cases Appellant cites. In *413those cases, the arbitration agreements either applied specifically to gateway issues or otherwise purported to apply to all disputes between an employer and employee, meaning that procedural rules giving an arbitrator the power to rule on whether a claim is even subject to arbitration were consistent with the parties’ intent to completely exclude the courts from the dispute-resolution process. See Saxa, Inc., 312 S.W.3d at 226 (arbitration clause stated that “[a]ny claim, dispute or other matter in question arising out of or related to the contract shall be subject to arbitration.”)[Internal quotation marks omitted]; Schlumberger Tech. Corp., 355 S.W.3d at 802 (Resolution Agreement setting out arbitration terms specifically stated that “disputes relating to the interpretation, construction, alleged breach of this [Resolution] Agreement, [and] the Procedure Agreement” would be solved by process set out in Resolution Agreement; Resolution Agreement pointed to Procedure Agreement process; Procedure Agreement process incorporated AAA Commercial Arbitration Rules by reference); In re Rio Grande Xarin II, Ltd., 2010 WL 2697145, at *1 (arbitration agreement stated that “[i]f a controversy arises out of this Agreement ... or the transaction contemplated herein, Buyer, Seller[,] and Agent agree that such controversy shall be settled by final, binding arbitration in ac~ cordance with the Commercial Arbitration Rules of the American Arbitration Association ...”)3 [Emphasis added].
By contrast, here, the agreement establishes the scope of arbitrable issues as consisting of a certain class of “Covered Disputes” which “include only those [disputes] which involve legally-protected rights which the Employee may now or in the future have against the Company or its officers, directors, shareholders, employees, or agents in their personal or official capacities, as well as any claims which the Company may now or in the future have against the Employee[.]” Further, while the agreement purports that a list of dispute's contained in the- Covered Disputes section is purely illustrative, the agreement also goes on to explicitly exclude a large class of “Claims Not Covered” that “[n]either Employee nor the Company may submit ... to arbitration under this Programf,]” including inter alia restitution for an employee’s criminal acts, “any claim by the Company for injunctive or other equitable relief for Employee’s alleged violation of contract ... [,] ” or “any dispute involving Employee’s work schedule, vacation, sick days, work assignments, or shift assignments[.]”
In light of the arbitration agreement’s narrow application, incorporation of the TAMS rules giving an arbitrator the *414ability to review his own jurisdiction or reassess an agreement’s validity is not dis-positive. Appellant placed substantive restraints on the arbitrator’s power by limiting the scope of the arbitration agreement to include only certain enumerated disputes and explicitly precluding submission of other disputes to arbitration. We presume as a matter of law that the trial court retained the power to decide gateway issues absent clear, explicit evidence to the contrary. Iturralde, 387. S.W.3d at 793. Given that the agreement’s plain language purports to restrict the arbitrator’s power to hear only certain classes of disputes, we will not read an unwritten clause into the agreement that enlarges the. arbitrator’s ability to rule on unenumerated gateway issue disputes based on silence or mere incorporation by reference of general arbitration rules. See Haddock, 287 S.W.3d at 172-73; In re Estate of Anderegg, 360 S.W.3d 677, 681 (Tex.App.—El Paso 2012, no pet.)(under the maxim expressio unius est exclusio alterius, “the expression’in a contract of one or more things of a class implies the exclusion of all not expressed”)[Internal quotation marks omitted]; Grimes v. Walsh & Watts, Inc., 649 S.W.2d 724, 727 (Tex.App.—El Paso 1983, writ ref'd n.r.e.)(courts cannot read implied provisions into contracts absent evidence the covenant “so clearly within the contemplation of the parties that they deemed it unnecessary to express it”)[Internal citation omitted].
Simply put, the TAMS rules may give an arbitrator the ability to decide if an agreement is'valid, but the terms of the agreement itself govern whether the arbitrator gets to decide this question in the first instance. Here, the parties did not express a clear intent to submit gateway issues to an arbitrator, and the trial court properly retained jurisdiction to rule on arbitrability.
B.
Proper Parties to Arbitration
We next discuss whether the arbitration agreement applies only to Luc-chese, or to defendants Mata and Gutierrez as well. Solano maintains that the trial court’s judgment was proper as to Mata and Gutierrez, since neither of them were parties to the contract between Lue-chese and Solano. Lucchese counters that Mata and Gutierrez are entitled to enforce the arbitration agreement as third-party beneficiaries. We agree.
Generally, “parties must sign arbitration agreements before being bound by them.” In re Rubiola, 334 S.W.3d 220, 224 (Tex.2011)(orig. proceeding). “Arbitration agreements apply to nonsignatories only in rare circumstances.” Id. (citing Bridas S.A.P.I.C. v. Gov’t of Turkm., 345 F.3d 347, 355, 358 (5th Cir.2003). However, “[a] third-party beneficiary may enforce a contract to which it is not a party if the parties to the contract intended to secure a benefit to that third party and entered into the contract directly for the third party’s benefit.” In re Palm Harbor Homes, Inc., 195 S.W.3d 672, 677 (Tex.2006). “[T]he question of who is actually bound by an arbitration agreement is ultimately a function of the intent of the parties, as expressed in the terms of the agreement.” In re Rubiola, 334 S.W.3d at 224 [Internal quotation marks and alterations omitted].
Solano correctly cites In re Merrill Lynch Trust Co. FSB, 235 S.W.3d 185 (Tex.2007)(orig. proceeding) for the proposition that “arbitration is not required merely because two claims arise from the same transaction.” Id. at 192. He also contends that In re Merrill Lynch Trust Co. establishes that Mata and Gutierrez cannot force him to arbitrate his claims *415against them under either an equitable estoppel theory or a concerted-misconduct estoppel theory. We need not delve into any complex estoppel issues because the plain terms of this agreement are’clear. The Covered' Disputes section of the Program Agreement explicitly includes claims “against the Company or its officers, directors, shareholders, employees, or agents in their personal or official capacities[.]” Although Mata and Gutierrez were not signatories to the "Program Agreement, the scope of the agreement’s coverage gives them, as Lucchese employees, the right to seek arbitration. The language here clearly establishes that they are third-party beneficiaries under the Program Agreement. See In re Palm Harbor Homes, Inc., 195 S.W.3d at 674 (homebuyer must arbitrate claims against home manufacturer because terms of arbitration, contract between the homebuyer and a seller explicitly stated in “inured to the benefit” of the manufacturer).
Mata and Gutierrez are proper parties to the arbitration agreement, and their ability to seek arbitration rises and falls in tandem with Lucchese.
n.
Contract
Having dealt with the gateway issues, we next turn to the substantive issues. In its second sub-issue, Lucchese4 asserts that it proved the existence of a valid arbitration agreement in the trial court, and that Solano failed to establish any meritorious contract defenses. As such, the’ trial court erred in failing to compel arbitration. We agree.
A.
Does An Agreement Exist?
In defense of the trial court’s judgment, Solano raises two alternate reasons why a binding arbitration contract never formed between the parties.5 First, Solano contends no contract ,,formed. because the agreement rested on .an illusory promise from Lucchese. Second, Solano maintains that the contract’s terms were not definite enough to show the parties had a meeting of the minds-as to all essential terms.
1.
Illusoriness
‘ We first address Solano’s illusoriness point. Solano maintains that the language of the agreement gives Lucchese the unilateral right to terminate the agreement at any time, rendering Lucchese’s promise'to arbitrate illusory and causing contract formation to fail for lack of consideration. However, Solano cites to and directs his argument entirely at the arbitration agreement from the Benefit Plan, which is not the subject of this appeal. Here, we ' review ' only the arbitration agreement set out in the Problem Resolution Program. Solano makes no reference to the Program’s arbitration language in his brief. Because Solano failed to'explain how the language in the Program’s arbitration agreement rendered it illusory, we *416find that Solano has waived his illusoriness defense on appeal.
2.
Meeting of the Minds
Solano next maintains that the trial court’s judgment should be upheld because Appellant failed to establish that all parties had a “meeting of the minds” on all essential terms of the arbitration agreement. Tied in with this argument is his assertion that the terms of the arbitration agreement are ambiguous. We address these two points jointly.
“A meeting of the minds is necessary to form a binding contract.” David J. Sacks, P.C. v. Haden, 266 S.W.3d 447, 460 (Tex.2008). “Parties form a binding contract when the following elements are present: (i) an offer; (ii) an acceptance in strict compliance with the terms of the offer; (iii) a meeting of the minds; (iv) each party’s consent to the terms; and (v) execution and delivery of the contract with the intent that it be mutual and binding.” Karns v. Jalapeno Tree Holdings, L.L.C., 459 S.W.3d 683, 692 (Tex.App.—El Paso 2015, pet. denied). “Although often treated as a distinct element, meeting of the minds is a component of both offer and acceptance measured by what the parties said and did and not on their subjective state of mind.” Id. [Internal quotation marks omitted]. “In order to be legally binding, a contract must be sufficiently definite in its terms so that a court can understand what the promisor undertook.” T.O. Stanley Boot Co., Inc. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex.1992). “The material terms of the contract must be agreed upon before a court can enforce the contract.” Id. “Each contract should be considered separately to determine its material terms.” Id.
Solano avers that the essential terms of the arbitration agreement are too ambiguous to determine from the writings in the record; thus, no contract could have ever formed because the parties must not have mutually understood the other’s terms. In making this argument, Solano does not maintain that the Program’s arbitration agreement is ambiguous on its face. Rather, he contends that the Program’s arbitration agreement becomes ambiguous when read in light of the Benefit Plan’s arbitration agreement, since the two agreements irreconcilably conflict on material terms such as who will conduct an arbitration: TAMS or the American Arbitration Association
We first note that unless the Benefit Plan was incorporated by reference into the Program Agreement, it constitutes parol evidence that must be excluded in contradicting the Program Agreement’s terms unless the Program Agreement is ambiguous. In determining whether a contract is ambiguous, we first look only to the four corners of the document proffered and to other texts incorporated therein by reference. McDaniel Partners, Ltd. v. Apache Deepwater, L.L.C., 441 S.W.3d 530, 533-34 (Tex.App.—El Paso 2014, pet. filed); see also In re 24R, Inc., 324 S.W.3d at 567 (“Documents incorporated into a contract by reference become part of that contract.”). Only if a contract’s fully integrated terms are ambiguous will we consider conflicting extrinsic evidence that shed lights on the parties’ intent. McDaniel Partners, 441 S.W.3d at 533-34. “An unambiguous contract will be enforced as written, and parol evidence will not be received for the purpose of creating an ambiguity or to give the contract a meaning different from that which its language imports.” David J. Sacks, P.C., 266 S.W.3d at 450. This rule extends to other conflicting agreements. *417“If a. contract is unambiguous, the parol evidence rule precludes consideration of evidence'- of prior or contemporaneous agreements unless an exception to the par-ol evidence rule applies.” Id. at 451. While a court may consider “a prior or contemporaneous agreement that is both collateral to and consistent with a binding agreement, and that does not vary or contradict the agreement’s express or implied terms or obligations[,]” prior or contemporaneous agreements that conflict with that contract at issue are inadmissible. Id.
Here, the Program Agreement is not ambiguous on its face. Its terms are definite, ascertainable, and not subject to more than one reasonable interpretation. Per the terms of the Program Agreement at bar, “tort claims, (including, but not limited to, claims for physical, mental or psychological injury, without regard to whether such injury was allegedly sustained in the course and scope of employment ...)” are subject to arbitration under the terms set out in the Program Agreement. It is undisputed that Solano’s pleadings allege tort claims that would fall within the Program Agreement’s arbitral scope.
Further, the Program Agreement’s language never explicitly mentions or incorporates the Benefit Plan’s arbitration agreement by reference so as to create conflict on material terms. As such, the terms of the Program Agreement itself are those that govern here. However, the Program Agreement does apparently place the Benefit Plan in context when discussing scope, stating that “any claim by Employee for benefits under a plan or program which provides its own arbitration procedures” is excluded from the Program Agreement’s arbitration coverage.. That would as-sumedly mean that the Program Agreement’s arbitration provisions would not apply to a claim arising under the Benefit Plan, which contains its own arbitration procedures. Nevertheless, this coverage exception is inapplicable here. Solano’s case here does not pertain to .the administration of a claim filed within Lucchese’s internal worker’s compensation regime, but is only a standard tort claim covered by the Program. -
In short, Lucchese presented evidence of an unambiguous, presumptively valid arbitration agreement that explicitly embraces tort claims against the company. Solano, in turn, failed to provide evidence that the claims he presented would otherwise be excluded from -coverage because they were subject to the Benefits Plan. As such, we find .that both prongs of the arbitration test have been met: an arbitration agreement exists, and the dispute between the parties falls within its ambit. See Delfingen, 407 S.W.3d at 797. The trial-cpurt could not refuse to enforce the arbitration agreement on any defective formation grounds.
B.
Defenses Against Enforcement
Having determined that a valid arbitration contract formed, we next consider So-lano’s arguments that the trial court was justified in denying Lucchese’s motion to compel because he presented valid affirmative defenses to enforcement.
1.
Unconscionability
In the trial court and on appeal, Solano argues the contract,should not be enforced against him because its terms are unconscionable. .Lucchese contends that Solano provided insufficient evidence to establish that arbitration agreement was unconscionable., Thus, the trial court’s summary judgment denial could not have properly rested on those grounds. We agree. .
*418 “Agreements to arbitrate disputes between employers and employees are generally enforceable under Texas law; there’ is nothing per se unconscionáble about an agreement to arbitrate employment disputes[.]” In re Poly-America, L.P., 262 S.W.3d 337, 348 (Tex.2008). The party, seeking to invalidate the arbitration agreement bears the burden of proving unconscionability. Vista Quality Mkts., 438 S.W.3d at 124. .
“Unconscionability of an arbitration agreement may exist in one or both of two forms: (1) procedural unconscionability, which refers to the circumstances surrounding the adoption of the arbitration provision,- and (2) substantive unconsciona-bility, which refers to the fairness of the arbitration provision- itself.” ReadyOne Indus., Inc. v. Flores, 460 S.W.3d 656, 666-67 (Tex.App.—El Paso 2014, pet. denied).
We measure unconscionability in light of the totality of the circumstances and from the point the contract formed. Delfingen, 407- S.W.3d at' 798. “The grounds for substantive abuse must be sufficiently shocking or gross to compel the court to intercede, and the same is true for procedural abuse — the circumstances surrounding the negotiations must be shocking.” Id. In deciding .whether a contract is procedurally unconscionable, “we must examine (1) the entire atmosphere in which the agreement was made; (2) the alternatives, if any, available to the parties at the time' the contract was made; (3) the non-bargaining ability of one party; (4)' whether the contract was ■ illegal or against public policy; and (5) whether the contract is oppressive or unreasonable.” Delfingen, 407 S.W.3d at 798 [Internal quotation marks omitted]. The critical inquiry in reviewing an agreement for substantive unconscionability “is whether the arbitral forum in a particular case is an adequate and accessible substitute to litigation, a forum where the litigant can effectively vindicate his or her rights.” In re Olshan Found. Repair Co., L.L.C., 328 S.W.3d 883, 894 (Tex.2010)(orig. proceeding). “That inquiry is not satisfied by speculation but by specific proof in the particular case of the arbitral forum’s inadequacy.” Venture Cotton Co-op. v. Freeman, 435 S.W.3d 222, 232 (Tex.2014).
On appeal, Solano does not argue that the arbitral forum is.somehow inadequate or unfair. Instead, he focuses exclusively on the process by which Eucchese obtained his consent to arbitration. As such, Solano presents only procedural unconscionability grounds in support of the trial court’s judgment and not substantive unconsciona-bility grounds. We focus our analysis accordingly.
Solano maintains that we should affirm the trial court’s judgment because Luc-chese’s “unusually, unclean hands,” as demonstrated by the fact it presented an alternate arbitration agreement after being unable to compel arbitration under another agreement, strongly insinuates wrongdoing that rises to the level of procedural unconscionability. But the fact that Lucchese may have later “discovered” another on-point arbitration agreement after we struck down the first agreement is irrelevant to the procedural unconsciona-bility analysis. Oür inquiry focuses solely on the surrounding' circumstances at the time of contract formation. Delfingen, 407 S.W.3d at 801-03.
Here, Solano provided no independent evidence regarding the circumstances of the contract formation process. Instead, he points to inconsistencies in Hilda Matthews’ deposition testimony regarding her understanding of which arbitration agreement applied in' the event of a workplace injury — the Benefits Plan or the *419Problem Resolution Program — as proof that Lucchese lured him into entering into the Program’s, arbitration agreement by-having Matthews purportedly misrepresent the nature of the agreement and tell him it was an unimportant document. These testimonial inconsistencies are not enough to establish procedural unconscion-ability beyond mere conjecture, particularly when viewed in light of the fact that a signed, Spanish-language version of the Program Agreement bearing Solano’s signature appears in the record. This suggests that even if Matthews misrepresented the terms of the agreement, Solano presumably had the opportunity to review the actual agreement and verify its subject matter before assenting. “We presume a party, like [Solano], who has the opportunity to read an arbitration agreement and signs it, knows its contents.” EZ Pawn Corp. v. Mancias, 934 S.W.2d 87, 90 (Tex.1996). Absent any other evidence, we cannot say the circumstances surrounding So-lano’s signing of the Spanish-language toanslation of the Program Agreement indicated procedural unconscionability. Compare Delfingen, 407 S.W.3d at 801-03 (procedural unconscionability found where company affirmatively misrepresented contents of English-language arbitration agreement to Spanish-speaking employee, obtained his signature on the English-language agreement based on those misrepresentations, then never provided employee with copy of agreement in either English or Spanish). In sum, there is insufficient evidence 'to uphold the trial court’s judgment on the basis of unconscionability.
2.
Waiver and Estoppel
Finally, Solano maintains that we can uphold the trial court’s judgment on the basis that Lucchese waived its ability to compel arbitration under the Program when it already attempted to unsuccessfully compel arbitration under the Benefit Plan. We have already rejected Solano’s waiver and estoppel points in a previous appeal, and decline to further address these merits of these issues under daw of the case.
The law of the case doctrine holds that questions of law decided in one appeal govern the case throughout subsequent stages of litigation, including later appeals. Justice Bail Bonds v. Samaniego, 68 S.W.3d 811, 813 (Tex.App.—El Paso 2001, pet. denied). Application of this doctrine is discretionary and is “merely a practice to ensure consistency in court decisions” and “not a limit to the power of courts.” Telles v. Samaniego, No. 08-02-00234-CV, 2003 WL 22254711, at *4 (Tex.App.—El Paso Sept. 30, 2003, no pet.)(mem.op.). “Although appellate courts have discretion to depart from the doctrine in exceptional or urgent situations, we must be mindful of the public policy underlying law of the ease; to prevent useless relitigation of issues already decided, to insure consistency, and promote judicial economy.” Tomaszewicz v. Wiman, No. 08-00-00034-CV, 2002 WL 397003, at *2 (Tex.App.—El Paso Mar. 14, 2002, no pet.)(not designated for publication). The doctrine does not apply “if the issues or facts presented in successive appeals are not substantially the same as those involved in the first decision” or if ■“the prior appellate ruling is clearly erroneous.” Id.
We previously decided that neither waiver nor estoppel precluded Lucchese-from moving to compel arbitration when we reversed the trial court’s strike order. See Solano, 388 S.W.3d at 351-53. Nothing in the record indicates that the parties’ respective positions changed meaningfully on remand. As suehj ' law of the case' will apply here. The trial court’s judgment *420cannot be upheld on waiver or estoppel grounds.
CONCLUSION
Appellant established the existence of a binding arbitration agreement not subject to any valid defenses. The trial court erred by failing to enforce this agreement.
We reverse the trial court’s judgment and remand for further proceedings.
Barajas, Senior Judge .(Sitting by Assignment)
. Appellant’s brief also addresses the applicability of the FAA to this dispute and Solano's constitutional challenge to ¿he FAA under the Tenth Amendment to the United States Constitution. Solano’s brief raises neither of these points. We agree that the FAA applies to this case because there is evidence in the record to show' that Lucchese engages in interstate commerce. See Vista Quality Mkts. v. Lizalde, 438 S.W.3d 114, 121-22 (Tex.App.—El Paso 2014, no pet.). We decline to address any Tenth Amendment challenges to the FAA since Solano failed to raise them in his brief on appeal. But see In re Odyssey Healthcare, Inc., 310 S.W.3d 419, 423-24 (Tex.2010)(orig. proceedingXholding that the FAA does. not violate the Tenth Amendment).
. TAMS Rule A-8 provides in part:
A-8 Jurisdiction
(a) The arbitrator shall have the power to rule on the issue of jurisdiction, including any objection with respect to the existence, scope or validity of the arbitration agreement.
(b) The arbitrator shall have the power to determine the existence or validity of a contract which contains an arbitration clause.
. We recognize that the Fifth Circuit, in interpreting a contract under Texas law, appears to have held that under this State’s law, mere incorporation by reference of arbitration rules "presents clear and unmistakable evidence that the parties agreed to arbitrate arbitrability.” Petrofac, Inc. v. DynMcDermott Petroleum Operations Co., 687 F.3d 671, 675 (5th Cir.2012). We respectfully disagree. Incorporation of an arbitration organization’s jurisdictional rules is one factor to consider in determining the parties’ intent, but it is by no means dispositive. Haddock, 287 S.W.3d at 172. To the extent other federal circuits have also determined that incorporation of arbitration rules clearly shows the parties' intent to delegate gateway issues to an arbitrator, see, e.g„ Fallo v. High-Tech Inst., 559 F.3d 874, 878 (8th Cir.2009); Qualcomm Inc. v. Nokia Corp., 466 F.3d 1366, 1372-73 (Fed.Cir.2006), we. note that even under the FAA, the threshold question of what a contract says is a matter of state interpretational law. See First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944, 115 S.Ct. 1920, 1924, 131 L.Ed.2d 985 (1995); ReadyOne Indus., Inc. v. Carreon, 458 S.W.3d 621, 623-24 (Tex.App.—El Paso 2014, no pet.). Thus, we are not bound by those court’s decisions interpreting other states’ laws in reaching our decision today.
. For the purposes of the remainder of this opinion, we will refer to .the appellants collectively as "Lucchese.”
. As we stated previously, the trial court should compel arbitration .where a movant establishes (1) the existence of a valid arbitration contract and (2) that a claim falls within the scope of that contract. Iturralde, 387 S.W.3d at 793. Solano does not argue that his injury falls outside the scope of the arbitration agreement. We thus assume that the parties do not dispute Prong # 2 of the arbitration test, i.e., the fact that this type of injury is covered by the arbitration agreement. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284486/ | OPINION OF THE COURT BY
JUSTICE ABRAMSON
Two sets of Harlan County landowners, the Bakers1 and certain heirs (together with their spouses) of Chester Jackson (the “Jackson heirs”)2 jointly brought suit in Harlan Circuit Court seeking, among other things, damages'and a declaration of their rights under oil and gas leases executed in 2004 with Daugherty Petroleum, Inc. Daugherty is Appellee Magnum *590Hunter Production, Inc.’s (“MHP’s”) predecessor. The landowner-lessors sought a declaration to the effect that the .lessee production companies had miscalculated and underpaid- royalties due under the leases. Alternatively, they sought a declaration that the leases had expired. ■ The trial court rejected these'claims as a matter of law and, under Kentucky Rule of Civil Procedure (OR) 12.02, dismissed the corresponding portions of the landowners’ Complaint. The Court of Appeals affirmed, unanimously agreeing with the trial court that given royalty provisions such as those in the leases at issue here, Kentucky law does not embrace the so-called “marketable product” approach to royalty calculation. We granted the landowners’ motion for discretionary review to address their. contention that the lower courts in this case, as well as a recent spate, of federal court decisions on the “marketable product” question, including that of the United States Court of Appeals for the Sixth Circuit in Poplar Creek Dev. Co. v. Chesapeake Appalachia, L.L.C., 636 F.3d 235 (6th Cir. 2011),3 have misconstrued Kentucky law. We reject the landowners’ contention and therefore affirm.
RELEVANT FACTS -
The pertinent facts are not in dispute.4 In May 2004, the Jackson heirs executed an oil and gas lease (the “Jackson Lease”) giving Daugherty Production Company the exclusive right to explore for and produce if discovered “oil, gas, casing-head gas, and casing-head gasoline” on some 130 acres situated “on Laurel Fork of the Greasy Fork of the Kentucky River in Harlan County, Kentucky.” In October of that year, the Bakers executed a lease (the “Baker Lease”) giving the same rights to Daugherty on some sixty acres “situated on waters of Laurel Creek of the Greasy Creek of the Middle Fork of the Kentucky River in Harlan County, Kentucky.” Both Leases provide, in pertinent part, that the Lease will remain in effect for a primary term (one year under the Baker Lease and three years under the Jackson Lease), “and as long thereafter as oil, gas, casing-head gas, casing-head gasoline or any of them is produced from said leased premises.” In exchange for the Lessee’s right to produce and market oil and gas from the leased premises, the -Leases provide for royalties. With respect to gas, under both Leases the “Lessee covenants and agrees: ... To pay Lessor one-eighth of the market price at the well for gas sold or for the gas so used from each well off the premises.”
Within the Leases’ respective primary terms the Lessee completed gas wells on both properties and commenced paying royalties on the gas produced and sold. The raw gas is not suitable for sale at the well (or at least it is not sold there), so prior to sale the Lessee gathers, compresses, and treats the raw gas, and then transports the refined and enhanced product to purchasers elsewhere, “downstream” from the well. Fhom the sale price it ultimately receives for its enhanced gas, the Lessee deducts its gathering, compression, treatment, and transportation costs (as well as *591some other post-production costs), before calculating the landowners’ one-eighth royalty share on the remaining net revenue. For example, according to a September 2011 royalty statement for one of the Jackson heirs, MHP sold its processed and transported natural gas during the accounting period for $4.15 per Mcf (thousand cubic feet), but for royalty purposes MHP deducted from that sale price $3.65 per unit for- “transportation” expenses (The statement apparently lumps all of the post-production costs together under that heading.): That “work-back” calculation left $.50 per unit as the market price of the raw gas at the well — the amount upon which the landowners’ royalty was to be calculated under the Lease — and resulted in a royalty of $.0625 per unit.
Dissatisfied with what they regarded as an inadequate return on their Leases, the Jackson heirs and the Bakers (whose royalty was similarly determined) brought suit alleging, in part, that the Lease provision basing their royalty on “one-eighth the market price at the well” should be understood to contemplate not a- hypothetical sale of raw gas “at the well,”-but rather the sale of gas- made “marketable,” — by accumulating, compressing, and treating, if need be — and then sold “at the well,” again hypothetically, by deducting the expenses of transporting the marketable gas to some other point of sale. Thus, the landowners urged that royalty should be calculated by- deducting bona fide transportation costs from the sales price received downstream from the well; but any costs otherwise necessary to render the raw gas marketable are the producer’s responsibility and cannot be deducted from gross receipts in the calculation of royalty:5 This “marketable product” or “first marketable product” approach, the landowners insist, is-necessary to give meaning to the Lease’s inclusion of the term “market price at the well” because, in their view, until a product is' marketable it cannot have a- market price. Both courts rejected this argument, with the Court of Appeals noting that “market value (price) at the well” is even defined in Black’s Law DictionaRY (“Black’s”) as “[t]he value of oil or gas at the place where it is sold, minus the reasonable cost of transporting it and processing it to make it marketable.” Black’s at 1058 (9th ed. 2011) (emphasis supplied).
ANALYSIS ■
I. “Market Price at the Well” Has an Established Meaning in Kentucky . that Allows for the Deduction of Post-Production Costs Before Cal- . culating Royalty.
According to the landowners, the trial court’s and the Court of Appeals’ failure to make a distinction between transportation costs and the costs of otherwise making raw gás marketable (“processing costs”), resulted in the same misreading of Kentucky law that has occurred in the federal courts. Specifically, the landowners contend that to' give effect to a covenant implicit in' oil and gas leases whereby the lessee undertakes not merely to extract the raw mineral, natural gas in this case, but to make a reasonably diligent effort to market it as well, the lessee must bear the full responsibility for all processing costs necessary to achieve a marketable product.6 Our analysis begins, *592then, with this claim that Kentucky has not heretofore committed itself on the question of the apportionment of post-production costs under “market price at the well” royalty clauses, and that fairness demands a different apportionment of costs under such clauses than that approved by the trial court and the Court of Appeals. Neither aspect of the landowners’ claim persuades us that either the trial court or the Court of Appeals was wrong.
Oil and gas leases are contracts, of course, and like other contracts are to be construed as a whole so as to give effect to the parties’ intent as expressed in the language they chose. City of Louisa v. Newland, 705 S.W.2d 916 (Ky. 1986); Wilcox v. Wilcox, 406 S.W.2d 152 (Ky. 1966). Such leases are highly specialized contracts, however, often employing terms and clauses that have been judicially construed. Levin v. Maw Oil & Gas, LLC, 290 Kan. 928, 234 P.3d 805 (2010). While courts should be careful not to stymie intended departures from previously construed terms, id. absent a clear intent to depart, parties who employ terms that have been judicially construed may be presumed to have intended the established meaning. Prudential Ins. Co. of America v. Hams, 254 Ky. 23, 70 S.W.2d 949 (1934); Zachry Construction Corp. v. Port of Houston Authority, 449 S.W.3d 98, 112 n.66 (Tex. 2014) (“Contracting parties generally select a judicially construed clause with the intention of adopting the meaning which the courts have given to it.” (citation and internal quotation marks omitted)).
Many oil and gas lease terms have acquired judicially recognized meanings. “Royalty” has been defined as “the landowner’s share of production, free of expenses of production.” Ramming v. Natural Gas Pipeline Company of America, 390 F.3d 366, 372 (5th Cir. 2004) (citing Heritage Resources, Inc. v. NationsBank, 939 S.W.2d 118, 121-22 (Tex. 1996)); see also Black’s Law DictionaRY (9th ed. 2009) (“landowner’s royalty. A share of production or revenues provided for the lessor in the royalty clause of the oil-and-gas lease and paid at the well free of any costs of production.”) And “production,” has been widely understood to mean “the oil, gas, and other minerals that the lessee extracted from the ground at the well-head, where the lessee reduced the minerals to its physical possession.” Byron C. Keeling and Karolyn King Gillespie, The First Marketable Product Doctrine: Just What Is The “Product”?, 37 St. Mary’s L.J. 1, 29 (2005) (collecting cases in footnote 116) (“Keeling and Gillespie”). “Royalty,” then, has commonly been understood as the lessor’s cost-free share of the raw mineral “produced” at the point of capture (in the case of gas “at the well”).
If the gas is not sold at the wellhead, but is refined or processed in some way and moved to a place of sale downstream from the well, in most jurisdictions, “royalty’s” entitlement remains its portion of the raw gas initially “produced,” so that in calculating “royalty,” the lessee may deduct from its downstream receipts any “post-production” costs incurred to market the gas. Randy Sutton, Sufficiency of “At the Well” Language in Oil and Gas Leases to Allocate Costs, 99 A.L.R.5th 415 (originally published in 2002, updated weekly) (noting that the majority rule is to allow the proportionate allocation of reasonable post-production costs to the lessor). This approach to royalty is often referred to as the “at the well” rule, and the deduction of *593downstream costs to determine an “at-the well” value of the natural resource for royalty purposes is often referred to as the “work-back” or “net-back” method. Keeling and Gillespie, 37 St. Mary’s L.J., at 31-32.
As the Sixth Circuit Court of Appeals noted in Poplar Creek, Kentucky law has long embraced these principles. In Reed v. Hackworth, 287 S.W.2d 912, 913 (Ky. 1956), our predecessor Court considered a gas lease that provided the lessor with the standard one-eighth share of production royalty but was “silent as to the place of market and the price of the gas.” The lessee contracted to sell the gas to a utility company with the lessee obligated to build a pipeline from the well to the company’s facilities in exchange for a loan, to finance the pipeline and the -company’s agreement to purchase the gas eventually piped. The utility company was to pay $.25 per unit for the gas, $.10 of which was understood to be a transportation charge. The royalty owner brought suit seeking a declaration that her royalty was to be based on the full $.25 per unit paid to the lessee.
Reversing a judgment in the royalty owner’s favor, the Reed Court invoked the common understanding of royalty as a share of raw production, and made the corollary presumption that “where, as here, the lease is silent concerning the place of market and the price, the royalty should be applied to the fair market value of gas at the well.” 287 S.W.2d at 913-14. To arrive at that “at the well” value, the Court held that simply deducting the transportation cost from the downstream price of the gas was not unreasonable since the result, $.15 per unit, was consonant with the expert testimony that had been introduced to the effect that comparable sales in the area indicated an “at the well” market value in the neighborhood of $.12 to $.15.
Reed relied on two prior-cases, Rains v. Kentucky, 200 Ky. 480, 255 S.W. 121 (1923) and Warfield Natural Gas Co. v. Allen, 261 Ky. 840, 88 S,W.2d 989 (1935). Both involved similar one-eighth-of-gas-produced royalty provisions with the provisions silent as to how or where the production was to be valued. In both cases, the Court held that the presumption with respect to such royalty provisions is that royalty is to be valued “at the well side.” As the Court put it in Warfield,
Nothing was said in the lease about a sale elsewhere and this lease must be held, to mean one-eighth of the gross proceeds of a sale of the gas at the well side, and that is all for which defendant must account even though it may market the gas elsewhere and get a much greater sum for it.
88 S.W.2d at 992.
In Rains, the lessee sold the raw gas at the well-side to a pipeline company for $.06 per unit, and the pipeline company then transported the gas to the city of Williams-burg where it was able to resell it for $.42 per unit. The lessor brought suit claiming that he was entitled under the lease, which was silent as to how or where the gas royalty was to be valued, to a one-eighth share of the $.42 per unit sale price in Williamsburg. Rejecting that claim, the Court explained that
While the lessee of a gas well may be under the duty of using reasonable effort to market, the gas, we are not inclined to the view that this duty, in the absence of a contract to that effect, is so exacting as to require him to market the gas- by obtaining a franchise from some town or city and distributing the gas to the inhabitants thereof. On the contrary, he fully complies with his duty if he sells the gas at a reasonable price at the well side to another who is willing to undergo the risk of expending a large *594amount of money for the purpose of distributing the gas to the ultimate consumers. We are1 therefore constrained to the view that under the contract in question appellant was entitled to either $50.00 a year for each well or to one-feighth of the fair market price of the gas at the well side. ' '
255 S.W. at 122-23.
Reed, Warfield, and Rains all understand royalty, absent an express contrary provision, as the lessor’s cost-free share of production, with “production” understood, in the case of gas, as the raw gas captured at the well. Valúe “at the well” is thus the default measure of royalty in Kentucky where a lease is silent, and absent some clear indication to the contrary, leases, such as those at issue here, which expressly provide for that very measurement will be understood as intending Kentucky’s long-established approach.
The Sixth Circuit Court of Appeals thus clearly did not misconstrue our cases when it held in Poplar Creek that
Kentucky follows the “at-the-well” rule, which allows for the deduction of post-production costs prior to paying appropriate royalties. We further hold that ■ “at-the-well” refers to gas in its natural state, before the gas has been processed or transported from the well.
636 F.3d at 244. Contrary to the landowners’ contentions in this case, this holding accurately states Kentucky law.
■Against this result, Baker and the Jackson heirs refer us to an alternative ■ approach to royalty which is developing in a handful of jurisdictions and which has come to be referred to as the “marketable product” or the “first marketable product” approach.- Rachel M. Kirk, Variation's in the Marketable-Product Rule From State to State, 60 Okla. L.R. 769 (2007) (discussing developments in Colorado,’ Kansas, Oklahoma, and West Virginia) (“Kirk”). Under this approach,- royalty is still thought of as the lessor’s cost-free share of production. ■ “Production,” however, is understood not simply as the initial capture of the raw mineral, but in light of the lessee’s implied duty to market the captured minerals, is instead thought of as extending to the production of a “marketable” product. If marketability requires compressing, processing, or transporting the raw gas, for example, then under the “marketable product” approach those costs, or some of them , at least, must be borne by .the lessee without contribution from the royalty interest. Kirk at 773-75.
Baker and the Jackson heirs insist that some variation of the marketable product approach is consistent with the cases discussed above, Reed, Warfield, and Rains, because those cases addressed only transportation costs. Allowing the lessee to deduct transportation costs from its gas sale receipts makes sense under an “at the well” royalty provision, they concede, because'those deductions have the effect of returning the sale to the well-side. Other postproduction cost deductions, however, such as the gathering, compression, and treatment cost deductions at issue here, should not be allowed, they insist, to the extent that such expenditures are required to obtain a “marketable” product. They base this contention on the lessee’s duty to market and -on the royalty- clause, which provides that royalty is to1 be based on the “market price at the well.” There can be no market price, they contend, until there is a product that can be marketed. We are not persuaded.
As noted already above, Kentucky recognizes, as do all of the major oil and gas producing jurisdictions, Kirk at 774, that “the lessee of a gas well [is] under the duty of using reasonable effort to market the gas.” Rains, 255 S.W. at 122. Rains *595and Reed (relying on Rains) hold, however, that that duty does not extend beyond “sell[ing] the gas at a reasonable price at the well side.” Id. As also made clear in the cases already cited, the reasonable well-side price may be determined either by an actual well-side sale, Rains, by comparable sales in the vicinity, Warfield, or by working back from a downstream sale by deducting the downstream costs, Reed. See also, Cumberland Pipe Line Co. v. Commonwealth, 228 Ky. 453, 15 S.W.2d 280 (1929) (holding that for tax purposes, the market value of crude oil “at the well,” could be .determined by deducting downstream costs from downstream sale proceeds); Keeling and Gillespie, 30-36 (discussing the work-back method and collecting cases in which it was approved). In other words, our law requires, under this sort of royalty provision, that production be marketéd, but once it is, we allow a presumption that it was marketed “at the well,” with the value (or proceeds) at that point (arrived at if necessary by applying the work-back method) providing the basis for calculating the royalty. As noted, this result is in line with the majority position, and in particular it comports with the recent rejection of the “first marketable product” approach by two of our sister states. See Kilmer v. Elexco Land Services, Inc., 605 Pa. 413, 990 A.2d 1147 (2010), and Bice v. Petro-Hunt, L.L.C., 768 N.W.2d 496 (N.D. 2009).
These same considerations also answer Baker and the Jackson heirs’ contention regarding the royalty clause’s use of the words “market price at the well.” Without more specificity, those words cannot rear sonably be construed to require that royalty be based on the actual price for which the processed gas, an enhanced product, was sold less transportation costs, or tjie first price for which the gas could have been sold less transportation costs. Our law requires rather that, absent- clear provision otherwise, royalty be based on the value (or price or proceeds) of the raw gas first produced, a value (or price or amount) that can be determined, if the raw gas was not actually sold, by means of the work-back calculation.
As for the landowners’ “fairness” argument,. it seems abundantly dear that the market value at the well approach employed by Kentucky, and the majority of states is not only long-standing hut also fair in every sense. If the landowner’s royalty is calculated on the amount received .by,the lessee downstream minus only transportation costs, the landowner receives more than one-eighth of the value of the raw gas produced from his property,. i.e., he receives one-eighth of the value of the processed gas, an enhanced product, without having borne any of the costs associated with turning the raw gas into that moré valuable product. The “first marketable product” approach, thus, distorts the seven-eighths/one-eighth split of the “market price at the well” for which the parties contracted.
•In sum, the use of the phrase “market price at the well” in these Leases invokes our usuál “at the well” rule, it does not alter it. The trial court and the Court of Appeals did not err by - concluding that Count I of the complaint, alleging improper deductions from royalties under the Baker and Jackson Leases; failed to state a claim. '
II. The Leases Have Not Terminated Under Their Habendum Clauses.
The trial court also dismissed Count IV of the Complaint, wherein the Bakers and the Jackson heirs contended that if the gas produced at the wellhead is not marketable there then the gas is not being produced “in paying quantities” and the Leases have expired; As noted above, *596the Leases at issue provide for a fixed primary term, after which they continue in effect only “as long ... as oil, gas, casing-head gas, casing-head gasoline or any of them is produced from said leased premises.” Although this habendum clause7 does not say that any of the named minerals must be produced “in paying quantifies,” the landowner-lessors correctly note that production “in paying quantities” is generally deemed implicit in the requirement that the lease be productive. Anadarko Petroleum Corp. v. Thompson, 94 S.W.3d 550, 554 (Tex. 2002) (“In Texas, such a habendum clause [‘as long thereafter as oil, gas, or other mineral is produced’] requires actual production in paying quantities.”); Tucker v. Hugoton Energy Corp., 253 Kan. 373, 855 P.2d 929, 935 (1993) (“Although the phrase ‘in paying quantities’ may not appear in oil and gas leases, it implicitly is a part of the ha-bendum clause.”).
In Kentucky, “paying quantities” in this context has been held to mean “such quantities as are susceptible of division between the parties and as will yield a royalty to the lessor that justifies the occupancy of and interference with his use of his lands by the operations.” Warfield Natural Gas Co., 59 S.W.2d at 538; Cumberland Contracting Co. v. Coffey, 405 S.W.2d 553 (Ky. 1966) (holding that one- and-one-half barrels of oil per week was not “production” as contemplated by the habendum clause). This law would seem to defeat the landowners’ claim, because they do not dispute that they are actually being paid royalties on more than a de minimus amount of natural gas produced on their land.
