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https://www.courtlistener.com/api/rest/v3/opinions/5283522/ | Nancy Steffen Rahmeyer, J.
Jack and Ruth Maxey (the “Maxeys”), through their daughter, Jackie Cernetich, hired Consolidated Service Group, LLC (“Consolidated”), through its agent representative Marc Benz, (collectively, “Plaintiffs”), to put a new roof on their home. Prior to the completion of the job, a dispute arose over defective tiles and the looks of the roof. The Maxeys refused to allow Consolidated to make repairs to the roof and brought suit under the contract. The trial court granted summary judgment to Consolidated under the contract. The Maxeys claim that the court erred in entering summary judgment on Consolidated’s claim for a breach of a roofing contract because Consolidated “failed to plead any facts to support their contention that [Consolidated] had performed their obligations under the terms of the contract” but only pled that the Maxeys had failed to allow Consolidated an opportunity to cure the defective roof as was provided in the contract. The Maxeys also claim trial court error because there is a material question of fact whether Consolidated and Benz abandoned their obligations under the terms of the contract or whether they were prevented from fully performing their obligations under the contract and whether the Maxeys were required to allow Benz an attempt to cure any default. We find no error and affirm the judgment.
Our standard of review was set forth in Goerlitz v. City of Maryville, 333 S.W.3d 450, 452-53 (Mo. banc 2011):
The trial court makes its decision to grant summary judgment based on the pleadings, record submitted, and the law; therefore, this Court need not defer to the trial court’s determination and reviews the grant of summary judgment de novo. ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993); Rule 74.04. In reviewing the decision to grant summary judgment, this Court applies the same criteria as the trial court in determining whether summary judgment was proper. Id. Summary judgment is only proper if the moving party establishes that there is no genuine issue as to the material facts and that the movant is entitled to judgment as a matter of law. Id. The facts contained in affidavits or otherwise in support of a party’s motion are accepted “as true unless contradicted by the non-moving party’s response to the summary judgment motion.” Id. Only genuine disputes as to material facts preclude summary judgment. Id. at 378. A material fact in the context of summary judgment is *770one from which the right to judgment flows. Id.
A defending party ... may establish a right to summary judgment by demonstrating: (1) facts negating any one of the elements of the non-movant’s claim; (2) “that the non-movant, after an adequate period for discovery, has not been able and will not be able to produce sufficient evidence to’allow the trier of fact to find the existence of any one” of the elements of the non-movant’s claim; or (3) “that there is no genuine dispute as to the existence of the facts necessary to support movant’s properly pleaded affirmative defense.” Id. at 381. Each of these three methods individually “establishes the right to judgment as a matter of law.” Id.
Further,
[t]he record below is reviewed in the light most favorable to the party against whom summary judgment was entered, and that party is entitled to the benefit of all reasonable inferences from the record. However, facts contained in affidavits or otherwise in support of the party’s motion are accepted as true unless contradicted by the non-moving party’s response to the summary judgment motion. However, an appellate court reviewing the ruling of a circuit court is bound to consider the forms of the affidavits supporting and opposing summary judgment in accord with Rule 74.04(e),[1] which requires the affidavits to be made on personal knowledge and set forth facts that would be admissible in evidence. Additionally, the affidavit “shall show affirmatively that the affiant is competent to testify to the matters stated therein.” Rule 74.04(e). In addition, the non-movant must support denials with specific references to discovery, exhibits, or affidavits demonstrating a genuine factual issue for trial. Rule 74.04(c)(2), (c)(4).
Central Trust and Inv. Co. v. Signalpoint Asset Management, LLC, 422 S.W.3d 312, 320 (Mo. banc 2014) (internal citations and quotations omitted). Because the Maxeys’ second point claims there are material disputed facts, we will commence our discussion with the second point.
“[I]f a contractor is prevented from completing the work on a construction project by the actions of the owners, the owners have breached the contract.” Erney v. Freeman, 84 S.W.3d 529, 534 (Mo.App.S.D.2002). Further, “[i]f the work has been partially completed at the time of the owners’ actions, the contractor is excused from his contractual obligations and may cease work on the project.” Id. It is necessary to determine which, if any, party breached by considering whether the contractor’s failure to complete the project, or his ceasing of the work, was due to actions of the owners that prevented him from completing the work or due to the actions of the contractor of walking away from the project. Id.
The Maxeys admit before this Court “that the Contract contained a right to cure provision giving [Consolidated] and Benz the right to cure any defects in their performance of the Contract.”2 They contend that there are three material ques*771tions of fact for the trier of fact that prevent summary judgment: (1) whether Consolidated and Benz were afforded an' opportunity to cure when the defective shingles were discovered on the first day but other defective shingles were installed on the second day, (2) whether Benz’s offers were conditional and constituted an abandonment of the project, and (3) whether the Maxeys could have any faith in Benz’s offer to cure.
The following undisputed facts that are relevant to the Maxeys’ appeal were submitted to the trial court:3
37. Jackie Cernetich e-mailed Mr. Benz on Monday, November 16, 2009[,] at 9:36 AM and stated, “Marc, with regard to our conversation earlier this morning. I want to confirm that we are not agreeing to anything you have verbally presented to us. Also, as I stated, no work is to be done on our home at 412 North Commercial Street in Crock-er, Missouri, unless approved by us. We need Tamko’s proposal in writing to properly assess their suggested remedy. Jacki [sic] Cernetich.” See Exhibit 4, Deposition of Jackie Cernetich, p. 63-67, and see Exhibit 14, E-mail from Jackie.
RESPONSE: Defendants/Third Party Plaintiffs admit the allegations contained in Paragraph 37 of Plaintiffs Statement of Uncontroverted Facts.
38. At no point was Jackie acceptable to any terms provided by GSG as to how they were going to fix the roof. See Exhibit 4, Deposition of Jackie Cerne-tich, p. 67.
RESPONSE: Defendants/Third Party Plaintiffs admit the allegations contained in Paragraph 38 of Plaintiffs Statement of Uncontroverted Facts[, and specifically states that Plaintiff knowingly installed a defective roof on Defendants’/Third Party Plaintiffs’ home (see Exhibit 5, Deposition of Marc Benz, Page 60, Line 8 through Page 62, Line 15) and the roof on Defendants’/Third Party Plaintiffs’ home needs to be replaced in its entirety (see Exhibit 5, Deposition of Marc Benz, Page 69, Line 21 through Page 71, Line 3) ].[4]
39.At no point did Jackie Cernetich authorize CSG to come back and do work at the house at 412 North Commercial Street in Crocker, Missouri. See Exhibit 4, Deposition of Jackie Cernetich, p. 67-68.
RESPONSE: Defendants/Third Party Plaintiffs admit the allegations contained in Paragraph 39 of Plaintiffs Statement of Uncontroverted Facts [, and specifically states that Plaintiff knowingly installed a defective roof on Defendants’/Third Party Plaintiffs’ home (see Exhibit 5, Deposition of Marc Benz, Page 60, Line 8 through Page 62, Line 15) and the roof on Defendants’/Third Party Plaintiffs’ home needs to be replaced in its entirety (see Exhibit 5, Deposition of Marc Benz, Page 69, Line 21 through Page 71, Line 3) ]. *77240. Jackie Cernetich never asked Mr. Benz to repair the roof. See Exhibit 4, Deposition of Jackie Cernetich, p. 106. RESPONSE: Defendants/Third Party Plaintiffs admit the allegations contained in Paragraph 40 of Plaintiffs Statement of Uncontroverted Facts[, and specifically states that Plaintiff knowingly installed a defective roof on Defendants’/Third Party Plaintiffs’ home (see Exhibit 5, Deposition of Marc Benz, Page 60, Line 8 through Page 62, Line 15) and the roof on Defendants’/Third Party Plaintiffs’ home needs to be replaced in its entirety (see Exhibit 5, Deposition of Marc Benz, Page 69, Line 21 through Page 71, Line 3) ].
41. Mr. Benz called Jackie Cernetich multiple times and Jackie Cernetich was annoyed by the amount of phone calls Mr. Benz made. See Exhibit 4, Deposition of Jackie Cernetich, p. 108.
RESPONSE: Defendants/Third Party Plaintiffs admit the allegations contained in Paragraph 41 of Plaintiffs Statement of Uncontroverted Facts.
42. Jackie Cernetich did not respond to some of Mr. Benz’[s] emails to her after the roofing project and it is “probably accurate” that she did not respond to most of his emails. Exhibit 4, Deposition of Jackie Cernetich, p. 107.
RESPONSE: Defendants/Third Party Plaintiffs admit the allegations contained in Paragraph 42 of Plaintiffs Statement of Uncontroverted Facts.
43. Mr. Benz emailed Jackie on January 14, 2010 attempting to attach a document and stated, “Attached is the document stating that no additional expense will be charged back to your mother. Although the roof will be installed on her residence, payment for materials and labor will be covered by the vouchers provided by Tamko. There will be no shortcuts taken nor will any compromise be made on material quality in an effort to control costs. I want the same thing for you now that lasts for projected life span. Nothing has changed on my end, I will still work just as hard for you to make sure that the new roof gets installed as I did to get the exposed sections covered immediately after construction was complete. Please contact me when you receive this, I need to resolve this immediately. Review the attachment thoroughly and print for your records. I will keep a copy in your file as well. You took a leap of faith when you decided to go with us as your contractor, “No Additional Costs” means no additional costs. I have never went back on my word with any customer, and you are no exception. You trusted us with the original installation, and I have protected your mother[’]s interests completely. At this point I ask that you continue to trust me to protect her interests regarding the installation and finances. I know it is not common anymore, but believe it or not, there are still some individuals in this world who do the right thing and honor the agreements they made, and you were fortunate enough to stumble across one of them. (And on a side note, I would appreciate it if I could use you as a reference after the new roof is installed) Please call me soon. Thank you, Marc” See Exhibit 15, E-mail to Jackie, and See Exhibit 4, Deposition of Jackie Cernetich, p. 89-90, and 104,106.
RESPONSE: Defendants/Third Party Plaintiffs admit the allegations contained in Paragraph 43 of Plaintiffs Statement of Uncontroverted Facts.
44.Jackie Cernetich eventually received the attached proposal, proposing to complete Tamko Warranty services upon request for the property known as: *773412 N. Commercial Crocker MO 63452, and said “All work to be completed will be covered by manufactures [sic] warranty. The new roof will be installed on the date requested by the homeowners. Vouchers issued from Tamko will be used to provide materials and labor. If for any reason the cost exceeds the voucher amounts, Consolidated Service Group LLC will cover any additional amounts due. [The homeowners at 412 N. Commercial, Crocker MO will have absolutely no out of pocket expenses for the new roof, labor, materials, or any costs related to the roofing project.] The current balance due after credits and adjustments is 7871.00 (Seven Thousand Eight Hundred Seventy One Dollars and 00/100). For your additional security we would request a check in the amount of 4400.00 (Four Thousand Four Hundred Dollars and 00/100) to be made out to [Arrowhead Building Supply], A check for the remaining balance of 3471.00 (Three Thousand Four Hundred Dollars and 00/100) to be made out to Consolidated Service Group. Lien Waivers for the materials and labor will be issued immediately upon receiving payment.” See- Exhibit 4, Deposition of Jackie Cernetich, p. 89-90, and See Exhibit 16, the proposed attachment.
RESPONSE: Defendants/Third Party Plaintiffs admit the allegations contained in Paragraph 44 of Plaintiffs Statement of Uncontroverted Facts; however, Defendants/Third Party Plaintiffs specifically deny that said provision of the Contract obliges Defendants/Third Party Plaintiffs to allow Plaintiff to correct defects in the roof.
45. Jackie Cernetich did not provide written or verbal notice to remedy any defects. See Exhibit 4, Deposition of Jackie Cernetich, page 44.
RESPONSE: Defendants/Third Party Plaintiffs admit the allegations contained in Paragraph 45 of Plaintiffs Statement of Uncontroverted Facts.
Keeping in mind that the Maxeys claim in their second point that there was a material question of fact whether Consolidated abandoned their obligations under the terms of the contract or whether they were prevented from fully performing their obligations under the contract, it is clear there was no issue of fact contended in the summary judgment motions that Consolidated ever abandoned its obligations under the contract. It is clear from the statement of facts that the Maxeys were clear that Consolidated was not allowed to cure any defect and that Consolidated did not abandon the project. The Maxeys’ claim that defective tiles were discovered on the first day and on the second day does not constitute a refusal to cure by Consolidated. The third contested “material fact,” whether the Maxeys could have “faith” in Benz’s offer, alleged by the Maxeys, is not a “fact” that is relevant to this contract. Consolidated offered and attempted to offer to cure any defects on many occasions. The subjective state of mind of the Maxeys is not at issue.
The uncontroverted facts supplied by Consolidated and the responses by the Maxeys are clear that the Maxeys did not allow Consolidated to cure any claims about the defective tiles. It is clear from the record that Consolidated offered a complete new roof at no cost to the Max-eys. The Maxeys did not allow Consolidated to use the vouchers for new tiles that had been given to the Maxeys by the tile company for the defective tiles. The trial court did not err in finding that there were no issues of material fact that Consolidated was prevented from attempting to cure the defects in the roof by the Maxeys. Point II is denied.
*774As for the Maxeys’ first point, that Consolidated did not plead a claim for a breach of contract, we find no merit to the point. To prove its breach of contract case, Consolidated had to prove, first, that a contract existed between plaintiff and defendant. Consolidated did so by stating in its summary judgment motion that Jackie Cernetich had the authority to contract to replace the Maxeys’ roof. Further, the Maxeys admit that a contract existed between Plaintiffs and the Maxeys. Second, Consolidated had to prove that Plaintiffs and the Maxeys had certain obligations or duties under the contract. Again, there is no dispute that both parties had obligations and duties under the contract. The Maxeys agreed that they were to pay Consolidated the sum of $8,626.00 under the contract. The Maxeys agree that Consolidated was to provide a satisfactory roof for that price. In this appeal, the Maxeys do not contend that there was no proof of the first element, that a contract existed. Nor do the Maxeys contend that both parties had obligations or duties under the contract, thus the second element was satisfied. Third, Consolidated must have proved that there was a breach of the contract. As discussed in Point II, if the contractor was prevented from completing the work by the actions of the owners, the owners have breached the contract. There is no dispute of material fact that the owners prevented the contractor from completing the work, thus, the third element was satisfied. Finally, Consolidated had to prove damages. Plaintiffs supplied proof in the summary judgment motion that the Maxeys had paid nothing toward the contract and, thus, the contractor was damaged. Thus, each element for a breach of contract was addressed in the summary judgment motion.
To the extent that the Maxeys are arguing that the roof is not yet completed and, therefore, Plaintiffs may not sue for a breach of contract, they are mistaken. When the owners prevent the contractor from performing work on the contract, the contractor may either sue on the express contract or on quantum meruit for the value of the labor and materials the contractor has furnished. Statler Mfg., Inc. v. Brown, 691 S.W.2d 445, 448-49 (Mo.App.S.D.1985). The Maxeys admit that there is a right-to-cure provision in the contract, therefore, the refusal to give Plaintiffs an opportunity to cure the defect was an anticipatory breach and grounds for proceeding on a breach of contract action even if Plaintiffs had not completed their work. It was not necessary for Plaintiffs to plead or prove facts that they fully performed or that there was substantial performance. Point I is denied.
The judgment is affirmed.
Gary W. Lynch, J. — Concurs
Don E. Burrell, J. — Concurs
. All rule references are to Missouri Court Rules (2014), unless otherwise specified.
. In their suggestions to the trial court, the Maxeys did not argue that the contract provision did not provide that Consolidated had a “right-to-cure”; instead, they argued that they did allow Benz to cure the defects on the second day of the installation after defective tiles were discovered. The Maxeys contended that "the uncontroverted facts demonstrate that Plaintiff was given the opportunity to cure the defects found in the Maxey[s'] roof on November 4, 2009 and failed to properly do so.”
. Respondents set forth no facts in the brief nor did they give any page cites to the summary judgment motion or responses to the summary judgment. Being mindful that though Respondents are not obligated to file a brief, we review an appeal from summary judgment in the light most favorable to the party against whom judgment was entered. It would be a far better practice to put page cites to the summary judgment motion in support of their argument rather than relying upon this Court to scour the summary judgment motion for the necessary cites.
. We have set forth Defendants/Third Party Plaintiffs’ responses in their entirety; however, we note that Rule 74.04(c)(2) does not provide for the material we have enclosed in brackets to be presented in this manner. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283523/ | OPINION
MICHAEL MASSENGALE, Justice.
Appellants Waller County, Texas and its Commissioners Court consisting of County *74Judge - Glenn Beekendorff and County Commissioners Frank Pokluda, Stan Kitz-man, Jeron Barnett, and John Amsler, all acting in their official capacities (collectively, Waller County), filed a notice of interlocutory appeal. The County attempts to invoke our jurisdiction by asserting that the trial court denied a motion for summary judgment on jurisdictional grounds and thereby effectively denied its plea to the jurisdiction. See Tex. Civ. Prao. & Rem.Code § 51.014(a)(8) (West Supp. 2014). Appellees, the City of Hempstead and Citizens Against the Landfill in Hemp-stead (CALH) contest jurisdiction and have moved to dismiss the appeal.
Because the procedural circumstances of this case do not demonstrate that any ruling of the trial court has resolved the County’s jurisdictional challenge'in the trial court and thereby effectively denied a plea to the jurisdiction, we dismiss the appeal.
Background
The City of Hempstead filed suit against Waller County, and CALH intervened as a plaintiff. The lawsuit challenges the County’s authority to prohibit the disposal of solid waste in certain areas of the County, by way of an ordinance relating to the proposed creation of a landfill on a site that partially overlaps the City’s extraterritorial jurisdiction.
Waller County filed both a plea to the jurisdiction and a motion for partial summary judgment on no-evidence and traditional grounds. In the no-evidence portion of the summary-judgment motion, the County argued, among other things, that there was no evidence to support a claim that the challenged ordinance was enacted without authority so as to invoke the district court’s “general supervisory control” over the commissioners court. See Tex. Const, art. V, § 8.
The trial court entered an order denying Waller County’s motion for summary judgment, and it has not expressly ruled on the plea to the jurisdiction. At the conclusion of a hearing on the matter, the trial court explained that it was reserving its ruling on the jurisdictional challenge, stating:
The Court finds that the pleas to the jurisdiction by the defendants are not ripe for ruling and rather than conduct an evidentiary hearing and a trial on the merits to ascertain and determine the facts, the Court finds that judicial economy dictates proceeding with jury selection and presentation of evidence commencing on December the 1st, 2014. The Court will make a ruling at the appropriate time.
This Court has denied a mandamus petition which sought to compel a pretrial ruling on the jurisdictional plea, In re Waller Co., No. 01-14-00916-CV, 2014 WL 6671266 (Tex.App.-Houston [1st Dist.] Nov. 21, 2014), and a similar petition has been filed with the Supreme Court of Texas.
After we denied the mandamus petition, Waller County filed its notice of interlocutory appeal from the denial of its motion for summary judgment, which it characterizes as having effectively denied the plea to the jurisdiction. The appellees filed a motion to dismiss the appeal for want of interlocutory appellate jurisdiction, and the County has filed a response to that motion.
Analysis
An immediate appeal may be taken from an interlocutory order of a district court that grants or denies a plea to the jurisdiction by a governmental unit. Tex. Civ. Prao. & Rem.Code § 51.014(a)(8). Waller County asserts that it is entitled to an interlocutory appeal and automatic stay of *75trial proceedings, see'id. § 51.014(b) & (c), because the denial of its motion for summary judgment, which raised jurisdictional issues similar to those in the plea to the jurisdiction, implicitly or effectively denied the jurisdictional plea.
The mandamus record previously filed and expressly relied upon by the County in its attempt to demonstrate appellate jurisdiction instead shows that the trial court has not ruled on the jurisdictional issues raised in the plea to the jurisdiction. The trial court expressly refused to rule on the issues raised in the plea to the jurisdiction on the basis that such issues were not ripe. The record independently supports the trial court’s oral characterization of its rulings, because the motion for summary judgment could have been denied due to the existence of genuine issues of material fact, without resolving the merits of the jurisdictional plea. ‘Put another way, if we were to exercise interlocutory jurisdiction over this appeal and affirm the trial court’s ruling because of genuine issues of material jurisdictional facts, Waller County would still be free to assert its jurisdictional challenge based on the resolution of the disputed fact issues. Thus we cannot infer a denial of the jurisdictional plea from the denial of the motion for summary judgment.
Waller County relies upon Thomas v. Long, 207 S.W.3d 334, 339 (Tex.2006), and Lazarides v. Farris, 367 S.W.3d 788, 796-97 (Tex.App.-Houston [14th Dist.] 2012, no pet.), for the proposition that an order denying a motion for summary judgment in which the movant challenges the trial court’s jurisdiction is eligible for an interlocutory appeal. We find both cases to be distinguishable.
In Thomas, the record on appeal did not include an order explicitly denying a plea to the jurisdiction, but it did include a motion for summary judgment challenging the trial court’s subject matter jurisdiction. Thomas, 207 S.W.3d at 338-39. The Supreme Court held that Section 51.014(a)(8) provided for an interlocutory appeal when a trial court denies a governmental unit’s challenge to subject matter jurisdiction, irrespective of the procedural vehicle used. Id. at 339. Although the trial court did not explicitly deny the relief sought in the defendant’s motion for summary judgment challenging the trial court’s jurisdiction, it did affirmatively grant relief to the plaintiff on claims that were subject to those jurisdictional challenges. Accordingly, the Supreme Court concluded that “the trial court’s rulings on the merits of some claims for which [defendant] argued the trial court lacked subject matter jurisdiction constitute an implicit rejection of [defendant’s] jurisdictional challenges.” Id. Unlike Thomas, there has been no ruling by the trial court in this case on the merits of the appellees’ claims from which it could be implied that Waller County’s jurisdictional arguments had been rejected.
In Lazarides, the appellant filed a plea to the jurisdiction and a motion for summary judgment asserting various jurisdictional challenges. Lazarides, 367 S.W.3d at 795. Although the trial court did not expressly grant or deny the appellant’s plea to the jurisdiction, it denied the summary judgment motion. Id. at 796. Following Thomas, the Fourteenth Court held that “[w]hen the record does not contain an order granting or denying a plea to the jurisdiction, but does include an order denying a motion for summary judgment in which the movant challenged the trial court’s jurisdiction, an interlocutory appeal may be taken under subsection (a)(8) irrespective of the selected procedural vehicle.” Id. at 797-98 (citing Thomas, 207 S.W.3d at 339). Unlike Lazarides, the trial court in this case explicitly stated, and the record confirms, that the denial of the County’s motion for summary judgment *76did not imply an adverse ruling on the jurisdictional issues. Instead, the issues remain before the trial court pending resolution of the disputed jurisdictional facts.
Finally, the jurisdictional challenges in Thomas and Lazarides appear to have been raised in traditional motions for summary judgment.' Although a trial court’s jurisdiction may be challenged in a traditional motion for summary judgment, the record in this case demonstrates that Waller County’s alleged jurisdictional arguments only were raised in the no-evidence portion of its motion for summary judgment. But this court has previously held that “a court’s subject-matter jurisdiction cannot be challenged in a no-evidence motion for summary judgment.” Green Tree Servicing, LLC v. Woods, 388 S.W.3d 785, 794 (Tex.App.-Houston [1st Dist.] 2012, no pet.); accord Thornton v. Northeast Harris County MUD 1, 447 S.W.3d 23, 39 (Tex.App.-Houston [14th Dist.] 2014, pet. filed). Accordingly, no denial of a jurisdictional plea can be inferred from the denial of a no-evidenee summary judgment argued on jurisdictional grounds.
Conclusion
Because the trial court did not rule on the plea to jurisdiction (either expressly or implicitly through its denial of Waller County’s motion for summary judgment), we lack jurisdiction over this purported interlocutory appeal. We grant the appel-lees’ motions and dismiss the appeal for want of jurisdiction. See Tex.R.App. P. 42.3(a). CALH’s request for sanctions in the event that the appeal is not dismissed before December 1, 2014 is dismissed as moot. The Clerk is directed to issue the mandate immediately. See Tex.R.App. P. 18.1(c). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283524/ | OPINION
SUE WALKER, Justice.
I. Introduction
Appellant the State of Texas perfected this appeal after the trial court granted Appellee N.RJ.’s petition for an expunction. See Tex.Code.Crim. Proc. Ann. art. 55.02, § 8(a) (West Supp.2014). We will address two issues in this appeal. First, we will determine whether this court’s opinion in S.J. v. State — holding that, to be entitled to an expunction, all charges arising from an arrest must satisfy the éx-punction statute’s requirements — applies to bar expunction in this case of a single charge from a multi-charge arrest. See 438 S.W.3d 838, 845 (Tex.App.-Fort Worth 2014, no pet.). Second, we will address whether an admission of guilt to an offense and a request that the trial court consider that admission as a plea in bar in determining punishment for another offense precludes expunction of the admitted, unadjudicated offense. See Tex. Penal Code Ann. § 12.45 (West 2011); Tex.Code. Crim. Proc. Ann. art. 55.01(a)(2) (West Supp.2014). Because both issues must be answered in the affirmative, we hold that an expuilction is not available in this case, and we reverse the trial court’s order of expunction and render judgment denying N.R.J.’s petition for expunction.
II. Background
N.R.J. was arrested on December 6, 2007, for the misdemeanor offenses of driving while intoxicated (DWI) and possession of two ounces or less of marijuana. See Tex. Penal Code Ann. § 49.04 (West Supp. 2013); Tex. Health & Safety Code Ann. § 481.121(b)(1) (West 2010). N.R.J. pleaded nolo contendere to DWI, and in the course of his plea, he admitted guilt to the possession offense pursuant to penal code section 12.45 and requested that the trial court take that offense into account in assessing punishment for the DWI offense. See Tex. Penal Code Ann. § 12.45. The trial court found N.R.J. guilty of DWI, considered the possession offense in assessing punishment for DWI, and placed him on community supervision for fifteen months. The trial court ordered that prosecution of N.R.J. for the possession offense be barred with prejudice.
N.R.J. subsequently filed a petition for expunction of all criminal records and files relating to his arrest for the possession-of-marijuana offense. After a hearing, the trial court granted the petition and ordered that the records and files relating to the possession offense be expunged. The State perfected this appeal.
In three issues, the State argues that the trial court abused its discretion by ordering an expunction for the possession-of-marijuana offense arising out of N.R.J.’s arrest because he was also arrested for and finally convicted of DWI, because he *79admitted his guilt to the possession-of-marijuana offense in the plea in bar, and because the possession offense remained pending.1
III. Standard of Review and Statutory Construction Rules
We review a trial court’s decision granting or denying a petition for expunction for an abuse of discretion. See Heine v. Tex. Dep’t of Pub. Safety, 92 S.W.3d 642, 646 (Tex.App.-Austin 2002, pet. denied). However, “[t]o the extent a ruling on ex-punction turns on a question of law, we review the ruling de novo because ‘[a] trial court has no “discretion” in determining what the law is or applying the law to the facts.’ ” Tex. Dep’t of Pub. Safety v. Dicken, 415 S.W.3d 476, 478 (Tex.App.-San Antonio 2013, no pet.). A trial court abuses its discretion if it orders an expunction of records despite a petitioner’s failure to satisfy all of the statutory requirements. In re O.R.T., 414 S.W.3d 330, 332 (Tex.App.-El Paso 2013, no pet.); Travis Cnty. Dist. Attorney v. M.M., 354 S.W.3d 920, 923, 929 (Tex.App.-Austin 2011, no pet.) (en banc) (op. on reh’g).
When construing statutes, we use a de novo standard of review, and our primary objective is to ascertain and give effect to the legislature’s intent. Tex. Gov’t Code Ann. § 312.005 (West 2013); F.F.P. Operating Partners, L.P. v. Duenez, 237 S.W.3d 680, 683 (Tex.2007). To discern that intent, we begin with the statute’s words. Tex. Gov’t Code Ann. §§ 312.002-.003 (West 2013); State v. Shumake, 199 S.W.3d 279, 284 (Tex.2006). If a statute is unambiguous, we adopt the interpretation supported by its plain language unless such an interpretation would lead to absurd results that the legislature could not possibly have intended. Tex. Dep’t of Protective & Regulatory Servs. v. Mega Child Care, Inc., 145 S.W.3d 170, 177 (Tex.2004). We consider statutes as a whole rather than their isolated provisions. Tex. Dep’t of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 642 (Tex.2004). We presume that the legislature chooses a statute’s language with care, deciding to include or omit words for a purpose. In re M.N., 262 S.W.3d 799, 802 (Tex.2008).
IV. Article 55.01 of the Code of Criminal Procedure
The remedy of expunction allows a person who has been arrested for the commission of an offense to have all information about the arrest removed from the State’s records if he meets the statutory requirements of article 55.01 of the code of criminal procedure. See Tex.Code Crim. Proc. Ann. art. 55.01; Tex. Dep’t of Pub. Safety v. Nail, 305 S.W.3d 673, 674 (Tex.App.-Austin 2010, no pet.) (op. on reh’g). A petitioner’s right to an expunction is purely a matter of statutory privilege, and the petitioner bears the burden of demonstrating that each of the required statutory conditions have been met. Nail, 305 S.W.3d at 674; Tex. Dep’t of Pub. Safety v. J.H.J., 274 S.W.3d 803, 806 (Tex.App.-Houston [14th Dist.] 2008, no pet.); see Tex.Code Crim. Proc. Ann. art. 55.01.
Article 55.01 was most recently amended in 2011, and the amended article applies here. See Tex Code Crim. Proc. Ann, art. 55.01; Act of May 25, 2011, 82nd Leg., R.S., ch. 894, § 3, 2011 Tex. Sess. Law Serv. 2275, 2276 (West). Article 55.01 provides in relevant part:
(a) A person who has been placed under a custodial or noncustodial arrest for *80commission of either a felony or misdemeanor is entitled to have all records and files relating to the arrest expunged if:
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(2) the person has been released and the charge, if any, has not resulted in a final conviction and is no longer pending and there was no court-ordered community supervision under Article 42.12 for the offense, unless the offense is a Class C misdemeanor, provided that:
(A) regardless of whether any statute of limitations exists for the offense and whether any limitations period for the offense has expired, an indictment or information charging the person with the commission of a misdemeanor offense based on the person’s arrest or charging the person with the commission of any felony offense arising out of the same transaction for which the person was arrested:
(i) has not been presented against the person at any time following the arrest, and:
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[a certain amount of time has elapsed]; or
(B) prosecution of the person for the offense for which the person was arrested is no longer possible because the limitations period has expired.
Tex.Code Crim. Proc. Ann. art. 55.01(a)(2).
The statute entitles a petitioner to have “all records and files relating to the arrest expunged if’ certain conditions are met. Id. (emphasis added). Here, N.R.J. is not seeking, nor is he entitled to, an expunction of all records and files relating to his December 6, 2007 arrest because he was also arrested for DWI on that date and was finally convicted of that offense. See id. He instead seeks expunction of all records and files relating to the possession charge arising from that arrest.
V. Expunction Statute is Arrest-Based
The State argues in its first issue that the expunction statute does not provide for expunction of an individual charge (like N.R.J.’s possession charge) that arises out of a multi-charge arrest (like N.R.J.’s arrest) unless all charges satisfy article 55.01’s requirements. The State noted in its brief that this was an issue of first impression in this court, but after this case was submitted, we issued our opinion in S.J., holding that “for a petitioner to be entitled to expunction under article 55.01, all charges arising from the arrest must meet that article’s requirements.” 438 S.W.3d at 845.
In S.J., the petitioner was arrested for a single offense — aggravated assault — but pleaded nolo contendere to terroristic threat in exchange for dismissal of the aggravated assault charge. Id. at 839. Although the case did not involve a multi-charge arrest like we have in this case, we find our holding in S.J. equally applicable here.2 Our sister courts have also reached the same conclusion as we did in S.J. in multi-charge arrest situations. See In re D.W.H., No. 08-12-00031-CV, — S.W.3d -,-, 2014 WL 5798204, at *3 (Tex. *81App.-El Paso Oct. 22, 2014, no pet. h.) (holding that expunction unavailable for individual charge arising out of arrest for improper relationship between an educator and student when petitioner convicted of possessing illegal firearms arising out of the same transaction); Dicken, 415 S.W.3d at 480 (holding that article 55.01 did not allow expunction of records concerning possession of controlled substance offense when petitioner was also arrested for, and pleaded guilty to, DWI); M.M., 354 S.W.3d at 924 (concluding that former article 55.01 did not provide for expunction of individual records relating to DWI and assault charges when petitioner was also arrested for, and pleaded nolo contendere to, resisting arrest). N.R.J. was arrested and charged with both DWI and possession of marijuana, and because his DWI charge does not satisfy article 55.01’s requirements, he is not entitled to an ex-punction for the possession offense. See 5.J., 438 S.W.3d at 845.
The dissent treats N.RJ.’s DWI and possession charges as separate arrests, both occurring on the same date, and asserts that Appellee satisfied the ex-punction requirements for his “possession arrest.”3 Dissent at 78-79. An arrest occurs when a person has been actually placed under restraint or taken into custody by an officer. Tex.Code Crim. Proc. Ann. art. 15.22 (West 2005); see S.J., 438 S.W.3d at 841 n. 6. Regardless of whether multiple cases were filed or multiple bond amounts were set, there was but one arrest on December 6, 2007. Thus, because N.R.J.’s DWI charge arising from his December 6 arrest did not meet article 55.01’s requirements, he is not entitled to an expunetion for the possession offense. See S.J., 438 S.W.3d at 845. We sustain the State’s first issue.
VI. No Expunction For Admitted, Unadjudicated Offense
Even if the expunction statute contemplates expunctions for a single charge from a multi-charge arrest (or if each charge was considered as a separate arrest as asserted by the dissent), the State argues in its second issue that N.R.J. was not entitled to an expunction for the possession offense because he admitted guilt to that offense as part of a plea in bar.
Texas Penal Code section 12.45 provides that during a sentencing hearing and with the State’s consent, a defendant may admit his guilt of an unadjudicated offense and request that the court take the offense into account in determining the sentence for the offense of which he stands adjudged guilty. Tex. Penal Code Ann. § 12.45(a). If the trial court takes into account an admitted offense under section 12.45, prosecution for that offense is barred. Id. § 12.45(c).
Whether the records of an offense can be expunged when the petitioner admits guilt to that offense pursuant to penal code section 12.45 presents an issue of first impression in this court. To be entitled to an expunction under subarticle 55.01(a)(2), a petitioner must prove that (1) he has been released, (2) the charge has not resulted in a final conviction and is no longer pending, and (3) “there was no court-ordered community supervision under Arti-*82ele 42.12 for the offense.”4 Tex.Code Crim. Proc. Ann. art. 55.01(a)(2). Recognizing the discord between admitting guilt to an offense and asserting entitlement to an expunction for that offense, several of our sister courts have interpreted the statutory requirement that “the charge has not resulted in a final conviction” as prohibiting an expunction of a plea in bar offense; in other words, those courts have held that a plea in bar offense “resulted in a final conviction” for another offense by virtue of being considered in assessing punishment for the latter offense. Id.; see Dicken, 415 S.W.3d at 480-81; O.R.T., 414 S.W.3d at 336. But see Travis Cnty. Attorney v. J.S.H., 37 S.W.3d 163, 167 (Tex.App.-Austin 2001, no pet.), declined to follow by Tex. Dep’t of Pub. Safety v. G.B.E., — S.W.3d-,-, 2014 WL 1165854, at *7 (Tex.App.-Austin Mar. 20, 2014, pet. filed).5 While this interpretation of the has-not-resulted-in-a-final-conviction language seems somewhat stilted, we agree with our sister courts and similarly hold that when a defendant admits guilt to an offense in the course of pleading guilty or nolo contendere to a second offense, and requests that the trial court account for that admission in determining sentence for the second offense under penal code section 12.45, the admitted, unadjudicated offense is not expungeable; that is, the unadjudicated offense has resulted in a final conviction for purposes of the expunction statute because guilt for the offense was admitted and considered in determining punishment, albeit for another offense.
Our interpretation of the expunction statute as a bar to expunction for a plea in bar offense considered under section 12.45 is consistent with another provision of article 55.01. See Sw. Bell Tel. Co. v. Pub. Util. Comm’n of Tex., 888 S.W.2d 921, 926 (Tex.App.-Austin 1994, writ denied) (stating that we do not construe a statutory provision in isolation or give one provision a meaning out of harmony or inconsistent with another provision). Article 55.01(c) prohibits expunction of arrest records for an offense of which the person is subsequently acquitted if that offense “arose out of a criminal episode, as defined by Section 3.01, Penal Code, and the person was convicted of or remains subject to prosecution for at least one other offense occurring during the criminal episode.” Tex.Code Crim. Proc. Ann. art. 55.01(c). In this case, had N.R.J. been acquitted of the possession offense, article 55.01(c) would prohibit expunction of the records relating to that offense because he was convicted of DWI arising out of that criminal episode. See Tex. Penal Code Ann. § 3.01 (West 2011) (defining “criminal episode” to mean commission of two or more offenses committed pursuant to the same transaction). We see no reason for the legislature to allow expunction for an offense arising out *83of the same criminal episode as another offense for which a petitioner is convicted when the petitioner admits guilt for that offense pursuant to section 12.45 but not when the petitioner is acquitted of that offense. In fact, to so hold would constitute an absurd and nonsensical result. See Molinet v. Kimbrell, 356 S.W.3d 407, 411 (Tex.2011).
Our interpretation of the expunction statute, specifically the has-not:resulted-in-a-final-conviction requirement, is also consistent with our sister courts’ application of this statutory requirement to charges that have been dismissed in exchange for the petitioner’s plea of guilty or no contest to a lesser offense or a separate offense arising out of the arrest when the petitioner was convicted of that lesser or separate offense. Although the section 12.45 procedure does not provide for or require “dismissal” of the admitted, unad-judicated offense, section 12.45 requires that the State agree to its use and, consequently, to be barred from prosecuting that offense in exchange for the defendant admitting guilt to the unadjudicated offense and the trial court considering that offense in punishment for another offense.See Tex. Penal Code Ann. § 12.45. Thus, the section 12.45 procedure resembles a negotiated plea, analogous to the situation in which charges are dismissed in exchange for a defendant’s plea to a lesser or separate offense. See J.S.H., 37 S.W.3d at 164-65 (explaining that section 12.45 procedure saves the State “the cost and effort of prosecuting the additional offenses while the defendant enjoys the ‘slate cleaning’ benefit of disposing of the additional charges without formal prosecution”). Courts analyzing the availability of an ex-punction in the latter situation have unanimously held that an expunction is unavailable for the dismissed charges. See G.B.E., — S.W.3d at-,-, 2014 WL 1165854, at *1, *5-6; see also Ex parte M.G., No. 10-13-00021-CV, 2013 WL 3972225, at *2 (Tex.App.-Waco Aug. 1, 2013, no pet.) (mem. op.) (concluding that the petitioner failed to prove entitlement to expunction under current article 55.01 when he pleaded guilty to a lesser charge in exchange for dismissal); In re J.O., 353 S.W.3d 291, 294 (Tex.App.-El Paso 2011, no pet.) (concluding same under former article 55.01); Rodriguez v. State, 224 S.W.Sd 783, 785 (Tex.App.-Eastland 2007, no pet.) (holding that under former article 55.01, the petitioner was not entitled to an expunction for a theft charge dismissed pursuant to a plea bargain by which she pleaded nolo contendere to issuance of bad check); Tex. Dep’t of Pub. Safety v. Aytonk, 5 S.W.3d 787, 788 (Tex.App.-San Antonio 1999, no pet.) (concluding that the petitioner was ineligible for expunction where dismissal of the charge was obtained in exchange for plea of no contest to lesser charge).
Most recently, the Austin court of appeals interpreted the has-not-resulted-in-a-final-conviction requirement in a case where the petitioner sought an expunction for his DWI charge that had been dismissed in exchange for his plea of no contest to reckless driving. See G.B.E., — S.W.3d at -,-, 2014 WL 1165854, at *1, *5-6. The Austin court held that the DWI charge, although dismissed, had resulted in a final conviction for reckless driving based on the plea bargain:
Viewing the statute as a whole and keeping in mind its general purpose of permitting the expunction of wrongful arrests, we conclude that a person is not entitled to have any arrest records arising from a multi-charge arrest expunged under article 55.01(a)(2) when (1) one or more charges result in a conviction (for that particular charge) and (2) any remaining charge is dismissed, but that *84dismissal results in a final conviction of any charge arising from the same arrest.
Id. at-, 2014 WL 1165854, at *6. Similarly, in the situation we are faced with today, N.RJ.’s DWI charge resulted in a final conviction and the possession charge is barred from prosecution because the trial court considered that offense — and N.R.J.’s admission of guilt to that offense — in determining the sentence for DWI.
N.R.J. argues that the most recent amendments to article 55.01 and their legislative history reflect the legislature’s desire to expand the availability of the expunction remedy and provide for ex-punctions in situations like his. Section 55.01 was enacted “to permit the expunction of records of wrongful arrests.” Harris Cnty. Dist. Attorney’s Office v. J.T.S., 807 S.W.2d 572, 574 (Tex.1991). And courts applying article 55.01 have consistently held that allowing a person to expunge individual charges arising out of an arrest that was not wrongful is contrary to the primary purpose of the expunction statute. See O.R.T., 414 S.W.3d at 335 (“When a defendant admits guilt to an offense arising out of an arrest, he concedes that the arrest was not wrongful for purposes of the expunction statute.”); Dicken, 415 S.W.3d at 480-81 (stating same); Ex parte M.R.L., No. 10-11-00275-CV, 2012 WL 763139, at *3 (Tex. App.-Waco Mar. 7, 2012, pet. denied) (mem. op.) (stating same); M.M., 354 S.W.3d at 928 (stating same).
We acknowledge that the legislative intent behind the most recent amendments to article 55.01 was to lower the barrier to expunctions for cases that have been dismissed. See Senate Research Center, Bill Analysis, Tex. S.B. 462, 82nd Leg., R.S. (Apr. 8, 2011). Specifically, the bill analysis provides,
Current law and court decisions have made it increasingly difficult for a person who has certain criminal charges that have been dismissed to receive an expunction. This was compounded by the July 2007, Texas Supreme Court ruling in State v. Beam where the Court ruled that even a Class C misdemeanor that has been dismissed through completion of deferred adjudication cannot be expunged until the statute of limitations for the offense has expired.
Texas law allows the records of criminal charges to be expunged only under a narrow set of circumstances. Those circumstances include when a case has resulted in acquittal, when a person has received a pardon, and when the charges are the result of mistaken or misused identify.
The ramifications of this legal barrier have negative consequences for persons seeking employment when confronted with employers who now routinely implement background checks. If a case has been dismissed, is no longer under investigation and the subject no longer faces prosecution for the offense, an individual should be able to have a record expunged.
Id. The legislature made several amendments to article 55.01 in accordance with this intent. For example, a person may now obtain an expunction of arrest records for a felony or misdemeanor charge that did not result in a final conviction, that is no longer pending, and for which there is no court-ordered community supervision regardless of whether any statute of limitations exists for the offense or whether any limitations period has expired, provided a certain waiting period has passed. See Tex.Code Crim. Proc. Ann. art. 55.01(a)(2)(A)(i)(a)-(c); see also House Comm. Report, Bill Analysis, Tex. C.S.S.B. 462, 82nd Leg., R.S. (Apr. 8, 2011). N.R.J. *85points out that the statute now requires that there was no community supervision ordered for “the offense,” whereas the former version required that there was no community supervision ordered for “any offense.” Compare Tex.Code Crim. Proc. Ann. art. 55.01(a)(2) (emphasis added), with Act of May 31, 2009, 81st Leg., R.S., ch. 1103, § 17(b), 2009 Tex. Gen. Laws 3019, 3020 (amended 2011) (current version at Tex.Code Crim. Proc. Ann. art. 55.01(a)(2)) (emphasis added). He argues that this change clarifies that courts should focus solely on the disposition of the offense sought to be expunged. But the requirement that “there is no court-ordered community supervision under Article 42.12 for the offense” is separate from the requirement to show that the charge has not resulted in a final conviction. G.B.E., — S.W.3d at -, 2014 WL 1165854, at *6 (rejecting same argument raised on appeal).
Further, nothing in the most recent amendments to article 55.01 shows that the legislature intended to override the statute’s primary purpose of permitting expunction of wrongful arrests.6 And the legislature did not alter the requirement that “the charge, if any, has not resulted in a final conviction.” Compare Tex. Code Crim. Proc. Ann. art. 55.01(a)(2), with Act of May 31, 2009, 81st Leg., R.S., ch. 1103, § 17(b), 2009 Tex. Gen. Laws 3019, 3020 (amended 2011); see also Molinet, 356 5.W.3d at 414 (“The Legislature expresses its intent by the words it enacts.”); AT & T Commc’ns of Tex., L.P. v. Sw. Bell Tel. Co., 186 S.W.3d 517, 528-29, n. 3 (Tex.2006) (“[T]he statement of a single legislator, even the author and sponsor of the legislation, does not determine legislative intent.”).
Viewing the expunction statute as a whole and considering its primary purpose of permitting expunctions of wrongful arrests, we hold that an admission of guilt to an offense in the course of a plea to another offense arising out of the same arrest and a request that the trial court consider that admission in determining sentence for the other offense bars an expunction for the admitted to, unadjudi-cated offense. In this case, N.R.J. pleaded nolo contendere to DWI, and “in the course of [his] plea” and with the State’s consent, he admitted guilt to the possession offense pursuant to section 12.45. The trial court considered the possession offense in assessing punishment for DWI. By admitting guilt to the possession charge, N.R.J. admitted that the arrest was not wrongful. See O.R.T., 414 S.W.3d at 335; M.M., 354 S.W.3d at 926; see also J.T.S., 807 S.W.2d at 574. And because, pursuant to penal code section 12.45, the trial court considered the admitted possession offense in determining sentence for the DWI offense, the possession charge “resulted in” his DWI conviction.7 See Tex.Code Crim. Proc. Ann. art. 55.01(a)(2).
*86Based on the foregoing, we conclude that N.R.J. failed to sustain his burden of proving entitlement to expunction. See Nail, 305 S.W.3d at 674; 274 S.W.3d at 806. Accordingly, we hold that the trial court abused its discretion when it granted his petition for expunction. See Heine, 92 S.W.3d at 646; see also O.R.T., 414 S.W.3d at 336. We sustain the State’s second issue.
VIL Conclusion
Having overruled the State’s third issue and sustained the State’s first and second issues, we reverse the trial court’s judgment and render judgment that N.RJ.’s petition for expunction is denied.
DAUPHINOT, J., filed a dissenting opinion.
. Contrary to N.RJ.’s argument on appeal, a review of the State's answer and its arguments at the expunction hearing show that the State preserved these issues in the trial court. See Tex.R.App. P. 33.1(a).
. In arriving at our holding in Swe considered
the prefatory statement in subarticle 55.01(a) that expunctions must apply to all records of one arrest, the remaining provisions in chapter 55 indicating that the remedy of expunction is arrest-based and that partial, content-based removal or redaction of arrest files is not contemplated or sufficient, the decisions of the majority of our sister courts holding that individual charges within an arrest are not subject to expunction, and the long-recognized intent of chapter 55 to allow expunction of only wrongful arrests.
Id. at 845.
. The dissent states that there were "two separate warrants,” but Moore's arrest was not pursuant to a warrant. The dissent also claims that the officers arrested Appellee for DWI, subsequently found marijuana, and then arrested Appellee for possession of marijuana. This is simply not in the record on appeal; we cannot speculate as to the facts leading up to Appellee’s arrest for DWI and possession of marijuana.
. The petitioner must also satisfy either (A) or (B) of subarticle 55.01(a)(2), which are quoted in full above. See Tex.Code Crim. Proc. Ann. art. 55.01 (a)(2)(A)-(B).
. In J.S.H., the Austin court held that an admitted, unadjudicated offense considered by the trial court pursuant to section 12.45 is not a "final conviction.” See 37 S.W.3d at 167. We agree; as we have previously stated, "offenses barred under section 12.45 are neither convictions nor part of a defendant's prior criminal record.” See Ex parte Karlson, 282 S.W.3d 118, 127 (Tex.App.-Fort Worth 2009, pet. ref d). But J.S.H. did not consider whether an admitted, unadjudicated offense taken into account in punishment for another offense resulted in a final conviction for that other offense. See 37 S.W.3d at 167. Recently in G.B.E., the Austin court declined to follow its holding in J.S.H. to the extent that it conflicts with G.B.E., which we detail below. See G.B.E., - S.W.3d at -, 2014 WL 1165854, at *6 (emphasizing that subarticle 55.01(a)(2) does not require the petitioner to prove that the charge has not resulted in a final conviction “of that particular charge”).
. As evidence that article 55.01 allows for expunctions in absence of a wrongful arrest, the dissent points to a provision in the statute that allows an expunction when the indictment or information was dismissed or quashed because the person completed a pretrial intervention program. Dissent at 78. We do not dispute that the legislature may— and has' — provided for expunctions in absence of a wrongful arrest, and has made amendments to the statute geared toward "rehabilitation,” see Nail, 305 S.W.3d at 682, but a plea in bar like that presented in this case does not serve a rehabilitative purpose, unlike a pretrial intervention program. See Tex. Gov’t Code Ann. § 76.011 (West Supp.2014) (providing for programs for the supervision and rehabilitation of persons pretrial). And the primary purpose of article 55.01 remains to apply to wrongful arrests.
. The State argues in its third issue that the possession charge “remained pending” following his plea in bar. See Tex.Code Crim. Proc. Ann. art. 55.01(a)(2) (requiring that the *86charge “has not resulted in a final conviction and is no longer pending") (emphasis added). We fail to see how an offense remains "pending” following a plea in bar in which prosecution for that offense is barred. The State relies on M.M. for support, specifically its conclusion that although the State was not permitted to prosecute M.M. for an offense taken into consideration under section 12.45, the indictment for that offense "was not dismissed and remained pending." 354 S.W.3d at 925 (emphasis added). But M.M. specifically applied and dealt with former subarticle 55.01(a)(2)(A)’s requirement that any felony indictment be "dismissed," which is not applicable here. See id. at 925, 927. We overrule the State’s third issue. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283525/ | LEE ANN DAUPHINOT, Justice,
dissenting.
I respectfully dissent from the majority opinion.
Appellee was arrested for driving while intoxicated (DWI), and he was arrested for possession of marijuana.1 That is, there were two separate arrests pursuant to two separate warrants.2 Even though both arrests occurred on the same date, two separate cases were filed, and two separate bond amounts were set by the court. Ap-pellee could secure his pretrial release only by posting two separate bail bonds, BOND ID# 763645 in the possession case and BOND ID# 763646 in the DWI case.3 The possession case was designated Case No. CR-2008-00672-D, while the DWI case was designated Case No. CR-2008-00674-D.
The majority correctly states that “[a]n arrest occurs when a person has been actually placed under restraint or taken into custody by an officer.”4 Appellee was arrested for DWI. Subsequently, the officer discovered the marijuana and arrested Ap-pellee for possession of marijuana. Yet, the majority reaches the puzzling conclusion, unsupported by any authority, that “[rjegardless of whether multiple cases were filed or multiple bond amounts were set, there was but one arrest on December 6, 2007.”5 Is the majority confusing trips to the jail for booking with arrests? If a defendant had been accused óf committing an offense in jail, would the majority argue that there was but one arrest because he had already been placed under restraint?
The plea in bar permitted the trial court to consider Appellee’s admission of guilt in the possession case only to assess punishment in the DWI case, not to support the DWI conviction. Although the majority insists that the new expunction statute ap*87plies only to wrongful arrests,6 Article 55.01 specifically permits expunction when “the indictment or information was dismissed or quashed because the person completed a pretrial intervention program authorized under Section 76.011, Government Code.”7 Admission to a pre-trial intervention program does not require actual innocence and may require an admission of guilt: taking responsibility for one’s actions.8
I suggest that the real question before us is the proper scope of the expunction. The original stop was for DWI. The circumstances of the original DWI detention are not subject to expunction. Any signs of intoxication are not subject to expunction. The DWI arrest and subsequent breath test are not subject to expunction. The only matters subject to expunction are the discovery of the contraband marijuana and those matters directly related to the marijuana possession arrest and prosecution.
The expunction statute is clear.9 Appel-lee’s possession arrest did not result in conviction for possession, nor did it result in conviction for a lesser included offense of the possession charge. The possession arrest also did not result in deferred adjudication community supervision for that offense. We should affirm the trial court’s action. Had the legislature intended to add another requirement for expunction, such as the requirement that the case not have been considered in assessing punishment in a different case under penal code section 12.45, the legislature was quite capable of doing so. It did not. It is not the place of the courts to “improve on” the language of a statute, no matter how great the temptation.10 I therefore respectfully dissent from the majority opinion.
. See Tex. Penal Code Ann. § 49.04 (West Supp.2014); Tex. Health & Safety Code Ann. § 481.121(b)(1) (West 2010).
. See Tex.R. Evid. 201(b)-(c).
. See id.
. Majority Op. at 81.
. Id. at 81.
. Id. at 80 n. 2.
. Tex.Code Crim. Proc. Ann. art. 55.01 (a)(2)(A)(ii) (West Supp.2014).
. See, e.g., Tarrant Cnty., Tex., D.I.R.E.C.T.— Drug Impact Rehabilitation Enhanced Comprehensive Treatment Diversion Program, available at https://www.tarrantcounty.com/ direct/site/default.asp (noting that each participant is required to enter a guilty plea) (last visited Nov. 19, 2014).
. See Tex. Dep't of Protective & Regulatory Servs. v. Mega Child Care, Inc., 145 S.W.3d 170, 177 (Tex.2004).
.See Lamie v. U.S. Trustee, 540 U.S. 526, 542, 124 S.Ct. 1023, 1034, 157 L.Ed.2d 1024 (2004); Getts v. State, 155 S.W.3d 153, 158 (Tex.Crim.App.2005) (quoting Lamie, 540 U.S. at 542, 124 S.Ct. at 1034); see also In re M.N., 262 S.W.3d 799, 802 (Tex.2008) ("We ... presume the Legislature included each word in the statute for a purpose and that words not included were purposefully omitted.” (citations omitted)). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283526/ | OPINION
Bob Pemberton, Justice
State Farm Lloyds appeals a district court judgment affirming a final order of the Commissioner of Insurance determining that it had charged consumers homeowners insurance premiums that were excessive for several years during the 2000s and ordering refunds with interest. We will affirm the Commissioner’s order with respect to the first year at issue, but must reverse as to the remaining years and remand for further proceedings. We also hold that there was reversible error in the Commissioner’s award of interest on refunds he determined to be due.
BACKGROUND
This appeal arises from the proceedings on remand this Court required in Geeslin v. State Farm Lloyds (State Farm Lloyds I),2 and we will refer the reader to that opinion for a comprehensive explanation of statutory context and procedural prologue. On remand, the Texas Department of Insurance (TDI) noticed a “re-hearing” to determine whether the Commissioner should affirm the reduction TDI had ordered in the “initial rate” State Farm Lloyds had filed under former art. 5.26-1 of the Insurance Code,3 or require a greater or lesser reduction instead.4 The Office of Public Insurance Counsel (OPIC) intervened. The hearing was ultimately conducted over several days in 2009, and the record was closed in November of that year.
The State Farm Lloyds “rate” in dispute at the hearing referred to “the cost of insurance per exposure unit ... with an *92adjustment to account for the treatment of expenses, profit, and individual insurer variation in loss experience, and before any application of individual risk variations.” 5 Former art. 5.26-1 required that the “initial rate” filed by State Farm Lloyds and ultimately'approved by TDI be “just, reasonable, adequate, not excessive, and not unfairly discriminatory for the risks to which it applies.”6 These requirements, simply put, mean that an insurer charges consumers a price sufficient to recover both its projected expenses of asT suming risks under its policy and a profit yielding a “reasonable” rate of return on its capital, but not a profit “unreasonably” higher than this.7 The requirements also operate against a constitutional backdrop. This Court has held — most recently in State Farm Lloyds I — that government-set rates are deemed to effect an unconstitutional taking of an insurer’s property if the insurer cannot recover both its projected “operating expenses” and a “reasonable rate of return” on its capital.8
In advocating their views of a reasonable rate that would comply with these statutory and constitutional requirements, the parties, generally speaking, followed a common methodology in which they calculated an “indicated” rate comprised of the sum of several specified categories of projected expenses per exposure unit (e.g., estimated payments or losses related to hurricanes), plus an additional “underwriting profit” provision calculated so as to ensure that State Farm Lloyds obtained an overall profit (including net income from both premiums and investments) suf*93ficient to provide a rate of return on its capital equivalent to that which it could obtain in alternative investments of equivalent risk (i.e., a return compensating it for the “opportunity cost” of its capital).9 The indicated rate would then be compared to the premium State Farm Lloyds was projected to earn per exposure unit under the filed initial rate it had charged its customers. If the indicated rate was less than State Farm Lloyds’s projected premiums, its initial rate would be deemed excessive. Conversely, if the indicated rate equaled or exceeded the projected premiums, a rate reduction would be considered confiscatory. Although generally following the same method for calculating the indicated rate and any required reduction, the parties differed with respect to the cost or expense elements that should be included in the indicated rate and their amount.
The issues were further framed by an unusual procedural posture on remand. As explained in State Farm Lloyds I, former art. 5.26-1 (a component of the 78th Legislature’s watershed S.B. 14) had governed the first of three phases through which the Legislature imposed rate regulation on what had become a largely unregulated Texas homeowners insurance market.10 Under former art. 5.26-1, effective June 11, 2003 through August 31, 2004, insurers were required to file their initial regulated rates within 20 days of the statute’s effective date and implement them.11 After this initial filing, former art. 5.142, effective June 11, 2003, through November 30, 2004, provided temporary rate-regulation procedures.12 Under former art. 5.142, insurers were required to file their rates with TDI and await the Commissioner’s approval before implementing them.13 Then, beginning on December 1, 2004, a permanent file-and-use regime, governed by former art. 5.13-2 of the Insurance Code (now codified as chapter 2251 of that code)14 took effect whereby insurers file their rates with TDI and implement them, subject to the Commissioner’s power to disapprove the rates before they go into effect or disapprove further use of the rates after they go into effect.15 In State Farm Lloyds’s case, TDI had ordered, and the Commissioner had affirmed, a 12% reduction in the insurer’s initial filed rate. This reduction, all other things being equal, would have taken effect on September 7, 2003. However, in former art. 5.26-I, the Legislature had allowed an insurer who sought judicial review of a rate-reduction order, as State Farm Lloyds had, the *94option of charging its filed rate while litigation was pending,16 subject to mandatory refunds of “the difference in overcharged premium to each policyholder, plus interest,” if “on final appeal the court upholds the commissioner’s determination that the insurer’s rates are excessive.”17 State Farm had availed itself of this option and continued charging its initial filed rate (which we will term its “implemented rate”), notwithstanding the Commissioner’s opposition to it, pending litigation over its validity.
As events turned out, the first round of litigation over State Farm Lloyds’s implemented rate had not concluded until 2008, when this Court issued its State Farm Lloyds I decision. In remanding the case to the Commissioner for further proceedings despite former art. 5.26-1’s expiration on September 1, 2004, this Court observed that the Legislature had provided that the expiration ‘“does not affect an action or proceeding against an insurer subject to that law for failure to comply with that law before its expiration, regardless of when the action or proceeding was commenced, and that law is continued in effect for that purpose.’”18 In the meantime, however, State Farm Lloyds’s implemented rate has remained in effect not only as its operative initial rate under former art. 5.26-1, but also as the insurer’s operative rate under former art. 5.142, which had contained parallel provisions authorizing the insurer to charge its desired rate • pending appeal, subject to refunds with interest if the rate was later found excessive.19 State Farm Lloyds had similarly continued charging the implemented rate as the file-and-use regime began on December 1, 2004, and would ultimately do so, despite TDI’s attempts to restrict the insurer from continuing to charge the rate and the insurer’s efforts to obtain rate increases,20 until mid-2008, when the Commissioner finally approved increased rates effective on June 1 for new business and August 1 for renewal business. Consequently, the dispute on remand concerned whether State Farm Lloyds, through its implemented rate, had overcharged its policyholders not only between September 7, 2003, and August 31, 2004, the period in which former art. 5.26-1 had been in effect, but whether it had continued to do so for several years thereafter. The statutory standards governing the “excessiveness” of State Farm’s “rate” after September 1, 2004, were essentially identical to those applicable under former art. 5.26-1.21
But while the hearing on remand thus concerned whether State Farm Lloyds had overcharged its customers in the past, the Commissioner emphasized that “ratemak-ing is a prospective endeavor,” alluding to the longstanding principles barring retroactive ratemaking, the making of “a retrospective inquiry to determine whether a prior rate was reasonable and imposing a surcharge when rates were too low or a refund when rates are too high.”22 He *95likewise observed that both the relevant Insurance Code provisions23 and actuarial principles24 contemplated prospective ratemaking based on estimates of future costs, and he additionally deemed it “unfair to judge the reasonableness of any of the parties’ estimates of future costs based on information that was unknowable” at the time the estimates were made.” (Emphases in original.) Thus, the proper rate-making inquiry on remand, as the Commissioner reasoned, centered not on real-life events that had occurred while the implemented rate was in effect, viewed in hindsight — as he put it, “retrospective evidence ... has no business in a rate hearing” — but on the rate or rates the Commissioner should have set prospectively from the perspective of a time preceding the period or periods in which the rate was used. To that end, the Commissioner focused the inquiry on information known or “knowable” as of early September 2003, the date of the original hearing.25 However, the Commissioner did conclude that evidence of State Farm Lloyds’s financial condition as of the time of the rehearing would be relevant to assessing the impact of any refunds he might order.
A related question concerned the time intervals for the rate or rates the Commissioner would determine — not only the period in which former art. 5.26-1 had been in effect, and for which the cost estimates underlying State Farm Lloyds’s implemented rate had been made, but almost four years thereafter, far longer than the typical one-year term of a homeowner’s insurance policy. The Commissioner ultimately focused the inquiry primarily on determining the rate that should have applied during an “initial term” between September 7, 2003 and August 31, 2004, corresponding roughly to the period in which former art. 5.26-1 had been in effect and for which the implemented rate had been designed. Then, utilizing his initial-term indicated rate as a starting point, the Commissioner considered the extent to which adjustments or modifications to the indicated rate should be made during the “subsequent period” between September 1, 2004 and July 31, 2008.
A further development impacting the hearing’s procedural posture had been the 2004 discovery of an error in State Farm Lloyds’s original premium projections under the implemented rate that had caused it to significantly overstate the figure. TDI had also relied on the same premium projections, and the error had correspondingly skewed upward the amount of rate reduction it determined necessary to conform State Farm’s Lloyds’s implemented rate with the agency’s view of the proper *96indicated rate. The Commissioner deemed this error to be “knowable” at the time of the first hearing, and TDI agreed that its calculations should be revised and abandoned its advocacy of the original 12% rate reduction. Accordingly, the Commissioner found that TDI’s original 12% reduction would “produce a confiscatory rate” and, as such, that State Farm Lloyds had met its initial burden under former art. 5.26-1 (as modified by State Farm Lloyds I) to show by clear and convincing evidence that TDI’s rate would not be “just, reasonable, [and] adequate ... for the risks to which it applies.”26 And with that burden being met, the Commissioner reasoned, the relevant “issue for determination” became simply “the development of rates chargeable by SFL [State Farm Lloyds] which are just and reasonable and neither confiscatory nor excessive for the risks to which they apply.” In the Commissioner’s view, “[n]either [TDI] Staff nor SFL bore the burden of production or persuasion on this issue.”