In what can only be described as a strained attempt to avoid application of the controlling law, the landowners contend that if “production” is deemed to cease at the wellhead, as for royalty purposes it does, then “production” is paying nothing, for habendum clause purposes, much less “paying quantities,” because the raw gas is not being sold as is at the well and perhaps could not be sold there. Without “paying quantities”- under this creative construct, the landowners contend that the Leases have expired under the above-quoted provision which extends their terms only “as long thereafter as ... gas ... is produced from said leased premises.” We reject what we regard as a hyper-technical argument contrary to the plain meaning of the Leases.
The habendum clause requires that a sufficient quantity of , gas be “produced” to yield, once the gas is marketed in a reasonable manner, a royalty that would justify the operation. The royalty clause implicates “production” in a .more technical sense — gas brought to the well — to. define the point at which the royalty interest in the gas is to be valued. The two clauses and the two slightly different senses of “production” are not incompatible and they do not suggest in any way that the “at the well” approach to royalty valuation calls the ongoing productiveness of the Leases into question when sales of the gas are not actually occurring at the well-side. Clearly MHP is producing “paying quantities”, of gas from the leased premises, giving the' landowners no credible argument that the Leases have expired. Again, the trial court and the Court of Appeals did not err by concluding that Count IV of the Complaint failed to state a claim.
CONCLUSION
In sum, we concur with the Sixth Circuit Court of Appeals’ identification of Ken*597tucky as an “at the well” state with respect to gas lease royalty valuation. For the purposes of such valuation under standard “market price (value) at the well” royalty clauses, the lessee is solely responsible for the costs of production — of bringing the gas to the well — but post-production costs for such marketing-related enhancements as accumulating, compressing, processing, and transporting the gas may be deducted from gross receipts before the calculation of the royalty share. The Leases at issue, by employing the term “market price at the well,” explicitly reflect this method of royalty valuation. Further, the record reflects that “paying quantities” are being produced from the leased premises, refuting any suggestion that the Leases have expired pursuant to their habendum clauses. Accordingly, we affirm the Opinion of the Court of Appeals.
All sitting. All concur.
. Nobe Baker and his wife, Joann Baker, now deceased.
. Colene Jackson Wickline, Lillie Jackson, Lowell Jackson, Geneva Lee Jackson, Jerold Jackson, Virginia L. Jackson, Merle Jackson, Louellen Jackson, Harold Jackson, Sandra Jackson, Carolyn Ruth J. Knuckles, Charles Knuckles, Sue Carol J. Farley, and Anthony Farley.' Appellants’ brief suggests that Colene Jackson Wickline has been succeeded by Michael Wickline, Janet Wickline, Cassie Wick-line, and Kimberly Wickline.
. See also, Appalachian Land Co. v. EQT Prod. Co., 2012 WL 523749 (E.D. Ky. 2012); In re KY USA Energy, Inc., 448 B.R. 191 (Bankr. W.D. Ky. 2011); Thacker v. Chesapeake Appalachia, 695 F.Supp.2d 521 (E.D. Ky. 2010).
. As the parties note, a motion to. dismiss under CR 12.02 for failure to state a claim, should not be granted, as it was here, unless, even assuming that' the plaintiffs factual allegations are true, the plaintiff is not entitled to relief as a matter of law. Fox v. Grayson, 317 S.W.3d 1 (Ky. 2010). For the purposes of this appeal, therefore, MP.H does not dispute the landowners’ rendition of the facts, and we review the lower courts’ application of law to those facts de novo. Id.
. The landowners would limit the lessee’s responsibility to producing a "first” marketable product and would allow, once marketability is achieved, a deduction from gross receipts of the costs of further enhancing the product.
. The landowners derive this implied covenant from the following language in Warfield Natural Gas Co. v. Allen, 248 Ky. 646, 59 S.W.2d 534, 536 (1933): ”[I]n the .absence of specification of duties and obligations intend*592ed to be assumed, the law will imply an agreement to do and perform those things that according to reason and justice the parties should do in order to carry out the purpose for which the contract was made.”
. A "habendum clause” is the "part of an instrument ... that defines the extent of the interest being granted and any conditions affecting the grant.” Black’s at 778. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284487/ | OPINION OF THE COURT BY
JUSTICE NOBLE
When a disabled adult under the state’s care is alleged to have been abused or to have died from abuse, the Cabinet for Health and Family Services investigates and produces confidential records related to. the investigation. Though otherwise confidential, those records may be disclosed to certain individuals and groups under ICRS 209.140, including “social service agencies ... that have a legitimate interest in the case.” ICRS 209.140(3). Does this confidentiality exemption extend to a private non-profit corporation that advocates generally for “children and adults with mental retardation and their families and other interested persons in the community”? We conclude that it does not, and thus affirm.
I. Background
The Appellant, the Council on Developmental Disabilities,- Inc., is a Kentucky nonprofit corporation that advocates for “children and adults with mental retardation and their families and other interested persons in the community.” It receives funding from several sources, including Metro United Way and the Louisville/Jefferson County Metro Government.
In January 2010, the Council learned of the death of Richard Tardy, a mentally disabled man who had been in the Cabinet’s care. For the majority of 2009, Tardy resided in Central State Hospital in Louisville, Kentucky. In late 2009, Tardy was transferred to a group home located in Somerset, Kentucky. That home was operated under Supports for Community Living (“SCL”), a Kentucky Medicaid program providing an alternative to institutional care for individuals with intellectual and developmental disabilities. See 907 KAR 1:145.
Tardy died approximately three months after being transferred to the group home. After his death, accusations were made that facility caretakers were abusing residents. On January 27, 2010, April DuVal, then the Council’s acting Executive' Director, filed a request with the Cabinet under the Kentucky Open Records Act, KRS 61.870-.884, seeking information about Tardy’s death. The Council’s open-records request demanded documents relating to “all investigative and follow-up activities completed on behalf of Richard Tardy.” On February 9, 2010, the Cabinet denied the Council’s request on the grounds that the records were confidential under KRS 209.140 and that the Council did not qualify as an organization exempt from the confidentiality restrictions in that statute.
The Council appealed the Cabinet’s decision to the Attorney General as allowed by KRS 61.880(2). The Council argued that it was not statutorily barred from obtaining the records because it qualified as a social service agency with a legitimate interest in the records under KRS 2091140(3). The Attorney General disagreed and found that the Council did not have a legitimate inter*599est in the records.because it did “not provide services directly to Mr. Tardy or advocate specifically on his behalf while he was living, and ... does not otherwise have a ‘legitimate interest in the case’ based upon the agency’s reasonable interpretation of this language.” In re The Council on Developmental Disabilities, Inc./Cabinet for Health and Family Services, Ky. Op. Atty. Gen. 10-ORD-080, at 9 (April 21, 2010).
The Council did not appeal the Attorney General’s decision. Instead, it filed a second open-records request on July 28, 2010. This request sought documents relating to the death of Gary Farris. Like Tardy, Farris was a ward of the Commonwealth and was transferred from an institution to a community residence -shortly before his death. The Council’s open-records request specified its desire to receive “copies of all investigations, coroner’s report(s), and Mortality Review Committee findings.” The request also included a general demand for any documents relating to the “deaths of any other individuals who were transferred by the Cabinet ... from [state-run institutional], placements and died in community placements after January 1, 2008.” The Cabinet denied the Council’s request, relying on the same reasoning for its first denial.
This time, instead of seeking review from the Attorney General, the Council filed suit in Franklin Circuit Court under KRS 61.882.1 The Council sought an order requiring the Cabinet to disclose the requested records.
The trial court denied the Council’s request. The court stated that the Council was “most likely not a- ‘social service agency5 as contemplated by the statute,” but ultimately avoided resolving that issue. Instead, the trial court’s denial was based on its finding that thé Council had failed to demonstrate that it-had a legitimate interest in the records sought.
The Court of Appeals, in a divided panel, affirmed the trial court. The majority agreed that the Cabinet was not obligated to disclose the records. One member of the majority agreed with the trial court that the Council did not have a legitimate interest in the case, and thus did not fall under the exception laid out in KRS 209.140. Another member of the majority concluded that social services agency, as used in the statute, means only a governmental agency, and thus excluded the Council. The third member of the panel dissented, claiming the Council met the exception.
This Court granted discretionary review.
II. Analysis
The Kentucky Open Records Act generally allows “free and open examination of public records.” KRS 61.871. It also exempts some records from disclosure. See KRS 61.878(1) (“The following public records are excluded from the application of KRS 61.870 to 61.884....”). One of the exemptions, the one at issue in this case, is for “[pjublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.” KRS 61.878(l)(i). This catch-all provision refers to instances where the General Assembly has designated records as confidential, and thus exempt from disclosure, in a statute other than the Open. Records Act. :
The -General Assembly, has done this in KRS 209.140, which begins by saying that *600“[a]ll information” obtained by the Cabinet for Health and Family Services in an investigation under Chapter 209 “shall not be divulged to anyone.” The statute then lists the exceptions for who may receive the information. The exceptions include “[pjersons suspected of abuse or neglect or exploitation,” KRS 209.140(1), “[p]ersons within the department or cabinet with a legitimate interest or responsibility related to the case,” KRS 209.140(2), and “[o]ther medical, psychological, or social service agencies, or law enforcement agencies that have a legitimate interest in the casé,” KRS 209.140(3).
As noted above, the question in this case is whether the Council fits under the social-services-agency exception to the confidentiality of the Cabinet’s investigative records. This is a pure question of law, and thus our review is de novo. See Lawson v. Office of Atty. Gen., 415 S.W.3d 59, 65 n. 5 (Ky.2013) (“Our review is plenary of issues concerning the construction. or application of the Act.... [0]ur review ... is de novo.”).
The ' Council, of course, apparently claims that it does fall under the exception,2 having noted in its open-records request that it “monitor[s] the Commonwealth’s discharge of its statutoiy duties to vulnerable and dependent adults with intellectual disabilities, and ... tr[ies] to identify, address and publicize any problems in the Cabinet’s performance of those duties.” In essence, the' Council claims that it provides social services, and that it had an interest in these particular cases, as part of its general interest in advocating on behalf of dependent adults and in providing social services to that population as a whole.
The argument in opposition to this claim is that it would so extend the social-services-agency exception as to render confidentiality meaningless. First, this would allow “social services” to include any activity aimed at helping people, iii this case, dependent adults. Second, this would read “legitimate interest in the case” to include indirect interests, here in the general subject of the death' of dependent adults. In essence, the Council’s interpretation of KRS 209.140(3) would extend the exception to include any watchdog group that has a general interest in subjects investigated by the Cabinet under KRS Chapter 209. Arguably, this reading is so broad as to swallow the stated intent of KRS 209.140, which begins by saying that the information obtained during the Cabinet’s investigation under this chapter “shall not be divulged to anyone.” (Emphasis added.)
A. Legislative Intent
*601By declaring that the information at issue is confidential and limiting its accessfi bility, the General Assembly has made clear that it is intended only for the people and the agencies and providers that are actually involved with that adult in providing services or dealing with related criminal prosecutions. Because the meaning of the term “social service agency” is established by statutory context, a dictionary definition alone is not sufficient to give legal definition to the term. And the Council’s reading of that term does not take into account why the term was used in the first place, and disregards the legislature’s clear intention in enacting a confidentiality provision at all.
We begin by noting that the confidentiality provision and its exceptions are meaningful only in context of Chapter 209, which must be reviewed in its entirety.
Under the Kentucky Adult Protection Act, KRS 209.080-.990, adults of the Commonwealth who are unable to manage their own affairs, or who are unable to protect themselves from abuse, neglect, or exploitation, are able to access a system of protective services to provide assistance in these areas. The Act imposes a duty on all Kentuckians to report suspected abuse, neglect, or exploitation to the Cabinet, even when the adult dies. KRS 209.030(2). Upon receiving such a report, the Cabinet is required to investigate. KRS 209.030(5). In undertaking an investigation, the Cabinet is required,'at least, to interview the adult, to assess his or her risk and safety factors, and to identify a potential perpetrator (if possible). KRS 209.020(10). And, through the Office of Inspector General, the Cabinet is to identify any failure of a regulated .or licensed facility to adopt or enforce policies which led to abuse, neglect or exploitation of an adult. Id. When abuse or neglect is alleged to have caused the death of a dependent adult, the investigation shall include examining a coroner’s or doctor’s report. Id. The primary purpose of such .an investigation is to determine whether the adult needs protective services, which will be offered, but obviously is also to investigate when the death of a dependent adult occurs. KRS 209,030(9). Because the investigated abuse, neglect, or exploitation can have a criminal element, the Cabinet is also required to coordinate with law enforcement. KRS 209.030(6)(a).
Ordinarily, when services are offered to an adult, 'they may be declined. KRS 209.030(9).- This is in line with the legislature’s overall intent to “authorize only the least possible restriction on the exercise of personal and civil rights.” KRS 209.090. Nevertheless, some adults lack capacity to decline services. To that end, the legislature established emergency access to protective services for such adults. KRS 209.100(1). Services may be ordered for such adults, after a hearing by a court, id. which must order the least restrictive interventions, KRS 209.100(2). The petition for these services is brought by the Cabinet. After the petition is filed, a guardian ad litem must be assigned to represent the interest of the adult, and the court must conduct the hearing on the matter as set forth in the statute. KRS 209.110. As a result of any orders by the court providing for protective services, the Cabinet must submit a report to the court describing the services provided once a month, for so long as the services are provided.
There is also a provision for an ex parte emergency order when an incapacitated adult will suffer “immediate and irreparable physical injury or death if protective services are not immediately provided.” KRS 209.130(1). Such an order must be followed by an appropriate hearing within 72 hours (exclusive of Saturdays and Sundays). KRS 209.130(3).
*602In determining if protective services are needed, the Cabinet must investigate allegations about the adult. But it may not disclose this information to anyone, with a few carefully delineated exceptions, which include- the party suspected of committing the abuse or neglect (and may withhold the names of informants from this party); persons within the Cabinet offices that may have a responsibility toward the adult; or other medical, psychological' or social services agencies, or law enforcement agencies that have a legitimate interest in the case. KRS 209.140(l)-(3). In context, it is clear that the disclosure may be made to- the persons or entities that are dealing with the specific event that required services, and with actually obtaining those immediate services for the dependent adult.-
KRS Chapter 209 essentially deals with the process of obtaining protective services for adults who are unable to obtain their own protection. And the confidentiality provided by KRS 209.140 specifically applies only to. an “investigation made pursuant to this chapter.” (Emphasis added.) “Adult,” as used in the chapter, means a person, 18 years of age or older, “who, because of mental or physical dysfunction-ing, is unable to manage his or her own resources, carry out the activity óf daily living, or protect him or herself from neglect, exploitation, or a hazardous or abusive situation, without assistance from others.” KRS 209.020(4).
Gary Farris, and others meeting this definition who died in care, were adults under this chapter. Investigations into their deaths were to be undertaken under the chapter, and the information revealed by those investigations was to be confidential, disclosable only to the limited persons and entities laid out in KRS 209.140. As noted above, this includes “social services agencies ... that have a legitimate interest in the case.” KRS 209.140(8).
B. The council is not a social services' agency with a legitimáte interest in the case under KRS 209.140(3).
The entirety of Chapter 209 is directed toward dependent adults who are not able to fend for themselves, and are in a situation where they are being abused, neglected, or exploited. If family is available, a family member is either the perpetrator of the abuse, neglect, or exploitation, or fails to prevent it. This chapter is designed for the instances where the government must step in to protect this dependent adult.
If an adult under this chapter dies, the Cabinet must review a doctor’s or coroner’s report if abuse or neglect is alleged to be the cause of death. The investigator must “[m]ake a written report of the initial findings together with a recommendation for further action, if indicated.” KRS 209.080(5)(d). Though the statute says nothing about making a final report at the end of the investigation, presumably one is made. The Cabinet’s own'regulations require that investigators “shall maintain a written record, as specified in KRS 209.030(5), to include: (a) [^Information reported in accordance with KRS 209.030(4); and (b) [a] narrative documenting ... [t]he investigation ... and ... [findings of the investigation.” 922 EAR 5:070 § 4(3).
This is precisely the type of information that is made confidential by. KRS 209.140. The purpose of these records is to, allow the Cabinet to keep track of the case that it has a duty to investigate, wholly a function of internal operations.
The Cabinet also has standing to make a criminal complaint, KRS 209.150, in which ease the written records have a limited use outside the Cabinet. ” Indeed, there may be times- when the Cabinet is the only entity in a position to make such a com*603plaint, such as when the adult has no family, or other government agencies involved in the case do not do so. But once the criminal complaint is made, the case is pursued by police, who will do their, own investigation, and prosecutors, who clearly are entitled to the -investigative material as members of law enforcement with a legitimate interest in the case. KRS 209.140(3).
Significantly, the Act does provide for another report to be disclosed to persons or entities other than those listed in KRS 209.140. This report “summarizes the status of and actions taken on all reports [of alleged abuse] received from authorized agencies and specific departments,” and it may hot contain individual identifying information. KRS 209.030(12)(b). This annual report is provided to the Governor and the Legislative Research Commission. Id. This is the only statute that requires the Cabinet to make a. report to entities outside itself.
It is of further significance that KRS 209.030(12)(b) also requires the Cabinet to make this report available to community human services organizations. The Council is such an organization, and it is. entitled to that report.
But the Council is not a social service agency 'with a'legitimate interest in -the case under this chapter entitled to specific case investigative material for several reasons.
First, as used throughout the statutes, the term “agency” is applied to a governmental entity charged with carrying out some function on behalf of the executive branch of government, unless specifically stated otherwise. The term embodies the notion that employees performing the tasks are acting in the shoes of the government. Indeed, when discussing “agency” as used in this statute, Black’s Laio Dictionary describes it as “[a]n official body, esp. within the-government, with the authority to implement and administer particular legislation.” Black’s Law Dictionary (10th ed. 2014) (emphasis added). The tasks as described in the statutes are directed toward performing a governmental function, such as providing protective services for a dependent adult. This is particularly true iñ’a chapter that deals exclusively with providing protective governmental services to adults who meet the statutory definition.
Second, the exception to confidentiality in KRS 209.140(3) is designed to give day-to-day information about an individual to those agencies that need the information to do their jobs. Each of the exceptions aims at a specific purpose. Suspects have the right and need to know that they have been accused of conduct that could lead to a criminal charge, though even then, the legislature permitted the Cabinet to withhold the name of the informant unless ordered by the court to reveal it. KRS 209.140(1). Of course, the abused, neglected, or exploited person is entitled to know what any investigations into his or her life reveal. KRS 209.140(5). If a court orders release of the information, of course the Cabinet must comply, because it is certainly the presumption that the court will have a good reason to do so. KRS 209.140(4).
But the remaining categories involve action regarding-the specific adult. The first is persons within Department for Community Based Services1 or other Cabinet departments that have a “legitimate interest or responsibility related to the case.” KRS 209.140(2). Then there is -the list of other agencies and ■ providers that may need information about the case to do their job. These are -medical and psychological treatment providers, and social service or law enforcement agencies that have a “legitimate interést in the case.” ICRS 209.140(3) (emphasis added). To read this exception to be a broad grant of access to *604any group that might simply want to know, • for whatever reason, is simply to read this section of the statute out of context and to ignore the purpose and intent of the whole chapter.
The phrase “legitimate interest in the case” means something narrower than a generalized interest in the type of case at issue. Note that the exception for persons in the department or cabinet is also limited to those “with a legitimate interest or responsibility related to the case.” KRS 209,104(2). Employees of the Cabinet, given the nature of their work, obviously have a general interest in adult-protection investigations. Yet only some of the Cabinet’s employees — those with a legitimate interest in the case — may have access to information revealed in an investigation.
The same qualifying phrase, “legitimate interest in the case,” applies to social services agencies in KRS 209.140(3). It would be a bizarre reading of that phrase, however, if it meant that persons removed from the case in question but nevertheless employed by the Cabinet would be denied access, yet a non-profit organization with no interest in the case beyond a generalized desire for information about dependent-adult abuse, would be allowed access. Indeed, if that were the correct reading, any and all medical, psychological, and law enforcement agencies — the other agencies listed along with social services agencies in KRS 209.140(3) — could access the information if they can identify a generalized concern over safety of dependent adults. But it seems highly unlikely that the General Assembly intended the exception to be so broad as to allow, for example, police officers with no investigative connection to a given case of adult abuse to have access to the records of that case. Such a reading effectively nullifies the legitimate-interest-in-the-case qualifying language.
And it is significant that the legislature used different terms to describe who gets what degree of access to the Cabinet’s information. The annual report to ■ the Governor and Legislature that the Cabinet must make on all allegations of adult abuse, neglect, or exploitation, and the actions taken in each case must be made available to “community human services organizations,” while the content of “investigations” may be given only to social services agencies with a legitimate interest in the case (or other appropriate excepted parties).
We must assume the disparate language used is intentional bn the legislature’s part. Indeed, the distinction makes sense. A community human services organization is a local organization only, tied to a specific community as the Council is here. The Council is funded partially by the Louisville Metro Government. No other governmental entity in the Commonwealth has been identified that financially supports its efforts. It does not appear to provide direct services to adults who would qualify under the statute, and certainly did not provide such services to the adults identified in its open-records requests. Instead, its mission is more humanistic, or policy oriented, as a watchdog or advocacy group: it is a human services organization. And it is a privately established organization, not an agent of the state. No one could reasonably argue that it is entitled to sovereign immunity as an arm,, agent or alter ego of the state, even if it does receive some government funding.
On the other hand, a social services agency, in context with the other agencies entitled to disclosure, provides services on behalf of society at the behest of the government. The most probable example of this term is a nursing' home, or group home, that is charged with providing , for the “activity of daily living” and the “pro*605tection” of an individual adult under the chapter, such as under Supports for Community Living. Such an entity would be an agent of the state. An agency providing actual services to an adult under Chapter 209 certainly needs to know about the abuse, neglect, or exploitation that led to a particular adult being placed in its care, so that appropriate services, including medical and psychological services, as well as a safe living environment, could be provided. Or it would need to know if its policies or procedures are being violated, so that corrective action can be taken. Such an agency’s need to know necessarily includes information that serves to identify the adult, and the legislature understandably did not require such private information redaction under KRS 209.140 for social service agencies as it did under KRS 209.0S0(12)(b) for community human services organizations.
This distinction is further supported by KRS 209.030(5)(b), which requires the Cabinet to notify “each appropriate authorized agency” when an investigation begins, and during the pendency of an investigation, as needed. It simply cannot be reasonably argued that the Cabinet is required to give the Council notice when an investigation is being started, and updates throughout as it is required to do for a social services agency. The point of such notice is to let the agency then involved with the adult know that there is an investigation related to this adult.
For example, a state-run residential home where the adult lives should be put on notice; or the police should be put on notice that abuse, neglect or exploitation has been alleged because the investigation information may be helpful in proceeding with criminal charges; or medical or psychological providers may need to know how their patient’s injuries occurred. This, language requiring notice to each appropriate authorized agency or treatment provider can only be referring to the agencies and providers listed-as entitled to the otherwise confidential investigative information under KRS 209.140(3). Notifying agencies that are actually involved in an adult’s case makes sense. Notifying the Council of every investigation in every case would be absurd.
And KRS 209.030(11) only requires the Cabinet to consult with “local agencies and advocacy groups,” among others, to encourage these groups to share information with the Cabinet, and to allow the' Cabinet to provide training about the abuse, neglect, and exploitation of adults and the services available to them. The Council is, by its own -definition, such an advocacy group.
Thus, that local agency and advocacy groups do not have the legitimate interest in the case to obtain individualized case information is apparent through what the legislature has specifically said they should get: the annual report going to the Governor and the Legislative Research Commission, and consultation and training with the Cabinet to assist in promoting awareness of adult abuse, neglect, or exploitation and training on how to convey complaints to the Cabinet.
Another significant point is that while this case focuses on the death of a dependent adult, .the vast majority of- cases -under this chapter focus on the living dependent adult. The effect of language in the statute must be determined based upon the entire intent and purpose of the chapter, which in Chapter 209 is to provide protective services to dependent adults,- and which necessarily qualifies who needs confidential information, and why. Chapter 209 only references investigating the death of a dependent adult when there are allegations that the death is the result of abuse or neglect. The simple fact is that there are other agencies who investigate *606deaths and how they occurred that are better suited to such an investigation, such as law enforcement. Of course, if the Cabinet learns of abuse or neglect in a state-run agency, whether it led to a death or not, it must notify law enforcement, and take steps to require the agency to correct the situation. But that is not covered under Chapter 209 either.
It might be a better policy to require the Cabinet, if it does any kind of investigation, to give the details to any group that wants to know about it. That would certainly comport with the Open Records Act’s general policy. But the legislature has opted against such a broad policy and has carved out an exception to the general open-records policy by making the information sought in this case confidential. It is not our role' to define that confidentiality away simply because advocacy or watchdog groups serve.a valid purpose.
It is in fact easy enough to see why this information is allowed to be confidential, as the investigative materials no doubt contain sensitive personal information, and those aspects of the information that should be publicly available are adequately covered in the required annual report which is disseminated on request and is available to the Council. By limiting the investigative materials, while also allowing access to the report, the privacy rights of individuals are protected, and the public’s interest in disclosure is satisfied. And there is little doubt that law enforcement will thoroughly investigate the death of a dependent adult to bring charges when appropriate;
Obviously, it also is in the Cabinet’s best interest to correct situations allowing for abuse and neglect to avoid further complications: To assume the Cabinet is deliberately hiding such acts is specious. Further, given the somewhat duplicative nature of this request versus what is already available to the Council, the actual burden on the Cabinet of producing potentially voluminous records, diverting funds and personnel to do so, is simply not justifiable.
III. Conclusion
Despite its laudablé purpose, the Council is'not entitled to the information requested under the Open Records Act or KRS 209.140(3). Despite the broad policies in favor of disclosure and of strictly construing' exceptions to disclosure, there is little question that the General Assembly has acted to maintain the confidentiality of the records at issue and to limit their disclosure to those persons and entities with a direct stake in the cases at issue. Fbr that reason, the Court of Appeals is affirmed.
■ All sitting. Minton, C.J.; Barber and Keller, JJ., concur. Abramson, J., concurs in result only by separate opinion. Cunningham, J., dissents by separate opinion in which Venters, J., joins.
. "A person alleging a violation of the provisions of KRS 61.870 to 61.884 shall not have to exhaust his remedies under KRS 61.880 before filing suit in a Circuit Court." KRS 61.882(2). ' ;
. Rather than making a substantial argument of its own in its brief, the Council instead references the dissenting opinion in the Court of Appeals. The Council states that it "cannot offer any analysis matching the thorough and closely-reasoned discussion by the dissenting judge ... in the decision below,” and asks this court for "leave to adopt that opinion as if incorporated here, with only a few additional comments.” The "additional comments” consist largely of ‘ complaints that the trial court and Court of Appeals have "erected new barriers ... to public oversight of government officials,” and failed to strictly construe the exceptions to general policy favoring disclosure in the Open Records Act as is required by the Act itself, see KRS 61.871 (stating that exceptions to the Act "shall be strictly construed, even though such examination may cause inconvenience or embarrassment to public officials or others”). As such, the Council has done little to further assist this Court. We remind the bar that "the task of determining, researching and malting ... arguments for • [an appellant] ... is not the function or responsibility of this Court,” Harris v. Commonwealth, 384 S.W.3d 117, 130 (Ky.2012), and "[ajppellants who desire review by this Court must ensure their briefs comply with our Rules of Civil Procedure,” id. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284488/ | ABRAMSON, J.,
CONCURRING IN RESULT ONLY;
I very reluctantly concur in the result reached by the majority. As appropriate ¿s I believe it would be for the Cabinet to have a statutory responsibility to make records such as those sought in this case available to the Council on Developmental Disabilities, Inc., I am forced to conclude that the legislature has not -so provided. Undoubtedly, the citizens of the Commonwealth would benefit from knowing whether the Cabinet has fulfilled its obligations in providing safe placement and effective care to adults with intellectual and developmental disabilities, particularly in instances, such’as here, where adults have died in the Cabinet’s care. Giving the Council access would assure that information about such occurrences is' acquired *607and disseminated beyond the confínes of the Cabinet and other state agencies, resulting in more accountability. ■ It would also provide a significant benefit to families assessing placement and care alternatives for their disabled loved ones. Regrettably, that appropriate access must await a statutory change. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284489/ | CUNNINGHAM, J.,
DISSENTING:
The majority today holds that the Council on Developmental Disabilities, Inc. (the “Council”) is not exempt fi-om the Kentucky Adult Protection Act (“KAPA”) confidentiality provision as enumerated in Kentucky Revised Statute (“KRS”) 209.140. In formulating this conclusion, the majority finds that the Council is not a “social service agency” and has no “legitimate interest” in obtaining the requested records. For the following reasons, I respectfully dissent..
The Kentucky Open Records Act (“KORA”), KRS 61.871 et seq., provides that “[a]ll public records shall be open for inspection by any person.” KRS 61.872(1). The General Assembly enacted KORA based on the public’s interest in having “free and open examination of public records.” KRS 61.871. The intended purpose of KORA is “to make transparent the operations of the state’s agencies.” Lawson v. Office of Attorney General, 415 S.W.3d 59, 70 (Ky.2013). The free and open inspection of records must be allowed in order for the public - to determine “whether., the public servants are indeed serving the public....” Kentucky Bd. of Examiners of Psychologists v. Courier-Journal & Louisville Times Co., 826 S.W.2d 324, 328 (Ky.1992). .
The Council seeks disclosure of records ■ created as a result of the Cabinet’s investigation into the death of two adults in its care. The requested records were not created at the Cabinet’s discretion, rather the Cabinet was required by law to conduct an investigation once informed that the decedents were possibly • abused, neglected, and/or exploited. See KRS 209.030. Notwithstanding KORA’s general-rule in favor of dissemination, the requested investigatory records are subject to KAPA’s confidentiality provision. ■ See KRS" 209.140 (“[a]ll information obtained by the [Cabinet], ás a result of an investigation made pursuant to [KAPA], shall not be divulged to anyone... .”).■ However, KAPA’s confidentiality requirement is not absolute. The statute- lists Several individuals and agencies that are allowed to obtain-the otherwise confidential investigatory, records. Pertinent to our analysis is subsection (3) of KRS 209.140, which states that “[o]ther medical,, psychological, or social service agencies, or law. enforcement agencies that, have a legitimate interest in the case” are exempt from the general rule forbidding dissemination of investigatory records.
The majority concludes that the Council is bound by KAPA’s confidentiality provision bfecause it does1 not qualify as a “social service agency”, nor does it have a “legitimate interest” in obtaining the requested information. In support of its holding, the majority claims that the exemption applies to those agencies “that are actually involved ... in-providing services” to the subject adults, thereby utilizing the protected information to- further its services. Moreover, a “social service agency,” the majority reasons, is one that “provides services on behalf of society at the behest .of the government.” , ,.
While not statutorily defined, the term “agency” is defined in the dictionary as “a business that provides a particular service” or‘“a government department that is responsible for a particular activity, area, etc.” Merriam-Webster’s Collegiate Dictionary, (11th ed. 2005). Moreover, “social *608service” is defined as “organized philanthropic assistance (as of the disabled or disadvantaged).” Id. The dictionary also provides examples of social services, which include “various professional activities or methods concerned with providing social services (such as investigatory and treatment services or material aid) to disadvantaged, distressed, or vulnerable persons or groups.” Merriam-Webster’s Collegiate Dictionary, (11th ed. 2005). As further discussed, there is no doubt that the Council falls squarely within the ordinary meaning of the term “social service agency.”
The Council was created in Jefferson County in 1952 as a non-profit organization with a mission to “initiate positive change on behalf of individuals with developmental disabilities by voicing their needs to the community; creating new choices for living, learning and participating; and ensuring the highest quality of life possible.” The Council fits the ordinary definition of a social service agency based simply on its status as a non-profit organization that provides services in order to advance the welfare of disabled adults in the community.
In addition, the Council also meets the majority’s strict description of soeial service agency. Despite the majority’s claims to the contrary, the Council provides an array of services to adults in the Cabinet’s care. Particularly, in regards to adults that are at a high risk for falling victim to abuse — individuals with mental disabilities that do not have “personal or family resources” — the Council serves as an advocate by way of conducting an unbiased, fair monitoring of the Cabinet’s actions. In doing so, the Council improves the Cabinet’s residential care in an attempt to prevent the abuse, neglect, and exploitation of disabled adults. The Council’s assistance is therefore a direct service to those adults falling within the purview of KAPA; and, records created and gathered as a result of an investigation made pursuant to KAPA would certainly further such service. It follows then, that the majority’s social service agency definition is met, as the Council is a quasi-governmental agency, receiving partial funding from the Louisville Metro Government. .
Turning to whether the Council has a “legitimate interest” in obtaining the requested records, the majority describes the Council as having “no interest in the case beyond a generalized desire for information about dependent-adult abuse.” I disagree.
To understand the Council’s interest in the records, it is important to note that historically adults with mental disabilities were institutionalized in large hospital-like settings. Recently, however, these individuals have been placed in residential settings, such as group homes. This trend is illustrated by Mr. Tardy’s and Mr. Farris’ residential transfers. While these smaller group homes are viewed as more appropriate for individuals with disabilities, abuse and neglect are more likely to occur without notice simply because there are fewer people around to observe what occurs on a day-to-day basis. For these reasons, the Council has an interest in obtaining the requested records as it serves as both a “watchdog” and advocate for individuals who are transferred to SCL programs.
As a “watchdog,” the Council has an interest in the requested documents because they may shed light on whether the Cabinet is conducting prompt, thorough, and responsible investigations into possible abuse or neglect of group home residents. This interest is certainly legitimate as the records allow the Council to gauge whether the Cabinet is fulfilling its “statutory function.” See Courier Journal, 826 S.W.2d at 328. Indeed, the Council is furthering a .justifiable need for public *609oversight of a governmental agency in order to protect the public’s well being. Kentucky New Era, Inc. v. City of Hop-kinsville, 415 S.W.3d 76, 81 (Ky.2013) (quoting U.S. Dept. of Defense v. Federal Labor Relations Authority, 510 U.S. 487, 495, 114 S.Ct. 1006, 127 L.Ed.2d 325 (1994)).
In the Council’s role as advocate, it has an interest in the requested records in order to provide information and resources to consumers, families, and service providers concerning the quality of services in these group homes. The requested documents may also shed light on whether the Cabinet is abiding by professional standards and applicable regulations, and, if not, whether the disabled individuals are being placed in unsafe environments.
Based on the aforementioned reasons, I believe the Council meets the definition of a “social service agency” and has a legitimate basis for seeking and inspecting the requested records. It is a long standing and well respected watchdog organization having served a very worthwhile public interest for over 60 years. Thusly, I would reverse the opinion of the Court of Appeals and remand this case to the Franklin Circuit Court with instructions for it to order the Cabinet to produce for inspection the records sought in the Council’s July 28, 2010, open records request.
For all of the above stated reasons, I dissent.
Venters, J., joins. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284490/ | OPINION OF THE COURT BY
JUSTICE CUNNINGHAM
This is a timber case. It centers on the question of how much, if any, a landowner is insulated from liability by the employment of an independent contractor employed to cut timber. This includes the issue of civil liability of any kind; but most importantly the exposure to the treble damage provision of KRS 364.130 when the contractor trespasses on adjoining land and cuts timber.
Larry Penix, an Ohio resident, owned land in Martin County, Kentucky. His láñd adjoined Barbara Delong’s property. Penix had his boundary line surveyed by We'stek Development, Incorporated, and the line was marked with flags and stakes. Penix then entered into a contract with a logger, Joe Hunt, Jr., to cut timber on his property. Hunt was to pay Penix a royalty on the timber sold and was to have complete control over the timber work. A cousin of Penix, William' Penix, walked the boundary line with Hunt, pointing out surveying markings. In the course of cutting timber over the next several months, Hunt trespassed on the property of Delong and cut and sold a substantial amount- of timber on her. property; Delong subsequently sued Penix for trespass, seeking damages for the missing timber and the damage to the land. The case was tried without a jury.' The trial court found for Delong and awarded stumpage value and damages, but declined to award treble damages because it found that Penix had no intent to remove timber from the Delong property. The trial court awarded Delong damages in tlie amount of $48,709.
Delong -appealed the trial court’s ruling on the sole issue of whether she was entitled to treble damages under Kentucky Revised Statute (“KRS”) 364.130. A cross-appéal wás filed by Penix arguing that *612since Hunt was an independent contractor, he — Hunt—is solely responsible for his tortious trespass.
The Court of Appeals vacated the circuit court’s ruling on treble damages and costs and remanded for additional findings and further proceedings. The Court of Appeals affirmed on the cross-appeal by Pe-nix, finding that he is liable for the damages caused by the trespass and cutting of Delong’s timber. We granted discretionary review.
Standard of Review
The appropriate standard for the review of the circuit court’s findings is not to reverse unless they are clearly erroneous. In order for us to reverse, there must be no substantial evidence to support the trial court’s ruling. Croley v. Alsip, 602 S.W.2d 418 (Ky.1980). If believed to support the respective positions, the findings of the trial judge are not clearly erroneous. Hensley v. Stinson, 287 S.W.2d 593 (Ky.App.1956). Matters of law are reviewed de novo. Caesars Biverboat Casino, LLC v. Beach, 336 S.W.3d 51 (Ky.2011).
1. Liability
We first address Penix’s appeal of the trial court’s finding of his liability for the cutting and selling of Delong’s trees.
There is no serious dispute that there was a trespass upon Delong’s property and many trees cut, nor has there been any challenge to the amount awarded. Penix contends that the trial court erred in not granting summary judgment as to Hunt’s status as that of an independent contractor. The liability of the employers for the acts of independént contractors is usually limited to those instances where the contractor engages in activity which constitutes a nuisance or is inherently dangerous. Clemons v. Browning, 715 S.W.2d 245, 246 (Ky.App.1986). Penix’s claim is misplaced. The trial court did in fact find that Hunt was an independent contractor. However, he further found that Penix was responsible under the logging agreement for the property line. Said the trial court: “[T]he Court concludes as a matter of law, that although logger Joe Hunt, Jr., was an independent contractor, that fact does not absolve. the Defendant Larry Penix from liability to the Plaintiff in view of Defendant Penix’s participation, both directly and indirectly through his first cousin William Penix in advising and instructing the' logger where to cut timber.” Even though Hunt was an independent contractor, the timber contract required Penix to “be responsible for the property line.” It is true that an employer is usually not liable for the tor-tious acts of an independent contractor. See Nazar v. Branham, 291 S.W.3d 599 (Ky.2009). However, the employer still remains bound by the terms of the written contract. Therefore, Penix maintained control and responsibility in establishing the proper property line. There is ample evidence that 'Penix’s cousin, William Penix, acted as his. agent in showing the line to logger Hunt. William Penix’s name, was on the logging contract as a witness, and his name and phone number were listed on the document as the person Hunt could contact regarding the job. It was also clear from the evidence that William Penix acted as Pe-nix’s agent when walking the line with Hunt. William Penix also walked the land with the surveyor.
The evidence abounds in confusion as to what exactly William Penix pointed out as the property lines. There were three types of markings on the ground. William Penix testified as to ribbons which marked “working stations.” There were also ribbons which marked “boundary trees.” Then there were actual boundary stakes. *613It appears from the evidence that William Penix was either mistaken -as to his own understanding of what the markings meant, or failed to ascertain a proper interpretation of the ribbons and the markers. Therefore, there was ample evidence for the trial court to find that on the walk of the boundary line with Hunt, William Penix, the agent of Penix, was negligent in properly establishing the correct boundary line with the logger Hunt. Therefore, there was substantial evidence to support the trial court’s finding that the agent was negligently mistaken in pointing out the boundary line. It is clear from the testimony that William Penix was not trained or skilled in surveying, nor interpreting boundary markers. One must remember also, that the parties were engaged in litigation over two large tracts of uninhabited and rugged terrain of steep hills and a thick forest of timber. There was sufficient evidence that the boundary line was wrongfully, but unintentionally, interpreted by Penix’s agent. Therefore, we hold that the trial court’s finding, in regard to both denying the summary judgment and directed verdict, was not clearly erroneous. We affirm that portion of the opinion of the Court of Appeals holding Penix responsible for Delong’s timber.'
2. Treble damages
Penix also appeals the Court of Appeals’ opinion reversing the trial court’s refusal to award Delong treble damages under KRS 364.180.
KRS 364.130 states as follows:
(1) Except as provided in subsection (2) of this section, any person who cuts or saws down, or causes to be cut or sawed down with intent to convert to his own use timber growing upon the land of another without legal right or without color of title in himself to the timber or to the land upon which the timber was growing shall pay to the rightful owner of the timber three (3) times the stumpage value of the timber and ■ shall pay to- the rightful owner of the property three (3) times the cost of any damages to the property as well as any legal costs incurred by the owner of the timber.
There was no evidence that Penix took any steps which would have relieved him from liability under this statute. KRS 364.130(2)(a). This is a penal statute, substituting treble damages for punitive. It is neither a strict liability statute, nor an automatic measure of damages when the cutting of timber has been unlawful.