After correcting for the erroneous premium projections, TDI determined that State Farm Lloyds’s implemented rate had been excessive by over 9% through June 2004. OPIC, on the other hand, did not correct for the error and urged rate reductions in line with TDI’s original position. In contrast, State Farm Lloyds insisted that the Commissioner adopt its implemented rate in lieu of any reduction because its costs had actually justified a 12% rate increase over its implemented rate, had it opted to seek one.27 Although there were other areas of divergence in the parties’ respective calculations of the indicated rate, this appeal would ultimately center on two.
The first, presenting what the Commissioner would term the most “vexing and difficult” issue in the proceeding, concerned a provision State Farm Lloyds had included in its rate to aid its recovery from large financial losses it had incurred a few years earlier. Between 2000 and 2002, State Farm Lloyds had incurred almost $2 million in underwriting losses from unanticipated mold claims and a multitude of non-hurricane catastrophes (e.g., tornadoes, hailstorms, and ice storms).28 The aggregate losses had dwarfed the preexisting amount of State Farm Lloyds’s surplus, the cash reserves that insurers are required to maintain beyond the amounts reserved for incurred and expected claims, which serve as a “cushion” against losses not anticipated in the existing rate. By statute, State Farm Lloyds was required to maintain a minimum surplus equaling one-third of its total premiums — 33$ for every $1 of premium, or a 3:1 premium-to-surplus ratio — or else be deemed “statutorily insolvent” and potentially subject to supervision or conservatorship.29 Amid its losses, there is no dispute that State Farm Lloyds would have been rendered statutorily insolvent absent large cash infusions, and thus it had turned to an affiliate, State Farm Mutual Automobile Insurance Com*97pany (State Farm Mutual), and obtained three advances — in November 2001, February 2002, and September 2002 — in amounts totaling over one billion dollars. When State Farm Lloyds filed its initial rate in June 2003, its surplus was just below $467 million, giving it a premium-to-surplus ratio of roughly 2.8:1.
The advances from State Farm Mutual had formed the consideration for a $1.05 billion “consolidated surplus debenture” that State Farm Lloyds had issued to State Farm Mutual. The parties agree that the terms of this instrument distinguish it as a “surplus note,” a type of financial instrument that evidently has been used in the insurance industry for decades30 and has specifically been addressed by TDI rule.31 As the term suggests, a “surplus note” is in the nature of a debt instrument, but the interests of the creditor are subordinated in a manner permitting the proceeds to be initially treated for accounting purposes as unencumbered surplus, similar to equity capital. In the case of State Farm Lloyds’s surplus note, it reflects that the insurer owes State Farm Mutual a principal amount of $1.05 billion, plus interest accruing at 7% per annum, compounded and payable semiannually, with a maturity date of December 31, 2016. However, tracking requirements from TDI’s rules,32 the instrument conditions State Farm Lloyds’s payment obligation on the existence of surplus exceeding specified threshold amounts — principal is to be repaid only out of “excess surplus funds” that exceed $900 million, while semi-annual interest payments are to be made only from surplus, if any, that exceeds $700 million. Similarly, only if and to the extent these payment obligations actually arise is any offsetting liability recognized.33 Of final note, TDI’s rules require that the Commissioner give prior approval to any surplus notes before issuance,34 and State Farm Lloyds obtained such approval here.
State Farm Lloyds had included in its rate indication a “surplus note” provision in the amount of 9% of premium. This amount, as explained by the insurer’s witnesses during the hearing, was intended to (1) capture the annual costs of repaying the principal on the surplus note, plus interest, amortized over a 15-year term,35 plus (2) provide additional funds to increase State Farm Lloyds’s surplus (net of the funds going toward the surplus-note payments) at a rate so as to equal the amount of the company’s projected annual premiums (i.e., 1:1 premium-to-surplus ratio) within nine years. Both TDI and OPIC opposed the inclusion of the surplus-note provision in the rate, urging that State Farm Lloyds was entitled to recover only the opportunity cost of the surplus-note proceeds, not additional sums to recapitalize the company, and that the compa*98ny’s rate would already ensure it this recovery through the rate of return secured by the underwriting-profit provision. In addition to its surplus-note provision, State Farm Lloyds had included an underwriting-profit provision in its rate, equal to 5% of premiums, determining that this amount would provide it a rate of return on its capital equivalent to alternative investments of similar risk. TDI had agreed that this underwriting-profit figure was appropriate for recovering State Farm Lloyds’s costs of capital — including any recoverable costs related to the surplus note. In contrast, State Farm Lloyds insisted that the costs of amortizing the surplus-note principal and “rebuilding” the company’s surplus, as it sought to recover through the surplus-note provision, were instead in the nature of expenses of providing homeowner’s insurance in the volatile Texas market, akin to projected payments on claims, and were appropriately compensated in the rate separately and apart from its costs of capital recovered through underwriting profit and rate of return.
The second material disputed rate component was a “contingencies” provision, equal to 2% of premium, that State Farm Lloyds had included in its rate. The Commissioner heard evidence, and the parties appear generally to agree, that a “contingencies” provision, like underwriting profit, is an accepted means by which ratemak-ers account for the cost of capital in light of risk.36 Underwriting profit is said to account for the undifferentiated risk that an insurer’s actual expenses will turn out to vary from the estimates that the rate is designed to recover within any given period.37 But where deviations between an insurer’s estimated and actual expenses can be shown to persist systematically over time and be incapable of being eliminated by changing other components of the ratemaking process, it is considered appropriate to include in the rate an additional contingencies provision to compensate for the expected range of unanticipated losses.38 Thus, to summarize the difference between the two types of provisions, a contingency provision seeks to recover an expected range of losses and is thus not expected to be realized as profit, while an underwriting-profit provision yields an expected profit that accounts for variability in results.39
In attempting to establish the requisite systematic deviations between estimated and actual expenses, State Farm Lloyds relied in part on evidence of past court decisions that had effectively broadened coverage beyond what was contemplated in its rate structure. Initially, both TDI and OPIC opposed inclusion of a contingencies provision. Although TDI eventually acceded to the provision, OPIC maintained that State Farm Lloyds had failed to demonstrate any pattern of deviations that had not been addressed by intervening regulatory changes. It emphasized, for example, that the Commissioner in 2002 had approved new homeowners-policy forms that unequivocally excluded mold coverage.
The Commissioner determined that neither State Farm Lloyds’s 9% surplus-note provision nor its 2% contingencies provision should be included in the insurer’s *99rate. Regarding the former, the Commissioner agreed with TDI and OPIC that State Farm Lloyds was entitled to recover only the cost of the surplus-note proceeds that would already be compensated through a reasonable return on capital ensured through the underwriting-profit provision. Consequently, he reasoned that “[a]llowing a separate provision for a write-down or amortization of SFL’s surplus note and related interest would be tantamount to allowing two returns on capital in the ratemaking formula.” The Commissioner similarly concluded that “[i]t is unreasonable to include principal and interest payments oh the surplus note as an expense in SFL’s rates” and that doing so “in addition to rate provisions which already contemplate SFL’s expected future costs, including its cost of capital, will produce excessive rates.” As for the contingencies provision, the Commissioner found that “[t]he evidence does not support a conclusion that there is a systematic variation between expected costs and actual costs.” Accordingly, he concluded that “[i]nelusion of a contingency provision over and above a reasonable underwriting profit provision which reflects the risks of SFL writing homeowners insurance in Texas in 2008 will produce excessive rates.”
But while deciding that these specific rate provisions were unwarranted and inappropriate, the Commissioner determined that the underlying evidence was nonetheless probative of risk that had not yet been sufficiently accounted for in State Farm Lloyds’s calculation of underwriting profit. Although stopping short of finding that a “systematic variation between expected costs and actual costs” actually existed so as to warrant a contingencies provision, the Commissioner found that there “may be ” such a variation (emphasis in original), that this “conclusion ... implies risk,” and that “this risk can be considered and addressed in deriving an appropriate underwriting profit ... provision.” Similarly, with respect to the surplus-note obligation, the Commissioner found that:
While the inclusion of the separate 9.0% surplus note provision in the ratemaking formula would be unreasonable, it is reasonable to consider the existence of the surplus note, and the need for both the principal and related interest to be paid by December 31, 2016, in considering the reasonableness of the underwriting profit provision. Specifically, the Commissioner finds it is reasonable to consider the existence of the surplus note, and SFL’s obligation to timely repay it when determining: (1) the level of risk faced by SFL in writing homeowners insurance in 2008; (2) an appropriate premium to surplus ratio [as explained below, a method of weighing risk] or cost of capital; and (3) an appropriate underwriting profit provision.
The Commissioner additionally found that the analysis should also consider another “indication of risk” that had been “brought forth in the record”: “[t]he fact that SFL is a single-state insurer deriving almost its entire premium from a single line of insurance which includes catastrophe coverage in a catastrophe-prone state.” And while the Commissioner acknowledged evidence that “SFL is making significant provision for catastrophe reinsurance” (i.e., shifting the risk of such losses to the reinsurer)— in fact, the Commissioner ultimately approved including a rate component to fund such coverage — he also found that “some catastrophe exposure” faced by State Farm Lloyds “is not fully covered by reinsurance.” 40
*100In light of these indicators of additional risk he had identified, the Commissioner, to summarize his analysis, recalculated underwriting profit using the same basic methodology that State Farm Lloyds had utilized, but with greater weighting of risk in the equation. Based on this analysis, the Commissioner concluded that an appropriate underwriting profit for State Farm Lloyds during the initial period was 8.5% of premium — in other words, an underwriting profit 3.5% higher than the company itself had sought, and 1.5% higher than the combined total of the company’s underwriting-profit and contingencies provisions.
Despite this increase in the underwriting-profit component of the Commissioner’s rate indication, State Farm Lloyds’s implemented rate remained excessive by comparison. In accordance with the difference, the Commissioner concluded that a “rate reduction of -6.2% ... produces rates that are both just and reasonable and neither excessive nor confiscatory for the period September 7, 2003, through August 31, 2004.” He then turned to the “subsequent period” between September 1, 2004 and July 31, 2008.
The Commissioner rejected arguments by OPIC that he should merely extend the initial-period rate indication unchanged through the subsequent period, finding that “[tjhere is no evidence in the record to suggest that SFL’s rates remained at the same level of excessiveness for the entire period” and that, to the contrary, the “evidence ... suggests] the level of excessiveness of SFL’s rates declined over time.” To account for these changes, the Commissioner, relying on the same data set of September 2003 information from which the initial rate had been derived, projected trends of increases in several cost components of the rate (which would tend to justify a higher rate) into the subsequent period to determine a single rate for that entire period. But while determining these cost elements prospectively from the perspective of September 2003, the Commissioner also reduced the underwriting-profit component of the rate based on events that had occurred much later.
In 2006 and 2007, State Farm Lloyds’s non-hurricane catastrophe losses had turned out to be significantly lower than the projections built into its implemented rate, causing the insurer’s surplus to increase to an extent that it had been able to pay both accrued interest on the surplus note and large amounts of principal. Finding that “[djuring the subsequent period SFL [had] repaid approximately $400 million, or more than one-third, of the surplus note principal,” the Commissioner deemed it “reasonable to consider the repayment of $400 million of surplus note principal during the subsequent period when evaluating the risk associated with the repayment of the $1.05 billion surplus note.” On that basis, he determined that a “reasonable underwriting profit provision used to determine the rate in the subsequent period is 8.0%,” a reduction of one-half of one percent from the underwriting profit in the ordered rate for the initial period. Incorporating the lower underwriting profit into the flat rate the Commissioner had calculated for the subsequent period yielded an indicated rate that was 3.4% lower than State Farm Lloyds’s implemented rate throughout the entire subsequent period.
*101In light of his determinations that State Farm Lloyds’s implemented rate had been excessive during both the initial and subsequent periods, the Commissioner ordered that the insurer refund the difference to its policyholders. He estimated the gross amount of these refunds to be $256.7 million, plus accrued interest of approximately $53.0 million. The Commissioner found, however, that the insurer could provide these refunds in the form of credits to policyholders during the initial or subsequent period who renewed their coverage.
State Farm Lloyds timely sought judicial review of the Commissioner’s final order in the district court below.41 On evidence consisting solely of the administrative record, the district court affirmed the Commissioner’s order in full. State Farm Lloyds then perfected this appeal.
ANALYSIS
State Farm Lloyds brings six points of error on appeal. Collectively, the points challenge, based on an assortment of evi-dentiary and constitutional grounds, (1) the Commissioner’s refusal to include the surplus-note provision in State Farm Lloyds’s rate; (2) the Commissioner’s refusal to include the 2% contingencies provision in the rate; (3) the Commissioner’s determination of the underwriting-profit component of the rate for the initial period; (4) the rate the Commissioner imposed for the “subsequent period;” (5) the refunds ordered by the Commissioner; and (6) interest awarded by the Commissioner on amounts he held to be due.
Standard of review
The parties agree that judicial review is governed by the familiar standard set forth in section 2001.174 of the Administrative Procedure Act (APA):
[A]court may not substitute its judgment for that of the agency as to the weight of the evidence on questions committed to agency discretion but:
(1) may affirm the decision of the agency in whole or in part; and
(2) shall reverse or remand the case for further proceedings if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(A) in violation of a constitutional or statutory provision;
(B) in excess of the agency’s statutory authority;
(C) made through unlawful procedure;
(D) affected by other error of law;
(E) not reasonably supported by substantial evidence considering the reliable and probative evidence in the record as a whole; or
(F) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.42
Essentially, this is a rational-basis test to determine, as a matter of law, whether an agency’s order finds reasonable support in the record.43 “The test is not whether the agency made the correct conclusion in our *102view, but whether some reasonable basis exists in the record for the agency’s action.”44 We apply this analysis without deference to the district court’s judgment.45 We presume that the agency’s findings, inferences, conclusions, and decisions are supported by substantial evidence, and the burden is on the contestant to demonstrate otherwise.46
Substantial-evidence analysis entails two component inquiries: (1) whether the agency made findings of underlying facts that logically support the ultimate facts and legal conclusions establishing the legal authority for the agency’s decision or action and, in turn, (2) whether the findings of underlying fact are reasonably supported by evidence.47 The second inquiry, which has been termed the “crux” of substantial-evidence review,48 is highly deferential to the agency’s determination: “substantial evidence” in this sense “does not mean a large or considerable amount of evidence” — in fact, the evidence may even preponderate against the agency’s finding — but requires only “such relevant evidence as a reasonable mind might accept as adequate to support a [finding] of fact.”49 Likewise, we “may not substitute [our] judgment for the judgment of the state agency on the weight of the evidence on questions committed to agency discretion.” 50 In contrast, the first inquiry, concerning the extent to which the underlying facts found by the agency logically support its ultimate decision or action, may entail questions of law that we review de novo.51
State Farm Lloyds’s points of error implicate both deferential aspects of substantial-evidence review and issues that we must examine de novo. Foremost among the latter are State Farm Lloyds’s arguments grounded in constitutional takings principles, which substantially overlap and interrelate with their non-constitutional grounds.52 Although these principles derive from both the Texas and federal constitutions,53 the parties have not suggested *103any material substantive difference between these provisions as they impact this case, so we will assume there are none.54 Similarly, in invoking competing views of these principles and their application here, both sides have relied primarily on jurisprudence from the United States Supreme Court applying the Takings Clause of the federal constitution, with much emphasis on its seminal Hope Natural Gas decision.55
Under these authorities, the United States Supreme Court has explained, “[t]he guiding principle has been that the Constitution protects [regulated entities] from being limited to a charge for their property serving the public which is so ‘unjust’ as to be confiscatory,” a charge that is “ ‘so unjust as to destroy [the] value of the property for all the purposes for which it was acquired,’ and in so doing ‘practically deprive[s] the owner of property without due process of law.’”56 But above this constitutional floor, a rate “may reduce the value of the property which is being regulated” or “limit stringently the return recovered on investment.”57 “All that is protected against, in a constitutional sense, is that the rates fixed by the [government] be higher than a confiscatory level.”58
Starting with Hope, the Supreme Court began focusing this inquiry not on the precise methodology through which a rate is formulated, but on a rate order’s “end result”:
It is not theory but the impact of the rate order that counts. If the total effect of the rate order cannot be said to be unjust and unreasonable, judicial inquiry ... is at an end. The fact that the method employed to reach that result *104may contain infirmities is not then important.59
Thus, as far as constitutional takings principles are concerned, a governmental rate-maker “[i]s not bound to the use of any single formula or combination of formulae in determining rates.”60
Hope further explained that evaluating the justness and reasonableness of a rate’s “end result” entails “a balancing of the investor and the consumer interests.” 61 In that analysis:
[T]he investor interest has a legitimate concern with the financial integrity of the company whose rates are being regulated. From the investor or company point of view it is important that there be enough revenue not only for operating expenses but also for the capital costs of the business. These include service on the debt and dividends on the stock. By that standard, the return to the equity owner should be commensurate with returns on investments having corresponding risks. That return, moreover, should be sufficient to assure confidence in the financial integrity of the enterprise so as to maintain its credit and to attract capital.62
In short, courts consider “whether the order may reasonably be expected to maintain financial integrity, attract necessary capital, and fairly compensate investors for the risks they have assumed, and yet provide appropriate protection for the relevant public interests.”63 A rate whose end result effects a reasonable balancing of insurer and investor interests relative to ratepayer or broader public interests “cannot properly be attacked as COnfiSCatO-py ” 64
In reviewing whether the Commissioner’s order effected a reasonable balancing of these interests, we give deference under the substantial-evidence standard to his findings regarding “initial questions of historical fact,” but review de novo his “second-order analysis [of] applying] th[e] historical facts to the legal standards.”65
*105Surplus note
We will begin with the single most pivotal question in this rate appeal, and the one on which State Farm Lloyds places the greatest emphasis — the validity of the Commissioner’s decision not to include the 9% “surplus note” provision in the ordered rate. State Farm Lloyds challenges this determination principally through its first two points of error.
Interest
In its first point of error, State Farm Lloyds insists that without the surplus-note provision, the ordered rate, in both the initial and subsequent periods, is confiscatory and unconstitutional because it fails to account for the interest it owes on the surplus note. This is so, State Farm Lloyds reasons, because interest on the surplus note is properly considered an “operating expense” distinct from the costs of capital compensated through rate of return on capital and underwriting profit, and must be compensated as such in the rate.66 To support this premise, State Farm Lloyds points to TDI’s rule governing surplus notes, which requires accounting recognition of interest payments as “liabilities” when they come due67 and accounting principles, generally incorporated into TDI’s rules,68 requiring that interest “shall be expensed in the statements of operation when approved for payment.”69 State Farm Lloyds also emphasizes Texas Supreme Court decisions involving utility ratemaking that, in its view, approve or contemplate recovery of interest or other “carrying costs” on debt as specific components of the rate separate from a return on capital.70 In response, TDI and OPIC continue to *106maintain that, as the Commissioner found, State Farm Lloyds is seeking to double-recover a cost of capital for which it is already being compensated in the rate.
To address State Farm Lloyds’s assertions, we begin by noting that the Hope court characterized “service on the debt” as a component of the “the capital costs of the business,” as opposed to “operating expenses,”71 and that interest on debt is commonly accounted for through the rate of return on capital in other ratemaking contexts.72 The Commissioner heard evidence that the same is true in insurance ratemaking — interest on an insurer’s debt is considered to be a cost of capital that is properly and customarily compensated through the rate of return secured through underwriting profit, not as a type of operating expense. We cannot conclude the Commissioner’s decision to address State Farm Lloyds’s surplus-note interest the same way is without reasonable support in the evidence.
But the more critical feature of Hope, as it relates to State Farm Lloyds’s ultimate constitutional complaint, is the Supreme Court’s emphasis on the “total effect of the rate order,” not the “theory” or “method employed,” in determining a rate’s constitutionality.73 Under Hope, whether the ordered rate addressed interest on the surplus note as an “operating expense,” a “cost of capital” addressed through underwriting profit and rate of return, or through some other means, is singularly of little constitutional significance. What matters is whether the rate, in its ultimate effect, sufficiently accounted for the cost in some fashion.
To the extent State Farm Lloyds contends that the ordered rate fails altogether to account for interest -on the surplus note, it overlooks that the reasonable cost of capital contemplated by the insurer’s own underwriting-profit model, later utilized by the Commissioner, would include the cost of the surplus-note proceeds. That is, the ordered rate provided State Farm Lloyds a return on its capital, including the surplus-note proceeds, calculated so as to approximate the returns the funds would have garnered in alternative investments of similar risk. TDI’s witnesses testified that these earnings are the cost or value of State Farm Lloyds’s capital in economic effect, and for ratemaking purposes, inasmuch as they represent the rate of return that must be paid to investors to risk their funds in the enterprise.
While the Commissioner did not attempt to distinguish or specifically account for the actual amount of State Farm Lloyds’s interest obligations under the surplus note in determining the rate of return on the proceeds74 — in effect, he “costed” all of *107State Farm Lloyds’s capital as if it were equity75 — TDI presented expert testimony that this was the norm in insurance rate-making. Further support for the Commissioner’s approach is found in the evidence that the surplus note, while a debt instrument, also had attributes of equity — the debt obligations are subordinated so as to ensure that the proceeds can be used to supply minimum levels of surplus first. Yet even if there were any error in failing to differentiate surplus-note interest from its other costs of capital, State Farm Lloyds has not demonstrated any harm from the Commissioner’s approach.
To the contrary, according to projections prepared by one of State Farm Lloyds’s own experts, Dr. David Appel, the 5% underwriting profit originally advocated by the insurer and TDI would generate earnings sufficient to cover the same amortized costs of repaying the surplus note that the insurer had built into its surplus-note provision — including both interest and principal — -plus grow additional surplus at a rate of at least 4% annually through 2008. Ap-pel also prepared a similar set of projections that assumed a 7.8% underwriting profit, which generated surplus growth of at least 9% annually above the amortized costs of repaying the surplus note through the same period. The rate ultimately ordered by the Commissioner, as noted, provided State Farm Lloyds an even higher underwriting profit in both the initial and subsequent periods.
This evidence reasonably supports the Commissioner’s findings that the ordered rate fully accounts for interest on the surplus note (and, indeed, also principal) through the return on capital secured through underwriting profit. It would follow that allowing a separate provision to recover interest would, as the Commissioner found, amount to a double-recovery and render the rate excessive. In light of these findings and their evidentiary support, we cannot conclude that the Commissioner’s refusal to separately provide for recovery of surplus-note interest renders the ordered rate unreasonable or confiscatory. Accordingly, we overrule State Farm Lloyds’s first point of error.
Recapitalization
In its second point of error, State Farm Lloyds asserts that the ordered rate, in both the initial and subsequent periods, “failed to adequately and measurably provide for [its] principal payments on the surplus note.” By this, significantly, State Farm Lloyds does not mean that the ordered rate failed to provide it sufficient earnings to repay principal owed on the surplus note — again, Appel’s projections tended to show that the rate would cover the annualized amortized principal and interest on the note even with a lower underwriting profit than the Commissioner ultimately ordered. Instead, the insurer’s contention is that the rate must also enable it to build additional surplus at a rate that would increase its total surplus (net of amounts reserved for surplus-note payments) to a 1:1 premium-to-surplus ratio within nine years. Unless the rate enables it to do both, State Farm Lloyds insists, it would be forced to operate with “depleted” levels of surplus for an inordinately prolonged period of time, and run the risk in the meantime that further catastrophes would derail its repayment of the surplus note. Such developments, it adds,- would undermine confidence in its financial integrity and prevent it from attracting future investment to an unreasonable and unconstitutional degree.76
*108This was the real point of Appel’s projections, as State Farm Lloyds emphasizes. According to Appel’s calculations, a rate with a 5% underwriting profit and no surplus-note provision would require 21 years (2024) to grow State Farm Lloyds’s surplus, net of surplus-note payments, to reach a 1:1 premium-to-surplus ratio. With a 7.8% underwriting profit, according to Appel, such “recapitalization” would take 17 years (2020).
The Commissioner was unpersuaded that State Farm Lloyds was entitled to recover any costs related to the surplus note beyond the aforementioned return on its capital secured through underwriting profit. Assuming the rate provided State Farm Lloyds returns on its capital commensurate with those to be earned in alternative investments of similar risk, as the Commissioner observed in his order, there would be incentives for investors to provide capital to State Farm Lloyds going forward.77 The Commissioner was similarly skeptical that there was any immediate financial compulsion to provide State Farm Lloyds anything more. Although aeknowl-edging that having a 1:1 premium-to-surplus ratio would be “ideal,”78 the Commissioner cited Appel’s projections indicating that the ordered rate (and even a rate providing a lower underwriting profit) would enable the insurer to gradually rebuild its surplus to that 1:1 level while amortizing the surplus note, albeit at a slower pace than would be possible with the surplus-note provision. In light of this evidence, the upshot of State Farm Lloyds’s arguments, as the Commissioner saw it, was that he should “establish a rate so [the] insurer can expect to grow its surplus to a pre-determined level over a specified period of time over and above its cost of capital.” He rejected that notion, emphasizing the Supreme Court’s holdings that “[a]ll that is protected against, in a constitutional sense, is that the rates ... be higher than a confiscatory level.”79 He similarly viewed the surplus-note provision as an unjustified attempt by State Farm Lloyds not only to recoup its legitimate costs of providing insurance to its then-current policyholders, but also to effectively shift its past losses to them as well.
*109On the other hand, the Commissioner was given some pause by evidence that State Farm Lloyds’s premium-to-surplus ratio in 2003 was relatively low, noting a concession by TDI’s expert that the insurer’s premium-to-surplus ratio was only 2.35:1 around the time of the original hearing. Until State Farm Lloyds regained more solid financial footing, the Commissioner acknowledged, further unanticipated catastrophes would have had potentially “severe” repercussions for the insurer’s ability to fund repayment of the surplus note, obtain additional capital, and ultimately maintain financial viability. But the Commissioner remained unconvinced that he should approve the surplus-note provision for these reasons, a provision that, in his view, purported to provide State Farm Lloyds extraordinary returns above its cost of capital. Rather, the Commissioner viewed these considerations as going to the cost of capital itself, more specifically risk — the potential that State Farm Lloyds’s actual costs would vary from the expected costs anticipated in its rate — that is factored into determination of the reasonable return on its capital and underwriting profit. Additionally, the Commissioner determined that the parties themselves had not sufficiently accounted for these and other considerations bearing on risk when determining cost of capital and underwriting profit. To determine the appropriate rate, then, the Commissioner recalculated underwriting profit with greater weighting of risk and determined that State Farm Lloyds should receive a substantially higher underwriting profit of 8.5% of premium during the initial period and 8.0% in the subsequent period. Thus, the net effect of these rulings was to provide State Farm Lloyds an additional 3.0% to 3.5% of premium on top of the 5% it had sought as underwriting profit during the initial period, but not the full 9% of premium it had sought in the form of the surplus-note provision..
As State Farm Lloyds recognizes, our ultimate consideration in addressing its constitutional challenge to the ordered rate is whether the “end result” represents a reasonable balancing between the interests of the insurer and its investors (chiefly State Farm Mutual) on one hand, and those of its policyholders and the broader public interest on the other. With respect to State Farm Lloyds’s second issue, that inquiry focuses on whether the Commissioner’s refusal to permit State Farm Lloyds recovery of the full 9% of premium it sought through the surplus-note provision caused the ordered rate to unreasonably disfavor its financial and investor interests relative to those of ratepayers and the public. On the company and investor side of the equation, a rate that provided State Farm Lloyds returns reflecting the opportunity cost of its capital would, as the Commissioner observed, tend to attract funds from economically rational investors, at least in theory. Moreover, as TDI and OPIC emphasize on appeal, the Commissioner heard evidence that if the expense and earnings estimates anticipated in the rate held true, State Farm Lloyds would be able to cover the annualized amortized costs of the surplus note and gradually grow its surplus. And while the Commissioner acknowledged the potentially troubling consequences if actual events did not turn out that way, especially during the initial term, he took account of this risk through a substantial increase in the underwriting profit provided in the rate.
On the other side of the equation, furthermore, were concerns that a higher rate would effectively force State Farm Lloyds’s then-current policyholders to bear the costs of the company’s past losses. The Supreme Court has long held that a “company may not insist as a matter of *110constitutional right that past losses may be made up by rates to be applied in the present and future.”80 On the other hand, State Farm Lloyds insists that the surplus-note provision would actually benefit, not harm, its ratepayers, and should accordingly be weighed favorably in the constitutional balance. Because accelerated rebuilding of its surplus would tend to reduce the risk of future financial perils, State Farm Lloyds urges, its current ratepayers should appropriately bear these along with other costs of providing them insurance. More broadly, State Farm Lloyds insists that if its rate fails to include the surplus-note provision, it and other insurers will be discouraged from seeking this sort of extraordinary financing to survive future perilous times, opting instead to simply withdraw from the market,81 and that future investment to aid financially strapped insurers in such circumstances will likewise be chilled. These outcomes, State Farm Lloyds argues, would in turn not only harm Texas consumers (especially if a large homeowners insurer like itself were to leave the market), but thwart the regulated private-market approach to homeowners insurance that the Legislature has heretofore generally preferred over more government-intensive policy alternatives.
We echo the Commissioner’s assessment that these are “vexing” and “difficult” questions of insurance regulation, economic theory, and public policy. But resolution of such issues within our governmental framework is vested first in the Commissioner or the Legislature, and it is only at the margins of the other Branches’ lawful powers that the Judiciary properly has a say. We are unpersuaded that the Commissioner, in refusing to afford State Farm Lloyds recovery of the full 9% of premium it sought through the surplus-note provision, has effected such an unreasonable balancing among the interests of State Farm Lloyds, its investors, ratepayers, and the public as to violate the constitutional norms.82 Consequently, we cannot conclude this decision renders the rate confiscatory. Accordingly, we overrule State Farm Lloyd’s second point of error.
Contingencies
In its third point of error, State Farm Lloyds challenges the Commissioner’s refusal to include the 2% contingencies provision in the rates for the initial and subsequent periods. Alternatively, it urges that to the extent the Commissioner effectively included a contingencies provision in the increased underwriting profit he awarded, he deprived it of a reasonable *111rate of return on its capital because contingencies are in the nature of anticipated expenses rather than anticipated profit. The predicate for both arguments is that the Commissioner’s failure to find the required systematic variation between State Farm Lloyds’s projected and actual expenses was arbitrary and not supported by substantial evidence. This is so, according to the insurer, because it presented “un-contradicted” and “unimpeached” evidence establishing the required systematic shortfalls.
Even accepting State Farm Lloyds’s view of the record, the Commissioner was not obligated to accept or credit the insurer’s evidence regarding the contingencies provision as long as he provided an explanation or findings that would establish a reasonable basis for his doing so.83 And, although State Farm Lloyds asserts otherwise, the Commissioner made underlying findings demonstrating a reasonable basis for his rejection of the carrier’s evidence of systemic variations. Among other facts, the Commissioner pointed to a significant intervening change in the ratemaking process — in 2002, he had approved the use of policy forms that unequivocally excluded most mold losses from basic coverage, thereby addressing a key driver of the adverse court decisions that State Farm Lloyds had cited as proof of a systemic pattern of unforeseen losses. In the face of such facts, State Farm Lloyds’s argument goes ultimately to the weight the Commissioner ascribed to its evidence, and we cannot conclude he acted unreasonably or exceeded his discretion in that regard.84 We overrule State Farm Lloyds’s third point of error.
Underwriting profit
We next consider State Farm Lloyds’s challenge to the Commissioner’s determination of underwriting profit in the initial period, a component of its fifth point of error. In addition to being an independent ground for reversal, our preceding analysis of State Farm Lloyds’s arguments regarding the surplus note rested, in part, on the assumption that the underwriting-profit provision in the ordered rate had sufficiently secured it a rate of return consistent with its cost of capital.
State Farm Lloyds argues that the Commissioner’s determination of underwriting profit is not supported by substantial evidence because “he used a method that no witness proposed and no record evidence supports as an acceptable method for determining the profit provision.” It thus invokes the principle that substantial-evidence review, however deferential its factual aspects may be, still requires that an agency decision find ultimate support in evidence or facts officially noticed, and mere “agency expertise cannot be a substitute for proof.”85 It follows from this *112principle, as State Farm Lloyds emphasizes, that an agency’s methodology for calculating a rate or a rate component must find ultimate support in the evidence, facts judicially noticed, or an agency rule.86 But this does not necessarily mean that there must be explicit testimony or evidence of a particular methodology or calculation — in a given case, for example, the evidence might well enable the agency to reasonably infer an appropriate method that combines elements presented by different witnesses but no single witness.87 Similarly, even where no single witness testifies that the calculation should yield a specific figure, competing testimony may present a range of reasonable options from which the agency has discretion to choose.88
The primary focus of State Farm Lloyds’s argument is that the Commissioner took account of the surplus-note obligation and the possibility of contingencies as factors probative of risk that should bear upon underwriting profit rather than viewing them as justifications for the specific rate provisions it had advocated. In State Farm Lloyds’s view, the evidence afforded the Commissioner only one alternative for addressing these issues — adopt the solution advocated by its experts and include the 9% surplus-note provision and 2% contingencies provision in the rate. State Farm Lloyds overlooks that TDI and OPIC’s experts advocated an alternative method for addressing the surplus-note obligation and the possibility of contingencies, albeit not the one the insurer preferred — regard any such costs as costs of capital and relegate State Farm Lloyds to recovering these costs through the underwriting-profit provision of the rate. As previously indicated, there was ample evidence to support the Commissioner’s rejection of State Farm Lloyds’s proposed *113alternative. In this respect, State Farm Lloyds’s complaint about underwriting profit is merely a corollary to its other arguments challenging the Commissioner’s refusal to include the surplus-note and contingencies provisions in the rate.
State Farm Lloyds is correct, however, that no witness explicitly advocated taking account of the surplus-note obligation and the possibility of contingency as additional elements of risk to be factored into underwriting profit above the risk that would already be reflected in the 5% underwriting profit State Farm Lloyds had advocated. But to the extent State Farm Lloyds is arguing that the Commissioner should have refrained from making his upward adjustments to underwriting profit after having rejected the two rate provisions, any error would only have been to the insurer’s benefit.89 Regardless, the evidence reasonably supported the Commissioner’s decision to make an upward adjustment to underwriting profit. A key underpinning of TDI and OPIC’s opposition to the surplus-note provision (and, ultimately, of the Commissioner’s rationale in rejecting it) was that the rate’s underwriting-profit provision already compensated State Farm Lloyds for its cost of capital. This reasoning logically presumes a reasonably accurate calculation of State Farm Lloyds’s cost of capital and underwriting profit. A key determinant of the cost of capital (and, in turn, underwriting profit), everyone agrees, is the level of risk the insurer faces (i.e., the potential for future random deviations between the estimated costs accounted for in the insurer’s rate and what its actual costs turn out to be). Hence, if the Commissioner found the existence of additional risk that had not been factored into the determination of underwriting profit and was material to it, it would follow that an adjustment to that provision would be necessary to ensure that the insurer was reasonably compensated for its cost of capital. The Commissioner found such an adjustment to be warranted here, and this finding is reasonably supported by at least two evidentiary bases. First, and most obviously, State Farm Lloyds itself had viewed the surplus-note obligation and contingencies issue as justifying separate rate provisions and presumably would not have factored them into the risk bearing on its underwriting-profit calculation. Second, the Commissioner heard evidence to the effect that the 5% underwriting-profit figure advocated by State Farm Lloyds was to some extent a standard or industry figure commonly used when fashioning property-insurance rates. This case was different, the Commissioner reasoned, finding that “[t]he element of risk associated with repaying a surplus note, plus interest, would not be present in a typical insurer, which has no surplus notes, and would not be prominent in an aggregation of all insurers, as most insurers do not have surplus notes.” State Farm Lloyds has not challenged that finding. In sum, while not advocated specifically by any one witness, the Commissioner’s decision to consider the surplus-note obligation and possibility of contingencies as indicia of additional risk and accordingly revisit underwriting profit is nonetheless grounded in reasonable inferences from the evidence the parties did present.90
State Farm Lloyds further contends that the specific methodology through which the Commissioner adjusted underwriting profit lacks support by substantial evidence. To the extent State Farm *114Lloyds is urging that the Commissioner should have adjusted underwriting profit to some amount higher than it did, we will' proceed to address its contention.91 To determine the necessary adjustments to underwriting profit, the Commissioner utilized the same basic formula that State Farm Lloyds had itself employed to calculate underwriting profit, a method that the evidence further indicates is widely accepted among actuaries.92 Under this method, simply described, State Farm Lloyds solved for the amount of underwriting profit the carrier would have to obtain to yield, when combined with estimated investment income and other income, and after taxes, what would be a reasonable average rate of return on a hypothetical risk-adjusted level of capital.93 According to State Farm Lloyds’s witnesses, the hypothetical level of capital — customarily expressed in terms of a premium-to-surplus ratio, with a lower ratio signifying higher risk and vice versa — represents a level at which the risk associated with the amount of capital allocated to each exposure unit is of a targeted average intensity. In determining its underwriting profit, State Farm Lloyds had chosen a hypothetical 1:1 premium-to-surplus ratio. With that input, State Farm Lloyds had determined that 5% underwriting profit, when combined with its estimated investment and other income, and after taxes, would yield an average rate of return on surplus of 12.4%, which it had adjusted to an estimated return on equity calculated under GAAP of just under 10%. Although OPIC advocated a lower underwriting profit of 2.5%, TDI staff ultimately concurred with State Farm Lloyds that a 5% underwriting profit was appropriate and that the rate of return it had achieved was reasonable.
The Commissioner found that “[i]t is reasonable to use SFL’s profit model in deriving an underwriting profit provision for use in this case,” with “further consideration of the premium to surplus ratio used in the profit model” in light of various risk factors he had identified. The Commissioner then made the following specific findings:
136. SFL’s theoretical [1:1] premium to surplus ratio was described by SFL as being “minimally prudent” [for purposes of determining underwriting profit].
137. One SFL witness testified that analyses of premium to surplus ratios for professional reinsurers and Bermuda property reinsurers, combined with “the fact that SFL is not charging anything in the rate for catastrophe reinsurance” could justify a premium to surplus ratio as low as 0.5 to 1.0. Elsewhere in his testimony, the same witness acknowledges that SFL has made some provision for catastrophe reinsurance, but that “since many exposures are not covered by the catastrophic reinsurance coverage and since in Texas, many catastrophes are too small to exceed the reinsurance deductible (or ‘attachment point’), the coverage is incomplete.”
138. Other evidence in the record demonstrates that SFL is making significant provision for catastrophe reinsurance.
139. The fact that SFL is making significant provision for catastrophe reinsurance greatly diminishes *115SFL’s assertion that a premium to surplus ratio as low as 0.5:1.0 could be justified; but the fact that some catastrophe exposure is not fully covered by reinsurance offers some support for using a ■ premium to surplus ratio of modestly less than 1.0:1.0.
140. The justification for using a premium to surplus ratio of less than 1.0:1.0 is strengthened significantly when other elements of risk are considered.
141. The fact that SFL is a single-state insurer deriving almost its entire premium from a single line of insurance which includes catastrophe coverage in a catastrophe-prone state was brought forth in the record as an indication of risk.
142. As noted earlier ... the existence of a surplus note, and the obligation to repay such note by a date certain, along with related interest, is an element of risk inherent in SFL’s writing of homeowners insurance in 2003.
143. The element of risk associated with repaying a surplus note, plus interest, would not be present in a typical insurer, which has no surplus notes, and would not be prominent in an aggregation of all insurers, as most insurers do not have surplus notes.
144. SFL’s surplus note, and the obligation to repay it, along with related interest, suggests that an otherwise reasonable premium to surplus ratio, or what might be construed as a “minimally prudent” premium to surplus ratio, may not be reasonable to determine an appropriate underwriting profit provision with respect to SFL’s writing of homeowners insurance in 2003.
145. SFL’s surplus note, and the obligation to repay it, along with related interest, by December 31, 2016, suggests that the use of a lower premium to surplus ratio to determine the underwriting profit provision may be, in consideration of SFL’s writing of homeowner’s insurance in 2003, more reasonable than the 1.0:1.0 ratio used in SFL’s analysis.
146. As noted earlier [in regard to the contingencies provision], the conclusion that there may be a systematic variation between expected costs and actual costs implies risk.
147. To the extent such risk is not contemplated in the l.Orl.O premium to surplus ratio used in the SFL profit model, there is a basis for using a premium to surplus ratio lower than 1.0:1.0.
With that prologue, the Commissioner found that:
148. ... (1) SFL is a single-state writer, writing almost exclusively homeowners insurance, which includes catastrophic coverage, in a catastrophe-prone state; (2) SFL faces an element of risk associated with the obligation to repay the $1.05 billion surplus note, along with related interest by a date certain; and (3) there may be systemic variation between expected costs and actual costs which has not been addressed in the rate-making process. For these reasons, it is reasonable to accord to SFL’s writing of homeowners insurance in 2003 [emphasis in the original] a greater measure of risk than is contemplated in the 1.0:1.0 *116premium to surplus ratio contained in SFL’s profit model.
As for what that specific ratio should be, the Commissioner further found that a “reasonable premium to surplus ratio for use in this proceeding would be somewhere below 1.0:1.0, but well above 0.5:1.0.” This range of hypothetical premiums-to-surplus ratios, the Commissioner observed, translated into “profit provisions ... in the range of 7.0% to 10.0%.” The Commissioner then selected 8.5% as “a reasonable profit ... provision, including a provision for hurricane risk, for SFL in conjunction with its writing of homeowners insurance in Texas in 2003.”
Although State Farm Lloyds is correct that no witness explicitly testified in support of the upward adjustment to underwriting profit the Commissioner ultimately made, this was hardly a case where the Commissioner “embarked on [his] own method that goes beyond anything in the record.”94 To the contrary, the Commissioner utilized a formula that had been supplied by the insurer’s own witnesses and adjusted but a single input — the appropriate hypothetical amount of risk-adjusted capital, expressed as a premium-to-surplus ratio — which all agree is the means by which risk is accounted for in that formula. While State Farm Lloyds had assumed a 1:1 premium-to-surplus ratio, the Commissioner heard evidence that a ratio as low as 0.5:1 could be appropriate depending on the extent to which the insurer was able to shift its risks of catastrophe losses through reinsurance. The Commissioner chose a ratio (and a corresponding underwriting profit) in the middle of this range, reasoning that while a 0.5:1 ratio was inappropriate in light of State Farm Lloyds’s provision for catastrophe reinsurance, there remained risks of losses that had not been fully addressed by that reinsurance, along with the additional risks presented by the surplus note and possible contingency.95 While State Farm Lloyds would insist on greater exactitude in correlating specific adjustments to the premium-to-surplus ratio to particular risk factors, we cannot conclude that the Commissioner “selected a figure that is outside the range of the applicable evidence, or that is otherwise unsupported by any evidence.”96 Accordingly, we overrule State Farm Lloyds’s challenge to the 8.5% underwriting profit the Commissioner awarded in the ordered rate for the initial period.
Subsequent period
The foregoing holdings resolve each of State Farm Lloyds’s challenges to the ordered rate for the initial period. We now turn to State Farm Lloyds’s arguments regarding the rate the Commissioner determined for the “subsequent period” between September 1, 2004 and July 31, 2008, which are further components of its fifth point of error.
As a threshold matter, State Farm Lloyds questions (although does not extensively brief or argue) whether the Commissioner had statutory authority to reduce its implemented rate with respect to *117any period after August 31, 2004, the last day former art. 5.26-1 remained in effect. While State Farm Lloyds is correct that the legality of its implemented rate, as applicable to periods after August 31, 2004, is necessarily governed by statutes other than former art. 5.26-1, it overlooks that each of the successor statutory regimes also empowered the Commissioner to order refunds based on a final determination that State Farm Lloyds’s implemented rate had been excessive. Under former art. 5.142, as previously noted, the Legislature provided for refunds with interest in a manner identical to former art. 5.142 in the event the Commissioner’s rate determination was upheld on appeal.97 Similarly, under the file-and-use regime, former art. 5.144 of the Insurance Code (now codified as chapter 2254 of that Code)98 has authorized the Commissioner to order refunds of any filed rate he determines to be excessive.99 State Farm Lloyds suggests that the latter provision is inapplicable here because it contemplates a right to a rate hearing before the State Office of Administrative Hearings, as opposed to the Commissioner alone,100 the procedure followed here. This assertion is in the nature of an unpreserved complaint of procedural error rather than a basis for holding former art. 5.144 inapplicable in the first instance. In short, the Commissioner has had statutory authority to determine whether and the extent to which State Farm Lloyds had charged its policyholders excessive rates, and to order refunds accordingly, not only with respect to the initial period in which former art. 5.26-1 was in effect, but also in the subsequent period that followed.
Assuming the Commissioner’s statutory authority to determine the appropriate rate for the subsequent period, State Farm Lloyds’s core complaint is that the Commissioner, in setting a rate that was flat or uniform throughout the entire subsequent period, failed to take account of significant intervening increases in its costs of providing insurance. State Farm Lloyds points to evidence that, beginning in 2006, its reinsurance costs had significantly increased as world markets responded to Hurricanes Katrina and Rita in late 2005 and eight other hurricanes that had hit Florida in 2004 and 2005. In fact, one of TDI’s experts, Dr. Mark Crawshaw, maintained during the hearing that State Farm Lloyds’s initial rate had ceased to be excessive from July 2006 onward and thereafter became inadequate. Based in part on these cost increases, State Farm Lloyds would ultimately obtain Commissioner approval for the rate increase that took effect in mid-2008.
State Farm Lloyds attacks the ordered rate through two primary legal theories. First, similar to its arguments regarding underwriting profit in the initial period, it asserts that the Commissioner’s formulation of a flat rate for the entire subsequent period was founded on a methodology that no witness had proposed and no evidence *118supported. Second, State Farm Lloyds insists that the Commissioner acted arbitrarily and capriciously in imposing a flat rate that excluded consideration of its significant cost increases during the subsequent term. Relatedly, it contrasts the Commissioner’s failure or refusal to account for these cost increases with his reduction of underwriting profit for the entire subsequent period — i.e., beginning September 2004 — based on surplus-loan repayments that did not occur until 2006.101 Such “arbitrary hindsight,” State Farm Lloyds urges, represented a selective departure from the prospective rate-making on which the Commissioner had otherwise insisted, forcing it to absorb rate reductions based on actual post-2003 events while simultaneously depriving it of the benefit of actual post-2003 events that would have increased its rates.
We are compelled to agree that the Commissioner’s reduction of underwriting profit based on post-2003 events, in the context of imposing a single flat rate for the entire subsequent period, was arbitrary and capricious. This becomes apparent when considering the methodology the Commissioner used to set the rate. Having found that the evidence “suggests the level of excessiveness in SFL’s rates declined over time,” the Commissioner considered two alternative methodologies for accounting for the changes that had been proposed by State Farm Lloyds’s actuary, Rob Kelley. Both methodologies were prospective in nature, although their points of reference differed. In the first, which the Commissioner would term the “Trend Projection Method,” Kelley had utilized the data known and knowable as of September 2003 (i.e., the same information from which the initial-period rate had been derived) and extended projections originally used to develop certain cost components of the initial-period rate. Applying these projections to State Farm Lloyds’s rate indication for the initial period, Kelley devised rates for each of three successive annual periods beginning on September 1, 2004, 2005, and 2006, and a final period between September 1, 2007, and the end of the subsequent period, July 31, 2008. In Kelley’s second method, termed the “Augmented Data Method,” he determined these annual rates based on data that would have been available at each interval.
The Commissioner found that the Trend Projection Method — the one relying solely on September 2003 information — “is most suitable for determining a rate for SFL for the subsequent period.” Taking the ordered rate for the initial period as his starting point, the Commissioner, similar to Kelley, “trended” increases in State Farm Lloyds’s estimated earned premiums and four cost components in the rate — (1) non-catastrophe loss and loss adjustment expense (LAE); (2) hurricane catastrophe loss and LAE; (3) non-hurricane catastrophe loss and LAE; and (4) fixed expenses — and made specific findings as to the annual percentage increases that should be applied to each.102 However, rather than determining a rate for each of the four annual segments within the subsequent period, as had Kelley, the Commissioner determined a single rate for the entire subsequent period by trending the aforementioned rate components up to February 15, 2007.
*119The Commissioner offered two justifications for this departure from Kelley’s approach. First, he explained that February 15, 2007, represented the “average date of loss” under the State Farm Lloyds policies that would have been sold during the subsequent period, represented by the midpoint between the first day such a policy could have been effective (September 1, 2004) and the date the last policy could have expired (July 31, 2009).103 According to the Commissioner, it was “common actuarial practice” to trend cost projections underlying a rate to the average date of loss under the policy, and he pointed out all parties had accordingly trended their projections underlying the initial period rate until September 1, 2004, the midpoint between the first day the initial-period policies could have been effective and the last day they could have expired. On the other hand, the Commissioner also acknowledged that “formulating a homeowner’s rate for such a long duration,” as he was doing in the subsequent period, “is simply unheard of.”
The Commissioner’s second justification was that “there is no substantive difference,” in terms of the amounts State Farm Lloyds would ultimately owe as refunds, between his trending of the rate components for the entire subsequent period as a whole and Kelley’s delineation of annual segments. “This is especially true,” the Commissioner added, in light of evidence that State Farm Lloyds “has ‘extremely high’ renewal rates.” In essence, the Commissioner reasoned that while the ex-cessiveness of State Farm Lloyds’s initial rate would differ at any given time within the subsequent period, the differences would average out at 3.4% over the. entire period, at least when viewed from the perspective of September 2003 looking forward. While urging that no evidence supports the Commissioner’s departure from Kelley’s year-by-year approach, State Farm Lloyds does not appear to dispute the Commissioner’s math.
In sum, the Commissioner set a flat rate for the entire subsequent period founded on cost projections made from the perspective of September 2003, approximately a year before the period to which the rate applied began. This model foreclosed consideration of actual cost increases that might occur during the subsequent period. From that standpoint, State Farm Lloyds’s evidence of significant increases in reinsurance costs beginning in 2006 would have had no bearing on the appropriate rate for the subsequent period. For that matter, these subsequent developments would have had no bearing upon rates determined in annual segments under Kelley’s original Trend Projection Method, either, because that method likewise relied on September 2003 data.
But having deprived State Farm Lloyds of the benefit of any intervening developments that could favorably impact its indicated rate, the Commissioner also forced it to bear the unfavorable consequences to underwriting profit that he derived from the 2006 surplus-note repayments. TDI and OPIC insist that both the Commissioner’s method in setting a single flat rate for the entire subsequent period and his downward adjustment of underwriting profit were supported by substantial evidence, and that it likewise supported the “amalgam” of rating methodologies the Commissioner devised.104 *120Even if so, the Commissioner’s actions are independently subject to reversal if arbitrary and capricious.105 An agency’s decision may be held arbitrary and capricious if, among other defects, “it is based on legally irrelevant factors or if legally relevant factors were not considered or if the agency reached an unreasonable result.”106 In the context of the single rate he established for the entire subsequent period, the Commissioner’s reduction of underwriting profit was based on a factor that he had acknowledged to be legally irrelevant and inappropriate — the use of 2006 and 2007 data to determine a rate that applied prior to that time. In effect, the Commissioner engaged in prohibited retroactive ratemaking with respect to those earlier periods. He also did so selectively and unreasonably, in essence cherry-picking post-September 2003 data where it served to reduce State Farm Lloyds’s indicated rate while excluding consideration of post-September 2003 data that could have increased it, with no evident justification for the differential treatment. Even while recognizing the constitutional leeway afforded to an agency’s choice of ratemaking methods, the Supreme Court has cautioned nonetheless that a “decision to arbitrarily switch back and forth between methodologies in a way which requires investors to bear the risk of bad investments at some times while denying them the benefit of good investments at others would raise serious constitutional questions.” 107
The Commissioner’s determination of the rate for the subsequent period was arbitrary and capricious, and must be reversed.108 To that extent, we sustain State Farm Lloyds’s fifth point of error.
Interest
Having determined that State Farm Lloyds’s initial rate was excessive during both the initial and subsequent periods, the Commissioner ordered refunds of the “overcharged premiums,” plus interest, citing the refund provisions of both former art. 5.26-1 and chapter 2254 (the former art. 5.144) without distinguishing between overcharges for the initial versus subsequent periods or, with respect to the latter, those occurring while former art. 5.142 was in effect (i.e., before December 1, 2004) as opposed to thereafter. The Commissioner similarly conflated the statutory provisions in awarding interest on the refunds he held to be due, determining that interest on all refunds should be awarded in accordance with former art. 5.26-1 for each year during both the initial and subsequent periods, but only for the interest that accrued up • to the date of his order. Interest accruing from the date of the Commissioner’s order forward, he reasoned, would accrue under chapter 2254, regardless of when the overcharge occurred. The statutory distinction is not merely formal or technical. Under former art. 5.26-1, the Legislature had specified that “[t]he interest rate is the prime rate plus one percent as published in the Wall Street Journal on the first day of each calendar year that is not a Saturday, Sun*121day, or legal holiday.”109 An identical interest provision appeared in former art. 5.142.110 In contrast, beginning in 2005, chapter 2254 (or its predecessor, former art. 5.144) have specified that an “interest penalty” accrues on refund amounts at a rate that is the lesser of 18 percent or the sum of six percent and the prime rate for the calendar year in which the Commissioner’s order finding the rate excessive is issued.111
Apart from State Farm Lloyds’s complaints regarding the propriety of the refunds themselves and the Commissioner’s underlying rate determinations, none of the parties have challenged the Commissioner’s award of interest on all refunds at the rate of one percent over the prime rate for each year at issue, consistent with the rate prescribed by former art. 5.26-1, up to the date of his order (a/k/a “pre-order” interest). However, in its sixth issue, State Farm Lloyds urges that the Commissioner reversibly erred in awarding post-order interest accruing on all refunds at the higher rate specified in chapter 2254. In State Farm Lloyds’s view, interest on any refunds, both before and after the date of the Commissioner’s order, is governed exclusively by former art. 5.26-1 regardless of when the overcharge occurred. With respect to the overcharges the Commissioner found to have occurred during the initial period, we agree — as previously explained, former art. 5.26-1, which continues in effect for these purposes, governs the validity of State Farm Lloyds’s implemented rate during the initial period, its policyholders’ right to refunds of “overcharged premium,” and interest on those amounts. To this extent, we sustain State Farm Lloyds’s sixth issue.
As for interest on any refunds for overcharges during the subsequent period, our definitive resolution of that issue must await the proceedings on remand to determine the appropriate underlying rate or rates during that time and whether or for what times any refunds are owed." We note, however, that we have held above that the Commissioner’s authority to order refunds during the subsequent period is governed by former art. 5.142 with respect to any overcharges between September 1, 2004 and November 30, 2004, and by former art. 5.144 and chapter 2254 for periods *122thereafter. On the other hand, appellees have not preserved any complaint in this appeal regarding the propriety of the Commissioner’s awarding of pre-order interest on all refunds held to be due in accordance with former art. 5.26-1. We likewise observe that the Legislature did not authorize interest awards under the former art. 5.144, at the higher prime-plus- ■ six-percent rate or otherwise, until 2005.112 On remand, if the Commissioner again finds that refunds are owing for the subsequent period or a portion of it, the parties will have the opportunity to address whether or how these observations bear upon the appropriate interest rate or rates.
Refunds
In its sole remaining point of error, its fourth, State Farm Lloyds argues that the refunds with interest ordered by the Commissioner were confiscatory in light of their impact on the insurer’s financial condition at the time of the order. Because we have reversed and remanded the Commissioner’s determination of an appropriate rate for the subsequent period, any constitutional challenge based on the financial impact of any refunds and interest ultimately awarded by the Commissioner must await those further proceedings.
CONCLUSION
We affirm the portion of the district court’s judgment affirming the Commissioner’s order determining a rate for the “initial period” and that State Farm Lloyds’s implemented rate was excessive by 6.2% during that time frame. However, we reverse the portion of the judgment affirming the Commissioner’s order setting a rate for the subsequent period and holding that State Farm Lloyds’s implemented rate was 3.4% excessive then. We remand the question of the appropriate rate and reductions for the “subsequent period,” as well as the ultimate determination of refunds and interest awards, to the Commissioner for further proceedings consistent with this opinion. We further hold that interest awarded on refunds for the initial period will be governed exclusively by the rate specified in former art. 5.26-1, both before and after the date of the Commissioner’s order.
Justice Henson not participating
. 255 S.W.3d 786 (Tex.App.-Austin 2008, no pet.).
. Act of June 2, 2003, 78th Leg., R.S., ch. 206, § 4.01, 2003 Tex. Gen. Laws 907, 921 ("former art. 5.26-1”).
.See former art. 5.26-1, § 4; State Farm Lloyds I, 255 S.W.3d at 800-01.
. See Act of June 2, 2003, 78th Leg., R.S., ch. 206, §§ 1.01, 2(7), 2003 Tex. Gen. Laws 907-8 ("former art. 5.142”) (defining "rate”); former art. 5.26-1, § 1(b) (incorporating definitions from former art. 5.142).
. Former art. 5.26-1, § 2(b) ("Initial Rate Filing”); see also former art. 5.142, § 3 (requirements applicable to initial filed rates calculated by the insurer). Specific considerations in setting this "rate” were to include "past and present loss experience”; "the insurer's historical premium, exposure, loss, and expense experience”; "catastrophe hazards within this state"; "operating income”; "investment income”; and "a reasonable margin for profit.” Id. § 3(b).
. See former art. 5.142, § 2(b) (defining "excessive,” "inadequate,” and "unfairly discriminatory”); State Farm Lloyds I, 255 S.W.3d at 801 (construing "just, reasonable, adequate, not excessive, and not unfairly discriminatory for the risks to which it applies” to mean that "the rate must allow for a 'reasonable profit’ but not one that' is ‘unreasonably high in relationship to the insurance coverage provided’") (quoting former art. 5.142, §§ 2(b)( 1 — 3), 3(d); former art. 5.26-1, § 2(b)); see also American Alliance Ins. Co. v. Board. of Ins. Comm'rs, 126 S.W.2d 741, 744 (Tex.Civ.App.-Austin 1939, writ ref’d) (reasoning that “unreasonable, unjust, excessive, or inadequate” in context of insurance rate-making implies “a duty both to the insuring public and the insurance carriers" to promulgate rates “which shall be as low to the insured as is consistent with a reasonable return to the insurer”).
.State Farm Lloyds I, 255 S.W.3d at 795 ("A government-set rate must allow a regulated company to not only recover its operating expenses, but also to realize reasonable returns on its investments sufficient to assure confidence in the continued financial integrity of the enterprise. A rate that does not allow for a reasonable rate of return is confiscatory and unconstitutional.” (citing Duquesne Light Co. v. Barasch, 488 U.S. 299, 307, 109 S.Ct. 609, 102 L.Ed.2d 646 (1989); Jersey Cent. Power & Light Co. v. Federal Energy Regulatory Comm’n, 810 F.2d 1168, 1181 (D.C.Cir.1987); Railroad Comm'n v. Houston Natural Gas Corp., 155 Tex. 502, 289 S.W.2d 559, 572 (1956)); see also American Alliance, 126 S.W.2d at 742 (holding that fire insurance rates "must be reasonable and nonconfiscato-ry ... [tjhat is, the rate prescribed, whether maximum or fixed, must be sufficient to yield a reasonable net capital return, áfter deducting all necessary and proper expenses.... Otherwise, the rate is confiscatory and viola-tive of the stated constitutional inhibitions.”).
. See Actuarial Standards Board, Actuarial Standard of Practice: Documentation and Disclosure in Property and Casualty Insurance Ratemaking and Loss Reserving, at 9 (1989) (superseded 1991) (incorporating "Statement of Principles Regarding Property and Casualty Insurance Ratemaking” adopted by the Board of Directors of the Casualty Actuarial Society in 1988) (currently available at http:// www.actuarialstandardsboard.org/pdf/ superseded/asop9_l 989.PDF) (hereinafter
“ASOP 9”); Actuarial Standards Board, Actuarial Standard of Practice No. 30: Treatment of Profit and Contingency Provisions and the Cost of Capital in Property/Casualty Insurance Ratemdking, at §§ 1.1, 2, 3.1 (1997) (currently available at http://www.actuarialstandards board.org/pdf/asops/asop030_057.pdf) (hereinafter "ASOP 30”).
. See State Farm Lloyds I, 255 S.W.3d at 792.
. See id. (citing former art. 5.26-1, § 2(a)).
. See id. (citing former art. 5.142).
. See id. (citing former art. 5.142, § 5).
. See Act of June 2, 2003, 78th Leg., R.S., ch. 206, § 6.04, sec. 3(a)(5), 2003 Tex. Gen. Laws 907, 926 (currently codified at Tex. Ins. Code §§ 2251.00-252) ("former Art. 5.13-2”).
. See State Farm Lloyds I, 255 S.W.3d at 792 (citing former art. 5.13-2, §§ 5, 7).
. See former art. 5.26-1, § 5(b).
. Id. § 6.
. See State Farm Lloyds I, 255 S.W.3d at 805 (quoting former art. 5.26-1, § 7).
. See former art. 5.142, §§ 13(b), 14; State Farm Lloyds v. Geeslin, 267 S.W.3d 438, 443-46 (Tex.App.-Austin 2008, no pet.) (State Farm Lloyds III).
. See Texas Dep't of Ins. v. State Farm Lloyds, 260 S.W.3d 233, 238-49 (Tex.App.Austin 2008, no pet.) (State Farm Lloyds II); State Farm Lloyds III, 267 S.W.3d at 441-47.
. See former art. 5.142, §§ 2, 3(d); former art. 5.13-2, §§ 1, 3.
. State v. Public Util. Comm'n, 883 S.W.2d 190, 199 (Tex.1994). These principles derive in part from the view that ratemaking is in the nature of a legislative act, having only *95prospective effect, as opposed to being an adjudication of rights in a controversy that has previously arisen. See Railroad Comm'n v. Houston Natural Gas Corp., 155 Tex. 502, 289 S.W.2d 559, 562-63 (1956); see also Central Power & Light Co. v. Public Util. Comm’n, 36 S.W.3d 547, 554 (Tex.App.-Austin 2000, pet. denied) (citing City of Alvin v. Public Util. Comm’n, 876 S.W.2d 346, 362 (Tex.App.-Austin 1993), judgment vacated w.r.m. sub nom. Public Util. Comm’n v. Texas-N.M. Elec. Co., 893 S.W.2d 450 (Tex.1994)).
.See former art. 5.142, § 2(b) (defining an “excessive” rate as one "likely to produce a long-term profit that is unreasonably high” and an "inadequate” rate as one "insufficient to sustain projected losses and expenses”); accord former art. 5.13-2, § 3(b)(a)-(b) (same).
. See ASOP 9, at 6 ("A rate is an estimate of the expected value of future costs.”).