The evolution of the wording of this statute is critical to this, case. Prior to 1994, it simply stated that “any person who unlawfully enters upon and cuts ... shall be liable to the rightful owner of the timber in punitive damages.” The current law consists of two major changes. First, and most importantly to this case, is the requirement of “intent to convert.” The-second major change is substituting treble damages for punitive damages.
Under the old statute, simple conversion was sufficient for the awarding of punitive damages. That is because a person “who mistakenly believes that his or her conduct is legal may nonetheless commit conversion.” 18 Am.Jur.2d Conversion § 3. (Citations omitted).
Although conversion is- an intentional tort, the old statute did not require the intent to convert. Contrary to the assertion of the dissent, we do not “lock our gaze” on the word convert. It is the word intent which is pivotal. The dissent also misses our point entirely by incorrectly stating that the only change from the old statute was to impose punitive damages. The change also, and importantly, added the requirement of intent. After *614missing this critical road sign the reasoning of the dissent quickly heads down the errant road of strict liability. ‘It is this independent element of intent that makes this case distinct from the type of wrongdoing required to prove conversion or punitive damages. “In order to justify punitive damages there must be first a finding of failure to exercise reasonable care, and then an additional finding that this negligence was accompanied by wanton or reckless disregard for the lives, safety, or property of others.” Gibson v. Fuel Transport, Inc., 410 S.W.3d 56, 59 (Ky.2013). See also Phelps v. Louisville Water Co., 103 S.W.3d 46, 52 (Ky.2003). Intentional wrongdoing is now a statutory requirement for the awarding of treble damages. The statute itself raises the threshold of penal damages from the common law penalty for trespass and conversion where mere recklessness might justify' punitive damages. Reckless conduct may constitute a willful trespass. Sandlin v. Webb, 240 S.W.2d 69 (Ky.App.1951); see also Harrod Concrete and Stone Co. v. B. Todd Crutcher, 458 S.W.3d 290 (Ky.2015). Our interpretation of KRS 364.130 concludes this matter since we have previously held that “the common law, prior statutes and the public policy growing out of them all must yield to the superior authority of a later enacted statute — ” Meece v. Feld-man Lumber Co., 290 S.W.3d 631, 633 (Ky.2009).
Why the proof for penal damages with timber is treated differently than other natural resources is an interesting question, but not germane to our decision.
Delong argues that the only way a trespassing party can escape treble damages is “if, and only if,” they comply with KRS 364.130(2). That provision specifically outlines steps the trespassing party can take to avoid liability under that statute. That argument, however, requires us to completely skip over and ignore the requisite elements necessary in KRS 364.130(1) to hold a trespasser liable for treble damages in the first place.
There are two key words in this statute which must be given their ordinary meaning. A fact finder must first determine that the trespassing party caused the cutting of the timber with the “intent” to “convert.” Those facts were not found by the fact finder in this case.1
There is no question that the contracting by Penix with Hunt to cut timber on his property was at least an indirect cause of timber being cut on Delong’s property.
However, the trial court determined that as a matter of law, the statute requires Penix to have caused the timber to- be cut “with intent to convert to his own use the timber growing upon the land of another without legal right.” We agree.’
We need not dwell upon the meaning of the word “intent” but only to fully recognize it' as a state of mind. There must be a specific intent here to do wrong. That wrong that the fact finder must find is that Penix intended to convert the timber.
“Conversion” is defined by Webster’s New World College Dictionary as “unlawful appropriation or use of another’s property, resulting in deprivation of ownership rights.” (Emphasis added) Webster’s New World College Dictionary, (5th ed.2014). Black’s Law Dictionaiy defines *615“conversion” as “an unauthorized assumption and exercise of the right of ownership over goods or personal chattels belonging to another, to the alteration of their, condition or the exclusion of the owner’s rights.” (Emphasis added).
To interpret the statute to read that only the unauthorized cutting of the timber itself must be intentional is to make the language totally meaningless' and unnecessary. To do so, would make it a strict liability statute. It is impossible to unintentionally cut a tree. We hold that the trespasser must have intended to cut timber which he knows he is unauthorized to cut.
The trial court found that there wa's insufficient evidence to prove that Penix intended to convert Delong’s timber for his own use, or more precisely, royalties.
We must therefore reyiew the evidence to deterniine if this finding by the trial court is clearly erroneous. We cannot find it to be so.
While there was evidence for the trial court to conclude that William Penix was the agent in pointing out the property line to Hunt — and in that activity may have been negligent — it was surely not erroneous for the trial court to find the lack of intent to convert on behalf of Penix. There was evidence that Penix was a nonresident of Martin County, Kentucky, interested in having his property timbered. He had it surveyed for the purpose of having it timbered. It was an act which in and of itself indicates good intention of respecting adjoining property lines. This expensive precaution is usually not found in the stealthy bag of tricks of a timber thief. Penix then contracted with Hunt as an independent contractor to cut the timber; According to Penix, he cautioned Hunt to be sure and stay within his property lines. While that agreement required
Penix to be responsible, for the property line, it did not in any way impose responsibility for Hunt’s trespassing across that boundary.
Delong’s son, Gerald Delong, testified extensively about his involvement in discovering the damage to his mother’s property and his discussion with Penix after-wards. Gerald and Penix first met at* the site of the cutting after the trees had been cut. " There was "a heated exchange which took place because Penix denied that he had trespassed upon the Delong property. Disturbed by the prospects however, Penix went to the courthouse to- re-examine-the deeds to either disprove or confirm the trespass. There he met — apparently by coincidence — Gerald and they discussed the matter in a much more civil manner. Then convinced there had been a trespass, Penix assured him that it was an honest mistake. Gerald apparently believed him as they .concluded the conversation, by shaking hands. Penix advised Gerald that the surveyor had told him that the property line was where the ribbons were located and that he was going to sue the surveyor.
Deputy County Court Clerk of Martin County, Tammy Harriston, testified of over-hearing ■ the conversation between Gerald and Penix in the County Court Clerk’s office. In that conversation, she heard Penix say it was a mistake and the fault of the surveyor.
It appears that the only evidence of any intent on Penix’s part to trespass and take the timber of Delong was in the alleged statements that Hunt made to Gerald. Over the objection of Penix, the trial court allowed this statement into evidence. It is this evidentiary ruling that is part of Penix’s appeal in this case. Gerald was permitted to testify that Hunt, then deceased, told. him that when he became concerned that he might be crossing the *616boundary line, Penix told him to “keep cutting.”
We are inclined to agree with Penix’s position that the evidence was inadmissible hearsay. We find that the trial court erred in admitting the evidence under the admission against interest pursuant to KRE 804(b)(3). The Court of Appeals, in allowing the evidence, reasoned that Hunt, as “an experienced logger,” knew his statement would have exposed him to liability for trespass. However, it would appear that the statement, far from being a declaration against interest, was shifting liability to Penix. There was never any doubt of who actually cut the trees. Therefore the proponent of the statement — Delong— failed to meet her burden that the declar-ant Hunt, knew his statement was against interest when he made it.
Penix denied any such conversation took place. In fact, he testified that he and logger Hunt never had a conversation concerning the boundary line once Penix gave him the written survey done by Westek Development, Incorporated.
The evidentiary ruling of the trial court, if error, was inconsequential, however. The trial judge gave it very little weight in determining the issue of treble damages.
The court stated: “[t]here was some indication that logger Hunt questioned the Defendant as to the location of the lines when he was in the middle of cutting thé timber, but one must recall that logger Hunt is now deceased. That testimony was quoting logger Hunt, who is not subject to direct or cross examination.”
It was clear that Penix, an absentee owner, was only vaguely familiar with the contours and exact extent of his property ownership, and relied solely on the survey. He testified that he had never walked around the boundary of the property. In fact, he did not even know that Delong owned the adjoining property. He thought it belonged to George Penix.
It might appear bizarre that such a large swarth — eighty to ninety acres — of Delong’s timber was cut by mistake. However, both Penix and his agent, William Penix, were i-esidents of Ohio, who were not regularly on the large wooded area being timbered. Nor was Penix ever on the land while the timber was being cut.
It becomes clear in reviewing the evidence that the misreading of the ribbon markings was the source of the confusion as far as where the boundary was located. Both Penix and his cousin, William Penix, were of the opinion that the ribbons marked the boundary, where in truth, it now appears, all of them did not. Therein, lies the reason that Penix and his agent— unschooled in surveying methods and unfamiliar with the lay of the land — caused the mistaken timbering of Delong’s timber. At the very least, the trial court was not clearly erroneous in so finding.
The Court of Appeals erroneously relied on Meece. In that decision, we were addressing strictly a “color of title” claim which we determined did not remove the trespasser’s liability for treble damages. This is not a “color of title” claim. Theré are no competing deeds, nor pending quiet title suits attempting to resolve the proper boundary lines. No one disputes who had legal title to the property trespassed upon. The trespass by Hunt upon Delong’s property is clearly known.
We simply hold today that when a landowner has engaged an independent contractor to cut timber, there must be some evidence that the landowner — not the logger — intended to “convert to his own use timber growing upon the land of another.” The trial court found that while there may have been negligence of an agent in establishing the boundary line, *617there was insufficient evidence to impute to the landowner intent to convert. In reviewing the evidence presented to the trial court, we do not believe it was clearly erroneous in its findings. Therefore, the 'measure of damages correctly used by the trial court was the fair and reasonable market value of the timber at the time it was cut — or “on the stump.” Gum v. Coyle, 665 S.W.2d 929 (Ky.App.1984).
Therefore, we uphold the Court of Appeals in its affirming the trial court in the determination that Penix was liable for damages for trespass but reverse the Court of Appeals in determining that Pe-nix was subject to treble damages under KRS 364.130. The order and judgment of the trial court is hereby reinstated.
All sitting. Barber, Keller, and Venters, JJ., concur. Minton, C.J., dissents by separate opinion in which Abramson and Noble, JJ., join.
. The dissent enters into the fact finding role by concluding that Penix “intended to convert Delong’s trees to his own use.” Ironically the author of this dissent wrote in his dissent in Meece, "I believe the majority engages in appellate revision rather than appellate review by doing its own fact-finding. The trial court had direct contact with the evidence in this case, and we should'defer to the trial court as ' the fact finder.” | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284491/ | MINTON, C.J.,
DISSENTING:
Missing the forest for the trees, the majority locks its gaze on the meaning of the timber statute’s use of the word convert, causing the majority to launch into an unnecessary discourse on the common law tort of conversion and ultimately rewrite the law to the lasting detriment of innocent victims of timber piracy. To me, this case is simple: Penix did more than simply intend to cut Delong’s trees. He intended to convert Delong’s trees to his own use, ie., take them for .his own commercial gain. And Penix acted without the statutory mitigating circumstance of any color-able claim of title to Delong’s property. So Delong is entitled to treble damages under our statute because she is the rightful owner of the trees taken from her land and sold by Penix for his profit.
I find it important to start with a general reminder that KRS' 364.130 is not now nor has it ever been a conversion statute. Instead, it is a statute based in trespass.2 At common law, timber pirates were guilty of trespass quafe clausum fregit: “an action for invasion of possession of realty.”3 These pirates were then liable to the rightful owner of the stolen trees for a measure of damages equal to the' loss in value caused to the property taken at the point of their blade. This historic legal principle did not change with the enactment of KRS 364.130 in 1956.
The majority’s analysis hinges on the General Assembly’s 1994 amendments to KRS- 364.130, the first substantial revision to the statute since its enactment in 1956. More specifically, the majority focuses on *618the General Assembly’s decision to add “intent to convert” to the statute.
Only a few years ago, in Meece v. Feld-man Lumber Co.4 — a case summarily rejected by the majórity — this Court found these same 1994 amendments merited little attention, stating: “A comparison of the 1994 changes to the earlier version of KRS 364.130 reveals the only ' major change was to substitute ‘triple damages’ for ‘punitive damages’ in the case of a trespass without color of title.”5 The majority in Meece was right about that point — the substitution of treble damages for punitive damages was the only major change to KRS 364.130 in 1994. Most importantly, I do not believe there is any support for the notion that the General Assembly intended, in 1994 to transform KRS 364.130 into, an action for conversion, effectively turning its back on more than a century of common and statutory law.6
The “intend to convert” language may be a curious insertion into the statute, but we should not over-read it. After all, our task when interpreting statutes is to give effect to the plain meaning of the language used by the" General Assembly— nothing more, nothing less.7' Convert, in its ordinary sense, is defined as “to change (something) into a different form so that it can be used in a different way”; “to alter for more effective utilization”; or, perhaps, more aligned with the majority’s view, “to appropriate without right.”8 Embarking on a discussion of the requisite elements of the intentional tort of conversion is unnecessary to understand the ordinary meaning of our statute. = Giving convert its ordinary meaning, I am baffled by the argument that Penix did not convert Delong’s timber for his" own use. Pe-nix cut the trees and sold them for profit, intentionally.
My reading of KRS 364.130 is not novel. In fact, the Court of Appeals adopted the same reading in Seals v. Amburgey9 There, the court found it was “undisputed that Danny Seals entered into a verbal contract with Dove Logging, LLC[,] to cut and remove standing timber from an area of property as designated by Danny Seals.... [And,] Seals was to be paid 26% of the sale price for the timber cut and removed by Dove Logging, LLC[,] under this agreement.”10 The impact of this was clear to the appellate court because it could “not see how the [Sealses] can argue there was no evidence that the [Amburgeys] had any-intent to convert the timber to their own. use.”11 The [Sealses] intentionally converted the Amburgeys’ timber to their own use much like Penix did here: ■
The majority rejects this approach because “[i]t is impossible to unintentionally *619cut a tree[.]”12 So KRS 864.130 would be rendered a strict-liability statute. My rfe-sponse to that contention is: .so be it. And the argument that it is impossible to chop down a tree unintentionally really misses the mark. Of course, a tree cannot be, unintentionally cut down; but our statute says nothing about the intentional cutting of the tree.13 Rather, it focuses on the underlying reason the trespasser cut the tree: did he cut the tree for his own use? In other words, the focus of the statute is not whether the trespasser intends to cut a particular stand of timber but whether the trespasser intentionally takes the trees for the trespasser’s own gain.
In any event, the concern that our timber piracy statute suddenly becomes a strict-liability law is. fallacious. For decades upon decades, trespass has been a strict-liability tort. The Restatement Second of Torts characterized the strictdiability nature .of trespass as follows: “One who intentionally enters land in the possession of another is subject to liability to the possessor of the land as a trespasser, although he acts under a mistaken belief of law or fact, however reasonable, not induced by the conduct of the possessor, that he ... is in possession of the land or entitled-to it — ”14 So as long as the trespasser intended to enter the land, it made no difference whether .he believed the land was his or someone else’s. As long as Penix intended to convert Delong’s timber to -his own use, it makes no difference whether he did so under mistaken belief, the timber was his or not. Treble damagés -are appropriate — Penix acted without color of title and did not take any of the steps outlined in KRS 364.130(2) to mitigate Delong’s damages. KRS 364.130 has operated in this manner since 1956; and, until today, we have heard no outcries of the harshness of our statute imposing strict liability and exemplary damages on timber pirates.
Of course, I am fully aware that this Court generally operates under the principle that if the General Assembly amends a statute, it must mean something. But “intent to convert” is simply unable to support the weight heaped upon it by the majority. I believe that the General Assembly attempted to clarify a few things in 1994: first of all, willful trespassers, ie., those satisfying KRS 364.130(1), would be liable for treble damages rather than punitive damages;15 second of all, innocent *620trespassers — that is, those who can satisfy the elements of KRS 364.130(2) — may be liable for only the reasonable value of the removed timber. Before 1994, all trespassers in search of timber were liable for punitive damages because there was no provision for mitigation of damages. Likewise, there was no provision outlining any scenario for awarding a measure of damages commensurate with the reasonable value of the stolen timber. The 1994 Gen-, eral Assembly just made clearer the method of awarding damages in a timber case but did not change the fact that stealing timber is a trespass action, steeped in strict liability.
As for the trial court’s finding that Pe-nix did not intend to convert Delong’s timber to his own use, 1 would find it unsupported by the evidence and, accordingly, clearly erroneous. In my view, the evidence was clear that Penix intended to convert Delong’s timber to his own use. This is especially true, of course, under my reading of KRS 364.130. But this evidence seems clear to me even under the majority’s interpretation. It is not as if Penix inadvertently cut down a couple of trees near his property boundary. No, Penix harvested nearly all of Delong’s timber. But, in fairness to Penix, he did not harvest all of Delong’s timber — just all of her good timber, Penix graciously left the lower-grade timber standing for Delong. If, as the majority holds today, “[ijntentional wrongdoing is now a statutory requirement for the awarding of treble damages!,]” I would have a difficult time imagining a clearer set of facts than the ones before us to illustrate intentional timber piracy.16
Penix ignored patent ’ survey markings indicating the property he rightfully owned. With regard to this evidence, I sound a warning call because today the majority elevates the routine act of obtaining a survey into a safe harbor from treble damages. Ironically, the majority cites Penix’s survey as proof that he did not intend to convert Delong’s timber to his own use.17 This, to me, is completely misguided. In my estimation, Penix’s disregard for the surVey-marked boundaries of his own land is absolute proof that he intended to take timber from Delong. Perhaps it would be different if Penix — an innocent absentee landowner in the eyes of the majority — did not know his boundaries and inadvertently crossed his property line to cut down a few of Delong’s trees. After all, property lines are invisible delineations. But, there is the problem: Penix’s property lines were visible because he obtained á survey of his land. It makes little difference to me that Penix was unfamiliar with the area and lived out of the state. The point of a survey is to become familiar with a tract of land. The fact that Penix *621had his boundary marked and then crossed that boundary brings me to the exact opposite conclusion of the majority: any argument of inadvertent timber cutting is completely undercut, not bolstered.18 I think it unwise for this Court to allow surveys to be added to “the stealthy bag of tricks of a timber thief.”19
Because I would affirm the Court of Appeals and remand the matter to the trial court for imposition of treble damages, I must respectfully dissent.
Abramson and Noble, JJ., join.
. It seems the majority agrees with this proposition — at least at times. For example, in response to Delong’s argument regarding subsection 2 of KRS 364.130, the majority states on page 614: “That provision specifically outlines steps the trespassing party can take to avoid liability under that statute. That argument, however, requires us to completely skip over and ignore the requisite elements necessary in KRS 364.130(1) to hold a trespasser liable for treble damages!.]” (emphasis added). See also slip op. at 611 ("Delong subsequently sued Penix for trespass, seeking damages for the missing timber and the damage to the land.... The Court of Appeals affirmed on the cross-appeal by Penix, finding that he is liable for the damages caused by the trespass and cutting of Delong’s timber.”) (emphasis added).
. Brian A. Garner, Garner’s Dictionary of Legal Usage (3d ed.2011); see Kentucky Stave Co. v. Page, 125 S.W. 170 (Ky.1910) (discussing the legal reasoning supporting the treatment of timber piracy as trespass guare clau-sum fregit); see also Black’s Law Dictionary (10th ed. 2014) ("A person's unlawful entry on another’s land that is visibly enclosed • This tort consists of doing any of the following without legal justification: (1) entering on to land in the possession of another, (2) remain- . ing on the land, or (3) placing or projecting ■ any object on it.”).
. 290 S.W,3d 631 (Ky.2009).
. Id. at 635 (emphasis added).
. And, I should add, I do not subscribe to the view promoted by the majority that ”[u]nder the old statute, simple conversion was sufficient for the awarding of punitive damages” because I do not believe KRS 364.130 has ever been a conversion statute. Op. at "613.
. “We have a duty to accord to words of a statute their literal meaning unless to do so would lead to an absurd or wholly unreasonable conclusion.” McElroy v. Taylor, 977 S.W.2d 929, 931 (Ky.1998) (quoting Bailey v. Reeves, 662 S.W.2d 832, 834 (Ky.1984)).
. Merriam-Webster Dictionary, available at . www.merriam-webster.com/dictj.onary/ convert.
. 2009 WL 3531641 (Nos.2008-CA-002217MR and 2008-CA-002247-MR Ky.App. Oct. ■ 30, 2009) discretionary review denied April 14, 2010. ■ ■ ■
. Id. at *5.
. Id.
. Op. at 615.
. The statute ties no mental state to the actual cutting of the tree. Instead, the statute is clear in that it applies to "any person who cuts or saws down, or causes to be cut or sawed down ... timber growing upon the land of another....” KRS 364.130.
. Restatement (Second) of Torts § 164.
. We should note that treble damages is not an uncommon penalty for 'timber piracy — in other words, the General Assembly’s change from “punitive damages” to "treble damages” is not at all unique within the statutory provisions for the unauthorized cutting of trees found in the law of sister jurisdictions. Likewise, strict liability — absent color of title or title in fact — is not uncommon. And nearly universal is the notion that claims for timber piracy are based in trespass. See, e.g., A.C.A. § 18-60-102 (ARKANSAS) (awarding treble damages unless timber pirate has probable cause to believe logged land is his); A.S. § 09.45.730 (ALASKA) (operates similar to Arkansas); Ann. Cal. C.C.P. § 733 (CALIFORNIA) (strict liability with treble damages, unchanged since its enactment in 1872); V.A.M.S. 537.360 (MISSOURI) (single damages recoverable only if timber pirate had ' probable cause to believe land belonged to him); McKinney’s R.P.A.P.L. § 861 (NEW YORK) (strict liability; mitigate damages by showing color of title or title in fact, essentially); 13 V.S.A. § 3606 (VERMONT) (not strict liability, but treble damages); R.C.W.A. 64.12.030 & 64.12.040 • (WASHINGTON); W.Va.Code § 61-3-48a (WEST VIRGINIA) - (strict liability and treble damages). In our own statutes, more importantly, we see some *620instances of treble damages for trespass. See, e.g., KRS 150.690-.700.
. If the majority opinion is correct in deeming KRS 364.130 a punitive statute and using the standard for punitive damages, I think it abundantly clear that Penix failed to exercise reasonable care and his negligence was accompanied by a wanton or reckless disregard for Delong’s property. See op. at 613 (quoting Gibson v. Fuel Transport, Inc., 410 S.W.3d 56, 59 (Ky.2013)). I have no trouble finding Penix's egregious conduct met this standard, but I do reject the application of the standard in this case because the General Assembly has allowed treble damages in place of punitive damages. In other words, treble damages are punitive damages with regard to the looting of timber; and the standard cited by the majority, plucked .from case law applying our punitive damage statute, has no place in this context.
. “[Penix] had [his property] surveyed for the purpose of having it timbered. It was an act which in and of itself indicates good intention of respecting adjoining property lines.” Op. at 615.
. Given my reading of the statute, this conclusion is largely irrelevant because a determination of Penix’s intent to convert Delong's timber to his own use does not depend on his mental state in crossing into the Delong property. That said, I do think ignoring a surveyor’s clear markings is perhaps grossly .negligent for purposes of . punitive damages, notwithstanding my objection to applying that standard — see supra, pp. 619-20 n.15.
. Op. at,615. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284492/ | OPINION
NICKELL, JUDGE:
The appellant, Shirley Miller (Miller), filed a Form 101 on March 28, 2013, alleging injuries-to'her chest, back, right arm and both.legs-as the result-of a work-related motor vehicle accident (MVA) on July 3, 2012, sustained while in the course of delivering lunches in a company van. At the time of the accident, Miller was employed by appellee, Go Hire Employment Development, Inc. (Go Hire), as a cook at the Caney Creek Rehabilitation Genter, where -her duties included preparation and delivery of food.
On September 4, 2013, the administrative law judge (ALJ) entered an opinion and order finding all of Miller’s alleged injuries to be causally related to the work-related accident. The ALJ awarded permanent partial disability (PPD) income benefits pursuant to KRS1 342.730 based upon an 11% whole person impairment rating pursuant to the AMA Guides,2 encompassing a 5% impairment rating attributable to an uncontested back condition and. a 6%. impairment-rating attributable to a contested carpal tunnel syndrome (CTS). The ALJ also awarded past and future medical benefits incurred for the cure and relief -from the effects of Miller’s various injuries, including the contested.CTS. On September 30, 2013, the ALJ overruled Go Hire’s petition for reconsideration.
In its appeal to the Workers’ Compensation Board (Board), Go Hire challenged the ALJ’s award of income and medical benefits for Miller’s CTS. Go Hire assert*624ed no substantial evidence supported a finding of work-related causation regarding the CTS, and noted the ALJ had failed to provide any specific factual basis supporting the award as requested in its petition for reconsideration.
In an opinion entered on January 31, 2014, the Board reversed the ALJ’s award of PPD income benefits to the extent it encompassed the 6% impairment rating attributable to Miller’s contested CTS, and remanded for the ALJ to recalculate Miller’s award based solely upon the remaining 5% impairment rating assessed for her uncontested low back injury. In doing so, the Board held the 6% impairment rating assessed by Dr. Arthur Hughes in relation to his examination of Miller on April 23, 2013, could not be considered substantial evidence to support an award of PPD income benefits. The Board reasoned the ALJ had held Miller had not reached maximum medical improvement (MMI) until July 31, 2013, when examined by Dr. David Jenkinson, and an impairment rating- is improper under the AMA Guides until the clinical findings indicate the medical condition is static and well-stabilized with no further improvement or deterioration anticipated, thereby having reached MMI.3 In addition, the Board vacated the ALJ’s award of medical benefits relating to Miller’s CTS. The Board remanded the matter for further findings by the ALJ— with specific citation to supporting evidence — regarding whether the contested CTS condition is work-related; permanent or temporary; and entitled Miller to an award of any medical benefits.4
Miller now appeals. Upon careful review of the record and arguments, the Board’s opinion of January 31, 2014, is affirmed in part and reversed in part, and the matter is remanded to the ALJ for further specific findings consistent with this Opinion.
FACTUAL AND PROCEDURAL HISTORY
The relevant facts and posture of this case were summarized by the Board as follows:
In the course of delivering lunches in a company van on July 3, 2012, Miller was involved in a motor vehicle accident (“MVA”) which she alleged resulted in injuries to her chest, back, right arm, and both legs. As previously noted, there is no dispute the MVA caused a low back injury resulting in a compensa-ble 5% impairment. At the time of the injury, Miller was working as a cook at Caney Creek Rehabilitation Center which entailed preparing and delivering the food.
Miller testified she was driving to Go Hire’s Breathitt County [Cjenter when a vehicle pulled onto the highway and struck the right side of the van. Upon impact, she swerved hitting a building and a pole located beside the building. Miller testified the right fender and the driver’s door had extensive damage. The seatbelt cut into her shoulder and her glasses were knocked off. Miller was taken by ambulance to the hospital in Breathitt County. [FN] She testified her back, neck, leg, and chest hurt and her right arm was numb.
[FN] The Kentucky River Medical Center.
During her June 24, 2013, deposition, Miller testified she was still having pain *625and problems in her lower back and legs. As to whether she injured any other body parts, Miller provided the following testimony:
Q: Did you injure any other parts of your body such as your neck or your upper back?
A: No.
Q: Did you injure your arms or your wrist in any way?
A: No.
Q: Do you have any pain or symptoms in your neck or your arms?
A: No.
Q: Do you have any pain' or symptoms in your elbows?
A: No’.
Q: Do you have any pain or symptoms in your wrists?
A: No.
Q: Any numbness or tingling in your arms?
A: No.
Miller missed no work as a result of the accident. After the Caney Creek Rehabilitation Center closed on March 30, 2013, in April she began assisting clients at the Go Hire centers in Breathitt and Owsley Counties. The job to which she transferred is much lighter duty and does not involve any manual labor, bending, lifting, or carrying. Miller testified she is working full-time without any restrictions on her 'activities. Miller, acknowledged she has diabetes and a thyroid'disorder.
At the August 29, 2013, hearing, Miller testified she continues to experience back and leg pain. On direct, Miller provided the following testimony relative to her right wrist problems:
Q: Are you experiencing problems with your right wrist?
A: In my hand here and then there’s — there’s a knot right through there.
Q: And, did — is—-is the car accident where it began?- Had you noticed it before, Shirley?
A: No, I haven’t noticed it before the accident — uh-uh.
On cross-examination, Miller testified as follows:
Q: Now, as to your wrist condition, you — you did not injure your right wrist in the accident did you?
A: This one — the ambulance driver asked me was I hurt and I told him both of my hands was [sic] hurting and numb and both of my legs were numb.
Q: Did you tell any doctor that you went to see after the accident that you had injured your right wrist?
A: I told him that both of my hands were numb, as far [sic] I could remember, and I told him both of my legs were numb. • ■
Q: Okay — do you remember giving a discovery deposition in this case back . at your attorney’s office on June 24, 2013?
A: If I remember?
Q: Yes, ma’am.
A: It’s been such — way back I -can’t — I do know my hand hurts.
Q: Okay.
A: And, as far as I can remember I know my hand was "hurting. I also had a lot of numbness and tingling, [text omitted]
Q: Ms. Miller, I asked you the following question, “Did you injure your a arms or your wrists in any way?” Answer, “No.” Do you remember giving that testimony?
A: Yes, I believe I do.
*626Q: Okay.
A: But I don’t remember that far back about hurting. I do know I remember that I was numb and had tingling in my hands and arms and legs.
[text omitted]'
A: My memory is not good.
Q: Okay.
A: Especially that morning. I was shaken up.
[text omitted]
Q: Ms. Miller if you could read along.
A:. Uh-huh.
Q: I asked you the question, “Do you have any pain or symptoms in your wrists?” Answer, “No.” Do you remember giving that testimony?
A: No, I don’t.
Q: . You don’t recall it?
A: No.
Q: Question two forty-nine I asked you, “Any numbness or tingling in your arms?” Answer, “No.”
A: ■ Yes, I do have numbness and tingling in my feet, .and hands, and legs.
Significantly, Miller testified her current average weekly wage (“AWW”) is the same as it was.on July 3, 2012, the date of injury. .
Miller introduced the Form 107 completed by Dr. Arthur Hughes on .April 23, 2013. He noted Miller stated she was transported by ambulance to the hospital and was experiencing low back pain, and numbness in her arms, hands, and leg. With respect to symptoms in her hands,'Dr. Hughes noted as follows:
Her’hands were numb at first but she no longer has much problem here. Though she does note some tingling in both hands and the right forearm and hands bother her when she drives but do not awaken her. Her hands were okay prior to the accident. She has tended to drop things with either hand.
After conducting a records review, performing a physical examination, and reviewing MRIs of the cervical and lumbar spine, Dr. Hughes diagnosed right carpal tunnel syndrome.[FN]
[FN] Dr. Hughes also diagnosed: 1) Lower back w/o radiculopathy status post motor vehicle accident; 2) Par-esthesias of both legs, mechanism un-cértain.
With respect to causation, he noted “the symptoms of right carpal tunnel ■ syndrome accompanied by physical findings of such were not present prior to the MVA and had been present since.” Pursuant to the 5th Edition of the American Medical Association, Guides to Evaluating Permanent Impairment (“AMA Guides"), Dr. Hughes assessed a 6% impairment for right carpal tunnel syndrome attributable to the MVA. He opined Miller had no active impairment prior to the injury. With respect to the date maximum medical improvement (“MMI”) was reached, Dr. Hughes stated as follows:
She had not yet reached maximum medical improvement as she has had no treatment for the right carpal tunnel syndrome, though this is mild. If no further treatment for this is approved, then she is at maximum medical improvement as of this date.
Dr. Hughes believed Miller retained the capacity to perform the type of work she performed at the time of thé injury. He suggéáted Miller “avoid repetitive right wrist motion and could use a wrist' brace at times if needed.” Dr. Hughes provided no other restrictions.
Go Hire introduced the July 31, 2013, report of Dr. David Jenkinson.' Upon *627review of the July 3, 2012, records of Kentucky River Medical Center Emergency Department, Dr. Jenkinson noted Miller apparently reported her arms and elbows were sore and she just wanted to go to the hospital to be checked out. Miller complained of chest and right elbow pain. Pursuant to the AMA Guides, Dr. Jenkinson assessed a 5% impairment for the low back injury. Concerning Dr. Hughes’ diagnosis of carpal tunnel syndrome and the impairment rating, Dr. Jenkinson stated as follows:
I am puzzled by.this diagnosis and the impairment rating. , At this current evaluation Ms. Miller did not describe any symptoms in her right hand that would be consistent with carpal tunnel syndrome. She did not complain of any symptoms in the right forearm or hand and I found nothing in the medical records to suggest that she had a carpal tunnel syndrome. Carpal Tunnel Syndrome is a chronic comprés-sive neuropathy of the median, nerve and would not be caused by a single acute injury unless there was a major trauma to the wrist such as a displaced wrist fracture. I therefore must respectfully disagree with Dr. Hughes in that I find no evidence for carpal tunnel syndrome and therefore no basis for that impairment rating.
Go Hire introduced the August 20, 2013, ■report of Dr. Russell Travis based upon a review of medical records and imaging studies. With respect to Dr. Hughes’ diagnosis of carpal tunnel syndrome, Dr. Travis stated the medical records made no mention “of a suggestion of carpal tunnel syndrome” until Miller was examined by Dr. Hughes. Dr. Travis explained that carpal tunnel syndrome is not caused by trauma unless there was a fracture in the wrist area or bleeding in-the carpal tunnel. He found it- significant Miller had both a hyperthyroid and diabetic condition. Dr. Travis noted carpal tunnel syndrome is fifteen times more common in people with diabetes than in the general population. He also ' noted hyperthyroidism has a strong association with carpal tunnel syndrome. Accordingly, Dr. Travis concluded Miller did not suffer an injury to the wrist or hand in the MVA and disagreed with Dr. Hughes’ assessment of an impairinent rating for carpal 'tunnel syndrome.
Based on the. opinions of Dr. Hughes, the ALJ made the “factual determination” Miller sustained injuries to her back, right arm, and legs as a result of the MVA. In basing the award of income benefits upon an 11% impairment, the ALJ made .the following, findings of fact and conclusions, of law:
In this case, I make the factual determination that the plaintiffs sworn testimony was very credible and convincing. I also make the factual determination that the medical evidence from Dr. Hughes was credible and persuasive. I note that Dr. Hughes stated that the plaintiff would sustain a permanent whole person impairment of 11% under the AMA Guides? Fifth Edition. Dr. Hughes states that the plaintiff had not reached maximum ■ medical improvement. I also make the-factual determination that the evidence from Dr. Jenkinson was to the effect that at the time he examined the plaintiff on July 31, 2013 [sic] he found that there was no reason why she should have any work restrictions or limitations due to her July 3, 2012 [sic] work injuries. In other words, according to Dr. Jenkin-son, she' reached maximum medical improvement on July 31, 2013. I make the factual determination that Dr. Jenkinson’s finding that the plain*628tiff had reached maximum medical improvement on July 31, 2013 is credible and convincing. The plaintiffs sworn testimony was that since April 2013 she has received the same pay as she did at the time of her work injuries back in July 2012. Since the plaintiff is now earning the same average weekly wage that she earned at the time of her work injuries and since Dr. Hughes stated that she retains the physical capacity to return to the type of work which she performed at the time of her injuries, I make the determination that the plaintiff is entitled to recover permanent partial disability benefits from the defendant'and its workers’ compensation insurer based upon an 11% whole person permanent impairment due to her July 3, 2012 [sic] work injuries. I also make the factual determination that the plaintiff is likely to be able to continue earning the wage that equals or exceeds the wage which she had at the time of her injuries for the indefinite future. In ' other words, based upon the totality of the evidence, both lay and medical, I make the determination that the plaintiffs recovery for permanent partial disability benefits'is limited to the 1 multiplier and that she is not entitled-, to make an enhanced, permanent partial, disability recovery. Of course, if her physical impairment and occupational disability should worsen, she has the option to move to reopen pursuant to KRS [Kentucky Revised Statute] 342.125.
Go Hire filed a petition for reconsideration requesting further findings of fact regarding the issue of whether the 6% impairment rating for carpal tunnel syndrome is causally related to the MVA. It specifically requested the ALJ to review Miller’s deposition testimony previously recited herein. The ALJ overruled the petition for reconsideration stating the opinion and order thoroughly discussed all of the contested issues raised by the parties.
In its subsequent appeal to the Board, Go Hire contended the ALJ’s award of income and medical benefits for Miller’s CTS were not supported by substantial evidence. Go Hire asserted the ALJ provided- insufficient findings of fact upon which' any reasonable determination of a work-related' permanent CTS cpuld be based. Worse, when requested in its petition for reconsideration to provide additional findings to explain the determination of compensability for Miller’s CTS, Go Hire asserts the ALJ provided mere perfunctory form language indicating all evidence had been thoroughly considered, thereby providing no explanation of its factual analysis. In particular, Go Hire argues the ALJ failed to address Miller’s deposition testimony indicating she had not injured her wrist, arms or elbows, and had not experienced any associated pain or other related symptoms. Further, Go Hire argued the ALJ failed to resolve apparent inconsistencies between Miller’s testimony and Dr. Hughes’ opinions, even though the ALJ found both credible.
The Board reversed the ALJ’s award of PPD,income and.medical benefits relative to Miller’s contested CTS, and remanded the matter for further findings. This appeal followed.
STANDARD OF REVIEW
The claimant in a workers’ compensation proceeding bears the burden of proving each of the essential elements of any cause of action, including causation. KRS 342.0011(1); Snawder v. Stice, 576 S.W.2d 276 (Ky.App.1979). When a claimant successfully carries that burden, the question on appeal is whether substantial *629evidence of record supports the ALJ’s decision. Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky.App.1984). “Substantial evidence” is evidence of relevant consequence having the fitness to induce conviction in the minds of reasonable persons. Smyzer v. B.F. Goodrich Chemical Co., 474 S.W.2d 367 (Ky.1971).
In rendering a decision, KRS 342.285 grants an ALJ — as fact-finder— sole discretion to determine the quality, character, and substance of the evidence. Square D Co. v. Tipton, 862 S.W.2d 308, 309 (Ky.1993). An ALJ may draw reasonable inferences from the evidence, reject any testimony, and believe or disbelieve various parts of the evidence, regardless of whether it comes from the same witness or the same adversary party’s total proof. Jackson v. General Refractories Co., 581 S.W.2d 10 (Ky.1979); Caudill v. Maloney’s Discount Stores, 560 S.W.2d 15 (Ky.1977); Magic Coal Co. v. Fox, 19 S.W.3d 88 (Ky.2000). In that regard, an ALJ is vested with broad authority to decide questions involving causation. Dravo Lime Co. v. Eakins, 156 S.W.3d 283, 288-290 (Ky.2005).
Although a party may note evidence that would have supported a different outcome than reached by an ALJ, such proof is an inadequate basis for reversal on appeal. McCloud v. Beth-Elkhom Corp., 514 S.W.2d 46, 47 (Ky.1974). Rather, it must be shown there was ho evidence of substantial probative value to support the decision. Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky.1986).
Appellate review of an ALJ’s decision is limited to a determination ■ of whether the findings made are so unreasonable under the evidence that they must be reversed as a matter of law. Ira A. Watson Department Store v. Hamilton, 34 S.W.3d 48, 52 (Ky.2000). When reviewing the ALJ’s findings of fact, an appellate tribunal is required to give these findings considerable deference and cannot set them aside unless the evidence compels a contrary finding. Mosely v. Ford Motor Co., 968 S.W.2d 675, 678 (Ky.App.1998). The appellate tribunal may not usurp the ALJ’s role as fact-finder by superimposing its own appraisals as to weight and credibility or by noting other conclusions or reasonable inferences that otherwise could have been drawn from the evidence. Whittaker v. Rowland, 998 S.W.2d 479, 482 (Ky.1999). If an ALJ’s findings of fact are supported by substantial evidence, a finding contrary to the ALJ’s findings cannot be sustained. AK Steel Corp. v. Adkins, 253 S.W.3d 59, 64 (Ky.2008).
However, regarding questions of law, this Court is bound neither by the decisions of an ALJ or the Board regarding proper interpretation of the law or its application to the facts. In either case, the standard of review is de novo. Bowerman v. Black Equipment Company, 297 S.W.3d 858, 866 (Ky.App.2009).
ANALYSIS
On appeal, Miller argues substantial evidence supports the ALJ’s finding of ’ a work-related, permanent right CTS. Thus, Miller argues the Board erred in vacating the ALJ’s award of medical benefits for her CTS, and in remanding the matter for the ALJ’s reconsideration based on more specific citation to supportive substantial evidence. She also argues the Board erred in reversing the ALJ’s award of PPD income benefits relative to that medical condition and precluding consideration of any similar award on remand.
ALJ’S OPINION ESTABLISHING . WORK-RELATED CTS AND AWARDING MEDICAL BENE- , FITS,
First, Miller argues her own testimony and the medical opinion of Dr. *630Hughes — together with the Emergency Room record from the Kentucky River Medical Center chronicling her complaints of right arm symptoms when treated on the day of her work-related motor vehicle accident — represented substantial evidence upon which' the ALJ was justified in finding a work-related right CTS. She believes the Board erred in vacating the ALJ’s award of benefits relative to that condition and remanding for further findings. Based on our review, however, the Board’s decision to vacate the ALJ’s conclusion that Miller had sustained a work-related right CTS and was entitled to an award of associated medical benefits had less to do with whether substantial evidence supported the award, and more to do with what substantial evidence supported such an award.