. See, e.g., Southwestern Bell Tel. Co. v. Public Util. Comm’n, 615 S.W.2d 947, 954-55 (Tex.Civ.App.-Austin 1981, no writ) (distinguishing retrospective ratemaking from administrative proceedings on remand to set rates prospectively from date of the original agency order that had been reversed on appeal).
. Former art. 5.26-1, § 4; see State Farm Lloyds I, 255 S.W.3d at 800-01.
. To be clear, State Farm Lloyds was not seeking an increase from its implemented rate (nor could it do so retroactively), but only to oppose any reduction in its implemented rate. See State Farm Lloyds I, 255 S.W.3d at 792 (noting that the insurer had filed its then-current rate as its "initial rate" under former art. 5.26-1).
. "Catastrophe” in this context refers, according to the Commissioner, to "large and fortuitous occurrences that cause widespread property damage,” such as a hurricane or "large hailstorm in a major metropolitan area.”
. See Tex. Ins. Code §§ 441.051(1) (circumstances constituting insolvency), 822.205 (requiring surplus); see generally id. §§ 441.001-.351 (“Supervision and Conservatorship”).
. See, e.g., Harlan v. United States, 409 F.2d 904, 906-07 (5th Cir.1969).
. See 28 Tex. Admin. Code § 7.7 (2014) (TDI, Subordinated Indebtedness, Surplus Debentures, Surplus Notes, Premium Income Notes, Bonds, or Debentures, and Other Contingent Evidences of Indebtedness).
. See id. § 7.7(c), (e), (f); see also id. § 7.7(a)(3) (defining "surplus note").
. See id. § 7.7(f)(1).
. See id. § 7.7(b)(1).
.However, because the liability for and timing of the payments themselves were tied to minimum surplus levels, State Farm Lloyds was not projected to actually make any payments of interest or principal during the initial period, nor for some time thereafter. Rather, the schedule reflected the amortized cost of paying the required principal and interest over the course of the 15-year term as surplus levels increased past the threshold mínimums.
. See ASOP 30, at § 1.1 (observing that both underwriting provisions and contingency provisions "provide for the cost of capital”).
. See id. at § 3.7 (recommending inclusion of contingency provision), App. 1 at 6-7 (discussing role of contingency provision).
. See id. at § 3.7.
. See id.
. Elaborating, the Commissioner credited testimony that "since many exposures are not covered by the catastrophic insurance coverage and since in Texas, many catastrophes are *100too small to exceed the reinsurance deductible (or ‘attachment point’), the coverage is incomplete.”
.See former art. 5.26-1, § 5(a) ("Not later than the 10th day after the date of receipt of the commissioner’s order under Section 4 of this article, an insurer may file a petition for judicial review in a district court of Travis County.”).
. Tex. Gov’t Code § 2001.174; former art 5.16-1, § 5(a); see also former art. 5.142, § 13; Tex. Ins. Code § 2254.004(d).
. See Texas Health Facilities Comm'n v. Charter Med.-Dallas, Inc., 665 S.W.2d 446, 452-53 (Tex.1984).
. Slay v. Texas Comm'n on Envtl. Quality, 351 S.W.3d 532, 549 (Tex.App.-Austin 2011, pet. denied).
. See Texas Dep’t of Pub. Safety v. Alford, 209 S.W.3d 101, 103 (Tex.2006) (per curiam).
. See Slay, 351 S.W.3d at 549.
. See Vista Med. Ctr. Hosp. v. Texas Mut. Ins. Co, 416 S.W.3d 11, 26-27 (Tex.App.-Austin 2013, no pet.) (citing Charter Med.-Dallas, 665 S.W.2d at 453).
. See Granek v. Texas State Bd. of Med. Exam’rs, 172 S.W.3d 761, 778 (Tex.App.-Austin 2005, no pet.) (citing John E. Powers, Agency Adjudications 163 (1990)).
. Slay, 351 S.W.3d at 549.
. Tex. Gov’t Code § 2001.174(1).
. See Railroad Comm’n v. Texas Citizens for a Safe Future & Clean Water, 336 S.W.3d 619, 624 (Tex.2011); Montgomery Indep. Sch. Dist. v. Davis, 34 S.W.3d 559, 565 (Tex.2000) (citing Charter Med.-Dallas, 665 S.W.2d at 453); City of El Paso v. Public Util. Comm'n, 344 S.W.3d 609, 619 (Tex.App.-Austin 2011, no pet.); Buddy Gregg Motor Homes, Inc. v. Motor Vehicle Bd., 156 S.W.3d 91, 99 (Tex.App.Austin 2004, pet. denied).
. To this extent, we make an exception to the general rule that we reach constitutional issues only after exhausting non-constitutional grounds. See AEP Tex. Commercial & Indus. Retail Ltd. P'ship v. Public Util. Comm'n, 436 S.W.3d 890, 907 (Tex.App.-Austin 2014, no pet.) (citing In re B.L.D., 113 S.W.3d 340, 349 (Tex.2003) (“As a rule, we only decide constitutional questions when we cannot resolve issues on nonconstitutional grounds.’’)).
. The prohibitions against confiscatory government-imposed rates derive from Article I, Section 17 of the Texas Constitution, see Tex. Const. Art. I, § 17(a) ("No person’s property shall be taken ... for or applied to public use without adequate compensation being made .... ”), and the Fifth Amendment to the United States Constitution, see U.S. Const. Amend. V ("private property [shall not] be taken for *103public use, without just compensation"), as applied to the states through the Fourteenth Amendment.
. See Sheffield Dev. Co. v. City of Glenn Heights, 140 S.W.3d 660, 669 (Tex.2004) (characterizing the counterpart Texas and federal constitutional takings protections as "comparable"); City of Corpus Christi v. Public Util. Comm’n, 51 S.W.3d 231, 242 (Tex.2001) (observing that federal case law is instructive on whether rates constitute an unconstitutional taking of regulated entity’s property under the Texas Constitution); see also Bentley v. Bunton, 94 S.W.3d 561, 577-78 (Tex.2002) (noting that where parties do ■ not argue that differences in state and federal constitutional guarantees are material to a case, and none is apparent, "we will limit our analysis to the First Amendment and simply assume that its concerns are congruent with those of article I, section 8").
. See Federal Power Comm’n v. Hope Natural Gas Co., 320 U.S. 591, 64 S.Ct. 281, 88 L.Ed. 333 (1944). Although relying on these principles in State Farm Lloyds I to partly invalidate former art. 5.26-1, this Court did not have occasion to explore their parameters in detail. Instead, as State Farm Lloyds observes, the State Farm Lloyds I analysis "was based on a straightforward syllogism” that followed from the requirement that a government-set rate afford a regulated entity a reasonable rate of return on its capital — “rates can be confiscatory without necessarily leading to insolvency.” See State Farm Lloyds I, 255 S.W.3d at 794-95. Beyond its recognition of the basic constitutional concepts and that they apply to insurance rate regulation, State Farm Lloyds I provides us little guidance here.
. Duquesne, 488 U.S. at 307-08, 109 S.Ct. 609 (quoting Federal Power Comm’n v. Natural Gas Pipeline Co. of Am., 315 U.S. 575, 585, 62 S.Ct. 736, 86 L.Ed. 1037 (1942); Covington & Lexington Tpk. Rd. Co. v. Sandford, 164 U.S. 578, 597, 17 S.Ct. 198, 41 L.Ed. 560 (1896)).
. Federal Power Comm’n v. Texaco, Inc., 417 U.S. 380, 391-92, 94 S.Ct. 2315, 41 L.Ed.2d 141 (1974) (citing In re Permian Basin Area Rate Cases, 390 U.S. 747, 769, 88 S.Ct. 1344, 20 L.Ed.2d 312 (1968); Hope, 320 U.S. at 601, 64 S.Ct. 281).
. Id. (citing Natural Gas Pipeline, 315 U.S. at 585, 62 S.Ct. 736).
. Hope, 320 U.S. at 602, 64 S.Ct. 281 (internal citations omitted).
. Id. In the same vein, the Supreme Court would later observe:
The economic judgments required in rate proceedings are often hopelessly complex and do not admit of a single correct result. The Constitution is not designed to arbitrate these economic niceties. Errors to the detriment of one party may well be cancelled out by countervailing errors or allowances in another part of the rate proceeding. The Constitution protects the [regulated entity] from the net effect of the rate order on its property.
Duquesne, 488 U.S. at 307, 109 S.Ct. 609.
. 320 U.S. at 603, 64 S.Ct. 281.
. Id. (internal citations omitted).
. Permian Basin, 390 U.S. at 792, 88 S.Ct. 1344.
. Id. at 770, 88 S.Ct. 1344 (citing Hope, 320 U.S. at 603, 64 S.Ct. 281); see also Jersey Cent., 810 F.2d at 1189 (Starr, J., concurring) (suggesting that "confiscatory” "is a shorthand way of saying that an unreasonable balance has been struck in the regulation process so as unreasonably to favor ratepayer interests at the substantial expense of investor interests”).
.See City of Dallas v. Stewart, 361 S.W.3d 562, 568 (Tex.2012). Stewart concerned an administrative determination that private property was a nuisance, a determination tantamount to holding that constitutional takings protections were inapplicable. See id. at 569. While granting that judicial scrutiny of the agency's findings of "historical facts” (e.g., "whether or not the structure had foundation damage”) could be limited to assessing whether there was reasonable support by substantial evidence, the Texas Supreme Court held that due process required de novo review of the agency’s construction and application of the property owner's substantive rights under the takings clause (e.g., "Did the damage to the structure make it a threat to public *105health or safety such that the government may deprive a citizen of her ownership in the structure?”). Id. at 578-79 & n. 24. The court reasoned that such de novo review was required because agencies lacked delegated power to construe constitutional provisions and any legislative attempt to delegate them such power “ 'would raise serious and grave issues of a separation of powers violation.’ " Id. at 568 (quoting Ronald L. Beal, Texas Administrative Procedure & Practice § 9.3.1 [c] (2011)); see also id. at 577 (further emphasizing the "subordinate status” of administrative agencies “in our system of government” and "the ‘legitimacy deficit’ inherent in administrative adjudication”) (quoting Henry P. Monaghan, Constitutional Fact Review, 85 Colum. L.Rev. 229, 239 (1985)). As State Farm Lloyds emphasizes, its constitutional challenges are grounded in the same substantive constitutional rights as in Stewart, and that case, consequently, guides our review of those aspects of the Commissioner's order. Cf. Permian Basin, 390 U.S. at 792, 88 S.Ct. 1344 (indicating that reviewing court should "not ... supplant the [ratemakerj's balance of these interests with one more nearly to its liking, but instead [merely] assure itself that the [ratemaker] has given reasoned consideration to each of the pertinent factors”).
. See State Farm Lloyds I, 255 S.W.3d at 795 ("A government-set rate must allow a regulated company to not only recover its operating expenses, but also to realize reasonable returns on its investments sufficient to assure confidence in the continued financial integrity of the enterprise.”).
. See 28 Tex. Admin. Code § 7.7(f)(1) ("[T]he terms for payment of ... interest shall result in the reflection of a financial statement liability.”).
. See id. § 7.18 (2014) (TDI, National Association of Insurance Commissioners Accounting Practices and Procedures Manual) (adopting all Statements of Statutory Accounting Principles, except to the extent they contradict the Insurance Code or TDI rules).
. See National Association of Insurance Commissioners, Accounting Practices <& Procedures Manual of2005, Statements of Statutory Accounting Principles No. 41, par. 5, at 41-3.
. See Texas Indus. Energy Consumers v. CenterPoint Energy Houston Elec., LLC, 324 S.W.3d 95, 97 (Tex.2010); CenterPoint Energy, Inc. v. Public Util. Comm’n, 143 S.W.3d 81, 83 (Tex.2004).
. See Hope, 320 U.S. at 603, 64 S.Ct. 281.
. See, e.g., Central Power & Light, 36 S.W.3d at 553 (describing how costs of gas utility's capital, including debt capital, are determined in calculating the rate of return) (citing Southern Union Gas Co. v. Railroad Comm'n, 692 S.W.2d 137, 141 (Tex.App.-Austin 1985, writ ref'd n.r.e.)); Texas Water Comm’n v. Lakeshore Util. Co., Inc., 877 S.W.2d 814, 819, n. 6 (Tex.App.-Austin 1994, writ denied) (noting that “utility’s interest payments on long-term debt are used to compute the utility's rate of return”) (citing Southern Union, 692 S.W.2d at 141).
. See Hope, 320 U.S. at 602, 64 S.Ct. 281.
. Cf., e.g., Southern Union Gas, 692 S.W.2d at 141 (distinguishing different methods for "costing" long-term debt capital, common stock capital, and preferred stock capital within determination of gas utility's rate of return, and explaining that the cost of long-term debt capital is simply "the interest rate contractually agreed upon by the investor and the [regulated entity]”).
. See id.
. State Farm Lloyds summarizes its contentions as follows:
*108Regardless of how "capital costs” might ordinarily be treated for accounting or ratemaking purposes, and regardless of whether an insurer’s replenishing surplus depleted by catastrophes can properly be considered an "investment in capital” in the traditional sense (a company investing in an asset to turn a profit), the fundamental point is this: unless the rates set for the insurer allow it simultaneously to (1) rebuild and maintain its surplus at prudent levels, and (2) timely pay off both interest and principal on its surplus note, the financial integrity of the insurer will be crippled. Without rates allowing for both (1) and (2), the insurer will not be able to "operate successfully” (because it will have surplus below prudent levels) and it will not be able to "maintain its credit” and attract capital” (because lenders don't renew loans to deadbeat clients).
Reply br. at 20-21 (citing Hope, 320 U.S. at 603, 64 S.Ct. 281).
. See Hope, 320 U.S. at 603, 64 S.Ct. 281 ("[T]he return to the equity owner should be commensurate with returns on investments having corresponding risks.”).
. State Farm Lloyds suggests that the Commissioner conceded in his order that nothing short of a 1:1 premium-to-surplus ratio would be "prudent” in its insurance operations. This is not entirely accurate. The Commissioner did accept a characterization by Appel that a 1:1 premium-to-surplus ratio was "minimally prudent,” but this was only with respect to the hypothetical, risk-adjusted level of capital that was utilized in calculating underwriting profit. See infra at 40-41. The Commissioner explicitly rejected the 1:1 ratio as a requirement or minimum benchmark in assessing State Farm Lloyds's financial condition. Order at 101 & n.276.
. Texaco, 417 U.S. at 391-92, 94 S.Ct. 2315.
.Bluefield Waterworks & Improvement Co. v. Public Serv. Comm’n, 262 U.S. 679, 694, 43 S.Ct. 675, 67 L.Ed. 1176 (1923); see also Market St. Ry. Co. v. Railroad Comm’n of State of Cal., 324 U.S. 548, 567, 65 S.Ct. 770, 89 L.Ed. 1171 (1945) ("The due process clause has been applied to prevent governmental destruction of existing economic values. It has not and cannot be applied to ... restore values that have been lost by the operation of economic forces."); Galveston Elec. Co. v. City of Galveston, 258 U.S. 388, 395, 42 S.Ct. 351, 66 L.Ed. 678 (1922) (rate cannot be held confiscatory merely on the basis that it is insufficient to enable the company to recoup prior losses).
. State Farm Lloyds offers the cautionary example of an affiliate, then the largest homeowners insurer in Florida, who elected to withdraw from that market after it "was denied adequate rates after unanticipated surplus-draining hurricane losses [reduced] its surplus ... to dangerously low levels despite a multi-million dollar surplus-note loan from State Farm Mutual.”
. See, e.g., Permian Basin, 390 U.S. at 770, 88 S.Ct. 1344 ("... any rate selected ... from the broad zone of reasonableness permitted by the Act cannot properly be attacked as confiscatory”).
.See CenterPoint Energy Entex v. Railroad Comm’n, 213 S.W.3d 364, 373 (Tex.App.-Aus-tin 2006, no pet.) ("An agency may accept or reject the testimony of witnesses. An agency is not obliged to accept opinion testimony from an expert- — even if it is the sole evidence on the issue. But an agency must provide a basis for its rejection of uncontradicted, un-impeached testimony that is neither inherently improbable or conclusory. The [agency] can reject such uncontradicted evidence if it explains or makes findings that permit courts to review the reasonableness of that rejection, but a failure to explain can result in reversal.’’) (internal citations omitted).
. See, e.g., Pioneer Natural Res. USA, Inc. v. Public Util. Comm’n, 303 S.W.3d 363, 367-68 (Tex.App.-Austin 2009, no pet.) (agency " 'is the sole judge of the weight to be accorded the testimony of each witness ...’”) (quoting Central Power & Light, 36 S.W.3d at 561).
. Railroad Comm'n v. Lone Star Gas Co., 618 S.W.2d 121, 124-25 (Tex.Civ.App.-Austin 1981, no writ).
. See Railroad Comm'n v. Moran Util. Co., 728 S.W.2d 764, 766-67 (Tex. 1987); Central Power & Light, 36 S.W.3d at 557-58; Lone Star Gas, 618 S.W.2d at 124-25.
. See Pioneer, 303 S.W.3d at 367-70 (although no witness testified specifically that 35% of utility's computer system should be considered used and useful and included in its rate base, agency could reasonably infer that calculation from evidence that (1) 70% of the system’s cost was allocable to its regulated operations and (2) 50% of the system had been used and useful during the test year; observing that "even where no evidence suggests a specific figure explicitly, the [agency] may infer that figure if it is supported by the body of evidence on that issue”); see also Central Power & Light, 36 S.W.3d at 547 (observing that because an agency "may accept or reject in whole or in part the testimony of the various witnesses who testify ... [i]t follows ... that substantial evidence will support a method of calculating [a rate component] that is an amalgam of methods proposed by different witnesses”).
. See City of El Paso v. Public Util. Comm'n, 883 S.W.2d 179, 185-86 (Tex.1994) (where evidence "ranged from expert testimony that no imprudence disallowance should be imposed, to testimony that a 50% imprudence disallowance should be imposed, and finally to testimony that there is no known theory to quantify the flaws in [the utility’s] decision making process,” and "because of the admitted complexity in valuing decisional imprudence in this case," holding that "there is a reasonable basis for the Commission to, in its discretion, select an amount within the range of figures provided by expert testimony of the parties”); Pioneer, 303 S.W.3d at 373-74 (where parties presented competing evidence as to whether utility’s capital structure for purposes of ratemaking should be its actual 83/17% debt-to-equity ratio versus a hypothetical 60/40% ratio, holding that Commission's selection of a hypothetical 75/25 figure was supported by substantial evidence, as “the evidence presented in favor of any against each endpoint was such as would allow for a hypothetical capital structure to be selected between those endpoints”); cf. id. at 370 (also acknowledging that, in a particular case, the evidence might conceivably permit only a binary choice between two end points).
. See Tex. Gov't Code § 2001.174(2) (reversal required only "if substantial rights of the appellant have been prejudiced”).
. See Pioneer, 303 S.W.3d at 367-70.
. See Tex. Gov’t Code § 2001.174(2) (reversal required only "if substantial rights of the appellant have been prejudiced”).
. See ASOP 30, at 7.
. See id.
. See Central Power & Light, 36 S.W.3d at 557-58.
. See City of El Paso, 883 S.W.2d at 185-86.
. Pioneer, 303 S.W.3d at 370; see also id. at 373 & n. 1 (rejecting complaints that no evidence established that a 75/25 capital structure "was more correct than a 77/23 structure, a 79/21 structure, or a 81/19 structure,” as "our inquiry is not whether the evidence establishes that the capital structure selected was the best option available,” only whether there was a reasonable basis for it, and in that regard "the record evidence may preponderate against the agency’s decision and yet still ... satisfy the substantial evidence standard) (emphasis in original).
.See former art. 5.142, § 14. In fact, State Farm Lloyds acknowledged as much in State Farm Lloyds III, observing that "[i]f [it] loses, and the Commissioner’s rate reduction order is reinstated on appeal, then Articles 5.26-1 and 5.142 provide their own remedy for any overcharges during that period ... [it] will be required to refund the 'overcharged premium’ to each policyholder, plus interest, in accordance with the terms of those statutes.” 267 S.W.3d at 446.
. See Act of June 2, 2003, 78th Leg., R.S., ch. 206, § 1.01, 2003 Tex. Gen. Laws 907, 912-13 (currently codified at Tex. Ins. Code §§ 2254.001-.004) (“former art. 5.144”).
. See former art. 5.144(b).
. See former art. 5.144(c).
. State Farm Lloyds also argues that the specific 0.5% downward adjustment the Commissioner made was not supported by substantial evidence. We need not reach this contention.
. The Commissioner found that both earned premiums and non-catastrophe loss and LAE would increase by 1.3% each year, hurricane catastrophe loss by 1.8%, non-hurricane catastrophe loss and LAE by 4.85%, and fixed expenses by 3%.
. I.e., one year after the last day in which State Farm Lloyds’s implemented rate had been in effect, July 31, 2008.
. See Central Power & Light, 36 S.W.3d at 547.
. See, e.g., State Farm Lloyds II, 260 S.W.3d at 245 ("Even if supported by substantial evidence, however, an agency’s order may be arbitrary and capricious...
. Id. at 245 (citing City of El Paso, 883 S.W.2d at 184; Dunn v. Public Util. Comm'n, 246 S.W.3d 788, 791 (Tex.App.-Austin 2008, no pet.)).
. Duquesne, 488 U.S. at 315, 109 S.Ct. 609.
. See Tex. Gov't Code § 2001.174(2)(f) (requiring reversal of agency "findings, inferences, conclusions, or decisions” that are” "arbitrary or capricious”); Granek, 172 S.W.3d at 782 (reversing agency decision that was arbitrary and capricious).
. Former art. 5.26-1, § 6.
. Former art. 5.142, § 14.
. As originally enacted in S.B. 14, former art. 5.144 contained no requirement that interest be awarded on refunds held to be due. See former art. 5.144. During the Legislature's following regular session, it twice amended former art. 5.144 to require interest on refunds at the rate described above. See Act of May 29, 2005, 79th Leg., R.S., ch. 291, § 1, 2005 Tex. Gen. Laws 869; Act of May 29, 2005, 79th Leg., R.S., ch. 899, § 16.01, 2005 Tex. Gen. Laws 3098, 3112. However, during the same session, the Legislature recodi-fied the underlying provisions of former art. 5.144 — minus the amendments adding the interest requirement — into chapter 2254 of the Insurance Code. See Act of May 24, 2005, 79th Leg., R.S., ch. 727, § 2254.002, 2005 Tex. Gen. Laws 1752, 2145. Although omitted from the recodification, the new interest requirement was nevertheless preserved and effective by operation of law. See Tex. Gov’t Code § 311.031(c) (“The repeal of a statute by a code does not affect an amendment, revision, or reenactment of the statute by the same legislature that enacted the code. The amendment, revision, or reenactment is preserved and given effect as part of the code provision that revised the statute so amended, revised, or reenacted.”). The Legislature corrected the omission from the recodification during its next regular session with amendments to section 2254.003 of the Insurance Code, see Act of May 23, 2007, 80th Leg., R.S., ch. 484, § 3, sec. 2254.003, 2007 Tex. Gen. Laws 850, 851, and the provision has remained in substantially this form through the present time, see Tex. Ins. Code § 2254.003.
. See supra note 111. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283528/ | OPINION
THOMPSON, JUDGE:
This action was filed by the appellees, Banner Industries of N.E., Inc., Gary J. Richard, and Pikeville Energy Group, LLC (PEG) against the appellants, Warren E. Halle, THC Kentucky Coal Venture I, LLC (THC), and West Virginia Coal Venture I, LLC, (WVCI).1 The initial complaint alleged: (1) fraud in the inducement and breach of contract; (2) tortious interference with business relations; (3) civil conspiracy; (4) breach of contract-third party beneficiaries; and (5) trade disparagement. The appellees filed an amended complaint in which they withdrew the breach of contract-third party beneficiaries and trade disparagement claims but added a count of abuse of process solely against THC. The appellants maintain the Pike Circuit Court erred when it denied their *181motion to dismiss all tort claims asserted against them based on absolute immunity under the judicial statements privilege. Alternatively, they argue no statements made in prior collateral bankruptcy proceedings and lawsuits may be used in support of the asserted tort claims.
The standard for granting a motion to dismiss pursuant to Kentucky Rules of Civil Procedure (CR)12.02, is well known:
The court should not grant the motion unless it appears the pleading party would not be entitled to relief under any set of facts which could be proved in support of his claim. In making this decision, the circuit court is not required to make any factual determination; rather, the question is purely a matter of law. Stated another way, the court must ask if the facts alleged in the complaint can be proved, would the plaintiff be entitled to relief?
James v. Wilson, 95 S.W.3d 875, 883-84 (Ky.App.2002) (internal quotations and footnotes omitted). Therefore, our discussion of the facts is necessarily based on those alleged in the appellees’ complaint and amended complaint. As our standard of review requires, for purposes of considering the trial court’s denial of the appellants’ motion to dismiss, we assume the facts alleged by the appellees are true.
In April 2005, now defunct Alma Energy, LLC, was formed in the Commonwealth of Virginia with three members, including Nathan Williams. In 2005, it purchased a mineral lease on 496 acres in Pike County and opened the Right Fork Energy Mine # 1. In June 2006, Alma purchased an adjacent mineral lease known as Netley Branch. In the spring of 2006, Alma began looking for investors. Nathan William’s father contacted Tony Gannacone III, to assist in finding an investor and, ultimately, Halle decided to invest in Alma.
In July 2006, Halle, who was the owner and chief executive officer of THC, and Alma organized Kentucky Coal Venture I, (KCVI) as a corporate instrument to facilitate their joint venture. THC controlled all KCVI’s decisions in the mining and selling coal from leases previously acquired by Alma and Alma’s interests in the Kentucky coal leases were transferred to KCVI. As part of this arrangement, the interests of the two remaining initial members of Alma were transferred to Williams. In August 2006, by agreement, Alma was given an exclusive contract to mine all coal from properties owned by THC in Pike County for twenty years and to sell the coal mined from three specified mines in Pike County, including Netley Branch.
Soon after the execution of the exclusive contract, Alma found an opportunity for Halle to purchase metallurgical coal reserves and a coal preparation facility (the Glen Alum facility), located in West Virginia. Halle formed WVCI for the purpose of purchasing the Glen Alum facility for $12 million. At this point, in addition to his interest in KCVI and THC, Hale also owned directly or indirectly WVCI. We refer to these entities collectively as Halle Entities.
In early 2007, Halle Entities accused Alma of defaulting on the 2006 agreements, which appellees contend was the beginning of Halle Entities’ plan to force Alma out of any participation in Glen Alum, a more profitable venture than the Kentucky operations.
At this point, Alma’s relationship with Halle and Halle Entities became strained. KCVI began withholding funds from Alma forcing Alma to commence two reorganization proceedings under Chapter 11 in the federal bankruptcy court. In addition, three adversary proceedings in the bankruptcy court were commenced, a civil ac*182tion was filed by Halle Entities in the United States District Court for the District of Maryland and a civil action was filed by Alma in the Pike Circuit Court. The complaint alleges Halle had a history of structuring deals to “choke off his partners” and, after forcing them into bankruptcy, purchase the assets for minimal amounts.
In 2007, Halle, Halle Entities, and Alma were parties to a settlement agreement to resolve all claims and causes of action among the parties. Pursuant to the 2007 settlement agreement, Alma would resume mining operations and mining operations would be split along state lines giving appellants complete control over the Glen Alum facility and allowing Alma to operate the Kentucky mines. The agreement permitted Alma to suspend its mining activities and be idle for up to one year if the market price for coal fell below $60 per ton. In 2008, the 2007 agreement was approved by the bankruptcy court.
Alma attempted to restore the neglected Kentucky mines to productive operation and, with little or no working capital, sought outside investors. It is at this point, the appellees, Gary Richard, President of Banner, Banner, and PEG entered into Alma’s business.
In reliance on the terms of the 2007 settlement agreement giving Alma the right to operate the Kentucky mines and sell the coal, Richard and PEG began providing financing to Alma. Richard used his personal money and money borrowed from Banner.
In the spring 2008, Alma and PEG representatives met with potential coal buyers and contracted with Appalachian Fuels. Because of Alma’s debtor-in-possession status in its bankruptcy, an affiliated entity was to perform the actual mining and PEG would purchase the coal and resell it to third parties. Banner agreed to take out'loans to finance PEG’S equipment purchases for mining Alma coal. Loans from Banner to PEG and Richard, or to vendors for PEG’S benefit, totaled $3,510 million.
By May, 2008, Alma was prepared to resume mining. When Alma filed a motion with the bankruptcy court to approve the interim mining agreement and allow commencement of mining operations, Halle Entities filed an objection raising numerous challenges to the proposed operation. The complaint alleges Halle Entities made various misrepresentations in its objection and at the hearing. It further alleges that after the hearing various threats were made by Halle Entities’ representatives to Richard.
Despite the hostilities, PEG, Alma and Halle Entities attempted to negotiate a coal-purchase agreement. While negotiations were underway, Halle Entities filed a competing plan of reorganization in the Alma bankruptcy proceedings in an attempt to strip PEG of its contracts and transfer control over Alma to appellants.
Meanwhile, Consol Capital, LLC filed an unsecured creditors claim in the Alma bankruptcy proceeding. Gannacone was a managing member of Consol, which was an exclusive contractor to Halle Entities. The complaint alleges Gannacone wrongfully attempted to persuade the committee to support Halle Entities’ reorganization plan. As a result, the opening of the Alma mines was delayed.
Eventually, Halle Entities withdrew their objection to the interim mining agreement involving PEG after being awarded exclusive rights to purchase all coal produced from Netley Branch pursuant to a coal purchase agreement dated June 30, 2008. The interim agreement was approved by the bankruptcy court. Over the next five months, Netley Branch mine generated substantial income.
*183Appellees further allege that in November 2008, WVCI and Halle Entities breached the 2007 settlement agreement and the 2008 coal purchase agreement when it abruptly cancelled the coal purchase agreement in an effort to drive Alma into liquidation. Although the 2007 settlement agreement permitted Alma to suspend mining operations for up to one year because of adverse market conditions, within two weeks after the cancellation, Halle Entities sought to have Alma’s bankruptcy converted to a Chapter 7 liquidation.
The request was granted and Alma’s case was converted to Chapter 7 liquidation on May 20, 2009, leaving PEG and Richard with no way to recover the $3.5 million they invested in Alma’s operations. The Alma trustee sold Alma’s equipment valued at $1.7 million to THC for $5,000 and the right to prosecute all of Alma’s future claims were sold to THC for $500,000.
The complaint further alleges appellants met with D. Hayden Fischer, a member of PEG who signed a release of any claims PEG may have against appellants for breach of the 2008 coal purchase agreement. However, the release was not effective because Fischer had no authority to bind PEG.
In the summer of 2008, while Netley Branch was in operation, Richard solicited investors and contracted to receive $1,175,000. Appellees allege appellants interfered with those agreements and attempted to gain an advantage by wrongfully claiming damages against Richard and PEG for the amount of those investments.
These allegations of fact form the basis for appellees’ claims. THC and WVCI filed motions to dismiss appellees’ original complaint on all counts except for breach of contract arguing various defenses including that the claims depend on the judicial statements privilege. The motion was denied without explanation. After appel-lees filed their first amended complaint that included a claim for abuse of process, Halle filed a motion to dismiss the claims against him based on the judicial statements privilege that was also denied without explanation.
THC and WVCI appealed from the trial court order denying their motion to dismiss and Halle filed a separate appeal from the denial of his motion dismiss. By order of this Court, the appeals were consolidated. Subsequently, this Court dismissed the appeals because the appealed orders did not state the reason for their denial and, therefore, were interlocutory. Subsequent, the trial court issued an order clarifying the judicial statements privilege did not apply, and this appeal followed.
As appellants frame the issue, the question before the Court is whether appellants are shielded by the judicial statements privilege from liability for all tort actions asserted.2 Appellees argue the judicial statements privilege should be restricted to claims for defamation predicated on statements made preliminary to or during judicial proceedings. As we understand the arguments, our inquiry is three-fold: (1) Does the judicial statements privilege apply to a litigant’s conduct?; (2) Does the judicial statements privilege apply to each tort alleged?; and (3) Based on the allega*184tions in the complaint, did the trial court properly deny the appellants’ motion to dismiss? First, we make a threshold inquiry regarding this Court’s jurisdiction.
Generally, because the denial of a motion to dismiss is interlocutory in nature, it is not a final and appealable order. However, an exception to the finality rule has been recognized in the realm of absolute governmental immunity and qualified official immunity. The rule and its logic were explained in Breathitt County Bd. of Educ. v. Prater, 292 S.W.3d 883, 886-87 (Ky.2009):
Obviously such an entitlement cannot be vindicated following a final judgment for by then the party claiming immunity has already borne the costs and burdens of defending the action. For this reason, the United States Supreme Court has recognized in immunity cases an exception to the federal final judgment rule codified at 28 U.S.C. § 1291. In Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), the Court reiterated its position that the denial of a substantial claim of absolute immunity is an order appealable before final judgment. We find the Supreme Court’s reasoning persuasive, and thus agree with the Court of Appeals that an order denying a substantial claim of absolute immunity is immediately appealable even in the absence of a final judgment, (internal quotation marks and citations omitted).
In Morgan & Pottinger, Attorneys, P.S.C. v. Botts, 348 S.W.3d 599, 601 (Ky.2011), the Court extended the exception to claims of immunity under the judicial statements privilege. We adhere to this proposition and consider the merits of this appeal but do so with reservation for the reason we are without the benefit of a developed factual record. Nevertheless, we address the issue of the judicial statements privilege. It is a question of law. Id.
The judicial statement privilege is one that has been long adhered to in this jurisdiction and is rooted in public policy “which looks to the free and unfettered administration of justice, though, as an incidental result, it may, in some instances, afford an immunity to the evil-disposed and malignant slanderer.” Schmitt v. Mann, 291 Ky. 80, 163 S.W.2d 281, 284 (1942) (quoting Bartlett v. Christhilf, 69 Md. 219, 14 A. 518, 520 (1888)). Although sometimes referred to as providing immunity from civil suit, to say the speaker is immune from civil liability is a misnomer. As its name implies, it is a privilege and, therefore, precludes the use of those privileged communications to sustain a cause of action. It does not bar the cause of action but only renders it unsustainable if based exclusively on statements privileged under the law. Generally stated, it affords an absolute privilege to statements made “preliminary to a proposed judicial proceeding, or in the institution of, or during the course and as a part of a judicial proceeding” and that have “some relation to a proceeding that is contemplated in good faith and under serious consideration.” Rogers v. Luttrell, 144 S.W.3d 841, 843—44 (Ky.App.2004) (quoting General Electric Co. v. Sargent & Lundy, 916 F.2d 1119, 1127 (6th Cir.1990)). It applies with equal force to statements in pleadings filed in judicial proceedings. Massengale v. Lester, 403 S.W.2d 701-02 (Ky.1966).
As new torts derivative of defamation have emerged, some jurisdictions have expanded the privilege. See Simms v. Seaman, 308 Conn. 523, 566, 69 A.3d 880 (2013). The prevailing thought when expanding the privilege to torts other than defamation is explained in Hoover v. Van Stone, 540 F.Supp. 1118, 1124 (D.Del.1982) (quoting Rainier’s Dairies v. Raritan Val*185ley Farms, 19 N.J. 552, 117 A.2d 889, 895 (1955)):
If the policy, which in defamation actions affords an absolute privilege or immunity to statements made in judicial and quasi-judicial proceedings is really to mean anything then we must not permit its circumvention by affording an almost equally unrestricted action under a different label.
However, as the Tennessee Supreme Court in Brown v. Birman Managed Care Inc., 42 S.W.3d 62, 72 (Tenn.2001), observed, the expansion of the privilege “comes at a cost.”
Indeed, any privilege of general application protects those who deserve it, as well as those who do not. This fact explains why, despite a general acceptance of the common law privilege, there is debate in the case law over its proper contours. For instance, some would restrict the privilege to its early roots in the context of defamation law, while others advocate a more expansive application.
Id. at 72-73 (internal citations, quotations and parenthetical information omitted).
Little has been written in Kentucky regarding the scope of the privilege beyond defamation actions. See e.g. Smith v. Hodges, 199 S.W.3d 185 (Ky.App.2005) (and cases cited therein); Rogers, 144 S.W.3d 841; Massengale, 403 S.W.2d 701; Schmitt, 291 Ky. 80, 163 S.W.2d 281; Lisanby v. Illinois Cent. R. Co., 209 Ky. 325, 272 S.W. 753 (1925). However, our review of the two most recent Kentucky cases lead us to conclude the judicial statements privilege, although vital to the administration of justice, should not be an exception to the general rule that privileges are to be narrowly construed. O’Connell v. Cowan, 332 S.W.3d 34, 39 (Ky.2010). Consequently, we hold the privilege is only applicable to communications and has no application where it is alleged the conduct of the tortfeasor serves as the basis for the claim.
The most recent case from our Supreme Court to discuss the scope of the judicial statements privilege is Ballard v. 1400 Willow Council of Co-Owners, Inc., 430 S.W.3d 229 (Ky.2013). In that case, the Court had the opportunity to follow the majority of jurisdictions and apply the judicial statements privilege to statements contained in a lis pendens. Id. at 237-38. Rejecting the majority view, the Court held the filer was entitled only to a qualified privilege. Instead of expanding the privilege, it balanced the interest of the creditor and those of the landowner to be free from defamation and recourse when her property has been disparaged by the “unfounded and malicious publication of another.” Id. at 238-39 (quoting Warren v. Bank of Marion, 618 F.Supp. 317, 325 (W.D.Va.1985)). Notably, it was not the act of filing the lis pendens that was the basis for the slander of title action but the knowingly and maliciously communication of a false statement. Id.
Morgan & Pottinger, 348 S.W.3d 599, relied upon by appellants and, although distinguishable, nevertheless lends insight into whether conduct is privileged or, as it name implies, the judicial statements privilege is limited to communications. Unfortunately for appellants, our understanding of the Court’s reasoning does not lead to the favorable conclusion they desire.
In Morgan & Pottinger, after a Kentucky Bar Association (KBA) disciplinary complaint was filed against an attorney, the attorney filed an action alleging wrongful use of civil proceedings, defamation and slander, abuse of process, fraud, and outrageous conduct against the complainant and its attorney who filed the disciplinary complaint. Among their reasons for dismissal of all causes of action asserted, the complainant and its attorney argued they *186were immune from suit pursuant to the judicial statements privilege. Id. at 601.
First, the Court addressed whether statements made preliminary to, or in the institution of, or during the course of an attorney disciplinary proceedings are privileged if material, pertinent and relevant to such proceeding. Holding a KBA disciplinary proceeding is a judicial proceeding, the Court concluded such statements are privileged. Id. at 602. However, a second issue, and one the Court found more problematic, was whether the privilege applied to allegations of wrongful use of civil proceedings, abuse of process, fraud, and outrageous conduct. As phrased by the Court, whether claims based not only on statements contained in the KBA complaint, but also on the act of filing the complaint, posed a “larger question.” Id. at 603.
Although the Court held the privilege applied, its reasoning was premised on the nature of an attorney disciplinary proceeding. It noted a layperson is not expected to “understand the subtle legal difference between an allegation of defamation versus a claim of abuse of process.” Id. at 605. Further, the Court stressed its decision would encourage people with complaints against attorneys to submit information to the KBA. Finally, the Court noted its holding would not unduly burden attorneys or abrogate any right to seek redress. Id. Ultimately, the decision to afford absolute immunity to KBA complainants for the act of filing the complaint was premised on the notion that “one who elects to enjoy the status and benefits as a member of the legal profession must give up certain rights as causes of action.... ” Id. (quoting Stone v. Rosen, 348 So.2d 387, 389 (Fla.App.1977)).
We conclude the Court did not intend its reasoning to extend the privilege to acts other than disciplinary complaints filed with the KBA. In her extensive dissent, Justice Noble astutely pointed out that it would be incongruous to say the Court extended the judicial statements privilege to conduct and a stark deviation from the traditional rule that the judicial statements privilege “can apply only when the claims stems from the statements made in judicial proceedings!)]” Id. at 607 (Nobel, J. dissenting).
With this admittedly shallow legal background and the caveat the privilege does not apply to conduct, we individually address the claims presented. We begin with abuse of process.
In the few Kentucky cases applying the judicial statements privilege outside defamation actions, it has been applied to actions for malicious prosecution based on the allegation that a witness lied to a grand jury to secure an indictment. Reed v. Isaacs, 62 S.W.3d 398 (Ky.App.2000). The strong public policy for encouraging witnesses to crimes to come forward without fear of retaliation in the form of a civil lawsuit is undoubtedly furthered by such an application.
However, abuse of process differs from malicious prosecution in significant ways. Quoting Prosser on Torts (3d ed.), § 115, 876-77, the Court in Flynn v. Songer, 399 S.W.2d 491, 494 (Ky.1966), highlighted the distinctions:
Abuse of process differs from malicious prosecution in that the gist of the tort is not commencing an action or causing process to issue without justification, but misusing or misapplying process justified in itself for an end other than that which it was designed to accomplish. The purpose for which the process is used, once it is issued, is the only thing of importance. * * * The improper purpose usually takes the form of coercion to obtain a collateral advantage, not *187properly involved in the proceeding itself, such as the surrender of property or the payment of money, by the use of the process as a threat or a club. There is, in other words, a form of extortion, and it is what is done in the course of negotiation, rather than the issuance or any formal use of the process itself, which constitutes the tort.
Unlike malicious prosecution, at the core of abuse of process is the improper use of judicial proceedings and the defendant’s motive for using the process rather than the statements made during the course of a judicial proceeding.
In Baglini v. Lauletta, 315 N.J.Super. 225, 717 A.2d 449 (Law Div.1998), the Court expressed the sound reasoning that it would not further the legitimate purposes of the privilege to apply it to abuse of process. “[A]n abuse of process claim is inherently inimical to a litigation privilege and taken to its logical extreme, could emasculate the tort entirely.” Id. at 289, 717 A.2d at 456. “Accordingly, when allegations of misconduct properly put an individual’s intent at issue in a civil action, statements made in judicial proceedings may be used for evidentiary purposes in determining whether an individual acted with the requisite intent.” Id. at 238, 717 A.2d at 455-56. The Court held that the defendant’s statements in depositions in the underlying action and statements made during settlement negotiations were admissible at trial in the abuse of process action as evidence of ‘further acts’ to support the plaintiffs’ abuse of process claim. Id. at 239, 717 A.2d at 456. See also MacDermid, Inc. v. Leonetti, 310 Conn. 616, 629, 79 A.3d 60, 68-69 (2013) (noting the distinction “between attempting to impose liability upon a participant in a judicial proceeding for the words used therein and attempting to impose liability upon a litigant for improper use of the judicial system itself’ and holding the privilege is not applicable to abuse of process).
We likewise conclude the judicial statement privilege has no application to abuse of process claims. However, the remaining torts, interference with business relations and fraud in the inducement, are more akin to defamation actions and compel a different application of the privilege.
Unlike abuse of process claims, intentional interference with business relations and fraud in the inducement are not necessarily based on the tortfeasor’s abuse of the judicial process. Tortious interference with business relations requires: (1) the existence of a valid business relationship or expectancy; (2) that the defendant was aware of this relationship or expectancy; (3) that the defendant intentionally interfered; (4) that the motive behind the interference was improper; (5) causation; and (6) special damages. Monumental Life Ins. Co. v. Nationwide Retirement Solutions, Inc., 242 F.Supp.2d 438, 450 (W.D.Ky.2003).
In Gray v. Central Bank & Trust Co., 562 S.W.2d 656, 658 (Ky.App.1978), the Court held “any privilege conferred by statute applies equally to actions founded upon defamation and to actions founded upon the tort of interference with prospective economic relations.” In doing so, it made the following observation: “There has been considerable dispute concerning whether the alleged defamation and interference with prospective contractual relationships were separate causes of aetion[.]” Id. at 657. The Court noted the tort is within the same genre as defamation:
Prosser, in his treatise, Law of Torts, 4th Edition, Chapter 25, Section 130, at page 926 states:
Defamation, interference with contract, injurious falsehood, and the broader tort of interference with prospective *188economic relations, are all different phases of the same general wrong of depriving the plaintiff of beneficial relations with others ... the greatest protection is given to personal reputation, and existing contracts, the least to competitive interest in future advantage ...
At page 924, Prosser further states:
In general, it may be said that injurious falsehood which is a tort that never has been greatly favored by the law, is subject to all of the privileges recognized both in cases of personal defamation and in those of other types of interference with economic advantage. The question of absolute privilege to disparage in judicial, legislative, and executive proceedings has seldom arisen, except in connection with pleadings, motions, and the like in the course of litigation, where it has been recognized.
On page 953 in ff. 97, Prosser further states:
Although there are almost no cases, it appears that the absolute privileges in defamation will be available as a defense here, (cases of interference with prospective economic relations.)
Id. at 657-58. Based on Gray, we conclude the judicial statements privilege is applicable to claims for tortious inference with business relations and, therefore, any statements made preliminary to, or in the institution of, or during the course of litigation that were material, pertinent and relevant to such litigation cannot be used to support the claim.
We also believe the privilege applies to claims of fraud.- “In Kentucky, a party claiming harm resulting from fraud in the inducement must establish six elements of fraud by clear and convincing evidence as follows: a) material representation b) which is false c) known to be false or made recklessly d) made with inducement to be acted upon e) acted in reliance thereon and f) causing injury.” Bear, Inc. v. Smith, 303 S.W.3d 137, 142 (Ky.App.2010).
While there is no Kentucky law addressing the application of the privilege to fraud, in Heavrin v. Nelson, 384 F.3d 199 (6th Cir.2004), the Court considered whether, under Kentucky law, the judicial statements privilege is applicable. Noting the privilege had been extended to causes of action other than defamation, the Court held any statements made in pleadings filed in a bankruptcy proceeding could not be the basis for a claim of fraud. Id. at 202.
We likewise conclude statements made preliminary to, or in the institution of, or during a judicial proceeding cannot be the basis for fraud in the inducement. Defamation and fraud based on statements made preliminary to or during a judicial proceedings “contemplate allegations that a party suffered harm because of a falsehood communicated” by the defendant, “namely, the publication of a false statement. that harms the other party’s reputation in the case of defamation, and a false representation made as a statement of fact that induces the other party to act to his detriment in the case of fraud.” Simms, 308 Conn. at 548, 69 A.3d at 894. The Connecticut Supreme Court noted:
Commentators have observed that, “because the privilege protects the communication, the nature of the theory [on which the challenge is based] is irrelevant.” (Emphasis added.) 3 R. Mallen & J. Smith, Legal Malpractice (2010) § 22:8, pp. 185-86; accord P. Hayden, supra, 54 Ohio St. L.J. at 998. Accordingly, because the communication of a falsehood is an essential element of both defamation and fraud, the litigation privilege provides a complete defense to both causes of action. See 3 R. Mallen *189& J. Smith, supra, § 22:8, at pp. 186-87[J
Id. at 548-49, 69 A.3d at 894. Just as the defenses applicable to defamation shield the speaker from liability for defamation, the judicial statements privilege shields the speaker from claims for fraud in the inducement based on statements made preliminary to, or in the institution of, or during a judicial proceeding if those statements were material, pertinent, and relevant to the judicial proceeding.
The final and ultimate question is whether the trial court properly denied appellants’ motion to dismiss all tort claims based on the judicial statements privilege. Even with only the appellees’ allegations as our historical map of this litigation, it is apparent that the parties have had a turbulent and lengthy business relationship and equally lengthy and turbulent court battles. As appellees point out, allegations in their voluminous complaint and amended complaint include references to statements made outside of, prior to, and after the various judicial proceedings and, therefore, fall outside the privilege. The appel-lees further allege non-communicative conduct not protected by the privilege in any tort action. Therefore, we hold the trial court properly denied the appellants’ motion to dismiss and, affirm.
On remand, perhaps upon motion for summary judgment or a motion in limine, the trial court will be asked to analyze the application of the judicial statements privilege to particular communications made in prior litigations. For the trial court’s and the parties’ benefit in what could be a prolonged and tenacious litigation, we summarize our holding. First, the judicial statements privilege does not apply to conduct. Second, it has no application to abuse of process claims. Third, the privilege applies to interference with business relations and fraud in the inducement to the extent the claims rely on communications made preliminary to, or in the institution of, or during the course of a judicial proceeding. Additionally, it applies only if those communications were material, pertinent and relevant to the judicial proceeding. Morgan & Pottinger, 348 S.W.3d at 602.
Based on the forgoing, the order denying appellants’ motion to dismiss is affirmed.
STUMBO, JUDGE, CONCURS.
TAYLOR, JUDGE, CONCURS IN RESULT ONLY.
. The complaint also named Tony Ganno-cone, III, Nathan Williams, and D. Hayden Fisher as defendants. They are not parties to the present appeal.
. We pause to note that case law has used the term judicial statements privilege as applicable to litigants, witnesses and to attorneys alike. Arguably, a broader privilege may be applicable to an attorney who has the duty to zealously represent his or client and against whom sanctions, including CR 11 sanctions, may be available. This case does not deal with the statements or conduct of an attorney during a judicial proceeding and we make no comment as to the application of any privilege that may be applied to an attorney. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283529/ | OPINION
DIXON, JUDGE:
Appellants, Walter M. Butt and Karen Petigo, co-administrators of the estates of Brian C. Butt and Michael A. Butt; Stephanie A. McCauley, as mother next friend and conservator for Maggie Elizabeth Ann McCauley; Ashley N. Hazelwood as mother, next friend and conservator for Kile A. Green; and Bruce E. Butt, appeal from an order of the Jefferson Circuit Court granting summary judgment in favor of Appel-lee, Independence Club Venture, Ltd. d/b/a The Electric Cowboy, and dismissing their cause of action for violation of Kentucky’s Dram Shop Act. Appellants also appeal the trial court’s denial of their motion to set aside an interlocutory agreed order dismissing Appellants’ claim for punitive damages following an intervening change in Kentucky law.
On the morning of February 21, 2010, Bruce Butt, Michael Butt, Brian Butt and Derek Chism were passengers in a vehicle driven by Nathan King. After leaving Ap-pellee’s establishment, the Electric Cowboy, King’s vehicle was involved in a serious accident on Dixie Highway, wherein Michael Butt, Brian Butt and Derek Chism were killed and Bruce Butt was injured. King was intoxicated at the time of the accident.
On May 10, 2010, Appellants entered into a settlement agreement with King, his family, and his insurer, Motorists Mutual Insurance Companies. The following language was included in each “Release of All Claims” document:
It is not the intent of this Release to preclude a cause of action by [Appellant] against other potentially responsible parties, such as liquor stores, restaurants, bars, and the like which [Appellant] may have visited on the evening in question. It is the intent of this Release that any and all claims have been released against the Kings and any and all relatives, as well as Motorists Mutual Insurance Companies and any of its related companies.
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I agree and understand that it is the objective of the parties released herein and their representatives that they be released from any and all liability arising out of the accident referred to herein and any and all claims which have been or may be asserted herein and their representatives arising out of or originating from the accident referred to herein. Therefore, I hereby covenant and agree to defend, hold harmless, and to indemnify the parties released herein and their representatives from any and all claims, liens, causes of action, demands or suits of any kind which may have been brought because of the accident referred to herein or for any amount that they or their representatives may be hereafter compelled to pay on account of any claims arising out of the accident referred to herein.
On February 24, 2011, Appellants filed the instant action in the Jefferson Circuit Court against Appellee alleging that it vio*192lated Kentucky’s Dram Shop Act by negligently serving alcohol to King on the evening of February 28, 2010, and that said negligence was a substantial factor in causing the accident. Appellee thereafter moved for summary judgment on the grounds that pursuant to the Kentucky Supreme Court’s decision in DeStock # 14 v. Logsdon, 993 S.W.2d 952 (Ky.1999), the “hold harmless” provision in the release document effectively nullified all dram shop liability. By order entered July 18, 2013, the trial court granted Appellee’s motion, concluding that “Plaintiffs are precluded from any recovery against Electric Cowboy because it would then be entitled to indemnity against King for the amount of any recovery, and Plaintiffs would be required to hold King harmless to the extent of the indemnification.” Appellants thereafter appealed to this Court.
Our standard of review on appeal of a summary judgment is “whether the trial court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law.” Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky.App.1996). Summary judgment shall be granted “if the pleadings, depositions, answers to interrogatories, stipulations, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” CR 56.03. The trial court must view the record “in a light most favorable to the party opposing the motion for summary judgment and all doubts are to be resolved in his favor.” Steelvest v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky.1991). Summary judgment is proper only “where the movant shows that the adverse party could not prevail under any circumstances.” Id.
Appellants first argue that the trial court erred in determining that the hold harmless language in the release precluded a cause of action against Appellee. Appellants point out that the language of the release document specifically states, “It is not the intent of this Release to preclude a cause of action ...” with the word “Release” being capitalized, .thus indicating that “Release” is the title of the document and the intent statement applies to it as a whole. As such, Appellants contend that “[t]he language of all of the Releases specifically and unequivocally excludes Nathan King, his Family and Motorist Mutual Insurance Company from any protection under the subsequent “hold harmless” provision, for any claims against liquor stores, restaurants or bars.” In other words, Appellants assert that because the statement of intent nullifies the “hold harmless” provision with respect to any claim against Appellee, the trial court erred in relying on the DeStock decision. We must disagree.
Contract interpretation, including determining whether a contract is ambiguous, is a question of law for the courts and is subject to de novo review. Morganfield Nat’l Bank v. Damien Elder & Sons, 836 S.W.2d 893, 895 (Ky.1992); see also Cantrell Supply, Inc. v. Liberty Mut. Ins. Co., 94 S.W.3d 381, 385 (Ky.App.2002). “The scope of a release is determined primarily by the intent of the parties as expressed in the release instrument.... ” Ohio Casualty Insurance Co. v. Ruschell, 834 S.W.2d 166, 169 (Ky.1992) (Citation omitted). When there is no ambiguity, the Court is only to look at the four corners of the document to determine the intent. Abney v. Nationwide Mutual Insurance Company, 215 S.W.3d 699, 703 (Ky.2006). Further, “[t]he fact that one party may have intended different results ... is insufficient to construe a contract at vari-*193anee with its plain and unambiguous terms.” Cantrell Supply, Inc., 94 S.W.3d at 385.
The trial court herein relied on our Supreme Court’s decision in DeStock # 14 v. Logsdon, 993 S.W.2d 952 (Ky.1999), wherein the plaintiffs were injured in an automobile accident with a drunk driver. The plaintiffs sued both the driver (Logsdon) and DeStock d/b/a Applebee’s Neighborhood Bar and Grill which they alleged continued to serve Logsdon alcohol after he became obviously intoxicated. After the plaintiffs entered into a settlement agreement and release with Logsdon, the trial court granted summary judgment to DeStock, “premised upon the theory that the release by [plaintiffs] of Logsdon, who was primarily liable, effectuated a concomitant release of DeStock, which was only secondarily liable.” Id. at 959.
On appeal, our Supreme Court examined the interplay between causation and liability under Kentucky’s Dram Shop Act, KRS 413.241, which provides, in relevant part:
(1) The General Assembly finds and declares that the consumption of intoxicating beverages, rather than the serving, furnishing, or sale of such beverages, is the proximate cause of any injury, including death and property damage, inflicted by an intoxicated person upon himself or another person.
(2) Any other law to the contrary notwithstanding, no person holding a permit under KRS Chapters 241 to 244, nor any agent, servant, or employee of the person, who sells or serves intoxicating beverages to a person over the age for the lawful purchase thereof, shall be liable to that person or to any other person or to the estate, successors, or survivors of either for any injury suffered off the premises including but not limited to wrongful death and property damage, because of the intoxication of the person to whom the intoxicating beverages were sold or served, unless a reasonable person under the same or similar circumstances should know that the person served is already intoxicated at the time of serving.
(3)The intoxicated person shall be primarily liable with respect to injuries suffered by third persons.
The DeStock Court concluded that under subsection (1), it is the actions of the intoxicated tortfeasor, and not the dram shop’s service of alcohol, that are the proximate cause of injury. Liability is imputed to the dram shop for injuries to a third person under subsection (2) only if the dram shop’s employees sold or served intoxicating beverages to a person when a reasonable person under the same or similar circumstances would have known that he or she is already intoxicated. DeStock, 993 S.W.2d at 957. Finally, the Court noted that pursuant to subsection (3), the tortfeasor remains primarily liable for injuries while the dram shop is secondarily liable with a right of indemnity against the tortfeasor. Id. In other words, “the dram shop and the tortfeasor are not concurrently negligent, but instead have committed two separate and independently tor-tious acts. Liability is imposed on the intoxicated tortfeasor for his actions in injuring the plaintiff, while liability is imposed upon the dram shop for the entirely separate and ‘independently negligent’ act of serving alcohol to the intoxicated tort-feasor before the accident.” Jackson v. Tullar, 285 S.W.3d 290, 295 (Ky.App.2007) (Quoting DeStock at 959).
As it specifically pertains to the matter herein, the DeStock Court further held:
Since Logsdon and DeStock were not in pari delicto and Logsdon is primarily liable and DeStock only secondarily liable to Reid and Alvey, DeStock will be *194entitled to indemnity against Logsdon for any sums it is required to pay in damages to them. Lexington Country Club v. Stevenson, Ky., 390 S.W.2d 137, 143 (1965)....
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Logsdon complains that if DeStock is entitled to indemnity against him, he will lose the benefit of his settlements with Reid and Alvey. Perhaps; but he entered into those settlements with knowledge of the existence of DeStock’s cross claim for indemnity. Except for the amounts paid, the t'erms of the settlements are not found in this record, so it is unknown whether the settlement documents include the standard “hold harmless” clause contained in the agreement considered in Crime Fighters Patrol v. Hiles, supra, at 937. If so, Reid and Alvey are precluded from any recovery against DeStock; for DeStock would be entitled to indemnity against Logsdon for the amount of that recovery, and Reid and Alvey would be required to hold Logsdon harmless to the extent of the indemnification. Id. If not, Reid and Alvey can proceed to trial on their claims against DeStock in accordance with thé principles set forth in this opinion. Of course, DeStock will be entitled to credit against any judgments in favor of Reid or Alvey for the amounts which each respectively received in settlement from Logsdon. Burke Enterprises, Inc. v. Mitchell, Ky., 700 S.W.2d 789, 794-96 (1985); Daniel v. Turner, Ky., 320 S.W.2d 135 (1959). DeStock will then be entitled to indemnity against Logsdon for any sums it is required to pay in damages to Reid and/or Alvey. (Emphasis added)
DeStock at 957-59.
The DeStock Court, in making the observation that the existence of a hold harmless clause in their release of Logs-don would preclude plaintiffs from any recovery against DeStock, cited to the decision in Crime Fighters Patrol v. Hiles, 740 S.W.2d 936 (Ky.1987). In Hiles, the plaintiff was assaulted while visiting a White Castle restaurant. The plaintiff settled with the assailant and thereafter filed suit against White Castle, who in turn filed a third-party complaint against its security firm, Crime Fighters Patrol. In addition, both White Castle and Crime Fighters Patrol filed actions against the assailant seeking indemnity. Based upon “hold harmless” language contained in settlement agreement between the plaintiff and assailant, the trial court granted summary judgment in favor of White Castle and Crime Fighters Patrol. On appeal, the Supreme Court held that because the assailant, White Castle and Crime Fighters Patrol were not in pari delicto, the latter two would have been entitled to complete indemnity from the assailant. Id. at 940-41. Further, because the assailant had a contractual agreement from the plaintiff indemnifying him against any further liability, the plaintiff himself would have been the responsible party for any judgment against White Castle or Crime Fighters Patrol. Id. This is referred to as the “circuity of litigation” that courts have sought to avoid. Zetter v. Griffith Aviation, Inc., 435 F.Supp.2d 622, 631 (E.D.Ky. 2006) (Citing Copeland v. Humana of Kentucky, Inc., 769 S.W.2d 67, 69 (Ky.App.1989)) (internal citations omitted).
Appellants seek to convince this Court that under the release documents, “[t]he Kings and Motorist Mutual are indemnified against medical liens, Medicare claims, and any claim imaginable other than this one. That is the stated intent of the document and that is how each Release should be applied.” Unfortunately, we are of the opinion that a plain reading of the release *195language does not support Appellant’s interpretation. The release language is not ambiguous. Looking only at the four corners of the documents, it is clear that Appellants intended to preserve their right to pursue a claim against Appellee. However, it is also clear that Appellants agreed to hold harmless and indemnify the released parties from “any and all claims, liens, causes of action, demands or suits of any kind which may have been brought because of the accident referred to herein. ...” Despite Appellants’ argument to the contrary, there simply is no limiting language in the release excluding indemnification for a dram shop claim.
We are cognizant of the effect that this opinion will have on Appellants. Nevertheless, we cannot construe the release document in variance to its plain and unambiguous language regardless of what Appellants now assert was its intent. We believe that there is no conclusion that can be reached other than any cause of action against Appellee is moot because there ultimately can be no recovery of damages.
We conclude that the rationale set forth in both DeStock and Hiles is dispositive herein. Although Appellants preserved their right to pursue a cause of action against Appellee, the “hold harmless” provision effectuates a release of any dram shop liability. Accordingly, we are compelled to agree with the trial court that “[Appellants] are precluded from any recovery against [Appellee] because it would then be entitled to indemnity against King for the amount of any recovery, and [Appellants] would be required to hold King harmless to the extent of the indemnification.” Again, this is the “circuity of litigation” that courts must avoid.
Because we have determined that summary judgment was proper herein, we necessarily do not reach Appellants argument concerning the availability of punitive damages.
For the reasons set forth herein, the order of the Jefferson Circuit Court is affirmed.
CLAYTON, JUDGE, CONCURS.
JONES, JUDGE, CONCURS IN RESULT ONLY. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283530/ | WILLIAM W. FRANCIS, JR., J.
Sheri Stephens (“Stephens”) appeals the motion court’s “Judgment” sustaining motions to dismiss filed by Sheriff W. Archie Dunn (“Sheriff Dunn”), Sheriff Jack L. Merritt (“Sheriff Merritt”), and C.E. Wells (“Wells”), and the “Motion to Dismiss, or in the Alternative, Quash Purported Service of Process” filed on behalf of John Doe I, John Doe III, and John Doe IV (“collectively “Does I, III, and IV”). We affirm the Judgment2 of the motion court.
Factual and Procedural Background
On March 8, 2007, William Stephens (“decedent”) was detained in Greene County on suspicion of driving with a suspended license. During this traffic stop, it was discovered decedent had an outstanding arrest warrant in Jasper County for violation of a protective order. As a result, decedent was arrested and booked into the Greene County Jail and then transferred to the Jasper County Jail on March 9, 2007.
On March 9, 2007, sometime after being booked into the Jasper County Jail, decedent was found dead in his cell. On March 9, 2010, exactly three years after decedent’s death, Stephens3 filed a “Petition for Damages for Wrongful Death” (“petition”) naming and describing the following defendants:
3. Sheriff W: Archie Dunn ... was the Sheriff of Jasper County ... on March 9, 2007 and is currently the Sher*245iff of Jasper County, Missouri. Dunn was responsible for the safety of inmates in the Jasper County Jail and ... holding cells on March 9, 2007 and before.
4. Sheriff Jack L. Merritt ... was the Sheriff of Greene County ... on March 9, 2007. Merritt was responsible for the safety of inmates in the Greene County Jail and ... holding cells on March 9, 2007 and before.