In Whittaker v. Rowland, 998 S.W.2d 479, 481 (Ky.1999), the Supreme Court of Kentucky held parties to a workers’ compensation action are “entitled to a sufficient explanation by the ALJ of the basis for the decision.” In Arnold v. Toyota Motor Mfg., 375 S.W.3d 56, 61-62 (Ky.2012), our Supreme Court expounded that workers’ compensation litigants are entitled to know the evidentiary basis for an ALJ’s findings of fact and conclusions of law, and an ALJ’s opinion must summarize the conflicting evidence concerning disputed facts, weigh the evidence to make findings of fact, and determine the legal significance of those findings.
Only when an opinion summarizes the conflicting evidence accurately and states the evidentiary basis for the ALJ’s finding does it enable the Board and reviewing courts to determine in the summary manner contemplated by KRS 342.285(2) whether the finding is supported by substantial evidence and reasonable.
Id. (Footnotes omitted.) The parties’ understanding of an ALJ’s opinion — in addition to appellate review — requires that basic facts supporting any ultimate conclusion be clearly set out. Bowerman v. Black Equipment Co., 297 S.W.3d 858, 866 (Ky.App.2009); Shields v. Pittsburg and Midway Coal Mining Co., 634 S.W.2d 440, 444 (Ky.App.1982).
Here, in vacating and remanding the ALJ’s opinion and award of benefits relative to any work-related right CTS, the Board explained:
We next address the determination regarding the alleged carpal tunnel syndrome and the award of medical benefits for the condition. Even though Miller is not entitled to income benefits, she is entitled to an award of medical benefits if her alleged carpal tunnel syndrome is causally related to the July 3, 2012, MVA. We note the ALJ made no specific finding the MVA caused carpal tunnel syndrome in the right wrist. Rather, he found based on Miller’s testimony and the “persuasive medical evidence from Dr. Hughes,” Miller sustained injuries to her back, right arm, and legs due to the MVA. Miller’s testimony relative to the existence of carpal tunnel syndrome is clearly circumspect. Without question, during her deposition taken two months after she saw Dr. Hughes, Milíer denied sustaining an injury to her wrists and hands and that she experienced any symptoms which would support a finding of carpal tunnel syndrome due to the July 3, 2012, MVA. Conversely, Miller’s testimony at the hearing and Dr. Hughes’ report could constitute substantial evidence in support of a finding she developed carpal tunnel syndrome as a result of the MVA. However, based oh the ALJ’s findings, we are unable to determine the basis of his determination the MVA caused carpal ■tunnel syndrome. As noted by Go Hire, *631the determination Miller’s testimony was very credible and convincing provides no guidance- as to what portion of Miller’s testimony the ALJ relied upon in determining the MVA caused the carpal tunnel syndrome. Therefore, the ALJ’s determination regarding Miller’s alleged carpal tunnel syndrome and the award of medical benefits must be vacated.
On remand, the ALJ must provide the specific portions of Miller’s testimony he relies upon in determining whether she developed work-related carpal tunnel syndrome. This is essential since in its petition for reconsideration Go Hire requested additional findings of fact regarding the ALJ’s .determination the carpal tunnel syndrome was causally related to the MVA, and the ALJ provided no additional findings of fact. The ALJ must also consider the fact that at the time Dr. Hughes diagnosed carpal tunnel ■ syndrome, Miller had not attained MMI and also rioted her condition was mild. Based on this statement by Dr. Hughes and his conclusion Miller had not reached MMI, if the ALJ determines the carpal tunnel syndrome is work-related, he must also determine whether it is a teiriporary or permanent condition;'
Further, two months and one day after Miller saw Dr. Hughes, she testified she did not injure her arm or wrist, had no pain or symptoms in her wrists, and had no numbness or tingling in her armsl Miller’s testimony is consistent with Dr. Jenkinson’s July 31, 2013, report in which he noted Miller did not describe any symptoms in her right- hand that would be consistent with carpal tunnel syndrome nor did she complain of any symptoms in the right forearm or hand. The ALJ must consider all of the above in determining whether the MVA caused carpal tunnel syndrome in the right -hand and, if so, whether the condition is temporary or permanent. In the event the ALJ determines the carpal tunnel syndrome is either temporary or permanent, an award of the appropriate medical benefits is necessary.
We agree Go Hire was entitled to the additional findings specified by the Board. Herd, the ALJ’s opinion lacked sufficient findings and analysis relative to the award of benéfíts’for a work-related right CTS. Go Hire Sought clarification’ by filing a timely petition for reconsideration. -Regrettably, the ALJ’s perfunctory denial provided none. Thus, we affirm the Board’s-determination that the ALJ’s opinion and award relative to any work-related right CTS must be vacated and remanded for further consideration. In the event a compensable work-related right CTS is determined, the ALJ shall award appropriate medical benefits.
ALJ’S AWARDING OF PERMANENT PARTIAL DISABILITY BENEFITS FOR A WORE-RELATED CTS
Second, Miller argues the Board erred iri reversing the ALJ’s award of PPD iri-coirie benefits relative, to her work-related permanent right CTS and in precluding consideration of any similar award upon remand. We agree, in part.
Rather than reversing the ALJ’s award of PPD income benefits, the Board should have vacated and remanded- the matter to the ALJ ’ for further findings based on the same legal analysis pertaining to an- award of medical benefits set forth above. The ALJ, as fact finder, must be given an opportunity to decipher the conflicting evidence to determine whether Miller is entitled to an award of PPD income benefits for any work-related CTS -⅛ the same .fashion any award of medical benefits relating to that-condition *632must be clearly substantiated and explained. If a compensable work-related CTS is established on remand, the ALJ should not be precluded from awarding appropriate PPD benefits if justified by further factual findings.
In the present case, the Board properly focused on whether Miller had reached MMI relative to her alleged work-related right CTS. However, for reasons stated below, we hold the Board missed the mark in reversing the ALJ’s award of PPD income benefits rather than vacating and remanding the matter for further findings and explanation.5
MMI is critical in the context of assessing a “whole person impairment” rating because the AMA Guides prohibit physicians from assessing an impairment rating for a medical condition unless the patient has achieved MMI. AMA Guides, p. 9. Without a whole person impairment rating — properly assigned pursuant to the AMA Guides — an award of PPD income benefits is prohibited. KRS 342.730(l)(b); KRS 342.0011(35). In contrast to an award of PPD income benefits, an award of medical benefits does not require assignment of a permanent impairment rating under the AMA Guides. Kroger v. Ligon, 338 S.W.3d 269, 273-74 (Ky.2011). “The need for additional treatment does not preclude a finding that a worker is at MMI.” Tokico (USA), Inc. v. Kelly, 281 S.W.3d 771, 776 (Ky.2009) (citing W.L. Harper Construction Co., Inc. v. Baker, 858 S.W.2d 202, 204 (Ky.App.1993)).
Here, Miller was examined by Dr. Hughes on April 23, 2013. Dr. Hughes noted 'his medical opinions in a Form 107. Dr. Hughes indicated he would assess a 6% whole person impairment rating pursuant to the AMA Guides specifically for Miller’s right CTS. As to causation, he noted “the symptoms of right CTS accompanied by physical findings of such were not present prior” to the work-related MVA on July 3, 2012, “and had been present since.”
Most importantly, in regard to MMI relating to Miller’s CTS condition, Dr. Hughes specifically opined that she:
had not yet reached maximum medical improvement as she has hád no treatment for the right carpal tunnel syndrome, though this is mild. If no further treatment for this is approved, then she is at maximum medical improvement as of this date.
[Emphasis added]. Admittedly, Dr. Hughes then created some confusion by proceeding, as noted by the ALJ, to offer a generalized opinion that Miller had not reached MMI. However, the medical opinions expressed in Dr. Hughes’ Form 107 addressed, not only Miller’s right CTS, but also her low back. As a result, Dr. Hughes may reasonably have intended his generalized opinion regarding MMI to pertain specifically to Miller’s low back condition, as opposed to her CTS condition. On remand, the ALJ should clarify whether he meant his finding of Miller not having reached MMI until July 31, 2013, to relate to her low back condition, alone, her right CTS, alone, or both. If intended to relate only to her low back condition, the ALJ must clarify if and when Miller reached MMI in regard to her right CTS based on substantial evidence.
When Dr. Hughes assessed the 6% whole person impairment rating pursuant *633to the AMA Guides, he- documented, based on the medical history provided by Miller, that she had received no treatment for the right CTS condition.- Dr. Hughes clearly conditioned his assessment of the 6% impairment rating on Go Hire’s continued denial of recommended treatment for Miller’s CTS, without which he concluded Miller should be considered at MMI as of the date of her April 23, 2013, examination. Go Hire has continuously, consistently, and vigorously denied liability for payment of medical or other benefits associated with the contested condition, having submitted Dr. Jenkinson’s medical opinion denying even its existence.
Dr. Jenkinson examined Miller on July 31, 2013. Dr. Travis examined Miller on August 20, 2013. Both asserted Miller’s medical history contained no suggestion of the contested right CTS condition until she was examined by Dr. Hughes on April 23, 2013. Neither referenced any medical treatment for CTS having been provided prior to their respective examinations of Miller, and neither of their respective resulting medical opinions could reasonably be expected to cause Go Hire to approve such treatment for what they considered to be a non-existent or non-work-related condition.
Thus, when Dr. Hughes’ Form 107 is read in context, it appears he simply opined treatment might benefit Miller’s CTS — which, importantly, he characterized as being “mild” — but barring provision of such treatment, he considered her to have reached MMI. Stated alternatively — and to borrow terminology from the AMA Glides- — without treatment, Dr. Hughes opined Miller’s contested condition was more likely than not to remain static and stabilized with no further anticipated recovery or deterioration.
Dr. Hughes could not be expected to gaze into a crystal ball to discern whether Go Hire would capitulate and acquiesce to providing recommended treatment it had vigorously denied. However, the record establishes Miller had not received treatment at the time Dr. Hughes diagnosed right CTS, and — given the strong contrary opinions expressed by Go Hire’s medical examiners- — it was unreasonable to expect she would ever be approved for such treatment. Therefore, the ALJ could reasonably interpret Dr. Hughes’ conditional opinion to mean Miller had reached MMI as of April 23, 2013, when Dr. Hughes conducted his, examination — especially since Dr. Hughes characterized Miller’s CTS ¿s being merely “mild” and because the need for treatment does not preclude a finding of MMI. Tokico, 281 S.W.3d at 776.
- Such an inference regarding Dr. Hughes’ provisional MMI opinion would be entirely consistent with his assignment • of an impairment rating, under the AMA Guides. Dr. Hughes’ direct action of assigning a 6% whole person impairment rating could reasonably, be understood to confirm the meaning intended for the indirect words expressed in his provisional MMI opinion. A reasonable inference arising from Dr. Hughes’ assignment of an impairment rating for Miller’s CTS would be that the physician knew no treatment had been provided, none would be forthcoming, and without treatment Miller’s contested condition would remain unchanged. Without the recommended treatment, Dr. Hughes clearly opined Miller had reached MMI for the contested condition “as of this date” — April 23, 2013 — being the very date he proceeded to assign the 6% whole person impairment rating under the AMA Guides.
With this understanding, Dr. Hughes’ assignment of the 6% whole person impairment- rating was in accordance with the AMA Guides — having arisen from his .opinion that Miller had reached MMI *634regarding her diagnosed right CTS, and could represent substantial evidence to support an award of PPD income benefits relating to this contested condition. Therefore, if the ALJ on remand provides specific findings supporting a determination that any right CTS is work-related and compensable, the ALJ should not be precluded from determining whether Miller is entitled to an award of appropriate PPD income benefits in addition to an award of medical benefits.
In precluding the ALJ on remand from considering an award of PPD income benefits for Miller’s CTS, the Board ignored the foregoing specific: — though provisional — opinion of Dr. Hughes that Miller had reached MMI for the contested CTS condition as of his examination on April 23, 2013. Instead, the Board focused on the ALJ’s subsequent singular, generalized, and unexplained finding that Miller had reached MMI as of her exámination by Dr. Jenkinson on July 31, 2013, based on the physician’s opinion Miller required no further work restrictions or limitations.
However, unless made in specific reference to Miller’s uncontested low back condition, the ALJ’s finding of MMI as of July 31, 2013 — based on Dr. Jenkinson’s report — would be inconsistent with the ALJ’s prior finding of a 6% impairment for Miller’s CTS — based on Dr. Hughes’ report. Moreover, Dr. Jenkinson’s assessment of MMI must have related only to Miller’s low back condition, since he found “no evidence for carpal tunnel syndrome.” Logically, Dr. Jenkinson could not assign MMI for a condition he deemed nonexistent. Here, Dr. Jenkinson agreed with Dr. Hughes in assigning a 5% impairment for Miller’s uncontested low back .condition, but disagreed with Dr. Hughes’ diagnosis of CTS, stating there was “no basis for [Dr. Hughes’ 6% impairment rating].” Therefore, the ALJ’s finding of MMI as of July 31, 2013, apparently related solely to Miller’s low back condition, and not her contested CTS — but that is a matter for the ALJ to clarify on remand.
When multiple .work-related injuries are alleged, it is imperative that an ALJ’s opinion distinguish the condition to which factual findings pertain. An ALJ’s discretion to pick and choose from the evidence does not authorize conflicting findings of fact. A witness may be inconsistent, but an ALJ may not, and on review an appellate court must search for consistency in interpreting an ALJ’s findings.
CONCLUSION
For the reasons stated above, the Board’s opinion of January 31, 2014, is affirmed in part and reversed in part, and remanded for further findings and clarification consistent with this Opinion.
J. LAMBERT, JUDGE, CONCURS.
KRAMER, JUDGE, CONCURS IN PART, DISSENTS IN PART, AND FILES SEPARATE OPINION.
. Kentucky Revised Statutes.
. American Medical Association, Guides to the Evaluation of Permanent Impairment, Fifth Edition, Linda Cocchearella, M.D., Gunnar B.J. Anderson, M.D., PhD., eds, (AMA Press, Nov. 2000).
. Section 2.4, AMA Guides.
. Though not an issue on appeal, the Board also raised, sua sponte, the issue of whether the two multiplier specified in KRS 342.730(l)(c)2 applied to Miller’s award, and directed the ALJ to include language regarding its applicability on remand.
. Reversal of a lower court's decision is “[a]n annulling or setting aside” or overturning by an appellate court — establishing a contrary determination to be entered or applied by the trial court; while vacating is "[t]o nullify or cancel; make void; invalidate” a lower court’s decision — requiring the trial court to reach a new decision on a clean slate. Black’s Law Dictionary, Tenth Edition, Bryan A. Gamer, ed. (Thomson Reuters 2014). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284493/ | KRAMER, JUDGE,
CONCURRING IN PART AND DISSENTING IN PART:
The majority has determined that the ALJ’s decision regarding Miller’s entitlement to PPD should be vacated and reconsidered. They disagree with the Board’s opinion that the ALJ should be reversed on this point. However, in my opinion the Board was correct. Accordingly, to this extent, I would affirm.
Shirley Miller submitted' her claim for PPD for her right CTS condition to the ALJ for final adjudication. The ALJ found in her favor, relying entirely upon Dr. Hughes’ determination that 6% of Miller’s overall 11% whole person impairment was attributable to right CTS. As noted by *635the. majority, however, Dr. Hughes qualified his determination as follows:
[Miller] had not yet reached maximum medical improvement as she has had no treatment for the right carpal tunnel syndrome, though this is mild. If no further treatment for this is approved, then she is at maximum medical improvement as of this date.
(Emphasis added.)
When the Board reversed the ALJ on this point, its reasons for doing so were largely based upon the concept of maximal medical improvement, or “MMI” — a medical term of art. According to the AMA Guides, 5th Edition, p. 601, MMI is:
[a] condition or state that is well stabilized and unlikely to change substantially in the next year, with ór without medical treatment. Over time, there may be some change; however, further recovery or deterioration is not anticipated.
(Emphasis added.)
MMI is critical'in the context of assessing a “whole person impairment” (WPI) rating, such as the “6%” that Dr. Hughes assessed Miller for her carpal tunnel syndrome. This is because the AMA Guides prohibits doctors' from assessing any WPI rating for a medical condition unless the medical condition has achieved MMI. See AMA Guides, 5th Edition, p. 9. A WPI rating, in turn, is a prerequisite to receiving any award of permanent partial disability income benefits. See KRS 342.730(l)(b); KRS 342.0011(35).
With that said, the Board analyzed the only evidence offered and relied upon to support that Miller’s carpal tunnel syn'drome had reached MMI, and it reversed the ALJ on the ground that this evidence was inadequate: Its reasoning was as follows:
Only Drs. Hughes and Jenkinson conducted. a physical examination of Miller. Dr. Jenkinson noted Miller voiced no complaints regarding her hand and arm. On the other -hand, Dr. Hughes, obtained a history from Miller of hand and arm symptoms. .Although Dr. Hughes assessed a 6% impairment rating, his impairment rating is not in accordance with the AMA Guides, since Dr. Hughes stated and the ALJ expressly found Miller had not attained MMI at the time of Dr. Hughes’examination. In the Form 107, Dr. Hughes opined Miller had not reached MMI since she had received no treatment for the carpal tunnel syndrome. However, he qualified that opinion by stating if further treatment was not approved then. Miller was at MMI. The record is silent as to whether Miller received any further treatment of this condition. Thus, the record does not establish if Miller ever attained MMI. This is confirmed by the ALJ’s finding that Dr. Hughes stated Miller had not reached MMI.
The most significant finding by the ALJ is that Miller attained MMI on July 31, 2013, when Dr. Jenkinson examined Miller. Consequently, at the time Dr. Hughes examined Miller on April 23, 2013, she -had not' attained MMI. That being the cáse, pursuant to the AMA Guides, a permanent impairment rating could not and should not have been assessed at the time of Dr. Hughes’ examination. Our holding is consistent with the mandates of the AMA Guides as it directs as follows:
2.4 When Are Impairment Ratings Performed?
An Impairment should not be considered permanent until the clinical findings indicate that the medical condition is static and well stabilized, .often termed the date of maximal, medical improvement (MMI). It is under*636stood that an individual’s condition is dynamic. Maximal medical improvement refers to a date from which further recovery or deterioration is not anticipated, although over time there may be some expected change. Once an impairment has reached MMI, a permanent impairment rating may be performed. The Guides attempts to take into account all relevant considerations in rating the severity and extent of permanent impairment and its effect on the individual’s activities of daily living. [FN]
[FN] See page 19 of the AMA Guides.
Because Dr. Hughes stated Miller was not at MMI, and there is no indication in the record as to whether Miller sought further treatment of her carpal tunnel syndrome, and the ALJ determined MMI was attained on July 31, 2013, Dr. Hughes’ 6% impairment rating does not constitute substantial evidence supporting the award of income benefits for carpal tunnel syndrome. As there is no other medical evidence which supports an award of income benefits for carpal tunnel syndrome, the award must be reversed.
The underpinning of the majority’s decision to reverse the Board on this point is that Dr. Hughes was authorized to assess Miller with a 6% whole person impairment attributable to right CTS because, contrary to the AMA Guides, MMI does not depend upon whether Miller’s right CTS was “well stabilized and unlikely to change substantially in the next year, with or without medical treatment.” Rather, the majority has concluded that MMI depends upon whether Miller’s employer was willing to volunteer payment for medical treatment that, according to Dr. Hughes, would have improved Miller’s condition.
A hypothetical or conditional WPI rating — essentially what Dr. Hughes offered herein — is prohibited by the AMA Guides and cannot be relied upon as substantial evidence. See Czar Coal Corp. v. Jarrell, Nos. 2007-SC-000233-WC, 2007-SC-000234-WC, 2008 WL 746605 at *4 (Ky. March 20, 2008).6
If Miller wished to obligate her employer to pay for the medical treatment she needed in order to reach MMI and secure a valid WPI rating for the purpose of receiving PPD, her proper course of action would have been to have sought an interlocutory determination of her employer’s liability and an interlocutory award of medical benefits. Garno v. Solectron USA, 329 S.W.3d 301 (Ky.2010). If successful, she could have then held her claim in abeyance until she achieved MMI.
But having submitted her claim for final adjudication based solely upon Dr. Hughes’ invalid WPI rating, her evidence, such as it was, simply could not have supported an award of PPD. For this reason, in my view the majority has directed an exercise in futility by asking the ALJ to reconsider and make additional findings of fact regarding Dr. Hughes’ opinions; no matter how that evidence is construed, it will never qualify as evidence capable of sustaining an award of PPD.
. I find Jarrell to be persuasive authority in this case and proper to cite as it fulfills the criteria of Civil Rule (CR) 76.28(4). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284494/ | OPINION CLAYTON, JUDGE: Brandon Tyler Ryan appeals from the Boyd Circuit Court’s order, entered on December 2, 2014, amending in part and denying in part his Kentucky Rules of Civil Procedure (CR) 59.05 motion to alter, amend, or vacate the trial court’s order, which was entered on November 10, 2014. The issue involves the trial court’s' suspension of his allotted parenting time with his fourteen-year-old daughter and the imposition of' supervised visitation. After careful consideration,'we reverse and remand. FACTUAL AND PROCEDURAL BACKGROUND A decree of dissolution was entered in 2008. During the marriage of Brandon and Mariya Ryan, they had a daughter, S.R., who was born in 2000. Joint custody of S.R. was awarded to Brandon and Mari-ya. In. addition, Mariya was named the primary residential custodian, and Brandon’s parenting time was based on the Boyd County Timesharing Schedule for long distance timesharing. Pursuant to the long distance timeshar-ing guidelines, Brandon was scheduled to have S.R. for 75% of the 2014 summer. Brandon picked-up S.R. on June 7, 2014, and she stayed for a week and a half. S.R., with Brandon’s permission, then returned to Huntington, West Virginia, to attend a music concert with her mother and friends. She was scheduled to return to Brandon’s home on June 20, 2014. But Mariya filed a motion for an immediate ex parte order-to suspend the remainder of the summer visitation based on the allegation that Brandon used illegal drugs while S.R. was with him. Responding to the motion, the trial court entered an order on June 20, 2014, suspending the visitation until a hearing could be conducted. On July 31, 2014, a hearing' was held before the domestic relations commissioner, who issued a report and recommendations on October 1, 2014. The parents and the child testified at the hearing. In the report the commissioner noted that S,R. made several allegations against Brandon including the she smelled marijuana in his home and that he- yelled at her when she did not clean up after a dog. According to S.R., she should not have had to clean up after the dog.since it was not her dog. Brandon testified that he agreed to let S.R. attend a concert in Pittsburgh with Mariya. Further, Brandon claimed that he not only told S.R. to clean up after the dog but also told his stepdaughter to do so. Continuing with his testimony, he said that he did not smoke marijuana and rarely drank alcohol. Brandon’s June 20, 2014 urine test was negative for all substances. Nonetheless, the hair follicle test, submitted on July 28, 2014, tested positive for marijuana. However, even though the test was positive, there is no mechanism for determining the date for the use of marijuana. In the .report, the domestic relations commissioner explained that the divorce was very bitter and that both parties have acted badly on occasion. As a result of the parties’ animosity, S.R.’s relationship with Brandon has been influenced. Furthermore, the commissioner explained that S.R. is a teenager who wants to spend time with her friends in the summer. Among other things, the commissioner recommended that Brandon’s timesharing'should be reinstated. Mariya filed exceptions to the domestic relations commissioner’s report, and Brandon responded. On November 10, 2014, the trial court entered an order regarding Mariya’s exceptions. In particular, the trial court ordered Brandon to complete drug counseling and' submit to random drug screens. Additionally, the trial court admonished that Brandon must have ’ clean drug tests for six months before his visitation shall be reinstated, and until that time, the visitation shall be supervised. Brandon then filed a motion to alter, amend, or vacate the order. Therein, he argued that the trial court, modifying visitation, failed to make a, finding, pursuant to Kentucky Revised Statutes (KRS) 403.320(3)1 that modification served the best interests of the child and that the visitation WQuld “endanger seriously the child’s physical, mental, moral, or emotional health.” Brandon alleges that the trial court’s order unlawfully restricted his visitation rights in violation of KRS 403.320(3). Thereafter, the trial court, on December 2, 2014, issued an order adopting its Original order but amending it by adding additional language, which was a finding that unsupervised visitation would endanger seriously the child’s mental, moral, and emotional health since Brandon is involved in illegal activity. The illegal activity referred to by the-trial court is, presumably, illegal -drug use. Further, the trial court no longer cited the six month time period but stated that “[t]he Court, shall, after the Respondent has demonstrated his ability to maintain a drug free lifestyle and the completion of counseling, revisit the issue of visitation.” Brandon appealed from the December 2, 2014 order denying his motion to alter, amend, or vacate-the November 10, 2014 order. STANDARD OF REVIEW An appellate court will only reverse a trial court’s decision’ regarding visitation if this determination constitutes a manifest abuse of discretion or was clearly erroneous in light’ of the facts and circumstances of the -case. Drury v. Drury, -32 S.W,3d 521-, 525 (Ky. App. 2000). The test is not whether we would have decided the issue differently, but whether the findings of the trial court were clearly erroneous or an abuse of discretion. Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982). ' ‘ ■ “The test for abuse of discretion is whether the trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000). Abusé of discretion implies arbitrary and capricious action that results in an unreasonable and unfair decision. Sherfey v. Sherfey, 74 S.W.3d 777, 783 (Ky. App. 2002), overruled on other grounds by Benet v. Commonwealth, 253 S.W.3d 528 (Ky. 2008). And we review the legal conclusions of the trial court under a de novo standard, Brewick v. Brewick, 121 S.W.3d 524, 526 (Ky. App. 2003). With these standards in mind, we turn to the case at bar. ANALYSIS Brandon maintains that the trial court erred by unreasonably restricting his visitation rights in violation of KRS 403.320(3), and by finding that visitation with him would endanger seriously the child’s mental, moral, and emotional health. He contends that this finding was clearly erroneous. Further, he claims that even if the findings are not erroneous, they are too restrictive within the meaning of KRS 403.320. In contrast, Mariya claims that the trial court did not err in restricting Brandon’s visitation until he completes a series of drug screens and a drug counseling program. Kentucky Revised Statutes 403.320(3) states that “[t]he court may modify an order granting or denying visitation rights whenever modification would' serve the best interests of the child; but the court shall not restrict a parent’s visitation rights unless it finds that the visitation would endanger seriously the child’s physical, mental, moral, or emotional health.” Thus, in order to modify visitation, a trial court must determine that visitation would seriously endanger a child. In the instant case, the trial court, in its first order of November 10, 2014, did not adopt the recommendation of the domestic relations commissioner that Brandon’s visitation with S.R. be immediately reinstated, but instead ordered that Brandon complete drug counseling, submit to random drug screens, and be drug-free for at least six months before visitation shall be reinstated. However, in that order, the trial court made no determination that visitation would endanger seriously S.R.’s physical, mental, moral, or emotional health. Next, Brandon filed a motion to alter, amend, or vacate based on the trial court’s failure to find that visitation with him would endanger seriously S.R.’s physical, mental, moral, or emotional health. Included in the motion was information that Brandon submitted to a drug screen, covering the time period that S.R. was with him, and it was negative. Further, there was absolutely no evidence that Brandon used marijuana in the child’s presence or that any other drug use had occurred. The only evidence was a hair follicle test that showed a low level of marijuana during a time frame of between twelve to fourteen months. Brandon, citing to KRS 403.320(3), argued that a trial court may not restrict a parent’s visitation rights unless it finds that the visitation would seriously endanger the child. Next, the trial court responded to Brandon’s motion, by adopting its original order but amending it by adding the following findings: The Court finds that unsupervised visitation would endanger seriously the child’s mental, moral, and emotional health due to the fact that the Respondent is involved in illegal activity. It is undisputed that the Respondént is a marijuana user and until he has demonstrated he no longer is engaged in illegal drag use, his visitation must be restricted for the safety of the infant child herein. There was ample evidence presented at the hearing that the drag use took' place in the presence of the child. Even if that were not the case, the Respondent has demonstrated through his action of engaging in illegal drag usage 'that he lacks the moral compass to be alone with the child. In light of the trial court’s findings, a review of the record is necessary. In doing so, we must keep in mind that KRS 403.320(3) specifically directs that a court “shall not restrict a parent’s visitation rights” unless allowing visitation would seriously endanger the child. Pennington v. Marcum, 266 S.W.3d 759, 769 (Ky. 2008), as modified (Oct. 24, 2008). The record includes the following facts: the domestic relations commissioner, who actually conducted the hearing, recommended that visitation be reinstated; •Brandon denied that he was smoking marijuana or that he had marijuana the day that S.R. claimed she smelled marijuana in his home; Brandon immediately submitted to a urine test upon learning of the ex parte order; the urine test came back negative for all substances; and, S.R. admitted she had never observed Brandon smoking marijuana or saw a bong or drug paraphernalia in his home. After considering the evidence of record, we do not believe that it is sufficient to establish that S.R.’s welfare was endangered by visitation with Brandon. A family court’s factual findings are reyiewed for clear error. CR 52.01. A finding supported by substantial evidence is not clearly erroneous. Substantial evidence is that which is “sufficient to induce conviction in the mind of a reasonable person.” Rearden v. Rearden, 296 S.W.3d 438, 441 (Ky. App. 2009). Here, substantial evidence, enough to induce conviction in a reasonable person, was not provided. Nothing, including S.R.’s testimony, indicated that Brandon was using illegal drugs in front of his daughter. In fact, the only evidence of marijuana use was a hair follicle test that showed a low level of marijuana, which, if the test is scientifically reliable, indicates marijuana use in the last ten to twelve months. While it might be reasonable or prudent for the trial court judge to order random drug testing or drug counseling, his suspension of Brandon’s timesharing and requirement of supervised visitation is too restrictive. Recognizing the appellate standard of review that a trial court abuses its discretion if its decision is arbitrary and results in an unreasonable and unfair decision, we conclude that the trial court’s decision was not only clearly erroneous but also an abuse of discretion. CONCLUSION Accordingly, we reverse and remand the judgment of the Boyd Circuit Court. ALL CONCUR. . Respondent’s motion references KRS 403.230(3) but the language is obviously from KRS 403.320(3), which is pertinent to this action. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6125641/ | The memorandum of decision herein, of April 4, 1881, and the order entered thereon modified by adding thereto the words “ and the case remitted to the County Court of Monroe to proceed therein,” and the motion denied in all other respects, without costs of the motion to either party. | 01-04-2023 | 02-04-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284497/ | ORDER
PER CURIAM.
Walter L. Griffith appeals from the judgment of the City of St. Louis Circuit Court, following a jury trial, convicting him of one count of first-degree child molestation, ten counts of second-degree statutory sodomy, one count of second-degree child molestation, three counts of forcible rape, three counts of second-degree statutory rape, and two counts of forcible sodomy. We have reviewed the briefs of the parties, the record on appeal, and the oral arguments by the parties and conclude that no reversible error occurred. An ex*649tended- opinion would have no jurisprudential purpose. We have, however, provided a memorandum setting forth the reasons for our decision to the parties for their use only. We affirm the judgment pursuant to Missouri Rule of Criminal- Procedure 30.25(b) (2015). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/2302769/ | 40 A.3d 124 (2012)
NORTH COVENTRY TP.
v.
TRIPODI.
No. 502 MAL (2011).
Supreme Court of Pennsylvania.
February 28, 2012.
Petition for allowance of appeal denied. | 01-04-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/5284500/ | ORDER
PER CURIAM.
Quantrell Coleman (“Defendant”) appeals from.the judgment of the trial court upon his convictions for second-degree domestic assault, Section 565.073, RSMo 2000,1 and armed criminal action, Section 571.015. Defendant argues the trial court erred in allowing ■ Officer Abby Krull to testify that her investigation of the victim’s damaged truck was the first time she had investigated an “intentional accident.”
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 principles of law would have no *672precedential value. However, the parties have been furnished with a memorandum for their information only, setting forth the reasons for this order. The judgment is affirmed in accordance with Rule 30.25(b).
. All further statutory references are to RSMo 2000, unless otherwise indicated. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284501/ | ORDER
PER CURIAM.
B.G.B. appeals from the judgment entered on the petition of C.K, as next friend of F.K., determining paternity and ordering custody and support. The judgment is supported by substantial' evidence and is not against the weight of the evidence. No error of law appears. We affirm.
An opinion would have no precedential value nor serve any jurisprudential purpose. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order pursuant to Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284502/ | ORDER
Per Curiam:
Larry McGee appeals from the circuit court’s judgment granting the Missouri Department of Corrections’ motion for judgment on the pleadings in McGee’s declaratory action seeking jail-time credit under section 558.031, RSMo 2000. We affirm. Rule 806(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6125642/ | Motion denied. | 01-04-2023 | 02-04-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6125643/ | Judgment and order affirmed. Opinion by
Hardin, J.;
Smith, J., not participating in the decision. | 01-04-2023 | 02-04-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284503/ | ORDER
PER CURIAM: ,
Kay Elliot appeals the trial .court’s grant of summary judgment to Janet Rao, PHB Realty Company, LLC (“PHB”), and Aspen Homebuilders, LLC (“Aspen”) on her action in premises liability and ordinary negligence. In her first point on appeal, Ms. Elliot contends, that the trial court erred in granting summary judgment .to Janet Rao and PHB based on its finding that the defendants owed no .duty to Ms. Elliott because there was substantial evidence (1) that Ms. Rao and PHB owed a duty of ordinary care to Ms. Elliott, (2) that their conduct was negligent, (3) that the dangers in the home were not open and obvious, and (4) that even if Ms. Elliott should have known hot to enter the home, comparative fault rendered summary judgment for Ms. Rao and PHB improper. In her second point on appeal, Ms. Elliott argues that the trial court erred in granting summary judgment to Aspen based on its finding that Aspen owed Ms. Elliott no duty because (1) she was not a trespasser, (2) the home was not reasonably safe, '(3) Aspen was negligent, (4) the dangers of the home were not open and obvious, and (5) even if Ms. Elliott should have known not to enter the home, comparative fault rendered summary judgment for Aspen improper. 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/5284504/ | OPINION
KEASLER, J.,
delivered the opinion of the Court, in which
MEYERS, HERYEY, RICHARDSON, and NEWELL, JJ„ join.
After being convicted and sentenced for online solicitation of a minor, Curtis Four-nier and Christopher Dowden filed applications for a writ of habeas corpus. In addition to seeking relief based on this Court’s opinion holding the applicable statute unconstitutionally overbroad, Applicants also seek relief undei; an actual innocence theory. Holding that Applicants do not present true actual innocence claims, we conclude they are not entitled to actual innocence relief. However, consistent with precedents granting relief under an unconstitutional statute theory, we set aside Applicants’ judgments.
Fournier and Dowden both pleaded guilty to the offense of online solicitation of a minor under Texas Penal . Code § 33.021(b)1 and were sentenced to terms of confinement in 2008 and 2011, respectively. In 2013, this Court in Ex parte Lo held § 33.021(b) to be unconstitutionally broad.2 Although the State had a compelling interest in protecting children from sexual predators, § 33.021(b) was not narrowly drawn “because there are narrower means of achieving the State interests advanced here, at least some of which are already covered by other statutes.”3 Section 33.021(b)’s constitutional infirmity was found in the Legislature’s drafting. The Court did not necessarily hold that Lo’s conduct was constitutionally protected.
In their respective applications, Applicants request habeas corpus relief under Lo and under the theory that, because the statute is unconstitutional, they are “actually innocent.” There is no disagreement among the parties that Applicants .are entitled to have their judgments - set aside under Lo.4 We agree. The undecided issue is whether Lo entitles Applicants to relief under an “actual innocence” theory. We filed and set their applications to answer this question.
Actual Innocence in the Texas Courts
Texas’s actual innocence jurisprudence is heavily borrowed from federal law, but its application has been substantially modified. In Herrera v. Collins, by way of a federal habeas corpus petition, Herrera sought to present evidence that his brother committed the capital murder for which he *791was convicted.5 He claimed that he was “actually innocent” , of the capital murder and that the prohibition -of cruel and unusual punishment and the Fourteenth Amendment’s due process guarantee forbade his execution for the offense.6 The United States Supreme Court addressed the use of Actual innocence as a way to avoid the bar of subsequent federal habeas petitions. Although a federal petitioner may have his federal constitutional claim considered on the merits if he “supplements his constitutional claim with a color-able showing of factual innocence,” “a claim of ‘actual innocence’ is hot itself a constitutional claim, but instead a gateway through which'a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits.”7 The Court never held that factual innocence is eligible as a freestanding claim for relief.8 For the sake of argument, the Court assumed that it did and went on to hold that Herrera could not satisfy the extraordinarily high showing required.9
Taking the concept of actual innocence from the United States Supreme Court’s opinion in Herrera, this Court in State ex rel. Holmes v. Honorable Court of Appeals for the Third District first declared that the execution of an innocent person would violate - the Due . Process Clause of the Fourteenth Amendment- to the United States Constitution.10 The Holmes Court adopted as persuasive Herrera’s passage in assuming a freestanding constitutional right: “-We may assume for the sake of argument in deciding this ease ... a truly persuasive demonstration .of ‘actual innocence’ made after .trial would render the execution of a, defendant unconstitutional, and warrant federal habeas relief if there were no. state avenue open to process such a claim.”11 Holmes .held that only when an applicant can show that no rational trier of fact could find applicant guilty .beyond a reasonable doubt in light of newly discovered evidence is an applicant entitled to relief on & factual- innocence claim.12
■ [-1] Two-years after Holmes, the Sm preme Court’s “actual innocence” assumption13 was firmly established into Texas habeas corpus law as a path to habeas relief. This Court’s opinion in Ex parte Elizondo extended the potential due process violation from death-penalty eases to every case involving incarceration.14 Eli-zondo also established an applicant’s burden to.obtain actual-innocence relief: “The *792petitioner must show by clear and convincing evidence that no reasonable juror would have convicted him in light of the new evidence.”15 Because punishment of an innocent man violates the Due Process Clause of the United States Constitution, an applicant is entitled to relief if he can “prove by clear and convincing evidence to this Court, in the exercise of its habeas corpus jurisdiction, that a jury would acquit him based on his newly discovered evidence.”16 Elizondo’s statement was clear: To be eligible for actual innocence relief, an applicant must “unquestionably establish” his factual innocence through newly discovered evidence.17
Subsequent precedent reaffirmed Eli-zondo ⅛ fact- and conduct-centric notions of actual innocence. In Ex parte Rich, this Court rejected the characterization of Rich’s “actual innocence” claim that an improper enhancement rendered him actually innocent as to the improper enhancement paragraph.18 Although we granted Rich relief because his sentence was illegal, this Court stated that it is incorrect to treat Rich’s claim as involving actual innocence. The Court so held because there was no evidence that Rich was innocent of the offense used to enhance his punishment, and the mischaracterization of the offense used for enhancement did not make Rich innocent of the primary offense for which he was charged.19 Further, Rich’s claims did not involve the “traditional hallmarks of actual innocence claims— newly discovered evidence showing that the defendant is being wrongfully imprisoned for a crime that he did not commit.” 20
Our opinion in Wilson v. State21 elaborated on Rich’s holding. In a nearly unanimous opinion written by Judge Johnson, the Court stated, “We hold that the term ‘actual innocence’ shall apply, in Texas state cases, only in circumstances in which an accused did not, in fact, commit the charged offense or any of the lesser-included offenses.”22 Looking back to its federal origins, the Wilson Court clarified that a bare actual innocence claim does not countenance “legal innocence” — the notion that, despite committing the alleged conduct, the applicant is nonetheless not guilty.23
The Wilson clarification was at the center of our recent opinion in Ex parte Mo-ble, in which we denied an applicant’s actual innocence claim when newly discovered forensic testing revealed that the substances forming the basis of Mable’s drug possession conviction contained no illicit substances.24 Although newly discovered evidence and facts were pleaded, we again looked to the applicant’s conduct: “In this case, the applicant pleaded guilty to possession of a controlled substance. Therefore, it is possible that he intended to possess a controlled substance (which is not alone an offense) or that he attempted to possess a controlled substance (which is a lesser included offenses of posses*793sion).”25 In his application, Mable did not contest that newly discovered evidence proved that he did not commit or intend to commit a significant portion of the charged conduct, specifically the possession element.
“A prototypical example of 'actual innocence’ in a colloquial sense is the case where the State has convicted the wrong person of the crime.”26 An actual innocence claim must be accompanied by new “affirmative evidence of the applicant’s innocence.”27 In the past we have evaluated the merits of actual innocence claims supported by new evidence in the form of witness recantations,28 scientific testing like DNA,29 and new expert testimony.30 Applicants’ requests'for relief on a bare actual innocence basis do not allege any evidence establishing that had it been presented at trial, Applicants would not have been found guilty of the offense they were convicted of. Applicants do not contest that they engaged in the conduct for which they were convicted. The conduct on which the criminal prosecution was based still exists as a matter of historical fact. Instead, Applicants’ contentions rest solely on a legal basis — the statute under which they were convicted is unconstitutionally broad in violation of the First Amendment. This claim is much different than pointing to new evidence supporting an argument that Applicants did not commit the conduct for which they were convicted. Lo, as matter of law, removed the criminal sanctions once affixed to Applicants’ conduct because the statute criminalizing it was unconstitutionally drafted. Lo was decided on the heightened standard we use to measure a statute’s language that restricts free speech. Our opinion in Lo is irrelevant to whether Applicants’ conduct was in fact committed. We conclude that Applicants do not assert true claims of actual innocence for which relief may be granted; they are decidedly different.
By relying on the statute’s overbreadth as a constitutional impediment to their convictions, Applicants’- claims, if anything, more closely resemble Schlup v. Delo31 claims made in federal court or claims made in Texas pursuant to Code of Criminal Procedure Article 11.07, § 4(a)(2) or Article 11.071, § 5(a)(2)32 as a procedural vehicle to get merits review for procedur*794ally barred claims. But Applicants’ claims are not found in subsequent applications; these- are Applicants initial writs.
In Schlup, the United States ■ Supreme Court held that Schlup could assert a procedural form of “actual innocence” to overcome the procedural bar against raising subsequent habeas corpus claims in federal court.33 The Court made clear that Schlup’s “constitutional claims are based not on his innocence, but rather on his contention that the ineffectiveness of his counsel, ... and the withholding of evidence by the prosecution, ... denied him the full' panoply of protections afforded to criminal defendants by the Constitution.”34 Schlup’s claim of actual innocence, the Court noted, was offered only to bring him within the “narrow class of cases ... implicating a fundamental miscarriage of justice,” a long-standing exception to the federal procedural bar to subsequent habeas claims.35 The Court contrasted Schlup’s actual innocence .claim from Herrera’s: “[Herrera] advanced his claim of innocence to support a novel substantive constitutional claim, namely, that the execution of an innocent person would violate the Eighth Amendment.”36
Of course, Schlup’s “actual innocence” gateway for review of federally barred claims serves only as a historical footnote to Texas’s abuse-of-the-writ statutes found in Article 11.07,- § 4(a)(2) and Article 11,071, § 5(a)(2), as those statutes appear to have been patterned after it.37 Schlup does not apply in Texas,38 and coincidentally, like Herrera, does not provide an avenue for relief in federal courts either.39 Because Applicants’ claims are made in initial applications, we are not faced with proeedurally barred claims, nor the obligation to measure them against our subsequent-application statutes. Applicants need not overcome any procedural hurdles, and their Lp claims may be addressed outright.
Applicants refer us to precedents holding that federal petitioners are “actually innocent” when the statute under which they were convicted is declared unconstitutional. Because they all deal with actual innocence as a way to avoid procedural default under federal law, we find them inapplicable. In Bousley v. United States, petitioner Bousley challenged his conviction of using a firearm in violation of 18 Ü.S.C. § 924(c)(1) claiming that his plea was involuntary because he was misinformed of the offense’s elements.40 Bous-ley’s argument relied on the Supreme Court’s interpretation of the word “use” in the statute five-years after his conviction.41 *795The Court found Bousley’s claim procedurally defaulted, and held that if Bousley could establish “that the constitutional error in his plea colloquy ‘has probably resulted in the conviction of one who is actually innocent,’ ” only then could his claim be entertained.42 The Court did not, as Applicants seems to suggest, find that Bousley was actually innocent under Schlup or that his plea was invalid; the Court remanded to permit Bousley the opportunity to make that showing.43 Bousley stands for the unremarkable principle that actual innocence, if proved, can serve as a claim-to overcome the federal courts’ bar on successive habeas petitions.
Applicants’ citations to other federal precedent are equally unpersuasive. Applicants rely heavily on Alexander v. Johnson, a magistrate’s opinion holding that because petitioner’s parole was revoked bn the grounds of a facially unconstitutional statute, he “is by necessity actually innocent of a violation of law.”44 In so ■ holding, the judge purportedly applied Fifth Circuit and Supreme Court precedent. In granting relief, the magistrate’s opinion made no mention of a bare actual innocence claim and did not grant relief on that basis. The inclusion of the term “actually innocent” is found in its. discussion of whether equitable tolling permitted the applicant to file his.habeas, petition outside the federal statute’s one-year statute of limitations.45 Like.in Bousley, the magistrate’s opinion, and the authority it relies upon, is only relevant to successive habeas petitions in federal court-.
In Reyes-Requena v. United States, the Fifth Circuit also used the term actual innocence, but' did so' in the context of whether Reyes-Requena’s claim properly fell within 18 U.S.C. § 2255(h)’s “savings clause.”46 Reyes-Requena spoke only in terms of hów a particular claim may be pursued after an initial habeas petition and did not grant habeas relief.' Instead, the court remanded the matter to the district court to determine the merits of Reyes-Requena’s claim.47 Citing to Hiett v. United States48 and Davis v. United States49 also does not help Applicants’ request for actual innocence relief. Hiett involved a direct appeal of a federal conviction under a statute that criminalized using the mail to solicit business in connection with' securing a divorce in a foreign country.50 The Fifth Circuit found the statute unconstitutionally vague and reversed the conviction.51 Davis involved a federal habeas petition, but “[t]he sole issue before the Court ... [was] the propriety of the Court of Appeals’ judgment that a change in the law of that "Circuit after the petitioner’s *796conviction may not be successfully asserted by him in a § 2255 proceeding.”52 While it expressed no view on the merits of the claim,- the Court held that Davis could proceed under § 2255 with his claim that his underlying conduct was not criminal because the administrative order that criminalized his conduct was unconstitutional.53 This holding is inapplicable to Applicants’ actual innocence claims.
Relief under Ex parte Lo
Although we find against Applicants in their claims for actual innocence relief, Applicants are entitled to relief under Lo and our subsequent decision in Ex parte Chance.54 In a short per curiam opinion, we granted Chance relief based on our judgment in Lo despite Chance’s, failure to contest the statute’s constitutionality at trial or on appeal.55 Consistent with Chance, we set aside Fournier’s and Dow-den’s judgments of conviction in Cause Numbers 1151921 and 1300886, respectively, and remand those causes to the respective trial courts to dismiss the indictments.
ALCALA, J., filed a concurring opinion.
YE ARY, J, filed a dissenting opinion, in which KELLER., P.J., joined.
JOHNSON, J., concurred.
.Tex Penal Code § 33.021(b) (West 2012) ("A person who is 17 years of age or older commits an offense if, with the intent to arouse or gratify the sexual desire of any person, the person, over the Internet, by electronic mail or text message or other electronic message service or system, or through a commercial online service, intentionally:
(1) communicates in a sexually explicit manner with a minor; or
(2) distributes sexually explicit material to a minor.'').
. 424 S.W,3d 10, 19 (Tex.Crim.App.2013).
. Id. at 24.
. See Ex parte Chance, 439 S.W.3d 918 (Tex.Crim.App.2014).
. Herrera v. Collins, 506 U.S. 390, 393-94, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993).
. Id. at 393, 113 S.Ct. 853.
. Id. at 404, 113 S.Ct. 853.
. Id. at 404-405, 113 S.Ct. 853. See House v. Bell, 547 U.S. 518, 554-55, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006).
. Herrera, 506 U.S. at 417-20, 113 S.Ct. 853.
. State ex rel. Holmes v. Honorable Court of Appeals for the Third District, 885 S.W.2d 389, 397 (Tex.Crim.App.1994),
. Id. (citing Herrera, 506 U.S. at 417, 113 S.Ct. 853). ’
. Id. at 398; Ex parte Franklin, 72 S.W.3d 671, 676 (Tex.Crim.App,2002).
. See Ex parte Elizondo, 947 S.W.2d 202, 206-207 (Tex.Crim.App.1996) ((‘Most justices of the Supreme Court, including Justice White, refused to hold that Herrera’s claim of actual innocence -was independently cognizable in a federal habeas corpus proceeding. Indeed, they specifically declined to decide that question because the facts plainly showed Herrera to be guilty of the crime under any standard. The Court simply reasoned that, even if it were unconstitutional to execute an innocent person, it would not be unconstitutional to execute Herrera since he was not innocent.”).
.Id. at 204.
. Id. at 209 (emphasis in original).
. Id.
. Id.
. Ex parte Rich, 194 S.W.3d 508, 511 (Tex.Crim.App.2006).
. Id. at 515.
. Id.
. State v. Wilson, 324 S.W.3d 595 (Tex.Crim.App.2010).
. Id. at 598.
. See id. at 598-99. But see Ex parte Sparks, 206 S.W.3d 680, 683 (Tex.Crim.App.2006).
. Ex parte Mable, 443 S.W.3d 129, 130-31 (Tex.Crim.App.2014).
. Id.
. Sawyer v. Whitley, 505 U.S. 333, 340, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992).
. Ex parte Franklin, 72 S.W.3d at 678.
. See, e.g., Ex parte Navarijo, 433 S.W.3d 558, 564- (Tex.Crim.App.2014) (newly discovered recantation from sexual assault victim); Ex parte Thompson, 153 S.W.3d 416, 420-21 (Tex. Crim.App.2005) (granting relief on actual innocence as a result of sexual assault victim’s recantation); Ex parte Tuley, 109 S.W.3d 388, 395-97 (Tex.Crim.App.2002) (victim recantation).
. See, e.g., Ex parte Holloway, 413 S.W.3d 95, 96-97 (Tex.Crim.App.2013) (DNA testing on weapon excluded applicant).
. See, e.g., Ex parte Jimenez, 364 S.W.3d 866, 874 (Tex.Crim.App.2012) (four experts’ testimony contesting State’s theory that defendant committed the conduct causing death); Ex parte Spencer, 337 S.W.3d 869, 878-80 (Tex.Crim.App.2011) (forensic optometrist’s testimony that witnesses could not have seen what they testified to at trial).
. 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995).
. Tex.Code Crim. Proc. arts. 11.07, § 4(a)(2), 11.071, § 5(a)(2) (stating that a court may not consider a subsequent writ application unless the application contains specific facts establishing that "by a preponderance of the evidence, but for a violation.of the United States Constitution no rational -juror could have found the applicant guilty beyond a reasonable doubt.”).
. Schlup, 513 U.S. at 326-29, 115 S.Ct. 851
. Id. at 314, 115 S.Ct. 851 (in-text citations omitted).
. Id. (citing McCleskey v. Zant, 499 U.S. 467, 494, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991)).
. Id.
. See Ex parte Blue, 230 S.W.3d 151, 158, 160 (Tex.Crim.App.2007).
. Ex parte Villegas, 415 S.W.3d 885, 887-88 (Tex.Crim.App.2013) (Price, J., concurring).
. See, e.g., House, 547 U.S. at 555, 126 S.Ct. 2064; In re Swearingen, 556 F.3d 344, 348 (5th Cir.2009); Fielder v. Varner, 379 F.3d 113, 122 (3d Cir.2004); Johnson v. Bett, 349 F.3d 1030, 1038 (7th Cir.2003); Rouse v. Lee, 339 F.3d 238, 255 (4th Cir.2003); David v. Hall, 318 F.3d 343, 347-48 (1st Cir.2003); Burton v. Dormire, 295 F.3d 839, 848 (8th Cir.2002); LaFevers v. Gibson, 238 F.3d 1263, 1265 n. 4 (10th Cir.2001).
. Bousley v. United States, 523 U.S. 614, 617-18, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998).
. Id. at 616, 118 S.Ct. 1604. See Bailey v. United States, 516 U.S. 137, 144, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995) (holding that "use” requires the Government to show "active employment of the firearm.”).
. Bousley, 523 U.S. at 623, 118 S.Ct. 1604.
. Id. at 623-24, 118 S.Ct. 1604.
. Alexander v. Johnson, 111 F.Supp.2d 780, 792 (S.D.Tex.2001).
. Id. at 791-92.
. Reyes-Requena v. United States, 243 F.3d 893, 904-905 (5th Cir.2001). See 18 U.S.C. § 2255(h) (2000) (permitting second or successive motions only if the motion contains "(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or (2) a new rule of constitutional law, .made retroactive to cases on. collateral review by. the Supreme Court, that was previously unavailable;”).
. Reyes-Requena, 243 F.3d at 904-906.
. 415 F.2d 664, 666 (5th Cir.1969).
. 417 U.S. 333,. 346, 94 .S.Ct. 2298, 41 L.Ed.2d 109 (1974). .
. Hiett, 415 F.2d at 665. -
. Id. at 673-.
. Davis, 417 U.S. at 341, 94 S.Ct. 2298 (1974).
. .Id. at 346-47, 94 S.Ct. 2298 ("If this contention is well taken, then Davis' conviction and ’punishment' are for an act that the law does not make criminal. There can be no room for doubt that such a circumstance ‘inherently results in a complete miscarriage of justice’ and ‘presents) exceptional circumstances’ that justify collateral relief under § 2255.").
. 439 S.W.3d 918 (Tex.Crim.App.2014). Accord Reyes v. State, 753 S.W.2d 382, 383 (Tex.Crim.App.1988) (holding that an unconstitutional statute is void from its inception).
. See generally Chance, 439 S.W.3d at 918.
1. Formerly, online solicitation of a minor under Texas Penal Code Section 33.021 described three ways that the offense could be committed — by communicating in a sexually explicit manner, by distributing sexually explicit material, or by soliciting a minor to meet — but only the third way remained viable after this Court held that Subsection (b) was unconstitutionally overbroad. See Tex. Penal Code § 33.021(b) (West 2010). The statute stated;
(b) A person who is 17 years of age or older commits an offense if, with the intent to arouse or gratify the sexual desire of any person, the person, over the Internet, by electronic mail or text ■ message or other electronic message service or system, or through a commercial online service, intentionally:
(1) communicates in a sexually explicit manner with a minor; or
(2) distributes sexually explicit material to a minor.
(c) A person commits an offense if the person, over the Internet, by electronic mail or text message or other electronic message service or system, or through a commercial online service, knowingly solicits a minor to meet another person, including the actor, with the intent that the minor will engage in sexual contact, sexual intercourse, or deviate sexual intercourse with the actor or another person.
Id. Since this Court's 2013 opinion in Lo, the Legislature has amended Section 33.021(b) to *797now state that a person commits the offense of online solicitation of a minor if he acts “with the intent to commit” one of the sexual offenses listed in Code of Criminal Procedure Article 62.001(5)(A), (B), or (K). See Tex. Penal Code § 33.021(b) (West 2016). Of course, because this Court’s decision in Lo did not affect the validity of Subsection (c), even after the Lo decision, a defendant may be convicted of online solicitation of a minor if he solicits a minor to meet him over an electronic or online sérvice. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284505/ | CONCURRING OPINION
ALCALA, J.,
filed a concurring opinion.
I concur in this Court’s judgment granting habeas corpus relief to Curtis Fournier and Christopher Dowden, - applicants, under an unconstitutional-statute theory and denying relief under an actual-innocence theory. See Ex parte Lo, 424 S.W.3d 10, 23-24 (Tex.Crim.App.2013) (holding that portion . of online-solicitation-of-a-minor statute was unconstitutionally overbroad, and reversing trial court’s denial of pretrial application for writ of habeas corpus on that basis).1 Although I agree with *797most of the analysis in the majority opinion, I reach my ultimate conclusions through a slightly different approach. I also write separately to explain why I agree with this Court’s decision to grant relief retroactively to these and other applicants on the basis of the unconstitutional-statute theory.
I. Actual Innocence
Habeas corpus relief from a criminal conviction based on an actual-innocence claim is the same as habeas corpus relief based on an unconstitutional-statute claim: In each case, after relief is granted, the applicant’s judgment and sentence are vacated, and he is returned to the convicting court to answer the charges against him. If they were simply interested in obtaining relief from their criminal convictions, these applicants would have already obtained that relief on the basis that the statute under which they were convicted has been declared unconstitutional. See, e.g., Ex parte Chance, 439 S.W.3d 918, 918 (Tex. Crim.App.2014) (per curiam). The reality is that these applicants want a declaration from this Court of their “actual innocence” so that they may pursue additional benefits that may arise from that declaration.
One of the primary benefits of a declaration of actual innocence by this Court is that the Texas Comptroller will pay large sums of money as compensation for the period of time that the person was wrongfully incarcerated. In re Allen, 366 S.W.3d 696, 701 (Tex.2012). Under a civil statute known as the Tim Cole Act, anyone who has been declared actually innocent receives substantial financial compensation for his wrongful incarceration. Tex. Civ. Peac. & Rem.Code § 103.001(a). The Texas Supreme Court has held that the “Legislature intended the legal term of art, ‘actual innocence,’ to include both Herrera and Schlup claims,” and it instructed the Comptroller to compensate anyone found actually innocent under either the Herrera or Schlup standards. Allen, 366 S.W.3d at 701, 707-09. Because of the interrelationship between the civil compensation for wrongful incarceration and the criminal declaration of actual innocence, it is necessary for this Court to apply the term “actual innocence” strictly and consistently as a term of art.
Applying the meaning of actual innocence as a strict term of art, I conclude that these applicants are not actually innocent based on the facts in their cases. They did commit acts that, at the time those acts were committed, were considered criminal under the laws of this State. There is no new evidence that changes the facts. Here, there is only a change in the law. And a change in the law alone is inadequate to meet the meaning of actual innocence as a strict term of art, which requires evidence that unquestionably establishes an applicant’s factual innocence through newly discovered evidence. See Ex parte Elizondo, 947 S.W.2d 202, 206-07 (Tex.Crim.App.1996).
I recognize that one might reasonably argue that this Court’s holding in Lo constitutes new evidence that unquestionably establishes an applicant’s innocence. See Chance, 439 S.W.3d at 919-21 (Cochran, J., concurring). After all, but for the existence of the unconstitutional statute, there are no facts that could support the appli*798cants’ convictions. In her concurring opinion in Ex parte Chance, Judge Cochran observed that “most federal courts, 'including the Fifth Circuit, hold that one who has been convicted under a penal statute that is later found unconstitutional is ‘actually innocent’ of any crime because ‘the core idea is that the petitioner may have been imprisoned for conduct that was not prohibited by law.’ ” Id. at 920 (quoting Reyes-Requena v. United States, 243 F.3d 893, 903 (5th Cir.2001)). She continued,
[Ajpplicant is requesting relief for a conviction of a non-crime. ■ He is actually innocent of any criminal wrongdoing because the penal statute under which he was convicted has already been declared nonexistent. He may take advantage of the “void ab initio” status today, yesterday, tomorrow, or even ten years from now. Anyone who has been convicted under the now void provisions of Section 32.021(b) is “innoeent” and may obtain an acquittal, whether it -is in the trial court, on direct appeal, or in a habeas proceeding.
Id. at 922. I joined Judge’s Cochran’s concurring opinion in Chance, and I continue to agree with its logical premise that a defendant, legally speaking, cannot be guilty of an offense when he has been convicted under a statute that has been declared void. He is indisputably entitled to relief from his invalid conviction. That type of “legal innocence,” however, is. distinct from the type of “fáctual innocence” that is required to make a showing of actual innocence under the standard set forth in Elizondo. See 947 S.W.2d at 209.2 Thus, I ultimately agree with this Court’s majority opinion that applicants’ claims do not meet the definition for “actual' innocence” as a strict term of art that narrowly permits consideration only of changes in the actual facts — the who, what, when, where, and how type of factual evidence that establishes an offense — rather than changes in the applicable law. For these reasons, I concur in this Court’s ultimate judgment that applicants’ claims for relief on the basis of actual innocence must be denied.
II. . Retroactivity of Lo
I agree with this Court’s majority opinion that Lo should be applied retroactively to defendants who have been convicted of online solicitation of a minor under Penal Code Section 33.021(b). See Lo, 424 S.W.3d at 23-24; Tex Penal Code § 33.021(b) (West 2010). Although it is well established that the announcement of a new rule applies to the litigants in the case in which it is announced and to similarly situated defendants with cases pending on direct appeal, a new rule usually does not apply retroactively on collateral review of cases that are considered final. See Linkletter v. Walker, 381 U.S. 618, 622, 627, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965); Taylor v. State, 10 S.W.3d 673, 677-80 (Tex.Crim.App.2000). I conclude, however, that, as explained below, applicants’ situation falls within the exception to the usual rule.
The Supreme Court articulated principles by which to make the retroactivity determination in Teague v. Lane, 489 U.S. *799288, 310, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). Although this Court is not bound to follow Teague in this instance, we generally adhere to its principles. See Danforth v. Minnesota, 552 U.S. 264, 280-81, 128 S.Ct. 1029, 169 L.Ed.2d 859 (2008) (explaining that Teague does not constrain “a state court’s authority to grant relief for violations of new rules of constitutional law when reviewing its own State’s convictions”); Ex parte De Los Reyes, 392 S.W.3d 675, 679 (Tex.Crim.App.2013) (“This Court follows Teague as a general matter of state habeas practiee[.]”). Generally, under Teague, a new rule should not be applied on collateral review because the purpose of the writ of habeas corpus is best served by applying “the constitutional standards that prevailed at the time the original proceedings took place.” Teague, 489 U.S. at 306, 109 S.Ct. 1060 (quoting Desist v. United States, 394 U.S. 244, 262-63, 89 S.Ct. 1048, 22 L.Ed.2d 248 (1969) (Harlan, J., dissenting)). This general rule, however, has two exceptions, the first substantive and the second procedural. First, a new rule should be applied retroactively if it places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe. Id. at 311, 109 S.Ct. 1060. Second, a new rule should be applied retroactively if it constitutes a watershed rule of criminal procedure, in the sense that it implicates the fundamental fairness of a trial. Id. at 311-13, 109 S.Ct. 1060. Fifteen years after Teague was- decided, the Supreme Court clarified that, with respect to the first Teague exception, “[n]ew substantive rules generally apply retroactively.” Schriro v. Summerlin, 542 U.S. 348, 351, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004) (emphasis in original). In Schriro v. Summerlin, the Supreme Court stated, “This includes decisions that narrow the scope of a criminal statute by interpreting its terms ... as well as constitutional determinations that place particular conduct or persons covered by the statute beyond the State’s power to punish.”- Id. at 351-52, 124 S.Ct. 2519 (citar tions omitted). The Summerlin Court observed that substantive rules should apply retroactively because they carry a significant risk that a defendant stands convicted of an'act that the law does-not-make criminal or faces a punishment that the law cannot impose on him. Id.
Applying the Teague analysis to the present situation, it is clear that the rule announced in Ex parte Lo should be applied retroactively. The new rule is that Texas Penal Code § 33.021(b) is unconstitutionally overbroad and cannot be enforced. Lo, 424 S.W.3d at 23-24. According to Summerlin, a substantive rule is presumed to be retroactively applicable, and “[t]his includes decisions that narrow the scope of a criminal statute by interpreting its terms.” Summerlin, 542 U.S. at 351, 124 S.Ct. 2519: When this Court held that Section 33.021(b) was unconstitutional, that decision necessarily narrowed the statute’s scope. Furthermore, the Summerlin Court warned that rules falling into the first Teague exception should be applied retroactively because there runs a “significant risk that a defendant will be convicted of an act that the law does not hold criminal or faces a punishment that the law cannot impose upon him.” , Id. at 352, 124 S.Ct. 2519. Here, the applicants are convicted of violating Section 33.021(b), which this Court has held encompasses acts that the law does not make criminal. There being no reason to deviate from the principle that; new substantive rules are applied retroactively, and given that there is ample reason-to adhere to it, it is appropriate to give applicants the benefit of the Lo rule on collateral review.
It has been suggested that we apply Lo on collateral attack selectively by requiring *800each habeas applicant to make an eviden-tiary showing that the statute operated unconstitutionally as applied to him. The reasoning is that the statute is overbroad rather than vague, so that a substantial portion of its applications are legitimate. Even if it has logical appeal, this suggestion .is unworkable. A statute that is unconstitutional is void ab initio, or void from its inception, and this principle applies regardless of whether the statute is void for vagueness or overbreadth. Smith v. State, 463 S.W.3d 890, 896 (Tex.Crim.App.2015). It is as if it had never been passed, and it has the legal force of a blank piece of paper. Reyes v. State, 753 S.W.2d 382, 383 (Tex.Crim.App.1988). I recognize that the defendants convicted under the now-invalidated portion of the online-solicitation-of-a-minor statute are likely not without fault. But,' given that the statute under which they were convicted has been declared a legal nullity, there exists no valid authority under which they may continue to be punished and, therefore, their convictions cannot lawfully be enforced against them.
For these reasons, I agree with this Court’s conclusion that the rule of Lo must be given retroactive effect to these applicants’ convictions.
III. Conclusion
I concur in this Court’s judgment denying habeas corpus relief on the basis of actual innocence and granting applicants relief on the basis of the unconstitutionality of the online-solicitation-of-a-minor statute.
. See, e.g., Poindexter v. Nash, 333 F.3d 372, 380 (2d Cir.2003) (noting that the concept of actual innocence is distinct from the concept of legal innocence, and stating that a petitioner whose “argument is a technical one” does not raise "a claim of ‘actual innocence’ as that term is used ... in habeas jurisprudence generally”); Rodriguez v. Johnson, 104 F.3d 694, 697 (5th Cir.1997) (“The term ‘actual innocence’ means factual, as opposed to legal, innocence — ‘legal’ innocence, of course, would arise whenever a constitutional violation by itself requires reversal, whereas ‘actual’ innocence ... means that the person did not commit the crime.”) (citations omitted).
. "This rule, however, is not without exception.” Lapasnick v. State, 784 S.W.2d 366, 368 (Tex.Crim.App.1990). “[C]ourts may make exceptions to the general rúle where, because of the nature of the statute and its previous application, unjust results would accrue to those who justifiably relied on it.” 16A Am.Jur., Const. Law, § 196 (2d ed.2009), at 64. See also 12B Tex.Jur.3d, Const. Law, § 57 (2012), at 98 (citing Lapasnick); 16'Cor-pus Juris Secundum; Const. LaW¡ § 265 (2015), at 334. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284506/ | DISSENTING OPINION
YEARY, J.,
filed a dissenting opinion in which KELLER, P.J., joined.
With respect to the issue upon which we filed and set these post-conviction applications for writ of habeas corpus, brought under the auspices of Article 11.07 of the Texas Code of Criminal Procedure, I agree with the majority opinion today. For the reasons stated in that opinion, Applicants are not entitled to relief on the basis of a claim of “actual innocence.”
I nevertheless dissent to the Court’s ultimate disposition of these cases. On the strength of Ex parte Chance, 439 S.W.3d 918 (Tex.Crim.App.2014), the Court grants Applicants relief based upon its earlier declaration, in Ex parte Lo, that the statute upon which their convictions were based was unconstitutional on its face, as overbroad. 424 S.W.3d 10 (Tex.Crim.App. 2013). But the Court’s per curiam opinion in Chance did not explain why the holding in Lo should apply to nullify convictions that were already final by the time Lo was decided. Because I would.hesitate to give Lo retroactive effect, I dissent.
The General Rule
Ordinarily, to establish that a legislative enactment is unconstitutional on its face, a litigant “must establish that no set of circumstances exists under which the [challenged statute] would be valid.” United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). With that concept as a starting point, Texas has long recognized “the general rule” that an unconstitutional statute “is void from its inception[.]” Reyes v. State, 753 S.W.2d 382, 383 (Tex.Crim.App.1988). When an appellate court has ruled a statute facially unconstitutional, the court has “not annul[ed] the statute, for it was already lifeless. It had been fatally smitten by the Constitution at its birth.” Id. (citing Ex parte Bockhom, 62 Tex.Crim. 651, 138 S.W. 706, 707 (Tex.Crim.App.1911), which in turn quoted Boales v. Ferguson, 55 Neb. 565, 76 N.W. 18, 19 (1898)). See also 12B Tex.Jur.3d, Const. Law, § 57 (2012), at 97-*80199; 16A Am.Jur., Const. Law, § 195 (2d ed.2009), at. 61-64. Stated another way:
An act that has been declared unconstitutional is, in legal contemplation, as inoperative as though it had never been passed or written, and it is regarded as invalid, or void, from the date of enactment (not. only from the date on which it was judicially declared unconstitutional) and at all times thereafter..
16 Corpus Juris Secundum, Const. Law § 265 (2015), at 333.1
Given this general rule — that an unconstitutional statute is inoperable “from its inception” — it may seem redundant or even pointless to engage in an analysis of retroactivity of the judicial decision that declared the statute to be unconstitutional. After all, it was not the judicial decision that nullified the statute; the statute was stillborn. Any analysis of retroactivity would surely result in a conclusion that the judicial opinion recognizing the facial unconstitutionality of a penal statute should be applied retroactively. Thus, any time a penal statute .is declared facially unconstitutional — at least in the usual sense that it is invalid under some constitutional principle in all of its applications — it would make sense to hold the opinion declaring the facial unconstitutionality of the penal provision to apply to any and every individual ever convicted under that provision, in the future and in the past.
Ex parte Chance
In Ex parte Chance, this Court apparently followed the general rule and gave retroactive application to our decision in Ex parte Lo. See 439 S.W.3d at 921 (Cochran, J., concurring) (“We follow this ‘void ab initio’ concept.”). But in that case, as in this one, this Court failed to entertain or examine the question of whether an appellate decision declaring a penal statute to -be unconstitutional under the First Amendment’s substantial overbreadth doctrine ought- to be given fully retroactive effect. To be fair, it is true that no litigant has as yet attempted to .raise that question before us.
The First Amendment Substantial Overbreadth Doctrine
•I believe it important to recognize that the ordinary rule — requiring that a litigant challenging a legislative enactment as unconstitutional on its face “must establish that no set of circumstances exists under which the [challenged statute] would be valid[,]’’ Salerno, 481 U.S. at 745,107 S.Ct. 2095 — does not apply to First Amendment overbreadth challenges. A penal provision does not have to be unconstitutional in all of its applications in order for an appellate court to declare it facially unconstitutional under the First Amendment’s overbreadth doctrine. Indeed, that criminal defendant’s own First Amendment rights may remain unscathed by the indictment and prosecution against him, and yet he may still have standing to obtain a ruling that the penal statute under which he is charged is facially unconstitutional “if it prohibits a substantial amount of protected speech judged in relation to [its], plainly legitimate sweep.” Ex. parte Lo, 424 S.W.3d at 18 (quoting Virginia v. Hicks, 539 U.S. 113, 118-19, 123 S.Ct. 2191, 156 L.Ed.2d 148 (2003)). As Texas Jurispru*802dence 3d describes this aspect of the so-called “substantial overbreadth doctrine”:
Ordinarily, a person may not challenge a statute on the ground that it might be applied unconstitutionally in circumstances other than those directly before the court. In the area of First Amendment' freedoms, however, an overly broad statute may serve to chill the exercise of protected rights, and an attack on such a statute will be allowed without requiring that the person making the attack demonstrate that his or her specific conduct is protected. Thus, as long as a case or controversy exists, a litigant whose own activities are unprotected may challenge a statute by showing that it substantially • abridges the First Amendment rights of other parties not before the court. In other words, even though a statute or ordinance may be constitutionally applied to the activities of a particular defendant, that defendant may challenge the statute on the basis of overbreadth if it is so drawn as to sweep within its ambit protected speech or expression of others persons not before the court. Litigants are permitted to challenge a statute on First Amendment grounds not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the- statute’s existence may cause others not before the court to refrain from constitutionally protected speech or expression. -
12B Tex.Jiir.3rd, Const. Law, § ‘40 (2012), at 69-70. See also 16A Am.Jur., Const. Law, §§ 428-30 (2d ed.2009), at 369-377; 16B Corpus Juris Secundum, Const. Law, § 962 (2016), at 90-93.
Is a Substantially Overbroad Statute “Void Ab Initio”?
But is an. overbroad statute — facially unconstitutional only in the vicarious sense that it tends to “chill” the First Amendment rights of - others not involved in the litigation — “void ab initio” in the same way that a statute that is unconstitutional in all of its applications may be said to be “void ab initio”? As already explained, the burden of proof in a First Amendment over-breath action is less than in an ordinary facial challenge to the constitutionality of a statute. When that burden has been met, a judicial finding of facial unconstitutionality for First Amendment overbreadth also constitutes less than a" finding that there is no conceivable application of the law consistent with the requirements of the Constitution. Under these circumstances, it is beyond dispute that a particular defendant who was convicted for a violation of the statute, and whose conviction became final before the penal statute was declared unconstitutional merely for overbreadth, may very well have committed conduct that fell within the “plainly legitimate sweep” of the overbroad statute. The Court has nevertheless determined, under our existing precedent, that pre-existing, final, and presumptively valid convictions under the statute must also be automatically and uncritically nullified. But I am not persuaded that we must go that far. In fact, I believe that to do so constitutes an unnecessary and unacceptable windfall to those defendants.
To a certain extent, of course, the First Amendment overbreadth doctrine inevitably creates windfalls. Once an appellate court'has declared a penal provision unconstitutionally overbroad, no individual may be prosecuted under that provision from that point on, even if the individual’s conduct falls well within the statute’s plainly legitimate sweep. In fact, individuals will be free to commit that constitutionally actionable conduct with impunity until such time as - the Legislature may proscribe it once again in a constitutionally *803tolerable statute.2 This prospective windfall is justified by the fact that, before it may be declared facially unconstitutional, the penal statute must be said to reach protected conduct at a rate far exceeding its “plainly legitimate sweep.” The admittedly “strong medicine” of striking down a statute that has some constitutional applications, Ex parte Thompson, 442 S.W.3d 325, 349 (Tex.Crim.App.2014), is thus necessary to alleviate its substantial “chilling” effect on constitutionally protected conduct. The question is, at what point is the medicine too strong?
A defendant finally convicted pursuant to a statute that is found only to be constitutionally overbroad is unlike a defendant who was convicted pursuant to a statute that has no conceivable constitutional applications. The former defendant may well have committed a constitutionally actionable offense under a statute that did not even remotely impinge upon his First Amendment rights. Consequently, retroactively declaring his conviction void ab initio would seem arguably to be neither necessary nor just. Declaring the statute invalid prospectively and enjoining the future enforcement of. the law, it seems to me, might be more than sufficient to satisfy the interests and goals of the over-breadth doctrine — to ensure that the continued enforcement of the overbroad law will not chill the constitutionally protected expression of others.
There seems to be little reason to doubt that the prospective application of a judicial decision declaring a penal provision to be overbroad is strong enough.3 The statute has been struck down and may not be used in the future to prosecute even those offenders whose conduct was not constitutionally protected. This should suffice to enable the courts to alert the Legislature of the need, to fine-tune the statute without seeming unduly. critical of our co-equal branch — or, worse, punitive.
Whatever incremental value retroactive application may have to alleviate the chilling effect of the overbroad statute does not seem to me to be worth the societal cost of exonerating any number of offenders whose conduct was legitimately — if inart-fully — proscribed,' The windfall that inevitably flows from judicially declaring an overbroad penal provision to be facially unconstitutional need not extend so far as to apply retroactively to grant habeas corpus relief to applicants who have suffered no First Amendment infraction themselves.4
*804This is an argument that neither the Court nor Judge Cochran in her concurring opinion addressed before granting relief in Ex parte Chance. The Court seems instead to have uncritically applied the general rule that a facially unconstitutional statute is “void ab initio” without pausing to ask whether the general rule ought to apply in the context of the First Amendment substantial overbreadth doctrine. Indeed, without missing a step, we persist in doing so in these cases as well. I believe the Court should take the opportunity now to order briefing on the issue. At least then, we could give the matter its due consideration. Because we do not, I cannot join the Court’s opinion.
Conclusion
Once a statute has been judicially recognized as unconstitutionally overbroad, that *805new rule should be given prospective application. I would not be averse, in cases where it is appropriate, to retroactively grant post-conviction habeas corpus .relief as well — but we should consider whether we should limit post-conviction relief to those applicants who can establish that their conduct did not fall within the plainly legitimate sweep of the overbroad statute. I would order briefing on this issue. Applicants today have made no showing that the statute that we struck down in Lo was unconstitutional as it applied to their conduct. Without such a showing, I am reluctant to extend to them the benefit of a retroactive application of Ex parte Lo. Because the Court persists in doing so — in these, and many other cases — without ever considering or addressing, much less explaining, why it regards retroactive application to be necessary, and because the Court has not requested briefing on this issue from the parties, I respectfully dissent.
. This, of course, assumes that the same conduct is not also subject to prosecution pursuant to some other valid statute.
. According to the United States Supreme Court, a defendant whose conviction is already final at the toe of the announcement of a new rule may not ordinarily avail himself of the newly announced rule. See Teague v. Lane, 489 U.S. 288, 310, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). This rule might also be appropriately applied in cases such as these, when this Court decides that a law is over-broad in violation of the First Amendment. Of course, even if we were to apply the new rule doctrine, there may also be some number of other cases, also pending at different stages of litigation at the time of the Court’s determination, that might need to be given the benefit of the new rule as well. See e.g., Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987) (explaining, "a new rule for the conduct , of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a ‘clear, break’ with the past.”). However, the full extent to which the ■overbreadth decision would need to be extended .to other cases in varying stages of litigation and not yet final does not need to be decided today. '■ ■
.I am aware of ‘the various opinions in Massachusetts v, Oakes, 491 U.S. 576, 109 S.Ct. 2633, 105 L.Ed.2d 493 (1989). In that case, the United States Supreme Court granted cer-*804tiorari solely to review whether a particular state statute was substantially overbroad.. But the Court was ultimately unable to reach agreement on that issue. Instead, a plurality of the Court simply announced that it would not address the question after all because the Massachusetts Legislature had subsequently amended the statute in such a way as to cure any potential overbreadth. The plurality observed:
Overbreadth is a judicially created doctrine designed to prevent the chilling of protected expression. An overbroad statute is not void ab initio, but rather voidable, subject to invalidation notwithstanding the defendant’s unprotected conduct out of solicitude to the First Amendment rights of parties not before the court. Because the special concern that animates the overbreadth doctrine is no longer present after the amendment or repeal of the challenged statute, we need-not extend the benefits of the doctrine to a defendant whose conduct is not protected.
Id. at 584. Thus, the plurality in Oakes would take the occasion of the amendment of an overbroad statute as a justification for failing ever to pass on the' question of its facial constitutionality.
Five justices disagreed with this view, however, joining that part of Justice Scalia’s opinion that dissented to the plurality’s failure to reach the merits of the overbreadth question. In fact, that was the only facet of the case that garnered a majority. Because Justice Scalia and one other justice believed that the pre-amendment statute was not unconstitutionally overbroad, they provided the necessary votes to remand the case for determination of Oakes’s as-applied challenge to the pre-amendment statute.
Justice Scalia’s rejection of the plurality’s view that an overbreadth analysis should not be undertaken at all once a statute has been amended does not apply with nearly the same force to the question presented in this case: whether a decision declaring a statute to be overbroad should be applied retroactively. Justice Scalia argues:
If the promulgation of overbroad laws was cost free, as the plurality's' new doctrine would make it — that is, if no- conviction of constitutionally prescribable conduct would be lost, so long as the offending statute was narrowed before the final appeal — then legislatures would have significantly reduced incentive to stay within constitutional bounds in the first place. When one takes account of those overbroad statutes that are never challenged, and of the time that elapses before the ones that are challenged are amended to come within constitutional bounds, a substantial amount of legitimate speech would be "chilled” as a consequence of the rule the plurality would adopt.
The same criticism cannot fairly be leveled ■ against the argument that retroactive application of the overbreadth doctrine is unnecessary. In Oakes, the plurality regarded the overbreadth question as moot and refused to reach it at all. By contrast, this Court has in fact declared the statute at issue in Lo to be facially unconstitutional on the basis that it is substantially overbroad. Such a statute-can have no legitimate prospective application, and the judicial declaration that it is invalid may well be retroactively applied to any case still pending on direct appeal. It can no longer operate to chill legitimate speech, and its removal from the books for any future purpose should serve as incentive enough for the Legislature to take better care not to draft statutes that are insufficiently solicitous of First Amendment rights. The incremental value of also applying it retroactively to unravel final convictions for constitutionally un protected conduct seems to me not worth the candle. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284507/ | OPINION
YVONNE T. RODRIGUEZ, Justice
This is a pro se appeal by Bea Huml of the trial court’s summary judgments dismissing her lawsuit alleging an “illegal foreclosure” and breach of fiduciary duty against the substitute trustee, Beverley Mitrisin, and opposing counsel in Huml’s eviction proceeding, Jack O’Boyle. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Huml filed suit "against Beverly Mitrisin and Jack O’Boyle seeking “judicial declaratory determination” that the “documents created and used” by Mitrisin, a Substitute Trustee, were “invalid and illegal” and “the foreclosures that resulted thereafter should be invalidated.” Huml also alleged a breach of fiduciary duty owed to Huml by Mitrisin and O’Boyle. Huml’s prayer included a request for a “decla[ra]tory judgment that the foreclosure documents are invalid and fraudulent (robosigned)” *823and Mitrisin “shall be liable for her actions” in “breach of her-fiduciary duty”
Mitrisin and O’Boyle answered and filed respective motions for summary judgment. Mitrisin filed a traditional summary judgment while O’Boyle filed a traditional and a no-evidence summary judgment. Mitri-sin’s summary judgment motion was based on two grounds: (1) Mitrisin owed no fiduciary duty to Huml pursuant to Section 51.0074 of the Texas Property Code; and (2) Mitrisin did not “robosign” any foreclosure documents and Hüml has failed to produce any document “robosigned” by Mitrisin in connection with the foreclosure on Huml’s residence.