5. C.E. Wells ... is the former Jail Administrator of the Greene County Jail. Wells was responsible for the safety of inmates in the Greene County Jail and ... holding cells on March 9, 2007 and before.
6. Gerald Tuck (“Tuck”) is the former Jail Administrator of the Jasper County Jail. Tuck was responsible for the safety of inmates in the Jasper County Jail and ... holding cells on March 9, 2007 and before.
7. In the alternative to paragraph 6 above, John Doe I is the former Jail Administrator of the Jasper County Jail. John Doe I was responsible for the safety of inmates in the Jasper County Jail and ... holding cells on March 9, 2007 and before.
8. John Doe II was the former Greene County ... employee who oversaw the transfer of decedent to Jasper County officials ... on March 9, 2007.
9. John Doe III was the former Jasper County ... employee who took transfer of decedent from John Doe II when [decedent] was transferred from Greene County ... on March 9, 2007.
10. John Doe IV, was the former Jasper County ... employee whose responsibility it was to provide for, oversee and implement the policies of Jasper County ... concerning the safety of inmates in the county jail and ... holding cells on March 9, 2007.
11. John Doe V was the former Greene County ... employee whose responsibility it was to provide for, oversee and implement the policies of Greene County ... concerning the safety of inmates in the county jail and ... holding cells on March 9, 2007.
12. John B. Freitas, D.O. (“Freitas”), is a practicing Doctor of Osteopathy who administered drugs to decedent on March 9, 2007, causing and/or contributing to cause his death.
The petition alleged that decedent “had a history of a threat of suicidal hanging” and while incarcerated in the Greene County Jail, attempted to injure himself by “cutting his right wrist, threatened to commit suicide, and displayed signs of agitation, depression and anxiety.” As a result, decedent was placed on a “suicide watch” by “the Greene County, Missouri Sheriffs Department.”
The petition also alleged that none of the defendants (excluding Freitas) informed the “proper authorities” upon transfer to Jasper County, of decedent’s mental and emotional condition as exhibited while in the Greene County Jail. Stephens’ petition further stated that decedent “continued to display severe mental and emotional distress” while in the custody of Jasper County and Freitas was “summoned” to the jail.4 Later that day, decedent was found dead in his cell after “tying [a bed sheet] to his bunk then securing it to his neck and transferring his *246weight onto his neck until he passed out and died.”
The petition further alleged:
25. Knowing of [decedent]’s medical needs, defendants and each of them demonstrated deliberate indifference and reckless disregard of [deeedent]’s medical needs, psychological needs and other needs which required attention, which the defendants and each of them had the duty to provide. Said conduct is also evidence of gross negligence, willful misconduct, bad faith, and malice toward [decedent].
26. Defendants and each of them, demonstrated evidence of gross negligence, willful misconduct, bad faith, and malice toward [decedent] by not providing continuous observations of the [decedent].
27. As a direct and proximate cause of the conduct of the defendants and each of them, [Stephens] was caused to sustain damages including funeral expenses and the loss of the services, companionship, comfort, instruction, guidance, counsel, training, and support that she would have received from [decedent] had he not died due to the reckless acts of the defendants as stated herein. In addition, [Stephens] seeks damages for the pain and suffering of [decedent] due to the acts of defendants in not properly providing supervision of him while he had known suicidal tendencies.
28. Due to the aggravating circumstances attending decedent’s death, [Stephens] seeks punitive damages against defendants and each of them.
29. Defendants and each of them owed a duty to decedent to provide for his safety as follows:
• not allowing decedent to be left alone at any time;
• providing and/or arranging for medical attention to the decedent;
• providing and/or arranging for psychological attention to decedent;
• ensuring that decedent was not administered drugs which were contraindicated given his then-current medications, his mental health, his emotional stability and/or his suicidal ideations;
• providing a safe environment for the decedent in which his mental and emotional conditions would not allow him to do harm to himself;
• providing decedent a “safe room” pending his disposition in court such that decedent would not have at his fingertips the means to kill himself; and
• providing continuous observation of decedent, 24/7.
30. Defendants and each of them breached their aforesaid duties to decedent, which proximately caused damages to [Stephens].
Although the petition was filed on March 9, 2010, summonses in the case were not requested until August 12, 2011, more than a year after the petition was filed.5 Following service of process, both *247Sheriff Dunn and Sheriff Merritt filed a “Motion to Dismiss” and suggestions in support in September 2011. Wells also filed a “Motion to Dismiss” and suggestions in support on January 19, 2012. These motions to dismiss alleged Stephens’ petition “fails to state a claim upon which relief may be granted.” Stephens filed suggestions in opposition to the motions filed by Sheriff Dunn, Sheriff Merritt, and Wells.
In the meantime, “Affidavit[s] of Service” were filed on January 17, 2012, for Does I, III, and IV after delivering summonses and petitions to “Sgt Mauller” at the Jasper County Jail.6 On or about January 26, 2012, a “Motion to Dismiss or, in the Alternative, to Quash Purported Service of Process” was filed on behalf of Does I, III, and IV.
The motion court advised counsel by letter dated November 9, 2012, that the court could rule on the various motions to dismiss and/or quash service, or could conduct a hearing if any party wanted to present argument. Thereafter, on December 18, 2012, a telephone hearing was conducted by the motion court on the motions to dismiss filed by Sheriff Dunn, Sheriff Merritt, and Wells, as well as the motion to dismiss or alternative motion to quash service filed by Does I, III, and IV. This hearing took place almost three years after Stephens filed the petition in this matter. During this three-year period, Stephens did not conduct any discovery of her own, nor were depositions taken.7
On January 2, 2013, the motion court’s “Order” (signed December 28, 2012) was filed sustaining the motions to dismiss filed by Sheriff Dunn, Sheriff Merritt, and Wells, “by virtue of the bar of sovereign immunity” in their official capacities and in their individual capacities. .As to the motion to dismiss or alternative motion to quash service filed by Does I, III, and IV, the motion court sustained that as well “due to failure of personal service on said fictitious Defendants.” The motion court ordered that “the Defendants, and each of them, are dismissed from this action, and [Stephens] take nothing on her claims against each of said Defendants.”
On March 1, 2013, the motion court’s Judgment was filed (signed February 26, 2013), pursuant to its December 28, 2012 Order sustaining Sheriff Dunn, Sheriff Merritt, and Wells’ respective motions to dismiss, and Does I, III, and IVs Motion to Dismiss or, in the Alternative, to Quash Purported Service of Process. The Judgment specified that it was final for pur*248poses of appeal pursuant to Rule 74.01(b)8 “as there is no just reason for delay.” This appeal followed.
Stephens contends the motion court erred in granting the motions to dismiss of Sheriff Dunn, Sheriff Merritt and Wells on the basis of official immunity “because it is not clear from [Stephens’] petition that these individual defendants were performing discretionary duties that would entitle them to the application of official immunity.” Stephens further argues the motion court erred in granting Does I, III, and IV’s motion to dismiss or alternative motion to quash service because Stephens’ petition sufficiently identified the John Doe parties.
Respondents argue the motion court did not err in granting the motions to dismiss because Stephens failed to plead the existence of a statutory or mandated duty, and the breach of any such statutory or mandated duty would bar the doctrine of official immunity. Does I, III, and IV maintain the motion court did not err in granting their motion to dismiss because Stephens did not properly identify or serve the John Does after thirty-three months.
The issues for our determination are whether the motion court erred:
1. In granting the motions to dismiss of Sheriff Dunn, Sheriff Merritt, and Wells for failure to state a claim on the basis of official immunity?
2. In granting the motion to dismiss or alternative motion to quash purported service of process of Does I, III, and IV because of Stephens’ failure to personally serve these John Does?
Standard of Review
We review dismissals for failure to state a claim de novo. Hess v. Chase Manhattan Bank, USA, N.A., 220 S.W.3d 758, 768 (Mo. banc 2007). “ ‘A motion to dismiss for failure to state a cause of action is solely a test of the adequacy of the plaintiffs petition. It assumes that all of plaintiffs averments are true, and liberally grants to plaintiff all reasonable inferences therefrom.’ ” Bosch v. St. Louis Healthcare Network, 41 S.W.3d 462, 464 (Mo. banc 2001) (quoting Nazeri v. Missouri Valley College, 860 S.W.2d 303, 306 (Mo. banc 1993)). We do not evaluate the merits of the case, but rather our review is limited to the contents of Stephens’ petition. Richardson v. City of St. Louis, 293 S.W.3d 133, 136 (Mo.App.E.D.2009). “We review the facts alleged in the Petition, without any weighing of credibility or persuasiveness, to determine if they meet the elements of any recognized cause of action.” Vaughn v. Genasci, 323 S.W.3d 454, 456 (Mo.App.E.D.2010) (emphasis in original).
Analysis
Point I — Dismissal of Sheriff Dunn, Sheriff Merritt, and Wells9 Not Erroneous
Here, the motion court sustained the motions to dismiss of Sheriff Dunn, Sheriff Merritt, and Wells for failure to state a claim “by virtue of the bar by sovereign immunity of [each Respondent] in [their] official capacity and ... in [their] individual capacity.” On appeal, Stephens argues her claims for wrongful death of decedent are not barred by official immunity.10 *249However, Stephens’ argument misconstrues the actual issue before this Court. The actual question presented to the motion court, and in this appeal, is whether the facts alleged in Stephens’ petition meet the elements of a recognized cause of action for a finding that Stephens’ petition states a claim on which relief can be granted.
This case involves tort claims against public entity employees. Because “finding a municipality liable for torts is the exception to the general rule of sovereign immunity, a plaintiff must plead with specificity facts demonstrating his claim falls within an exception to sovereign immunity.” Topps v. City of Country Club Hills, 272 S.W.3d 409, 415 (Mo.App.E.D.2008) (internal quotation and citation omitted). While Missouri courts have found sovereign immunity and official immunity are “distinct legal concepts,” Lynn v. T.I.M.E.-D.C., Inc., 710 S.W.2d 359, 360 (Mo.App.E.D.1986), the Supreme Court of Missouri specifically held “ ‘[ijmmunity’ connotes not only immunity from judgment but also immunity from suit.” State ex rel Missouri Dept. of Agriculture v. McHenry, 687 S.W.2d 178, 181 (Mo. banc 1985).
“Official immunity” is a “judicially-created doctrine [that] protects public employees from liability for alleged acts of negligence committed during the course of their official duties for the performance of discretionary acts.” Southers v. City of Farmington, 263 S.W.3d 603, 610 (Mo. banc 2008).11 The Supreme Court of Missouri discussed “official immunity” and its application in Southers stating:
Official immunity is intended to provide protection for individual government actors who, despite limited resources and imperfect information, must exercise judgment in the performance of their duties. Its goal is also to permit public employees to make judgments affecting public safety and welfare without concerns about possible personal liability-
A finding that a public employee is entitled to official immunity does not preclude a finding that he or she committed a negligent act-because [sic] official immunity does not deny the existence of the tort of negligence, but instead provides that an officer will not be liable for damages caused by his negligence. Because the defense of official immunity is personal to a public employee, it cannot extend to protect his employing government entity sued under the doctrine of respondeat superior. A government employer may still be liable for the actions of its employee even if the employee is entitled to official immunity because the doctrine protects the employee from liability, but it does not erase the existence of the underlying ‘tortious conduct’ for which the government employer can be derivatively liable.
263 S.W.3d at 611 (internal citations omitted) (italics in original).12
*250Official immunity does not apply to discretionary acts done in bad faith or with malice. Davis v. Bd. of Educ. of the City of St. Louis, 963 S.W.2d 679, 688-89 (Mo.App.E.D.1998). “Bad faith or malice in this context ordinarily contains a requirement of actual intent to cause injury.” Id. at 689 (citing State ex rel. Twiehaus v. Adolf, 706 S.W.2d 443, 447 (Mo. banc 1986)).
An official may also be held liable when performing “ministerial duties.” Kanagawa v. State ex rel. Freeman, 685 S.W.2d 831, 836 (Mo. banc 1985). “A ministerial function ... is one ‘of a clerical nature which a public officer is required to perform upon a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, without regard to his own judgment or opinion concerning the propriety of the act to be performed.’ ” Southers, 263 S.W.3d at 610 (quoting Kanagawa, 685 S.W.2d at 836). Before a public official may be liable in tort for official acts, the public official or employee must breach a ministerial duty imposed by statute or regulation. Boever v. Special School Dist. of St. Louis County, 296 S.W.3d 487, 492 (Mo.App.E.D.2009). The statute or regulation prescribing a ministerial duty must be mandatory and not merely directory, and must mandate “a ministerial, not a discretionary, action.” Id.
Stephens correctly argued that this Court generally must construe all reasonable inferences in favor of plaintiff on an appeal granting a motion to dismiss. Bosch, 41 S.W.3d at 464. However, in cases alleging tort against a government employee, the Missouri Supreme Court has further declared that absent allegations that a government employee violated “either a statutory or departmentally-mandated duty,” a plaintiffs petition is “insufficient to state a claim which is not barred by the doctrine of official immunity as a matter of law.” Adolf, 706 S.W.2d at 445; Boever, 296 S.W.3d at 492; see also Vaughn, 323 S.W.3d at 456 (holding for a petition alleging government employee liability to survive a motion to dismiss for failure to state a claim, “the plaintiff must plead specific facts demonstrating that the employee failed to perform a statutory or departmentally-mandated duty or that the employee performed a discretionary duty with bad faith or malice.”). Stephens admits Adolf has not been overruled. Just a year prior to the Adolf opinion, the Supreme Court of Missouri held it is “appropriate to require a litigant who sues the state or its officers to file a petition demonstrating a viable theory of liability.” McHenry, 687 S.W.2d at 181.
Under the record before this Court, Stephens did not allege the existence or breach of any statutory or regulatory duty and, therefore, did not allege facts establishing an exception to the official immunity doctrine. First, Stephens fails to cite any statute in the petition providing a statutorily required duty to be performed by Sheriff Dunn, Sheriff Merritt, and Wells, see Brummitt v. Springer, 918 S.W.2d 909, 912-13 (Mo.App.S.D.1996), nor does Stephens aver a breach of a statutory or departmentally-mandated obligation, either ministerial or discretionary. See Adolf, 706 S.W.2d at 446. Rather, Stephens vaguely alleges Respondents were “responsible for the safety of inmates” with no mention of a statutory or departmental obligation for such responsibility. The Missouri Supreme Court has stated that absent the allegation of either a statutory or departmentally-mandated duty and breach of such duty, a plaintiffs pleadings are insufficient to state a claim as a matter of law. Id at 445.
*251The only attempt to assert an exception to immunity invoked by Stephens’ petition was a conclusory statement that “Defendants and each of them, demonstrated evidence of gross negligence, willful misconduct, bad faith, and malice toward [decedent] by not providing continuous observations of the decedent[.]” (Emphasis added). Courts have held that official immunity applies generally to all discretionary acts except those done in bad faith or with malice. Id. at 446. After reviewing case law in other states, the Missouri Supreme Court noted bad faith or malice requires “actual intent to cause injury,” “intentional doing of a wrongful act without legal justification or excuse,” and “done knowingly and deliberately, for an improper motive[.]” Id. at 447.
Stephens’ petition contains no allegation of intent to cause harm to decedent, nor does the petition state facts from which it could be inferred Respondents acted in bad faith or from improper or wrongful motive. Stephens’ bare conclusory allegation of bad faith and malice, without specific facts evidencing that Respondents knew of decedent’s prior history of attempts to commit suicide, or that Respondents disobeyed directions to take special precautions regarding decedent, is not sufficient to state a claim which is not barred by sovereign immunity. See Western Robidoux Printing & Lithographing Co., Inc. v. Missouri State Hwy. Comm’n, 498 S.W.2d 745, 749 (Mo.1973) (holding “[b]are allegations of ‘bad faith’ are conclusions which are not to be considered in determining whether a plaintiff has stated a cause of action.”).
Stephens argues Respondents “have the burden of demonstrating that the bar of official immunity applies to [Stephens’] petition.” Stephens’ statement confuses the parties’ burdens as the Missouri Supreme Court is clear the burden is on the plaintiff to allege facts establishing that an exception to the official immunity doctrine applies. This requires the plaintiff to allege the existence of a statutory or departmentally-mandated duty and breach of that duty to survive a motion to dismiss for failure to state a claim. Adolf, 706 S.W.2d at, 445. Simply put, a plaintiff must plead facts establishing an exception to official immunity, including the existence of a statutory or departmentally-mandated duty, to survive a motion to dismiss for failure to state a claim.13
Finally, Stephens argues “the lack of an opportunity to conduct discovery in this matter has rendered [Stephens] unable to *252determine whether there are any policies that are applicable,” and at “a bare minimum, reversal is mandated to determine the applicability of official immunity through the discovery process.” To appropriately respond to this argument, we reviewed the docket entries and documents filed in this case and prepared the following timeline relevant to Stephens’ lack of prosecution of this case:
March 9, 2010 Petition filed by Stephens. Letter to the clerk for filing states “[u]pon receipt of the file-stamped copy of the Petition, plaintiffs counsel will issue proper request for issuance of summons.”
July 20, 2011 Notice of Dismissal. Case was placed on Dismissal Docket for failure to prosecute.
August 11, 2011 Letter to clerk from Stephens’ counsel with five copies of the petition and requesting summonses be prepared for “each defendant.” It appears this is the first request by Stephens’ counsel that summonses be prepared.
August 12, 2011 Summonses issued for Sheriff Dunn, Sheriff Merritt, Wells, • Tuck, and Freitas.
August 18, 2011 Case removed from dismissal docket.
August 26, 2011 Service on Sheriff Dunn.
August 27, 2011 Service on Sheriff Merritt.
September 16, 2011 Sheriff Dunn files Motion to Dismiss and suggestions in support.
September 22, 2011 Sheriff Merritt files Motion to Dismiss and suggestions in support.
October 21, 2011 Stephens files Suggestions in Opposition to Sheriff Dunn’s Motion to Dismiss.
November 10, 2011 Stephens files Suggestions in Opposition to Sheriff Merritt’s Motion to Dismiss.
November 28, 2011 Letter to clerk from Stephens’ counsel requesting “alias summonses” be prepared for Wells, John Does I-V, and Tuck. This appears to be Stephens’ first request that summonses be prepared for the John Does.
December 9, 2011 Summonses issued for Wells, John Does I-V, and Tuck.
January 19, 2012 Wells files Motion to Dismiss and suggestions in support.
January 26, 2012 Motion to Dismiss or in the Alternative, to Quash Purported Service of Process and suggestions filed on behalf of John Does I, III, and IV.
February 21, 2012 & February 28, 2012 Stephens files suggestions in opposition to remaining motions to dismiss.
April 20, 2012 John Does file Notice of Hearing.
April 27, 2012 Sheriff Dunn files First Interrogatories and First Request for Production of Documents to Stephens.
May 7, 2012 Wells and Sheriff Merritt file First Set of Interrogatories and First Request for Production of Documents to Stephens.
July 13, 2012 Stephens files answers and objections to the written discovery propounded to her by Sheriff Dunn, Sheriff Merritt, and Wells.
November 9, 2012 Letter from Judge Bickel informing counsel he can rule on the various motions pending, or schedule- a hearing on the motions if parties requested a hearing.
December 18, 2012 Telephone hearing held on motions to dismiss.
December 28, 2012 Order sustaining Respondents’ motions to dismiss and Does I, III, and IV’s motion to dismiss, or in the alternative, motion to quash.
Any “lack of opportunity to conduct discovery” is solely due to Stephens’ admitted *253choice not to attempt discovery. Nearly seventeen months after Stephens’ petition was filed, Respondents still had not been served with process, and it appears Stephens had not even requested the clerk prepare summonses for service.14 Stephens waited until her case was placed on the dismissal docket to request the clerk prepare summonses for service upon all Respondents. Even after obtaining service on Sheriff Dunn, Sheriff Merritt, ■ Wells, and Does I, III, and IV, Stephens took no steps to prosecute her case.
Stephens’ complaint of “lack of opportunity to conduct discovery” is made even more egregious by her own failure to propound discovery upon Respondents after they filed the multiple motions to dismiss. She had nearly fifteen months from the time the first motion to dismiss was filed until a hearing was held. There is no indication in the record or factual claim made by Stephens, evidencing some hindrance to her filing discovery. In fact, the opposite is true as Sheriff Dunn, Sheriff Merritt, and Wells propounded discovery to Stephens, and she filed her objections and answers during this time. Even when these Respondents propounded discovery to Stephens, she did not propound one interrogatory or request for production of documents to any of these Respondents.
In light of her failure to conduct any discovery from March 9, 2010, until December 19, 2012, we are at a loss as to how Stephens can now complain of a “lack of an opportunity to conduct discovery in this matter.” Stephens clearly had an “opportunity to conduct discovery” and plenty of time to do so.
Stephens’ argument that “reversal is mandated to determine the applicability of official immunity through the discovery process” is also flawed. While it is true that the “determination of whether an act is discretionary or ministerial is made on a case-by-case basis,” Southers, 263 S.W.3d at 610, this does not nullify a plaintiff’s burden to allege that the defendant public official violated “either a statutory or departmentally-mandated duty” in order to state a claim which is not barred by the doctrine of official immunity as a matter of law. Adolf, 706 S.W.2d at 445. The issue of whether the “act” of the public employee is ministerial or discretionary; i.e., whether official immunity protects the public employee, is not an issue to be reached if there is no allegation in plaintiff’s petition that a duty has been imposed upon the public employee by statute or regulation, or any other obligation.
After review of Stephens’ petition, we find the motion court did not err in granting the motions to dismiss of Sheriff Dunn, Sheriff Merritt, and Wells for failure to state a claim on the basis of official immunity. Stephens’ petition fails to plead specific facts showing these Respondents had a statutory or departmentally-mandated duty, failed to perform such a duty, or that these Respondents performed a discretionary duty with bad faith or malice. Point I is denied.
*254Point II — Dismissal of Does I, III, and IV Not Erroneous
The motion court sustained the motion to dismiss filed by Does I, III, and IV “due to failure of personal service on said fictitious Defendants.” For her second point, Stephens claims the trial court erred in granting Does I, III, and IV’s motion to dismiss “because it is not disputed that [Stephens’] petition sufficiently identifies the John Doe parties intended.” Stephens argues there is no law “requiring proper service on a John Doe Defendant.” Does I, III, and IV argue “[t]he John Does were never properly identified or served by [Stephens], therefore the [motion] court’s dismissal was proper.”
Rule 54.01(c) requires that a summons and copy of the pleading shall be “promptly” served. Missouri law requires a plaintiff to exercise due diligence in obtaining service upon defendants. See Daniels v. Schierding, 650 S.W.2d 337, 339 (Mo.App.E.D.1983). Here, when Stephens filed her lawsuit, her counsel specifically directed the clerk by letter that “[u]pon receipt of the file-stamped copy of the Petition, plaintiff’s counsel will issue proper request for issuance of summons.” (Emphasis added). Stephens’ counsel did not request issuance of any summons until August 11, 2011, seventeen months after her petition was filed. However, that request only included five copies of the petition, and summonses were only issued to Sheriff Dunn, Sheriff Merritt, Wells, Tuck, and Freitas. Stephens then requested an alias summons for the John Does, three- and-a-half months later on November 28, 2011, and more than twenty months since the Petition was filed.
“The question of whether due diligence has been exerted is to be decided on a case by case basis[.]” Atkinson v. Be-Mac Transport, Inc., 595 S.W.2d 26, 28 (Mo.App.E.D.1980). Delay in the request for a summons is only one factor to be considered in making a determination on due diligence. Id. Here, there was clearly a delay of more than twenty months in specifically requesting summonses for Does I, III, and IV. During the twenty-month time period from filing suit to requesting summonses for the John Does, Stephens did not attempt to serve any written discovery or conduct any depositions to discover the names of the alleged John Does.
Furthermore, “[w]hen the requirements for manner of service are not met, a court lacks power to adjudicate.” State ex rel. Plaster v. Pinnell, 831 S.W.2d 949, 951 (Mo.App.S.D.1992). Rule 54.13(b)(1) provides personal service upon an individual shall be made
by delivering a copy of the summons and petition personally to the individual or by leaving a copy of the summons and petition at the individual’s dwelling house or usual place of abode with some person of the individual’s family over the age of fifteen years, or by delivering a copy of the summons and petition to an agent authorized by appointment or required by law to receive service of process.
Does I, III, and IV were not served personally, nor was a copy of the summons and petition left at their dwelling with a person of their family over the age of fifteen years. Rather, a summons and petition was left with “Sgt Mauller, Badge # 510” at the Jasper County Jail in an attempt to serve Does I, III, and IV. However, there has been no showing that “Sgt Mauller” is an “agent authorized by appointment or law to receive service of process” on behalf of Does I, III, and IV as required by Rule 54.13(b).
Stephens argues the service upon Sergeant Mauller was “the only notice she could give under the circumstances of having filed her lawsuit on March 9, 2010, the *255■day before the statute of limitations expired.” We disagree. Does I, III, and IV were alleged to be employees of either the Jasper County Jail or Jasper County with their work being related to inmates at the Jasper County Jail. Stephens sued Sheriff Dunn as “the Sheriff of Jasper County ... responsible for the safety of inmates in the Jasper County Jail[.]” Sheriff Dunn was served with a summons and petition in August 2011, yet Stephens failed to conduct any discovery, written or by deposition, directed towards Sheriff Dunn to discover the names of Jasper County employees Does I, III, and IV.
Stephens attempts to compare the dismissal of Does I, III, and IV in this case to cases where the issue was whether the plaintiff adequately identified the John Does and/or conduct of the John Does to give notice to the person plaintiff intended to sue but could not identify, such that it relates back to the filing date when the individual’s name is discovered. See State of Missouri ex rel. Holzum v. The Honorable Nancy L. Schneider, 342 S.W.3d 313 (Mo. banc 2011); Schultz by Schultz v. Romanace, 906 S.W.2d 393 (Mo.App.S.D.1995); and Smith v. Lewis, 669 S.W.2d 558 (Mo.App.W.D.1983), cited by Stephens. However, that is not the issue in this case. Stephens made no attempt to discover the identity of the John Does mentioned in her petition over a two-and-a-half-year time period. Instead, Stephens attempts to subvert her failures by alleging she attempted to serve “promptly” by leaving a copy of the summonses and petitions with Sergeant Mauller of the Jasper County Sheriff’s Department. Rule 55.27(a)(2) & (5); Worley v. Worley, 19 S.W.3d 127, 129 (Mo. banc 2000).
Service of process must be made in the manner prescribed in our statutes and rules — this was not done in this case. Worley, 19 S.W.3d at 129. For this reason, the motion court did not err in granting the motion to dismiss, or in the alternative, to quash purported service of process of Does I, III, and IV because of Stephens’ failure to personally serve these Respondents. Point II is denied.
Accordingly, the Judgment of the motion court is affirmed.
NANCY STEFFEN RAHMEYER, P.J., and DANIEL E. SCOTT, J„ Concurs.
. Prior to the Judgment, the motion court entered an Order dated December 28, 2012, sustaining the motions to dismiss which are also the subjects of the Judgment. The Judgment was entered pursuant to the December 28, 2012 Order.
. At the time of his death, decedent was not married and was survived by his three children: Sheri, Ryan, and Shawn Stephens.
. Stephens' petition alleged Freitas "administered a drug” to decedent causing him further distress, and failed to properly assess decedent, administer tests, gather medical information, or determine what, if any, other medications decedent was taking thus deviating from the standard of care.
. The docket sheet indicates summonses were issued for Sheriff Dunn, Sheriff Merritt, Wells, Tuck, and Freitas on August 12, 2011, following the placement of the case' on the trial court’s dismissal docket on July 20, 2011, for “failure to prosecute.” In response to being placed on the dismissal docket, Stephens filed "Plaintiff's Motion to Remove the Above-Captioned Case from the Dismissal Docket.” She noted at that time that none of the defendants had been served with process, and alleged that when the lawsuit was filed, "there was an oversight by one of the paralegals in plaintiff [sic] counsel's office, and there was no request to the clerk’s office for an issuance of the summons in this case.” However, we note there are no docket entries from the filing of the petition on March 9, *2472010, until the Notice of Dismissal by the trial court on July 20, 2011. There is no indication that Stephens or her counsel made any attempt to prosecute this lawsuit during this 17-month period.
. Also on January 17, 2012, “Affidavit[s] of Non-Service” were filed for John Does II and V. It appears from the record before this Court that Stephens never had service perfected on John Does II and V. See Shapiro v. Brown, 979 S.W.2d 526, 528 (Mo.App.E.D.1998) (holding “[s]ervice of process is a prerequisite to jurisdiction over either the person or property of the defendant. Absent a general appearance or other waiver of process by the defendant, there must be service of process in an authorized manner in order for the court to acquire jurisdiction to determine the rights and liabilities of the defendant.”) (internal citation omitted).
. Unlike Stephens, Sheriff Dunn, Sheriff Merritt, and Wells served Stephens with interrogatories and request for production of documents directed toward Stephens. Stephens was first served with these discovery requests on May 1, 2012, and again on May 7, 2012. Stephens filed answers and objéctions to these discovery requests, but did not file similar discovery requests directed towards Sheriff Dunn, Sheriff Merritt, Wells, or any other defendant.
.All rule references are to Missouri Court Rules (2013).
.Collectively referred to in Point I as "Respondents.”
.Stephens’ brief is full of argument that her *249claims are not barred by official immunity. In fact, Stephens’ brief contains a heading alleging ‘‘Defendants/Respondents Dunn, Merritt, and Wells are not shielded by Official Immunity." (Emphasis in original).
. Under section 537.600.1, RSMo Cum. Supp. (2005), "public entities” are cloaked with sovereign immunity unless a statutory exception applies.
. The general rule of official immunity is that " 'public officers acting within the scope of their authority are not liable for injuries arising from their discretionary acts or omissions, but they may be held liable for torts committed when acting in a ministerial capacity.' " Adolf, 706 S.W.2d at 444 (quoting Kanagawa v. State ex rel. Freeman, 685 S.W.2d 831, 835 (Mo. banc 1985)).
. Stephens' reliance on Nguyen v. Grain Valley R-5 School District, 353 S.W.3d 725 (Mo.App.W.D.2011), for her position that "Missouri law does not require [Stephens] to specifically plead the existence or breach of a statutory duty[]" is sorely misplaced. The facts and procedural history in Nguyen are strikingly different from this case. Unlike this case, in Nguyen, evidence was presented and considered by the trial court, and the trial court treated the motion to dismiss as a motion for summary judgment. Id. at 729. In addition, the Nguyen court specifically held the sole issue was "whether the Respondents established through undisputed facts that the alleged negligence occurred while they were performing discretionary acts.” Id. at 731. Finally, Nguyen did not specifically hold that a plaintiff is not required to plead the existence and breach of a statutory or departmentally-mandated duty as implied by Stephens. Rather, Nguyen found that a "departmentally-mandated duty” may arise from sources other than statutes or regulations such as "departmental rules, the orders of a superior, or the nature of the position[s.]” Id. at 730. This finding did not eliminate a plaintiff’s requirement to allege a duty from some source, including statutorily or departmentally-mandated, departmental rules, or orders from a superior, and breach of that duty, in order to state a claim which is not barred by official immunity.
. This finding is not meant to imply that a plaintiff must request the clerk prepare a summons. Rule 54.01(a) provides "[u]pon the filing of a pleading requiring service of process, the clerk shall forthwith issue the required summons or other process.” See Continental Elec. Co. v. Ebco, Inc., 375 S.W.2d 134, 137 (Mo.1964) (finding ”[t]he original summons is to be issued by the clerk forthwith upon the filing of the petition.”). Here, however, when Stephens filed her lawsuit, her counsel specifically directed the clerk by letter that "[u]pon receipt of the file-stamped copy of the Petition, plaintiff’s counsel will issue proper request for issuance of summons.” (Emphasis added). Stephens later claimed in her motion to remove the case from the dismissal docket that “there was an oversight by one of the paralegals in plaintiff [sic] counsel's office, and there was no request to the clerk’s office for an issuance of the summons in this case.” | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283531/ | . WILLIAM W. FRANCIS, JR., C.J./P.J.
Plaintiff Jerry Jacob McClain, by and through his mother and next friend, Lori Rutledge (collectively “Plaintiffs”), Dr. Allen Northern, and Rolla Medical Group and Women’s Clinic, Inc. (collectively “Northern”), appeal from a judgment in favor of Defendants James Flanary, James Cesar, Alan Doerhoff, Carter Fenton, Ade-luolag Lipede, Benny Thomas, John Linde, and John Schwent (collectively “Physicians”), Lloyd Downard, Mary James as defendant ad litem for the Estate of Charles James, and Physicians Defense Association (“PDA”) on all eleven counts of Plaintiffs’ Fourth Amended Petition. Counts II through VII, “equitable claims of action,” were bench-tried on July 26, 2012, -without jury involvement by agreement of the parties. Counts I and VIII through XI, “legal claims of action,” were decided by summary judgment on December 13, 2012, resulting in the final judgment now before us. For reasons stated herein, we affirm the judgment as to Counts II through X, but reverse and remand as to Counts I and XI.
Factual and Procedural Background
This is the third trip to this court for these historically-complex proceedings. See McClain v. Carpio, 338 S.W.3d 361 (Mo.App. S.D.2011); Northern v. Physicians Defense Association, 88 S.W.3d 130 (Mo.App. S.D.2002). We borrow extensively from Carpio, 338 S.W.3d at 364-68, in describing the background of the litigation.
In April 1986, the Director of the Missouri Division of Insurance (“DIFP”),1 by authority granted in Chapter 383, RSMo, *260issued PDA a Certificate of Authority to engage as a corporation, in accordance with its Articles of Association, in the business of malpractice insurance in the state of Missouri. The next day, PDA filed its Articles of Association with the Missouri Secretary of State. PDA’s purpose was to provide professional liability insurance or indemnification for persons licensed under the provisions of Chapter 334, RSMo, and corporations formed for the practice of medicine under Chapters 351 and 356, RSMo. PDA was an assessment mutual insurance company in which members paid an assessment upon membership and agreed to pay additional assessments as necessary for coverage of liability. Its board of directors, however, never made any special assessments against any policyholders or members. PDA had no shareholders.
On January 1,1995, Northern purchased a professional liability insurance policy (“the Policy”) from PDA covering the period January 1, 1995, to December 31, 1997, which provided coverage in the amounts of $200,000 per person and $600,000 per occurrence for “claims made.”
During that coverage period, on January 2, 1997, McClain filed a medical malpractice claim in Phelps County Circuit Court against Northern and others based on their negligence during Jerry McClain’s delivery and birth on May 2, 1995 (“McClain I ”). Jerry McClain was born with severe birth defects.
Also during the first part of 1997, PDA’s board of directors decided to discontinue business and endorsed another insurance carrier to replace outstanding policies of liability insurance. All business activity of PDA associated with new business and underwriting was discontinued effective July 1, 1997. A special meeting of the PDA members was held on August 12, 1997, at which the members voted to dissolve PDA. The membership also accepted the resignation of the board of directors and approved the appointment of Lloyd Downard and Charles James to continue as officers and trustees of PDA to complete all acts necessary for its dissolution. Also on that date, PDA’s membership and board of directors approved payment to Lloyd Downard and Charles James in the sum of $168,000 each, which had not previously been required by their employment contracts.
In 1997, at the time of these actions, all Physicians were PDA members.2
Between August 25, 1997, and September 29, 1997, PDA distributed to some Physicians sums ranging from $965 to $19,046.
McClain’s malpractice case that was pending in Phelps County was dismissed without prejudice in June 1999 and then *261re-filed, in that same county on August 16, 1999 (“McClain II ”).
After a trial on the record, judgment was entered in McClain II on August 10, 2000, in favor of McClain and against Northern in the amount of $14,425,916. This judgment also found that a section 587.065 settlement agreement entered into between McClain and Northern on March 27, 2000, was made in good faith and was reasonable.3
In September 2000, Plaintiffs filed a three-count action against PDA (“McClain III ”) in which Plaintiffs sought a declaration that the Policy issued by PDA covered the McClain II judgment; McClain sought equitable garnishment; and Northern sought damages against PDA, his insurer, for failing to defend and indemnify him against McClain’s malpractice claims.
On or about December 1, 2000, PDA again distributed to some Physicians sums ranging from $100 to $4,900.
On January 29, 2001, Downard, in his capacity as secretary of PDA, signed and filed Articles of Dissolution and Articles of Termination with the Missouri Secretary of State. The articles stated that “all debts, obligations and liabilities of the corporation have been paid and discharged, or adequate provision has been made therefore.” Contrary to that representation, PDA had not made adequate provision to discharge its liabilities, specifically the judgment entered against it in McClain II, nor any contingent plans for potential liability in McClain III. Downard testified in his deposition4 that when he filed and signed the Articles of Termination, it was with full knowledge that McClain III was pending, and that if a judgment was rendered in favor of Northern, PDA would be responsible for payment of any judgment up to the policy limits, as well as payment of Northern’s attorney fees and expenses. Further, Downard had been previously notified in 1997 by Dennis Engel, Examiner-In-Charge from the DIFP, that some of PDA’s contract payments were in question. On that same day, January 29, 2001, the Missouri Secretary of State issued a Certificate of Termination of PDA certifying that the corporate existence of PDA ceased as of that date.
PDA published notice of dissolution and notice to file claims pursuant to section 351.482(3), RSMo (previously section 351.565, RSMo) in the Jefferson City Tribune on February 9, 2001, and in Missouri Lawyers Weekly on February 12, 2001.
By letter dated February 12, 2001, counsel for Jerry McClain provided notice to PDA of his claims and the judgment in McClain II against Northern. The letter also advised of the pending McClain III action.
Partial summary judgment was entered in McClain III on October 23, 2001, in favor of Plaintiffs and against PDA, finding that PDA’s Policy provided coverage for the judgment in McClain II On interlocutory appeal in Northern, this court affirmed.
Thereafter, on May 12, 2003, the trial court in McClain III finally decided Northern’s damages claim, entering a $15,000 judgment in Northern’s favor against PDA “as compensatory damages for [PDAj’s breach of contract].” PDA did not appeal, nor has PDA satisfied North*262ern’s judgment or the $14,425,916 McClain II judgment.
This Action (“McClain IV”)
In March 2003, Plaintiffs filed their original petition in this action against Charles James and thirty-five unknown and unnamed directors of PDA, seeking recovery for alleged fraudulent transfers made by Charles James, as president of PDA, in 1997, to PDA’s directors. Plaintiffs amended their petition in 2004, 2006, and 2007.
In March 2010, Plaintiffs filed the eleven-count Fourth Amended Petition at issue in this case (hereafter “Petition”).5 Defendants won a summary judgment in the trial court based on the statute of limitations, which we reversed and remanded in Carpió.
The trial court conferred with counsel after this Court’s Carpió remand. The parties agreed that Counts I and VIII-XI were “legal claims of action,” and that all other counts were “equitable claims of action” which “contain issues of fact to be determined by a jury.” Subsequently, however, Plaintiffs announced that “no facts as presented in Counts II, III, IV, V, VI, or VII, [were] to be preserved and presented for determination at a trial by jury.” The parties agreed that these equitable claims could be wholly bench-tried, which took place on July 26, 2012. The *263trial court received evidence, heard argument, and took these six claims under advisement. On October 15, 2012, the court granted judgment in Defendants’ favor on all “equitable claims of action.”
Later, PDA, James, and Downard moved for summary judgment on the remaining legal claims, which the trial court granted on December 18, 2012.
Plaintiffs raise eight points on appeal. Six involve the court-tried claims, which we consider first.
Court — Tried Claims
Plaintiffs’ points challenge only three of the six court-tried results: Counts II, V, and VII. Even then, five of six points address only affirmative defenses or other alternative grounds for the court’s decision.6 We need not reach those if Plaintiffs failed to prove a right to relief as pleaded in these counts of their Petition.
Standard of Review — Court-Tried Claims
We must affirm the judgment as to bench-tried claims unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). The judgment is presumed correct, and Plaintiffs have the burden of proving otherwise. Surrey Condo. Ass’n v. Webb, 163 S.W.3d 531, 535-36 (Mo.App.S.D.2005).
We view the record and all reasonable inferences most favorably to the judgment, disregarding all contrary evidence and inferences. Id. at 536. “ ‘Judging credibility and assigning weight to evidence and testimony are matters for the trial court, which is free to believe none, part, or all of the testimony of any witnesses.’” Id. (quoting Savannah Place, Ltd. v. Heidelberg, 122 S.W.3d 74, 86 (Mo.App. S.D.2003)).
This bench-tried judgment includes numerous factual findings; we consider “all other factual issues to have been determined in accordance with the result reached.” Grider v. Tingle, 325 S.W.3d 437, 441 (Mo.App. S.D.2010).
“Finally, we are primarily concerned with the correctness of the trial court’s result, not the route taken by the trial court to reach that result. Therefore, we will affirm the trial court’s judgment under any reasonable theory supported by the evidence.” Surrey Condo., 163 S.W.3d at 536 (internal citation omitted).
Count II
Count II sought a writ of mandamus ordering PDA to assess its members to satisfy the $14 million judgment. For relief in mandamus, Plaintiffs had to prove (1) their “existing, clear, unconditional legal right” to that assessment, and (2) “a corresponding present, imperative, unconditional duty” of PDA (or some defendant) to do so. State ex rel. St. Joseph Hospital v. Fenner, 726 S.W.2d 393, 395 (Mo.App. W.D.1987). Plaintiffs, on appeal, do not even suggest that they proved either of these.
As the judgment notes, special assessments were “ ‘at the discretion of the Board of Directors ’ ” (quoting PDA Bylaws; trial court’s emphasis), a finding not challenged on appeal. Mandamus does not *264lie to compel exercise of discretionary authority. See Woods v. State, 371 S.W.3d 928, 929 n. 3 (Mo.App. S.D.2012). The trial court did not err in ruling Count II against Plaintiffs.
Count V
In Count V, Plaintiffs alleged that the trial court had “inherent equitable power” to assess Physicians, as PDA members, $14 million pro rata. The trial court disagreed, noting that “liability of the members of a Chapter 383 association is limited by § 383.025:
‘No member of the association shall be liable for any amounts because of his membership in the association other than his assessments as provided in the articles of association, the bylaws of the association or as ordered by the director of the [DIFP] pursuant to section 383.035.’ ”
On appeal, Plaintiffs cite only a 1907 case that enforced an Ohio court’s $212.53 assessment under an Ohio statute.7 Plaintiffs never mention, let alone argue against, the Missouri statute cited by the trial court and quoted in the judgment. This refusal to address the ratio decidendi defeats their argument.
To assert that courts “inherently” can assess PDA members is not consistent with section 383.025. The trial court did not err in denying Count V.
Count VII
Count VII of the Petition alleges a claim for fraudulent transfer to directors and members while the McClain claims were pending. Had the trial court believed Plaintiffs’ evidence and ruled in their favor, our standard of review almost certainly would require us to defer to the trial court and affirm its decision.
But Plaintiffs did not persuade that court, which weighed the proof and found:
• “no persuasive or credible evidence” that PDA paid contract amounts to James or Downard with the intent to hinder, delay, or defraud Plaintiffs;
• “no persuasive or credible evidence” that PDA paid contract amounts to James or Downard without getting reasonable equivalent value in exchange;
• “no persuasive or credible evidence” that PDA was dissolved with sole or primary purpose to defraud its members, creditors or others; and
• PDA members voted to dissolve in 1997 “because of competition from other companies and because of PDA’s inability to obtain additional capital in the market. The members were not involved in a scheme to defraud the Plaintiffs.”
Our deference to such credibility findings, express and implied, defeats Plaintiffs’ “against the weight of evidence” complaint. See Ivie v. Smith, 439 S.W.3d 189, 205-08 (Mo. banc 2014).
Indeed, no evidence is needed to sustain this judgment. Plaintiffs bore the burden of proof. The trial court found their evidence not persuasive or credible. To quote our supreme court in Ivie, “the circuit court is free to believe all, some, or none of the evidence offered to prove a contested fact, and the appellate court will not re-find facts based on credibility determinations through its own perspective.” Ivie, 439 S.W.3d at 206. “This Court defers to the circuit court’s determinations [of credibility]. Therefore, the circuit court’s judgment was not against the weight of the evidence.” Id. at 207.
*265For these reasons, and also because Plaintiffs’ Point VIII “against the weight” arguments lack any analytical or persuasive value,8 we cannot reverse on this count. We deny Plaintiffs’ point and affirm the judgment as to Count VII.
Summary as to Court-Tried Claims
The trial court did not err in granting Defendants judgment on Counts II, III, and VII. Plaintiffs do not challenge the judgment against them as to Counts III, IV, or VI. Thus, we affirm the judgment as to Counts II through VII inclusive.
Summary Judgment Claims
These claims involve just three Defendants: Charles James (Count I), Downard (Count I), and PDA (all legal claims). Our principles of review on summary judgment are nearly opposite of what they were in reviewing the court-tried claims.
Principles of Review — Summary Judyment
In determining whether a trial court has properly granted summary judgment, we review the matter de novo and give no deference to the trial court’s decision. Goerlitz v. City of Maryville, 333 S.W.3d 450, 452 (Mo. banc 2011); State ex rel. Nixon v. Bass, 282 S.W.3d 343, 344 (Mo. banc 2009). We employ the same criteria the trial court should have used in deciding whether to grant the motion. Barekman v. City of Republic, 232 S.W.3d 675, 677 (Mo.App. S.D.2007).
We review the record in the light most favorable to the party against whom judgment was entered and accord the non-movant the benefit of all reasonable inferences. ITT Commercial Fin. Corp. v. Mid-America Marine Supply Carp., 854 S.W.2d 371, 376 (Mo. banc 1993). In this case, PDA, James, and Downard were “defending” parties and in order to establish a right to summary judgment they must show:
(1) facts that negate any one of the claimant’s elements facts, (2) that the non-movant, after an adequate period of discovery, has not been able to produce, and will not be able to produce, evidence sufficient to allow the trier of fact to find the existence of any one of the claimant’s elements, or (3) that there is no genuine dispute as to the existence of each of thé facts necessary to support the movant’s properly-pleaded affirmative defense.
Id. at 381 (emphasis in original). “[A] ‘genuine issue’ exists where the record contains competent materials that evidence *266two plausible, but contradictory, accounts of the essential facts.” Id. at 382.
Summary judgment is an extreme and drastic remedy and we exercise great caution in affirming it because the procedure cuts off the opposing party’s day in court. Id. at 377.
Bearing these principles in mind, we address the summary judgment counts out of order.
Counts VIII-X
In McClain III, Northern sought damages from his insurer PDA for failing to properly defend, protect, and indemnify him against McClain’s malpractice claims. His theory was breach of contract. He won a money judgment against PDA, now final.
Here, Northern again seeks damages from his insurer PDA for failing to properly defend, protect, and indemnify him against McClain’s malpractice claims. His new theories are “bad faith” (Count VIII), “negligent claims handling” (Count IX), and “breach of fiduciary duties” (Count X).
Northern’s new counts violate res judi-cata’s bar on claim splitting. See Chesterfield Village v. City of Chesterfield, 64 S.W.3d 315, 318-21 (Mo. banc 2002); King Gen. Contractors v. Reorganized Church, 821 S.W.2d 495, 501-02 (Mo. banc 1991); Palmore v. City of Pacific, 393 S.W.3d 657, 664-67 (Mo.App. E.D.2013); Dahn v. Dahn, 346 S.W.3d 325, 331-32 (Mo.App. W.D.2011); Chadd v. City of Lake Ozark, 326 S.W.3d 98, 101-03 (Mo.App. W.D.2010); Williams v. Rape, 990 S.W.2d 55, 59-61 (Mo.App. W.D.1999). See also RESTATEMENT (Second) of Judgments §§ 24, 25 (1982). Summary judgment was proper as to these counts.
Count I
Count I seeks recovery for fraud. To prevail on such a claim, a plaintiff must prove:
‘(1) a false, material representation; (2) the speaker’s knowledge of its falsity or his ignorance of the truth; (3) the speaker’s intent that it should be acted upon by the hearer in the manner reasonably contemplated; (4) the hearer’s ignorance of the falsity of the representation; (5) the hearer’s reliance on its truth; (6) the hearer’s right to rely thereon; and (7) the hearer’s consequent and proximately caused injury.’
Artilla Cove Resort, Inc. v. Hartley, 72 S.W.3d 291, 296-97 (Mo.App. S.D.2002) (quoting Thoroughbred Ford, Inc. v. Ford Motor Co., 908 S.W.2d 719, 731 (Mo.App. E.D.1995)). “The falsity element of fraud relates to a speaker’s reckless disregard of the truth or falsity of the statement as opposed to a speaker’s negligent failure to exercise reasonable care or competence to ensure that truthful information is being relayed.” Renaissance Leasing, LLC v. Vermeer Mfg. Co., 322 S.W.3d 112, 135 n. 22 (Mo. banc 2010). To recover damages based upon fraudulent representations, it is not necessary that it be shown that a defendant had actual knowledge of the falsity of the facts stated by him. It is sufficient that he made the representations with the consciousness that he was without knowledge as to their truth or falsity, when in fact, they were false.
Because of the nature of fraud, it is rare for a party accused of fraud to come forward and admit it. However, “[f]raud can be shown by circumstantial evidence[.]” Osterberger v. Hites Construction Company, 599 S.W.2d 221, 229 (Mo.App. E.D.1980). As “fraud is seldom capable of direct proof,” it may be established by a variety of circumstances combined together. Watson v. Harris, 435 *267S.W.2d 667, 674 (Mo.1968). As explained below, a genuine issue of material fact exists as to whether PDA, Downard, and Charles James made false statements to government agencies in order to avoid PDA’s obligations to satisfy the judgments in McClain II and in McClain III.
When statutes or regulations impose an obligation on a person in the course of their profession or employment, the duty owed by the statute or regulation is a public one and the duty to do so truthfully extends to all persons within the class of persons for whose benefit the duty is created. B.L. Jet Sales, Inc. v. Alton Packaging Corp., 724 S.W.2d 669, 672 (Mo.App. E.D.1987). One need not be the direct hearer of a false statement in order to pursue a cause of action in fraud. See Wagner v. Mortgage Information Services, Inc., 261 S.W.3d 625, 640 (Mo.App. W.D. 2008). Furthermore, when a person, in the course of their profession or employment, gives false information and is under a public duty to give the information, that person is liable for the losses “suffered by any of the class of persons for whose benefit the duty is created[.]” B.L. Jet Sales, Inc., 724 S.W.2d at 672. A public duty arises when regulations require certain actions be taken. Under those circumstances, the duty extends to the class of persons for whose benefit the duty is created by the statute or regulation. Id. at 672-673. An intentional or fraudulent act by a corporation is a breach of trust, which may permit an action by a creditor. Drummond Company v. St. Louis Coke & Foundry Supply Co., 181 S.W.3d 99, 103 (Mo.App. E.D.2005). Corporate directors and officers who exceed their trustee-like statutory duties in winding up the business affairs of a dissolved corporation may become personally liable pursuant to section 351.476.2(3). Id. at 104.
The statutes and regulations regarding the dissolution of a corporation require that a corporation maintain a solvent position until its liquidation has been completed. The reason for these statutes and regulations are so the corporation can satisfy, or attempt to satisfy, its debts and obligations to all creditors and claimants. PDA’s creditors clearly fall within that class of people that the statutes and regulations are established to protect. Plaintiffs clearly fall within the class of persons for whom protection is available.
As an association formed to operate under Chapter 383, PDA was bound to comply with the requirements for dissolution as set forth in Chapter 355.9 Chapter 355 provides that a claim against a corporation that is dissolved after authorization, and which was dissolved without fraudulent intent, may be barred in certain circumstances. The statute provides that “ ‘fraudulent intent’ shall be established if it is shown that the sole or primary purpose of the authorization for dissolution or the dissolution was to defraud shareholders, creditors or others.” § 355.696.5. Based on the record before us, that is an issue of material fact to be decided by a trier of fact.
*268An officer of a corporation can be held liable for fraud if he had actual or constructive knowledge of the actionable wrong and participated therein. Osterberger, 599 S.W.2d at 229; see also McKeehan v. Wittels, 508 S.W.2d 277, 288 (Mo.App. St.L.D.1974); City of St. Louis v. Boos, 503 S.W.2d 133, 135 (Mo.App. St.L.D.1973). The record before us discloses that as trustees of PDA, Downard and James can be sued in place of PDA, pursuant to PDA’s own Bylaws, at a minimum.10
The summary judgment record includes evidence that PDA, by and through its trustees Downard and James, made at least two statements that raise this material issue of fact. The first statement was made in a November 11, 1998 letter to Steven Divine, Chief Financial Examiner for the DIFP, indicating that PDA had amended its compensation contracts to limit compensation of its officers/employees — who at that time were Downard and James. The second statement occurred on January 29, 2001, when PDA filed Articles of Termination with the Missouri Secretary of State that stated “[a]ll debts, obligations and liabilities of the corporation have been paid and discharged, or adequate provision had been made therefore.” Plaintiffs are and were creditors of PDA, and they hold judgments that have not been satisfied.
Following January 29, 2001, when the Articles of Termination were filed, in reliance on those Articles, the Missouri Secretary of State issued a Certificate of Termination, certifying that PDA ceased to exist.
We believe that reasonable jurors could infer, from the evidence we have cited, that the information provided by the trustees was false and that it was given without exercising reasonable care or with the knowledge that it was false.
There is also evidence that PDA, by and through its trustees, did not follow the statutory procedure by which a non-profit corporation is to terminate and dissolve.
Inspector Engel made the following comments to PDA in his final report:
Since amounts were still payable for compensation settlements which establish liabilities creating a negative surplus position for [PDA] and since these compensation settlements were not owed under the terms of the contracts, [PDA] should take the necessary actions to ensure that it maintains a solvent position until its liquidation has been completed. This may include canceling any additional compensation payments or seeking the return of compensation already paid on these compensation settlements.
In response to this comment, Downard, on behalf of PDA, in its November 11, 1998 letter to the DIFP, stated: “Compensation contracts between [PDA] and its officers/employees were amended to provide for limited annual compensation or payment upon dissolution whichever event occurs first.” However, there was evidence, as set forth above, that a jury could believe that the statements regarding the compensation contracts were false.
Plaintiffs are in the class of people who are protected by their position as corporate creditors. It is incumbent upon PDA, by and through its trustees, to make truthful statements to the DIFS and the Missouri Secretary of State so that corporate creditors, among others, may be protected *269as anticipated by the voluntary dissolution process. This process clearly requires there be no fraudulent intent. Had there not been false representations, there is evidence that Defendants would have been able to satisfy, or at least address the judgments ultimately entered against PDA. Plaintiffs have suffered a pecuniary loss by these representations because the judgments are unsatisfied.
Based on the foregoing, Plaintiffs have established that genuine issues of material fact exist that PDA, by and through its directors and trustees, Downard and James, committed fraud as alleged in Count I. Count XI seeks punitive damages for fraud as alleged in Count I. Because that is still an issue for the trier of fact, it must be reversed, also. We reverse the summary judgment granted as to Counts I and XI.11
Conclusion
We reverse the judgment with respect to Counts I and XI only, and remand those counts to the trial court for further proceedings consistent with this opinion. In all other respects, the judgment is affirmed.
NANCY STEFFEN RAHMEYER, P.J., concurs in majority opinion.
DANIEL E. SCOTT, J., concurs in part and dissents in part in separate opinion.
. Now known as the "Department of Insurance, Financial Institute & Professional Registration” ("DIFP”).
. Charles James was not a medical doctor and was never a PDA member. He was a full-time professor of economics and finance at Saint Louis University in Saint Louis, Missouri. He formed PDA in April 1986 and served as its president until his death in 2004. Charles James also had a seat on PDA’s Board of Directors, and served on the management, claims, and settlement committees, but was never a full-time employee of PDA. He had several other business interests that occupied his professional time beyond his association with PDA. Mary James is the appointed defendant ad litem for the Estate of Charles A. James, Ph.D. Her appointment was necessary due to the death of Charles James in 2004, during the pendency of this litigation. Downard had "extensive insurance company experience” and was a broker for 40 + years, "licensed to market professional liability insurance.” In 1996, Downard was appointed secretary/treasurer of PDA; served on the management, claims, and settlement committees; and became a paid employee of PDA. In May 1997, Downard became a “Director” of PDA. Downard remained a paid employee of PDA until 2001, when it was dissolved.
. Section 537.065, originally enacted by our General Assembly in 1959, permits a claimant and tortfeasor to contract to limit any recovery by a claimant to specific assets or an insurance contract.
. Lloyd Downard's deposition was taken on June 26, 2012, in the current litigation that is the subject of this appeal.
. Those eleven counts were, and still are:
Count I ("Fraud”) against James, Downard, and PDA, seeking recovery for fraud in misrepresentations made in the Policy when it was issued and for misrepresentations Downard made to the Missouri Secretary of State on or about January 29, 2001, in PDA’s Articles of Termination.
Count II ("Mandamus”) seeks a writ of mandamus against James, Downard, Linde, and Schwent that, as a result of the alleged misrepresentations in the Articles of Termination, "PDA, through its last Board of Directors and statutory Trustees, should be ordered ... to assess its member's [sic] sufficient amounts to cover the judgment [in the malpractice action].”
Count III ("Constructive Trust”) requests, against each individual defendant, the imposition of a constructive trust on the funds received by each of them from PDA.
Count IV ("Unjust Enrichment”) seeks damages for each individual defendant’s unjust enrichment from funds received by each of them from PDA.
Count V ("Equitable Assessment”) asserted against all individual defendants who were members of PDA, prays for "the Court to enter its order and judgment against Defendants including members/shareholders of PDA to pay assessments equivalent to their proportionate share of the judgment against PDA” in the malpractice action.
Count VI ("Accounting”) originally against all defendants- — but later mooted by discovery as to all defendants except James, Dow-nard, and PDA — prays for a judgment "ordering an accounting of the distributions made by PDA [.] ”
Count VII ("Fraudulent Transfers”) seeks damages against James, Downard, Linde, and Schwent, as statutory trustees of PDA, for alleged transfers that were fraudulent, "pursuant to Chapter 351 of the Missouri Revised Statutes, including Section 351.478,” by payments made from PDA "to its directors and members while the McClain claim was still pending[.]”
Count VIII ("Bad Faith”) is a damage claim by Northern against PDA, alleging that PDA acted in bad faith in failing to properly defend, protect, and indemnify Northern against McClain's malpractice claims. Count IX (Negligent Claims Handling) incorporated Count VIII’s allegations by reference and alleged that PDA was negligent in fulfilling duties of defense, claims handling, and settlement in connection with McClain’s malpractice claims.
Count X (Breach of Fiduciary Duties) incorporated Count VIII and IX’s allegations by reference and alleged that PDA breached fiduciary duties in failing to properly defend, protect, and indemnify Northern against McClain’s malpractice claims.
Count XI (Punitive Damages) is a punitive damages claim by "Plaintiffs” against PDA which incorporates by reference all ten preceding counts.
. These alternative grounds included lack of standing (challenged by Point III); res judica-ta/collateral estoppel as to equitable claims (Point IV); release (Point V); failure to join indispensable parties (Point VI); and whether an exclusive statutory remedy precluded mandamus (Point VII).
. See Swing v. Karges Furniture Co., 123 Mo. App. 367, 100 S.W. 662 (1907).
. Plaintiffs' Point VIII argument wholly fails to assert a proper "against-the-weight-of-the-evidence challenge [which] requires completion of the following four sequential steps:
'(1) identify a challenged factual proposition, the existence of which.is necessary to sustain the judgment;
(2) identify all of the favorable evidence in the record supporting the existence of that proposition;
(3) identify the evidence in the record contrary to the belief of that proposition, resolving all conflicts in testimony in accordance with the trial court’s credibility determinations, whether explicit or implicit; and,
(4)demonstrate why the favorable evidence, along with the reasonable inferences drawn from that evidence, is so lacking in probative value, when considered in the context of the totality of the evidence, that it fails to induce belief in that proposition.’ ”
Kelley v. Widener Concrete Const., LLC, 401 S.W.3d 531, 543 (Mo.App. S.D.2013). Plaintiffs’ failure to follow this framework renders their argument "analytically useless and provides no support for [their] challenge.” In re Marriage of Adams, 414 S.W.3d 29, 34 (Mo.App. S.D.2013). See also Houston v. Crider, 317 S.W.3d 178, 188 (Mo.App. S.D.2010).
. PDA filed Articles of Dissolution with the Missouri Secretary of State on January 29, 2001. Chapter 355 provides specific procedures that must be followed by a corporation, such as PDA, to dissolve and to terminate its existence. Section 355.681.1 provides that following a corporation’s authorization of dissolution by its members, a corporation may dissolve by filing Articles of Dissolution with the Missouri Secretary of State. Section 355.696.1 provides the manner in which a dissolved corporation shall dispose of the known claims against it. It provides that the dissolved corporation must provide notice to its known claimants in writing and provide a deadline by which the dissolved corporation must receive the claim. § 355.696.2(l)-(4).
. Pursuant to Article IX Dissolution, paragraph "2. Authority to Wind Up” of PDA’s Bylaws, trustees Downard and James became solely and exclusively responsible for managing the assets and liabilities of PDA. As trustees of PDA, they were vested with the full authority to "pay its debts and obligations, set aside funds for contingent liabilities and expenses, and distribute the net assets among the members.... [T]he trustees may be sued in [PDA]'s name.” (Emphasis added).
. This is not inconsistent with our affir-mance of the bench-tried judgment against Plaintiffs on their Count VII fraudulent transfer claim, which alleged different acts and types of fraud. The two claims lack sufficient identity for judgment on either to preclude or mandate a particular judgment on the other. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283532/ | DANIEL E. SCOTT, Judge.
I concur in affirming the judgment as to Counts II through X. I respectfully dissent from the reversal as to Counts I and XI
Count I alleged fraud in two respects. One has been abandoned on appeal.1 The other asserted that Downard misled the Secretary of State in connection with PDA’s corporate termination and (quoting Plaintiffs’ petition):
• “That the State of Missouri and Secretary of State Matt Blunt were unaware of the falsity of those representations.”
• “That the State of Missouri and Secretary of State Matt Blunt relied on those representations as being true.... ”
• “That the State of Missouri and Secretary of State Matt Blunt had a right to rely on those statements.”
Plaintiffs thus sought to recover some $14 million “as a consequence of the State of Missouri and Secretary of State Matt Blunt’s reliance on said statements.... ”
I do not see how these allege a fraud upon Plaintiffs, especially since Plaintiffs did not and do not now claim that they relied on Downard’s statements. Cases cited by Plaintiffs and the principal opinion are distinguishable and not persuasive.
I acknowledge that some third parties can claim fraud if they reasonably relied on a misrepresentation (e.g., investors burned because a company gave its auditors false data). But Plaintiffs do not claim they relied, much less reasonably relied, on Downard’s termination filing.
Plaintiffs cite no solid support for extending fraud liability. I cannot find such authority either and am reluctant to make *270new law, so I would affirm the judgment against Plaintiffs on Count I.2 Since Plaintiffs cannot win punitive damages if they lose on actual damages, I would also affirm the judgment against them on Count XI.
I would affirm the judgment in its entirety.
. This abandoned claim was that PDA’s insurance policy itself was a fraudulent misrepresentation. The principal opinion’s suggestion that Downard defrauded DIFP is something that Plaintiffs did not allege. The Petition never alluded to this in any of its 26 pages/115 paragraphs, let alone in terms of fraud, which Rule 55.15 requires to be alleged "with particularity.”
. To be clear, I do not think PDA’s “termination” was effective against Plaintiffs; that the State lacked a remedy; or that false paperwork could be filed with impunity. But it may open Pandora’s Box to say that persons can sue for misrepresentations that they did not hear, or see, or receive, or rely upon. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283533/ | ORDER
George Kniest appeals the judgment dismissing his Rule 24.035 motion for post-conviction relief. We find that the motion court’s findings of fact and conclusions of law are not clearly erroneous. An extended opinion would have no prece-dential value. We have, however, provided the parties a memorandum setting forth the reasons for our decision. We affirm the motion court’s judgment under Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283535/ | ORDER
PER CURIAM.
Community Fire Protection District (“the District”) and the District’s Board of Directors (“the Board”) appeal the judgment reversing and remanding the Board’s decision to terminate Cynthia Schuenke. No error of law appears. An extended opinion would have no precedential value. *276We have, however, provided the parties with a memorandum setting forth the reasons for our decision. We affirm the trial court’s judgment under Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283580/ | MEMORANDUM OPINION
JIM R. WRIGHT, Chief Justice.
Dora Jo Motloch, individually and on behalf of the Estate of James Motloch, deceased, sued Albuquerque Tortilla Company, Inc., alleging claims for negligent *32hiring and various theories of vicarious liability arising out of a fatal accident between the Motlochs and Johnny Rafael Marmolejo Jr. We affirm.
Background Facts
Albuquerque Tortilla manufactures almost seven million tortillas each week and distributes its products to retail stores, restaurants, and “mom-and-pop stores” in five states. Albuquerque Tortilla sold its products directly to some of its customers, hired drivers to deliver its products in the Albuquerque area, and contracted with “eight or nine” independent operator distributors to deliver its products in the other markets. The distributors worked with each individual store to set delivery times, rotated the products on the shelf for freshness, and removed stale products. ■When the company hired or fired a distributor, it had “no process of finding a replacement” because “[pjeople would be jumping at the opportunity to fill it” and “because there are so many operators out there that are better in running the business.”
Indeed, when Curtis Lathram, who owned D & D Distributing, heard that Albuquerque Tortilla lost its distributor in the west Texas and New Mexico territory, he contacted the company, and they began the negotiation process. According to the Independent Operators Agreement (IOA) that the parties entered into, Albuquerque Tortilla required that D & D maintain insurance, adhere to time frames and the store policies of its retail and restaurant customers, rotate the product on the shelves in retail stores, and maintain an adequate inventory. The IOA expressly states that “any personnel employed or otherwise utilized by either” party will not be an employee but, instead, will be characterized as “contract labor.”
D & D was already distributing bakery products in part of the territory under contract. Lathram made some of the deliveries himself, and he hired Johnny Marmolejo Sr. to make deliveries in other areas. Johnny Marmolejo Jr. made the deliveries during the week while his father was at work at his full-time job, and when his father was off work, the Mar-molejos made deliveries together. Mar-molejo Sr. arranged to use an Enterprise truck to make deliveries, and on at least one occasion, Marmolejo Jr. used his personal truck to pull a trailer to make his deliveries.
One early morning as Marmolejo Jr. was driving to Hobbs, New Mexico, for a delivery, he rear-ended a vehicle driven by Dora Jo Motloch; she had stopped in the left lane to make a left-hand turn. Mar-molejo Jr. was traveling almost seventy miles per hour when he struck the vehicle. Dora Jo Motloch was severely injured, and both passengers, including her husband, were killed. Motloch sued, among others, the Marmolejos, Lathram, D & D, and Albuquerque Tortilla.
The trial court rendered summary judgment in favor of Albuquerque Tortilla, severed those claims, and ordered that they be dismissed with prejudice. On appeal, Motloch contends that the trial court erred when it granted summary judgment for Albuquerque Tortilla because it “did not conclusively establish its right to judgment on [three] of the theories” alleged at trial. In five issues,1 Motloch challenges the trial *33court’s judgment on her claims for negligent hiring, vicarious liability claims arising from a joint enterprise, and vicarious liability claims under the Texas Motor Carrier Safety Regulations.
We review a trial court’s ruling on a traditional motion for summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005). We must determine whether the movant established that no genuine issue of material fact existed and that the movant was entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985); Apcar Inv. Partners VI, Ltd. v. Gaus, 161 S.W.3d 137, 139 (Tex.App.-Eastland 2005, no pet.). To be entitled to summary judgment, a defendant must either negate an element of each of the plaintiffs causes of action or establish an affirmative defense as a matter of law. Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex.1997).
We consider the summary judgment evidence in the light most favorable to the nonmovant and indulge all reasonable inferences and resolve all doubts in favor of the nonmovant. Am. Tobacco, 951 S.W.2d at 425; Nixon, 690 S.W.2d at 548-49. “When the trial court does not specify the basis for its summary judgment, the appealing party must show it is error to base it on any ground asserted in the motion.” Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex.1995). We consider only the grounds that “the movant actually presented to the trial court” in its motion. Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 625 (Tex.1996).
In her second issue on appeal, Mot-loch contends that the trial court erred when it granted summary judgment in favor of Albuquerque Tortilla on its claim for negligent hiring. Motloch does not challenge D & D’s status as an independent contractor but argues that Albuquerque Tortilla owed a duty to the general public to “assess the drivers delivering its products” and “to adopt and enforce policies with respect to its drivers’ qualifications” because it exercised control over the details of the work to be performed. Albuquerque Tortilla argues that “there is no established legal duty that would have required [it] to investigate the employment/retention policies or procedures utilized by an independent contractor.” In its motion for summary judgment, it argued that there was no ongoing duty to supervise D & D’s hiring activities “absent some evidence, which is not present here, of retained control or the actual exercise of control by [Albuquerque Tortilla] over [D & D’s] work, activities, and responsibilities.” We agree.
Texas recognizes a claim for negligent hiring. That claim arises when there is a lack of the use of ordinary care when hiring an independent contractor. Wasson v. Stracener, 786 S.W.2d 414, 422 (Tex.App.-Texarkana 1990, writ denied); see also King v. Assocs. Commercial Carp., 744 S.W.2d 209, 213 (Tex.App.-Texarkana 1987, writ denied); Jones v. Sw. Newspapers Carp., 694 S.W.2d 455, 458 (Tex.App.-Amarillo 1985, no writ). If the performance of the contract requires driving a vehicle, the person employing the independent contractor is required to investigate the independent contractor’s competency to drive. See Wasson, 786 S.W.2d at 422. But when the negligence arises out of the activity being performed under the contract, the duty to see that work is performed in a safe manner “is that of the independent contractor” and not that of the party who hired the independent contractor. Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex.1985) (quoting Abalos v. Oil Dev. Co. of Tex., 544 S.W.2d 627, 631 (Tex.1976)).
*34However, when the hiring party-exercises control over the independent contractor’s work, “he may be liable unless he exercises reasonable care in supervising” the independent contractor’s work. Id. Texas has adopted the following rule from the Restatement (Second) of Torts:
One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.
Restatement (Second) of Torts § 414 (1965); Redinger, 689 S.W.2d at 418. We apply this rule “when the employer retains some control over the manner in which the independent contractor’s work is performed, but does not retain the degree of control which would subject him to liability as a master.” Redinger, 689 S.W.2d at 418. “The employer’s role must be more than a general right to order the work to start or stop, to inspect progress or receive reports.” Id.
In addition to the IOA, the summary judgment evidence shows that Albuquerque Tortilla did not dictate when deliveries were made; D & D “negotiated dock and door times with each individual store.” To comply with its requirement to “maintain an adequate inventory,” D & D determined what was adequate to “keep the shelves full based on the amount of space within each individual store.” D & D determined what products and what quantities that it would need to order from Albuquerque Tortilla, and there were no minimum prices or quantities. If there were any complaints about the products or the service, D & D was not obligated to relay this information to Albuquerque Tortilla. Albuquerque Tortilla never required D <& D to adopt or comply with hiring procedures, and D & D determined how it made the deliveries in its distribution territory.
Lathram, the owner of D & D, testified that he was not aware of whether Albuquerque Tortilla knew whether he was making deliveries himself or knew if D & D had hired drivers, and when asked whether they talked about it, he said, “No. They could care less.” Lathram testified that he had “very little” contact with Albuquerque Tortilla after he signed the contract. Chris Martinez, who represented Albuquerque Tortilla in a pretrial deposition, explained that some distributors deliver the product and some hire a driver. When asked about D & D specifically, Martinez said, “It’s not my business to know if he has drivers or not.” He further explained, “I can’t tell them what to do with their drivers. We are not associated other than manufacturer to distributor.”
Although Motloch contends that Albuquerque Tortilla’s “duty emanates from the control” that it retained over the details of the work, we find no such evidence after a review of the summary judgment evidence. Motloch does not explain how Albuquerque Tortilla exercised control over the hiring of drivers or the manner of delivery, nor does she direct us to any evidence showing such control. Moreover, Motloch’s argument relative to breach of this alleged duty — that Albuquerque Tortilla “should have required D & D to adopt and enforce policies with respect to its drivers’ qualifications” — further indicates that Albuquerque Tortilla did not exercise control over D & D’s hiring or its distribution operations. We conclude that Albuquerque Tortilla had no duty to supervise the actions of D & D because it did not exercise the requisite control. Therefore, the trial court did not err when it concluded that Albuquerque Tortilla was entitled to judgment as a matter of law on Mot-*35loch’s negligent hiring claim. Motloch’s second issue is overruled.
In her fifth issue, Motloch contends that Albuquerque Tortilla proximately caused the accident because of its negligent hiring and retention practices. Because we conclude that Albuquerque Tortilla did not have a duty in this regard, we need not address whether breach of that duty was the proximate cause of the accident. Mot-loch’s fifth issue is overruled.
In her fourth issue on appeal, Mot-loch argues that Albuquerque Tortilla was not entitled to summary judgment on her joint enterprise claim because, of the two elements challenged below, Albuquerque Tortilla “did not conclusively establish it was entitled to judgment as a matter of law on either point.”
“The theory of joint enterprise is to make each party thereto the agent of the other and thereby to hold each responsible for the negligent act of the other.” Shoemaker v. Estate of Whistler, 518 S.W.2d 10, 14 (Tex.1974). “A joint enterprise signifies a legal relationship between two or more parties that imposes the responsibility upon each party for the negligent acts of the others while acting in furtherance of their common undertaking.” Ramirez v. Garcia, 418 S.W.3d 134, 154 (Tex.App.-Amarillo 2013, no pet. h.) (citing Seaway Prods. Pipeline Co. v. Hanley, 153 S.W.3d 643, 651-52 (Tex.App.-Fort Worth 2004, no pet.)).
Texas has adopted the definition of joint enterprise from the Restatement of Torts. Shoemaker, 513 S.W.2d at 14; see also St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 526 (Tex.2002). To prevail on its claim that Albuquerque Tortilla and D & D were engaged in a joint enterprise, Motloch was required to show the following elements: (1) an express or implied agreement among the members; (2) a common purpose; (3) community of pecuniary interest in the purpose; and (4) an equal right to a voice in the direction of the enterprise, which gives an equal right of control. Tex. Dep’t of Transp. v. Able, 35 S.W.3d 608, 613 (Tex.2000) (quoting Restatement (Second) of Torts § 491 cmt. c (1965)). Albuquerque Tortilla challenged only the “community of pecuniary interest” and “equal right of control” elements in its motion for summary judgment, so we must determine whether it negated either element to be entitled to judgment as a matter of law.
To show a community of pecuniary interest, the supreme court has focused “upon evidence showing pooling of efforts and monetary resources between entities to achieve common purposes, namely reduction in costs and contemplation of economic gain by approaching the project as a joint undertaking.” Blackburn v. Columbia Med. Ctr. of Arlington Subsidiary, 58 S.W.3d 263, 276 (Tex.App-Fort Worth 2001, pet. denied) (citing Able, 35 S.W.3d at 614). The “monetary interest must be common among the members of the group — it must be one ‘shared without special or distinguishing characteristics.’ ” St. Joseph, 94 S.W.3d at 531 (quoting Ely v. Gen. Motors Corp., 927 S.W.2d 774, 779 (Tex.App.-Texarkana 1996, writ denied)).
Motloch argues that there was a joint enterprise “between two different entities whose common purpose was the distribution and sale of [Albuquerque Tortilla] products in West Texas and Eastern New Mexico.” Motloch argues on appeal that “the very essence of a community interest” is when “[n]either party makes money in the absence of sales, and both parties make money upon consummation of a transaction.” Motloch reasons that “[b]oth parties benefitted financially if products sold; neither party benefitted if products did not sell. Both parties benefitted if the *36customer base expanded; both parties suffered if the customer base contracted.”
Motloch’s argument misconstrues the law of joint enterprise just as the trial court in St. Joseph did in its charge to the jury. 94 S.W.3d at 528. In St. Joseph, the court’s charge required the jury to determine whether the parties had a “common business or pecuniary interest,” and the supreme court clarified that this “is not the same [thing] as whether they have a ‘community of pecuniary interest.’” Id. The court explained:
Instructing the jury that it may find a joint enterprise based in part on a finding of a “common business or pecuniary interest” opens to vicarious liability parties who may have business or pecuniary interests in .the activities of others, but whose interests in those activities are not held in community with those others because they are not shared without special or distinguishing characteristics. This is contrary to the requirements of the Restatement and Shoemaker. Such a charge thus misstates Texas law regarding joint enterprise.
Id.
Motloch’s argument fails ■ because we must distinguish between a common business purpose and a common pecuniary interest in that purpose. According to the terms of the IOA, Albuquerque Tortilla “retained [D & D] as an Independent Operator for the exclusive distribution of Albuquerque Tortilla Company products.” D & D paid $8,000 for an exclusive distribution territory and received twenty-two percent of the net sales in that territory. D & D would have the exclusive rights for one year “[ujnless terminated earlier.” Although it provided for a one year term, the IOA also stated that D & D “shall be [an] Independent Operator of Albuquerque Tortilla Company only for so long as Albuquerque Tortilla Company, in its sole discretion, determines that such activity shall continue.” In addition, the IOA provided that “[n]either party, nor any employee or agent of such party, shall have the right to make any representation on behalf of or otherwise bind the other party.” Additionally, D & D was prohibited from distributing “like items” within the territory.
Other summary judgment evidence also shows there was no pooling of risk, resources, or effort but, rather, an allocation of such. Albuquerque Tortilla bore the loss that occurred as a result of a manufacture’s defect, but D & D bore the loss of unsold and returned product. The operating agreement did not provide for the pooling of expenses. Instead, Albuquerque Tortilla absorbed its own manufacturing and delivery costs, and D & D paid for the distribution costs. D & D used its own trucks and equipment to deliver the product, and Albuquerque Tortilla used its own equipment to manufacture products and its own vehicles to deliver the product to D & D’s warehouse. Although D & D could increase its commissions by acquiring new retailers in its territory, its profits would always be limited to twenty-two percent of the net sales of Albuquerque Tortilla Company products because D & D was prohibited “from delivering products that competed with Albuquerque Tortilla Company products.” Any increase in value to the territory would be realized by Albuquerque Tortilla, who could charge more for the exclusive rights to the territory or realize the value through a sale of the company. D & D’s monetary interest, however, was limited to the commission it earned from the deliveries.
Even if Albuquerque Tortilla and D & D have a common business purpose in the “distribution and sale of [Albuquerque Tortilla] products in West Texas and Eastern New Mexico,” as alleged by Motloeh, the summary judgment evidence shows *37that the parties have different pecuniary interests in that purpose. The evidence shows that D & D used its own vehicles and drivers to haul Albuquerque Tortilla products and that D & D was paid a set percentage of net sales. The evidence demonstrates that D & D was an independent contractor and shows “[njothing more than limited evidence of mere convenience to the parties arising from the arrangement and a shared general business interest,” which does not establish that the parties were engaged in a joint enterprise. See Blackburn, 58 S.W.Sd at 277; Ramirez, 413 S.W.3d at 156. Although Albuquerque Tortilla and D & D shared a common business interest in distributing tortillas and other products in west Texas and eastern New Mexico, their pecuniary interest is not “shared without special or distinguishing characteristics.” See St. Joseph, 94 S.W.3d at 531; see also Harris v. Houston Livestock Show & Rodeo, Inc., 365 S.W.3d 28, 35 (Tex.App.-Houston [1st Dist.] 2011, pet. denied) (holding no “community of pecuniary interest” exists when one party’s interest was calculated differently from the other’s). Accordingly, summary judgment was proper on Motloch’s claim under the joint enterprise theory. Motloch’s fourth issue is overruled.
Motloch also sought to impose liability upon Albuquerque Tortilla under the principal of “statutory employment” set forth in the federal motor carrier safety regulations as adopted in Texas. In her third issue, Motloch challenges the trial court’s grant of summary judgment on this claim.
In response to motor carriers’ attempts to immunize themselves from liability by leasing trucks and characterizing drivers as independent contractors, Congress enacted the Interstate Common Carrier Act that “require[sj interstate motor carriers to assume full direction and control of the vehicles that they leased ‘as if they were the owners of such vehicles.’ ” Morris v. JTM Materials, Inc., 78 S.W.3d 28, 38 (Tex.App.-Fort Worth 2002, no pet.). The Interstate Commerce Commission promulgated the Federal Motor Carrier. Safety. Regulations (FMCSR), which impose vicarious liability upon interstate motor carriers for the negligence of their drivers who are statutory employees. Id. at 38-39. The Texas Department of Public Safety has adopted a majority of the FMCSR, including the definition of “employee” and “employer.” 37 Tex. Admin. Code Ann. § 4.11(a) (2013) (Tex. Dep’t of Pub. Safety, Gen. Applicability & Definitions).
An “employer” under the FMCSR is “any person engaged in a business affecting interstate commerce who owns or leases a commercial motor vehicle in connection with that business, or assigns employees to operate it.” 49 C.F.R. § 390.5 (2013). An “employee” is defined as any person “who is employed by an employer and who in the course of his or her employment directly affects commercial motor vehicle safety.” Id. This includes an independent contractor who is “in the course of operating a commercial motor vehicle.” Id. In addition, a motor carrier is deemed to be a statutory employer when (1) the carrier does not own the vehicle; (2) the carrier operates the vehicle, under an “arrangement” with the owner, to provide transportation subject to federal regulations^ and (3) the carrier does not literally employ the driver. John B. Barbour Trucking Co. v. State, 758 S.W.2d 684, 688 (Tex.App.-Austin 1988, writ denied).
The summary judgment evidence in this case negates the second element. The record shows that Albuquerque Tortilla contracted with Lathram, who owned D & D. Albuquerque Tortilla delivered its products to Lathram’s warehouse. D & D *38contracted with Johnny .Marmolejo Sr., and Marmolejo Sr. hired Marmolejo Jr. The Marmolejos negotiated their delivery schedule with each customer; the deliveries were not set by Albuquerque Tortilla.
Although he was paid seventeen percent by D & D, Marmolejo Sr. testified that he did not know what Albuquerque Tortilla paid D & D. Marmolejo Jr. testified that he did not have a contract with Lathram or D & D, that he never picked up products from the warehouse without his father, that his dealings with Lathram never went beyond “small talk,” and that he never had any direct dealings with Albuquerque Tortilla. In fact, when questioned about the process for getting the products and invoicing, Marmolejo Jr. explained that he drove and that his “father handled mostly all of that.” Because this evidence negates the second element, which requires an “arrangement” between Albuquerque Tortilla and the owner of the vehicle, the trial court did not err when it granted summary judgment on this claim. Motloch’s third issue is overruled.
We affirm the judgment of the trial court.
. Although Motloch presents five issues on appeal, only four were argued, and the numbering is inconsistent. The first issue presented generally challenges the trial court's grant of summary judgment; Issues 2 through 5 were argued as Issues 1 through 4. Also, Issues 2 and 5 (as presented, but Issues I and 4 as argued) attack different elements (duty and causation) of the same claim. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283536/ | ORDER
PER CURIAM
Defendant Jamikeo Thompson was convicted by jury in the Circuit Court of the City of St. Louis of one count of trafficking drugs in the second degree, section 195.223, R.S.Mo. (Cum.Supp.2007), and two counts of possession of a controlled substance, section 195.202, R.S.Mo. (Cum. Supp.2011). We affirm the trial court’s judgment.
No error of law appears. An extended opinion would have no precedential value. *287The 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/5283537/ | ORDER
Per curiam:
Norman Freeman was convicted of murder in the second degree following a jury trial in the Circuit Court of Jackson County. We affirmed his conviction on direct appeal in State v. Freeman, 359 S.W.3d 498 (Mo.App.W.D.2012). Freeman now appeals the denial of his motion for post-conviction relief pursuant to Rule 29.15. For reasons explained more fully in a 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/5283539/ | Patricia L. Cohen, Presiding Judge
Introduction
D. Wayne Mayer, acting in his capacity as trustee of the John J. Stock Trust, and Ronald A. Nolle, acting in his capacity as trustee of the Oscar A. Nolle Trust (collectively, “Trusts”), appeal the trial court’s judgment in favor of Lindenwood University on its action for a judgment declaring that the proposed redevelopment of the Trusts’ property would not constitute a breach of the lease or waste. The Trusts also appeal the trial court’s judgment in favor Lindenwood on the Trusts’ action seeking damages for breach of the lease and waste. Because Mr. Mayer and Mr. Nolle, who are not licensed attorneys, filed the notice of appeal as trustees on behalf of the Trusts, and thereby engaged in the unauthorized practice of law, we dismiss the appeal.
Factual and Procedural Background
The John J. Stock Trust and Oscar A. Nolle Trust each own an undivided one-half interest in land located at 2000 First Capital Drive (Property) in St. Charles. In December 1956, the Trusts executed a ninety-nine year lease agreement (Lease) with East Grand Realty Co.
The Lease granted the lessee broad authority to use the property “for any lawful purpose... for and during the term of Ninety-nine (99) years commencing on the First day of December, and ending on the Last day of November, 2055....” The Lease provided the lessee:
... the sole exclusive right to erect, build, repair, change, alter or otherwise construct such buildings, appurtenances, or other improvements for commercial use as the Lessee in its sole discretion may determine, so long as same are in no instance used for an unlawful purpose, and so long as the value of such improvements shall not be diminished to less than One Hundred Thousand Dollars ($100,000.00) as the result of such work.
In consideration for the leasehold rights, the lessee agreed to pay the Trusts $6,000 per year in rent and to construct “one or more commercial type buildings of sound construction ... which ... shall cost an aggregate minimum of One Hundred Thousand Dollars ($100,000.00)....” 1
In regard to forfeiture, the Lease stated that “upon failure by Lessee ... to keep and perform any of the [ ] covenants, conditions, agreements, and stipulations herein contained ... the Lessors may cause a forfeiture of this lease and right of reentry into the demised premises, by serving notice of such forfeiture and right of reentry upon the Lessee ...” Such notice “shall state the cause or grounds for which the right of forfeiture and reentry is claimed” and “shall be mailed ... at least six (6) months before the same shall authorize said forfeiture or reentry by Lessors.... ”
Between January 1957 and 1960, East Grand Realty removed the then-existing *310structures from the Property and constructed a 15,000-square-foot commercial building (Original Building). The Original Building housed a Kroger Grocery Store and later Hackmann Lumber Co. After Hackmann Lumber vacated the Property in 2003, the Original Building remained unoccupied.
In December 2006, East Grand Realty assigned the Lease to Lindenwood. The Property was one of sixty parcels of land, totaling over thirty acres, upon which Lin-denwood planned to construct a mixed-use development called “University Commons” (Development). Lindenwood’s plans included demolishing the Original Building and constructing a new building — a freestanding, multi-tenant 12,600-square-foot commercial structure (New Building) — on the Property. In Spring 2011, Linden-wood applied for various construction and demolition permits from the City of St. Charles.
On May 17, 2011, the Trusts sent the first in a series of letters to Julie Mueller, Lindenwood’s vice president for operations and chief operating officer. In the letter, the Trusts accused Lindenwood of breaching the Lease, requested proof that Lin-denwood had insured the Property “in compliance with the terms of the Lease,” and demanded that Lindenwood either “voluntarily terminate the lease” or “purchase [] our fee simple interest in the property....” Ms. Mueller responded by letter on May 28, 2011 and provided proof of insurance coverage for 2011. Ms. Mueller also communicated Lindenwood’s position that: “[A]s long as rents are paid and your heirs receive possession of the tract in 2055 with a commercial building on it worth at least $100,000, the terms of the lease are satisfied.” The parties exchanged several more letters over the next two years. Despite the Trusts’ objections, Lindenwood demolished the Original Building in June 2012.
On May 9, 2013, the Trusts erected a “No Trespassing Sign” on the Property. In response, Lindenwood filed a petition in the Circuit Court of St. Charles County seeking a judgment “[declaring that Lin-denwood’s development of the [Property] and accompanying change, alteration and/or rebuilding of the Original Building” constituted neither breach of the Lease nor waste. On the same day, the Trusts filed a petition for breach of lease and a motion for preliminary injunction. At the Trusts’ request, the trial court consolidated the cases.2
The trial court conducted a bench trial in July 2013 and entered judgment in favor of Lindenwood on August 16, 2013. In its thirty-five-page order and judgment, the trial court found that “Lindenwood was contractually allowed to remove the Original Building because there is no express restriction against doing so, and because the Original Building will be replaced with a building that is indisputably worth more than $100,000.”3 The trial court also concluded that the Trusts failed to demonstrate that the Development “will cause waste to their reversionary interest or the *311fair market value of the [Property].” Finally, the trial court rejected the Trusts’ claims for .breach of the Lease because: (1) the Trusts did not demand an inspection of the Property, identify the major repairs the Trusts claimed were necessary, and provide the required six-month notice that Lindenwood would breach the lease on a specific date if it failed to cure the alleged breaches; (2) Lindenwood provided the Trusts proof of insurance upon demand and presented evidence that the Property “was always insured by Linden-wood”; and (3) the Lease did not prohibit removal of the Original Building.4
The Trusts filed motions to amend and vacate the judgment. The trial court heard arguments on the Trusts’ motions. On September 27, 2013, the trial court entered a judgment denying the Trusts’ after-trial motions. On October 7, 2013, the trustees, Mr. Mayer and Mr. Nolle (Trustees), acting pro se on behalf of the Trusts, filed a notice of appeal.5 Neither Mr. Mayer nor Mr. Nolle is a licensed attorney.
On March 31, 2014, this court sua sponte notified the parties that “there is an issue in this appeal about whether the trustee of a trust can appear pro se” and ordered them to address the issue in their respective appellate briefs. Counsel for the Trusts entered his appearance on April 29, 2014. Counsel filed his brief on May 9, 2014, asserting in a footnote that the issue of whether a trust may appear pro se “is moot, because after receiving the [March 31] Order they promptly secured counsel.”
On May 15, 2015, we issued a second order, which stated:
Counsel has entered an appearance on behalf of the appellants and requested an extension of time to file appellants’ brief. Appellants’ motion is granted until June 9, 2014.
Counsel asserts that the issue of a trustee proceeding pro se which the Court instructed appellants to brief is now moot. This may not be the case. See Naylor Senior Citizens Housing, L.P. v. Sides Construction, No. SC93404 [423 S.W.3d 238, 247-48] (Mo. Banc 2014)(addressing the consequences of a non-attorneys filings on behalf of an entity required to be represented by counsel).
This issue shall continue to be addressed in accordance with this Court’s order of March 31, 2014.
On June 9, 2014, the Trusts filed an amended brief in which they addressed issue of whether a trustee may appear pro se on behalf of a trust.
Discussion
The Trusts claim the trial court erred in ruling that Lindenwood’s proposed redevelopment of the Property would not constitute a breach of the Lease (Point I) or waste (Point II) because the Lease did not grant Lindenwood the right to “dispose of’ or “convert to its own use” the soil, subsurface soil, and attached appurtenances. The Trusts further argue that the trial court erred in finding that the Trusts *312failed to prove that Lindenwood breached the Lease (Point III). Lindenwood counters that the trial court properly found that the Lease granted Lindenwood the right to demolish the Original Building, construct the New Building, and perform the necessary grading. Additionally, Lin-denwood asserts that it will not commit waste by completing the Development because “the value of the property and the Trusts’ reversionary interests will increase[.]”
Before we consider the merits of the Trusts’ points on appeal, we determine the effect of the Trustees’ filing of a pro se notice of appeal on behalf of the Trusts. See Stamatiou v. El Greco Studios, Inc., 935 S.W.2d 701, 702 (Mo.App.W.D.1996). Lindenwood asserts that we must dismiss the Trusts’ appeal because the Trustees engaged in the unauthorized practice of law when they filed the notice of appeal. The Trusts counter that the Trustees’ pro se appearance “should not preclude the Court’s reaching the merits of the appeal” because “there was no timely objection,” “[t]he Trusts’ current representation by counsel moots the issue,” and “no Missouri case holds that a trustee of a trust ... may not proceed pro se.”
1. Effect of Lindenwood’s failure to object to the notice of appeal.
As an initial matter, we address the Trusts’ assertion that this court must give effect to the notice of appeal because, “[e]ven if the pro se filing of the Notice of Appeal were somehow improper, there was no timely objection.” In Naylor, the Supreme Court held that “[ajctions taken in court by a layperson on behalf of another may not be given effect and, w hen objected to in a timely manner, must be stricken.” Naylor Senior Citizens Hous., LP v. Side Const. Co., 423 S.W.3d 238, 250 (Mo. banc 2014) (emphasis added). The Court did not define “timely manner,” but it explained that, where a party fails to object to such conduct, that “party cannot later attack the validity of a judgment or other ruling by the court ... before which the improper representation occurred.” Id. (citing Haggard v. Div. of Employment Sec., 238 S.W.3d 151, 155-56 (Mo. banc 2007)). Importantly, the Court also noted that “no objection or motion is required for a court to act sua sponte to strike the filings on this basis.” Id. at 251 n.10.
The Trustees signed and filed the notice of appeal on October 15, 2013. On January 2, 2014, the Trustees filed a motion for an extension of time to file the record on appeal, which this court granted. On March 10, 2014, the Trustees filed, and this court accepted the legal file and transcript. On March 31, 2014, we entered an order sua sponte identifying the issue of “whether a trustee of a trust can appear pro se” and requiring the parties to “address this issue in their respective briefs.” The Trusts subsequently retained counsel who filed an amended brief on June 9, 2014 addressing the issue as required by this court.
The Trusts argue that dismissal of their appeal is improper because, “in the many months that passed after the October 2013 filing of the Notice of Appeal, [Lindenwood] never objected to the Notice of Appeal.” Although Lindenwood did not urge this court to dismiss the Trustees’ appeal on unauthorized-practice-of-law grounds until it filed its brief on July 9, 2014, “ ‘[o]ne cannot consent to the unauthorized practice of law’ or waive the requirement that all parties other than natural persons be represented by licensed attorneys.” Td. at 250 (quoting Haggard, 238 S.W.3d at 154).
Additionally, the Trusts assert that, because this court accepted several of the Trustees’ pro se filings, we cannot dismiss *313the appeal on the grounds that the Trustees’ act of filing the notice of appeal constituted the unauthorized practice of law. The record reveals that this court accepted the notice of appeal, granted the Trustees’ motion for extension of time to file the record on appeal, and received the legal file and transcript, all of which the Trustees filed without legal representation. However, the Trusts cite, and we find, no authority for the proposition that, if this court does not promptly reject the filings of one engaged in the unauthorized practice of law, we must give effect to those filings. To the contrary, our Supreme Court is clear that it is the judiciary’s duty to regulate the practice of law and a sua sponte strike of the filings of a nonattor-ney who purports to represent another in court is entirely consistent with the judiciary’s duty. See Naylor, 423 S.W.3d at 245, 251 n.10.
2. Whether the Trustees’ actions constituted the unauthorized practice of law.
Missouri limits the practice of law, both in and out of its courts, to “persons with specific qualifications and duly licensed as attorneys.” Strong v. Gilster Mary Lee Corp., 23 S.W.3d 234, 238 (Mo.App.E.D.2000) (quotation omitted); see also Mo.Rev.Stat. § 484.020.1. Although our courts have struggled to formulate a “precise and comprehensive definition of the practice of law,” it is clear that “the act of appearing in court to assert or defend claims on behalf of another lies at the very heart of the practice of law.” Naylor, 423 S.W.3d at 245; see also Mo.Rev.Stat. § 484.010.1. Because Missouri prohibits the unauthorized practice of law, “actions constituting the unauthorized practice of law must not be recognized or given effect.” Naylor, 423 S.W.3d at 247. “The normal effect of a representative’s unauthorized practice of law is to dismiss the cause or treat the particular actions taken by the representative as a nullity.” Schenberg v. Bitzmart, Inc., 178 S.W.3d 543, 544 (Mo.App.E.D.2005). Importantly, our courts have held that a notice of appeal filed on behalf of another by a nonattorney is null and void. See Joseph Sansone Co. v. Bay View Golf Course, 97 S.W.3d 531, 532 (Mo.App.E.D.2003); Sellars By & Through Booth v. Denney, 945 S.W.2d 63, 66 (Mo.App.S.D.1997).
Missouri courts have not directly addressed the question of whether a nonat-torney trustee representing the interests of a trust engages in the unauthorized practice of law when he or she appears pro se. However, we find the Supreme Court’s recent decision in Naylor instructive. There, the nonattorney managing partner of two partnerships signed and filed a petition seeking damages in negligence on behalf of himself and the partnerships. 423 S.W.3d at 240. The defendants moved to dismiss the action on the grounds that the partner who signed the petition could not represent the partnerships because he was not a licensed attorney. Id. at 241. The partner and partnerships responded through a licensed attorney, but did not file or seek leave to file a “corrected” signature page for the original petition pursuant to Rule 55.03(a). Id. The trial court dismissed the partnerships’ claims on the grounds that the nonattorney partner’s filing of the petition constituted the unauthorized practice of law. Id. at 242.
The Naylor Court affirmed the trial court’s dismissal of the partnerships’ claims and held that, unlike a natural person who is generally entitled to appear and assert claims on his or her own behalf in Missouri courts, a statutory entity, such as a corporation or limited partnership, may appear only through a licensed attorney. Id. at 243. The Court reasoned that “[w]hen an individual appears pro se, i.e., *314for himself, that person is not engaging in the practice of law because he is not representing another in court.” 423 S.W.3d at 245 (emphasis in original). In contrast, a statutory entity or “legal fiction” cannot “be anywhere or do anything — including, but not limited to, appearing in court— unless some individual does so on its behalf.” Id. at 244. Such an individual, acting on behalf of the statutory entity “by definition is ‘representing another’ in court and, therefore, necessarily is engaging in the practice of law.” Id. at 246. Because Missouri courts restrict the practice of law to licensed attorneys, a statutory entity’s representative must be a licensed attorney.6 Id.
The Trusts assert that the rule requiring statutory entities to appear only through counsel does not apply to trusts because “a trust is unlike a statutory business entity, because a trustee has a special ... interest in the trust.” Under Missouri law, “[t]he trustee is the legal owner of the trust property, in which the beneficiaries have equitable ownership.” Thompson v. Koenen, 396 S.W.3d 429, 435 (Mo.App.W.D.2013). In contrast to a corporation, a trust is not a legal entity and lacks the capacity to sue or be sued. Pauli v. Spicer, No. ED 101231, 2014 WL 5139384, *7 (Mo.App.E.D. Oct. 14, 2014) (holding that trustees and beneficiaries are necessary and indispensable parties in actions involving trust property); see also Sunbelt Envt’l Servs., Inc. v. Rieder’s Jiffy Market Inc., 138 S.W.3d 130, 134 (Mo.App.S.D. 2004).
Even though a trust is not considered a legal entity, “in practice trustees act on behalf of their trusts and are sued as trust representatives.” Restatement (Third) of Trusts 621 Intro. Note (2012). Pursuant to Missouri law governing a trustee’s duty to administer the trust, “the trustee shall administer the trust in good faith, in accordance with its terms and purposes and the interests of the beneficiaries.” Mo.Rev. Stat. § 456.8-801; see also Betty G. Weldon Revocable Trust ex rel. Vivion v. Weldon ex rel. Weldon, 231 S.W.3d 158, 180 (Mo.App.W.D.2007). Additionally, Section 456.8-802 mandates that “[a] trustee shall administer the trust solely in the interests of the beneficiaries.” Mo.Rev.Stat. § 456.8-802; see also Betty G. Weldon Revocable Trust, 231 S.W.3d at 180.
Numerous courts have held that a non-attorney trustee may not appear pro se in a representative capacity.7 Although it has no precedential value, we find persuasive the reasoning of In re Guetersloh, 326 S.W.3d 737 (Tex.App.2010). In that case, James Guetersloh was trustee and beneficiary of a trust. 326 S.W.3d at 738. The other beneficiaries filed suit against Guet-ersloh, in his capacity as trustee, seeking termination of the trust and distribution of the trust property. Id. When Guetersloh, acting pro se, filed an answer and motion to transfer, the trial court sua sponte “found that the trustee of a trust cannot appear in court pro se because to do so *315would amount to the unauthorized practice of law.” Id. at 739.
Guetersloh did not obtain legal counsel, but instead sought a writ of mandamus ordering the trial court to allow him to appear pro se on behalf of the trust because, as trustee, “he is the actual party to the suit[.]” Id. The Texas Court of Appeals held that the trial court did not err in prohibiting Guetersloh, in his capacity as trustee, from appearing without legal representation “because in that role he is appearing in a representative capacity rather than in propia persona.” Id. at 740. The court explained: “Because of the nature of trusts, the actions of the trustee affect the trust estate and therefore affect the interests of the beneficiaries.” Id. Accordingly, “if a non-attorney trustee appears in court of behalf of the trust, he or she necessarily represents the interests of others, which amounts to the unauthorized practice of law.” Id. (citing Ziegler, 64 Cal.App.4th at 549, 75 Cal.Rptr.2d 312).
In the instant case, Mr. Mayer and Mr. Nolle, as trustees, managed the Property for the benefit of the Trusts’ beneficiaries. Indeed, Mr. Mayer testified, that “as a trustee, that’s one of my responsibilities is to — to the grandchildren that I represent. ... I represent thirteen grandchildren who are on my side....” As trustees, Mr. Mayer and Mr. Nolle did not represent their own interests alone, but rather the interests of all the Trusts’ beneficiaries. Thus, when the Trustees appeared on behalf of the Trusts, they were necessarily representing the interests of others in court, which constitutes the unauthorized practice of law. See, e.g., Naylor, 423 S.W.3d at 246; Joseph Sansone Co., 97 S.W.3d at 532.
The Trusts suggest that the Trustees did not engage in the unauthorized practice of law because the “filing of a notice of appeal is a ministerial act.” We recognize that “[t]echnical adherence to the formal averments of a notice of appeal is not jurisdictional, and the averments are to be liberally construed to permit appellate review so long as the opposing party is not misled to his or her irreparable harm.” McCrainey v. Kansas City Mo. Sch. Dist., 337 S.W.3d 746, 751 (Mo.App.W.D.2011). However, the Trustees’ pro se filing of the notice of appeal was not merely a technical defect. This court has repeatedly held that the act of filing a notice of appeal on behalf of another constitutes the practice of law and must therefore be performed by a licensed attorney, See Joseph Sansone, 97 S.W.3d at 532; Sellars By & Through Booth, 945 S.W.2d at 66; see also Reed v. Labor & Indus. Relations Com’n, 789 S.W.2d 19, 23 (Mo. banc 1990) (an attorney must file an application for review to the Labor and Industrial Relations Commission because it “constitutes assertions of legal rights.”).
The Trusts contend that the issue of whether the trustee of a- trust can appear pro se “is moot” because “[a]fter receiving the [March 31, 3024] order, the Trusts promptly secured counsel” and “[t]he participation by the non-attorney trustees was minimal, as the substantive brief was filed by counsel.” The Supreme Court addressed a similar argument in Naylor, where the partner and partnerships retained counsel after the defendants filed their motions to dismiss. Naylor, 423 S.W.3d at 241. On appeal, the partnerships argued that the managing partner’s “unauthorized practice of law should be treated — at least for a while — as though it was authorized.” Id. at 246 (emphasis in original). The Supreme Court firmly rejected this proposition, stating: “The acts of someone engaged in the unauthorized practice of law may not be given effect as though the practice was authorized.” Id. The Court explained: “To take any other position would be to say that the unauthorized practice of law is not really wrong, *316merely less preferred than the authorized practice; or that laypersons may represent others ... in court, but only for a limited time.” Id. at 247.
Finally, the Trusts argue that this court should give effect to the Trustees’ pro se notice of appeal because “the circumstances of this case warrant a decision on the merits.” Specifically, the Trusts allege that: “they were unable to file a notice of appeal through an attorney, because it was not until October 7, 2013, that the Trusts learned of the appeal deadline”; “the non-attorneys’ conduct in filing the Notice of Appeal was done without knowledge that doing so might be improper”; and “Lin-denwood is not prejudiced by having this appeal hear[d] on the merits[.]”
In support of their position, the Trusts cite Downtown Disposal Servs., Inc. v. City of Chicago, 365 Ill.Dec. 684, 979 N.E.2d 50 (Ill.2012). In that case, an administrative agency entered four default judgments against a corporation, and the corporation’s president “filled out four blank pro se complaints for administrative review.” 365 Ill.Dec. 684, 979 N.E.2d at 51-52. The Illinois Supreme Court held that the president engaged in the unauthorized practice of law when he filed the complaints for administrative review, but it declined to apply the “automatic nullity rule.” Id., 365 Ill.Dec. 684, 979 N.E.2d at 54. Instead,, that court held: “In situations where a nonattorney signs a complaint for administrative review on behalf of a corporation, the trial court should afford the corporation an opportunity to retain counsel and amend the complaint if the facts so warrant.”8 Id. at 58, 979 N.E.2d at 54.
Not only does the Downtown Disposal decision lack precedential value, but it treats the unauthorized practice of law as a “curable defect” and employs a fact-based approach previously rejected by our Supreme Court in Naylor. 423 S.W.3d at 247. In Naylor, the Supreme Court declared: “The Court will not send such mixed signals by substituting the fairness and predictability of this bright-line rule with a situational ethic based upon a post hoc weighing of circumstances and balancing of harms.” Id.
Conclusion
The Trusts’ appeal is dismissed.
Roy L. Richter, J., and Robert M. Clayton III, J., concur.
. The Lease provided for the removal of existing structures on the Property, which included a one-story corner building, two residences, a steel garage, and underground storage tanks and oil equipment.
. On June 6, 2013, Lindenwood filed a motion for temporary restraining order against the Trusts. The following day, the trial court entered an "agreed preliminary injunction” stating that the Trusts "are enjoined and restrained from depriving Lindenwood of full possession and use of the premises by seeking to expel Lindenwood, making criminal allegations of trespass against Lindenwood and/or physically attempting to bar or interfere with Lindenwood’s proposed construction on and development of the [Property].”
. Specifically, the trial court found the New Building “will add over $1.6 million in current fair market value to the Premises" and "will increase [the Trusts’] reversionary interest by over 20%....”
. Additionally, the trial court held that the Trusts did not breach the covenant in the Lease to submit any dispute to arbitration because the Trusts did not "invoke the arbitration provision" and Lindenwood did not refuse arbitration.
. In their briefs, the Trusts claimed: "Although the Trusts were represented below, they were unable to file a notice of appeal through an attorney, because it was not until October 7, 2013, that the Trusts learned of the appeal deadline, when their trial counsel sent an email stating, ‘the Notice of Appeal must be filed before the end of the day today, Monday, October 7, 2013.’ "
. The Court noted that its analysis did not apply to general partnerships, which are “fundamentally different” in that, under Missouri law, "a general partnership has no legal existence apart from its members.” Naylor, 423 S.W.3d at 243 n.3 (internal quotation omitted).
. See In re Guetersloh, 326 S.W.3d 737, 740 (Tex.App.2010); Gorelick v. Montanaro, 119 Conn.App. 785,793, 990 A.2d 371 (2010); Lee v. Catron, Catron & Pottow, PA., 145 N.M. 573, 574, 203 P.3d 104 (N.M.Ct.App.2008); Ziegler v. Nickel, 64 Cal.App.4th 545, 549, 75 Cal.Rptr.2d 312 (1998); Salman v. Newell, 110 Nev. 1333, 1335, 885 P.2d 607 (1994); Back Acres Pure Trust v. Fahnlander, 233 Neb. 28, 29, 443 N.W.2d 604 (1989); C.E. Pope Equity Trust v. U.S., 818 F.2d 696, 698 (9th Cir.1987).
. The Illinois Supreme Court stated that, when deciding whether to dismiss a nonattor-ney representative’s petition, courts should consider the following factors: "whether the nonattorney’s conduct is done without knowledge that the action was improper, whether the corporation acted diligently in correcting the mistake by obtaining counsel, whether the nonattorney's participation is minimal, and whether the participation results in prejudice to the opposing party.” Downtown Disposal, 365 Ill.Dec. 684, 979 N.E.2d at 57. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283541/ | ORDER
PER CURIAM.
The Business Bank of St. Louis (“the Bank”) appeals the grant of summary judgment in favor of Old Republic National Title Insurance Company on the Bank’s claims for declaratory judgment, indemnity, and a creditor’s bill. We find no error has occurred.
*318No jurisprudential purpose would be served by a written opinion. We have, however, provided the parties a memorandum setting forth the reasons for our decision. The judgment of the trial court is affirmed under Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283542/ | Joseph M. Ellis, Judge
Appellant Charles Spearman appeals pro se from a judgment entered by the Circuit Court of Jackson County confirming the sale of Appellant’s property to the Land Bank of Kansas City Missouri. Appellant contends that the circuit court erred in sustaining the sale of his property due to delinquent taxes because Respondent, the Director of Collections for Jackson County (“the County”), failed to comply with the due process requirements in that, after all written notices were served, the County failed to take any additional reasonable steps to notify him of the tax sale. For the following reasons, the appeal is dismissed.
On January 28, 2014, the circuit court entered a judgment confirming the sale of Appellant’s property to the Land Bank of Kansas City Missouri. In its judgment, the circuit court concluded that the County “duly advertised said sale and offered [the property] for sale at public auction on three successive days” and, after not receiving a bid for Appellant’s property “equal to the full amount of taxes, interest, penalties, attorney’s fees and cost due *339thereon,” the Land Bank of Kansas City Missouri was “deemed to have bid the full amount due.”
In his sole point on appeal, Appellant contends that the circuit court’s judgment is not supported by the evidence because the County denied him his due process rights by failing to take additional reasonable steps to notify him of the tax sale. Before we can address Appellant’s point on appeal, however, we must first take up the County’s motion to dismiss this appeal. In its motion and again in its brief, the County avers that we should dismiss this appeal due to the deficiencies in Appellant’s brief and the record on appeal. We agree.
Rule 81.12(a) specifies that the record on appeal must “contain all of the record, proceedings and evidence necessary to the determination of all questions to be presented, by either appellant or respondent, to the appellate court for decision.” “It is the duty of an appellant to furnish a transcript containing a record of proceedings which he desires to have reviewed.” Cantwell v. Cantwell, 315 S.W.Bd 384, 386 (Mo.App.W.D.2010) (internal quotation omitted). In the absence of a complete record on appeal, there is nothing for the appellate court to decide. Id.
Here, Appellant failed to file a transcript of any of the proceedings before the circuit court related to either the confirmation of the sale or the foreclosure. Without a transcript, we do not know what evidence was before the circuit court with respect to the County’s steps to notify
Appellant of the sale. Therefore, the absence of a transcript prevents us from reviewing Appellant’s claim that the judgment was not supported by the evidence.
Moreover, although Appellant submitted a legal file, it does not comply with Rule 81.12. Rule 81.12(a) provides:
The legal file shall always include: the docket sheet or case record, which contains a complete summary of all events in the case; the pleadings upon which the action was tried, the verdict, the findings of the court or jury, the judgment or order appealed from, motions and orders after judgment, and the notice of appeal, together with their respective dates of filing or entry of record[.]1
Rule 81.12(a) also requires the documents in the legal file to “be arranged with a docket sheet or case record on top numbered as page 1. The oldest documents shall follow the docket sheet, with the remaining documents arranged in chronological order, ending with the notice of appeal at the bottom.”
The legal file submitted by Appellant does not contain docket sheets or all the requisite pleadings and court documents, and what is contained therein is not necessarily in chronological order. Without docket sheets or a complete and organized legal file, this Court cannot determine the procedural history of this case. Thus, the absence of docket sheets and a properly compiled legal file further hinders our ability to review the due process claims raised by Appellant on appeal.2
*340We are mindful “of the challenges that face pro se litigants, [but] judicial impartiality, judicial economy, and fairness to all parties prohibit this Court from relaxing these requirements.” Cantwell, 315 S.W.3d at 386 (internal quotation omitted). We must hold pro se parties to the same rules and standards as a party represented by licensed counsel. Id. Therefore, although we prefer to decide cases on the merits, the lack of a proper record of the proceedings below prevents us from reviewing the issues raised in this case. Ford v. Murillo, 362 S.W.3d 67, 68 (Mo.App.W.D.2012).
Accordingly, the County’s motion is granted. Appeal dismissed.
All concur.
. The parties can "agree in writing upon an abbreviated or partial record on appeal or upon a statement of the case.” Rule 81.12(a). However, no such agreement was filed with this Court.
. We further note that the County asserts that Appellant's due process claims are not preserved for appellate review because, by not participating in the foreclosure proceedings or appearing at the confirmation hearing for the sale, Appellant failed to raise such issues before the circuit court. The County contends that Appellant should have raised his constitutional claims by filing a motion to reconsider or a motion to set aside the tax *340sale with the circuit court. ''[T]o preserve constitutional questions for review on appeal, the constitutional issue must be raised in the trial court at the earliest opportunity, consistent with good pleading and orderly procedure.” Cmty. Fin. Credit Union v. Lind, 344 S.W.3d 875, 877 (Mo.App.S.D.2011) (internal quotation omitted). "[A] constitutional issue cannot be raised for the first time on appeal.” Willits v. Peabody Coal Co., 400 S.W.3d 442, 453 (Mo.App.E.D.2013). Again, without a transcript or a proper legal file, we cannot determine whether the due process issues raised by Appellant were properly preserved for our review. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283543/ | Angela T. Quigless, C.J.
I.INTRODUCTION.
Nicholas Malawey (father) appeals the judgment of the Circuit Court of St. Charles County granting mother Margaret Kosowski’s petition for appointment of guardianship of their son, S.M. In his sole point on appeal, father contends the probate court erred in entering the guardianship order when another circuit court had already exercised its authority to enter a judgment regarding the same issues and parties in a divorce proceeding. Father argues the guardianship order resulted in wasteful or inconsistent judgments. We reverse and remand for further proceedings.
II.FACTUAL AND PROCEDURAL BACKGROUND
Mother and father’s marriage was dissolved in August of 2007. During their marriage, they had a son, S.M., who was born with Down Syndrome. In its judgment of dissolution, the Circuit Court of St. Louis County granted mother and father joint legal custody of their son.
S.M. turned eighteen on February 7, 2018. On that same day, mother and stepfather, Karson Kosowski, filed a petition for appointment of guardian and conservator to obtain letters of guardianship for S.M. in the Probate Division of St. Charles County. Father filed a motion to dismiss for lack of subject matter jurisdiction. After hearing argument, the court denied the motion. Father filed a cross-petition for appointment of guardian and conservator.
On February 3, 2014, a bench trial was held at which all parties stipulated S.M. had a disability under the Probate Code and a need existed for guardianship. At the commencement of trial, father again raised the court’s lack of subject matter jurisdiction and the court heard argument. Father alleged the parenting plan in the St. Louis County dissolution remained in full force and effect and, therefore, the entry of a judgment by the probate court could create conflicting orders. The court overruled the motion.
At the hearing, neither party produced a copy of the divorce decree to the court. However, details of the custody arrangement were outlined and uncontested: mother and father had joint legal custody; no ■ modifications had been made to the custody portion of the decree; S.M. lived with his mother on weekdays and every other weekend; and, S.M. stayed with father on Wednesday evenings, every other weekend and for six weeks during the summer. Both parents made decisions for S.M.’s care. In addition, at the time of the hearing, although S-M. turned eighteen, he was currently in high school.
The court entered a judgment and order declaring S.M. a disabled and incapacitated person and appointed mother as S.M.’s guardian. The court denied step-father’s petition and father’s cross-petition for guardianship. It found there was no need for letters of conservatorship at that time. This appeal by father followed.
III.STANDARD OF REVIEW
“In a court-tried case, we will affirm the judgment below if it is supported by substantial evidence, is not against the weight of the evidence, and does not erroneously declare or apply the law.” Reppy v. Winters, 351 S.W.3d 717, 720 (Mo.App.W.D. 2011) (citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)). We view *343the evidence in the light most favorable to the trial court’s judgment, disregarding all contrary inferences and evidence. Woods ex rel. Woods v. Cory, 192 S.W.3d 450, 458 (Mo.App.S.D.2006). Although we give deference to the probate court’s factual determinations, our review of any error in applying the law is de novo. In the matter of J.L.B, 280 S.W.Sd 147, 152 (Mo.App.S.D.2009).
IV. DISCUSSION
In his sole point of error, father argues the probate court lacked “jurisdiction” because it erred in entering a guardianship order when the Circuit Court of St. Louis County had already exercised its authority to enter a judgment regarding the same issues and parties in a divorce proceeding. Specifically, he alleges the probate court entered an order which was inconsistent with the dissolution judgment in St. Louis County. We find the probate court had jurisdiction, but legally erred in entering a judgment conflicting with the dissolution judgment that was still in effect.
As a threshold matter, we will address father’s allegation that the court “lackfed] jurisdiction” and should have refused to act on the Petition for Guardianship.
The Supreme Court has clarified that “Missouri courts recognize two kinds of jurisdiction: subject matter jurisdiction and personal jurisdiction.” J.C.W. ex rel. Webb v. Wyciskalla, 275 S.W.3d 249, 252 (Mo. banc 2009). “[Pjersonal jurisdiction refers quite simply to the power of a court to require a person to respond to a legal proceeding that may affect the person’s rights or interests.” Id. at 253. Here, personal jurisdiction is proper as it is undisputed that all parties to this action are Missouri residents and appeared voluntarily before the court. See id. (“Even before [Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565 (1877) ], the power of the state courts to exercise jurisdiction over persons within the state ... was unquestioned.”).
“Subject matter jurisdiction, in contrast to personal jurisdiction, is not a matter of a state court’s power over a person, but the court’s authority to render a judgment in a particular category of case.” Id. at 253. “[T]he subject matter jurisdiction of Missouri’s courts is governed directly by the state’s constitution.” Id. The Missouri Constitution specifically recognizes an associate circuit judge’s jurisdiction to hear probate matters. Section 17, Article V, Missouri Constitution. “The probate division of the circuit court may hear and determine all matters pertaining to probate business, [including] ... the appointment of guardians and conservators of minors and incapacitated, and disabled persons_” Mo.Rev.Stat. § 472.020.1 The probate division has exclusive jurisdiction to hear guardianship cases. McCoy v. Rivera, 926 S.W.2d 78, 81 n. 2 (Mo.App.W.D.1996).
We find father’s argument that the probate court lacked “jurisdiction” and should have “refused to act” without merit. Here, the probate court has personal and subject matter jurisdiction to appoint a guardian for a disabled person over the age of 18. Nevertheless, as father contends, the issue is whether the court legally erred as its order produced an inconsistent judgment. Father maintains the dissolution judgment of the St. Louis County Circuit Court was still in effect for child custody purposes and claims the probate court’s order granting mother sole guardianship conflicted with the previous judgment granting parents joint legal custody.
*344“Many types of cases may present issues where more than one court properly has subject matter jurisdiction over the same matter or issue.” Kelly v. Kelly, 245 S.W.3d 308, 312-13 (Mo.App.W.D.2008). “One of the most common is the area of child custody.” Id. at 313. “ ‘In Missouri, the custody of a child may be adjudicated in at least five types of actions: (1) dissolution; (2) habeas corpus; (3) juvenile; (4) guardianship; and (5) paternity.’ ” Id. (quoting In the Interest of Moreau, 161 S.W.3d 402, 405-06 (Mo.App.S.D.2005)). Either the probate division or a court hearing a dissolution of marriage issue can decide child custody. Sections 452.375.5(5), 472.020, and 475.030.4; Kelly, 245 S.W.3d at 313. “Where multiple courts have subject matter and personal jurisdiction over the issue and the parties, a court commits an error of law if exercising its authority to enter a judgment in the case results in wasteful duplication or inconsistent judgments.” In re J.M.J., 404 S.W.3d 423, 430 (Mo.App.W.D.2013). “It is axiomatic that inconsistent judgments cannot ordinarily exist together.” Kelly, 245 S.W.3d at 314.
Because both the probate and dissolution court had personal and subject matter jurisdiction and issued orders concerning custody, the pertinent issue is whether the probate court’s order conflict- . ed with the parenting plan in the dissolution judgment. Before we reach the question of whether the orders were inconsistent, we must determine whether the custody provision included in the 2007 dissolution was still in effect when the probate court rendered its judgment in 2014. As S.M. had turned eighteen and was enrolled in high school, this necessitates a consideration of whether S.M. was emancipated for purposes of custody in the dissolution judgment.
In Scruggs v. Scruggs, 161 S.W.3d 383 (Mo. App W.D.2005), the court determined the emancipation provisions pertaining to support in section 452.340.3 applied to “initial custody orders in dissolution proceedings, under § 452.375, as well as modifications of those orders, under § 452.410, such that the age of majority for purposes of custody would be the same as for support.” Section 452.340.3 addresses emancipation as follows:
Unless the circumstances of the child manifestly dictate otherwise and the court specifically so provides, the obligation of a parent to make child support payments shall terminate when the child: ...
(5) Reaches age eighteen, unless the provisions of subsection 4 or 5 of this section apply....
In subsections 4 and 5, the legislature carved out two exceptions where parental support continues beyond a child’s eighteenth birthday. The Scruggs court extended these exceptions to custody, concluding, pursuant to section 452.340.3, a child reaches the age of majority for purposes of child custody at age 18, unless the circumstances of section 452.340.4 or section 452.340.5 apply. Id. at 392. The exception under section 452.340.5 applies when “a child reaches age eighteen ... [and] is enrolled in and attending a secondary school program of instruction....”2
Here, it was undisputed at trial that S.M. was 18 and still attending high school. Thus, under Scruggs, the exception under *345section 452.340.5 applied and S.M. was not emancipated for purposes of the dissolution custody provisions of Chapter 452. Moreover, as S.M. was not emancipated, the provisions of the divorce judgment relating to custody were not yet terminated when the probate court entered its judgment and order.
Because both courts had jurisdiction of the same subject matter and the dissolution was still in effect with respect to custody, the question becomes whether the probate court’s order was inconsistent with the dissolution judgment.
At the probate hearing, although the divorce judgment was not provided to the court, S.M.’s parents testified that they shared joint legal custody of S.M. pursuant to the dissolution. Further, they indicated they understood the concept of joint legal custody and that the court had allocated rights and responsibilities to both of them. Both parents had communicated and made decisions for S.M. since the divorce.
Father argues that the probate court’s judgment stripped him of his right to share in the decision making for S.M. and granted mother sole decision-making authority. To determine whether the grant of guardianship to mother was inconsistent with joint legal custody, we must examine the respective statutes. Section 475.120 of the probate code defines the duties of a guardian as follows:
The general powers and duties of a guardian of an incapacitated person shall be to take charge of the person of the ward and to provide for the ward’s care, treatment, habilitation, education, support and maintenance; and the powers and duties shall include, but not be limited to, the following:
(1)Assure that the ward resides in the best and least restrictive setting reasonably available;
(2) Assure that the ward receives medi- . cal care and other services that are needed;
(3) Promote and protect the care, comfort, safety, health, and welfare of the ward;
(4) Provide required consents on behalf of the ward;
(5) To exercise all powers and discharge all duties necessary or proper to implement the provisions of this section.
On the other hand, “joint legal custody” means that “the parents share the decision-making rights, responsibilities and authority relating to the health, education and welfare of the child, and, unless allocated, apportioned or decreed, the parents shall confer with one another in the exercise of decision-making rights, responsibilities and authority.” Section 452.375.1(2).
Although the grant of guardianship to mother allows her to make decisions with father, it does not require her to share general powers and duties with him. As guardian, mother has authority to “take charge of’ S.M. and “exercise all powers ... necessary” to “provide for [his] care, treatment, habilitation, education, support and maintenance.” In contrast, the divorce judgment called for shared decision-making, responsibilities and authority, and required that parents “shall confer.” As such, we find the judgments are inconsistent as to which party makes decisions for S.M. We hold the probate court legally erred in entering a judgment conflicting with the dissolution that was still in effect. See Kelly, 245 S.W.3d at 314 (“[I]t was simply legally erroneous to enter a conflicting judgment while another ... judgment involving the same issue [was] still in effect”).
y. CONCLUSION
We reverse and remand for further proceedings consistent with this opinion.
*346Glenn A. Norton, J., Concurs in the opinion of Chief Judge Quigless and the separate concurring opinion of Judge Richter
Roy L. Richter, J., Concurs in separate opinion
. All statutory references are to RSMo 2000 as supplemented unless otherwise indicated.
. The relevant portion of section 452.340.5 is as follows:
If when a child reaches age eighteen, the child is enrolled in and attending a secondary school program of instruction, the parental support obligation shall continue, if the child continues to attend and progresses toward completion of said program, until the child completes such program or reaches age twenty-one, whichever first occurs. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283544/ | ROY L. RICHTER, Judge.
I reluctantly concur in the result reached, as we are constrained by the analysis in Scruggs v. Scruggs, 161 S.W.3d 383 (Mo. App W.D.2005), which holds that child custody and child support are subject to the same temporal limits. If Scruggs is followed, the dissolution decree will govern custody and support for the life of S.M. Section 452.340 RSMo3 states:
3. Unless the circumstances of the child manifestly dictate otherwise and the court specifically so provides, the obligation of a parent to make child support payments shall terminate when the child:
(1) Dies;
(2) Marries;
(3) Enters active duty in the military;
(4) Becomes self-supporting, provided that the custodial parent has relinquished the child from parental control by express or implied consent;
(5) Reaches age eighteen, unless the provisions of subsection 4 or 5 of this section apply; or
(6) Reaches age twenty-one, unless the provisions of the child support order specifically extend the parental support order past the child’s twenty-first birthday for reasons provided by subsection 4 of this section.
4. If the child is physically or mentally incapacitated from supporting himself and insolvent and unmarried, the court may extend the parental support obligation past the child’s eighteenth birthday.
(emphasis added).