O’Boyle contended in his summary judgment motions that he was retained by his client Federal Home Loan Mortgage Corp. (“Freddie Mac”) to file eviction suits against Huml after the foreclosures were completed. According to O’Boyle, Freddie Mac became the record owner of the foreclosed properties after the foreclosure sale. O’Boyle averred he had no contact or communication with Huml other than as opposing attorney for his client Freddie Mac. O’Boyle moved for summary judgment on the basis he owed no fiduciary duty to Huml as an opposing attorney in a forcible detainer and eviction action while duly representing his client Freddie Mac.
Huml’s response to Appellee’s summary judgment failed to address the issue of any fiduciary duty owed by Mitrisin and O’Boyle to her. Huml’s supporting affidavit outlined her previous employment with El Paso County and afforded her a “good working knowledge of El Paso County Government functions.” Huml also stated she had conveyed her observations to the Federal Bureau of Investigations Financial Crimes Unit in El Paso, and had contacted the State Bar of Texas regarding “omissions and/or misrepresentations by MERS and its counsel.” The affidavit is dated April 30, 2012, nearly six months prior to the filing of this lawsuit 'on October 22, 2012. Huml’s affidavit’s heading recites it was filed in the Western District of Texas in cause number • 3:12-CV-00146-DB by the U.S. District Clerk on April 30, 2012. The lawsuit’s parties are Bea Huml,- et al & “John Doe(s)” and “Jane Doe(s)” vs. Federal National' Mortgage Association; Merscorp, Inc.; Mortgage Electronic Registration Systems, Inc.; BAC Home Loan Servicing, LP; The Bank of New York Mellon f/k/a The Bank of New York CWABS, Inc., (Asset-Backed Securities, Series 2007-9). Huml’s response also includes copies of the substitute trustee deeds and an assignment of deed of trust for her properties.
The trial court granted Mitrisin’s and O’Boyle’s summary judgment motions. O’Boyle’s order recites “Summary Judgment should be, and hereby is, in all things, GRANTED.” Mitrisin’s order states “is Granted in its entirety” -and “is a FINAL JUDGMENT as to all claims as to all parties in this" lawsuit.”-■ '
Discussion
On appeal, similar to her response to the summary judgment motions, Huml fails to raise any issue for review of the grant of summary’judgment or assign any error to the trial court’s rendition of the grant of summary judgement. Huml requested to “remand [the case] back to state court for further proceedings.”
Under the Texas Rules of Appellate Procedure, a brief submitted by an appellant must contain “a clear and concise argument for the contentions made, with appropriate' citations to authorities and to the record.” Tex.R.App. P. 38.1(i). We note that pro se litigants are held to the same standards as licensed attorneys and must comply with all applicable rules of *824procedure. Sweed v. City of El Paso, 195 S.W.3d 784, 786 (Tex.App.-El Paso 2006, no pet.). An appellate issue unsupported by argument or citation to the record or by appropriate legal authority presents nothing for our review. Blankinship v. Brown, 399 S.W.3d 303, 307 (Tex.App.Dallas 2013, pet. denied). “Failure to cite legal authority or to provide substantive analysis of the legal issues presented results in waiver of the complaint.” In re Estate of Taylor, 305 S.W.3d 829, 836 (Tex.App.-Texarkana 2010, no pet.). “An appellate court has no duty — or even right-to perform an independent review of the record and applicable law to determine whether there was error.” Valadez v. Avitia, 238 S.W.3d 843, 845 (Tex.App.-El Paso 2007, no pet.). “Were we to do so, even on behalf of a pro se appellant, we would be abandoning our role as neutral adjudicators and become an advocate for that party.” Id.
Here, Huml has wholly failed to complain of any legal issue arising out of the grant of summary judgment for Mitri-sin and O’Boyle. In her brief, she addresses a myriad of complaints with MERS citing to briefs, transcripts, and motions not before this Court with nary a word regarding the Appellees. Huml states “defendant Bea Huml framed the issue presented as follows:”
Plantiff [sic] case ultimately posits the unsubstantiated theory: that Mortgage Electronic Registration Systems, Inc. (“MERS”) can Serve as a deed of trust beneficiary in Texas vis-s-vis a foreclosure action.
Without alleging any error in the proceedings in the trial court below or identifying an issue for review, we are compelled to find that Huml has waived her issues on appeal pursuant to Texas Rules of Appellate Procedure 38.1. See Fredonia State Bank v. General Am. Life Ins. Co., 881 S.W.2d 279, 284 (Tex.1994). We affirm the trial court’s judgment.
Larsen, Senior Judge (Sitting by Assignment) | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284511/ | OPINION
YVONNE T. RODRIGUEZ, Justice
Vicente Munoz' was charged by indictment of Felony driving while intoxicated. The State of Texas appeals the trial court’s order granting Vicente Munoz’s motion to suppress his blood test result that was obtained as a result of his arrest for DWI. The trial court’s findings of fact and conclusions of law reflect the sole basis for suppression of the blood test result was the State’s failure to show exigent circumstances to support the .warrantless, non-consensual blood draw. Finding the State failed to establish-a valid exception to the *10warrant requirement,- we affirm the trial court’s suppression order.
FACTUAL SUMMARY
On September 5, 2009, about 8:17 p.m., El Paso Police Officer Jordan was on patrol when she was dispatched to a call involving a suspicious vehicle. The reporter had observed a red pickup truck sitting in the Street, with the engine off and the headlights on. Officer Jordan arrived at approximately 8:20 p.m. and spoke with the reporter. Officer Jordan approached the truck on- the driver’s side. The officer discovered Munoz asleep in the front seat with a can of beer between his legs, the keys in the ignition, the engine off, and the headlights on. Officer Jordan woke Munoz up and smelled a strong odor of an alcoholic beverage. When Munoz exited the truck, the officer observed him to have an unsteady balance, red blood-shot eyes, and exhibit slurred speech. Munoz refused to submit to a breath test. Munoz was transported to the station at 9:13 p.m. The station is about five to six blocks away and it takes a couple of minutes from Munoz’s vehicle to arrive there.
On the way to the station, Officer Jordan passed the Municipal Court building which houses a magistrate on duty from 9:00 p.m. to 8:00 a.m. every night. Officer Jordan stated that to get a warrant, she would have to go before the magistrate, “get it signed and get the warrant.” She acknowledged she did not attempt to get a warrant nor was she prevented from getting one. Officer Jordan testified that she was aware that she could have obtained a warrant had she wanted. Officer Jordan explained to the court that she did not get a warrant because at that time the law allowed a mandatory blood draw if an individual had two prior convictions. She stated the only reason she failed to obtain the warrant was because she relied on the mandatory blood draw statute.
After Munoz was placed in custody, it was determined he had seven prior convictions for DWI. Based on Munoz’s prior convictions, he was immediately taken to the hospital for a mandatory blood draw.
PROCEDURAL BACKGROUND
Oii December 14, 2012, the trial court, after a hearing on a motion to suppress statements, evidence, and the blood test result, orally denied the motion. On May 2, 2013, Munoz filed a second motion to suppress the. blood test result relying on Missouri v. McNeely, -U.S.-, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013). On May 6, 2013, the trial court heard argument of counsel regarding Munoz’s second motion to suppress and denied it again. On the day of Munoz’s jury trial, May 14, 2013, the trial court heard additional testimony from Officer Jordan and suppressed the blood test result.1 Munoz argued that no exigent circumstances were shown and a warrantless blood draw could not be permitted under McNeely. The State argued McNeely did not apply in states which' had legislatively-mandated blood draws for repeat offenders such as Texas. Next, the State contended the blood test result should not be excluded because the officers were acting in good-faith reliance upon the law.
The trial court entered thirty-six findings of fact and six conclusions of law. The relevant Findings of Fact are as follows:
*115. At 8:22 p.m., Detective Jordan arrived at the scene.2
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18. Defendant declined to submit to 'Standardized Field Sobriety Tests (SFSTs) and the breath test.' ’ •
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26. Approximately 10 minutes elapsed from the time Detective arrived at the scene to the timé Detective arrested the Defendant.
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28. At .9:15 p.m., Defendant arrived at the station. .
29. At the station, EPPD Officer Art Senclair discovered that the Defendant had at least two prior Driving While Intoxicated convictions.
30. EPPD did not acquire a warrant to draw blood from the Defendant.
31. On September 5, 2009, Detective Jordan could have acquired a warrant for a blood draw, if she wanted to get one on that date.
32. On September 5, 2009, nothing prevented Detective Jordan from acquiring a warrant for a blood draw.
33. Theré is a magistrate on duty every night from 9:00 p.m. to 6:00 a.m. at the Municipal Court building which was closer to the location where Defendant was arrested than the Police station where Defendant was transported. '
34. At 10:25 p.m., Officer Art- Senclair followed Texas Transportation Code section 724.012(b)(3)(B), 'and transported Defendant to Las Palmas hospital for a blood draw.
35. Registered nurse Michael Wind-ham drew Defendant’s blood at Las Pal-mas hospital.
36. The lab result revealed that Defendant’s blood alcohol level was 0.23.
The relevant Conclusions of Law are as follows:
1. Missouri v. McNeely, 133 S.Ct. 1552 requires exigent circumstances in order to conduct a warrantless blood draw.
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' 3. The State did not present any evidence that constituted exigent circum- ' stances.
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5. Texas Transportation Code, section 724.012(b)(3)(B) allows for a warrantless blood draw on an individual with two or more previous DWI convictions.
6. . Pursuant to McNeely, this governmental interest does not justify a departure from obtaining a warrant, unless there are exigent circumstances present.
DISCUSSION
The State in a single point of error raises two sub-issues. First, the State contends that the trial court erred by relying on Missouri v. McNeely in suppressing the warrantless blood test result obtained pursuant to the implied-consent and mandatory-blood-draw provisions in the Texas Transportation Code § 724.012(b).3 *12See Tex. Tbansp. , Code Ann. § 724.012(b)(West 2011). According to the State, McNeely decided the narrow issue of whether the dissipation of alcohol constituted a per se exigency that allowed for a warrantless blood draw in DWI cases. Therefore, the State concludes McNeely is inapplicable here given that the State relied on the Texas Transportation Code for implied consent of. a warrantless blood-draw in DWI cases involving an accident or prior convictions. Tex. Tbansp. Code Ann. §§ 724.011, 724.012(b).
Second, even if McNeely applies, the State posits, the officers acted in objective reasonable reliance upon then-binding precedent and Section 724.012(b), so therefore, the blood test result are not subject to the Fourth Amendment’s exclusionary rule. The State further argues Munoz’s 2009 blood test result was not obtained in violation of the law, because the blood draw occurred prior to the issuance of McNeely in April 2013. The State asserts that in 2009, the officers acted in “objective reasonable reliance” under existing precedent and Munoz’s warrantless blood draw was proper and therefore, not subject to exclusion under the Fourth Amendment.
Munoz responds that under McNeely, a warrantless blood draw is reasonable only if it falls within a recognized exception to the Fourth Amendment’s warrant requirement. Munoz contends, under these facts, the State has failed to secure a warrant or prove any permissible constitutional exception applies.
STANDARD OF REVIEW
When reviewing a motion to suppress, we apply a bifurcated standard of review. See Crain v. State, 315 S.W.3d 43, 48 (Tex.Crim.App.2010); State v. Terrazas, 406 S.W.3d 689, 692 (Tex.App.-El Paso 2013, no pet.). We afford almost total deference to the trial court’s findings of historical fact that are supported by the record, and to mixed questions of law and fact that turn on an assessment of a witnesses’ credibility or demeanor. Valtierra v. State, 310 S.W.3d 442, 447 (Tex.Crim.App.2010); Amador v. State, 221 S.W.3d 666, 673 (Tex.Crim.App.2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). The trial court’s determination of legal questions and its application of the law to facts that do not turn upon a determination of witness credibility and demeanor are reviewed de novo. See Valtierra, 310 S.W.3d at 447; Amador, 221 S.W.3d at 673; Kothe v. State, 152 S.W.3d 54, 62-63 (Tex.Crim.App.2004); Guzman, 955 S.W.2d at 89.
When, as here, the trial judge makes express findings of fact, we must first determine whether the evidence, when viewed in the light most favorable to the trial court’s ruling, supports those findings. Valtierra, 310 S.W.3d at 447; State v. Kelly, 204 S.W.3d 808, 818 (Tex.Crim.App.2006). We review a trial court’s legal ruling de novo. State v. Iduarte, 268 S.W.3d 544, 548-49 (Tex.Crim.App.2008). Furthermore, we must uphold the trial court’s ruling if it is. supported by the record and correct under any theory of law applicable to the case. State v. White, 306 S.W.3d 753, 757 n. 10 (Tex.Crim.App.2010). “This principal holds .true even when, the trial judge gives the wrong reason for his decision, and'is especially true with regard to admission of evidence.” State v. Esparza, 353 S.W.3d 276, 282 (Tex.App.-El Paso 2011, pet. granted), aff'd State v. Esparza, 413 S.W.3d 81 (Tex.Crim.App.2013), quoting Romero v. State, 800 S.W.2d 539, 543 *13(Tex.Crim.App.1990). “The evident purpose of this rule is to ensure that a trial court ruling will be upheld if the appellate court has assurance that the ruling was just and lawful.” Esparza, 353 S.W.3d. at 282, quoting White, 306 S.W.3d at 757 n. 10.
SUPPRESSION OF BLOOD TEST RESULT
In Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d. 908 (1966), the United States Supreme Court held that an involuntary blood draw is permissible under a Fourth Amendment analysis. Initially, the Court noted that the taking of a blood specimen from a person is a search and seizure under the Fourth Amendment. Id, at 767, 86 S.Ct. at 1834. The Court outlined “special facts” under which an involuntary blood draw is reasonable. Id. at 770-771, 86 S.Ct. at 1835-36. The Court’s analysis concluded that, in light of the potential for the destruction of alcohol evidence in a person’s body, and involuntary blood draw is permitted under the Fourth Amendment where there is a delay by law enforcement in investigating an accident; and there is no time to apply for a warrant and locate a magistrate. Id.
In Missouri v. McNeely, the Court expounded further, explicitly stating that a warrantless blood' draw must fall under one of the recognized exceptions to the Fourth Amendment. 133 S.Ct. at 1558. The Court held that the dissipation of alcohol from the body per se is insufficient to créate an exigent circumstance to justify a warrantless seizure of a defendant’s blood.' McNeely, 133 S.Ct. at 1560-61. The‘Court instructed us that whether the exigent circumstances exception is satisfied must be viewed case by case in light of the totality of the circumstances. Id.
The Texas Court of Criminal Appeals finally addressed the tension between our statutory implied consent, Texas Transportation Code section 724.012(b)(3)(B) and McNeely in State v. Villarreal.4 State v. Villarreal, No. PD-0306-14, 475 S.W.3d 784, 787-88, 2014 WL 6734178, at *1 (Tex.Crim.App. Nov. 26, 2014)(reh’g granted), 'Iri'Villarreal, the facts are almost identical to the case at hand.
In 2012, Villarreal was stopped for a traffic violation and observed to be swaying back and forth, had red, watery eyes, and slurred speech, in addition to a strong odor of alcohol. Id. Villarreal was placed under arrest for DWI. Id. After the discovery of Villarreal’s several previous convictions of DWI, the officer took Villarreal to a hospital for a blood draw. Id., at-788-89, 2014 WL 6734178, at *2. Villarreal’s blood test result indicated “a blood-alcohol concentration of .16 grams of alcohol, per hundred milliliters of blood.” Id. Due to Villarreal’s prior convictions, he was subsequently indicted for a felony DWI. Id.
At the evidentiary hearing on Villarreal’s motion to suppress, the State’s sole witness testified he “could have” obtained a warrant but did not and relied on “the mandatory-blooddraw provision’ in the Code.” Id.-, Tex. TRAnsp. Code" Ann. § 724.012(b). Further, the officer stated his decision to conduct' the blood draw was based only on the statutory authority and not on any emergency or exigent circum*14stances. Villarreal, 475 S.W.3d at 788-89, 2014 WL 6734178, at *2. The parties stipulated Villarreal’s blood draw was taken without his consent or a warrant. Id. Villarreal argued McNeely applied and thus the blood draw was unconstitutional. Id. The State contended that McNeely did not apply to mandatory blood draws because of our implied consent statutes. Id.
The Court, after extensive analysis, held “that a nonconsensual search of a DWI suspect’s blood conducted pursuant to the mandatory-blood-draw and implied-eon-sent provisions in the Transportation Code, when undertaken in the absence of a warrant or any applicable exception to the warrant requirement, violates the Fourth Amendment.” Id., at 814-15, 2014 WL 6734178, at *21. Our sister courts in applying Villarreal have joined the Texas Court of Criminal Appeals in soundly rejecting the State’s argument that McNeely has limited applicability when construed in conjunction with the Texas Transportation Code § 724.012(b)(3)(B). See State v. Tercero, 467 S.W.3d 1 (Tex.App.-Houston [1st Dist] 2015, pet. filed); Chidyausiku v. State, 457 S.W.3d 627 (Tex.App.-Fort Worth 2015, pet. filed); State v. Garcia, 457 S.W.3d 546 (Tex.App.-San Antonio 2015, pet. filed); Lloyd v. State, 453 S.W.3d 544 (Tex.App.-Dallas 2014, pet. ref'd); Cole v. State, 454 S.W.3d 89 (Tex.App.-Texarkana 2014, pet. granted); Clement v. State, 461 S.W.3d 274 (Tex.App.-Eastland 2015, pet. filed); State v. Martinez, No. 13-14-00117-CR, 2015 WL 1957087 (Tex.App.-Corpus Christi April 30, 2015, no pet. h.)(mem. op., not designated for publication); Evans v. State, No. 14-13-00642-CR, 2015 WL 545702 (Tex. App.-Houston [14th Dist.] Feb. 10, 2015, pet. filed) (mem. op., not designated for publication).
Likewise, our previous approach has followed Villarreal. See Burcie v. State, No. 08-13-00212-CR, 2015 WL 2342876 (Tex.App.-El Paso May 14, 2015, pet. filed)(not designated for publication). In Burcie, like the case before us, the facts were not in 'dispute and the State had failed to raise any recognizable exception to the Fourth' Amendment. The record' here shows the officer relied on the implied consent under the Texas Transportation Code and could have obtained a warrant but chose not to. Like Villarreal and Burcie, the State relies on the implied consent and mandatory-blood-draw provisions of the Texas Transportation Code to support the admission of the blood test result. The trial court concluded as a matter of law the State failed to present “any evidence that constituted exigent circumstances.” The record supports that conclusion. Given that the Texas Transportation Code’s mandatory-blood-draw is not a valid exception to the Fourth Amendment, the trial court did not err in suppressing the blood test result;
We find under Missouri v. McNeely and State v. Villarreal the State’s first sub-issue is overruled.
GOOD-FAITH RELIANCE
The State, in their second sub-issue, urges us to find the trial court erred because in 2009 the blood draw was not obtained in violation of federal Fourth Amendment exclusionary rule nor Texas’ exclusionary rule found in Article 38.23 of the Texas Code of Criminal Procedure. Tex. Code CRiM. Pboc. Ann. art. 38.23 (West 2005). That statute provides evidence may not be used or admitted in the criminal trial against the defendant if the evidence is obtained by “an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America[.]” Tex, Code Ceim. PROC. Ann. art. 38.23(a). Moreover, the State contends, in 2009, at the time of *15Munoz’s blood draw, the officers acted in objective reasonable reliance of the existing law.
First, the State argues that Munoz’s blood test was not obtained in contravention of then existing federal precedent and therefore, even if McNeely applies, the blood test should not be excluded. The State cites Davis v. United States, for the proposition that the “exclusionary rule'is limited to situations in which deterrence is ‘thought most efficaciously served.’ ” Davis v. United States, 564 U.S. 229, 131 S.Ct. 2419, 2426, 180 L.Ed.2d 285 (2011), citing U.S. v. Calandra, 414 U.S. 388, 348, 94 S.Ct. 613, 620, 38 L.Ed.2d 561 (1974). As the State correctly points out, Davis made clear a constitutional violation does not always mandate the applicability of exclusionary rule. The Davis court explained the exclusionary rule never applies to the suppression of evidence when it was obtained “as a result of nonculpable, innocent police conduct.” 131 S.Ct. at 2429. The State also pointed to the holdings in Krull, Leon, and Peltier to illustrate that the United States Supreme Court has prohibited the application of the Fourth Amendment’s exclusionary rule when an officer has in good-faith, objectively and reasonably relied on a then constitutional statute or valid search warrant. Illinois v. Krull, 480 U.S. 340, 347, 350, 107 S.Ct. 1160, 1165-66, 94 L.Ed.2d 364 (1987); United States v. Leon, 468 U.S. 897, 922, 104 S.Ct. 3405, 3420, 82 L.Ed.2d 677 (1984); United States v. Peltier, 422 U.S. 531, 537, 95 S.Ct. 2313, 2317-18, 45 L.Ed.2d 374 (1975).
Relying on Swink v. State and Elias v. State, the State contends that McNeely should not be applied retroactively. Swink v. State, 617 S.W.2d 203, 209-210 (Tex.Crim.App.1981)(owen%Zed on other grounds by Griffin v. State, 765 S.W.2d 422 (Tex.Crim.App.1989)); State v. Elias, No. 08-08-00085-CR, 2012 WL 4392245, at *7 (Tex.App.-El Paso Sept. 26, 2012, pet. ref'd)(not designated for publication). In Swink, the Texas Court of Criminal Appeals held “that the warrantless search and seizure of the premises by the officers was permissible at the time of their actions and that the holding of Mincey will not be applied retroactively to this case.” Swink, 617 S.W.2d at 210. The Court explained the “search was, conducted some six months before the decision in Mincey while the trial was held six months after the decision.... Thus, at the time officers conducted the warrantless search of the murder scene, their actions did not run afoul of the holding in Mincey.” Id. at 209. See Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978).
In Elias, relying on Davis v. United States, 564 ,U.S. 229, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011), we held that “the search of Elias’s van was unconstitutional under Gant, [however] the police conducted the search in 2007 in' good faith reliance on appellate precedent authorizing the search incident to arrest. Accordingly, we conclude that .the exclusionary rule does not apply in this case.” Elias, 2012 WL 4392245, at *7. See Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009). Thus, Swink refused to apply Mincey retroactively. Swink, 617 S.W.2d at 210. Likewise, Elias did not apply Gant retroactively, relying on the federal doctrine of the officers’ good faith reliance under Davis. Elias, 2012 WL 4392245, at *7. Neither case alludes to or discusses the Texas exclusionary .-rule under Article 38.23 and its application to an officer’s good faith reliance on then-constitutional statutes and former binding precedent. Tex. Code CRim. PROc. Ann. art. 38.23. We note that Swink and Elias are specifically limited to the application of Mincey and Gant. Our research has failed to uncover any Texas case-, under these facts, declin*16ing to retroactively apply McNeely and the State has not cited to any.
' The United States Supreme Court in Griffith explained that “failure to apply a newly declared constitutional rule to criminal cases pending on direct review violates basic norms of constitutional adjudication.” Griffith v. Kentucky, 479 U.S. 314, 322, 107 S.Ct. 708, 713, 93 L.Ed.2d 649 (1987). The Griffith Court held* that a newly announced constitutional rule for conducting criminal prosecutions must b.e applied retroactively to all cases, state or federal, pending on direct review or not yet final when the rule was announced regardless whether they constitute a clear break from the past. Griffith, 479 U.S. at 328, 107 S.Ct. at 716. See McClintock v. State, 444 S.W.3d 15 (Tex.Crim.App.2014). The Supreme Court’s retroactivity analysis for federál constitutional errors is binding upon the states when federal constitutional errors are involved. James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 535, 111 S.Ct. 2439, 2443, 115 L.Ed.2d 481 (1991). This ease was not yet final when McNeely was decided in April 2013 and it applies here on direct appeal.
The court in Douds v. State, held the good-faith reliance exception does not apply in Texas. Douds v. State, 434 S.W.3d 842, 861 (Tex.App.-Houston [14th Dist.] 2014, pet. granted)(en banc). The Texas Supreme Court has resisted efforts to expand the good-faith exception using federal precedent, especially in those instances when the federal exceptions conflict with our statutory exclusionary rule. Howard v. State, 617 S.W.2d 191, 193 (Tex.Crim.App.1979)(op. on reh’g)(rejecting the federal good-faith doctrine of Michigan v. DeFillippo, 443 U.S. 31, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979)); also, see State v. Daugherty, 931 S.W.2d 268 (Tex.Crim.App.1996). Other Texas Courts of Appeals have come to that same conclusion, specifically when evaluating the admissibility of blood test results under McNeely. Douds, AM S.W.3d at 862; see also State v. Anderson, 445 S.W.3d 895, 912 (Tex.App.-Beaumont 2014, no pet.); Tercero, 467 S.W.3d at 9. We decline the State’s invitation to create a good-faith reliance exception to the application of McNeely.
Lastly we consider whether Texas’s exclusionary rule as codified in the Code of Criminal Procedure article 38.23 allows for the admission óf the blood test result. The exception to Texas’s exclusionary rule is legislative and found in Article 38.23(b) which only applies when a warrant issued by a neutral magistrate, based on probable cause, and is relied upon by the officer in good-faith. Tex. Code Crim. PRoc. Ann. art. 38.23(b). As a' result of the lack of a warrant being issued, the statutory exception in Article 38.23(b) does not apply here.' Douds, 434 S.W.3d at 861; Anderson, 445 S.W.3d at 912; Tercero, 467 S.W.3d at 9-10; Burks v. State, 454 S.W.3d 705, 709 (Tex.App.-Fort Worth 2015, pet. filed); Martinez v. State, No. 04-13-00764-CR, 2014 WL 5837162, at *2 (Tex.App.-San Antonio Nov. 12, 2014, pet. filed)(mem. op., not designated for publication); Weems v. State, 434 S.W.3d 655, 666 (Tex.App.-San Antonio 2014, pet. granted); State v. Stewart, No. 09-13-00421-CR, 2014 WL 5855905, at *4 (Tex.App.-Beaumont Nov. 12, 2014, pet. ref'd)(mem. op., not designated for publication).
We overrule the State’s second sub-issue.
CONCLUSION
We -conclude the trial court did not abuse her discretion in determining there were no exigent circumstances that justified a warrantless blood draw from Munoz. *17We affirm the trial court’s order granting the motion to suppress.
Rivera, J., Not Participating
. The trial court heard the initial motion to suppress in December 2014. McNeely was decided in April 2013, and the trial court's suppression order was rendered a month later.
. In 2013, at the time of the hearing, Officer Jordan had been promoted to Detective.
. Tex. Transp. Code Ann-. § 724012(b) provides: .
(b) a peace officer shall require the taking of a specimen of the person’s breath or blood under any of the following circumstances if the officer arrests the person for an offense under Chapter 49, Penal Code, involving the operation of a motor vehicle' ... and the person refuses the officer’s request to submit to the taking of a specimen voluntarily:
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(3) at the time of the arrest, the officer possesses or receives reliable information from a credible source that the person:
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*12(B) on two or more occasions, has been previously convicted of or placed on community supervision for an offense under Section 49.04 [misdemeanor DWI]....
.- We note the Texas Court of Criminal'Appeals has granted the State’s motion for. rehearing in this case on February 25, 2015, but has not withdrawn its opinion on original submission. While Villarreal's future prece-dential value is not certain, we believe the opinion is persuasive and absent any other guidance from the Texas Court of Criminal Appeals, we will 'continue to apply its reasoning. See Perez v. State, 464 S.W.2d 34, 44 (Tex.App.-Houston [1st Dist.] 2015, pet. filed) (applying the Villarreal holding after the Texas Court of Criminal Appeals granted rehearing). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284512/ | OPINION
Tracy Christopher, Justice
In this appeal from a conviction for driving while intoxicated, we consider five issues, each arising out of the State’s failure — and in one instance, its refusal — to turn over evidence that appellant requested during discovery. Finding no reversible error, we overrule each issue and affirm the trial court’s'judgment. ■
BACKGROUND
Appellant was pulled over late at- night after an officer observed him swerve without warning and narrowly miss a parked car. When the officer asked for appellant’s license and proof of insurance, appellant gave an unusual-response, saying that he, as an individual-,’ did not have an expiration date. Appellant fumbled through his documents, dropping some of them on *21his floorboard. According to the officer, appellant was slurring his speech, and he had “extremely watery bloodshot eyes and droopy eyelids.” The officer also detected “a strong odor of alcohol coming .out of the vehicle.”
The officer administered three field sobriety tests, which were all recorded on a dash cam video. The officer identified six out of six possible clues of intoxication on the horizontal gaze nystagmus test. When the officer asked for appellant to perform the walk and turn test, appellant claimed that he suffered from bad knees, but that-he was still capable of performing the test. Appellant stumbled through the test, displaying seven out of eight clues. Appellant performed poorly on the one-legged stand test as well, displaying four out of four clues. . Based on all of the signs of intoxication, the officer arrested appellant and transferred' him to the county jail for processing.
. The date of arrest was January 16, 2013. Two weeks later, on January 30, appellant sent a letter to the district attorney’s office, requesting the preservation of all recordings that depicted him on the date of the alleged offense. In addition' to the dash cam video, appellant specifically requested the booking and intake videos at the county jail. The State turned over the dash cam video, but no other recordings.
Appellant moved for additional discovery, and in October of 2013, the trial court granted his motion and ordered the State to turn over all “sally port videos; booking videos, and jail videos” that depicted appellant in this case. Still, no other record-' ings were ever produced.
Appellant moved to dismiss the case, claiming that the State’s failure to produce the other videos was prejudicial and in violation of Brady v. Maryland. During a pretrial hearing on that motion, appellant testified that he walked normally into the booking and intake area on the night of his arrest, without ever stumbling and without the assistance of another person. ■ Appellant asserted that if the other videos had been produced, they would show that he had not lost the normal use of his mental and physical faculties.
The State called á representative from the'jail, who testified that the jail has two video systems in the booking and intake area. One of the systems stores videos for four days,' whereas the other system stores videos for seventeen days. At the end of those time periods, the videos are taped over.
The representative explained .that the' jail does not . have an official policy for keeping. the videos in the booking and intake area. Instead, the retention period is determined., by -presets in the video equipment. The representative testified that the, video from the seventeen-day system could have been preserved by the time appellant hád made his request. However, appellant sent his request to the district attorney’s office, rather than the jail, and the representative claimed that he never received timely notice of a request. Consequently, the videos from both systems were lost. The trial court denied the motion to dismiss.
Shortly before trial; the State sent appellant a “File Memo / Brady Notice,” claiming that it had obtained the arresting officer’s'personnel file from another'police department where the officer had previously been employed. The State asserted in this nbtice that the officer’s employment with that other department had been terminated following an administrative investigation. The State did not apprise appellant of the- reasons for that investigation. However, the State advised appellant that, upon request, it would- supply the officer’s personnel file to the trial court for an in *22camera inspection to determine whether the file qualified as either Brady or Giglio material.
Both sides agreed to an in camera inspection. In a written order, the court answered that it “has reviewed the provided material and has determined that none of the material constitutes Brady or Giglio material in the instant case.” The State, accordingly refused to turn over the personnel file. Appellant moved for a continuance to independently investigate the officer, but the trial court denied that motion.
During the trial on the merits, the officer was the State’s only witness. The officer published his dash cam video for the benefit of the jury, and he opined that appellant was intoxicated bn the night of the traffic stop. No evidence was ever presented regarding the alcohol concentration in appellant’s blood, breath, 'or urine.
Testifying in his own defense, appellant admitted that he had consumed' three beers on the night in question,' but he insisted that he was not intoxicated. Appellant explained that his coordination, or lack thereof, was the product of fatigue and previous bodily injury. Appellant testified that he was tired during his interaction with the officer because he had beeri awake for many hours. He also testified that he performed poorly during the field sobriety tests because doctors had.operated on his knees three times in the past, and those surgeries affected his balance. Appellant also stated that the cold, January weather was another factor that negatively impacted his knees. The jury rejected these explanations and • convicted-appellant as charged.
After the verdict, but before the trial-court’s plenary power had expired, appellant received the officer’s personnel file from his previous employer. • Appellant filed a motion for new trial, claiming that he had reason to believe that this file contained more documents than what the State had submitted to the trial court for an in camera inspection. Appellant attached a sample of the documents to his motion, and the attachments revealed, among other things, that the officer had been terminated because he used his authority to harass a young woman, with whom he apparently had a prior romantic relationship. Appellant argued that this newly available evidence was material and would have been used to impeach the officer. By written order, the trial court denied appellant’s motion for new trial, without ever having conducted a hearing.
MOTION FOR NEW TRIAL
. We consider appellant’s first and second issues together, because they are interrelated. In his first issue, appellant argues that the’trial court, abused its discretion by disposing of his motion for new trial without the benefit of a hearing. In his second issue, he argues that the trial court abused it's discretion by denying the motion itself. We address these points in reverse order.
I. Denial of the Motion
A trial court’s ruling' on a motion for new trial -is reviewed for an abuse of discretion. See Colyer v. State, 428 S.W.3d 117, 122 (Tex.Crim.App.2014). The test for an abuse of discretion is whether the trial court’s decision was so clearly wrong as to lie outside the zone of reasonable disagreement. See Webb v. State, 232 S.W.3d 109, 112 (Tex.Crim.App.2007).
To be entitled to a new trial on the basis of newly discovered or newly available evidence, the defendant must show:
(1) the newly discovered evidence was unknown or unavailable to the defendant at the time of trial;
*23(2) the defendant’s failure to discover or obtain the new evidence was not due to the defendant’s lack of due diligence;
(3) the new evidence is admissible- and not merely cumulative, corroborative, collateral, or impeaching; and
(4) the new evidence is probably true and will probably bring about a different result in a new trial; ...
See Carsner v. State, 444 S.W.3d 1, 2-3 (Tex.Crim.App.2014). We need only focus on the final two prongs of this test, because they are dispositive.
Appellant argued that he was entitled to a new trial because the newly discovered-evidence showed that the officer was not credible. The proof attached to appellant’s motion addressed a wide variety of subjects. Several documents revealed that the officer had been reprimanded by his previous employers for conduct unbecoming of an officer. ■ In one instance, which actually resulted in termination, the officer abused his authority by threatening to - arrest a young woman whom he previously had- dated. In addition to this evidence of professional misconduct, appellant also attached a copy of the officer’s college transcript, which showed an unremarkable, if not a poor, academic record.
Appellant asserted elsewhere in his motion that the' officer had a history of breaking the law and of selectively enforcing DWI laws. The only proof offered in support of thes.e assertions was described as an “audio recording available for review.” There is no indication that appellant supplied that audio recording to the trial court. Nor has -that recording been included in our record on appeal.
Even if we assumed the veracity of appellant’s claims, the evidence shows, at most, that the officer has a blemished or imperfect background. The State did not acknowledge this background during trial. To the contrary, the State portrayed the officer as an exemplary public servant with a history of commendations:
We do not doubt that the newly discovered evidence was .“possibly useful to the defense,” see Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), but we cannot agree that the evidence would have materially altered the outcome of the trial hád it been made avhilable. Appellant admitted on the stand that he consumed three beers on the night of his arrest, and the video evidence Clearly showed -that he was impaired. Appellant argued that the reason for his impairment was his fatigue and bad knees, and not his consumption of alcohol, but the jury rejected that defense and found that he was intoxicated. There-is no .reasonable probability that- the newly discovered evidence, which merely impeached the officer’s history of professionalism, would have changed the jury’s assessment of appellant’s intoxication. Cf. Boyett v. State, 692 S.W.2d 512, 517 (Tex.Crim.App.1985) (newly discovered impeachment evidence against an officer did not warrant a new trial where the evidence was immaterial because it did not advance a defensive theory); Ramirez v. State, 830 S.W.2d 827, 829 n. 1 (Tex.App.-Corpus Christi 1992, no pet.) (newly discovered impeachment evidence against an officer did not warrant a new trial where the evidence “ap-proache[d] insignificance” because it merely showed that, on an unrelated occasion, the officer missed a day of work under a false pretense to spend some'time with his girlfriend); see also Saldivar v. State, 980 S.W.2d 475, 485-87 (Tex.App.-Houston [14th Dist.] 1998, pet. ref'd) (newly discovered impeachment evidence regarding a witness’s criminal history was not material because the State’s casé was strong and the defense was able to impeach the witness with her prior -inconsistent statement).
*24. The trial court did not abuse its discretion by denying appellant’s motion for new trial.
II. Failure to Conduct a Hearing
We review the, trial court’s failure to conduct a hearing on a motion for new trial under the same standard as before: an abuse of discretion. See Martinez v. State, 74 S.W.3d 19, 21-22 (Tex.Crim.App.2002).
The purpose of the hearing is to decide whether the cause should be retried and to prepare a record for presenting issues on appeal in the event the motion is denied. See Smith v. State, 286 S.W.3d 333, 338 (Tex.Crim.App.2009). Although the hearing on a motion for new trial is a critical stage, the right'to such a hearing is not absolute. See Rozell v. State, 176 S.W.3d 228, 230 (Tex.Crim.App.2005). A hearing is not required when matters raised in the motion are subject to being determined from the record. See Reyes v. State, 849 S.W.2d 812, 816 (Tex.Crim.App.1993).
If a defendant has raised matters not determinablé from the record, a trial court is not required to conduct a hearing unless the defendant further establishes the existence of “reasonable grounds” showing that he “could be entitled to relief.” Id. This reasonableness requirement serves to prevent “fishing expeditions.” Id. The defendant need not establish a prima facie case for a new trial, nor must his proof reflect every component legally required to establish his entitlement to a new trial. See Smith, 286 S.W.3d at 339. It is sufficient if a fair reading of the proof gives rise to reasonable grounds in support of the defendant’s claim. Id.
As discussed above, appellant moved for a new trial, claiming that the newly discovered evidence would have been used to impeach the officer. Appellant argued that this impeachment evidence was critical because the officer was the State’s only witness and, therefore, attacking his credibility was paramount.
The proof attached to ■ appellant’s motion consisted of documents from the officer’s personnel file and academic record. Appellant indicates in his brief that, had a hearing been conducted on his motion, he would have been able to develop additional details regarding these documents. Appellant focuses specifically on four allegations: (1) the .officer’ had selectively enforced DWI laws; (2) the officer had broken other laws himself; (3) the officer was untruthful about his training and education; and (4) the officer had been fired and reprimanded in previous law enforcement positions. Appellant also argues that a hearing would have -allowed the trial court to listen to an audio recording that supported some of these allegations.
At" best, a hearing would have established that appellant had an evidentiary basis for challenging thé officer’s credibility. However, the impeachment value from that evidence would have been limited to attacking the officer’s history of professionalism. The impeachment evidence would not have negated the officer’s ability to assess appellant’s intoxication on the night of the arrest. The trial court could have reasonably concluded that the newly discovered impeachment evidence was not material, and therefore, that appellant had not established reasonable grounds for granting a new trial. See Wallace v. State, 106 S.W.3d 103, 108 (Tex.Crim.App.2003) (holding that a trial court could deny a hearing on a motion for new trial if it could reasonably conclude that the newly discovered evidence attached to the motion was not compelling enough to overcome the strength of the State’s case).
*25The trial court did not abuse its discretion by denying appellant’s motion for new trial without the benefit of a hearing.
MOTION FOR CONTINUANCE
In his third issue, appellant contends that the trial court abused its discretion by denying his motion for continuance. As stated earlier, appellant filed his motion after the trial court determined, following an in camera inspection, that the officer’s personnel file did not qualify as either Brady or Giglio material. Appellant requested additional time to investigate the officer and obtain his personnel file because he believed that new evidence existed regarding the officer.
A defendant must satisfy a two-prong test to show reversible error predicated on the denial of a pretrial motion for continuance. See Gonzales v. State, 304 S.W.3d 838, 843 (Tex.Crim.App.2010). First, the defendant must show that “the case made for delay was so convincing that no reasonable trial judge could conclude that scheduling and other considerations as well as fairness to the State outweighed the defendant’s interest in delay of the trial.” Id. (citing George E. Dix & Robert 0. Dawson, 42 Texas Practice: Criminal Practice and Procedure § 28.56 (2d ed.2001)). Second, the defendant must show that he was actually prejudiced by the denial of his motion. Id. This standard is met if the defendant can establish “with considerable specificity [that he] was harmed by the absence of more preparation time than he actually had.” Id. at 842.
There is no need to address the first prong of this test because appellant cannot show that he-was actually prejudiced. After the trial was over, appellant received a copy of the officer’s personnel file, which'is what he sought to discover had the continuance been granted. In his motion for new trial, appellant asserted that he had reason to believe that his -copy of the officer’s personnel, file contained more information -than what the trial court had reviewed during its in camera inspection. Appellant argues now that he would have used this greater file “to -rebut the false impression that [the officer] was a credible, decorated, police officer.” However, even if the evidence were admissible for the-limited purpose of impeachment, there is no reasonable likelihood that the outcome of trial would have been different, as-, we explained in appellant’s previous two issues.
Because appellant has not shown that he was harmed by the absence of additional preparation time than he actually had, we conclude that the trial court did not reversibly err by denying the motion for Continuance.