While the principal opinion focuses on Section 452.340.5, I believe that Section 452.340.4 (above) is the operative portion of the statute. The parties agree that S.M. is physically or mentally incapacitated from supporting himself, and will remain insolvent and unmarried. The parties agree that S.M. needs a guardian, as both filed petitions to be appointed S.M.’s guardian. The rationale of Scruggs leads to the inescapable conclusion that if the dissolution court extends the parental support obligation (which would also extend the custody order), there will never be the need for a guardianship proceeding, as the custody provisions of the dissolution judgment will control custody as well as parental support obligations for as long as the support obligation is extended. Inasmuch as the Scruggs opinion holds that support and custody go hand-in-hand, it is clear that under the facts of this case, S.M. will never be emancipated, and the issues of support (and therefore, custody) will forever be governed by the terms of the parties’ dissolution decree. Unanswered is whether medical professionals are willing to accept a dissolution decree rather than a guardianship order to authorize care for someone over the age of 18 who is unable to provide knowing consent for treatment. Resolution of the question of whether child custody and child support are “co-extensive” and the determination of when a disabled or incapacitated person is no longer a “child” and therefore subject to the guardianship provisions of the probate code is one that must be answered by the Legislature.
. All statutory references are to RSMo 2000 as supplemented. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283545/ | ORDER
Per curiam:
B.T. appeals a judgment terminating his parental rights to his son, P.T., and his daughter, S.T. Because the trial court did not err in finding that clear and convincing evidence established a statutory ground for terminating B.T.’s parental rights, and did not err in finding by a preponderance of the evidence that termination of B.T.’s parental rights was in the best interests of P.T. ánd S.T., we affirm. Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283546/ | ORDER
Per Curiam:
Mr. Frederick Alfred Davis, Jr., appeals a conviction of the Class B misdemeanor of peace disturbance.
For reasons stated in the memorandum provided to the parties, we affirm. Rule 30.25(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283547/ | ORDER
PER CURIAM:
Michael Fisher Jr. appeals his conviction following a jury trial for the class B felony of possession of a controlled substance with intent to deliver. § 195.211, RSMo Cum. Supp. 2013. Fisher challenges the sufficiency of the evidence to support the conviction. Because a published opinion would have no precedential value, a memorandum has been provided to the parties.
The judgment of conviction is affirmed. Rule 30.25(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283548/ | ORDER
PER CURIAM.
In this consolidated appeal, Mother appeals the judgments terminating her parental rights to D.A.K., A.C.K., L.G.K., and M.J.T. The judgments are supported by substantial evidence and are not against the weight of the evidence. No error of law appears.
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 judgments of the trial court are affirmed under Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283549/ | Order
Per Curiam
Timothy Anders appeals from his convictions on two counts of felony child abuse. He contends the circuit court erred in refusing to admit evidence that the victim’s mother, who was charged with crimes similar to Anders’s, fled the state while her case was pending. Anders argues that evidence of this flight would have aided his defense that the victim’s mother committed the abuse on her own. For reasons explained in a Memorandum provided to the parties, we find no error and affirm the convictions.
AFFIRMED. Rule 30.25(b) | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283550/ | ORDER
PER CURIAM
Phillip and Kathy Samuels (“Plaintiffs”) appeal from the trial court’s judgment finding that Defendant Fairfield Condominium Association, Inc. (“Fairfield”) was not responsible for the maintenance or repairs to Plaintiffs’ outdoor wall, sidewalk, or interior damage. We have reviewed the briefs of the parties and the record on appeal and find no error of law. No jurisprudential purpose would be served by a written opinion. However, the parties have been furnished with a memorandum for their information only, setting forth the facts and reasons for this order.
The judgment is affirmed pursuant to Rule 30.25(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283551/ | *381Order
Per Curiam:
Jewell Saunders appeals, following an evidentiary hearing, the denial of his Rule 29.15 motion for post-conviction relief. Saunders claims that trial counsel provided ineffective assistance by presenting Saunders’s defense through his former cellmate, rather than through his sister and nephew. Saunders suggests that the jury rejected his defense because his former cellmate was not credible, but if trial counsel had used Saunders’s sister and nephew instead, the jury would have accepted his defense. We disagree. Because trial counsel’s choice of witnesses is a matter of trial strategy, because her decision in this case was a reasonable choice of available alternatives, and because* Saunders suffered no prejudice from counsel’s reasonable strategic decision, the motion court did not err in overruling his Rule 29.15 motion. We affirm. Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283552/ | Order
Per Curiam:
Appellant Agile Specialty Transportation appeals the decision of the Labor and Industrial Relations Commission, dismissing Agile’s appeal for failure to attend the scheduled hearing without good cause. Finding no error, we affirm. Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283553/ | JUSTICE LEHRMANN
delivered the opinion of the Court.
In conjunction with the Texas Tort Claims Act’s limited waiver of governmental immunity, section 101.106 of the Act gives a measure of protection to government employees who are sued in tort for conduct within the scope of their employment. These employees are entitled to dismissal on proper motion, and the suit must proceed against the government or not at all. In this case, the plaintiff sued a governmental unit and several of its employees for negligence. In response, the unit filed a motion to dismiss its employees under subsection 101.106(e), which provides that “[i]f a suit is filed under this chapter against both a governmental unit and any of its employees, the employees shall immediately be dismissed on the filing of a motion by the governmental unit.” Tex. Civ. Prac. & Rem. Code § 101.106(e). Before the trial court ruled on the motion, the plaintiff filed an amended petition adding federal claims against the employees pursuant to 42 U.S.C. § 1983. Although such claims are not brought “under” the Tort Claims Act, the government argues that they are irrelevant to the subsection (e) motion because the employees’ right to dismissal was perfected the moment the motion was filed. However, this position is supported by neither the Act’s text nor its purpose. Subsection 101.106(e) of the Tort Claims Act does not contemplate dismissal of claims asserted independently of that Act. We hold that the trial court properly denied the motion to dismiss, and we affirm the court of appeals’ judgment.
I. Background
Mary Cannon’s son, Patrick Tate Dyess, was a resident of Brenham State School,1 a *413state-supported living center operated by the Texas Department of Aging and Disability Services (the Department). Anthony V. Watson, Dwane B. Hubbard,2 and Aretha L. Turner (the Employees) were employed by the School. The case arises out of an incident that occurred on September 12, 2003, in which Dyess died after being physically restrained by the Employees.
According to the School’s investigation report,3 Dyess began engaging in disruptive behavior shortly before dinner on that day. Turner sat at a desk in the living room documenting his behavior while other employees escorted Dyess to his bedroom. The report states that when Dyess returned to the living room, he attacked Turner, punching her in the mouth and then grabbing her blouse and her hair. Another employee, Randy Nunn, came to Turner’s aid, and all three fell to the floor when Dyess tripped on a piece of furniture. Watson then placed Dyess in a physical hold while Hubbard and Turner restrained his legs. Eventually, Dyess stated that he had calmed down, and the Employees agreed to release him. However, when the Employees stood up, Dyess became nonresponsive. After Nunn checked Dyess’s vital signs, Turner and Watson began to perform CPR while other workers called emergency services. Dyess later died, and his mother brought suit individually and on behalf of his estate.
Cannon sued both the Department and the Employees, alleging in her original petition that the Department was negligent in hiring, training, and supervising its employees and that the Employees negligently used excessive force to discipline Dyess. Following a protracted venue dispute resulting in the case’s transfer from Grimes to Washington County, the Department filed a plea to the jurisdiction, asserting governmental immunity. The Department and the Employees also filed motions to dismiss the Employees pursuant to subsections 101.106(a) and (e) of the Texas Tort Claims Act.
While the motions to dismiss were pending, Cannon amended her petition to add claims under 42 U.S.C. § 1983 for violations of Dyess’s Fourth and Fourteenth Amendment constitutional rights against both the Department and the Employees individually. In supplemental briefing on the motions to dismiss filed after Cannon amended her petition, the defendants focused solely on subsection (e) as a basis for the Employees’ dismissal. Cannon subsequently agreed to dismiss all common-law tort claims, and the trial court dismissed those claims with prejudice. With only section 1983 claims remaining against the defendants, the trial court denied the Department’s plea to the jurisdiction and denied the motions to dismiss the Employees. The Department and the Employees filed an interlocutory appeal. Tex. Civ. Prac. & Rem. Code § 51.014(a)(5), (8); Austin State Hosp. v. Graham, 347 S.W.3d 298, 300-01 (Tex. 2011) (per curiam).4
The court of appeals reversed the trial court’s order denying the Department’s plea to the jurisdiction, holding that the *414Department’s immunity from suit had not been waived.5 383 S.W.3d 571, 575-76. However, the court of appeals affirmed the trial court’s order denying the motions 'to dismiss the Employees under subsection 101.106(e), remanding the case to the trial court for further proceedings on Cannon’s section 1983 claims. The court of appeals disagreed with the Department’s contention that the section 1983 claims were not properly “before the court” as a result of the Department’s subsection (e) motion. Id. at 577-80. More specifically, the court of appeals rejected the Department’s argument that, because subsection (e) provides that governmental employees shall be dismissed “immediately” upon the filing of the governmental unit’s motion, the Employees were effectively dismissed at the time the motion was filed. Id. at 578. Instead, the court held that the Employees remained parties to the suit until the trial court signed an order dismissing them pursuant to subsection (e), permitting Cannon to amend her petition to assert the section 1983 claims. Id. at 578-80.
The court of appeals did not address whether the Employees were entitled to dismissal under subsection 101.106(a),6 noting that the defendants had not argued subsection (a) as a ground for dismissal of the section 1983 claims in the trial court. Id. at 577, 580. We granted the Department and the Employees’ petition for review, which presents as its sole issue whether the trial court erred in denying the Department’s motion to dismiss under subsection 101.106(e).7
II. Analysis
A. The Tort Claims Act and the Election-of-Remedies Provision
The Tort Claims Act, contained in chapter 101 of the Texas Civil Practice and Remedies Code, provides a limited waiver of immunity for tort suits against the government. Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex.2008). The Legislature originally enacted section 101.106 of the Act, now entitled “Election of Remedies,” in response to plaintiffs’ attempts “to avoid the Act’s damages cap or other strictures by suing governmental employees” rather than the governmental unit itself.8 Id. at 656.
*415The current version of the provision serves the additional purpose of easing the burden placed on governmental units and their employees in defending duplicative claims, in part by “favorfing] the expedient dismissal of ... employees when suit should have been brought against the government” under the Act. Tex. Adjutant Gen.’s Office v. Ngakoue, 408 S.W.3d 350, 355 (Tex.2013). Subsections (e) and (f) of the statute provide mechanisms for the dismissal of these employees:
(e) If a suit is filed under this chapter against both a governmental unit and any of its employees, the employees shall immediately be dismissed on the filing of a motion by the governmental unit.
(f) If a suit is filed against an employee of a governmental unit based on conduct within the general scope of that employee’s employment and if it could have been brought under this chapter against the governmental unit, the suit is considered to be against the employee in the employee’s official capacity only. On the employee’s motion, the suit against the employee shall be dismissed unless the plaintiff files amended pleadings dismissing the employee and naming the governmental unit as defendant on or before the 30th day after the date the motion is filed.
Tex. Civ. Prac. & Rem. Code § 101.106(e), (f). We have held that tort claims against the government are (or could be) brought “under this chapter” regardless of whether the Tort Claims Act waives immunity for those claims. Franka v. Velasquez, 332 S.W.3d 367, 379-80 (Tex.2011); Garcia, 253 S.W.3d at 659 (“Because the Tort Claims Act is the only, albeit limited, avenue for common-law recovery against the government, all tort theories alleged against a governmental unit, whether it is sued alone or together with its employees, are assumed to be ‘under [the Tort Claims Act]’ for purposes of section 101.106.”). However, claims asserted pursuant to independent statutory waivers of immunity are not brought “under” the Act. Garcia, 253 S.W.3d at 659.
B. Application of Subsection 101.106(e)
The original petition in this suit, which was the live pleading at the time the Department filed its subsection (e) motion, asserted only state common-law tort theories of recovery against both the Department and the Employees for conduct within the scope of their employment. Cannon disputes neither that these claims were brought under the Tort Claims Act nor that subsection (e) mandated their dismissal.9 Tex Civ. Prac. & Rem. Code § 101.106(e). But what effect, if any, did Cannon’s subsequently filed amended petition asserting section 1983 claims against the Employees have on the merits of the motion?
In answering this question, we first revisit the scope of the phrase “under this chapter” in the Tort Claims Act’s election-of-remedies provision. In Garcia, we held that a claim against the government under the Texas Commission on Human Rights Act (TCHRA) is not a suit filed under the Tort Claims Act, explaining that “the Tort Claims Act expressly provides that the remedies it authorizes ‘are in addition to any other legal remedies,’ and the TCHRA provides a statutory remedy for unlawful discrimination.” 253 S.W.3d at 659 (quot*416ing Tex. Civ. Prac. & Rem. Code § 101.003). Similarly, section 1983 provides a statutory remedy to individuals whose constitutional rights are violated by state officials. Stotter v. Univ. of Tex. at San Antonio, 508 F.3d 812, 821 (5th Cir. 2007). Accordingly, the section 1983 claims Cannon asserts against the Employees in her amended petition are not brought under the Tort Claims Act. See Estate of Sorrells v. City of Dall., 45 Fed.Appx. 325, 2002 WL 1899592, at *4 (5th Cir. July 10, 2002) (per curiam) (holding that former section 101.106 did not apply where only section 1983 claims had been litigated against the governmental unit because such claims are not “under” the Tort Claims Act). In turn, if Cannon’s amended petition is the operative pleading, then the trial court properly denied the Department’s motion, as subsection 101.106(e) does not contemplate or require dismissal of section 1983 claims against individual government employees, or any other claim not brought under the Tort Claims Act.10
The Department argues, however, that an amended pleading filed while a subsection (e) motion is pending may not be considered by the trial court in ruling on the motion. Relying heavily on subsection (e)’s inclusion of the word “immediately,” the Department contends that “[e]ntitlement to a mandatory, immediate dismissal thus attaches” on the government’s filing a subsection (e) motion. The Department therefore concludes that subsequent amendments to a plaintiffs petition cannot defeat that perfected right. The Department recognizes, however, that actual dismissal of government employees requires a court order premised on findings that (1) the plaintiff brought suit under the Tort Claims Act, and (2) the individual defendants are employees of the governmental unit. Cannon responds that, because court action is required to effectuate dismissal of government employees, nothing in subsection (e) precludes a plaintiff from amending her petition before that dismissal in accordance with applicable procedural rules. See Tex. R. Civ. P. 63 (allowing parties to amend their pleadings without leave of court more than seven days before trial so long as the amendment does not “operate as a surprise to the opposite party”). For the reasons discussed below, we hold that Cannon’s interpretation of subsection (e) is the correct one.
The Department erroneously contends that Austin State Hospital v. Graham, 347 S.W.3d 298 (Tex. 2011), “dictates the outcome of this case” in its favor. In Graham, the plaintiff brought health care liability claims against a state hospital and two employee physicians. Id. at 299. The hospital filed a motion to dismiss the physicians under subsection (e), but, before the trial court signed a dismissal order, the plaintiff nonsuited his claims against the hospital. Id. The plaintiff argued that his *417nonsuit precluded the trial court from ruling on the hospital’s subsection (e) motion. Id. We rejected that argument, holding that the hospital was entitled to a ruling on its subsection (e) motion notwithstanding the nonsuit. Id. at 301.
Importantly, we did not hold in Graham, that a subsection (e) motion precludes consideration of all later-filed pleadings. Rather, the procedural rule governing non-suits was central to Graham’s holding. Rule 162 provides that “[a] nonsuit cannot ‘prejudice the right of an adverse party to be heard on a pending claim for affirmative relief.’ ” Id. (quoting Tex. R. Civ. P. 162). The hospital’s subsection (e) motion qualified as such a claim, which could not be mooted by the plaintiffs nonsuit. But Rule 162 is not at issue in this case. Further, the disputed pleading here did not omit claims against the government in an attempt to preserve tort claims against employees that would otherwise be subject to dismissal. Indeed, Cannon does not dispute that, by asserting common-law tort claims against both the Department and the Employees, she made an irrevocable election under subsection (e) to pursue those claims against the government only, even though the court of appeals ultimately determined that the government was immune from suit. Garcia, 258 S.W.3d at 657 (noting that section 101.106 requires the plaintiff to make an irrevocable election between “suing the governmental unit under the Tort Claims Act” if the employee acted within the scope of his employment “or proceeding against the employee alone” if he acted independently). But that election did not extend to section 1983 claims against the individual Employees that were not brought under the Tort Claims Act and thus were not otherwise subject to dismissal.11 Unlike the Department, we see nothing in the language of subsection (e) or the Tort Claims Act as a whole that foreclosed Cannon from amending her petition to add these claims.12
To that end, we agree with the court of appeals that the Department places too much stock in subsection (e)’s inclusion of the word “immediately.” The court of appeals concluded that such language indicates only that “dismissal by the trial court is mandatory, not discretionary, and [that] there are no further matters the court may entertain relative to the employees before it signs an order of dismissal.” 383 S.W.3d at 578. A comparison of the provision to subsection (f) provides context for this conclusion. Subsection (f) may be invoked when a suit that could have been brought under the Act against a. governmental unit is filed against the unit’s employee based on conduct within the general scope of his employment. See Tex. Civ. Prac. & Rem. Code § 101.106(f). Such a suit must be dismissed on the employee’s motion “unless the plaintiff files amended pleadings dismissing the employee and *418naming the governmental unit as defendant on or before the 30th day after the date the motion is filed.” Id. Subsection (e) has no similar grace period, which makes sense because a subsection (e) motion is proper only when the government is already a named party. Tex. Adjutant Gen.’s Office v. Ngakoue, 408 S.W.3d 350, 358 (Tex. 2013). But that does not translate to an absolute right to dismissal upon the motion’s filing. Instead, a court order, along with certain findings, is required to effectuate dismissal.13 Accordingly, we do not construe subsection (e) to conflict with our liberal procedural rules governing pleading amendments.
Considering subsection (e) in conjunction with the Tort Claims Act as a whole confirms this interpretation. The Act establishes when a “governmental unit in the state is liable” and in turn waives sovereign immunity to suit “to the extent of liability created by [the Act].” Tex. Civ. Prac. & Rem. Code §§ 101.021, 101.025. The Act thus opens the door to government liability in certain tort actions, while the election-of-remedies provision narrows that opening. See Newman v. Obersteller, 960 S.W.2d 621, 622 (Tex. 1997) (describing former section 101.106 as an exception to the Tort Claims Act’s waiver of immunity). The role of subsections (e) and (f) is to ensure that tort claims within the purview of the Act do not proceed against a government employee for conduct within the scope of his employment. See Ngakoue, 408 S.W.3d at 355. But those provisions simply do not apply to claims against the employee individually that are outside the Act’s scope.
C. Subsection 101.106(a)
The Department argues that this interpretation of the statute leads to an arbitrary result, asserting that if Cannon had originally sued only the Department in tort and then sought to amend her petition to allege section 1983 claims against newly added employees,' subsection 101.106(a) would clearly bar those claims. See Tex. Civ. Prac. & Rem. Code § 101.106(a) (“The filing of a suit under this chapter against a governmental unit constitutes an irrevocable election by the plaintiff and immediately and forever bars any suit or recovery by the plaintiff against any individual employee of the governmental unit regarding the same subject matter.”). The Department contends that subsection (e) does not give a plaintiff flexibility to pursue claims against an employee where subsection (a) would not, merely because the plaintiff initially sued both the government and its employees rather than' the government only.
Leaving aside that subsection (a) is not at issue' in this case, we note that the Department’s interpretation leads to a result that seems just as arbitrary. The Department’s position is that the filing of a subsection (e) motion to dismiss perfects the employee’s right to dismissal under that provision, implying that the trial court may consider an amended petition so long as it is filed before the subsection (e) motion.14 In this case, Cannon filed her origi*419nal petition on March 15, 2005. The Department filed its subsection (e) motion over four-and-a-half years later on October 21, 2009. Under the Department’s interpretation, subsection (e) would not have precluded the trial court from considering a section 1988 claim filed the day before the subsection (e) motion, meaning a plaintiff would still have greater flexibility under subsection (e) than subsection (a).
In any event, we need not and do not decide the outcome of a hypothetical set of facts under a provision that is not before us. Nor do we address or resolve the potential constitutional concerns, which were not raised by the parties and were discussed only briefly at oral argument, that may arise when state law poses a barrier to federal claims.15
III. Conclusion
We hold that, when a governmental unit files a motion to dismiss under subsection 101.106(e), the plaintiff is not foreclosed from amending her petition in accordance with applicable procedural rules to assert claims that are not brought under the Tort Claims Act. We further hold that such claims are properly before the court for its consideration in ruling on the subsection (e) motion. Because Cannon’s section 1988 claims against the individual Employees are not brought under the Tort Claims Act, subsection (e) does not mandate their dismissal. Accordingly, we hold that the trial court properly denied the Department’s subsection (e) motion, and we affirm the court of appeals’ judgment.
. Brenham State School has changed its name to Brenham State Supported Living Center.
. The record reflects several different spellings of Mr. Hubbard’s first name. We have employed the spelling utilized in Mr. Hubbard's own pleadings.
. Because the case was ‘dismissed at an early stage, the report is the only document in the record containing any detail about the underlying incident. We provide that detail for context, but express no opinion regarding the report’s accuracy.
.Cannon argues that we should reconsider Graham’s holding that section 51.014 authorizes an interlocutory appeal of an order denying a subsection 101.106(e) motion. We decline to do so.
. Cannon does not challenge this portion of the court of appeals’ judgment, and we do not address it.
. Subsection (a) states: "The filing of a suit under this chapter against a governmental unit constitutes an irrevocable election by the plaintiff and immediately and forever bars any suit or recovery by the plaintiff against any individual employee of the governmental unit regarding the same subject matter.” Tex. Civ. Prac. & Rem. Code § 101.106(a).
. The defendants do not address the denial of the Employees’ separately filed motion to dismiss. Accordingly, neither do we, though we note that subsection (e) provides for dismissal upon "the filing of a motion by the governmental unit." Tex. Civ. Prac. & Rem. Code § 101.106(e) (emphasis added); see also Tex. Adjutant Gen.’s Office v. Ngakoue, 408 S.W.3d 350, 358 (Tex. 2013) (“By filing such a [subsection (e) ] motion, the governmental unit effectively confirms the employee was acting within the scope of employment and that the government, not the employee, is the proper party.”).
.As originally enacted, section 101.106 was entitled "Employees Not Liable After Settlement or Judgment” and provided in its entirety:
A judgment in an action or a settlement of a claim under this chapter bars any action involving the same subject matter by the claimant against the employee of the governmental unit whose act or omission gave rise to the claim.
Act of May 17, 1985, 69th Leg., R.S., ch. 959, § 1, 1985 Tex. Gen. Laws 3242, 3305 (amended 2003) (current version at Tex. Civ. Prac. & Rem. Code § 101.106).
. As noted above, Cannon agreed to dismiss all tort claims before the trial court ruled on the Department’s motion.
. Although subsection (e) references the filing of a “suit” and dismissal of the "employ- ■ ees” rather than the filing and dismissal of particular claims, the propriety of dismissal must be evaluated on a claim-by-claim basis to give effect to the statute. See Garcia, 253 S.W.3d at 659 (explaining that, where both common-law tort claims and a TCHRA claim were asserted against the governmental unit, the "suit under the TCHRA” was "not ‘a suit filed under this chapter’ and would not come within subsection (e)'s purview” (quoting Tex. Civ. Prac. & Rem. Code § 101.106(e))); see also City of Arlington v. Randall, 301 S.W.3d 896, 904-05 (Tex.App.-Fort Worth 2009, pet. denied) (holding that subsection (e) required the dismissal of claims against an employee for negligence and damages for alleged state constitutional violations, but did not require dismissal of a claim for a declaratory judgment for such violations); Golden v. Austin Cnty. Sheriffs Dep’t, No. H-09-817, 2009 WL 1835448, at *5 (S.D. Tex. June '26, 2009) (holding that subsection (e) required the dismissal of tort claims against employees, but not section 1983 claims).
. We express no opinion on the merits of the section 1983 claims.
. Several courts of appeals have held that “[s]ubsequent amended pleadings by the plaintiff filed after the government’s filing of its [subsection (e) ] motion to dismiss the employee do not moot the right created by the filing of the motion.” Villasan v. O’Rourke, 166 S.W.3d 752, 758 (Tex.App.-Beaumont 2005, pet. denied); see also Randall, 301 S.W.3d at 903 (citing Villasan for the proposition that the government’s filing of a subsection (e) motion “perfectfs] its statutory right to a dismissal of its employee" and that any later-filed amended petitions are irrelevant to the merits of the motion); Brown v. Ke-Ping Xie, 260 S.W.3d 118, 122 (Tex.App.-Houston [1st Dist.] 2008, no pet.) (same). While the results of those cases are not necessarily inconsistent with Graham or this opinion, we disapprove of those decisions to the extent they hold that an amended petition filed while a subsection (e) motion is pending is never properly considered.
. By contrast, a nonsuit is effective without a court order immediately when notice is filed or announced in open court. FKM P'ship, Ltd. v. Bd. of Regents of Univ. of Hous. Sys., 255 S.W.3d 619, 632-33 (Tex. 2008) (holding that filing an amended petition'that omits a previously asserted cause of action "effectively nonsuits or voluntarily dismisses the omitted claims,” which "are effectively dismissed at the time the amended pleading is filed”).
. The Department does not expressly concede this point, stating merely that we need not decide the effect of a pre-motion amended pleading. But its analysis of the language in subsection (e) would seem to mandate that result.
. A state court may decline to hear a federal cause of action only when (1) Congress expressly ousts state courts of jurisdiction, or (2) "[wjhen a state court refuses jurisdiction because of a neutral state rule regarding the administration of the courts.” Haywood v. Drown, 556 U.S. 729, 735, 129 S.Ct. 2108, 173 L.Ed.2d 920 (2009) (citation and internal quotation marks omitted). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283555/ | MEMORANDUM OPINION ON REMAND1
LEE ANN DAUPHINOT, Justice.
In this case on remand from the Supreme Court of Texas, Appellants Rich-mont Holdings, Inc.; Nukote Holding, Inc.; Nukote International, Inc.; Ink-brary, LLC; Superior Acquisitions LLC; John P. Rochon, Sr.; John P. Rochon, Jr.; Kelly Kittrell; Russell Mack; C & R Services, Inc.; and Kenneth R. Schlag (collectively the Richmont parties) appeal from the trial court’s order denying their motion to compel arbitration of the claims brought against them by Appellees Jon Blake and Superior Recharge Systems, L.L.C. (collectively the Blake parties). In their sole issue on appeal, the Richmont parties argue that the Blake parties failed to demonstrate a waiver of the arbitration provision. Because we hold that the Richmont parties substantially invoked the judicial process to the prejudice of the Blake parties, we affirm.
Background
The Blake parties file this lawsuit
In June 2008, the Blake parties filed suit in Denton County against Richmont Holdings, Inc.; Nukote Holding, Inc.; Nukote International, Inc.; Inkbrary, LLC; Superior Acquisitions LLC; John P. Rochon, Sr.; John P. Rochon, Jr.; Kelly Kittrell; and Russell Mack. The Blake parties sought a declaratory judgment that a covenant not to compete — signed by Jon Blake in an employment agreement related to a transaction involving the sale of Superior Recharge to Superior Acquisitions — was unenforceable. Blake also sought injunc-tive relief.
The Richmont parties moved to transfer venue to Collin County. In an amended motion, they sought to transfer venue to Dallas County based upon a venue provision in Jon Blake’s employment agreement. They argued alternatively that Collin County was the proper county for the suit. When the Blake parties added C & R Services and Kenneth Schlag as defendants, those defendants filed their own *446motion to transfer venue to Dallas, or, alternatively, Collin County.
On October 20, 2008, Superior Acquisition sued Jon Blake in Dallas County for breach of contract, breach of fiduciary duty, and civil theft. The suit was based on “Blake’s failure to perform his duties under the terms of his employment contract, and his misappropriation of company funds.” The Dallas County trial court abated that case.
The Richmont parties file a motion for continuance
The Blake parties filed a motion seeking to compel discovery and requesting discovery sanctions. The motion was set for a hearing on December 21, 2009. The Rich-mont parties filed a motion for continuance on December 18, 2009. The Richmont parties’ attorney stated that he had suffered a medical emergency, had been ordered not to walk or put pressure on his foot, and was under the influence of “strong pain medication.” No order on the motion appears in the record, but on January 6, 2010, the trial court signed an order noting that it had conducted the hearing on December 21. The order instructed the Richmont parties to respond without objection to each of the Blake parties’ discovery requests and to deliver any documents sought by the Blake parties in discovery to their counsel by March 21, 2010. The trial court also ordered the Richmont parties to pay $5,550.50 in sanctions by that date.
The Blake parties file a motion to consolidate
In January 2010, the Blake parties filed a motion to consolidate their suit with one that had been filed by Toner Solutions Corporation in Denton County against Richmont Holdings; Inkbrary; Rochon, Sr.; Rochon, Jr.; Kittrell; Schlag; and others not involved in this suit. The motion asserted that Richmont Holdings was the parent company of all the entities involved in both suits and that both actions evolved out of Richmont Holdings’ actions “to perpetrate a scheme to monopolize the market for remanufacture and sale of ... printer cartilages [sic].”
The Richmont parties move to compel arbitration and to stay discovery
On January 27, 2010, the Richmont parties filed a motion to compel arbitration. They alleged that the suit arose out of the purchase of Superior Recharge’s assets and that the asset purchase agreement contained a clause mandating arbitration of any dispute regarding the agreement. On March 15, 2010, they filed a motion asking the trial court to stay discovery until after the trial court had ruled on their motion to compel arbitration.
On March 19, 2010, in an original proceeding filed by the Richmont parties, this court stayed the trial court’s January 6, 2010 order compelling discovery and stayed all other proceedings in the trial court in the same cause until further notice except for any proceedings relating to the hearing of or ruling upon the motion to compel arbitration. On the same date, the Blake parties filed a response to the motion to compel arbitration asserting that the Richmont parties had waived arbitration.
The trial court held a hearing on the motion to compel arbitration, and, on May 18, signed an order denying the motion to compel arbitration. The Richmont parties appealed. This court held that the Blake parties’ pleadings dealt with the employment and non-compete agreement, which did not contain an arbitration provision.2 *447On review, the Supreme Court of Texas held that the parties did have a valid arbitration agreement and remanded the case back to this court to consider the Rich-mont parties’ waiver defense.3
Standard of Review
When reviewing a denial of a motion to compel arbitration, if the court’s factual findings are in dispute, we review the court’s denial of the motion to compel under a legal sufficiency or “no evidence” standard of review.4 We defer to the trial court’s factual determinations that are supported by evidence, but we review the trial court’s legal determinations de novo.5 Whether a party has waived an arbitration clause is a question of law for the court to decide based on the totality of the circumstances.6
Applicable Law: Waiver of Arbitration
Once a party seeking to compel arbitration has established the existence of an enforceable arbitration agreement and that the dispute falls within its scope, the burden shifts to the party opposing arbitration to raise an affirmative defense to the agreement’s enforcement, such as waiver.7 A party’s waiver of the right to compel arbitration may be express, or it may be implied from a party’s unequivocal conduct.8 Whether express or implied, the waiver must be intentional.9 A party impliedly waives an arbitration clause when the party (1) substantially invokes the judicial process (2) to the other party’s detriment or prejudice.10 The Supreme Court of Texas has held that parties who “conduct full discovery, file motions going to the merits, and seek arbitration only on the eve of trial” waive any right to enforce a contractual arbitration provision.11 Whether actions that do not rise to that level of participation in the judicial process constitute waiver is decided on a case-by-case basis.12
To determine whether a party has impliedly waived arbitration, courts should look to the totality of the circumstances. In conducting this analysis, the Supreme Court of Texas has considered factors such as:
• when the movant knew of the arbitration clause;
• how much discovery has been conducted;
• who initiated it;
• whether it related to the merits rather than arbitrability or standing;
*448• how much of it would be useful in arbitration; and
• whether the movant sought judgment on the merits13
Prejudice in the context of waiver of arbitration agreements refers to “inherent unfairness in terms of delay, expense, or damage to a party’s legal position that occurs when the party’s opponent forces it to litigate an issue and later seeks to arbitrate that same issue.”14 That is, “a party should not be allowed purposefully and unjustifiably to manipulate the exercise of its arbitral rights simply to gain an unfair tactical advantage over the opposing party.” 15
This court has held that three factors are particularly relevant in assessing prejudice. First, the court should consider the time and expense incurred due to the moving party’s participation in judicial proceedings.16 Second, the court should consider the failure to assert the right to arbitration. A demand for arbitration puts the other party on notice that arbitration is forthcoming and gives that party the opportunity to avoid compromising its position with regard to arbitrable and nonar-bitrable claims.17 Third, if discovery has been conducted, the court should consider whether that discovery related only to a party’s nonarbitrable claims or all of the party’s claims, including the arbitrable claims. Pretrial discovery activity relating to a party’s arbitrable claims can result in prejudice from a party’s use of judicial processes to gain access to information that would not have been discoverable in arbitration.18 Providing discovery and getting discovery do not necessarily have the same prejudicial effect; “a party who requests lots of discovery is not prejudiced by getting it and taking it to arbitration in the same way that a .party who produces lots of discovery outside the stricter discovery limits in arbitration.”19
Analysis
Substantial Invocation of the Judicial Process
The Blake parties asserted the following acts of the Richmont parties to demonstrate that those parties waived their right to demand arbitration.
• The Richmont parties had filed suit in Dallas County on claims that involved the same transaction as the one which the Blake parties based their claims against them;
• The Richmont parties had not produced any documents in response to the Blake parties’ requests for production;
• A hearing on Blake’s motion for sanctions had originally been set for September 2009 but was rescheduled for a date in October;
• The Richmont parties counsel asked to reschedule the hearing due to illness, and the hearing was rescheduled for November 13, 2009;
*449• The attorney for the Richmont parties rescheduled due to illness a meeting at which the attorneys for both sides were to review discovery requests and to which the Richmont parties’ attorney was supposed to bring production documents;
• Counsel for the parties met on November 9, 2009, and counsel for the Rich-mont parties agreed to withdraw most of his objections to the Blake parties’ discovery requests and to execute a Rule 11 agreement to submit discovery, and, in return, the Blake parties’ counsel agreed to cancel the hearing on the motion for sanctions;
• The Richmont parties’ attorney did not sign the Rule 11 agreement, however, and therefore the Blake parties reset the motion for sanctions hearing for December 21;
• The Richmont parties’ filed a motion for continuance on December 18 due to illness, but the trial court held the hearing and entered the order compelling discovery and granting sanctions against the Richmont parties; and
• The Richmont parties drafted the arbitration clause and were therefore aware of it from the onset of the litigation.
To show that they had been prejudiced by the Richmont parties’ failure to invoke their right to arbitration, the Blake parties pointed to the following:
• The Richmont parties tendered a request for disclosure, and responding to the request took the Blake parties four hours;
• The Blake parties incurred in excess of $50,000 in attorney’s fees; although the Blake parties did not segregate all of the fees to show which fees were dué to the Richmont parties’ invocation of the judicial process and which were self-inflicted,20 they did allege that at least $5,000 of the fees were incurred in defending the Dallas litigation; and
• The Richmont parties sought to delay discovery, forcing the Blake parties to file motions, attend hearings, and seek sanctions to obtain the discovery.
The Richmont parties filed a response stating, among other things, that the Dallas County suit “dealt with employment issues, such as civil theft, which is not a part of this lawsuit,” and that the suit did not involve all of the same parties. They asserted that they had not conducted discovery related to the merits and therefore had not gained any information that they would not have been entitled to in arbitration, and the Blake parties would not be prejudiced by arbitration. They also stated that they moved for arbitration after the Blake parties amended their petition to add additional claims and parties and broadened the depth and scope of the lawsuit and then moved to consolidate the suit with a completely different case with different parties and claims and concerning a different contract.
The Richmont parties also asserted that the Blake parties contributed to the delay because at the October 2, 2008 hearing on the motion to transfer venue, the trial court stated that it would reset the hearing so that the Blake parties could replead, but the Blake parties did not replead until June 18, 2009. They stated that the Blake parties took over two and a half months to file a response to the motion to compel arbitration and another month and half to file its supplemental brief on the response.
*450The Blake parties demonstrated that the Richmont parties’ delay in demanding arbitration led them to incur attorney’s fees in making discovery requests, filing motions to compel discovery, and setting hearings on the motions, and attending hearings. We hold that the Blake parties met their burden to demonstrate that they suffered prejudice by the Richmont parties’ substantial invocation of the judicial process.21
Schlag and C & R Services argue in the alternative that even if the other Richmont parties waived arbitration, they did not. They assert that they were not brought into the lawsuit until August 7, 2009 and did not file their motion to transfer venue until August 28, 2009. But most of the allegations made against the other Rich-mont parties applied equally to Schlag and C & R Services. They also filed a motion to transfer venue, and they also resisted participating in discovery, thereby forcing the Blake parties to file motions and set hearings and incur attorney’s fees. Accordingly, we overrule the Richmont parties’ issue.
Conclusion
Having overruled the Richmont parties’ sole issue, we affirm the trial court’s order denying the motion to compel arbitration.
LIVINGSTON, C.J., concurs without opinion.
. See Tex.R.App. P. 47.4.
. Richmont Holdings, Inc. v. Superior Recharge Sys., L.L.C., 392 S.W.3d 174, 183 (Tex. App.-Fort Worth 2011).
. Richmont Holdings, Inc. v. Superior Recharge Sys., L.L.C., 392 S.W.3d 633, 633-34 (Tex.2013).
. J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 233 (Tex.2003).
. Rachal v. Reitz, 403 S.W.3d 840, 842-43 (Tex.2013); In re Labatt Food Serv., L.P., 279 S.W.3d 640, 643 (Tex.2009).
. Perry Homes v. Cull, 258 S.W.3d 580, 601 (Tex.2008); In re Citigroup Global Mkts., Inc., 258 S.W.3d 623, 625 (Tex.2008) (orig. proceeding).
. Ellis v. Schlimmer, 337 S.W.3d 860, 862 (Tex.2011); In re Fleetwood Homes of Tex., L.P., 257 S.W.3d 692, 695 (Tex.2008) (orig. proceeding) (directing the trial court to compel arbitration when the party resisting arbitration failed to show waiver).
. Perry Homes, 258 S.W.3d at 593.
. In re Bank One, N.A., 216 S.W.3d 825, 827 (Tex.2007) (orig. proceeding).
. Perry Homes, 258 S.W.3d at 589-90.
. In re Citigroup Global Mkts., 258 S.W.3d at 625 (quoting In re Vesta Ins. Group, Inc., 192 S.W.3d 759, 764 (Tex.2006) (orig. proceeding)).
. Perry Homes, 258 S.W.3d at 591.
. Id. at 591-92.
. Id. at 597 (quoting Republic Ins. Co. v. PAICO Receivables, LLC, 383 F.3d 341, 346 (5th Cir.2004)).
. Id. (quoting In re Tyco Int’l Ltd. Sec. Litig., 422 F.3d 41, 46 n. 5 (1st Cir.2005)).
. Haddock v. Quinn, 287 S.W.3d 158, 181 (Tex.App.-Fort Worth 2009, pet. denied).
. Id.
. In re Bruce Terminix Co., 988 S.W.2d 702, 704 (Tex.1998) (orig. proceeding); Haddock, 287 S.W.3d at 181.
. Perry Homes, 258 S.W.3d at 600 (emphasis omitted).
. See In re Vesta Ins. Group, 192 S.W.3d at 763 (stating that the opposing party’s high costs and attorney’s fees did not show prejudice because the pretrial costs were "largely self-inflicted” from his sending discovery requests and amending his petition).
. CropMark Direct, LLC v. Urbanczyk, 377 S.W.3d 761, 764-66 (Tex.App.-Amarillo 2012, pet. denied) (holding that CropMark had waived its right to arbitration when it requested a jury trial, delayed seeking arbitration, participated in discovery that went to the merits rather than to assist in the determination of whether the claims were subject to arbitration, and used discovery mechanisms not available through the arbitration process); Spain v. Houston Oilers, Inc., 593 S.W.2d 746, 748 (Tex.Civ.App.-Houston [14th Dist.] 1979, no writ) (holding that the appellee's long delay in demanding arbitration, in conjunction with the use of pre-trial discovery not available in arbitration, manifested an intent on the part of the appellee to waive its right to arbitration). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283556/ | OPINION
Sharon McCally, Justice
This is an interlocutory appeal1 from the denial of the special appearances filed by defendants M & F Worldwide Corp. (M & F Worldwide), MCG Intermediate Holdings Inc. (MCG Holdings), Mafeo Worldwide Corporation (Mafeo Worldwide), Mafeo Consolidated Group LLC (Mafeo Consolidated), and PCT International Holdings Inc. (PCT International), collectively, the ‘'Mafeo Defendants,” in this tortious interference suit brought by Pepsi-Cola Metropolitan Bottling Company (Pepsi). Because we conclude that the trial court properly denied these nonresident defendants’ special appearances, we affirm.
BACKGROUND
Pepsi filed this lawsuit in Texas in December 2011, asserting various tort claims, including tortious interference with a 1988 stock purchase agreement, fraudulent transfer, and conversion of certain insurance assets against the Mafeo Defendants, and others,2 including Cooper Industries, LLC;3 Cooper Industries, Ltd.;4 Cooper Holdings, Ltd.;5 Cooper US, Inc.;6 and Cooper Industries pic.,7 companies that we will refer to hereinafter as the “Cooper companies” for ease of reference. Pepsi also sued the Pneumo Abex Asbetos Claims Settlement Trust (the Trust), which is a Delaware trust managed by a Texas company, Integra Management Company, LLC (Integra). In its First Amended Petition, Pepsi alleged that torts had been committed in whole or in part in Texas:
Through the Plan C Agreement, which was designed to interfere with Pneumo Abex’s [contractual] indemnity and hold harmless obligations to [Pepsi], these defendants: (1) created and funded the Trust; (2) impaired or converted [Pep-sins rights to insurance proceeds and other insurance related and/or property rights, and transferred certain of those rights or property to the Trust; (3) engaged in conspiracies with Texas residents; and (4) committed all of these acts with the knowledge that the Trust and its agent (Integra) would pay for *497and administer thousands of [asbestos] Products Claims eases through Integra’s offices and actions in Texas.
As background to the underlying suit, through a series of transactions and corporate transformations, Pepsi acquired certain indemnity rights associated with asbestos-related claims. The responsibility to provide Pepsi that indemnity traces through a more complex series of transactions; corporate transformations, a bankruptcy, a lawsuit, and a settlement agreement. The relationships between the various parties, nonparties, and agreements are all relevant to our analysis of Texas contacts and, therefore, we set them forth in some detail.
First, the 1988 stock purchase agreement (1988 SPA) created certain indemnity rights for asbestos-related claims as follows.8 IC Industries, Pepsi’s predecessor in interest, owned two corporations that produced asbestos containing products: Pneumo Abex Corp. and Abex Corp. Through the 1988 SPA, IC Industries transferred these corporations to PA Holdings.9 Pneumo Abex Corp. and Abex Corp. agreed, as part of the 1988 SPA, to indemnify IC Holdings for, as is relevant here, all asbestos-related claims filed after August 1998. PA Holdings later merged with Pneumo Abex Corp. and Abex Corp., and the companies became Pneumo Abex Corp. As such, Pneumo Abex Corp. thereafter owed the post-August 1998 indemnification obligation to IC Industries. Through succession, Pepsi became entitled to IC Industries’ indemnification rights.10
Several subsequent transfers of the assets and liabilities of Pneumo Abex Corp. occurred among affiliates of MacAndrews & Forbes Holdings Inc. (MacAndrews) and the Cooper companies. The MacAn-drews-affiliated companies include all of the Mafco Defendants.11 Through these various transfers, Pneumo Abex Corp. acquired indemnity obligations for the same asbestos claims for which it owed Pepsi indemnification. In 1995, Pneumo Abex Corp. became an affiliate of MacAndrews, and MCG Holdings began managing and funding Pneumo Abex Corp.’s non-friction related asbestos indemnification obligations; Pneumo Abex Corp. remained financially responsible for all of these liabilities, however. Meanwhile, from 1998 to 2001, the indemnification owed to Pepsi by Pneumo Abex Corp. for automotive-related asbestos claims was provided by another corporation to which Cooper had transferred ownership of its automotive products business. This corporation, Federal Mogul Corp., filed for bankruptcy protection in 2001, and under the terms of a guaranty, Cooper again became responsible for Pneumo Abex’s automotive friction products indemnification obligations.
In 2004, Pneumo Abex Corp. disposed of all assets and liabilities relating to its only business and merged into Pneumo Abex LLC (hereafter, Pneumo Abex). Also in 2004, Mafco Worldwide became responsible for the indemnification and defense obligations Pneumo Abex owed to Pepsi for asbestos claims arising from aerospace products, a much smaller subset of the overall asbestos-related claims. The Cooper companies provided indemnities and *498defense obligations to Pepsi for the much larger portion of asbestos claims arising from Pneumo Abex’s automotive friction products. Since 2004, Pneumo Abex “has not conducted any business operations nor owned any assets other than insurance and indemnity rights directly related” to the various product claims.
Pneumo Abex, the Mafco Defendants, and the Cooper companies discussed disputed issues relating to Pneumo Abex’s asbestos liabilities and assets. In 2006, the Mafco Defendants, through representatives Steven Fasman, Barry Schwartz, and their attorney,12 traveled to Texas to meet with the Cooper companies about the Federal Mogul bankruptcy. In 2007, as part of the bankruptcy proceedings of Federal Mogul, the Cooper companies and Pneumo Abex proposed two alternative plans to address the Pneumo Abex indemnity obligations., Plan A involved the creation of a subfund of the Federal Mogul-bankruptcy trust to address certain Pneu-mo Abex asbestos claims, including those related to the non-friction business indemnified by the Mafco Defendants.
As early as January 2008, the Cooper companies and MacAndrews were discussing “various alternatives to Plan B ... in the event that Plan A [was] rejected.” In February 2008, Fasman outlined several proposals “for Cooper LLC’s consideration” to address “possible structures intended to address alternatives superior to Plan B, should Plan A prove unsuccessful.” Plan A was publicly proposed and briefed to the Federal Mogul bankruptcy court, but the court rejected this plan. Plan B, under which Pneumo Abex and the Cooper companies received $140 million to resolve claims against Federal Mogul, was approved by the bankruptcy court.
A year later, on February 5, 2009, Mafco Defendants’ representatives Schwartz and Fasman traveled to Houston and met with Cooper executives. The record reflects that Kirk Hachigian, Chairman and Chief Executive Officer of Cooper Industries, emailed Schwartz the next day, thanking him for the “trip to Houston” and stating that they had a “good post meeting,” which resulted in a “few ideas.” In this email, Hachigian stated, “[I]n the end, it would be best for both of us to find a middle ground here and put something together.” Hachigian also thanked Schwartz for “reaching out.”
After this meeting, it appears that negotiations of what became known as Plan C ramped up.13 On February 12, 2009, Cooper Industries representative Heath Mon-esmith emailed Fasman, explaining that the Cooper companies would “need an IRS private letter ruling to do this deal” and suggesting that “that process be started immediately.” Beginning' in June 2009 and throughout the entire negotiation leading up to the execution of the April 2011 Plan C settlement agreement, the Mafco Defendants, Pneumo Abex (which was then a subsidiary of M & F Worldwide), and the Cooper companies entered tolling and standstill agreements regarding their allegedly disputed claims.
*499In July 2009, M & F Worldwide sent a written request to the IRS, requesting a pre-submission conference (the July 2009 IRS letter). In this letter, M & F Worldwide outlined the general structure of Plan C, noting that it was the indirect owner of all interest in Pneumo Abex and PCT International, and explaining its “ongoing disputes” with the Cooper companies. According to the July 2009 IRS letter, Pneu-mo Abex and the Cooper companies had “disputed claims” against each other regarding various corporate transactions and the scope of the Cooper companies’ obligations to Pneumo Abex. In this letter, M & F Worldwide proposed a transaction through which Pneumo Abex and the Cooper companies would assert their “dispute ed claims” against each other in “an appropriate court.” The parties intended to propose a settlement agreement that would include a qualified settlement trust. Drafts of this letter were communicated to the Cooper companies’ tax representative located in Texas.
In November 2009, Fasman again traveled to Texas, this time to Dallas. Fas-man described the purpose of this trip as “to speak with a lawyer retained by the' Cooper board.... It was a discussion with this lawyer about his opinions regarding Plan C.” During breaks at this meeting, Fasman acknowledged that there were also discussions with the Cooper companies’ representatives about Plan C. Then, in January 2010, M & F Worldwide, on its own behalf and on behalf of Pneumo Abex and PCT International, sent a second letter to the IRS, requesting a ruling regarding the proposed transaction outlined in its July 2009 IRS letter and discussed at a July 2009 conference with IRS personnel. In this letter, M & F Worldwide stated that it and the Cooper companies intended to have Pneumo Abex and the Cooper companies initiate a lawsuit in a Texas court “agreed upon by Pneumo and Cooper.” The parties would then negotiate proposed settlement documents and set a settlement conference with a Texas court for approval. The Texas court would retain continuing jurisdiction over the settlement agreement and the qualified settlement trust set up pursuant to it. Attached to this letter was a detailed settlement timeline and a draft of a memorandum of understanding (MOU) between M & F Worldwide, Pneumo Abex, and the Cooper companies embodying the terms of Plan C. This request for a ruling was later withdrawn.
In May 2010, Pneumo Abex filed suit against several of the Cooper companies in a New York state court seeking to enjoin them from entering into a proposed transaction with another defendant, Danaher Corporation. Prior to filing suit, an unidentified Mafco representative contacted Kirk Hachigian to discuss the suit. Notes for this conversation indicate that litigators have been instructed “to proceed full-steam-ahead,” but the representative wanted Haghigian to know that M & F Worldwide “continue[d] to believe that Plan C (a Cooper-funded trust that would own Pneumo Abex and would release and indemnify both Cooper and [M & F Worldwide] ) is the better way to go.” These notes further indicate that the Mafco Defendants “made the decision to sue now” because they were “no longer optimistic that Plan C, or any other long-term solution, is possible.”
In the New York litigation, Pneumo Abex alleged that the proposed transaction would interfere with the integrity of the Cooper companies’ indemnification obligations. After the New York litigation was filed, Pneumo Abex, the Cooper companies, and the Mafco Defendants re-engaged in negotiations concerning Pneumo Abex’s asbestos-claims obligations and their indemnification of them. A new IRS *500letter ruling was requested by the Mafco Defendants, seeking rulings regarding the settlement of the New York litigation and the creation of a qualified settlement trust. Starting in February 2009, hundreds of emails and phone calls were exchanged between the Mafco Defendants, Cooper personnel, and their respective attorneys about “Plan C.” The Mafco Defendants had weekly conference calls about Plan C with Cooper representatives. When negotiations stalled several times, Mafco representatives reached out to Cooper representatives. Ultimately, the parties settled the New York litigation and all existing disputes regarding Pneumo Abex’s contingent asbestos liabilities by entering into a settlement agreement in New York and numerous ancillary agreements effectuating the terms of the settlement agreement (collectively, the Plan C Agreement).
The parties to the Plan C Agreement included the Mafco Defendants (except MCG Holdings), Pneumo Abex, and the Cooper companies. Under the terms of the Plan C Agreement, the Mafco Defendants, except MCG Holdings, agreed to: (1) release any claims against the Cooper companies; (2) obtain court approval of the- settlement agreement; (3) establish the Pneumo Abex Asbestos Claims Settlement Trust (the Trust) under Delaware law; (4) transfer ownership and control of Pneumo Abex to the Trust; (5) transfer millions of dollars to Pneumo Abex and the Trust; (6) establish a management company to be owned by the Trust to manage day-to-day operations of Pneumo Abex; (7) pay, post-closing of the agreement, any insurance proceeds received on behalf of Pneumo Abex to Pneumo Abex; (8) transfer to Pneumo Abex all then-existing rights under the 1988 SPA and all other agreements through which Pneumo Abex directly or indirectly might be entitled to indemnification, contribution or reimbursement from anyone; and (9) cooperate with the Trust on defense of asbestos claims for nine months following the agreement. The agreement closed in April 2011 in New York. The Mafco Defendants executed the documents effectuating the details of the Plan C Agreement at the New York closing of the Plan C Agreement.
The Plan C Agreement allegedly terminated the Mafco Defendants’ and the Cooper companies’ indemnity and defense obligations to Pneumo Abex. The Trust indemnified the Mafco Defendants and the Cooper companies for product claims involving Pneumo Abex. Pursuant to the terms of the Plan C Agreement, Integra Management Company LLC was created to manage Pneumo Abex’s product claims and insurance recovery efforts. Integra is a Delaware corporation with a Spring, Texas principal place of business. The Mafco Defendants agreed that Integra would be managed by former Cooper employee and Texas resident Keith Odenwel-ler. In April 2011, after the closing of the Plan C Agreement, the Mafco Defendants notified Pepsi that Pneumo Abex could be contacted in care of Integra at Integra’s Texas address.
The subject lawsuit ensued. The Mafco Defendants filed special appearances. The gravamen of Pepsi’s jurisdictional argument in response (and on appeal) was that from 2008 to 2011, the Mafco Defendants acted in concert with the Cooper companies to negotiate Plan C, which stripped Pneumo Abex of its back-up for the contractual indemnification obligations it owed to Pepsi away from the large and well-funded MacAndrews and Cooper families of business. Pepsi further asserted that these indemnification obligations were transferred to a trust that is administered from Texas. Stated differently, Pepsi urges that the Trust is the tool by which the Mafco Defendants and Cooper have *501collaborated to impair Pepsi’s contractual indemnification rights.
The trial court denied the Mafco Defendants’ special appearances after a December 2013 hearing. No findings of fact or conclusions of law were issued. The Maf-co Defendants filed this interlocutory appeal.
Analysis
In four issues, the Mafco Defendants assert that the trial court erred in denying their special appearances. First, they urge that the trial court erred because Pepsi made global jurisdictional allegations, rather than specific allegations as to each of the Mafco Defendants, and the five Mafco Defendants proved that-they are not Texas entities or residents. Second, the Mafco Defendants argue that (a) there is no evidence that any of them had sufficient minimum contacts with Texas, (b) as a matter of law, there is no substantial connection between any of the Mafco Defendants’ contacts with Texas and the operative facts of this litigation, and (c) allowing a Texas court to exercise specific jurisdiction over the Mafco Defendants would offend traditional notions of fair play and substantial justice. Third, they contend that the trial court lacked general jurisdiction over them because there is no evidence that any of the Mafco Defendants have continuous and systematic contacts with Texas such that they are essentially at home in Texas. Fourth and finally, the Mafco Defendants maintain that there is no sufficient basis for the trial court to exercise personal jurisdiction over them under a conspiracy, alter ego, or agency theory.
We begin our analysis of these issues by reviewing the principles of personal jurisdiction. We then identify the purported contacts of each of the Mafco Defendants so that we may determine whether Pepsi alleged sufficient facts against each defendant to bring it under the purview of the Texas long-arm statute. We then examine these contacts to determine whether the Mafco Defendants purposefully availed themselves of the privilege of conducting business in Texas. Finally, we consider whether traditional notions of fair play and substantial justice are offended by the exercise of personal jurisdiction over these defendants. After examining the principles of jurisdiction at play in this case and the jurisdictional facts alleged, we conclude that the trial court properly denied the Mafco Defendants’ special appearances.
I. Standard of Review and Applicable Law
We review de novo a trial court’s determination of a special appearance. Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 574 (Tex.2007). When, as here, the trial court does not make findings of fact and conclusions of law, all facts necessary to support the ruling and supported by the evidence are implied. Retamco Operating, Inc. v. Republic Drilling Co., 278 S.W.3d 333, 337 (Tex.2009). Any implied findings are not conclusive and may be challenged under the well-settled standards for legal and factual sufficiency. See Baker Hughes Inc. v. Brooks, 405 S.W.3d 246, 249 (Tex.App.—Houston [14th Dist.] 2013, pet. denied) (citing BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 794-95 (Tex.2002)). Here, the Mafco Defendants assert that the material facts are undisputed; thus they do not challenge the sufficiency of the evidence to support the trial court’s implied findings.
The Texas long-arm statute authorizes Texas courts to exercise jurisdiction over a nonresident defendant who “does business” in the state. Tex. Civ. Prac. & Rem.Code Ann. § 17.042. The *502Supreme Court of Texas has interpreted the broad language of the Texas long-arm statute to extend Texas courts’ personal jurisdiction “as far as the federal constitutional requirements of due process will permit.” BMC Software, 83 S.W.3d at 795. A plaintiff bears the initial burden of pleading allegations sufficient to bring a nonresident defendant within the terms of the long-arm statute. Id. at 794-95. A defendant challenging a Texas court’s personal jurisdiction over it must negate all jurisdictional bases alleged. Id.
A trial court may constitutionally exercise personal jurisdiction over a party when (1) the nonresident defendant has minimum contacts with the forum state and (2) the assertion of jurisdiction complies with traditional notions of fair play and substantial justice. Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945); Peters v. Top Gun Exec. Group, 396 S.W.3d 57, 62 (Tex.App.—Houston [14th Dist.] 2013, no pet.). Minimum contacts are sufficient for personal jurisdiction when the nonresident defendant purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws. Retamco, 278 S.W.3d at 338. “The defendant’s activities, whether they consist of direct acts within Texas or conduct outside Texas, must justify a conclusion that the defendant could reasonably anticipate being called into a Texas court.” Am. Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 806 (Tex.2002) (citing World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980))
Texas courts may exercise two types of jurisdiction based on a nonresident’s contacts with the state. General jurisdiction arises when a defendant’s contacts with the forum state are “continuous and systematic.” Retamco, 278 S.W.3d at 338-39. In analyzing specific jurisdiction, on the other hand, we focus on the relationship among the defendant, the forum, and the litigation. Moki Mac, 221 S.W.3d at 575-76. Specific jurisdiction is established if the defendant’s alleged liability arises out of or is related to an activity conducted within the forum. Id. at 576. Here, because we determine that the exercise of specific jurisdiction over the Mafco Defendants is appropriate, we need not consider the Mafco Defendants’ general jurisdiction issues.
II. Pepsi’s Jurisdictional Allegations
In their first issue, the Mafco Defendants challenge the trial court’s denial of their special- appearances because Pepsi relied on - “jurisdictional allegations in a blanket fashion against all Mafco Defendants.” When there are multiple defendants, each defendant’s contacts with the forum must be assessed separately. Citrin Holdings, LLC v. Minnis, 305 S.W.3d 269, 279 (Tex.App.—Houston [14th Dist.] 2009, no pet.) (citing Calder v. Jones, 465 U.S. 783, 790, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984)). We look to Pepsi’s pleadings and its response to the Mafco Defendants’ special appearances to assess each of the Mafco Defendants’ alleged contacts. See Max Protetch, Inc. v. Herrin, 340 S.W.3d 878, 883 (Tex.App.—Houston [14th Dist.] 2011, no pet.).
Here, Pepsi’s jurisdictional allegations contained in its petition consist predominately of blanket allegations against the “Mafco Defendants.” In each of their special appearances, the Mafco Defendants asserted that the jurisdictional allegations in Pepsi’s petition did not sufficiently identify to which particular Mafco entity the allegation was aimed. We agree that these jurisdictional allegations, for the most part, are not sufficient for a court to judge each of the individual Mafco entities’ *503forum contacts. See Calder, 465 U.S. at 790, 104 S.Ct. 1482 (“Each defendant’s contacts with the forum must be assessed individually.”).
But Pepsi additionally filed a response to the Mafco Defendants’ special appearances, which, with its 97 attached exhibits, is nearly 4,000 pages long. See Max Protetch, 340 S.W.3d at 883 (stating that we consider both the plaintiffs pleading and the response to a special appearance in assessing jurisdictional contacts). In its response, Pepsi makes multiple blanket assertions against the Mafco Defendants as a group. These assertions, however, are supported by references to attached exhibits, and we can determine to which specific Mafco entity these allegations refer or if the allegations may fairly be deemed to refer to all of the Mafco Defendants. And because there are no findings of fact and conclusions of law, we must imply all findings supported by the record to sustain the trial court’s denial of the special appearances. See Retamco, 278 S.W.3d at 337. These more specific allegations are those that we examine to determine whether the trial court properly determined the jurisdictional question before it.
In short, because Pepsi provided sufficient evidence in its response to the Mafco Defendants’ special appearances to allow a court to individually assess the' Mafco Defendants’ jurisdictional contacts, we overrule the Mafco Defendants’ first issue.
III. Specific Jurisdiction
In their second issue, the Mafco Defendants assert that the trial court lacked specific jurisdiction over each of them. In this issue, they assert that they lacked sufficient minimum contacts with Texas, that there is no substantial connection between any of their Texas contacts and the operative facts of the litigation, and that allowing a Texas court to exercise specific jurisdiction over them would offend traditional notions of fair play and substantial justice. We address each of these assertions in turn below, concluding that the record supports the trial court’s denial of the Mafco Defendants’ special appearances because the exercise of specific jurisdiction over these defendants is appropriate.
A. Minimum Contacts
For a Texas court to properly exercise specific jurisdiction in this case, (1) the Mafco Defendants must have made minimum contacts with Texas by purposefully availing themselves of the privilege of conducting activities here, and (2) their liability must have arisen from or be related to those contacts. Moki Mac, 221 S.W.3d at 576. The “touchstone” of jurisdictional due process is “purposeful availment.” Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 784 (Tex.2005). Purposeful availment requires a defendant to seek some benefit, advantage, or profit by availing itself of the jurisdiction. Id. We thus consider the contacts alleged by Pepsi to determine whether any of the Mafco Defendants purposefully availed themselves of the privilege of conducting activities in Texas.
Pepsi alleges the following contacts in support of the trial court’s exercise of specific jurisdiction over the Mafco Defendants:
• Steven Fasman, the corporate representative of the Mafco Defendants who, as described above, is employed in some capacity by each of the individual Mafco entities involved in this litigation, traveled to Texas in 2006 to attend a meeting with Cooper representatives to discuss Plan A. This contact is shared by all the Mafco Defendants.14
*504• Representatives of the Mafco Defendants communicated about Plan A with “a person located in the State of Texas or who claimed to work in the State of Texas.” These contacts are shared by all.the Mafco Defendants.
• Mafco representatives acknowledged that they communicated remotely with a person either located in Texas or who claimed to work in Texas about Plan B. The Mafco Defendants acknowledged this same fact as to Plan C. These contacts are shared by all the Mafco Defendants.
• Numerous tolling agreements were executed by the Mafco Defendants and the Cooper companies during the negotiations of Plan C. MCG Holdings was not a party to any of these tolling agreements, but the rest of the Mafco Defendants were.
• In 2009, as described above, Fasman made two trips to Texas: one in February, where he was accompanied by Ma-cAndrews’ representative Barry Schwartz and an attorney, and another in November. These contacts were on behalf of MacAndrews, which is not a defendant here, and are otherwise shared by the Mafco Defendants.
• Attorneys for MacAndrews & Forbes and Pneumo Abex emailed the first draft of the Plan C Agreement to a Cooper representative
• PCT International purposefully moved Pneumo Abex to Texas and transferred ownership of Pneumo Abex to the Trust.
• M & F Worldwide, PCT International, Mafco Worldwide, and Mafco Consolidated established the Trust, assisted in selecting Texas resident and former Cooper employee Keith Odenweller as the manager of Integ-ra, knew Odenweller would run In-tegra, the Trust, and Pneumo Abex from Texas, coordinated with Oden-weller in selecting office space, and trained Odenweller.
• M & F Worldwide agreed to assist the Trust and Integra for nine months in defending products claims; MCG Holdings agreed to provide consulting services to Integra for six months.
• M & F Worldwide, PCT International, Mafco Worldwide, and Mafco Consolidated transferred Pepsi’s insurance assets and $15 million to either the Trust or Pneumo Abex. They shipped thousands of boxes of Pneumo Abex’s records to Texas.
• The Trust owes indemnification obligations to M & F Worldwide, Mafco Worldwide, Mafco Consolidated, and PCT International.
Based on these alleged contacts, we conclude that the trial court properly concluded that the Mafco Defendants each purposefully availed themselves of the privilege of conducting activities in Texas for the following reasons.
B. Operative Facts
“[F]or specific-jurisdiction purposes, purposeful availment has no jurisdictional relevance unless the defendant’s liability arises from or relates to the forum contacts.” Moki Mac, 221 S.W.3d at 579. For a nonresident defendant’s forum contacts to support an exercise of specific jurisdiction, there must be a “substantial *505connection” between those contacts and the operative facts of the litigation. Id. at 584-88. The operative facts are those facts that would be the focus of the trial. Id. at 575; see also Pulmosan Safety Equip. Corp. v. Lamb, 273 S.W.3d 829, 839 (Tex.App.—Houston [14th Dist.] 2008, pet. denied). “To identify the operative facts of the litigation, we look to the plaintiffs allegations.” Transportes de Zima Real S.A. de C.V. v. Lizarraga, No. 14—13—00933-CV, 2014 WL 3512858, at *2 (Tex.App.—Houston [14th Dist.] July 15, 2014, no pet.) (mem.op.) (citing Moki Mac, 221 S.W.3d at 585).
In its response to the Mafco Defendants’ special appearances, Pepsi identified the operative facts of the lawsuit as follows:15
Here, [Pepsi] asserts claims for tor-tious interference, conversion, fraudulent transfer, and civil conspiracy against the Mafco defendants. The Mafco defendants interfered with the 1988 SPA between [Pepsi] and Pneumo Abex, converted [Pepsi]’s insurance assets, fraudulently transferred a lump-sum payment for a release of the Cooper and Mafco defense and indemnity obligations or conspired to do the same. All of these activities or their effects are continuing in nature, and are continuing in Texas. The operative facts of this lawsuit surround the Mafco and Cooper defendants’ Plans A, B, and C schemes to extinguish their obligations to Pneu-mo Abex. These schemes and actions in concert with the Cooper defendants culminated in the Plan C Agreement. The Mafco defendants’ Texas contacts related to these schemes include: (1) the 2006 and 2009 Texas meetings; (2) the communications between the Mafco and Cooper defendants about Plans A, B, and C; (3) the negotiation and drafting of the Plan C Agreement; (4) performance of the Plan C Agreement; and (5) the selection of the Trustees and the selection of the manager of Integra.
These allegations identify the focus of this trial — i.e., the operative facts of the lawsuit — as concerning the negotiation, execution, and implementation of the Plan C Agreement, and its alleged effect on Pepsi’s indemnification rights under the 1988 SPA. With this proper narrowing of the focus of the jurisdictional allegations at issue, we next consider the Mafco Defendants’ alleged minimum contacts to determine whether they are substantially connected to the operative facts of this litigation. And again, because there are no findings of fact or conclusions of law, we must imply all findings supported by the record to uphold the trial court’s denial of the Mafco Defendants’ special appearances. See Retamco, 278 S.W.3d at 337.
C. Mafco Defendants Purposefully Availed Themselves of the Privileges of Doing Business in Texas
As noted above, the Mafco Defendants traveled to Texas on three occasions: first in 2006, to discuss Plan A, and then twice in 2009, to discuss Plan C. We do not consider the 2006 meeting to discuss Plan A to be relevant to the operative facts of this lawsuit because there is nothing to indicate that Plan C arose from this meeting. See, e.g., Moki Mac, 221 S.W.3d at 588. But the 2009 trips to Texas are, we believe, dispositive of the issue of whether the Mafco Defendants purposefully availed themselves of the privileges of doing business in Texas.
*506In Moncrief Oil International, Inc. v. OAO Gazprom,16 the Supreme Court of Texas determined that a Texas court had jurisdiction over the nonresident defendant based largely on two meetings in Texas where trade secrets were alleged to have been exchanged. 414 S.W.3d at 147. The Moncrief Court further concluded that the nonresident defendants’ contacts with Texas were neither “unilateral activities” nor “random and fortuitous” because the defendants agreed to attend Texas meetings and accepted the plaintiffs alleged trade secrets at those meetings. Id. at 154 (citing Retamco, 278 S.W.3d at 340). The Court explained that the nonresident defendants’ contacts with Texas were purposeful because the defendants sought some “‘benefit, advantage, or profit’ by availing [themselves] of the forum.” Id. (citing Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 785 (Tex.2005)). Similarly, the Mafco Defendants’ two meetings in Texas can fairly be construed as purposeful availment of the privileges of doing business in Texas for the following reasons.
First, as described above, after the February 2009 visit to Texas by Fasman and Schwartz, the negotiation of what became the Plan C Agreement ratcheted up. Although there was correspondence between the Cooper companies and the Mafco Defendants regarding possible scenarios through which their indemnification obligations and issues could be resolved prior to this meeting, after this meeting, the Mafco Defendants took the first concrete steps towards implementing Plan C: M & W Worldwide, on behalf of itself and its subsidiaries PCT International and Pneu-mo Abex, drafted and sent a letter to the IRS describing a potential lawsuit and resolution of the Mafco Defendants and the Cooper companies’ disputes that tracked the ultimate resolution of the New York litigation. And the record reflects that the Mafco Defendants “reached out” to the Cooper companies to begin these negotiations., These facts support an implied finding that, at the February 2009 meeting in Texas between the Mafco Defendants and the Cooper companies, the parties began formulating Plan C, a plan through which Pepsi alleges its rights under the 1988 SPA were impaired. Cf. id. at 156-57 (concluding that Texas court lacked specific jurisdiction over tortious interference claim in part because this claim arose from meetings in California, i.e., this claim was tantamount to “directing a tort at Texas from afar,” which is insufficient to confer specific jurisdiction).
Further, hundreds of emails and telephone calls between the Mafco Defendants and the Cooper companies were exchanged after this meeting. Even if these contacts, standing alone, are insufficient to confer specific jurisdiction,17 we consider the timing and content of these contacts show context for the Mafco Defendants’ and the Cooper companies’ collaboration to develop Plan C, a plan that can fairly be said to have been developed during a meeting in Texas. And as noted above, shortly after the second meeting in Texas in November 2009, M & F Worldwide drafted and sent a request for a letter ruling to the IRS *507regarding a proposed Texas resolution of the Mafco Defendants’ and Cooper companies’ alleged disputes over indemnification obligations. The trial court could have found that the Mafco Defendants and the Cooper companies further honed Plan C during this Texas meeting. Thus the record supports a finding that these Texas meetings were not “unilateral,” “random,” or “fortuitous.” See Moncrief, 414 S.W.3d at 158. And although the Mafco Defendants denied any intent to commit these torts, at the jurisdiction phase, we must examine business contacts, not what the parties thought or intended. See id. at 154. The record supports a finding that the Mafco Defendants attended two Texas meetings during which time a scheme was hatched and launched to interfere with Pepsi’s contractual indemnification rights. Cf. id. at 158.
We are not persuaded by the Mafco Defendants’ efforts to recast this case as an alleged New York tort that, at most, is directed at Texas. The Supreme Court of Texas has rejected personal jurisdiction based solely on the consequences of a tort committed in another forum that has repercussions in Texas. See Michiana, 168 S.W.3d at 790-91 (“Several problems arise if jurisdiction turns not on a defendant’s contacts, but on where it ‘directed a tort.’ ”); see also Cerbone v. Farb, 225 S.W.3d 764, 772 (Tex.App.—Houston [14th Dist.] 2007, no pet.) (“[I]n Michiana, the Texas Supreme Court expressly rejected personal jurisdiction based solely on the effects or consequences of an alleged tort committed in another forum that had repercussions in Texas.”). But this case is not a “directed a tort” at Texas case; instead, as discussed above, this is a case where the record supports a finding that an integral part of the tort alleged occurred in Texas. See Tex. Civ. Prac. & Rem.Code Ann. § 17.042(2) (nonresident does business in Texas when it commits a tort in whole or in part in Texas). And the fact that the schemes hatched at these Texas meetings resulted in further contacts by and between Texas and the Mafco Defendants strengthens the Mafco Defendants’ ties to Texas. For example, prior to executing the Plan C Agreement, Fas-man was aware that Integra was going to be located in Texas and run by a Texas resident. Fasman was further aware that Integra would be managing the Trust, which in turn was to be the sole shareholder of Pneumo Abex after closing of the Plan C Agreement. Finally, after closing of the agreement. M & F Worldwide agreed to assist the Trust and Integra for nine months in defending products claims; MCG Holdings agreed to provide consulting services to Integra for six months; M & F Worldwide, PCT International, Mafco Worldwide, and Mafco Consolidated transferred Pepsi’s insurance assets and $15 million to either the Trust or Pneumo Abex; the Mafco Defendants shipped thousands of boxes of Pneumo Abex’s records to Texas; and the Trust owes-indemnification obligations to M & F Worldwide, Mafco Worldwide, Mafco Consolidated, and PCT International. These Texas contacts show a continuing course of dealing under the terms of the Plan C Agreement that supports an inference that the Plan C Agreement, although executed in New York, was to be performed in Texas. Cf.Citrin, 305 S.W.3d at 283 (“Here, ... the circumstances involve multiple Texas contacts over many months in the course of an ongoing relationship that ‘was not unilaterally initiated by the Texas resident.’ These circumstances demonstrate Citrin’s purposeful contact with Texas along with an intent to obtain benefits from these contacts.” (citations omitted)).
Finally, there can be no dispute that the . Mafco Defendants gained a benefit from severing their relationships with Pneumo *508Abex and transferring their Pneumo Abex responsibilities to Texas. After attending two meetings in Texas with Texas residents (Cooper Industries and Cooper U.S.), they relieved themselves of a long-term indemnity obligation owed by one of their corporate subsidiaries and gained indemnification for these same obligations from a newly created trust — managed by Texas resident Integra — that became the sole shareholder of their former subsidiary. See Moncrief, 414 S.W.3d at 154. The Mafco Defendants entered into the Plan C Agreement, including the ancillary agreements, with the Cooper companies and contractually avoided Texas as a forum for suits arising from those agreements by including forum selection clauses specifying New York or Delaware in the agreements. But the Mafco Defendants entered into agreements to create and perpetuate a Trust located in and operating in the State of Texas, though legally formed in Delaware. No doubt, the Mafco Defendants have negotiated to contractually avoid Texas as a forum available for disputes between the parties to the Plan C Agreement because Texas would otherwise exist as a forum for suit. However, the Mafco Defendants may not unilaterally and as a matter of law render their Texas contacts meaningless through forum selection clauses in contracts to which Pepsi is not a party. Rather, we consider the evidence that the Mafco Defendants initiated a complex plan while in Texas meeting with Texas residents. We consider that the Mafco Defendants refined that complex plan — a plan alleged here to be tor-tious interference — through hundreds of emails to Texas to the Cooper companies and others who would carry out the agreements necessary to implement the Plan C Agreement. We consider that the Mafco Defendants divested themselves of Pneu-mo Abex to a trust operating in Texas and owing continuing obligations to the Mafco Defendants. We thus conclude that, rather than seeking to avoid Texas, the Mafco Defendants “sought out Texas and the benefits and protections of its laws.” Id.
D. Fair Play and Substantial Justice
In addition to sufficient minimum contacts, due process requires the exercise of personal jurisdiction to comply with traditional notions of fair play and substantial justice. Retamco, 278 S.W.3d at 338. When a nonresident has minimum contacts with the form, the exercise of jurisdiction over the nonresident rarely offends traditional notions of fair play and substantial justice. Moncrief, 414 S.W.3d at 154-55 (citing Retamco, 278 S.W.3d at 338). In evaluating this component of personal jurisdiction, we consider the following factors: (1) the burden on the defendant; (2) the interests of the forum in adjudicating the dispute; (3) the plaintiffs interest in obtaining convenient and effective relief; (4) the interstate judicial system’s interest in obtaining the most efficient resolution of controversies; and (5) the shared interest of the several states in furthering fundamental substantive social policies. Guardian Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 232 (Tex.1991).
First, subjecting these nonresident defendants to suit in Texas surely imposes a burden on them, but the same can be said of all nonresidents. “Distance alone cannot ordinarily defeat jurisdiction.” Moncrief, 414 S.W.3 at 155 (citing Spir Star AG v. Kimich, 310 S.W.3d 868, 879 (Tex.2010)). Given the Mafco Defendants’ meetings with the Cooper companies in Texas and their agreement to effectively transfer their indemnification obligations to Texas, the burden of litigating in Texas is not so severe as to defeat jurisdiction. Cf. id. (concluding that familiarity with forum through meet*509ings in Texas and legal system of Texas by setting up a subsidiary headquartered in Texas militated against defeating personal jurisdiction based on burden on defendants). Further, because Pepsi’s claims against the other defendants, which arise out of the same facts as its claims against the Mafco Defendants, will be heard in Texas, it is more efficient to adjudicate the entire case in the same place. See Spir Star, 310 S.W.3d at 879. Finally, the fact that Pepsi has alleged that the Mafco Defendants have committed a tort in whole or in part in Texas implicates a state interest in adjudicating this dispute. See Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 776, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984) (“A state has an especial interest in exercising jurisdiction over those who commit torts within its territory.”).
We conclude that, on balance, asserting personal jurisdiction over the Mafco Defendants would not offend traditional notions of fair play and substantial justice. We thus overrule the Mafco Defendants’ second issue.
Conclusion
We have addressed the dispositive issues in this appeal and determined that the trial court did not err by denying the Mafco Defendants’ special appearances. And because we have concluded that the trial court’s denial of the Mafco Defendants’ special appearances based on specific jurisdiction was proper, we need not reach their other issues regarding general jurisdiction. We affirm the trial court’s order denying the Mafco Defendants’ special appearances.
. See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(7).
. The parties initially agreed that Pepsi's First Amended Petition is the operative pleading for this appeal. The Mafeo Defendants have since requested that this court take judicial notice of Pepsi's Motion for Leave to Amend and Third Amended Petition, filed on June 20, 2014, and Pepsi’s notice of non-suit of the Trust, filed June 28, 2014. Pepsi has not opposed this request; thus we grant it. We note that there is nothing to indicate that the trial court actually permitted Pepsi to amend its pleadings; thus the operative pleading for our jurisdictional analysis remains the one identified by the parties in this proceeding. Moreover, the jurisdictional contacts by the Mafeo Defendants have not changed despite this amendment and non-suit. Thus, our taking judicial notice of these filings by Pepsi has no bearing on our disposition of this appeal.
. Cooper Industries, LLC is a Delaware corporation headquartered in Houston.
. Cooper Industries, Ltd. is a foreign corporation organized and existing under the laws of Bermuda.
. Cooper Holdings, Ltd. was a Bermuda corporation headquartered in Bermuda, but allegedly merged into Cooper UK Subco, LLC in July 2011.
. Cooper US, Inc. is a Delaware corporation headquartered in Houston.
. Cooper Industries pic. is a foreign corporation organized and existing under the laws of Ireland.
. The SPA closed in New York City and contained a New York choice-of-law clause.
. Both IC Industries and PA Holdings were Delaware corporations. So too were Pneumo Abex Corp. and Abex Corp.
. Pepsi is a New Jersey corporation with its headquarters and principal place of business located in New York.
. It is undisputed that none of the Mafco Defendants are Texas residents and they do not have offices or employees in Texas.
. The record reflects that, as of the date of the Plan C settlement agreement discussed infra, Fasman was the Senior Vice President of M & F Worldwide, the President of Pneu-mo Abex LLC, the Assistant Secretary of Maf-co Worldwide, the Senior Vice President of Mafco Consolidated, and the Senior Vice President of PCT International. Barry Schwartz was the Executive Vice Chairman and Chief Administrative Officer of MacAn-drews in January 2008.
. Although the details of Plan C changed over time, this plan generally involved discussions of various ways to resolve the parties’ disputed claims concerning the future asbestos liabilities of Pneumo Abex.
. In his affidavits filed in support of the Mafco Defendants' special appearances, Fas-*504man refers to all of the Mafco entities collectively as the “Mafco Defendants” and does not distinguish to which entity any of the facts he averred to relate. Because we imply all findings in favor of the trial court's denial of the special appearance, see Retamco, 278 S.W.3d at 337, where appropriate and supported by the record, we determine that Fas-man's contacts with Texas were on behalf of all of the Mafco Defendants.
. We need not assess contacts on a claim-by-claim basis if, as alleged here, all claims arise from the same forum contacts. Moncrief Oil Int'l Inc. v. OAO Gazprom, 414 S.W.3d 142, 150-51 (Tex.2013).
. The Moncrief Court concluded that the plaintiff’s tortious interference claims, however, either arose from a meeting in California or the formation of a competing enterprise in Texas not subject to jurisdiction in the proceedings at bar, and thus a Texas court lacked jurisdiction over these claims. Moncrief 414 S.W.3d at 147.
. See Parex Resources, Inc. v. ERG Resources, LLC, 427 S.W.3d 407, 426-27 (Tex.App.—Houston [14th Dist.] 2014, pet. filed) (stating that telephone calls and emails sent to Texas by non-resident defendant were insufficient to establish purposeful availment). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/584909/ | 966 F.2d 1452
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Anthony W. HEFLIN, Petitioner-Appellant,v.Stephen T. SMITH, Warden, Respondent-Appellee.
No. 91-6256.
United States Court of Appeals, Sixth Circuit.
May 7, 1992.
Before NATHANIEL R. JONES and ALAN E. NORRIS, Circuit Judges, and WELLFORD, Senior Circuit Judge.
ORDER
1
Anthony W. Heflin, a Kentucky pro se prisoner, appeals a district court order dismissing his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 (1988). This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).
2
Petitioner was convicted by a jury on the following charges: one count of third degree burglary, three counts of second degree burglary, one count of second degree criminal possession of a forged instrument, one count of receiving stolen property, one count of first degree rape and sodomy, and one count of second degree criminal attempt to commit burglary. He was sentenced to a total of 70 years imprisonment.
3
Heflin filed a direct appeal but his convictions were affirmed by the Kentucky Supreme Court. Petitioner then filed a motion under Ky.R.Crim.P. 11.42 raising an ineffective assistance of counsel claim which was denied by the trial court. This decision was upheld by the Kentucky Court of Appeals because he had failed to perfect his appeal. His motion to reinstate the appeal was overruled. He filed a motion for discretionary review which was denied by the Kentucky Supreme Court.
4
Heflin then filed a habeas petition alleging five grounds for relief. He alleged: (1) there was insufficient evidence to support his conviction on third degree burglary; (2) the trial judge failed to instruct on the lesser included offense of criminal trespass; (3) there was insufficient evidence to support his convictions on rape and sodomy; (4) his confession on two burglary charges was obtained in violation of his Miranda rights; and (5) his counsel's representation was ineffective. A magistrate judge recommended denying his petition. After de novo review in light of his objections, the district court adopted the report and recommendation of the magistrate judge and dismissed the case. On appeal, Heflin requests leave to proceed as a pauper. Both parties have filed briefs.
5
Initially, we note that Heflin has only presented his ineffective assistance of counsel claim on appeal. Issues which were raised in the district court, yet not raised on appeal, are considered abandoned on appeal and not reviewable. See McMurphy v. City of Flushing, 802 F.2d 191, 198-99 (6th Cir.1986). Thus, the remaining issues are not reviewable on appeal.
6
Upon review, we conclude that the district court properly refused to consider the merits of Heflin's ineffective assistance of counsel claim as he has failed to show cause and prejudice to excuse his procedural default in the state courts. Wainwright v. Sykes, 433 U.S. 72, 84 (1977).
7
Accordingly, Heflin's request to proceed as a pauper is granted and the judgment of the district court is hereby affirmed. Rule 9(b)(3), Rules of the Sixth Circuit. | 01-04-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/587318/ | 970 F.2d 338
Larry POUNDS, Plaintiff-Appellee,v.David GRIEPENSTROH, Hugh Barclay, and Louis Lubbehusen,Defendants-Appellants.
No. 91-2732.
United States Court of Appeals,Seventh Circuit.
Argued Feb. 13, 1992.Decided Aug. 6, 1992.
Theodore Lockyear, Lockyear & Kornblum, Evansville, Ind., Frank R. Hahn (argued), Newburgh, Ind., for plaintiff-appellee.
James P. Casey, Bowers, Harrison, Kent & Miller, Evansville, Ind., James S. Stephenson, Kenneth Collier-Magar (argued), Stephenson & Kurnik, Indianapolis, Ind., Francis H. Lueken, Ferdinand, Ind., for defendants-appellants.
Before COFFEY and FLAUM, Circuit Judges, and ESCHBACH, Senior Circuit Judge.
COFFEY, Circuit Judge.
1
Larry Pounds, former Veteran's Service Officer (VSO) of Spencer County, Indiana, sued Spencer County and members of the Spencer County Board of Commissioners, alleging that the Board's decision not to reappoint him as VSO in 1989 was politically motivated, and therefore violated his rights under the first and fourteenth amendments. 42 U.S.C. § 1983. The defendant commissioners moved for summary judgment on the ground of qualified immunity, but the district court denied the motion. We disagree with the trial court's finding and reverse, holding that the defendant commissioners are entitled to qualified immunity.
BACKGROUND
2
Indiana's Department of Veterans' Affairs assists veterans in obtaining "any advantage, benefit or emolument" to which they may be entitled. Ind.Code § 10-5-1-3(a). The Department is headed by the Veteran's Affairs Commission, a four-person group appointed by the governor and containing no more than two members of the same political party, which establishes rules and regulations for the Department and makes general administrative policies. Ind.Code §§ 10-5-1-5(a) and 10-5-1-6. The Director of Veterans' Affairs, also appointed by the governor, oversees the Department's daily operation and ensures that the policies of the governor and the Commission are carried out. Ind.Code §§ 10-5-1-7 and 10-5-1-8. The Director likewise supervises the county and city VSOs, though they are appointed by the local county commissioners or city council. Ind.Code § 10-5-1-11.
3
In Spencer County the VSO serves a one-year term at the pleasure of the County Board of Commissioners. The plaintiff was appointed VSO in 1981 and again in 1982, but resigned in September of that year. He was appointed again in mid-1983, and reappointed every year until 1989. On January 3 of 1989 the three-member Board, containing two recently-elected commissioners (defendants Lubbehusen and Griepenstroh), chose not to reappoint Pounds, and instead appointed Don Patmore to the position of Spencer County VSO. Pounds filed suit, alleging that the Board refused to reappoint him because he was not a Democrat, and that this deprived him of his right to free speech and association and equal protection.
4
The district court denied the defendants' summary judgment motion, finding that they were not entitled to qualified immunity because they had not demonstrated that political allegiance was essential in a VSO. As allowed by Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S. Ct. 2806, 2817, 86 L. Ed. 2d 411 (1985) the defendants have taken an interlocutory appeal from this ruling. We review this decision de novo. Upton v. Thompson, 930 F.2d 1209, 1211 (7th Cir.1991).
DISCUSSION
5
In Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396 (1982) the Supreme Court held that
6
governmental officials performing discretionary functions[ ] generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.
7
This protection, known as qualified immunity, serves an important purpose.
8
Where an official could be expected to know that certain conduct would violate statutory or constitutional rights, he should be made to hesitate; and a person who suffers injury caused by such conduct may have a cause of action. But where an official's duties legitimately require action in which clearly established rights are not implicated, the public interest may be better served by action taken with independence and without fear of consequences.
9
Id. at 819, 102 S.Ct. at 2739 (footnote and internal quotation marks omitted). Qualified immunity shields officials from the burdensome demands often imposed on those who must defend a lengthy lawsuit by requiring the right allegedly violated to have been clearly established at the time of the official's action. Id. at 818, 102 S.Ct. at 2738. Siegert v. Gilley, --- U.S. ----, ---- - ----, 111 S. Ct. 1789, 1793-94, 114 L. Ed. 2d 277 (1991). The rationale is that "[i]f the law at the time was not clearly established, an official could not reasonably be expected to anticipate subsequent legal developments, nor could he be fairly said to 'know' that the law forbade conduct not previously identified as unlawful." Harlow, 457 U.S. at 818, 102 S. Ct. at 2738. A right is "clearly established" for qualified immunity purposes only where "the contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates the right," and "in the light of pre-existing law the unlawfulness [of the official's acts was] apparent." Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 3039, 97 L. Ed. 2d 523 (1987). Thus, where the law at the time of the act was not sufficiently developed to put the official on notice that his or her act would violate the plaintiff's statutory or constitutional rights, the official is immune from liability. This standard is high, but it serves the dual purposes of qualified immunity: it allows officials to carry out their duties confidently, without fear of incurring unexpected liability, and it allows courts to dispose of insubstantial claims prior to trial, sparing officials from unnecessary litigation. The standard is objective, based on what a reasonable official would or should have known and thought in the same circumstances, given the state of the law at that time. Id. at 639, 107 S.Ct. at 3038.
10
In this case Pounds contends that the defendants violated his right to be free from politically motivated employment decisions when they refused to reappoint him as county VSO because he was not a Democrat.1 Generally, a public employee cannot be fired or subjected to other adverse employment decisions solely for political reasons. Elrod v. Burns, 427 U.S. 347, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976); Branti v. Finkel, 445 U.S. 507, 518, 100 S. Ct. 1287, 1294, 63 L. Ed. 2d 574 (1980); Rutan v. Republican Party of Illinois, 497 U.S. 62, ---, 110 S. Ct. 2729, 2756, 111 L. Ed. 2d 52 (1990). There is an exception to this rule where "the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved."2 Branti, 445 U.S. at 518, 100 S.Ct. at 1295. Party affiliation is an appropriate job requirement where "the position held by the individual authorizes, either directly or indirectly, meaningful input into government decisionmaking on issues where there is room for principled disagreement on goals or their implementation." Nekolny v. Painter, 653 F.2d 1164, 1170 (7th Cir.1981). Given these standards, the question we must answer is: Could the defendants, in light of what they knew about the duties and powers of a county VSO and the law at the time, have reasonably believed that they could refuse to reappoint Pounds solely because of his political affiliation?Initially, we review the powers and duties of a county VSO, as the functions performed by an official often determine whether he plays a role in setting or implementing policy. Our inquiry is limited to the powers inherent in the office itself; we are not interested in whether or not a particular occupant may have turned the office into a political one. Upton, 930 F.2d at 1214; Hudson v. Burke, 913 F.2d 427, 431 (7th Cir.1990). The Indiana Code reveals that VSOs are appointed by the county commissioners to "render service to the veterans of said county" and are paid from county funds. Ind.Code § 10-5-1-11. Although the statute describing county VSOs does not specifically delineate the meaning of the phrase, "render service to the veterans," the section creating the Department of Veterans' Affairs states that officers of the department, including county VSOs,
11
shall have full power and authority to do such acts at the request of any veteran of the armed forces, or his or her spouse, surviving spouse or dependents, which shall be necessary or reasonably incident to obtaining or endeavoring to obtain for the [veteran, spouse, or dependent] any advantage, benefit or emolument accruing, due or believed to be accruing or due to such person under any law of the United States, the state of Indiana or any other state ... by reason of the service of such veteran in the armed forces of the United States.
12
Ind.Code § 10-5-1-3. County VSOs must have the same qualifications and adhere to the same rules and regulations as members of the state Department of Veterans' Affairs. They are supervised by the state Director of Veterans' Affairs. Id. The commissioners' decision of whether to employ a county VSO and how to fund the position is discretionary. Ind.Code § 10-5-1-11. The VSO, in turn, is invested with discretion in the use of the county's funds once appropriated.
13
Having outlined the powers of a VSO, we turn to the law at the time of the defendants' decision to determine whether it was clearly established that a government employee in Pounds's position could not be fired for political reasons. As Justice Scalia observed in his dissent in Rutan, supra, the law governing patronage dismissals after Branti is almost incurably vague. "What [the Branti standard] means is anybody's guess ... [I]nterpretations of Branti are not only significantly at variance with each other; they are still so general that for most positions it is impossible to know whether party affiliation is a permissible requirement until a court renders its decision." Rutan, 497 U.S. at ---, 110 S. Ct. at 2756; see also Upton, 930 F.2d at 1213 ("between the strictly menial government worker ... and the policymaker/confidential assistant ... there is a range of government positions for which the propriety of patronage firing has depended largely on the courts' juggling of competing constitutional and political values."); Meeks v. Grimes, 779 F.2d 417, 419 (7th Cir.1985) ("the problems faced by the courts in applying the [Elrod/ Branti ] formulation have become increasingly intractable.") The difficulty officials face in predicting whether a certain position is a proper target for political hiring and firing is the natural result of the myriad of governmental bodies, departments, and positions, and the varying responsibilities of public employees. Meeks, 779 F.2d at 419. Indeed, it is difficult to imagine how any plaintiff, under Anderson, could have a clearly established right to be free from patronage dismissal unless a nearly identical case had already been decided. Cf. Greenberg v. Kmetko, 922 F.2d 382, 385-86 (7th Cir.1991) (Cudahy, J., concurring) ("[T]he law of qualified immunity, as it has developed in this circuit, has tended to find qualified immunity in almost any case of first impression.")
14
This state of affairs injures both sides. A plaintiff has little chance of winning a case of first impression unless she occupies an extremely high or low rung on the bureaucratic ladder. E.g., Tomczak v. City of Chicago, 765 F.2d 633 (7th Cir.1985) (second-highest official in Chicago Water Department subject to patronage dismissal because he helped establish and implement policies for allocating water--a sometimes testy political issue); Meeks, 779 F.2d at 420-21 (court bailiffs not subject to political dismissal because they did not set policy or have access to confidential information). By the same token, though, government officials are hard-pressed to predict who can be replaced for political reasons, and so may be dissuaded from reaping the full benefit of their victory at the polls and rewarding loyal supporters. Faced with such uncertainty, it may be preferable to err on the side of caution and it might be well to find qualified immunity where we cannot confidently state that the right was clearly established or that the officials must have known their acts were proscribed by law. This is in line with the general principle that "public officials are entitled to immunity unless it has been authoritatively decided that certain conduct is forbidden." Alliance to End Repression v. City of Chicago, 820 F.2d 873, 875 (7th Cir.1987).
15
Furthermore, Pounds had the burden to find closely analogous cases showing that his right was clearly established and has failed to do so. Upton, 930 F.2d at 1212; Rakovich, 850 F.2d at 1209. In fact, the only decisions concerning local VSOs (or their functional equivalent) are cited by the defendants. Savage v. Gorski, 850 F.2d 64 (2d Cir.1988), a New York case, involved the First Deputy Service Officer of the County Veterans' Service Agency. The court held that the defendant County Executive could fire the officer for political reasons because his high salary, his contact with the public and veterans' organizations, and his power to interview veterans to determine their eligibility for benefits all indicated that he could affect the implementation of the executive's policies, and so a shared ideology was a legitimate job requirement. Id. at 69. In Wagner v. Hawkins, 634 F. Supp. 751 (W.D.Ark.1986) the chief executive officer of the county fired the VSO for political reasons. The court held that the chief executive was immune from liability for this action because the VSO met frequently with veterans concerning benefits issues and set goals and implemented policies with the chief executive's guidance, but primarily on his own. The court found that the VSO related to the county's chief executive much as a cabinet member relates to the governor, and therefore politics could be his undoing. Id. at 754.
16
The defendants claim these cases establish that the law in 1989 allowed them to reasonably believe they could appoint a new VSO based on ideology alone. After all, Pounds consulted with veterans and their families concerning benefits, filed reports with the commission, and essentially set his own goals and policies, some of which could be at variance with those of the commissioners. In other words, he held a position where there was room for "principled disagreement on goals or their implementation" and thus was terminable under Nekolny. 653 F.2d at 1170. Pounds, however, maintains that these cases are irrelevant because New York and Arkansas have different statutory schemes than Indiana. This is true of Wagner, where the county executive set policies for the VSO and directly supervised him. The facts in Savage, however, are fairly analogous to those in the instant case. Savage involved New York law, which states that county VSOs serve at the pleasure of the county executive, but report to the state Veterans' Service Agency. N.Y. Executive Law, §§ 357 and 358 (McKinney 1981). This is identical to the situation in Indiana, where the defendants appointed Pounds but he answered to state officials. Moreover, the primary duty of New York VSOs is to assist veterans in their county in obtaining available benefits, education or rehabilitation. Id. Pounds did the same. Pounds, then, had much in common with the official in Savage, and the Second Circuit held that the VSO there was subject to patronage dismissal even though he actually implemented the policies of state officials rather than the county executive. Though the Savage court did not offer a lengthy explanation for its decision, the logical rationale is that the VSO's discretionary choices concerning the budget and office policy could reflect on the executive and even run counter to the executive's broad objectives or goals for the county, or the executive's policy as to how and when, and for what, county funds should be spent. In such circumstances, the executive could logically believe that it was important that the VSO share the same political outlook. See Kurowski v. Krajewski, 848 F.2d 767, 770 (7th Cir.1988) (suggesting that an official can consider the politics of appointees, even when those appointees, e.g. a judge or a member of the FTC, will be independent of the official once ensconced in office); Tomczak, 765 F.2d at 641 (noting that provision of public services is often an election issue, and therefore an elected official with specific policies on the subject is entitled to pick employees with the same views where these employees have some autonomy in expanding or implementing the policy).
17
Thus, Savage allows us to answer the key question in qualified immunity cases: Given the particular facts and the existing law, could the defendants reasonably have believed that their actions would not violate the plaintiff's rights? The answer here is yes. County VSOs in Indiana report to state officials and follow their policies, but they also must look to the county commissioners for funding, office space, and, most importantly, appointment. Moreover, county VSOs provide aid to local veterans, and it is possible that someone running for the elected position of commissioner could make promises to the public, and in particular the veterans, as to how the allocated funds will be used in social programs. When elected, the commissioner has every reason to believe that the only way to fulfill these promises is to appoint a VSO with a similar ideology. The law in 1989 did not clearly forbid such an act; Savage indicated that it was allowable, and cases from this circuit stated that anyone who played a significant role in setting or implementing policy could be fired for politics. Nekolny, 653 F.2d at 1170. Thus, the contours of the right to be free from politically motivated employment decisions were not so definite in 1989 as to make the unlawfulness of the defendants' acts apparent, and we therefore hold that Griepenstroh, Barclay, and Lubbehusen are entitled to qualified immunity under Harlow and Anderson.
18
REVERSED.
1
As evidence of the defendants' political animus, Pounds stated in his deposition that when he asked commissioner Lubbehusen whether the reason for the Board's decision was "one hundred and ten percent politics" Lubbehusen replied, "Yes, you're a big boy, you ought to understand that." Pounds Dep., at 148
2
This language raises an interesting issue as to who bears the burden of proof in qualified immunity cases involving patronage dismissals. Branti 's reference to what "the hiring authority can demonstrate" indicates that the defendant official bears the burden of proving that political allegiance was essential to the plaintiff's effective performance. On the other hand, our cases state that, in order to defeat a claim of qualified immunity, the plaintiff bears the burden of pointing to analogous cases establishing that the constitutional right claimed to have been violated was clearly established. Rakovich v. Wade, 850 F.2d 1180, 1209 (7th Cir.) (en banc), cert. denied, 488 U.S. 968, 109 S. Ct. 497, 102 L. Ed. 2d 534 (1988); see also Upton v. Thompson, 930 F.2d 1209, 1212 (7th Cir.1991); Abel v. Miller, 824 F.2d 1522, 1534 (7th Cir.1987). Thus, there is a shifting burden of proof under these circumstances. Initially, the plaintiff must allege the violation of some constitutional right. Siegert, --- U.S. at ----, 111 S. Ct. at 1793-94. Next, the plaintiff must attempt to demonstrate that the right is clearly established by referring the court to analogous cases that would have put the defendants on notice that their acts were illegal. Finally, the defendants must respond to the plaintiff's argument by proving, through prior decisions or otherwise, that they could reasonably have believed that their acts were constitutionally permissible, either because the plaintiff's right was not so clearly established that the unlawfulness of their acts was apparent, or because political allegiance actually was a legitimate job requirement in the particular case | 01-04-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/5283557/ | OPINION
Melissa Goodwin, Justice
Appellants James Sylvester, Ken Yar-borough, and Josephine Miller, candidates for the Texas House of Representatives in the 2002 general election, brought suit against appellees Texas Association of Business (TAB), Bill Hammond, the Texas Business and Commerce Political Action Committee (BACPAC), CIGNA Healthcare of Texas, Inc., and Connecticut General Life Insurance Company, alleging Election Code violations. Appellants sought damages based on “voter education” mailers that TAB disseminated and alleged in-kind political contributions from TAB to BACPAC during the 2002 general election cycle. See Tex. Elec. Code §§ 253.131, 254.231. The trial court granted final summary judgment in favor of appellees. On appeal, appellants raise six issues challenging the judgment. For the reasons that follow, we affirm.1
*522BACKGROUND
TAB is a non-profit corporation whose stated mission is “to build the best business climate on the planet through legislative action on the state and federal levels.” TAB “lobbies on every issue that impacts business to ensure that employers’ opinions are being heard.” Bill Hammond is TAB’s president and chief executive officer.
A few months before the 2002 general election, TAB solicited money from corporations to fund a “voter education project.” Hammond sent a memorandum dated August 22, 2002, to “Texas Business Leaders.” He stated that the goal was to raise one-million dollars and that “[o]ur strategy [was] simple: to educate voters about pro-business candidates through an aggressive direct mail program.” He also informed the corporations that “[c]ontributions for this purpose [were] not reportable” and provided an opinion letter from a Texas ethics attorney “regarding the legality of corporate expenditures for voter education programs.” In his letter, the attorney stated that corporate expenditures for “issue ads” were not reportable to the Texas Ethics Commission (TEC) or “any other governmental body.” In response, corporations, including CIGNA and CT General, contributed money to TAB in excess of $1.8 million for the “voter education project.” TAB spent these funds to disseminate mailers that specifically addressed candidates for the Texas House of Representatives and the Texas Senate.
TAB also sponsors BACPAC, a voluntary, non-profit unincorporated political committee. TAB did not appoint a campaign treasurer or file reports with the TEC during the 2002 election cycle, but BACPAC did. BACPAC accepted and made campaign contributions in the 2002 general election, disclosing the contributions in reports filed with the TEC.
Litigation Commenced
Appellants brought this suit in 2002 seeking damages under the Election Code based on the “voter education” mailers and alleged services provided by TAB employees to BACPAC. See Tex. Elec. Code §§ 253.131, 254.231.2 Appellants were unsuccessful candidates for the Texas House of Representatives in the 2002 general election.3 Some of the mailers provided information concerning the positions of appellants, their opponents, or both on specific issues.
Appellants contended that TAB violated provisions of the Election Code that apply to corporations and provisions that apply to political committees. Appellants alleged that “TAB constituted a political committee under the election code” by collecting funds and then spending them in support or in opposition to various legislative candidates. See id. § 251.001(12) (defining *523“political committee”)-4 Appellants urged that, as a political committee, TAB accepted illegal political contributions and made illegal political expenditures because it did not have a campaign treasurer as required by chapter 253 of the Election Code and had failed to report in accordance with chapter 254 of the Election Code. See id. §§ 253.004(a) (“A person may not knowingly make or authorize a political expenditure in violation of this chapter”), 253.031(b) (requiring political committee to have campaign treasurer appointment in effect before accepting political contributions or making political expenditures totaling more than $500), 253.037(a) (prohibiting general-purpose committee from making political expenditures or contributions during 60-day period following the filing of campaign treasurer appointment), 254.039 (requiring reporting for certain general-purpose committees), 254.153 (requiring semiannual reporting for general-purpose committees), 254.154 (requiring additional reporting for general-purpose committees involved in election). Based on their contention that TAB was a political committee, appellants also alleged that CIGNA and CT General violated the Election Code by making illegal corporate political contributions. See id. § 253.094(a).5
In the alternative, appellants alleged that TAB as a corporation failed to report in accordance with former section 253.062 of the Election Code. See Act of June 18, 1997, 75th Leg., R.S., ch. 864, § 244, 1997 Tex. Gen. Laws 2742, 2778, repealed by Act of June 17, 2011, 82d Leg., R.S., ch. 1009, § 6(2), 2011 Tex. Gen. Laws 2554, 2556.
Appellants’ claims concerning the alleged services of TAB employees to BAC-PAC were based on TAB’S status as a corporation. Appellants contended that TAB, CIGNA, and CT General made illegal corporate political contributions and that BACPAC illegally accepted corporate political contributions. See Tex. Elec. Code §§ 253.003(b) (“A person may not knowingly accept a political contribution the person knows to have been made in violation of this chapter.”), .094(a) (“A corporation or labor organization may not make a political contribution that is not authorized by this subchapter.”).
As to Hammond, appellants alleged that he “either made or had final approval over all material decisions” regarding TAB’S alleged political expenditures and contributions. Appellants also alleged that appel-lees engaged in a conspiracy to violate the Election Code.6 Appellants sought damages against all of the appellees under section 253.131 and against TAB under section 254.231. See id. §§ 253.131, 254.231.
*524Summary Judgment Motions
Appellees filed traditional motions for summary judgment. See Tex. R. Civ. P. 166a(c). Citing Citizens United v. Federal Election Commission, 558 U.S. 310, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010), CIGNA and CT General moved for summary judgment based on their assertions that they gave money to TAB solely to fund the mailers and that the mailers were independent of and not coordinated with any campaign or officeholder and, therefore, protected by the Constitution as independent expenditures. They urged that, after Citizens United, it was undisputed they, as well as TAB, could make these types of direct expenditures on their own and, therefore, that they could combine to do the same thing. They also asserted that they were not subject to chapter 254 of the Election Code, which addresses reporting requirements, and that there was no civil conspiracy liability for committing lawful acts.
Evidence attached to their motion included copies of Hammond’s memorandum dated August 22, 2002, the ethics lawyer’s opinion letter that was attached to the memorandum, copies of the mailers, an indictment of TAB concerning the mailers, an order quashing the indictment in June 2006, discovery responses by appellants, and a letter ruling in another civil case addressing similar claims by losing candidates against TAB and other corporations. In that case, the trial court granted summary judgment for the corporate defendants who also had donated money to TAB for its “voter education” mailers in the 2002 general election cycle.
TAB, Hammond, and BACPAC moved for summary judgment on the ground that all of appellants’ claims for monetary damages were factually predicated on TAB’s use of corporate funds in each of their particular legislative races. They then argued that the Election Code provisions did not apply to TAB’s “public education program” and, therefore, that appellants’ claims failed as a matter of law. They cited Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), to argue that chapter 253 of the Election Code did not apply because none of TAB’s mailers were express advocacy. The mailers did not contain words such as “vote for” or “defeat.” See id. at 44 n. 52, 96 S.Ct. 612 (setting forth examples of “express words of advocacy” such as “ ‘vote for, elect, support’”); see also Osterberg v. Peca, 12 S.W.3d 31, 51 (Tex.2000) (holding that “ ‘direct campaign expenditure’ by an individual in a candidate election includes only those expenditures that ‘expressly advocate’ the election or defeat of an identified candidate”). TAB, Hammond, and BAC-PAC alternatively argued that, if chapter 253 of the Election Code did apply to the mailers, its application was unconstitutional, vague, overbroad, and violated their First Amendment rights.
Citing Citizens United, they also argued that, although the Texas Legislature could require disclosure of corporate expenditures, that it had yet to do so and that, even if the mailers were express advocacy, the legislature does not have the authority to prevent TAB from using corporate funds to disseminate the mailers. They further argued that section 254.231 of the Election Code did not apply to them, that TAB was not a political committee, and that, even if it was, there was no need'to segregate contributions for “administrative expenses.” As to the alleged in-kind contributions by TAB to BACPAC, they contended that TAB’s employees’ services were unrelated to the mailers and that appellants’ allegations did not include a violation of section 253.002 as a basis for their claims.
*525Appellees’ motions were supported by affidavits by Hammond. In one of his affidavits, he testified in relevant part:
3. During the 2002 state election cycle TAB received in excess of $1.8 million from corporations. The entirety of this money was used to fund TAB’S voter education mailers, as described below.
4. TAB independently provided voters, via eighty-eight (88) direct mailers, with information on candidates for the Texas House of Representatives and the Texas Senate. These mailers provided by TAB highlighted a particular candidate’s view on specific issues, such as lawsuit reform, healthcare and taxes. These voter education pieces were informational only, and did not encourage readers to vote for or against any candidate. Additionally, these mail pieces did not use any words or phrases, such as “vote for,” “elect,” “support,” “cast your ballot for,” “vote against,” “defeat” or “reject.” TAB prepared these issue advertisements on their own volition, without consultation or coordination or cooperation from any candidate or agent thereof.
Responses to Summary Judgment Motions
Appellants filed responses to the motions with supporting evidence. They contended that TAB was a corporation and a political committee under the Election Code. Appellants also argued that the mailers were express advocacy and, therefore, “campaign expenditures” subject to the Election Code. See Tex. Elec. Code § 251.001(7) (defining “campaign expenditure” as “an expenditure made by any person in connection with a campaign for an elective office or measure”). They further argued that TAB violated section 253.094(a) of the Election Code by making corporate political contributions to BAC-PAC and that BACPAC violated section 253.003(b) by accepting corporate political contributions from TAB, which BACPAC then used in connection with appellants’ elections. See id. §§ 253.003(b), .094(a).
As to CT General and CIGNA, appellants contended, based on their position that TAB was a political committee, that CT General and Cigna Healthcare violated the Election Code by making contributions to TAB without restricting TAB’S use of their money to administrative purposes. See id. §§ 253.094(a), 253.100 (limiting corporate political contributions to general-purpose committee “to finance the establishment or administration” of the committee); Ex Parte Ellis, 309 S.W.3d 71, 88 (Tex.Crim.App.2010) (addressing corporate expenditures to general-purpose committees under section 253.100). They also urged that the contributions by CT General and CIGNA to TAB violated the Election Code because TAB made in-kind corporate contributions to BACPAC, and BACPAC made political contributions to candidates in the 2002 general election cycle. Appellants, however, agreed that they did not have claims against CIGNA and CT General based on chapter 254.
Appellants’ evidence included copies of the mailers, transcripts and exhibits from depositions of Hammond, excerpts of a portion of the hearing in 2003 on TAB’S motion to quash, BACPAC’s campaign finance reports for the 2002 general election, and TAB’s 2005 indictment and plea agreement concerning the alleged TAB employees’ services provided to BACPAC. The plea agreement reflects that TAB entered a guilty plea on the misdemeanor offense of unlawful direct campaign expenditures under section 253.002 of the Election Code, and the State and TAB agreed to enter into a deferred proseeu*526tion agreement as to a separate count. The campaign finance reports showed that BACPAC made political contributions to appellants’ opponents. The excerpts from the hearing in 2003 were of the testimony from one of TAB’s employees. She testified that she, as well as Hammond and Jack Campbell,7 worked on political projects for BACPAC during the 2002 general election cycle.
After a hearing in 2011, the trial court granted appellees’ motions and signed a final summary judgment in their favor. This appeal followed.
ANALYSIS
Appellants bring six issues challenging the trial court’s summary judgment ruling. In their first and third issues, they contend that TAB was a political committee under the Election. Code and, therefore, that the trial court erred by granting summary judgment on their claims that TAB unlawfully accepted campaign contributions, unlawfully made campaign expenditures, and failed to file required reports with the TEC. In their second issue, appellants contend that, even if TAB was not a political committee, that it made unlawful direct campaign expenditures by failing to report such expenditures to the TEC. In their fourth and fifth issues, appellants contend that the trial court erred by granting summary judgment as to their claims that were based on TAB’s alleged in-kind corporate political contributions to BACPAC. In their sixth issue, appellants contend that the trial court erred by granting summary judgment regarding their claims that CT General and CIGNA made unlawful corporate political contributions to TAB.
Standard of Review
We review a trial court’s summary judgment rulings de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005). To prevail on a traditional motion for summary judgment, a defendant must conclusively negate at least one essential element of each of the plaintiffs causes of action or must conclusively establish each element of an affirmative defense. Tex. R. Civ. P. 166a(c); Long Distance Int’l, Inc. v. Telefonos de Mexico, S.A. de C.V., 49 S.W.3d 347, 350-51 (Tex.2001); Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997).
When the trial court does not specify the grounds for its summary judgment, as is the case here, the appellate court must affirm the summary judgment “if any of the theories presented to the trial court and preserved for appellate review are meritorious.” Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex.2003). When reviewing a summary judgment, we “review the evidence presented by the motion and response in the light most favorable to the party against whom the summary judgment was rendered, crediting evidence favorable to that party if reasonable jurors could, and disregarding contrary evidence unless reason-, able jurors could not.” Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex.2006); see Dorsett, 164 S.W.3d at 661.
Appellants’ issues also concern statutory construction. Wé review matters of statutory construction de novo. See Texas Mun. Power Agency v. Public Util. Comm’n, 253 S.W.3d 184, 192 (Tex.2007). Of primary concern in construing a statute is the express statutory language. See Galbraith Eng’g Consultants, Inc. v. Pochucha, 290 S.W.3d 863, 867 (Tex.2009); Osterberg, 12 S.W.3d at 38. “We thus *527construe the text according to its plain and common meaning unless a contrary intention is apparent from the context or unless such a construction leads to absurd results.” Presidio Indep. Sch. Dist. v. Scott, 309 S.W.3d 927, 930 (Tex.2010) (citing City of Rockwall v. Hughes, 246 S.W.3d 621, 625-26 (Tex.2008)). We consider the entire act, not isolated portions. 20801, Inc. v. Parker, 249 S.W.3d 392, 396 (Tex.2008). We also interpret statutes, if possible, in a way that makes them constitutional. See City of Pasadena v. Smith, 292 S.W.3d 14, 19 (Tex.2009).
TAB’s “Voter Education” Mailers
Appellants’ first and third issues challenge the trial court’s summary judgment regarding appellants’ claims that were based on TAB’s “voter education” mailers. Appellants contend that the trial court erred by granting summary judgment on these claims because TAB, by its actions, was a political committee and, as such, unlawfully accepted political contributions and unlawfully made campaign expenditures to fund the mailers without appointing a campaign treasurer or filing required reports. See Tex. Elec. Code §§ 253.004(a), 253.031(b), 253.037(a), 254.039, 254.153, 254.154.
The Election Code defines a “political committee” to mean “a group of persons that has as a principal purpose accepting political contributions or making political expenditures.” Id. § 251.001(12). Appellants urge that the evidence raises a fact issue regarding whether TAB was a political committee because the summary judgment evidencé was more than sufficient to show that a “principal purpose” of TAB was to accept political contributions — evidenced by the payments from the corporations — and to make political expenditures, including spending funds on the mailers. See id. § 251.001(5), (6), (7), (12) (defining “political contribution,” “expenditure,” “campaign expenditure,” and “political committee”).8 They point to the undisputed evidence that TAB accepted money from corporations, including CT General and CIGNA, and spent in excess of $1.8 million to fund the mailers. It was also undisputed that TAB did not appoint a campaign treasurer or file reports with the TEC during the 2002 general election. If TAB was a political committee, it violated the Election Code’s requirements to appoint a campaign treasurer and file reports with the TEC. See id. §§ 253.004(a), 253.031(b), 253.037(a), 254.039, 254.153, 254.154.
The parties join issue as to whether the mailers were “express advocacy” and “campaign expenditures” subject to the Election Code to support their competing positions as to whether TAB was a political committee. See id. § 251.001(7) (defining “campaign expenditure”); Citizens United, 558 U.S. at 324-25, 130 S.Ct. 876 (describing “functional equivalent” of express advocacy); Osterberg, 12 S.W.3d at 51 (holding that “ ‘direct campaign expenditure’ by an individual in a candidate election includes only those expenditures that ‘expressly advocate’ the election or defeat of an identified candidate”). Guided by the plain language of the Election Code and the directive from the United States Supreme Court in Citizens United, however, we need not determine whether the mailers were “express advocacy” or “campaign expenditures.”
*528TAB, in its capacity as a corporation, was subject to subchapter D of chapter 253, which addresses restrictions and limitations that expressly apply to corporations and labor organizations. See Tex. Elec. Code. §§ 253.091-.104. In 2002, section 253.094 prohibited corporations from making political expenditures unless expressly authorized in subchapter D. See Act of June 19, 1987, 70th Leg., R.S., ch. 899, § 1, 1987 Tex. Gen. Laws 2995, 3009 (amended 2011). Political expenditures include campaign expenditures. Tex. Elec. Code § 251.001(10). Assuming without deciding then that the mailers were “campaign expenditures,” TAB — as a corporation — would have violated section 253.094 as it existed in 2002 because no other provision within subchapter D authorized corporations to make this type of political expenditure. See id.
The United States Supreme Court in Citizens United, however, made clear that corporations have the same First Amendment free speech rights as individuals to make independent political expenditures. See 558 U.S. at 341-42, 356, 365, 130 S.Ct. 876. In that case, Citizens United, a nonprofit corporation that was funded by donations from individuals and for-profit corporations, challenged a federal statute that prohibited it from making independent political expenditures. Id. at 318-19, 130 S.Ct. 876. The Supreme Court granted Citizens United relief, holding that the ban on corporate-funded independent expenditures violated the First Amendment. Id. at 341-42, 356, 365, 130 S.Ct. 876. Similar to the expenditures at issue in Citizens United, the mailers at issue here were independent from any campaign or candidate. In his affidavit, Hammond testified that TAB prepared the mailers “on their own volition, without consultation or coordination from any candidate or agent thereof.” Appellants did not present contrary evidence. Thus, applying the analysis of Citizens United, even if the mailers were political expenditures and the “functional equivalent of express advocacy,” the First Amendment does not permit prohibiting a corporation, such as TAB, from disseminating the mailers.9 See id. at 372, 130 S.Ct. 876 (concluding unconstitutional to restrict corporate independent expenditures); see also Tex. Elec. Code § 251.001(8) (defining “direct campaign expenditure”).
Further, appellants have not cited, and we have not found, post-Citizens United authority that would support appellants’ position that an incorporated trade association such as TAB, by seeking money from corporations to fund, and then funding, constitutionally protected, independent expenditures, subjected itself to the 2002 regulatory scheme directed to political committees. See Citizens United, 558 U.S. at 341-42, 356, 365, 130 S.Ct. 876; Texans for Free Enter. v. Texas Ethics Comm’n, 732 F.3d 535, 538 (5th Cir.2013) (noting “no difference in principle — at least where the only asserted state interest is in preventing apparent or actual corruption — between banning an organization such as TFE from engaging in advocacy and banning it from seeking funds to engage in that advocacy (or in giving funds to other organizations to allow them to engage in advocacy on its behalf)”).
We are also mindful that we interpret statutes, if possible, in a way that makes them constitutional. See City of Pasadena, 292 S.W.3d at 19. Appellants do not contend that TAB was a sham corporation or that it was formed solely *529for the purpose of “accepting political contributions or making political expenditures” but argue that its actions surrounding the mailers in 2002 create a fact issue relating to “a principal purpose” in the definition of political committee. See Tex. Elec. Code § 251.001(12).10 Were we to interpret “principal purpose” in the definition of “political committee” as suggested by appellants so that corporations making independent political expenditures morph into political committees under the Election Code as it existed in 2002 when they made the expenditures, the definition would be an affront to the First Amendment.11 See Citizens United, 558 U.S. at 841-42, 856, 365, 130 S.Ct. 876.
Further, appellants’ suggested definition of “political committee” is inconsistent with the framework of the Election Code’s overall scheme. See Parker, 249 S.W.3d at 396 (considering entire act and not isolated portions when interpreting statutes). The Election Code’s overall scheme treats corporations and political committees as distinct types of entities and subjects them to incompatible provisions. See, e.g., Tex. Elec. Code §§ 253.031-.043 (provisions directed to political committees, officeholders, and candidates); §§ 253.091-.104 (provisions directed to corporations and labor organizations). Considering the context of the Election Code’s overall scheme and the Supreme Court’s directive, we decline to interpret the definition so broadly. See Citizens United, 558 U.S. at 341-42, 356, 365, 130 S.Ct. 876; City of Pasadena, 292 S.W.3d at 19; see also Tex. Elec. Code § 251.001(12); Parker, 249 S.W.3d at 396; King St. Patriots v. Texas Democratic Party, — S.W.3d-,-, No. 03-12-00255-CV, 2014 WL 7014378, at *13, 2014 Tex.App. LEXIS 13058, at *35-36 (Tex.App.-Austin Dec. 8, 2014, no pet. h.) (in context of First Amendment challenge to definition of “political committee,” applying common meaning of “principal” and “purpose” and “[vjiewing definitions as a whole and in context with each other”).
Appellants cite a TEC ethics advisory opinion to support their position that TAB is subject to the provisions for both corporations and political committees under the Election Code. See Op. Tex. Ethics Comm’n No. 242 (1995); see also Tex. Elec. Code § 253.092 (addressing treatment of incorporated political committee). In the opinion, the TEC concluded that a political committee could incorporate solely for liability purposes without subjecting itself to the limitations that the Election Code places on corporations. See Op. Tex. Ethics Comm’n No. 242. Section 253.092 of the Election Code similarly states that a political committee that “incorporates for liability purposes only” is not considered to be a corporation for purposes of subchap-ter D.12 See Tex. Elec. Code § 253.092. *530The opinion and section 258.092 make sense in the scheme of chapter 253. Otherwise, an incorporated political committee would be foreclosed from provisions in subchapter B, such as the allowance of campaign contributions, that conflict with restrictions in subchapter D, such as the prohibition from making political contributions. See id. §§ 251.001(12), 253.031(c) (allowing campaign contributions), 253.094(a) (prohibiting contributions); see also Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238, 256 (Tex.2008) (“The Court must not interpret the statute in a manner that renders any part of the statute meaningless or superfluous.”). But, in the context of independent expenditures, it does not follow that the inapplicability of section 253.092 to a corporation supports subjecting the corporation to Election Code provisions applicable to political committees.13
Appellants did not present evidence that contradicted TAB’S evidence that its principal purpose was to be an incorporated trade association for the business community. In one of his affidavits, Hammond testified that TAB “promotes the free enterprise system by working to improve the Texas business climate and to help make our state’s economy the strongest in the world” and that it “lobbies on every issue that impacts business to ensure that employers’ opinions are being heard.” The summary judgment evidence also included copies of TAB’S budgets for 2001 and 2002 and business reports to its members. The budgets and reports conform with Hammond’s testimony regarding TAB’S principal purpose as a trade association. One of the reports states that TAB’s mission is “to build the best business climate on the planet through legislative action on the state and federal levels.”
Here, the evidence was conclusive that TAB did not incorporate solely for liability purposes, that its principal purpose was to be a trade association for the business community, and that its actions surrounding the mailers were independent from campaigns and candidates. Given this uncontested evidence, we conclude that TAB established as a matter of law that its actions surrounding the mailers did not subject it to the Election Code provisions directed to political committees. See Tex. R. Civ. P. 166a(c). On this basis, we overrule appellants’ first and third issues.
Former Section 253.062
In their second issue, appellants contend in the alternative that TAB violated former section 253.062 of the Election Code by making direct campaign expenditures without reporting such expenditures. See Act of June 18, 1997, 1997 Tex. Gen. Laws at 2778. In 2002, section 253.062 prohibited an “individual” from making direct campaign expenditures exceeding $100 unless the individual complied with chapter 254 as if the individual were a *531campaign treasurer of a political committee. See id.14
Appellants cite a TEC 2010 advisory opinion to support their position that TAB in 2002 was subject to former section 253.062. See Op. Tex. Ethics Comm’n No. 489 (2010). In that opinion, TEC concluded that corporations that make direct campaign expenditures were required to comply with section 253.062. Appellants contend that we should defer to TEC’s interpretation of the statute. “A reasonable construction of a statute by the administrative agency charged with its enforcement is entitled to great weight.” Osterberg, 12 S.W.3d at 51 (citing State v. Public Util. Comm’n, 883 S.W.2d 190, 196 (Tex.1994); Dodd v. Meno, 870 S.W.2d 4, 7 (Tex.1994)). We may not defer to an agency’s interpretation of a statute, however, that is inconsistent with the language of the statute. See TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 438 (Tex.2011) (noting that courts normally defer to agency’s interpretation of statute that is vague or ambiguous unless “plainly erroneous or inconsistent with the language of the statute”).
The text of former section 253.062 is not vague or ambiguous. The statute expressly states that it applies to an “individual not acting in concert with another person.” Had the legislature intended a different or broader classification, it could have said so. See Texas Lottery Comm’n v. First State Bank of DeQueen, 325 S.W.3d 628, 636 (Tex.2010). In its 2010 opinion, the TEC recognized as much. See Op. Tex. Ethics Comm’n No. 489. It noted that Citizens United created a gap in the disclosure requirements for corporations, labor organizations, and other persons:
Title 15 does not explicitly state that a corporation, labor organization, or certain other persons[] must file reports to disclose direct campaign expenditures made to support or oppose a candidate.... Thus, title 15 did not specifically require disclosure of such expenditures because it simultaneously prohibited them. Citizens United removed our ability to restrict direct campaign expenditures by corporations, labor organizations, and other persons. This result has created a gap or ambiguity in title 15 that prompts us to address whether the absence of statutory language specifically addressing these direct campaign expenditures made to support or oppose candidates reflects the legislature’s intent that title 15, in the circumstances following Citizens United, require such expenditures to be disclosed.
Id. As the TEC recognized in its 2010 opinion, pre-Citizens United, the Election Code limited the types of political expenditures corporations could make. It follows that the legislature could not have intended for a corporation to disclose prohibited expenditures given that a corporation was not allowed to make them in the first place. There was no need to have a disclosure requirement for corporations because there was nothing to disclose.
Given the plain language of former section 253.062, we decline to expand the meaning of “individual” to subject a corporation to liability for failing to report direct campaign expenditures in 2002. See TGS-NOPEC Geophysical Co., 340 S.W.3d at *532439 (“We presume that the Legislature chooses a statute’s language with care, including each word chosen for a purpose, while purposefully omitting words not chosen.”); Scott, 309 S.W.3d at 930-31. On this basis, we overrule appellants’ second issue.
TAB Employees’ Services to BACPAC
Appellants’ fourth and fifth issues challenge the trial court’s summary judgment rulings in favor of TAB and BACPAC as to appellants’ claims regarding the alleged employees’ services provided by TAB to BACPAC. In their fourth issue, appellants contend that TAB as a corporation violated section 253.094(a) because its employees’ services were in-kind political contributions and TAB did not present evidence that it restricted the contributions to administrative matters. See Tex. Elec. Code §§ 253.094(a) (prohibiting corporations from making political contributions), 253.100; Ex parte Ellis, 309 S.W.3d at 88 (discussing section 253.100); see also Tex. Elec. Code § 251.001(2), (3), (5) (defining “contributions,” “political contributions” and “campaign contributions”). In their fifth issue, based on the same alleged employees’ services, appellants contend that BACPAC violated section 253.003(b) by accepting the in-kind political contributions from TAB. See Tex. Elec. Code § 253.003(b) (“A person may not knowingly accept a political contribution the person knows to have been made in violation of this chapter.”).