MOTION TO DISMISS
In his fourth issue, appellant complains about the denial of his motion to dismiss^ Appellant predicates this issue on the State’s failure to preserve the booking and intake videos at the county jail, which he believes were exculpatory.
When reviewing a .trial court’s decision on a motion to dismiss, we apply a bifurcated-standard, giving almost , total deference .to the trial court’s findings of fact .that are supported by the record, as well as any mixed questions of law and fact that rely upon the credibility of witnesses. See State v. Dinur, 383 S.W.3d 695, 699 (Tex.App.-Houston [14th Dist.] 2012, no pet.). For pure questions of law or mixed questions that do not depend on credibility determinations, our review is de novo. See State v. Krizan-Wilson, 354 S.W.3d 808, 815 (Tex.Crim.App.2011).
The United States Supreme Court has explained that there is a differ*26ence between “material exculpatory evidence” and “potentially useful evidence,” and that difference informs our analysis when deciding whether the State’s failure to disclose or preserve evidence violates a defendant’s guarantee of due process of law. See Illinois v. Fisher, 540 U.S. 544, 547-48, 124 S.Ct. 1200, 157 L.Ed.2d 1060 (2004) (per curiam). With material exculpatory evidence, a due process violation occurs whenever the- State suppresses -or fails to disclose such evidence, regardless of whether the State acted in bad faith. See Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). With potentially useful evidence, however, the State’s failure to preserve such evidence does not amount to a due process violation unless the defendant can show bad faith on the part of the State. See Arizona v. Youngblood, 488 U.S. 51, 57-58, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988). Potentially useful evidence is “evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant.” Id. at 57, 109 S.Ct. 333.
I. The videos were not material exculpatory evidence.
Appellant argues that he is not required to show bad faith in this case because the booking and intake videos were material- exculpatory evidence. Appellant bases this argument on his uncon-troverted testimony during the hearing on the motion to dismiss that he walked into the county jail- normally and without the assistance of another.
To meet the standard of constitutional materiality, the evidence must possess “an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” See California v. Trombetta, 467 U.S. 479, 489, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984). “The mere possibility that an item of undisclosed information might have helpéd the defense, or might have affected the outcome of the trial, does not establish ‘materiality’ in the constitutional sense.” United States v. Agurs, 427 U.S. 97, 109-10, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). “The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probar bility’ is a probability sufficient to undermine confidence in the outcome.” United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985).
We agree that videos of appellant walking normally through the booking and intake area could have been useful to the defense.' However, the exculpatory value of those videos would have been slight when compared to the body of inculpatory evidence that the State was able to produce. There was compelling evidence that appellant was impaired at the time of the traffic stop, and this evidence consisted of both live testimony from the officer and video evidence of appellant failing his field sobriety tests. Videos recorded after the field sobriety tests showing appellant walking normally would not be sufficient to undermine confidence in the outcome: Those videos would “cut both ways” because a reasonable juror could still conclude that appellant failed the field sobriety tests because of his intoxication, rather than his bad knees. See Barre v. State, 826 S.W.2d 722, 725 (Tex.App.—Houston [14th Dist.] 1992, pet. ref'd). Appellant did not show a reasonable probability that the outcome of the trial would have been different, but for the State’s failure to preserve the booking and intake videos. Cf. Higginbotham v. State, 416 S.W.3d 921, *27926-27 (Tex.App.-Houston [1st Dist.] 2013, no pet.) (missing video from the scene, which had slight'exculpatory value, was not material where video taken at the police station showed that the defendant had failed his field sobriety tests); Chandler v. State, 278 S.W.3d 70, 74-75 (Tex.App.—Texarkana 2009, no pet.) (defendant charged with assaulting a correctional officer could not establish that lost jailhouse video was favorable where “the only evidence concerning the video is that it did not clearly depict the. confrontation and-did not assist in determining what, occurred”).
II. Appellant did not carry his burden under Youngblood..
We- believe that this ease is. governed by .the standard set forth in Youngblood ■ involving the destruction of potentially useful evidence. Under that standard, appellant was required to demonstrate that the State acted in bad faith by failing to preserve his requested videos. “[B]ad faith entails some sort of improper motive, such as personal animus against the defendant or a desire to prevent the defendant from obtaining, evidence. that might be useful.” Ex parte Napper, 322 S.W.3d 202, 238 (Tex.Crim.App.2010,). A showing of negligence does - not qualify as bad faith. See Youngblood, 488 U.S. at 58, 109 S.Ct. 333.
Here, appellant contends that the State acted in bad faith because the district' attorney’s office received a written request to preserve the videos, but it apparently did not forward that request to the county jail. This argument is insufficient. As the United States Supreme Court explained in Fisher, there has never been a holding or suggestion that the existence of a pending discovery request eliminates the necessity of showing bad faith whenever the State happens to destroy potentially useful evidence. See Fisher, 540 U.S. at 548, 124 S.Ct. 1200. To create such a per se rule would negate the very purpose of the bad faith requirement, which is to limit the State’s obligation to preserve evidence “to reasonable grounds” arid only in those cases “where the interests of justice most clearly require it.” Id. (citing Youngblood, 488 U.S. at 58,109 S.Ct. 333). ■
Outside the pending discovery request, appellant did not produce any evidence of bad faith. The representative from the jail testified that the videos were lost because they were taped over after seventeen days. The representative also explained that the overwriting process was built into the video equipment and that there was not an official policy from the jail regarding the handling of old tapes. There was no indication of personal animus or of a conscious disregard for appellant’s rights. The trial court was free to conclude that the State had not acted in bad faith.
In a related argument, appellant contends that a finding of bad faith should have been made from the State’s noncompliance with an- administrative regulation. Appellant refers to the record retention schedules, which require “video of prisoners in cells or other areas of a jail or holding facility” to be retained for at least thirty days. See 13 Tex. Admin. Code § 7.125(a)(5) (Record No. PS4200-17). Because the video systems in the booking and intake area did not meet this minimum standard, appellant argues that the State’s destruction of evidence amounts to more than mere negligence.
Appellant did not' raise the regulation as a basis for relief in his motion to dismiss. Nor was the regulation ever discussed in the hearing .on the motion to dismiss. Even if we assumed that the regulation could be raised now — and assuming further that it applies to the booking and intake area of the jail — we would still con-*28elude that the trial court did not err. The trial court could have reasonably concluded that the loss of the videos in ¡violation of the regulation was negligent at most. See also Youngblood, 488 U.S. at 58, 109 S.Ct. 833 (indicating that a court should avoid a construction of the Due Process Clause that might “impos[e] on the police an undifferentiated and absolute duty to retain and to preserve all material that might be of conceivable evidentiary significance in a particular prosecution”); Zapata v. State, 449 S.W.3d 220, 229 (Tex.App.—San Antonio 2014, no pet.) (rejecting argument that the State’s compliant destruction -of evidence pursuant to a different record retention schedule amounted to a per se violation of the Due Process Clause).
The trial court did not err by denying appellant’s motion to dismiss. See Gutierrez v. State, 419 S.W.3d 547, 551-52 (Tex.App.—San Antonio 2013, no pet.).
JURY CHARGE
In his final issue, appellant argues that the trial court committed a charge error when it denied a requested spoliation instruction; As with his fourth issue, appellant bases this complaint on the loss of the booking and intake" videos at the county jail.
We review a complaint of jury-charge error under a two-step process, considering first whether error exists. See Ngo v. State, 175 S.W.3d 738, 743 (Tex.Crim.App.2005). If error does exist, we. then analyze that error for harm under the procedural framework of Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App.1984).
Assuming without deciding that- the trial court erred by denying the requested instruction, appellant is only entitled to relief if the record shows that he suffered “some harm;” See Beeves v. State, 420 S.W.3d 812, 816 (Tex.Crim.App.2013). Under this standard, the harm must be actual, not merely theoretical. Id. We consider several factors: (1) the jury charge as a whole, (2) the arguments of counsel, (3) the entirety of the evidence, and (4) any other relevant information from the record. Id.
The charge was standard in this case. It asked the jury to determine whether appellant was guilty of a single count of operating a motor vehicle,in a-public place while he was intoxicated. The charge did not contain any instruction that the jury may make an adverse inference from the State’s destruction or nonproduction of evidence, which is what appellant sought in his requested spoliation instruction.
• Defense counsel raised many defensive arguments- during his closing- statement, and he began,by focusing on-the officer’s credibility. Counsel argued that the dash cam video did not show appellant swerve or nearly -hit a parked car, which is what the officer had claimed in his testimony. Counsel argued that the officer’s lie cast his entire testimony into doubt.
Counsel then turned to appellant’s performance in the field sobriety tests. Starting with the horizontal gaze nystagmus test,'counsel emphasized that appellant’s eyes were not clearly visible on the video. Claiming that the test was also unreliable, counsel argued that there was reasonable doubt as to appellant’s intoxication. As for the other two tests, counsel reiterated that appellant had bad knees, which he blamed as the cause of appellant’s poor performance.
The discussion then shifted to the missing videos from the booking and intake area. Counsel emphasized that- he had made a timely request for at least one of these videos from the district attorney’s office. He also emphasized appellant’s testimony that this video would have depicted *29appellant walking normally on the night of his arrest.
Knowing that the charge would not contain his' requested spoliation instruction," counsel implored the jury to make an adverse inference against the State. He couched his argument in terms of reasonable doubt, which was referenced in the charge. Counsel argued as follows:
So why didn’t the DA’s office present you with those videos? Presumably, they would have if the evidence contained in those videos was helpful to them, don’t you think? If they thought they proved that Mr. Burdick had lost the normal use of his mental and physical faculties, they would have shown you those videos.
So what can we conclude from that? What — those videos must have shown something pretty favorable to Mr. Bur-dick, wouldn’t you say? And the fact that the DA’s' office went to such lengths to make sure they would never see the light of day.... You better believe that’s reasonable doubt. " ■
The State’s response to this line of argument was minimal. The State advised the jury that it should not accept this “nonsense” theory that there was a statewide conspiracy against appellant. Focusing instead on the 'evidence that was admitted, the State argued that this was “a common sense trial,” with overwhelming proof of appellant’s intoxication.
And indeed, there was overwhelming proof. Appellant admitted that he had consumed three beers on the night of his' arrest. The evidence revealed that appellant had bloodshot eyes, that he was slurring his speech, or that an odor of alcohol was coming out of his vehicle. The dash cam video also clearly showed that appellant was impaired during his attempt of the field sobriety tests.
Athough we may not conduct =a sufficiency-type analysis when reviewing the existence of harm under Almanza, we may examine the quality of the defensive evidence. See Cornet v. State, 417 S.W.3d 446, 453 (Tex.Crim.App.2013). Here, appellant’s only explanations for his, impairment — fatigue and bad knees — were not very strong. It is not clear to this court how appellant’s bad knees could have affected his performance during the horizontal gaze nystagmus test. Assuming that fatigue may have had an impact, there is no evidence that appellant complained of fatigue at any point during the traffic stop.
As for the other, field sobriety tests, appellant stated on the dash cam video that he believed be'was capable-of coni-' pleting the tests, despite his bad knees. At that time, appellant was in the best position to know his own limitations. The officer did not pressure or coerce appellant into proceeding' with the 'tests. Even though he claimed that he could perform the tests, appellant stumbled through them, displaying multiple clues of intoxication.
Atogether, the State put on a compelling case. Against that backdrop of overwhelming evidence,' the jury had an opportunity to give effect to appellant’s spoliation claim. The jury heard testimony that appellant walked normally through the jail. The jury heard additional testimony that a request had been made for video evidence from the jail, which purported to prove that appellant had walked normally. Finally, during closing arguments; the jury was invited to conclude that the State had destroyed that video evidence because it would have favored the defense. Yet the jury still found that appellant was intoxicated. Based on the charge, evidence, and arguments of counsel, the record strongly indicates that the jury considered and rejected appellant’s plea for an adverse *30inference. We therefore conclude that appellant did not suffer harm from any error in the denial of his--requested spoliation instruction. ■ See id. at 454 (concluding that error in denying a defensive instruction was harmless where the defensive theory was discussed during closing arguments and the record indicated that the jury rejected it); see also Erickson v. State, 13 S.W.3d 850, 852 (Tex.App.—Austin 2000, pet. ref'd) (holding that any error in failing to narrow the definition of “intoxicated” was harmless where defense counsel advised the jury during closing, arguments that it only needed to consider the defendant’s use of alcohol, and not the other intoxicants mentioned in the charge); Mena v. State, 749 S.W.2d 639, 641-42 (Tex.App.—San Antonio 1988, pet. ref'd) (holding that any error in failing to specify that the State carried the burden of proof was harmless where both sides, during closing argument, correctly stated the law regarding the burden of proof).
CONCLUSION
The judgment of the trial court is affirmed. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284514/ | MINTON, C.J.,
CONCURRING IN RESULT ONLY:
I concur in today’s result; but I believe the majority opinion mischaracterizes February 7, 2012, as the “stipulated date” that Hale’s injury manifested, A close look at the record renders this assertion ambiguous at best, and that — coupled with the fact that this rather significant finding has eluded the keen eye of administrative and *143judicial reviewers at every level — causes me to reject the majority’s finding on that point. But because I am not persuaded that using Hale’s lay-off date as the date, of manifestation (and, thus, the date of discovery) would change the outcome of this case, this is a harmless mistake.
Ultimately,- I think there is enough in the ALJ’s opinion to qualify for deference under the substantial-evidence standard of review. Dr. Madden testified that three decades of jolting labor as a bulldozer operator gave rise to the cumulative trauma that resulted in Hale’s disability. CDR employed Hale to continue his job as a bulldozer operator — the same work activity that Dr. Madden felt caused Hale’s cumulative-trauma injury. Although evidence in this record establishing proximate causation certainly is not extensive, there is just enough to find that the ALJ’s conclusion linking CDR to Hale’s claim was supported by substantial evidence.. .
As for the issue of apportioning CDR’s liability for Hale’s injury, I am troubled with the result. But the majority appropriately framed the current state of our law. In light of the dissolution of the Special Fund, we can no longer give effect to Southern Kentucky Concrete and its rule of apportionment. And although I am concerned that an employer of three months may foot the bill for thirty years of gradual trauma, this Court is left with no choice under the current workers’ compensation law. I am also doubtful that 'this is the result that the' General Assembly intended with the workers’ compensation statutory scheme; but until the text is modified, I have no alternative other than to concur in today’s result. . . -
Abramson, J., joins. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284515/ | OPINION OF THE COURT BY
JUSTICE CUNNINGHAM
Around 1 a.m. on April 17, 2011, Appellant, Mike Douglas Rieder, was leaving a Lexington- bar when he was approached by a fellow bar patron, Jimmy Muzic. Muzic asked Rieder to give him a ride home. Rieder refused and walked away toward his car. Muzic followed him and jumped into the backseat. Rieder told him to get out, but Muzic said he only needed a ride to a gas station located on the nearby street comer. Rieder reluctantly agreed to drive Muzic to the gas station. When the two arrived at the gas station, Rieder repeatedly demanded that Muzic get out of the car. Muzic refused.
Rieder, who had a concealed deadly weapon license, exited the vehicle, drew his handgun, and pointed it at Muzic in an attempt to frighten Muzic out of his vehicle. Muzic again refused and Rieder forcibly removed him. Once outside the ear, a scuffle ensued and the two men began shoving each other. Rieder raised his gun, pointed it at Muzic, and fired a -single shot. The bullet struck Muzic in the head, killing him instantly. Rieder got back into his vehicle and drove off. He eventually called 911 and reported the shooting. After an investigation, Rieder was charged with murder and was subsequently tried.
A Fayette County Circuit Court jury was instructed on murder, first-degree manslaughter, second-degree manslaughter, and reckless homicide. The jury was also instructed on' self-protection and extreme emotional distress. After a three day trial, Rieder was convicted of second-degree manslaughter and sentenced to ten years’ imprisonment.
Rieder appealed several issues to the Court of Appeals. Finding that the impermissible trial testimony of a Lexington Police Sergeant constituted palpable error, the Court of Appeals vacated Rieder’s conviction and remanded for a new trial. We granted discretionary review. Having reviewed the facts and the law, we reverse the Court of Appeals and reinstate the trial court’s judgment.
Improper Testimony
The Commonwealth called Lexington Police Sergeant David Richardson to testify. Sergeant Richardson was the lead detective in this case and interviewed Rieder soon after the shooting. The following exchange occurred at trial:
Commonwealth: Detective,' after you had concluded your interview with the defendant, did you make a decision to charge him?
Sgt. Richardson: I did.
Commonwealth: And what did you charge him with?
Sgt. Richardson: I charged him with murder.
*145Commonwealth: And why did you make that decision?
Sgt. Richardson: Through the statements he had made, there was no physical force being used against him, and I didn’t feel he had the right to use his gun at that, instant.
Rieder contends that this testimony invaded the province of the jury by expressing an opinion on the. legitimacy -of his self-protection claim. He did not object to this testimony at trial. Therefore, we will review for palpable error. RCr 10.26.
We have defined palpable error as the “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). We have also described such errors as those that are “shocking or jurisprudentially intolerable.” Id. at 4. See also McCleery v. Commonwealth, 410 S.W.3d 597, 606 (Ky.2013) (we will not reverse unless “it can be determined that manifest injustice, i.e., a repugnant and intolerable outcome, resulted from that error.”). Although Sergeant Richardson’s testimony was admitted in error,- there was no palpable error here. Several cases warrant discussion.
In Ordway v. Commonwealth, the Appellant was convicted of murdering two men. He presented a self-protection claim at trial. 391 S.W.3d 762 (Ky.2013), In response to questions posed by the Commonwealth, an investigating detective testified that “Appellant did not act like those who had lawfully protected themselves but, had instead acted like those who were fabricating a self-protection defense.” Id. at 775. We determined that this testimony, to. which the Appellant objected at trial, “was clearly devastating to Appellant’s claim of self-defense Id. at 777., We held that the inadmissible testimony was not ’harmless, and therefore reversed Appellant’s murder convictions. Id. , ■ ......
In Stone v. Commonwealth, the Appellant argued for the first time on appeal that the Commonwealth elicited impermissible. “testimony of district court prosecutor Alison Cox that she felt the [assault] allegations against him.were true....” No. 2011-CA-000315-MR, ' 2013 WL 1919566, at *4 (Ky.App.- May 10, 2013). The court determined that it could not be certain that Cox’s statement did not factor heavily into the jury’s, decision, and that the jury may have reached a .different outcome in thé absence of her testimony. Id. at ¾5. Accordingly,, the court held that admitting the impermissible testimony constituted palpable-error requiring reversal of Appellant’s assault- conviction. Id; at *6. ■
The Commonwealth relies on Martinez v. Commonwealth, No. 2008-SC000082-MR, 2009 WL-2706958, at *1 (Ky. Aug. 27, 2009). In that case, the Appellant argued that it ■ was palpable error to permit a detective to testify--that “in his opinion Appellant reacted to the police interrogation in a manner which indicated guilt.” Id. at *5. This Court determined that the testimony was impermissible.- Id. at *6. However, we concluded that-“no matter how inappropriate-, [the' Detective’s] testimony may have been, we cannot find that it rose to a manifest injustice.” Id. In support, we noted that the detective’s erroneous testimony “constituted a small portion of the trial and the evidence presented against Appellant was substantial.” Martinez, 2009.WL 2706958., at ‡6. .
' We find limited utility in Stone and Martinez. Both are unpublished- decisions that are distinguishable from the present case. However, this case is' much -more like Martinez in that the Commonwealth’s evidence was substantial and Sergeant Richardson’s testimony constituted, a dis*146crete and insignificant portion of the trial. And while the present case is similar to our published decision of Ordway, there are three critical distinctions.
First, Ordway applied a harmless error analysis. In contrast, we must apply the much more stringent palpable error standard here. Second, the impermissible testimony in Ordway was more extensive than in the present case. The detective in Ordway was permitted to discuss “how persons who legitimately exercise the right of self-protection typically behave.” Ord-way, 391 S.W.3d at 775. He concluded that Ordway “did not act like those who had lawfully protected themselves but, had instead acted like those who were fabricating a self-protection defense.” Id. Third, Ordway’s self-protection claim did not involve allegations that the shooting was accidental. Id. at 772-73.
In the present case, however, Rieder made separate and distinct statements that the shooting was accidental. For example, the jury heard the recording of Rieder’s interview with Sergeant Richardson wherein Rieder stated: “I had no intention of ever pulling that trigger, regardless .... ” Rieder also commented that he drew his gun, “didn’t pull the trigger, but the trigger went off.” In addition, Rieder made statements during his 911 recording that he did not pull the trigger and that the shooting was an accident.
Although Rieder indicated at trial that he was defending himself and that he “squeezed the trigger,” much of his testimony expressed his previous narrative that the shooting was an accident. Considering Rieder’s own statements to the police and at trial, Rieder likely diminished evidence offered in support of his self-protection theory by conflating accident and self-defense. Of course, this was for the jury to decide based on all the evidence.
The Commonwealth presented substantial evidence in support of its case. Four eyewitnesses testified that Rieder extended his arm and then shot the victim. These eyewitnesses observed the shooting from a vehicle while it was stopped at a traffic light near the gas station where the shooting occurred. None of the witnesses indicated that their view was obscured. In fact, one witness expressly stated that he had a clear view of the shooting. The witnesses confirmed Rieder’s own testimony that he and the victim were involved in an argument and physical altercation immediately prior to the shooting. The witnesses also confirmed Rieder’s testimony that he drove away in his vehicle immediately after the shooting.
Even dismissing Rieder’s own statements that the shooting was an accident and that he did not pull the trigger, the jury was presented with ample evidence including: 1) Rieder’s actions immediately prior to the shooting, including the extent of the argument and physical altercation between Rieder and Muzic; and 2) Rieder’s actions that occurred after the shooting, including his sudden departure from the scene and delayed 911 phone call.
Moreover, Sergeant Richardson’s contested testimony was offered in direct response to the Commonwealth’s inquiry as to why Rieder was charged with murder. This line of questioning occurred immediately after the recorded police interview was played for the jury. Therefore, Richardson’s testimony was received within context. In other words, the jury was able to independently consider the same evidence about which Sergeant Richardson commented. As previously discussed, Rieder made statements during his police interview that he did not pull the trigger and that the shooting was an accident.
*147Although Sergeant Richardson’s contested testimony was impermissible, it did not create the “probability of a'different result or error so fundamental as to threaten [Rieder’s] entitlement to due process .of law.” Martin, 20,7 S.W.3d at 3, Reversing Rieder’s conviction would first require that this Court sanctify the Court of Appeals’ dilution of our palpable error standard, thus rendering it indistinguishable from our less stringent standards of review. Even then, we have reservations whether the facts of this case would require reversal under ’ a harmless error analysis. What is clear, however, is that the error here was far from palpable.
Palpable error review has been a constant challenge for our appellate courts for some time. Creating the proper standards has been a daunting task because what is palpable error lies in the eyes of the beholder. Even bn this Court there has regularly been disagreement as to how drastic an error has to be to warrant reversal. For some it must be so shocking as to “jump off the page.” For others, the mistake need not be that- extreme.
Two uncertainties always loom’ over our review of these types of cases. First, it is the possibility that the trial court would have taken care of the problem if given a chance to rule. This includes the exclusion of certain evidence as well as remedial steps such as an admonition. Second, when an objection is not voiced by the appellant’s counsel at trial, we are left to wonder if trial strategy might be the motivating force for remaining silent. It is also our concern that we do not encourage trial defense lawyers.to effectively bait the trial court into a reversible mistake through acquiescence. These are all factors which go into appellate analysis of palpable error, and which incite varying viewpoints. But-of course, all of these complicating considerations are trumped by the driving question as to whether the error was of such weight as to tilt the scale toward a result that was unfairly reached.
However, we all agree there must be a substantially heightened threshold for a reversal on an unpreserved error. Such was not reached in this case. Therefore, we affirm Rieder’s conviction.
Conclusion
For the foregoing reasons, we hereby reverse the Court of Appeals’ decision and reinstate the judgment of the Fayette Circuit Court.
All Sitting. All concur. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284516/ | ■ OPINIOÑ
D. LAMBERT, JUDGE:
This appeal surrounds an inmate disciplinary hearing at Northpoint Training Center (hereinafter, “Northpoint”). Appellant (hereinafter, “Ramirez”) was disciplined by the Appellee (hereinafter, “Adjustment Officer Nietzel”) for his alleged involvement in an assault on two other *149inmates, Henry Rodgers, (hereinafter, “Rodgers”) and Ricky Lee, (hereinafter, “Lee”).
I. Facts
On August 19, 2009, inmates Rodgers and Lee were victims of an assault which took place behind the prison chapel. Ramirez and several other inmates were placed in administrative segregation and questioned by an investigating officer, Captain Gary L. Frederick. Ramirez claimed he was asleep in his dorm at the' time of the assault. The investigating officer did not believe this alibi and reported that Ramirez, along with at least eight* other inmates, participated in’ the attack.
On September 22,2*009, the investigative officer prepared two documents: a memorandum to the Warden, Steve Haney,1 and a disciplinary report form. Both were given to Ramirez. A disciplinary hearing was scheduled for October 26, 2009. After receiving a copy of the disciplinary write-up, Bobby Nation, an inmate legal aide, was assigned to assist Ramirez in preparing a defense for the hearing. Adjustment Officer Nietzel presided over the hearing.
At tlie hearing, Ramirez pled not guilty and requested to call fellow inmates Louis Pena-Martinez and Rodgers, the victim, as witnesses. Adjustment Officer Nietzel allowed Pena-Martinez’s statement made to the. investigating officer -to come in that Ramirez was asleep in his dorm when the incident occurred. However, in her opening remarks Adjustment Officer Nietzel refused to let The victim inmate Rodgers testify, stating that to do so would be unduly hazardous to institutional and correctional goals. Adjustment Officer Niet-zel also denied Ramirez’s request that she view, the security footage of the area where the .assault took place for-the same stated reason. When ■ addressing Ramirez’s request to admit the written statement of inmate Rodgers which stated that Ramirez was not involved in the assault, Adjustment Officer Nietzel denied the request and stated that to admit the written statement would also be unduly hazardous to institutional and correctional goals.2 No other witnesses were called and no witnesses who were called identified Ramirez as a participant in the assault.
Approximately twelve minutes after the beginning of the hearing, Adjustment Officer Nietzel found Ramirez guilty of physical action against another inmate resulting in death or serious physical injury and for conspiring, aiding and attempting to cause serious physical harm to another inmate based on the fact that the inmates were armed with strings- and locks. Ramirez was ordered to pay a percentage of any and all medical bills pertaining to the inci*150dent,3 and was given 180 days of disciplinary segregation and the loss of 730 days of non-restorable good time.
Ramirez initially' appealed to Warden Steve Haney, who upheld Adjustment Officer Nietzel’s decision, finding that due process was afforded and that the charge and penalty were appropriate. Ramirez then appealed the action to the Boyle Circuit Court in action number 10-CI-00269, where it was ultimately found that due process at the adjustment hearing was sufficient. Another panel of this Court affirmed the circuit court in case number 2011-CA-000382-MR.
■ Ramirez ■ sought discretionary ■ review from the- Kentucky Supreme Court' which reversed and remanded the case to the Boyle Circuit Court. The Kentucky Supreme Court also held4 that while an adjustment officer is not required to provide a detailed reason for the denial of the witness, a reason for the denial must be provided for the record on appeal. Moreover, the reason must be stated in “sufficient detail to support a finding that the denial was ‘logically related to preventing undue hazards to institutional safety or correctional goals.’ ” Ramirez at 920. The Supreme Court further added that the officer’s reasoning could be provided in camera or under seal and the details of the denial need not be disclosed to the prisoner.
The Supreme Court finally held that, if requested by a prisoner, the adjustment officer must review any surveillance footage or- similar documentary evidence. While the Supreme Court acknowledged that the “some evidence” standard established by Superintendent, Mass. Com Inst., Walpole v. Hill, 472 U.S. 445, 454, 105 S.Ct. 2768, 2773, 86 L.Ed.2d 356 (1985), materially limited review of prison disciplinary cases, the Supreme Court found that basic due process could be satisfied.
After, the case'was remanded to the circuit ■ court, and in response to the Supreme Court’s order for her to review the tape, Adjustment Officer Nietzel filed a notice indicating that no video recording of the assault ever existed.5 Ramirez re*151sponded and requested that the court strike the notice requiring the -video to be reviewed on remand and to order Adjustment Officer-Nietzel to submit affidavits in support of her findings at the adjustment hearing.
On May 6, 2014, the. trial court ordered that the order regarding the in camera review be stricken, as it did not exist, and that Nietzel submit an affidavit and any supporting documents regarding her findings to the court. The trial court ordered those documents be filed under seal.-
Adjustment Officer Nietzel complied and provided an affidavit with supporting documentation under seal on May 13, 2014. After review, the trial court found Adjustment Officer Nietzel’s denial of'Rodgers’s testimony met the “some evidence” standard established by Walpole, supra,' and that Nietzel properly denied admission of Rodgers’s testimony and his written statement for reasons of institutional safety and security. This appeal follows.
II. Issues and Analysis
The Supreme Court of the United States has addressed the issue of the level of constitutional protection available to prisoners in such internal disciplinary proceedings many times. Of particular direction is Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), which held that due process requires procedural protections before a prison inmate can be deprived of a protected liberty interest in good time credits. Wolff, and then later Walpole, held that an inmate must receive:
(1)advance written notice of the disciplinary charges;
(2) an opportunity, when consistent with institutional safety and correctional goals, to call witnesses and present documentary evidence in his defense; and
(3) a written statement by the factfinder of the evidence relied on and the reasons for .the. disciplinary action.
Walpole, 472 U.S. at 454, 105 S.Ct. at 2773 (citing Wolff, 418 U.S. at 563-567, 94 S.Ct. at 2978-2980).
(A) Failure to Consider Testimony of Inmate Rodgers
' Certainly'a victim of a prison assault, who is available to speak or give a written statement, would be a relevant witness to determine who perpetrated the assault. The names of both Inmate Rodgers and Inmate Lee were identified as the victims in the disciplinary write-up form given to Ramirez pursuant to Wolff’s requirement of advance written notice of the disciplinary charges.' Having reviewed the sealed affidavit and supporting document filed by Adjustment Officer Nietzel, we are not persuaded by her assertions as to why inmate Rodgers’s statement that Ramirez was not involved in the assault threatened institutional security. While multiple names- of other alleged participants are listed in the ■ sealed documents and the release of the other names may cause institutional instability, - the one consistent witness statement was from Rodgers, who gave a list of the names of those who assaulted him to the investigator, but never stated that. Ramirez assaulted him. This fact was known to Adjustment Officer Nietzel at the time of the hearing. She could have limited any inquiry into to the names of the others who had been identi*152fied by Rodgers as his attackers. However, to prevent Rodgers from exonerating Ramirez, by either his written statement or live testimony, violates the second due process requirement of Wolff.
While Ramirez v. Nietzel acknowledged that an inmate does not have an “unfettered right to call a particular witness or admit certain documentary evidence[,]” the Court found that an adjustment officer must provide an explanation regarding the decision to not permit the inmate’s witness to testify. Id. at 917. The Court did not provide a hard-line standard of what constituted a sufficiently detailed description, but it did state that the reason must be “logically .related to preventing undue hazards to institutional safety or correctional goals.” Id. at 918.6
Additionally, the Supreme Court made it clear that while due process in the present context did not require the same “level of description or basis expected of a trial judge,” an adjustment officer is required to make a specific finding-why “this particular witness is more hazardous than another[,]” as it would be plausible to view each and every inmate as a security risk. Id. at 918.7 Upon reviewing the facts, the Kentucky Supreme Court found that the initial reasons for denial given by Nietzel were lacking, and this court finds her current reasons are still lacking.8
As was held in Walpole,
Where a prison disciplinary hearing may result in ■ the loss of good time credits, Wolff held that the inmate must receive: (1) advance written notice of the disciplinary charges; (2) an opportunity, when consistent with institutional safety and correctional goals, to call witnesses and present documentary evidence in his defense; and (3) a written statement by the factfinder'of the evidence relied on and the reasons fcir the disciplinary action. 418 U.'S. at 563-567, 94 S.Ct. at 2978-2980.
Walpole, 472 U.S. at 451, 105 S.Ct. at 2768.
Upon review of Nietzel’s affidavit and supporting documentation, we. find Niet-zel’s findings do not meet the requirements ‘of Ramirez v. Nietzel. In order for Nietzel’s failure to permit Rodgers’s testimony, it must be shown that the denial was “logically related to preventing undue hazards to institutional safety or correctional goals.” Id. at 918. After reviewing the sealed record, it does not follow that permitting one of the known victims to testify on behalf of the accused would present any hazard tó institutional safety or correctional goals. Nietzel was charged with being the fact-finder, and it was her duty to weigh the evidence. Due process required her to consider Rodgers’s statements qnd/or testimony.
(B) Failure to Make Finding of Reliability of Confidential Information and Follow Policies and Procedures
*153Ramirez also argues that his due process rights were violated because Adjustment Officer Nietzel failed to. follow Kentucky Corrections Policies and Procedures and make a, specific independent finding that the confidential information was reliable. We agree. Ramirez cites Foley v. Haney, 345 S.W.3d 861 (Ky.App.2011), and Haney v. Thomas, 406 S.W.3d 823 (Ky. 2013), and Kentucky. Corrections Policies and Procedures,. Policy Number 9.18, in support of the requirement, of a finding of reliability of confidential information.
Thomas, the more recent opinion, addresses the requirement for a reliability finding as follows.
Notwithstanding this easily satisfied evidence threshold, such a determination becomes difficult in situations, as is before us, where the supporting evidence is based entirely on confidential information which is neither supplied to the reviewing court, nor discussed in .the Adjustment Committee’s report or findings. This comes disturbingly close to the inmate being adjudged guilty simply because the investigating officer says he or she is guilty. When the Adjustment Committee believes the informant’s information is reliable without giving any reasons for its faith in that evidence, we are faced with rubber stamping an arbitrary determination. ■ ,
Thomas at 826.
At no point does Adjustment Officer Nietzel make a finding regarding reliability of the confidential information she must have based her findings of guilt upon. In reviewing the sealed documents', only one inmate is cited by the investigative officer as having implicated Ramirez.9 Kentucky Corrections Policies and Procedures Policy Number 9.18(D)(7)(d) states: ■
If the adjustment officer or. committee decides that information given.by. a single confidential informant, is sufficient for finding/that the inmate committed the prohibited act, the adjustment officer or committee report shall include a statement giving the rationale for that decision. '
Therefore, we reverse the findings of the circuit court and void'the disciplinary proceeding; report aiid conviction-in question, and order restoration of any good time-credit'lóst and repayment to Ramirez of all sums paid for restitution in connection with the disciplinary proceeding.
ALL CONCUR.
. The memorandum to the Warden was never given to Ramirez, his assigned legal aide nor his attorney on appeal. This document was ultimately produced with a supporting affidavit of Adjustment Officer Nietzel after" this matter hád been first reviewed by the Kentucky Supreme Court. See Ramirez v. Nietzel, 424 S.W.3d 911 (Ky. 2014), However, this document was provided to the trial court and placed under seal. Our court has now thoroughly reviewed both the memorandum and the affidavit of Adjustment Officer Nietzel.
. A witness,, statement for the Adjustment . Hearing from Henry Rodgers, dated 10/9/2009 and signed by Rodgers, says that “I was behind the church & when the guys ran up on me, there was no mexican, [sic] they were all black & I don't know their names.” The statement was signed by Henry Rodgers and witnessed by Bobby Nation, the assigned legal aide. A notation, perhaps made by Adjustment Officer Nietzel, :was made on the statement as follows:
*This witness statement is being denied 1— was not obtained correctly, this was placed in the adjustment mailbox and the investigating officer did not do this! 2 — unduly hazardous to institutional safety- & correctional goals due to this I/M being the victim.
. This amount was later determined to be $556.17. Ramirez has paid this sum in full.
. Ramirez v. Nietzel, 424 S.W.3d 911 (Ky.2014).
. The assault was "the first in a chain of events culminating in a riot that severely damaged facilities at Northpoint Training Center." R. at 56. As a result of the post attack riot, the surveillance system in use at the time of the assault was damaged and has been replaced. Now, according to Nietzel, revealing the scope of the system at the time of the attack no longer presented a threat to institutional security. The cameras used for prison yard surveillance were fed to black and • white monitors in a central operations room. While the video feed was monitored, it was not continuously recorded. The recording capability was provided by a VHS recorder and in order to record the feed from a particular camera, an officer on duty had to manually select the camera feed to be recorded and activate the video recorder. Apparently, when the assault began the officers assigned to monitor the camera system rushed to the scene of the assault and in doing so either "failed to activate the recording system or failed to do so properly,” R. at 57. This resulted in no recorded video footage of the assault.
Nietzel asserted that, at the time of the disci-plinaiy hearing, she believed that; revealing the scope and .capability of the video surveillance system posed a potential risk to institutional security and that she "did not want to reveal the scope and capability of the video system either directly or in a manner that would permit inmates from inferring the scope and capability while making an explicitly false statement in her findings,” and that she “felt the best course was to deny access to the video recording as evidence.” Id. While she acknowledges that her statement could have been interpreted as inferring the exis*151tence of a video recording, she asserts that she never explicitly stated that a video in fact existed. At oral argument, counsel for Adjustment Officer Nietzel indicated that the rioting took place after the assault and before the hearing. Thus it is difficult to find the reason for the ruse of the existence of the security footage credible. Counsel for Ramirez was not told of the nonexistence of the security footage until sometime in 2014.
.Howev.er, the Court stated that merely parroting institutional safety in itself is not a sufficient explanation because institutional safety in itself is logically, related to institutional safety. Id. According to the court, this circularity would essentially make the inmate’s right to call witnesses a "privilege conferred in the unreviewable discretion of the [adjustment officer,]” resulting in the inability of an inmate to achieve even a "minimally meaningful” review of any action by the adjustment officer. Id.
. The court found that the. reason outlined by the adjustment officer does not need to be disclosed to the inmate, as in certain cases there may be a sound basis for refusing to tell the inmate why his witness was not permitted. Therefore, while the explanation is necessary, it may be performed in camera or under seal.
. As Adjustment Officer Nieztel’s affidavit and supporting documents are under seal, this court is somewhat limited in what it may discuss regarding this issue.
. Though this inmate’s name is listed in the investigative report, we shall not release his name as it is unnecessary to the'discussion of the legal issues herein. • | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284517/ | OPINION
COMBS, Judge:
This case concerns, the proper application of Kentucky’s prevailing , wage , law (Kentucky Revised Statutes. (KRS) 337.505-550). TECO Mechanical Contractor, Inc., appeals from an order of the Franklin Circuit Court entered July 18, 2013, and from an order of that court entered September 5, 2013, that denied its motion to alter, amend, or vacate. ‘ TECO contends that the court erred by denying its motion to vacate the' award of prejudgment interest, back wages, and penalties. After our review, we affirm.
TECO is .a mechanical contractor that provided contractor and subcontractor services on a number of public works projects. Pursuant to, statute, contracts for these projects required TECO to pay its employees no less than the- prevailing wage.1 KRS 337.510(1). In 2001, several TECO employees contacted the Kentucky Labor Cabinet and alleged that TECO had failed to pay them the prevailing wages for the work that they had performed. The employees asserted that TECO had paid them according to a formula under which it classified them as lower paid, general laborers for a fixed number of‘hours and as higher paid, skilled laborers for a fixed number of hours — regardless of the actual time spent working in each classification.
The Cabinet investigated the employees’ claims. After it audited TECO’s wage records from the projects in question, the Cabinet issued ten notices of violation to TECO and demanded that it pay back wages of $150,781.82 to its employees. TECO disputed the Cabinet’s determination and, following further investigation, the Cabinet reduced the amount of back wages owed to $77,571.69. Two of the employees eventually withdrew their claims against TECO, and the Cabinet further reduced its calculation of back wages to $63,494.21.
In December 2004, after a period of additional investigation and negotiation, the Cabinet advised TECO that it would compromise its position if TECO would agree to pay to its employees $47,620.65 in back wages and an additional $4,000.00 in civil penalties. TECO declined the offer. The Cabinet then contacted the prime contractors on the public works projects and demanded that they pay the back wages allegedly owed to TECO employees.
On March 30, 2005, TECO filed a complaint and petition for declaration of rights against the Cabinet in Franklin Circuit Court. TECO contended that the prevailing wage law violates due process requirements by authorizing the Cabinet to assess back wages and civil penalties without a hearing. TECO also argued that the prevailing wage law fails, to specify how workers should be'classified and, as a result, improperly delegates legislative or judicial authority to the Cabinet. The Cabinet responded by asserting counterclaims against TECO and by filing cross-claims against the prime contractors..
TECO filed a motion for summary judgment on both of its constitutional claims. The circuit court concluded that the prevailing wage law did not violate *156due process requirements and that' it..did not .provide for an improper delegation of legislative or.. judicial, authority to the Cabinet. Consequently, it. denied TECO’s motion for summary judgment. Following a bench trial on the Cabinet’s counterclaims, the court rendered a judgment against .TECO for $64,163.47 in back wages and $9,000.00 ($750 for each of the twelve employees who testified) ■ in civil penalties. The judgment was entered in 2008. TECO appealed that judgment.
On appeal, we affirmed the circuit court’s adverse ruling on TECO’s constitutional claims. However, with regard to the Cabinet’s counterclaims, we concluded that the circuit court had applied the incorrect standard of review and that it had improperly admitted hearsay evidence at trial.2.. Accordingly, we vacated the trial court’s judgment and remanded for appropriate findings using the. proper standard of review and omitting the hearsay evidence.
On remand, the circuit court reconsidered the evidence de novo. It specifically excluded from consideration the challenged hearsay — audit sheets prepared by the Cabinet on behalf of employees who did not testify. It also independently reviewed, for reasonableness the Cabinet’s method of classifying the disputed work activities. The circuit court evaluated the Cabinet’s decision to consider all the time that a skilled worker spent actually performing , his trade plus any time spent preparing for 'or cleaning up after the job — “work incident to trade.” The court construed the Cabinet’s decision as supporting compensation at the skilled laborer rate and found it to be wholly reasonable. It also held that the Cabinet had proven by a preponderance of the evidence that TECO had.violated Kentucky’s prevailing wage law by arbitrarily splitting its.employees’ work hours between a skilled and unskilled pay rate in using a predetermined formula. Omitting from consideration the hearsay evidence, the circuit court adjusted its judgment against TECO to $54,164.27 in back wages and $5,250.00 ($750 for each of the seven employees who testified) in civil penalties. It also awarded prejudgment interest' from December 2004. Its order was entered on July 18, 2013.
TECO filed a motion to alter, amend, or vacate. It argued that the court’s award of prejudgment interest pursuant to the provisions of KRS 360.010 was inequitable since the court had initially awarded only statutory interest from the date of entry of its first order. It also contended that the wage audit sheets prepared by the Cabinet for each of the complaining witnesses were inaccurate and should not' have been relied upon as competent evidence of wages earned. " TECO requested additional findings of fact. The circuit court rejected both arguments and denied the motion. This appeal followed.
.On appeal, TECO contends that the circuit court erred: by failing to conduct a new trial; by finding that TECO had violated the prevailing wage provisions; by considering incompetent evidence; by accepting the Cabinet’s work-incident-to-trade method of computing employee pay rates; and,by awarding pre-judgment interest on the employees’ back wages. We shall consider each of these issues in the order in which it was presented.
TECO contends that the circuit court should have granted a new trial on remand since it was impossible for the trial court *157to re-examine the evidence of record de novo to determine the appropriate rate of pay and the proper, method of classifying the work done by the complaining employees. It argues, that at a minimum, the trial court should have reopened the matter for additional evidence and testimony. We disagree.
In our opinion remanding, we observed’ as follows:'
[I]t appears from the trial' court’s judgment that it reviewed this matter for an abuse of discretion by the Cabinet. If the Act provided for and/or if TECO had received a hearing at the administrative level, then the trial court’s use of the abuse of discretion standard of review would have been appropriate. However, as noted above, that is not the case herein. While the Cabinet did conduct a thorough investigation, which included interviewing a number of TECO employees, there is no indication that TECO, received a full hearing at the Cabinet level. The first full hearing TECO re- ' ceived was before the trial court. As such [sic], the trial court should have' reviewed this matter de novo, as it would any other civil matter before it. Thus the ■ trial court was required to judge the credibility of witnesses and to independently weigh the evidence. Because we cannot confidently discern whether the trial court reviewed this matter de novo, we must remand to the trial court for findings under the appropriate standard of review. Note, we are not directing the trial court what conclusion it should reach. We are simply instructing the trial court to re-weigh the evidence using the appropriate standard. After doing so, the trial court may or may not reach the same conclusion regarding the Cabinet’s counterclaims.
Opinion at 21-23 (citations omitted).
TECO contends that our decision required the circuit court to make an independent determination as to what work was actually performed by .TECO employees and that this determination could only be made upon hearing evidence in a new trial. We disagree. In our. previous opinion, we held that TECO had received a. full and fair hearing before the trial court. We. directed the trial court only to reweigh the evidence of record in light of the proper standard of review. Nothing more was compelled — or .indeed permitted — by our decision. . . > '
Next, TECO contends that the trial court erred by finding that TECO had-miselassifiéd and underpaid the seven testifying employees in violation of the prevailing wage statutes. It asserts that the evidence was insufficient to support such a finding. We cannot agree..
The evidence of record was more than sufficient to demonstrate that TECO had violated Kentucky’s prevailing wage law. As noted in our previous opinion, the Cabinet presented live testimony of seven former TECO employees.' These witnesses testified that they were often paid at the general laborer rate when performing skilled work. The witnesses who testified about the completion of their time cards indicated that they were told to list a certain number of hours as skilled work and a- certain number of hours as general labor — regardless of the actual time spent performing each type of work. Based upon this evidence, in part,-the trial court concluded that TECO had violated prevailing wage standards. The evidence was wholly sufficient to justify the conclusion. There was no error.
Next, TECO contends that the trial court erred by considering incompetent evidence, specifically, the numerous wage audit sheets prepared by the Cabinet during its investigation of the employees’ claims. *158At- trial, TECO objected to the admission of the wage audit sheets related to employees who were not listed as witnesses since the audit sheets contained information derived from employee interviews that would constitute hearsay. Upon our initial review, we agreed that the audit forms amounted to inadmissible hearsay as to the employees who were not called to testify. However, we directly noted that any hearsay concerns inherent in the audit forms prepared for employees who did testify at trial were cured by the testimony of those employees and the investigators; We specifically authorized the trial court’s consideration of the unchallenged audit sheets in our initial opinion.
The law of the case doctrine is “an iron rule, universally recognized, that an opinion or decision of an appellate court in the same cause is the law of the case for a subsequent trial or appeal....” Union Light, Heat & Power Co. v. Blackwell’s Adm’r, 291 S.W.2d 539, 542 (Ky.1956). That doctrine is the mechanism by which matters once litigated and finally determined remain so. We held in our previous opinion that the unchallenged audit sheets could properly be considered by the trial court. We are precluded from reconsidering that decision at this juncture.
Next, TECO argues'that the ¡trial court erred by applying the work-incident-, to-trade method of computing employee pay rates. TECO contends that the method is contrary to law, industry practice, the technical specifications for- the public works projects, and the treatises relied upon by the Cabinet. However, our review indicates that the trial court fully and fairly analyzed the issue in accordance with our directive on remand based upon the evidence before it.
In our initial opinion, we concluded that the trial court had erred by deferring to the Cabinet’s use of the work-ineident-to-trade method to classify employees. Consequently, we directed the court upon remand to review,' de novo, the issue-of whether the'Cabinet’s use of this method of classification was reasonable.
Upon remand, the trial court conducted its review de novo and was persuaded that the Cabinet’s position was reasonable. The trial court was convinced that when an employee undertakes work incidental to his skilled labor, the incidental work is so intertwined with the skilled labor that it ought to be compensated at the ‘skilled rate as opposed to the laborer rate. The trial court’s judgment cannot be disturbed on this basis. ,
Finally, TECO- contends that the trial court erred by ordering pre-judgment interest on the back wages awarded. Again, we disagree.
In its order entered July 18, 2013, the trial court cited to our decision in Reliable Mechanical, Inc. v. Naylor Industrial Services, Inc., 125 S.W.3d 856, 858 (Ky.App.2003), and concluded that:
an award of compound prejudgment interest in this case does not constitute a punitive reprisal ... [rfether .it is an equitable means of recognizing the economic reality that [TECO] has enjoyed a long opportunity to earn interest on the money that it wrongfully withheld.
On appeal, TECO’s primary claim is that since prejudgment interest was not awarded by the court in its 2008 judgment and the Cabinet did not then appeal the failure to award prejudgment interest, the award is not justified now and that' the Cabinet either waived the issue or' prejudgment interest is barred by the law-of-the-case doctrine. Alternatively, TECO argues that since the amount of damages was unliquidated, prejudgment interest is not warranted. We disagree with both of these contentions.
*159Regardless of the trial court’s silence ■with respect; to án award of prejudgment interest in its initial judgment entered in 2008, the original award made pursuant to the Cabinet’s counterclaims was vacated. Moreover, no ruling on the issue of prejudgment interest was either implicated or considered in reaching our decision on the merits of'TECO’s claims on appeal. On remand, the trial court concluded that the equities had plainly shifted in favor of an award of prejudgment interest since the “employees whose wages were wrongfully withheld have been waiting for almost a decade to receive the compensation owed.” Order Denying Motion to Alter, Amend or Vacate, September 5,2013.
An award of prejudgment interest .in this matter was an issue properly entrusted to the sound discretion of the trial court. Nucor Corp. v. General Elec. Co., 812 S.W.2d 136 (Ky.1991). While prejudgment interest may or may not have been appropriate to the original award in this case, it may well have been appropriate to the trial court’s revised award. ’ Under these circumstances, instead of being the law of the case, an award of prejudgment interest was properly considered anew on remand. Exercising its considerable discretion, the trial court concluded that the equities now dictated the propriety of an award of prejudgment interest. The trial court did not abuse its discretion by concluding that fundamental issues of fairness justified an awárd óf prejudgment interest.
The judgment of the Franklin Circuit Court is affirmed.
ALL CONCUR.
. Prevailing wage rates for each classification of construction workers are established by the Kentucky Labor- Cabinet. KRS 337:520(1). The rates are incorporated into every public authority's bid documents and project specifications so that contractors bidding on the project are aware of the wage rates and can properly project their labor costs.
. TECO ‘sought discretionary review, of our ruling concerning its constitutional claims. Upon review, the Supreme Court of Kentucky affirmed. Neither TECO nor the Cabinet sought discretionary review of our ruling regarding the Cabinet’s counterclaims. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284526/ | OPINION
J. STEYEN STAFFORD, P.J., W.S.,
delivered the opinion of the .Court,
in which ARNOLD B. GOLDIN, J., and KENNY ARMSTRONG, J., joined.
In this grandparent visitation case, the trial court awarded grandparents visitation with the child at issue,1 finding that there was “some deprivation”, of visitation by the child’s mother./ We vacate the judgment of the trial court and remand for further proceedings to determine whether. the child’s mother opposed visitation, as that phrase is defined in Huls v. Alford, No. M2008-00408-COA-R3-CV, 2008 WL 4682219 (Tenn.Ct.App. Oct. 22, 2008).
Background
Frank Manning (“Grandfather”) and Brenda Manning (“Grandmother,” and together with Grandfather, “Grandparents”) are the paternal grandparents of the child at issue. The child’s mother, Amy Emmitt Manning (“Mother”) and the child’s father (“Father”) were married after the child was born and subsequently divorced.1 Father .was convicted of stalking Mother and has no visitation with the ■ child. It is undisputed that Father has been in and out of jail throughout the child’s life.
After the alleged deterioration of. the relationship between Grandparents and Mother, Grandparents filed a petition for grandparent visitation on October 18, 2013. Grandparents’ petition alleged that Mother opposed their once frequent visitation with the child and asked that the trial court award them visitation “on a monthly basis on the weekends, time during summer, *254spring and fall breaks.” Grandparents also requested a pendente lite hearing to determine if they should be awarded temporary visitation pending the final resolution of the case.
Mother filed an Answer on October 31, 2012, denying that Grandparents were entitled to court-ordered visitation. In her answer, Mother argued, inter alia, that Grandparents’ petition was .merely a subterfuge to allow Father to obtain visitation with' the child,2 and that she had never opposed visitation solely with Grandparents. On November 8, 2013, Mother filed a motion to dismiss Grandparents’ request to hold a pendente lite hearing, which was granted by the-trial court by' order of February 13, 2014.
A trial was held on April 4, 2014. The child was nearly six years old at the time of trial. The testimony as trial was undisputed that Mother, her older child, and the child at issue resided with Grandparents for approximately twelve months shortly after the child’s birth, from August 2008 to August 2009. Father was incarcerated during much of this time. Even after Mother moved from Grandparents’ home, however, Grandmother would babysit the child three days a week. In addition, Mother would visit Grandparents frequently and often stay overnight with the child. Even after Mother stopped her frequent overnight visits with Grandparents, Grandparents enjoyed frequent visits with the child, and kept him overnight often. In addition, until the child began school, Grandmother kept the child for two days during the week while Mother worked. Grandmother also testified that Mother and the child resided with Grandparents from July 2010 to February 2011, but Mother disputed that this occurred.
A central issue in the case is whether Mother opposed visitation. It was undisputed that Grandparents have had no overnight visitation with the child since June 2012. Grandmother testified that she frequently requested visitation with the child, but that Mother always responded that the child had plans. In contrast, Mother testified that Grandparents called infrequently to request visitation, but that when Grandparents did request visitation, Mother and the child’s schedule could not accommodate the visitation. In addition, Mother testified that Grandparents only requested overnight visitation with the child and when Mother would suggest visitation at a park or a restaurant, Grandparents declined.
Although Grandparents were no longer permitted overnight visitation with the child after June 2012, Grandparents enjoyed frequent trips to the child’s school for lunch during the 2012-2013 school year. On September 23, 2013, however, the child’s school sent a letter home that stated that only those individuals who were listed as the child’s emergency contacts would be permitted to have lunch at school with the child. Because Mother refused to permit Grandparents to be listed as emergency contacts for the child, they were no longer allowed to eat lunch with him at school. ;•.
Mother testified that she refused to allow-Grandparents to be listed as emergency contacts, because this privilege would allow Grandparents to remove the child from school. Mother testified to an incident in the previous school year in which Grandmother and Mother had a misunderstanding as to whether Grandmother would pick the child and his older sister up from school. As such, Grandmother picked the child up from school without Mother’s knowledge, which Mother testi-*255fíed caused her significant anxiety because, for a period of time, she was unaware of where the children were. Grandmother did not deny that this incident occurred, but characterized the incident as a minor mis-communication. According to Grandmother, she and Mother previously discussed that Grandmother would retrieve the children from school. While Grandmother was away from home during the day, Mother called and left a message that Grandmother should not retrieve the children. Grandmother testified that she did not receive the message and proceeded to pick up the children as previously requested. Once- Grandmother learned that she was not -supposed to pick up the children, Grandmother testified that she immediately returned the children to their Mother. Grandmother testified that as a result of this incident and Mother’s refusal to name Grandparents as the child’s emergency contacts, Grandparents were unable to have lunch with the child during the 2013-2014 school year. Grandmother further testified that she was informed by the school that Mother could designate that Grandparents -could have lunch with the child even without naming Grandparents as emergency contacts. Mother denied that this was an option.
Finally, Mother testified that there have been no adverse effects to the child since the child has been spending less time with Grandparents. Specifically, Mother testified that the child’s sleeping and eating habits were not altered after the-reduction in visitation, that the child was performing well- in school, and that the child was a happy, normal child. Further, testimony showed that Grandparents still have considerable -Contact with their son, who Mother testified is involved - with illegal drugs. Accordingly, Mother testified that it frightened her for the child to be around Father. Grandmother testified that so long as the court orders that Father is not allowed visitation with the child, Grandparents will follow ■ that -order and will not permit Father to be. around the child. Mother expressed no concerns about the child’s safety exclusively with regard to Grandparents.
At the conclusion of trial, the trial court took the matter under advisement. The trial court entered a lengthy written order on May 8, 2014, In the order, the trial court found that Grandparents established that the child had resided with Grandparents for twelve consecutive months prior to the cessation of the relationship by Moth-ér. As such, the trial court ruled that Grandparents weré entitled to “a rebutta-ble presumption that denial of visitation may result in irreparable harm to the child.” The trial court further concluded that no evidence was presented that rebutted the-.presumption. The trial court further concluded that Grandparents demonstrated that because of the central role that Grandparents played in the child’s life, Grandparents had shown that the child would suffer substantial harm through .the cessation, of the relationship. Finally, the trial court, expressly considering the factors outlined in Tennessee Code Annotated Section 36-6-307, found that continued visitation with Grandparents was in the child’s best interests. Accordingly, the trial' court awarded Grandparents visitation with the child one Friday evening every month arid one continuous five-day peridd during the summer.
Mother filed a motion to alter or amend the trial court’s ruling on May 20, 2014. On the same day, Mother filed á motion to stay the trial court’s judgment pending resolution of the pending motion to alter or ariiend. • The trial court denied Mother’s motion to alter or amend on June 4, 2014. However, the trial court held that Rule 62.02 requires that its judgment be stayed for thirty days after the resolution of a *256motion to alter or amend. Thereafter, on June 13, 2014, Mother filed an additional motion in the trial court, this time requesting a stay of the trial ■ court’s judgment pending appeal. The trial court entered an order on August 15, 2014, granting Mother’s request for a stay pending appeal.
Issues Presented
Mother raises several issues on appeal, which are taken, and slightly restated, from her brief:
1. Whether the trial court erred in not dismissing, the Grandparent’s petition because, testimony shows that Mother did not oppose visitation?
2. Whether the trial court erred in finding pursuant to Tennessee Code Annotated Section 36-6-306(a)(5) that the child resided with the Grandparents for 12 consecutive months prior to the cessation of the relationship by Mother?
3. Whether the trial court erred in finding that the denial of visitation resulted in irreparable harm to the child? '
4. Whether the trial court erred in finding that Grandparents carried the burden to prove severe emotional harm to the .child due to the loss of the grandparent-grandchild relationship pursuant to . Tennessee Code Annotated Section 36-6-306(b)(3)?
5. "Whether the trial court erred in finding that grandparent visitation is . , in the best interests of the child pursuant to Tennessee Code Annotated Section 36-6-307? ,.
• 6. Whether Mother should be awarded her attorney’s fees incurred at trial and on appeal? - In the posture of Appellees, Grandparents also request an award of attorney’s fees on appeal.
Standard of Review
Review of findings of fact, by a trial court in civil actions is de novo upon the record of the trial court, accompanied by a presumption of the correctness of the findings, unless the preponderance of the evidence is otherwise. Tenn. R. App. P. 13(d); In re Taylor B.W., 397 S.W.3d 105, 112 (Tenn.2013). A determination of visitation “often hinges on subtle factors such as the [parties’] demeanor and credibility during the trial proceedings.” Battleson v. Battleson, 223 S.W.3d 278, 282 (Tenn.Ct.App.2006). “When credibility and weight to be given testimony are involved, considerable deference must be afforded to the trial court when the trial judge had the opportunity to observe the witness’ demeanor and to hear, in-court testimony.” Morrison v. Allen, 338 S.W.3d 417, 426 (Tenn.2011).
Discussion
The issue^ in this' case concerns grandparent visitation, which is governed by Tennessee Code Annotated Section 36-6-306, commonly known as the Grandparent Visitation Statute. .-As this Court has explained, an understanding of the importance of a parent’s fundamental right to raise a child as the parent sees fit is foundational to any discussion of grandparent visitation:
Some background on grandparent visitation is helpful. The decisions of the U.S. Supreme Court and the Tennessee Supreme Court, interpreting the federal ■and state constitutions, explicitly prohibit any judicial assumption that grandparent/grandchild relationships always' benefit the child, as contrary to the parents’ fundamental right to raise their children as they see fit. See Troxel v. Granville, *257530 U.S. 57, 66-72, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (recognizing parents’ fundamental constitutional right to make decisions on care, custody and control of children, finding trial court erred in presuming grandparent visits are in best interest of children); Hawk v. Hawk, 855 S.W.2d 573, 577-82 (Tenn.1993) (recognizing parents’ fundamental constitutional right, finding trial court engaged in “sentimental” commentary on grandparents and erred in “unquestioning judicial assurription” that grandparent-grandchild relationship always benefits child, basing award of grandparent visitation on that presumed benefit). To avoid such an assumption, the Tennessee constitution and Tennessee’s 'grandparent visitation statute' require a grandparent seeking visitation to prove, as a threshold requirement, that the child will be in danger of substantial harm if visitation is not ordered by the court. Hawk, 855 S.W.2d at 581; Tenn. Code Ann. § 36-6-306.(b)(l). Both the federal constitution, and Tennessee’s grandparent visitation statute require the petitioning grandparent to show that visitation was opposed or denied in order for the court to consider ordering visitation. Troxel, 530 U.S. at 71, 120 S.Ct. 2054 (trial court erred in giving no weight to fact that parent had assented to some grandparent visitation under certain conditions); Huls v. Alford, No. M2008-00408-COA-R3-CV, 2008 WL 4682219, at *7-8 (Tenn.Ct.App. Oct. 22, 2008) (in light of parents’ fundamental right, Tennessee grandparent visitation statute “is not implicated” unless visitation is denied or opposed). Under Trox-el, pursuant to the federal constitution, in all phases of a proceeding on grandparent visitation, there is a presumption that a fit parent is acting in the child’s best interest, and the court must accord special weight to the parent’s determinations. Troxel, 530 U.S. at 68, 70, 120 S.Ct. 2054 (plurality opinion) (“there is a presumption that fit parents act in the best interests of their children.”) (if a fit •parent’s decision on grandparent visitation “becomes subjected to. judicial.review, the court must accord at least some special weight-to the parent’s own determination.”).
Green v. Evans, No. M2011-00276-COA-R3-CV, 2012 WL 1107887, at *8 (Tenn.Ct.App: Mar. 30, 2012). Thus, “[gjrandparent visitation "statutes must be narrowly construed in order to comport with the state and federal constitutions, because they are in derogation of the parents’ fundamental constitutional rights.” Spears v. Weatherall, 385 S.W.3d 547, 550 (Tenn.Ct.App. 2012).
In order to protect parents’ fundamental right to the care and custody of their children, Tennessee Code Annotated Section 36-6-306 includes several procedural hurdles that must be met before-petitioning grandparents may be awarded yisitation under the statute, the first, of which is whether “such grandparent visitation is opposed by the custodial parent.” TenmCode Ann. § 36-6-306(a). The Tennessee Supreme Court has indicated that this hurdle is not only statutorily required, but necessary to ensure that the grandparent visitation scheme comports with a parent’s constitutional rights:
Allowing a grandparent to procure visitation without first requiring a showing of harm to the. child if such visitation is denied not .only violates section .36-6-306(b)(1) which specifically requires such a showing, it also constitutes an infringement on.the fundamental rights of parents-to raise their, children as they see fit. ;
Smallwood v. Mann, 205 S.W.3d 358, 363 (Tenn.2006) (emphasis added). As ex*258plained by the Middle Section of this Court in Huls v. Alford, No. M2008-00408-COA-R3-CV, 2008 WL 4682219 (Tenn.Ct.App. Oct. 22, 2008), there can be no danger of substantial harm unless visitation is denied by the custodial parent:
As set forth above, the very language of Tenn.Code Ann. § 36-6-306 is such that the statute is not implicated unless “visitation is opposed by the custodial parent or parents.” As is. clear from Small-wood, there cannot be “the presence of a danger of substantial harm to the child” as required by the statute unless visitation is denied. Without a denial of visitation, there simply cannot be any resulting “danger of substantial harm to the child.”
Huh, 2008 WL 4682219, at. *8. Thus, this Court has held that petitioning grandparents “as a threshold matter” bear the burden of proving that the custodial parents opposed their visitation. Uselton v. Walton, No. M2012-02333-COA-R3-CV, 2013 WL 3227608, at *12 (Tenn.Ct.App. June 21, 2013). Without this threshold finding, “the Grandparent Visitation Statute is nót even implicated])]” Id. (citing Huh, 2008 WL 4682219; at *8).
Because of the relatively recent enactment of the Grandparent Visitation Statute, few courts have considered the issue of what proof is required to show that a custodial parent opposes visitation. This Court in Huls v. Alford, attempted to clarify when opposition may be found. See Huh, 2008 WL 4682219, at *8. In Huh, the trial court awarded petitioning grandparents very liberal visitation. 'This Court reversed the'trial court’s ruling, however, concluding thát petitioning’ grandparents failed to meet their burden of demonstrating that the child’s mother opposed visitation. In reaching its decision, the Court first emphasized that the trial court made no “specific finding that either of the parents were opposed to [the] [p]etition[ing] [grandparents] having visitation with the [c]hild.” Id.
The Court further found that the child’s mother’s decision to impose limitations on the petitioning grandparents’ visitation did not amount to a denial of visitation. Id. Specifically, in Huh, the petitioning grandparents frequently requested overnight visitation, with the child on weekends. When the child’s mother indicated that she would permit the day-time visitation so long as mother’s boyfriend could be present, the petitioning grandparents declined to exercise visitation. Id. at *3. The Court of Appeals concluded that imposing limitations and conditions on once liberal visitation does not necessarily support a finding that a custodial parent opposed visitation. Instead, the Court explained:
The term “opposed” includes situations both where visitation is denied totally and where visitation is technically not opposed, but where the frequency and/or conditions imposed by the parents on the visitation are such that it equates to a denial of visitation.
Huh, 2008 WL 4682219, at *8. Consequently, a finding that the custodial parents . “did not allow [p]etition[ing] [grandparents] visitation whenever they requested it” simply does not “amount to a finding that visitation was opposed[.]” Id. As the Court explained: “While the .[t]rial [c]ourt did point out that [m]other did not allow [the] [p]etition[ing] [grandparents] visitation whenever they requested it, this does not amount to a finding that visitation was opposed or that [p]arents have attempted to sever the relationship between [the] [p]etition[ing] [grandparents] and the Child,” Id. As such, the Court of Appeals reversed the trial court’s finding that petitioning grandparents could *259rely on the Grandparent Visitation Statute.
In a similar case, Uselton v. Walton, the Court of Appeals also reversed a trial court’s finding that the Grandparent Visitation Statute had been triggered, instead concluding that the evidence showed that the child’s custodial parent did not oppose visitation by the petitioning grandparents. Uselton, 2013 WL .3227608, at *7-* 13. In Uselton, the child’s mother reduced petitioning grandparents’ visitation, which had previously been “a few times during the week and to have at .least, one overnight visit with her on weekends” to about one weeknight visit per week and one overnight visit eveiy other weekend. Petitioning grandparents argued that this reduction and certain other “stipulations” imposed by the child’s mother amounted to a denial of visitation. Id. at *13.
The trial court found that “there was circumstantial evidence to establish* • that there was some opposition to visitation.” Id. at *7. The Court of Appeals reversed, concluding that simply because petitioning grandparents no longer were permitted to have as generous visitation with the -child was insufficient to show opposition- to visitation. Id. at *13.3 The Court of Appeals further concluded that the 'custodial parent’s motivation for a decrease in visitation was not a particularly relevant consideration, as “the State, in the form of the-trial judge, must resist ■ the urge to become ‘super-parent;’ ... because the Due Process Clause does not permit a State to infringe on the fundamental right of parents to make childrearing decisions simply because a state judge believes a better decision could be made.” Id, at *13 n.12 (citing Troxel v. Granville, 530 U.S. 57, 72-73, 120 S.CL 2054, 147 L.Ed.2d 49 (2000)).
A thorough review of the record reveals that like in Huls, the trial court made no specific finding that Mother opposed visitation in this case. It is well settled that, in bench trials like the one in this case, courts must make findings of fact and conclusions of law to support their rulings. Rule 52.01 of the Tennessee Rules of Civil Procedure provides, in pertinent part:
In all.actions tried upon the facts without a-jury, the court shall find the facts specially and shall state, separately its conclusions of law and direct the entry of the. appropriate judgment. The findings of a master, to the extent that the court adopts them, shall be. considered as the findings of the court. If an opinion or memorandum of decision is filed, it will be sufficient if the findings of fact and conclusions of law appear therein.
Id. Prior to July 1, 2009, when the Huls case was decided, trial courts were only required to make specific findings of fact and conclusions of law “upon request made *260by any party prior to the entry of judgment.” See Poole v. Union Planters Bank N.A., No. W2009-01507-COA-R3-CV, 387 S.W.3d 771, 791 (Tenn.Ct.App.2010) (noting the amendment). However, the current version of Rule 52.01 requires the court to make these findings regardless of á request by either party. Id,
This Court has previously held that the General Assembly’s decision to require findings of fact and conclusions of law is “not a mere technicality.” In re K.H., No. W2008-01144-COA-R3-PT, 2009 . WL 1362314, at *8 (Tenn.Ct.App. May 15, 2009). Instead, the requirement serves three important purposes: to facilitate appellate review, to “make definite precisely what is being decided by the case,” and “to evoke care on the part of the trial judge in ascertaining and applying the facts.” Lov-lace v. Copley, 418 S.W.3d 1, 34-35 (Tenn. 2013). “Without such findings arid conclusions, this court is left to wonder on what basis the court reached its ultimate decision.” In re K.H., 2009 WL 1362314, at *8 (quoting In re M.E.W., No. M2003-01739-COA-R3-PT, 2004 WL 865840, at *19 (Tenn.Ct.App. April 21, 2004)). Without findings of fact, we cannot discern the basis for the trial court’s ruling, “and we are unable to afford appropriate deference to the trial court’s decision.” In re Con-nor S.L., No. W2012-00587-COA-R3-JV, 2012 WL 5462839, at *4 (Tenn.Ct.App.Nov. 8, 2012).
Generally, the appropriate remedy when a trial court fails to make appropriate findings of fact and conclusions of law pursuant'to Rule 52.01 is to “vacate the trial court’s judgment and remand the cause to the trial court for written findings of fact and conclusions of law.” Lake v. Haynes, No. W2010-00294-COA-R3-CV, 2011. WL 2361563, at *1 (Tenn.Ct.App. June 9, 2011). In some cases, however, this Court has indicated that we may “soldier on” with our review-despite the trial court’s failure to comply with Rule 52.01:
On occasion, when a trial judge fails to make findings of fact and conclusions of law, the appellate court “may ‘soldier on’ when the case involves only a clear legal issue, or when- the' court’s decision is ‘readily ascertainable.’ ” Hanson v. J.C. Hobbs Co., Inc., No. W2011-02523-COA-R3-CV, 2012 WL 5873582, at *10 (Tenn.Ct.App. Nov. 21, 2012) (quoting Simpson v. Fowler, No. W2011-02112-COA-R3-CV, 2012 WL 3675321, at *4 (Tenn.Ct.App. Aug. 28, 2012)),
Pandey v. Shrivastava, No. W2012-00059-COA-R3-CV, 2013 WL 657799 (Tenn.Ct.App. Feb. 22, 2013).
Grandparents argue that the trial court made sufficient findings to avoid remand. In the best interests portion of the final order, the trial court states:
The Court finds that there has been some..deprivation .of visitation by the Mother. , Specifically, the. Mother informed the grandchild’s school not' to allow lunch with the child beginning with the 2013 school year. Also, the lack of visitation that has existed due to the fact that, the child’s schedule did not permit visitation amounts to a denial or deprivation of visitation by this Court. The parties testified that there have not .been any significant visitations and the lack of communication on both sides has played a significant role in that fact. The Court finds- that this factor weighs in favor of the Grandparents.
We respectfully disagree that the above findings are sufficient to conclude that the trial court found that Mother opposed visitation,. as that requirement.is defined,by Tennessee Courts.
First, we note that the simple fact that there has been “some deprivation” of visitation is insufficient to support a finding *261that a custodial parent opposed visitation. Instead, the law is clear that the custodial parent is entitled to place “reasonable limitations” on a grandparent’s visitation with a child, as “reasonable limitations ... ‘cannot be considered opposition to visitation.’ ” . Uselton, 2013 WL 3227608, *13 (quoting Green, 2012 WL 1107887, at *10). The issue of whether Mother offered Grandparents visitation with reasonable limitations, so as to defeat Grandparents’ claim that Mother opposed visitation, was a source , of considerable dispute in the trial on this cause. This issue was left unresolved by the trial court’s order. The question remains, however, as to whether, the trial court’s failure to make specific findings regarding this dispute is fatal to appellate review. We conclude that it is.
While in both Huís and Uselton, this Court was able to “soldier on” to consider the merits of petitioning grandparents’ request in spite of the trial courts’ failure to make specific findings of opposition to visitation, the facts in this case do not lend themselves to the same resolution. Specifically, in both Huís and Uselton, the parties agreed that although the custodial parent had significantly decreased the petitioning grandparents’ visitation with the child, the petitioning grandparents were able to exercise some visitation with the child prior to the filing of the petitions. Here, howevér, a significant dispute exists as to whether Mother offered Grandparents any visitation with the child, as well as to whether Grandparents refused such offer.
Specifically, Mother testified at trial that although she no longer allowed the child to have overnight or unsupervised visits with Grandparents,4 she did not oppose all visitation- and had even offered to allow Grandparents to have visitation with -the child at a-park or-restaurant. Mother testified, however, that Grandparents declined that.offer and instead only wanted overnight, weekend visitation with the child. Grandparents did not dispute Mother’s assertion that she offered Grandparents supervised visitation or that Grandparents had declined such offer; neither Grandmother nor Grandfather’s testimony specifically mentions either Mother’s alleged offer or their response. However, from our review of the record. Grandmother often characterizes her unsuccessful attempts to have visitation with the child as a request to “have him for the weekend,’’ and indicates that Mother would not allow Grandparents to “keep” the child. Both statements tend to support Mother’s assertion that Grandparents only requested overnight or unsupervised visitation with the child. In addition, when asked what kind of visitation the trial court should award, Grandmother responded that Grandparents should be awarded “at least a weekend, with him, overnight.” Grandmother clarified,, howeyer,.-that she would accept less visitation if ordered by the. trial court.
The trial court did not mention Mother’s testimony regarding her offer to allow Grandparents supervised visitation with the child in its final order. Mother’s testimony, however, goes- directly to the question' of whether Mother opposed visitation or, instead, placed reasonable limits on the visitation. Grandparents do not specifically contradict Mother’s testimony; however, the thrust of their argument appears to be that Mother denied them any visitation. Accordingly, even considering the testimo*262ny in the light most favorable to the Grandparents, the parties’ positions on this issue are directly contradictory. Consequently, the resolution of this issue is dependent on the relative credibility of the parties.
When the resolution of an issue in a case depends on the truthfulness of witnesses, the trial judge who has had the opportunity to observe the witnesses and their manner and demeanor while testifying is in a far better position than this Court to decide those issues. See Whitaker v. Whitaker, 957 S.W.2d 834, 837 (Tenn.Ct.App.1997); McCaleb v. Saturn Corp., 910 S.W.2d 412, 415 (Tenn.1995). “The weight, faith, and credit tó be given to any witness’s testimony lies in the first instance with the trier of fact, and the credibility’ accorded will be given great weight by the appellate court.” Mach. Sales Co., Inc. v. Diamondcut Forestry Prods., LLC, 102 S.W.3d 638, 643 (Tenn.Ct.App.2002) (emphasis added). In this case, the trial court made no specific credibility findings with regard to the parties. While in some cases, we may assume that the trial court found one party more credible than another due to the trial court’s decision, see generally Taylor v. McKinnie, No. W2007-01468-COA-R3-JV, 2008 WL 2971767, at *4 (Tenn.Ct.App. Aug. 5, 2008) (considering the standard of review-of an implicit credibility finding), the trial court’s ruling that “some deprivation” occurred causes this Court to question whether, the trial court applied the correct standard in deciding this issue. Further, the trial court appears to credit much of Mother’s testimony regarding the child’s schedule as the reason for the decrease in visitation. Because the trial court’s order makes no mention of Mother’s assertions on this particular issue, we cannot determine from the record whether the trial court discredited Mother’s testimony regarding her offer of supervised visitation, or whether the trial court simply concluded that despite this offer, the lack of visitation alone was sufficient to find that the Grandparent Visitation Statute is triggered. Under 'these circumstances, we conclude that the trial court is in the better position to decide this issue.
Based on the foregoing, the question of whether Mother, in fact, offered Grandparents supervised visitation, whether that offer was reasonable, and whether Grandparents declined that visitation, must be resolved in order to determine whether Mother’s actions can be fairly characterized as opposing visitation, as defined by Tennessee caselaw. As previously discussed, the record must support a finding that the custodial parent opposed visitation in order to “even implicate[ ]” the Grandparent Visitation Statute. Uselton, 2013 WL 3227608, at *12. Because the resolution of this question may alone result in Grandparents’ petition being denied, we decline to consider the trial court’s other findings under the Grandparent Visitation Statute as advisory. See Colonial Pipeline Co. v. Morgan, 263 S.W.3d 827, 838, (Tenn.2008) (“Courts ... may not render advisory opinions based on hypothetical facts.”) (citing Third Nat’l Bank v. Carver, 31 Tenn.App. 520, 218 S.W.2d 66, 69 (Tenn.Ct.App.1948)). Mother’s other issues related to the trial court’s findings are, therefore, pretermitted.
Attorney’s Fees
Both parties request an award of attorney’s fees on appeal. Mother’s brief cites no law that would support her request for attorney’s fees in this case.5 In their brief, Grandparents point out that Mother has *263cited an insufficient basis for her request, but also fail to cite any law which would entitle therh to attorney’s fees on appeal'.6 As such, both Mother’s and Grandparents’ arguments are waived. See Branum v. Akins, 978 S.W.2d 554, 557 n. 2 (Tenn.Ct.App.1998) (“Where a party makes no legal argument and cites no authority in support of a position, such issue is deemed to be waived and will not be considered on appeal.”).
Conclusion
The judgment of the Chancery Court of Maury County is vacated and this cause is remanded to the trial court for further proceedings in accordance 'with this Opinion. Costs of this appeal are taxed one-half to Appellant Amy Emmitt. Manning, and her surety, and one-half to Appellees Frank Manning arid Brenda Manning, for all of which execution may issue if necessary.
. Mother also has an older child from a prior relationship that is not at issue in this case.
. Mother appears to have abandoned this argument at trial.
. In Uselton, there was some .evidence presented at trial that the child's mother indicated that she would no' longer allow visitation after an incident that occurred after the filing of the grandparent visitation petition. ■ See Uselton, 2013 WL 3227608, at *13. The majority Opinion held, however, that any opposition that may-have occurfed after the filing of the petition was not relevant. Id-. Judge Highers filed a dissenting Opinion in Uselton on this issué, stating that in his view of the Grandparent Visitation Statute, the trial court . was entitled to consider both pre-petition and post-petition facts concerning the custodial parent's opposition to the visitation. See Uselton, 2013 WL 3227608, at *17-*20 (Highers, J., dissenting) ("Nothing is gained in this case by distinguishing opposition that occurred before the petition was filed and opposition that occurred within three to four days after the petition was filed.”). Neither party in this case particularly relies on any facts that occurred subsequent to the filing of the ■grandparent visitation petition; accordingly, we need not determine whether the court . should consider post-petition facts.
. Mother explained that her reluctance to allow Grandparents unsupervised visitation with child was due to the fact that the child had not seen Grandparents in several months at the time of trial. Mother further indicated that she was more comfortable with supervised visitation because she could ensure that Father was not present for the visits.
. The only , case cited in this section of Mother’s brief concerns attorney’s fees awarded incident to a divorce. See Seaton v. Seaton, 516 S.W.2d 91, 93 (Tenn.1974). Mother *263makes no argument as to how the above case applies to the case-at-bar.
. Grandparents note that the Court in Uselton denied attorney’s fees to petitioning grandparents in a grandparent visitation case because the petitioning grandparents did not prevail. See Uselton, 2013 WL 3227608, at *16. However,-nothing in.Uselton specifically,indicates that prevailing grandparents are entitled to an award of attorney's fees. As such, it offers no support for Grandparents’ request. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284518/ | ORDER
PER CURIAM.
Willis Smith-Nunley (Defendant) appeals the judgment of conviction entered by the Circuit Court of the City of St. Louis after a jury found him guilty of one count of murder in the second degree, two counts of armed criminal action, and one count of robbery in the fust degree. Defendant claims that the trial court plainly erred in: (1) admitting into evidence a 911 telephone call containing testimonial statements; and (2) entering judgment and sentencing him for two counts of armed criminal action in violation of double jeop- ■ ardy principles.
We have reviewed the briefs of the parties and the record on appear 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 30.25(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284519/ | ORDER
PER CURIAM.
Lashonda Cole appeals the judgment denying her Rule 24.035 motion for post-conviction relief without an evidentiary hearing. We find that the motion court’s findings of fact and conclusions of law are not clearly erroneous.
No jurisprudential purpose would be served by a written opinion. We have, however, provided the parties a memorandum setting forth the reasons for our decision. The judgment of the motion court is affirmed under Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6125644/ | Motion for leave to appeal to the Court of Appeals denied. | 01-04-2023 | 02-04-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284522/ | ORDER
PER CURIAM.'
Brian Burkett and Jeffrey Hales, Jr. (“Appellants”) appeal from the trial court’s judgment finding Josef and Maire Rohlik acquired certain real property through adverse possession. The Rohliks cross-appeal, arguing the' trial court’s award of an easement by necessity to Appellants was improper.
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 principles of law would have no precedential value. However, the parties have been furnished with a memorandum for their information only, setting forth the reasons for this order. The judgment is affirmed in accordance with,Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284523/ | ORDER
PER CURIAM.
Joseph Verive ( Movant”) appeals the judgment of the Circuit Court of Pike County denying his Rule 24.035, motion for post-conviction relief after an evidentiary hearing. Movant contends the motion court erred in denying his motion because plea counsel was ineffective for (1) failing to provide Movant with discovery, and (2) failing to contact two witnesses.
We find the motion court's findings,of fact and conclusions of law are not clearly erroneous and affirm. An extended opinion would have no precedehtial 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 |
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