In their summary judgment motions, TAB and BACPAC challenged these claims on the ground that the mailers were “not factually connected with the criminal charges to which TAB plead guilty” and appellants did not allege a section 253.002 violation. The evidence was undisputed that TAB pleaded guilty to the misdemeanor offense of unlawful direct campaign expenditures under section 253.002 of the Election Code concerning TAB employees’ services to BACPAC, and not to making unlawful in-kind corporate political contributions. See id. § 253.002 (prohibiting person from knowingly making or authorizing direct campaign expenditures with exceptions); see also id. § 251.001(2), (3), (5). Further, appellants in their pleadings did not assert a violation of section 253.002 to support their request for statutory damages as to the alleged in-kind employees’ services, but a violation of section 253.094(a) by TAC and section 253.003(b) by BACPAC. See id. §§ 253.003(b) (prohibiting knowingly accepting political contributions made in violation of chapter), .094 (prohibiting corporations from making political contributions not authorized by subchapter D).15 On this basis, we overrule appellants’ fourth and fifth issues.
Contributions from CIGNA and CT General to TAB
In their sixth issue, appellants contend that CT General and CIGNA were not entitled to summary judgment on appellants’ claims that they made unlawful corporate political contributions to TAB. Appellants make similar arguments to those made in their first and third issues, arguments based on their position that TAB was a political committee. They contend that CIGNA and CT General violated the Election Code by making contributions to *533a political committee — TAB—and then failing to restrict their contributions to administrative purposes. See id. §§ 253.094(a), 253.100; Ex parte Ellis, 309 S.W.3d at 88.
Given our conclusion that the summary judgment evidence established as a matter of law that TAB’s conduct surrounding the mailers did not subject it to the restrictions applicable to political committees, it follows that CT General and CIGNA did not violate the Election Code by donating money to TAB to fund the mailers and that such payments — because they were not made to a candidate or political committee — did not fall within the definition of contribution under the Election Code. See Tex. Elec. Code § 251.001(3), (5) (“political contribution” includes a “campaign contribution” which means a “contribution to a candidate or a political committee ... ”). Appellants do not dispute that CT General and CIGNA could have funded and sent the mailers themselves as independent political expenditures. Appellants also have failed to cite, and we have not found, post-Citizens United authority that would support prohibiting corporations from funding the types of mailers at issue here. See Citizens United, 558 U.S. at 341-42, 356, 365, 130 S.Ct. 876; Texans for Free Enter., 732 F.3d at 538. Further, because we have concluded as a matter of law that the mailers did not subject TAB to the provisions of the Election Code applicable to political committees, we need not reach appellants’ argument that CT General and CIGNA violated the Election Code by making contributions to a political committee without restricting the contributions to administrative purposes. See Tex. Elec. Code § 253.100.
To the extent that appellants’ claims against CT General and CIGNA are based on the alleged employees’ services from . TAB to BACPAC, those claims fail as well. The summary judgment evidence was conclusive that CT General and CIGNA paid money to TAB to fund the mailers and that TAB used the corporate money exclusively for the mailers. In one of his affidavits, Hammond testified, “During the 2002 state election cycle TAB received in excess of $1.8 million from corporations. The entirety of this money was used to fund TAB’s voter education mailers, as described below.” Appellants point to another affidavit by Hammond in which he testified that the mailers were funded through TAB’s general account, “which contains money received from dues, assessments, and other revenue-producing activities.” But the fact that the mailers were paid through the general account is not inconsistent with and does not refute Hammond’s testimony that the corporate money was used solely to fund the mailers.
We conclude that CT General and CIG-NA established as a matter of law that they did not make unlawful corporate contributions to TAB and that the trial court, therefore, did not err by granting summary judgment in their favor. We overrule appellants’ sixth issue.
CONCLUSION
For the reasons stated above, we affirm.
Dissenting opinion by Chief Justice Jones
. We grant appellants' motion for leave to file supplemental brief and appellees CIGNA *522Healthcare of Texas, Inc. and Connecticut General Life Insurance Company's motion for leave to file supplemental authority.
. Section 253.131(a) of the Election Code reads: "A person who knowingly makes or accepts a campaign contribution or makes a campaign expenditure in violation of this chapter is liable for damages as provided in this section.” Tex. Elec. Code § 253.131(a). Section 254.231(a) of the Election Code similarly states:
A candidate or campaign treasurer or assistant campaign treasurer of a political committee who fails to report in whole or in part a campaign contribution or campaign expenditure as required by this chapter is liable for damages as provided by this section.
Id. § 254.231(a).
. James Sylvester lost to Jack Stick, Ken Yar-borough lost to Dwayne Bohac, and Josephine Miller lost to Gene Seaman.
. The Election Code defines a political committee as "a group of persons that has as a principal purpose accepting political contributions or making political expenditures.” Id. § 251.001(12).
. In 2002, section 253.094(a) limited corporate political contributions and expenditures to those expressly allowed in the subchapter. See Act of June 19, 1987, 70th Leg., R.S., ch. 899, § 1, 1987 Tex. Gen. Laws 2995, 3009 (amended 2011). In 2011, section 253.094(a) was amended to read:
A corporation or labor organization may not make a political contribution that is not authorized by this subchapter.
Tex. Elec. Code § 253.094(a).
.Appellants have not challenged the summary judgment ruling in favor of appellees as to the conspiracy claim. Thus, appellants have waived any error with regard to that claim. See Jacobs v. Satterwhite, 65 S.W.3d 653, 655-56 (Tex.2001) (per curiam) (concluding that court of appeals erred by reversing summary judgment on particular claim because appellant did not complain about summary judgment on that claim).
. Campbell was also a TAB employee.
. The Election Code defines a political expenditure to include a campaign expenditure and, as previously stated, a campaign expenditure means "an expenditure made by any person in connection with a campaign for elective office or on a measure.” Tex. Elec. Code § 251.001(7), (10).
. Appellants do not contend otherwise. They state in their brief: "Appellants do not contest that corporations have the legal right to spend their own money to try and sway voters towards their own preferred slate of candidates.”
. As previously stated, the definition of a political committee requires that the group have as "a principal purpose accepting political contributions or making political expenditures." Tex. Elec. Code § 251.001(12). Applying their common meaning, "purpose” means "[t]he object toward which one strives or for which something exists; goal; aim.” American Heritage Dictionary of the English Language 1062 (1973). “Principal” means "[fjirst, highest, or foremost in importance, rank, worth, or degree; chief.” Id. at 1041.
. The dissent misstates the bases of our holding. The dissent argues that a group of persons could have more than one principal purpose but, even if that were the case, that is not a controlling issue here. The controlling issue is the impact and reach of the holding of Citizens United on the Election Code provisions at issue, including the scope of the political committee definition in the context of a corporation’s constitutional right to make independent political expenditures.
.The dissent also states that our holding is based on the conclusion that a corporation can never be a political committee, but, as we acknowledge, section 253.092 of the Election Code allows a political committee to incorpo*530rate. Again, that is not a controlling issue here.
. After all, even if a corporation complied with the regulations applicable to political committees, it still would have violated the Election Code as it existed in 2002 if it made independent political expenditures. See, e.g., Tex. Elec. Code §§ 253.031(c) (allowing political committees to make campaign contributions and expenditures after appointment of campaign treasurer), former 253.094(a) (prohibiting corporation from making political contributions and expenditures unless authorized by subchapter); see also id. § 251.001(3) (defining “campaign contribution”), (5) (defining “political contribution”); Presidio Indep. Sch. Dist. v. Scott, 309 S.W.3d 927, 931 (Tex.2010) ("Courts must not give the words used by the Legislature an ‘exaggerated, forced, or constrained meaning.’ ” (quoting City of Austin v. Southwestern Bell Tel. Co., 92 S.W.3d 434, 442 (Tex.2002))).
. In 2011, the legislature enacted section 254.261. See Act of May 24, 2011, 82d Leg., R.S., ch. 1009, § 5, 2011 Tex. Gen. Laws 1009. Section 254.261 requires a "person” to file reports for direct campaign expenditures exceeding $100. See Tex. Elec. Code § 254.261. Thus, a corporation's direct campaign expenditures are now subject to disclosure. See id.
. In the section of their Tenth Amended Original Petition titled "Causes of Action,” appellants asserted that TAB violated sections 253.004(a), 253.031(b), and 253.037(a) by making political expenditures without a campaign treasurer appointment. See Tex. Elec. Code §§ 253.004(a), .031(b), .037(a). As to the alleged "corporate political contributions to BACPAC,” appellants specifically asserted that TAB violated section 253.094(a) and BACPAC violated section 253.003(b). See id. §§ 253.003(b), .094(a). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283558/ | J. Woodfin Jones, Chief Justice,
dissenting
I respectfully dissent.
The majority holds that TAB was not— indeed, could not have been — a “political committee” under the Texas Election Code. As the majority acknowledges, “[i]f TAB was a political committee, it violated the Election Code’s requirements to appoint a campaign treasurer and file reports with the TEC.” Op. at 527. The defen*534dants’ motions for summary judgment relied on the argument that TAB was not a political committee. The crucial question, then, is whether the defendants carried their burden of showing as a matter of law that TAB was not a “political committee” as that term is defined in the Texas Election Code.
“A Principal Purpose”?
The Election Code defines “political committee” as “a group of persons that has as a principal purpose accepting political contributions or making political expenditures.” Tex. Elec. Code § 251.001(12). The majority first implies that TAB is not a political committee because its primary purpose is as a trade association for the business community. But the Code does not define “political committee” in terms of “the” principal purpose but rather “a” principal purpose. For three reasons, I believe that the only reasonable construction of this language is that the legislature intended-to leave open the possibility that a group of persons could have more than one principal purpose. The first reason is that other provisions of the Election Code itself confirm the legislature’s intention. For example, the Code defines “General-purpose committee” to mean “a political committee that has among its principal purposes ....” Id. § 251.001(14) (emphasis added). Similarly, the Code defines “Specific-purpose committee” to mean “a political committee that does not have among its principal purposes those of a general-purpose committee but does have among its principal purposes _” Id. § 251.001(13) (emphases added). These provisions make it clear that the statute contemplates that a group of persons can have more than one principal purpose. The second reason is that federal courts construing the phrase “a principal purpose” as used in ERISA have uniformly held that an employer may have more than one principal purpose under that Act. See, e.g., Sherwin-Williams Co. v. New York State Teamsters Conference Pension, Ret. Fund, 158 F.3d 387, 395 (6th Cir.1998); Santa Fe Pac. Corp. v. Central States, Se. and Sw. Areas Pension Fund, 22 F.3d 725, 727 (7th Cir.1994); Lopresti v. Pace Press, Inc., 868 F.Supp.2d 188, 201 (S.D.N.Y. 2012). And finally, the Texas Supreme Court has, albeit in a different context, recognized that the phrase “principal purpose” does not imply a limitation to a single purpose. See In re Blair, 408 S.W.3d 843, 847 (Tex.2013) (“We are not persuaded that providing support for rejoining society is the only, or even a principal, purpose of the compensation required by the [Tim Cole] Act.” (emphasis added)).
The defendants filed traditional motions for summary judgment, not no-evidence motions. See Tex. R. Civ. P. 166a(c), (i). Accordingly, they had the burden to prove the absence of a genuine issue of material fact and that they are entitled to judgment as a matter of law. Rule 166a(c). Specifically, they had the burden to prove as a matter of law that TAB did not have as one of its principal purposes “accepting political contributions or making political expenditures.” The summary-judgment record contains scant evidence from which to determine TAB’s purposes. The affidavit of William Hammond states that “TAB promotes the free enterprise system by working to improve the Texas business climate and to help make our state’s economy the strongest in the world. Additionally, TAB lobbies on every issue that impacts business to ensure that employers’ opinions are being heard.” The most that can be said about this evidence is that it demonstrates that one of TAB’s principal purposes is to promote the interests of the business community. It says nothing, however, about what other purposes TAB *535might have.1 The summary-judgment evidence therefore does not support the grant of summary judgment for TAB on the basis that its only principal purpose is as a trade association for the business community.
Incompatible Statutory Provisions?
The majority also appears to assert that TAB is not a political committee because the Election Code provisions dealing with corporations are incompatible with the Code provisions dealing with political committees. With certain exceptions, the Election Code prohibits corporations from making political contributions. See Tex. Elec. Code § 258.094. A political committee, on the other hand, may make political contributions and expenditures as long as the committee appoints a campaign treasurer and reports its contributions and expenditures. See id. § 253.081. The majority seems to argue that the application of these provisions to TAB is inherently incompatible, meaning that a corporation can never be a political committee irrespective of what its principal purposes are.
In my opinion, the two statutory provisions are not irreconcilably incompatible or repugnant. Requiring a corporation whose activities bring it within the definition of a political committee to appoint a campaign treasurer before making or accepting campaign contributions or making campaign expenditures is, for example, no more incompatible than prohibiting the possession of marihuana, Tex. Health & Safety Code § 481.121, while at the same time imposing a tax on any marihuana that is possessed, Tex. Tax Code § 159.201. While it is possible that double jeopardy issues could arise, see Ex parte Ward, 964 S.W.2d 617, 628-33 (Tex.Crim.App.1998), there is no inherent repugnancy or incompatibility between the two statutes. Indeed, the Texas Ethics Commission has recognized that, depending on its activities, a corporation can constitute a political committee. See Op. Tex. Ethics Comm’n No. 242 (1995); see also Tex. Elec. Code § 253.092. The Ethics Commission has also held, post-Citizens United, that a corporation that makes direct campaign expenditures must comply with disclosure requirements:
Considering title 15 of the [Texas] Election Code, the impact of Citizens United, and the additional factors stated previously, our opinion is that the legislature intended title 15 to require a corporation, labor organization, or other person that makes one or more direct campaign expenditures from its own property in connection with an election of a candidate to comply with section 253.062 [of the Election Code] as if it were an individual. Therefore, a corporation, labor organization, or other person that makes such expenditures must comply with the disclosure requirements that apply to an individual under section 253.062.
Op. Tex. Ethics Comm’n No. 489 (2010).
Express Advocacy?
Finally, although the majority does not address the issue of “express advocacy,” there is no question in my mind that the “magic words” test of Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), is not the applicable test here. First, the United States Supreme Court adopted a “functional equivalent” test in McConnell v. Federal Election Comm’n, 540 U.S. 93, 193-94, 124 S.Ct. 619, 157 *536L.Ed.2d 491 (2003), overruled on other grounds by Citizens United v. Federal Election Comm’n, 558 U.S. 310, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010). Later, in Federal Election Commission v. Wisconsin Right to Life, Inc., 551 U.S. 449, 127 S.Ct. 2652, 168 L.Ed.2d 329 (2007), the Chief Justice’s controlling opinion further refined the functional-equivalent test, holding that an ad could be regulated if it “is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.” Id. at 470, 127 S.Ct. 2652. The Chief Justice’s opinion expressly rejected the “magic words” test. See id. at 474 n. 7, 127 S.Ct. 2652. Finally, even in Citizens United, the Court did not use the magic-words test, concluding that one ad qualified as the functional equivalent of express advocacy. See Citizens United v. Federal Election Comm’n, 558 U.S. 310, 324-25, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010). I believe that “functional equivalent” or “no reasonable interpretation” is the proper test for evaluating whether the materials in the present case were subject to the restrictions contained in the Election Code.
I will not unnecessarily extend this opinion with a lengthy discussion of the specific materials disseminated by TAB. Suffice it to say that even a casual review of them leads inescapably to the conclusion that they are “susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.” Accordingly, I would reverse the trial court’s summary judgment.
. The summary-judgment evidence does, however, show that TAB solicited, accepted, and spent more than $1.8 million on the political mailers at is'sue in this case, raising the inference that one of TAB’s purposes— perhaps one of its principal purposes — lies in the political realm. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283563/ | Laura Denvir Stith, Judge
Realty Acquisition, LLC, appeals- the circuit court’s judgment sustaining motions by Beemer Construction Company and Seal-Ó-Matic Paving Company to set aside a tax sale of certain real property to Realty. Realty argues that the trial court erred in holding that, because Beemer and Seal-O-Matic had mechanic’s liens on the property, they were entitled to personal notice by mail of the tax sale. In support, Realty notes that section 141.540, RSMo Supp. 2013, the statute governing notice of tax sales, requires only notice by publication to persons other than owners. This Court affirms.
A mechanic’s lien properly filed with the clerk of the court constitutes a substantial property interest that is entitled to due process protection, including the giving of personal notice by mail of a tax sale to those mechanic’s lienholders whose names and addresses are reasonably ascertainable from public records. The clerk of each circuit court maintains a book of abstracts of mechanic’s lien filings that includes the name and address of each person with a mechanic’s lien claim on particular property. § 4.29.090, RSMo 2000. This Court recognized in State ex rel. Erbs et al. v. Oliver, 361 Mo. 836, 237 S.W.2d 128, 130 (Mo. banc 1951), that the abstract is “a proper public record.” No reason is given as to why holders of properly filed mechanic’s liens are not entitled to due process protection of their property interests, including personal notice by mail, other than that it would require the county collector of revenue to look in two locations rather than in a single location to determine who is entitled to personal notice. This minimal additional burden is not sufficient to outweigh the due process rights of those possessing mechanic’s liens on a property whose names and addresses are reasonably ascertainable from the public records maintained by the county in its circuit clerk’s office, as required by statute.
Because it is uncontested that, as required under the pertinent provisions of section 429.080,1 Beemer and Seal-O-Matic had filed their respective mechanic’s liens with the clerk of the Jackson County circuit court, the trial court did not err in setting aside the tax sale due to inadequate notice. Affirmed.
I. STATEMENT OF FACTS
Sunnypointe, LLC, an administratively dissolved Missouri limited liability company, owned a parcel of real property, commonly known as Sunny Pointe 2nd Plat, located at the southeast intersection of R.D. Mize Road and N.E. Chapman Drive in Blue Springs (the “property”). In August 2006, Beemer installed sanitary sewers, storm sewers, and water mains on the property. In January 2007, Seal-O-Matic installed curbs and asphalt for streets on the property. Sunnypointe did not pay Beemer or Seal-O-Matic for their services. Beemer, in April 2007, and Seal-O-Matic, in December 2007, filed mechanic’s liens against the property with the clerk of the Jackson County circuit court. Beemer’s *749mechanic’s lien was for $164,879.76, and Seal-O-Matic’s mechanic’s lien was for $187,494.80. It is undisputed that both parties complied with section 429.080, which requires, in pertinent part, that a party filing a mechanic’s lien:
[F]ile with the clerk of the circuit court of the proper county a just and true account of the demand due him or them after all just credits have been given, which is to be a lien upon such building or other improvements, and a true description of the property, or so near as to identify the same, upon which the lien is intended to apply, with the name of the owner or contractor, or both, if known to the person filing the lien, which shall, in all cases, be verified by the oath of himself or some credible person for him.
Sunnypointe did not pay the 2007 taxes on the property before they became delinquent, so on May 24, 2010, the Director of Collections for Jackson County (the “collector”) filed a petition2 requesting: (1) foreclosure on the property under the land tax collection law for unpaid real estate taxes and (2) a court order for a public sale of the property for payment of all delinquent tax bills. On or about June 4, 2010, notice by certified mail of the foreclosure action was sent to Sunnypointe, the registered owner.3 On November 12, 2010, the trial court entered final judgment in the foreclosure action allowing the collector to sell the property at a tax sale.
The collector scheduled the tax sale for August 22, 2011. He provided publication notice of the sale as well as notice by certified mail to Sunnypointe on or about June 28, 2011. But, although Beemer and Seal-O-Matic had filed their mechanic’s liens with the clerk of the circuit court and the clerk’s abstract book showed these liens and the lienholders’ names and addresses, no attempt was made to examine the clerk’s records or otherwise identify or personally notify these mechanic’s lien claimants. Therefore, neither Beemer nor Seal-O-Matic received personal notice of the tax sale, and neither was aware of the publication notice prior to the occurrence of the tax sale.
Realty purchased the property at the tax sale for $51,000. The notice of sale to Realty states that this included $841.47 in taxes, interest, penalties, attorney fees, and costs that were owed on the property at the time of the sale.
On November 9, 2011, after learning about the sale, Beemer and Seal-O-Matic entered appearances in the tax foreclosure action to oppose confirmation of the tax sale, arguing that the failure to give them prior personal notice of the tax sale violated their due process rights because of their interest in the property represented by their respective mechanic’s liens. On June 4, 2012, the trial court set aside the tax sale as null and void. Realty appealed. Following an opinion by the court of appeals, this Court granted transfer. Mo. Const. art. V, § 10.4
II. STANDARD OF REVIEW
The trial court’s judgment will be sustained unless there is no substantial *750evidence to support it, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). “If the issue to be decided is one of fact, this Court determines whether the judgment is supported by substantial evidence and whether the judgment is against the weight of the evidence.” JAS Apartments, Inc. v. Naji, 354 S.W.3d 175, 182 (Mo. banc 2011). Questions of law are subject to this Court’s de novo review. Id. This appeal presents only questions of law.
III. DISCUSSION
Realty argues that the trial court erred in setting aside the tax sale simply because the collector did not give personal notice to the holders of mechanic’s liens. It argues that notice had to be given only as set out in section 141.540 and that section requires only publication notice, not personal notice, to persons other than the property owner. Beemer and Seal-O-Matic agree that section 141.540 requires only publication notice to persons other than the property owner, but argue that their filing of their mechanic’s liens gives them a substantial property interest entitling them to due process protection and that, under the governing law as explained by this Court and by the United States Supreme Court, this requires notice by mail or other means reasonably likely to apprise them of the tax sale.5
Section 141.540 sets out the statutory requirements for notice of tax sales. Section 141.540.5 states that the county collector must provide notice by certified, registered, or restricted mail of the tax sale to:
[T]he persons named in the petition as being the last known persons in whose names tax bills affecting the respective parcels of real estate described in said petition were last billed or charged on the books of the collector, or the last known owner of record, if different, and to the addresses of said persons upon said records of the collector.
Section 141.540.6 states that the county collector “may, at his or her option” provide certified, registered, or restricted mail notice to a mortgagee or security holder.6
Missouri statutes do not require notice by mail to any other persons, instead requiring only generalized publication notice by posting the tax sale notice in the county courthouse and on the property, and by publishing notice in certain newspapers.7
*751The fact that Missouri statutes do not specifically require mail notice of a tax sale to holders of mechanic’s liens is not dispositive of whether the publication notice given here was adequate. To the contrary, it is well-established “that notice provisions prescribed in state statutes may not be constitutionally sufficient” for due process purposes. Schlereth v. Hardy, 280 S.W.3d 47, 52 (Mo. banc 2009). Indeed, as discussed in detail below, this Court has specifically held that similar statutory notice provisions requiring only publication notice to the holder of a deed of trust or mortgage are not adequate to meet due process requirements. See Anheuser-Busch Employees’ Credit Union v. Davis, 899 S.W.2d 868 (Mo. banc 1995); Lohr v. Cobur Corp., 654 S.W.2d 883 (Mo. banc 1983). This Court has also recognized that certified mail may not always be adequate when the one giving notice is aware that it has not reached the addressee, even though that is all that the statute requires. See Schlereth, 280 S.W.3d at 50-53.
The question before the Court is whether the principles underlying these decisions similarly require notice of a tax sale be given by mail, rather than merely by publication, to a holder of a mechanic’s lien on land subject to the tax sale when the lien8 properly has been filed with the clerk as required by Missouri law and the holder’s name and address thereby are reasonably ascertainable. This Court holds that such notice is required.
A. When Due Process Requires Personalized Notice
In determining whether due process requires personalized notice to those holding mechanic’s liens, it is helpful to review the development of the constitutional principles that require notice to holders of other property interests. The seminal case discussing the constitutional requirements for notice is Mullane v. Central Hanover Bank & Trust, 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950). Mullane addressed whether newspaper publication of judicial settlement of a common trust fund provided constitutionally sufficient notice to identifiable beneficiaries and other interested parties. Id. at 307, 309, 70 S.Ct. 652. In balancing the need of interested parties to learn about an event that will materially affect their interest with the burden imposed on the one who would be required to give notice, Mullane said:
An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all of the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.... The notice must be of such nature as reasonably to convey the required information....
... [W]hen notice is a person’s due, process which is a mere gesture is not due process. The means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it.
Id. at 314-15, 70 S.Ct. 652(internal citations omitted) (emphasis added).
Applying these principles, Mullane held that the beneficiaries of the trust had a substantial interest. As such, “[i]t would be idle to pretend that publication alone ... is a reliable means of acquainting interested parties of the fact that their rights are before the courts.... Chance alone brings to the attention of even a local resident an advertisement .... ” Id. at *752315, 70 S.Ct. 652. The Supreme Court concluded that publication notice, therefore, was inadequate to satisfy due process as to those beneficiaries for whom the trustee had easy access to names and addresses. Id. at 318, 70 S.Ct. 652.9
In Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983), the Supreme Court extended to mortgagees the due process protection that had been applied to trust beneficiaries in Mullane. In Mennonite, an Indiana statute required only publication and posting notice of pending tax sales. 462 U.S. at 793, 103 S.Ct. 2706. Mennonite held that the lack of personalized notice was inadequate to protect the property interests held by a mortgagee. Id. at 800, 103 S.Ct. 2706.
In particular, Mennonite noted that a mortgagee acquires a lien on the property that “may be conveyed together with the mortgagor’s personal obligation to repay the debt secured by the mortgage.” Id. at 798, 103 S.Ct. 2706. Importantly, Mennonite also made the fact that the mortgagee had a security interest in the property a key factor in determining its property interest was sufficiently substantial to require due process protection, stating:
A mortgagee’s security interest generally has priority over subsequent claims or liens attaching to the property, and a purchase money mortgage takes precedence over virtually all other claims or liens including those which antedate the execution of the mortgage.
Id. Additionally, Mennonite noted that:
[A] tax sale immediately and drastically diminishes the value of this security interest by granting the tax-sale purchaser a lien with priority over that of all other creditors. Ultimately, the tax sale may result in the complete nullification of the mortgagee’s interest, since the purchaser acquires title free of all liens and other encumbrances at the conclusion of the redemption period.
Id. Mennonite concluded that these effects of a tax sale on the property interest of a mortgagee were sufficiently substantial to entitle the mortgagee’s interest to due process protection, stating that “[s]ince a mortgagee clearly has a legally protected property interest, he is entitled to notice reasonably calculated to apprise him of a pending tax sale.” Id. (Emphasis added.)
Publication, Mennonite held, is inadequate to meet due process requirements:
When the mortgagee is identified in a mortgage that is publicly recorded, constructive notice by publication must be supplemented by notice mailed to the mortgagee’s last known available address, or by personal service. But unless the mortgagee is not reasonably identifiable, constructive notice alone does not satisfy the mandate of Mullane.
Id. This is because “[njotice by mail or other means as certain to ensure actual notice is a minimum constitutional precondition to a proceeding which will adversely affect the liberty or property interests of any party.” Id. at 800, 103 S.Ct. 2706 (emphasis added).
These same notice requirements, Mennonite said, apply regardless of whether the affected party is “unlettered or well versed in commercial practice” and regardless of whether any party might have other means to find out about the sale, for “a party’s ability to take steps to safeguard *753its interests does not relieve the State of its constitutional obligation.” 462 U.S. at 799-800, 103 S.Ct. 2706.
In Lohr v. Cobur Corp., 654 S.W.2d 883 (Mo. banc 1983), this Court was called on to determine whether deeds of trust were subject to Mennonite’s holding that the notice provisions of a statute may not be sufficient to satisfy due process. Lohr held that, as with mortgagees, when the deed of trust beneficiary is identified in the public records, the identity of the beneficiary is reasonably ascertainable and due process requires that notice by publication alone is insufficient and must be supplemented by notice mailed to the beneficiary’s last known address or by personal service. Id. at 887.
Similarly, and particularly relevant here, Anheuser-Busch Employees’ Credit Union v. Davis, 899 S.W.2d 868, 869 (Mo. banc 1995), held that a credit union that had loaned money to a property owner and had publicly recorded its interest was entitled to mailed notice of a tax sale of the property, stating:
The United States Supreme Court in Mennonite Board of Missions v. Adams, 462 U.S. 791 [103 S.Ct. 2706, 77 L.Ed.2d 180] (1983) ..., and this Court in Lohr v. Cobur Corporation, 654 S.W.2d 883 (Mo. banc 1983), both have held that a mortgagee, whose interest in the property is publicly recorded, has a constitutionally protected property interest in real estate, and the due process clause of the Fourteenth Amendment to the United States Constitution requires the tax authority to give written notice of a tax sale to a mortgagee by “notice mailed to the mortgagee’s last known available address, or by personal service.” Mennonite, 462 U.S. at 798 [103 S.Ct. 2706] ...; Lohr, 654 S.W.2d at 886. Failure to provide such notice results in the tax sale being “insufficient to extinguish the deed of trust, which remains in full force and effect.” Lohr, 654 S.W.2d at 886.
See also In re Foreclosure of Liens for Delinquent Land Taxes by Action in Rem, Maximilian Invs., 190 S.W.3d 416, 420 (Mo.App.2006) (explaining that due process requires notice to mortgagees).
B. Due Process Notice Requirements Applied to Mechanic’s Lienholders
It is undisputed that only publication notice, and no personalized notice, was given to Beemer and Seal-O-Matic. It is also undisputed that abstracts of both of their mechanic’s liens were publicly recorded in the office of the clerk of the Jackson County circuit court.
But the parties disagree as to: (1) whether the interest of the holder of a properly filed mechanic’s lien is sufficient to require personalized notice and, if so, (2) whether the fact that the names and addresses of such lienholders were contained in the public records of liens statutorily required to be maintained by the circuit clerk means that they were reasonably ascertainable by the collector such thát he was required to give them “[n]otice by mail or other means as certain to ensure actual notice.” Mennonite, 462 U.S. at 800, 103 S.Ct. 2706.
i. A Mechanic’s Lien Constitutes a Substantial Property Interest Entitled to Due Process Protection
Realty argues that this Court should hold that, while a mechanic’s lien is a property interest, the holder of that lien interest is not entitled to the due process notice protections required by Mullane, Mennonite, and their progeny. While Realty does not lay out its reasoning expressly, it appears it believes that a lienholder’s interest is insufficiently substantial to justify the added trouble it would impose on *754the collector to have to look at the circuit clerk’s records. Realty offers no cases rejecting the need to give personalized notice to holders of mechanic’s liens on the basis that mechanic’s liens are not sufficiently substantial to be worth the trouble of providing personalized notice, however, and this Court rejects that argument.
As noted earlier, Mennonite held that a mortgagee’s interest is sufficiently substantial to be entitled to due process protection after noting that: (1) the mortgagee acquires a lien on the mortgagor’s property; (2) that lien is given priority over most other subsequent security interests, and a purchase money security interest is given priority even over prior security interests; and (3) a tax sale diminishes or nullifies the mortgagee’s lien interest. Mennonite, 462 U.S. at 798, 103 S.Ct. 2706.
Similarly, the Missouri legislature has provided that the holder of a mechanic’s lien has a lien on the structure or real property subject to the mechanic’s lien, and it has given the mechanic’s lienholder priority over almost every other type of lien. See sections 429.010; 429.060, RSMo 2000.10 In fact, in Bob DeGeorge Associates, Inc. v. Hawthorn Bank, 377 S.W.3d 592, 598 (Mo. banc 2012), this Court held that “[s]o long as a mechanic’s lien arises on the land and is filed properly, it will have priority over any third-party encumbrance attaching after the date work began,” including over a purchase-money deed of trust that was not filed until after the work subject to the mechanic’s lien had commenced. Id. at 598-99. A mechanic’s lien on the structure similarly is given priority over most other encumbrances and liens under section 429.050. Id. at 598. A mechanic’s lien, therefore, in many circumstances has been made superior to the lien of a mortgagee or the deed of trust of a mortgagee, which are the kinds of property interests found substantial in Mennonite and Davis.11
Indeed, in Home Bldg. Corp. v. Ventura Corp., 568 S.W.2d 769 (Mo. banc 1978), this Court addressed the rights of a lienholder against a municipal housing authority that purchased the property. The Court recognized that the lien arose under the “first spade rule” from the visible commencement of the work and that the filing of the lien with the clerk and the later filing of suit continued the lien. Id. at 773. The lawsuit, it said, was to “adjudicate and enforce” the hen that had arisen at the first spade. Id.
In other words, contrary to the suggestion of the concurring opinion, a judgment on the lien is not necessary to transform a “claim” into an actual “lien,” which the concurring opinion recognizes is a substantial property interest. The lien — and, therefore, the substantial property interest — exists immediately, subject to divestment, in effect, if the statutory steps later are not taken to protect it. Id. Indeed, Rosenzweig, relied on by the con*755curring opinion for the point that a lien is not “perfected” — that is, enforceable — until a judgment is entered on it, specifically holds in denying rehearing by the Court:
The very object of the mechanics’ lien decree, entered by the trial court, was to enforce the hen created by the mechanics’ lien statute, and the decree did not create a new lien. The statement in the principal opinion [as to which rehearing was therefore denied] to the effect that the decree created a lien is inaccurate. A decree in a mechanics’ lien suit perfects and perpetuates the lien created by statute. The decree itself does not bring the lien into existence.
Rosenzweig v. Ferguson, 348 Mo. 1144, 158 S.W.2d 124, 128 (1941) (emphasis added). See also W. Cent. Concrete, LLC v. Reeves, 310 S.W.3d 778, 782 (Mo.App.2010) (“Section 429.170 requires an action to enforce a mechanic’s hen ‘shall be commenced within six months after filing the lien, and prosecuted without unnecessary delay.’ ” Id. (itahcs in original)); § 429.010.1 (those furnishing work or labor on real property shall have a hen “upon such building ... and upon the land”). The holder of a mechanic’s hen has a hen, not merely a hen claim that later can be transformed into a hen upon judgment; judgment allows only the enforcement of the existing hen, much like the existence of a mortgage does not entitle the mortgage holder to take possession of the property absent a foreclosure judgment (unless otherwise provided in the mortgage or deed of trust).
That is no doubt why, in Home Bldg. Corp., this Court specifically rejected the argument that a municipal authority that took possession of property subject to a mechanic’s lien before judgment could limit the lienholder’s right to maintain and enforce the lien, stating that what the Hen-holder:
seeks to do in this case is to enforce a [mechanic’s] lien which is comparable to the lien of a mortgage against the property. If [the municipal housing authority] had purchased property on which there was an existing deed of trust, it would not be entitled to have enforcement of the lien thereof stayed. Likewise it is not entitled to a stay of enforcement of [lienholder’s] mechanic’s lien.
Home Bldg. Corp., 568 S.W.2d at 777(emphasis added).12 The interest of a mechanic’s lien holder is a property interest comparable to that of the lien of a mortgagee against the property.
Nonetheless, section 141.550.3 allows a mechanic’s lienholder’s interest to be nulh-fied by a tax sale by providing that a tax sale conveys the “whole interest” of “every person having or claiming any right, title or interest in or lien upon such real estate, whether such person has answered or not.” Further, section 141.570.2 states that, upon the sale, all persons “shall be barred and forever foreclosed of all such right, title, interest, claim, lien or equity of redemption, and the court shall order immediate possession of such real estate be given to such purchaser.”13
*756In other words, sections 141.550.3 and 141.570.2 provide that a tax sale will extinguish a preexisting mechanic’s lien. As applied here, the unpaid taxes on the property plus costs and fees totaled $341.47. Realty paid $51,000 to purchase the property at the tax sale. If allowed to stand, that was sufficient to immediately extinguish the $352,374.56 in liens held by the two mechanic’s lienholders, who were thereafter forever barred and foreclosed from seeking recovery on their liens.
As a result, it is undisputable that a tax sale will “immediately and drastically diminish[ ] the value” of a mechanic’s lien-holder’s interest “by granting the tax-sale purchaser a lien with priority over that of all other creditors.” Mennonite, 462 U.S. at 798, 103 S.Ct. 2706. Similar concerns are what led Mennonite to recognize a mortgagee’s interests as substantial property interests subject to due process notice protections. This Court finds that mechanic’s liens on real property are substantial property interests subject to due process notice protections.14
ii. A Mechanic’s Lienholder’s Name and Address is Reasonably Ascertainable
Because a mechanic’s lien is subject to due process protection, notice of a tax sale must be reasonably calculated to reach a mechanic’s lienholder whose name and address is reasonably ascertainable. In Mennonite, the Supreme Court explained, “Notice by mail or other means as certain to ensure actual notice is a minimum constitutional precondition to a proceeding which will adversely affect the liberty or property interests of any party, whether unlettered or well versed in commercial practice, if its name and address are reasonably ascertainable. ”15 462 U.S. at 800, 103 S.Ct. 2706 (emphasis added). In determining whether an interest-holder’s name and address are “reasonably ascertainable,” the state must exercise “reasonably diligent efforts.” Id. at 798, n. 4, 103 S.Ct. 2706. On the other hand, the Supreme Court said, due process does not require “extraordinary efforts to discover the identity and whereabouts of a mortgagee whose identity is not in the public record. ” Id. (Emphasis added.)
Applying these principles here, it is uncontested that the names and addresses of Beemer and Seal-O-Matic were in the records of mechanic’s hens maintained' by the circuit clerk of Jackson County. Realty argues that the county collector already must examine the recorder of deed’s records to identify those with mortgages or other recorded interests and that to require the county collector also to search the circuit clerk’s abstract book requires unreasonable efforts. This Court disagrees.
In so determining, the Court particularly notes that Beemer and Seal-O-Matic *757did not simply make a personal choice to file their mechanic’s liens with the circuit clerk nor did they file them there to make their mechanic’s lien records harder to locate. Rather, they filed their mechanic’s liens with the circuit clerk because that is what they were required to do by section 429.080, which states that a mechanic’s lien should be filed “with the clerk of the circuit court of the proper county.” Further, a filing with the circuit clerk contains all the information needed to give notice to the holder of a mechanic’s lien, for section 429.090 requires the circuit clerk to “maintain an abstract [of mechanic’s lien filings], containing the date of its filing, the name of the person seeking to enforce the lien, the amount claimed, the name of the person against whose property the lien is filed, and a description of the property charged with the same.” Finally, the clerk’s abstract of filed mechanic’s liens has been recognized by this Court to constitute a “proper public record.” Erbs, 237 S.W.2d at 130. As noted, in explaining what amount of effort is required, Mennonite held that due process does not require “extraordinary efforts to discover the identity and whereabouts of a mortgagee whose identity is not in the public record.” 462 U.S. at 798, n.4, 103 S.Ct. 2706(emphasis added). By implication, a mortgagee whose identity is in the public record can be identified with “reasonable” rather than “extraordinary” efforts. That is the case with Beemer and Seal-O-Matic. Their names and addresses were reasonably identifiable from the public record in the place where the legislature has said that public record should be maintained.16
At some point a search may become unreasonable and place on the collector a substantially greater duty than envisioned by Mullane and Mennonite.17 But a search of two separate public-records sources does not reach that point. Mennonite noted that, in Schroeder v. City of New York, 371 U.S. 208, 83 S.Ct. 279, 9 L.Ed.2d 255 (1962), the Supreme Court held that a property owner must receive notice of “condemnation proceedings when his name and address were readily ascertainable from both deed records and tax rolls.” Mennonite, 462 U.S. at 797, 103 S.Ct. 2706. The Supreme Court in so stating implicitly recognized that relevant records that need to be reviewed to obtain the names and addresses of those entitled to notice may require review of more than merely deed records or records from any public record repository.18
*758Jones v. Flowers, 547 U.S. 220, 126 S.Ct. 1708, 164 L.Ed.2d 415 (2006), also is on point. It specifically held that, when the state became aware that certified mail notice of a tax sale was returned unclaimed and so had been ineffective, reasonable diligence required the state to take additional steps to effect notice, such as by giving additional notice by regular mail, finding an alternate address, or other practicable alternatives, because “the government’s knowledge that notice pursuant to the normal procedure was ineffective triggered an obligation on the government’s part to take additional steps to effect notice.” Id. at 230, 126 S.Ct. 1708. Missouri has applied Jones and required that additional notice by regular mail be given when certified mail is unclaimed. Schlereth, 280 S.W.3d at 47.19 In fact, even sections 141.540.5 and 141.540.6 require that, if the certified-mailed notice to the owner identified in the tax bills or to the holder of the deed of trust come back unclaimed, the collector “shall make a search of the records maintained by the county, including those kept by the recorder of deeds, to discern the name and address .... ” (emphasis added). The statute, thereby, contemplates that a search of more than one location at which public records may be kept by the county may be required.
For these reasons, the collector was required to undertake reasonable additional efforts to identify and give notice to holders of mechanic’s liens. It is not too much to require that those reasonable additional efforts include checking the abstract book maintained, as required by statute, in the circuit clerk’s office. Not only has this Court held that the circuit clerk’s records are “proper public records” chosen by the legislature as the repository of information about mechanic’s liens, but, in many if not most counties, the circuit clerk’s office is in the same building as is the recorder of deed’s office. A search of the circuit clerk’s records of mechanic’s liens is the type of reasonable search envisioned by Mullane and Mennonite. In failing to give notice by mail or other means as certain to ensure actual notice to Beemer and Seal-O-Matic, despite the fact that their mechanic’s liens were filed with the circuit clerk and were reasonably available to the collector, the collector’s notice was inadequate. The notice was not reason*759ably calculated to reach either Beemer'or Seal-O-Matic.
IV. CONCLUSION
A mechanic’s lien constitutes a substantial property interest, which is significantly affected by a tax sale,' and is subject to due process protection. Notice of a tax sale must be given in a manner that is reasonably calculated to reach a mechanic’s lienholder whose name and address are reasonably ascertainable. The name and address of a mechanic’s lienholder is reasonably ascertainable through a search of the abstract book, which is a public record required by statute to be maintained by the clerk of the circuit court of each county. ' It is not unreasonable to require the party providing notice to search both the circuit clerk’s office and the recorder of deed’s office. Here, the collector did not provide notice to Beemer and Seal-O-Matic, despite the fact that their names and addresses were reasonably ascertainable from the circuit clerk’s public records. Because Beemer and Seal-O-Matic did not receive notice, the trial court properly set aside the tax sale in question. The judgment is affirmed.
Russell, C.J., Breckenridge, Draper and Teitelman, JJ., concur; Wilson, J., concurs in separate opinion filed; Fischer, J., concurs in opinion of Wilson, J.
. Although Beemer filed its lien before section 429.080 was amended in the 2007 legislative session, the pertinent portions of that statute were not changed by that amendment and remain the same today as they have been since 2000. References to all statutes other than section 429 are to RSMo Supp.2013.
.Missouri’s land tax collection law states that "[w]henever it shall appear that a tax bill has been due and unpaid for a period of at least two years after the date on which ... it became delinquent ... the tax lien ... shall be summarily foreclosed in the manner provided in sections 141.210 to 141.810.” § 141.260.1, RSMo 2000.
. The record does not indicate that there was a mortgagee.
. Although the collector commenced the underlying tax foreclosure action and is listed as respondent here, the collector has not independently participated in this appeal.
. Beemer and Seal-O-Matic also argued below and argue in this Court that the collector violated section 429.300 in commencing the tax foreclosure action while the mechanic’s lien action was still pending. This Court need not address the second argument because it holds in their favor on the notice argument.
. "The collector may, at his or her option, concurrently with the beginning of the publication of sale, cause to be prepared and sent by restricted, registered or certified mail with postage prepaid, a brief notice of the date, location, and time of sale of property in foreclosure of tax liens pursuant to sections 141.210 to 141.810, to the mortgagee or security holder, if known, of the respective parcels of real estate described in said petition, and to the addressee of such mortgagee or security holder according to the records of the collector.” § 141.540.6.
.Section 141.540.1 requires that notice of a tax sale be posted at the county courthouse in any county where sales of real estate are customarily made at the courthouse. Section 141.540.3 states that a notice of the tax sale "shall be published'four times, once a week, upon the same day of each week during successive weeks prior to the date of such sale, in a daily newspaper of general circulation regularly published in the county,.... ” Section 141.540.4 requires that "the county collector shall enter upon the property subject to foreclosure of these tax liens and post a written informational notice in any conspicuous location thereon.”
. This case involves only properly filed mechanic's liens. It does not present the question, and this Court does not address, which, if any, other types of liens or interests in property similarly are entitled to personal notice under due process principles.
. By contrast, publication notice was sufficient as to those unknown beneficiaries "whose interest or whereabouts could not with due diligence be ascertained.” Mullane, 339 U.S. at 317, 70 S.Ct. 652.
. More specifically, section 429.010.1 provides that those furnishing work or labor on real property shall have a lien "upon such building ... and upon the land.” Section 429.060 states that "[t]he lien for work and materials ... shall be preferred to all other encumbrances which may be attached to or upon such buildings, bridges or other improvements, or the ground, or either of them, subsequent to the commencement of such buildings or improvements.”
. Of course, pursuant to statute, a prospective lienholder must file “within six months after the indebtedness shall have accrued” or, with regard to rental equipment, "within sixty days after the date the last of the rental equipment or machinery was last removed from the property.” § 429.080. The lienholder must then commence an enforcement action within six months after filing the lien. § 429.170.
. The action in Home Bldg. Corp. was one to enforce the lien against the municipal housing authority, which had purchased the property after the lien attached but before the judgment was entered on the lien. Home Bldg. Corp., 568 S.W.2d at 770. The question was whether any valid right to enforce the lien survived the sale to the municipal housing authority. Id. at 776. As the concurring opinion notes, the Court found that the lien did not take a substantial property interest from the holder of the property, but also, in the portion just quoted, that a lien is a property interest entitled to the same protection as is a mortgage interest. Id. at 777.
. Section 141.570.2 also states that “[t]he title to any real estate which shall vest in any purchaser, upon confirmation of such sale by *756the court, shall be an absolute estate in fee simple, ...” subject to narrow exceptions not relevant here.
. It cannot be doubted that the monetary value of the mechanic’s liens amounts to a substantial property interest, exceeding the value of many mortgages entitled to personalized notice. But due process rights do not vary depending on the value of one's property. So long as the nature of the property interest is substantial, no case requires the actual amount at stake to be of a particular size so long as it is not de minimus.
. Regarding the type of mailed notice, section 141.540 requires notice by restricted, registered, or certified mail. But, in Jones v. Flowers, 547 U.S. 220, 234-35, 126 S.Ct. 1708, 164 L.Ed.2d 415 (2006), the United States Supreme Court held that if certified mail goes unclaimed, then resending notice by regular mail may be required in order to comply with due process requirements.
. Indeed, while they do not constitute official records, mechanic’s liens are generally reported on Case.net as well.
. For instance, in Schwartz v. Dey, 780 S.W.2d 42 (Mo. banc 1989), this Court held that it was unreasonable to require a county to ascertain whether a property owner’s publicly recorded address was correct. There, the plaintiffs owned property in Missouri, which was subject to a tax sale, but lived in Maryland. Id. at 42-43. The plaintiffs contended that the county could have located their Maryland address by contacting the notary on the deed or the present tenants of the Missouri property. Id. at 44. The Court ruled that these situations placed on the county a substantially greater duty than envisioned by Mullane Mennonite. Id. at 44-45.
.Realty claims that this entire case could have been avoided if Beemer and Seal-O-Matic filed a statutory lis pendens notice with the recorder of deeds. It is unclear if Realty thereby intends to recognize that a mechanic’s lienholder does have a right to personalized notice but only if searching in a single location would have revealed the interest. Regardless, such a filing was not required. While, as Realty notes, Beemer and Seal-O-Matic could have supplemented their statutory filings with the filing of a lis pendens with the recorder of deeds, this would be an extra step not necessary or required to preserve their mechanic's lien claims. As noted above, the United States Supreme Court has made it clear that "a party’s ability to take steps to safeguard its interests does not relieve the State of its constitutional obligation.” Men*758nonite, 462 U.S. at 799, 103 S.Ct. 2706. In this particular case, it is also worth noting that, in light of the fact that the collector failed to find or give notice to Seal-O-Matic despite the fact that it voluntarily filed a discretionary notice of claim of mechanic’s lien in the Jackson County recorder of deeds office, it is purely speculative to suggest that the filing of a lis pendens in those same records would have caused the collector to give personal notice to Seal-O-Matic or Beemer.
. Cf. Chemetron Corp. v. Jones, 72 F.3d 341, 345-46 (3d Cir.1995) (explaining that if claimants were "known” creditors, then due process entitled them to actual notice of the bankruptcy proceedings. If claimants were "unknown” creditors, however, then notice by publication is sufficient to satisfy the requirements of due process.); New Brunswick Sav. Bank v. Markouski, 123 N.J. 402, 422-23, 587 A.2d 1265 (1991) (applying a similar analysis to a judgment lien and finding it constitutes a substantial property interest because it "encumbers all the real property the debtor owns in the state for twenty years, has value to third parties, encumbers the land in a private sale, and carries with it the right of execution.” The court then moved to the reasonability analysis, giving three factors to determine whether an address is "reasonably ascertainable:” (1) an evaluation of the public recording system, if one exists, for the property interest in question; (2) the likelihood that the plaintiff in the proceeding has actual knowledge or reasonable access to the names and addresses of the affected parties; and (3) the relative ease or difficulty with which the plaintiff may find those addresses not on the public record. Id. at 419-20, 587 A.2d 1265). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283565/ | *780
ORDER
PER CURIAM
Troy Lee Jones Jr. appeals the denial of his Rule 29.15 motion for post-conviction relief following an evidentiary hearing. We affirm.
We have reviewed the briefs of the parties, the legal file, and the record on appeal and find the claims of error to be without merit. No error of law appears. An extended opinion reciting the detailed facts and restating the principles of law applicable to this case would serve no jurisprudential or precedential purpose. We have, however, provided a memorandum 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/5283566/ | ORDER
PER CURIAM:
In May 2005, Appellant Kathy Miller was involved in an automobile accident *791with Jennifer Sutton. Miller sued Sutton in the Circuit Court of Boone County for personal injuries Miller alleged that she sustained in the accident. A jury found in favor of Sutton. Miller appeals. She argues that the trial court erroneously failed to instruct the jury concerning the effect of payments she received from insurance or other collateral sources, and erroneously excluded evidence of the amount she personally paid for her medical treatment. We affirm. Because a published opinion would have no precedential value, an unpublished memorandum setting forth the reason for this order has been provided to the parties. Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283567/ | Order
Per Curiam:
David Harrison challenges his conviction for statutory sodomy. Harrison sets forth three points of error in his appeal. Finding no error, we affirm. Rule 30.25(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283568/ | ORDER
Per Curiam:
Bradley W. Ise appeals the circuit court’s judgment convicting him of two counts of driving while revoked and one count of following another vehicle too closely. We affirm. Rule 30.25(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283569/ | ORDER
PER CURIAM
B.F. appeals the juvenile court’s judgment that he committed the delinquent act of second-degree assault. B.F. claims that the evidence was insufficient to prove beyond a reasonable doubt that he committed second-degree assault. We affirm.
We have reviewed the briefs of the parties and the record on appeal and have determined that an extended opinion would have no precedential value. We have, however, provided a memorandum opinion only for the use of the parties setting forth the reasons for our decision. We affirm the judgment pursuant to Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283582/ | RITA W. GRUBER, Judge |, David Lineham appeals from the circuit court’s order denying his petition to terminate a guardianship over his daughter, W.L. David argues on appeal that the circuit court clearly erred in refusing to terminate the guardianship and in allowing W.L.’s maternal grandparents to continue as guardians. We affirm the circuit court’s order. W.L. was born on March 31, 2008, to David Lineham and Sarah Hyde in Virginia. At the time, they were living with David’s parents in Mount Vernon, Virginia. In July 2009, they moved into a nearby apartment in Alexandria, Virginia. W.L. also spent a considerable amount of time with Sarah’s parents, appellees Anna and Dennis Hyde, who both lived and worked in the Washington- D.C. area but also maintained a residence on their farm in Logan County, Arkansas. The relationship between Sarah and David was tumultuous. Although there is some Igdispute regarding the reasons a guardianship was sought, David and Sarah both signed consents allowing appellees to have a guardianship over W.L. on September 25, 2009. David and Sarah permanently ended their relationship on October 31, 2009, and the order granting the guardianship was entered on December 21, 2009. Shortly thereafter, appellees moved with W.L. to their farm in Logan County, where W.L. has continued to live with them. On September 25, 2010, David married Danielle. On December 27, 2010, David filed a petition to terminate the guardianship over W.L. The circuit court held a hearing on January 25, 2012, and entered an order denying David’s petition on April 9, 2012.1 In its order, the court found that the guardianship continued to be necessary and that it was in the best interest of W.L. for appellees to remain as guardians. The court specifically stated that the guardianship was necessary to “maintain the normal parental responsibilities such as providing food, clothing and financial support, which [David] has not provided.” The court also found that the evidence demonstrated “a lack of a meaningful relationship” between David and W.L. or between David’s new wife Danielle and W.L. Testimony indicated that, as of the date of the hearing, David had visited W.L. in Arkansas only one time since initiation of the guardianship in 2009 and had provided no financial support for W.L. The circuit court awarded standard visitation to David. We refer to this order as the “first order.” David did not appeal from the first order denying his petition, but he immediately began exercising visitation, visiting W.L. in Arkansas on weekends and exercising his six] 3week summer visitation with W.L. in Virginia. Evidence showed that David spent money traveling to Arkansas to visit W.L. and purchasing clothes and toys for her. He did not, however, provide any direct financial support to appellees. In October 2012, Sarah and David filed competing petitions to terminate the guardianship and in December 2012, they filed competing petitions for custody in the event the court terminated the guardianship. The petitions for custody were consolidated into the guardianship. The court held a hearing in August 2013. At the time of the hearing, Sarah was living in a trailer on her parents’ farm with her new husband and their two-year-old son. David and Danielle lived in an apartment in Virginia. The court continued the guardianship, making the following specific findings: 7. This court finds from its previous ruling that David Lineham was determined to be unfit, although specific wording to that effect was not used. Sarah Hyde has not had her fitness addressed in any prior proceedings. 8. The Court places upon both biological parents a duty to put forth proof that the conditions that necessitated the guardianship had been removed. If successful, the Guardians would then have the burden of rebutting the presumption that termination is in the minor child’s best interest. 9. While the Court finds that both biological parents failed to present proof at the hearing on August 14th and 16th, 2013 as to what the conditions were at the time the guardianship was established, the Court will still examine the evidence to determine whether terminating the guardianship is in the best interest of the Ward. 10. After examination of the pleadings, documents, testimony, and all available evidence, the Court finds that Sarah Hyde is unfit and that it would not be in the Ward’s best interest to terminate the guardianship and return the Ward to Sarah Hyde. Specific reasons supporting this determination may be found in the Court’s letter opinion dated October 2, 2013, which was sent to all parties by facsimile transmission. 11. After examination of the pleadings, documents, testimony, and all available 14evidence, the Court finds that David Lineham remains unfit as a parent. Specific reasons supporting this determination may be found in the Court’s letter opinion dated October 2, 2013 which was sent to all parties by facsimile transmission. 12.The Ward is 5½ years old and has lived with the Guardians since she was 5 months old. The Court believes that the testimony justifies the finding that termination of the guardianship would not be in the Ward’s bests interest and that the guardianship should remain in place. Specific reasons supporting this determination may be found in the Court’s letter opinion dated October 2, 2013 which was sent to all parties by facsimile transmission. The court then dismissed David’s and Sarah’s petitions to terminate, ordered both to pay child support, continued David’s standard visitation with W.L., and incorporated its attached letter opinion by reference. In its letter opinion, the court recited the applicable law and burdens of proof found in our supreme court’s opinion In re Guardianship of S.H., 2012 Ark. 245, 409 S.W.3d 307. Our appellate courts review guardianship proceedings de novo, but we will not reverse a finding of fact by the circuit court unless it is clearly erroneous. Furr v. James, 2013 Ark. App. 181, 427 S.W.3d 94. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been made. Id. When reviewing the proceedings, we give due regard to the opportunity and superior position of the trial court to determine the credibility of the witnesses. Id. Moreover, in cases involving children, we afford even more deference to the trial court’s findings because there is no other case in which the superior position, ability, and opportunity of the court to observe the parties carries a greater weight than one involving the custody of minor children. Ford v. Ford, 347 Ark. 485, 491, 65 S.W.3d 432, 436 (2002). On appeal, David argues that the circuit court’s order refusing to terminate the | .^guardianship and allowing W.L.’s maternal grandparents to continue as guardians rather than allowing him, W.L.’s father, to have custody is clearly erroneous. He specifically challenges the court’s determination that it had found him to be unfit in its first order; that he failed to present sufficient evidence that the guardianship was no longer necessary; and that appellees presented sufficient evidence to overcome the presumption that termination of the guardianship was in W.L.’s best interest. We turn first to the governing law. Arkansas Code Annotated section 28-65-401(b)(3) (Supp. 2013) provides that a guardianship may be terminated by court order if “the guardianship is no longer necessary or for the best interest of the ward.” In applying this statute, our supreme court has held that fit parents do not relinquish their fundamental liberty interest in raising their children by consenting to a guardianship and, thus, are entitled to the Troxel presumption in a proceeding to terminate that guardianship.2 In re Guardianship of S.H., 2012 Ark. 245, ¶ 14, 409 S.W.3d 307, 316. Specifically, the court held as follows: A natural parent who has not been deemed unfit is entitled to the presumption that he or she is acting in the child’s best interest, even after consenting to a guardianship. Therefore, when a natural parent, who has not been deemed unfit and who has consented to a guardianship, files a petition to terminate that guardianship, that parent must put forth evidence that the guardianship is no longer necessary. Once the court is satisfied that the conditions necessitating the guardianship have been removed, the guardians shoulder the burden of rebutting the presumption that termination is in the child’s best interest. Id. ¶ 15, 409 S.W.3d at 316-17. In order for the presumption to apply, a parent must not have been deemed unfit. | fiDavid argues that the circuit court erred in finding that he had been found unfit in the court’s first order. Although the court stated that it had previously found David to be unfit in its first order, the court did not rely on that finding and instead applied the law set forth in In re Guardianship of S.H. as if David were a fit parent. Indeed, in its letter opinion, the court reasoned that since it had not made a fitness determination regarding Sarah in its previous order, the best way to examine the evidence in this case is to give both biological parents the Troxel presumption that by seeking to terminate the guardianship of [W.L.] that they are acting in the best interest of the child. This places upon the biological parents a duty to then put forth proof that the conditions that necessitated the guardianship have been removed. Then, if that burden of proof is met, the guardians have the burden of rebutting the presumption that termination is in the child’s best interest. Finally, if it is determined that the guardianship is no longer necessary, the court must address the issue of custody as between Sarah Hyde and David Line-ham[.] The court continued in its letter opinion, finding that neither Sarah nor David presented proof as to what the conditions were at the time the guardianship was established and thus they failed to put forth proof that the conditions necessitating the guardianship had been removed. Given the court’s examination of the evidence treating David as a fit parent and its consequent decision to allow him to put forth evidence that the guardianship was no longer necessary, its determination that it had previously found David unfit in its first order does not cause its denial of David’s petition to be clearly erroneous. David next argues that the circuit court erred in finding that he did not put forth sufficient evidence that the guardianship was no longer necessary. In support of his argument, he points to testimony of one of the guardians, Dennis, who thought the conditions necessitating the guardianship had been removed. Dennis’s testimony was made in response |7to whether he thought his daughter, Sarah, was ready to parent W.L. Dennis did not oppose terminating the guardianship if Sarah were to be awarded custody. But he made it clear that he had concerns with David and thought that the guardianship was still necessary with regard to David. Anna testified similarly. Although there was no testimony regarding precisely what conditions necessitated the guardianship, the petition for guardianship stated -with regard to David that “the father of the minor child does not provide support or income to the mother” and that the mother was without suitable income to support herself or the child. The petition also stated that the child did not have regular medical care or a “consistent and stable home, nourishment, and maintenance.” David testified that he could provide and was providing medical insurance and that his income was sufficient to support W.L. But the court noted that, in spite of his income, David was not providing and had never provided any direct financial support to the guardians for W.L. Despite appel-lees’ request that he help them with some of W.L.’s medical bills, David provided no funds at all. David argues that no court order required him to pay child support, apparently indicating the court was wrong to consider his failure to support W.L. in' its decision. The law in Arkansas has long been that a parent has a legal duty to support his child, regardless of the existence of a support order. Fonken v. Fonken, 334 Ark. 637, 642, 976 S.W.2d 952, 954 (1998); see also McGee v. McGee, 100 Ark. App. 1, 6, 262 S.W.3d 622, 626 (2007) (stating that child support is an obligation owed to the child and, even in the absence of a court order requiring a parent, to support his or her minor child, a parent continues to have a legal and moral duty to do so). We hold that the circuit court’s finding |Ron the issue of the continuing necessity for the guardianship is not clearly erroneous. In spite of the circuit court’s failure to find that the parties put forth sufficient evidence that the guardianship was no longer necessary, the court still examined the evidence to determine whether terminating the guardianship was in W.L.’s best interest. David argues that the court’s finding that termination of the guardianship was not in W.L.’s best interest was clearly erroneous. In examining best interest, the court recognized that David had exercised his visitation during the year and a half before the hearing and that he had provided clothing and toys to W.L. The court also noted that he had married and that he was currently earning at least $5,000 per month. But the court was troubled by David’s seeming inability to communicate or interact favorably with Sarah and W.L.’s guardians. The court pointed to testimony that when David attended W.L.’s kindergarten graduation, he and his mother refused to sit in seats with the guardians and Sarah and chose to remain in the back of the room. The court also noted that David’s wife, Danielle, admitted to calling DHS on several occasions to make reports that were later determined to be unsubstantiated. Danielle also admitted to alerting authorities that Dennis was harboring a fugitive (Sarah) and making an anonymous call to Dennis’s employer relaying the same information. Evidence at trial demonstrated that David blocked phone calls from Sarah and appel-lees when W.L. was in his custody. The court was troubled by another incident in which David had obtained medical care for W.L. while she was in his custody but he refused to respond to repeated requests from appellees to provide the medical records for W.L.’s medical file. He gave no reason for his refusal other than that he simply had not responded. Finally, the court noted |flthat there was a distinct difference in the attitude of David and the other parties while testifying. David seemed disinterested in anything Sarah had to say, and appellees testified that David was dismissive of them and would not communicate with them concerning issues affecting W.L. Finally, the court was troubled by an incident over Christmas visitation in which David lied to appellees regarding whether he was driving or flying with W.L. to Virginia. Because of bad weather, David drove with W.L. to Virginia, but he told W.L. to lie to appellees about it. Despite appellees’ repeated phone calls, David refused to accept or return any phone calls from them for several days during this time. Although David denied these accusations, the court found Dennis’s testimony more credible. The court also recognized that W.L. was five-and-one-half years old and had lived with appellees since she was five months old. The court found that it was not in W.L.’s best interest to terminate the guardianship. Credibility of the witnesses is a matter for the circuit court and, in cases involving children, we afford even more deference to the trial court’s findings because there is no other case in which the superior position, ability, and opportunity of the court to observe the parties carry a greater weight than one involving the custody of minor children. Ford, 347 Ark. at 491, 65 S.W.3d at 436. Having reviewing the record, we hold that the circuit court’s decision was not clearly erroneous. Affirmed. Kinard and Brown, JJ., agree. . After the hearing but before the court entered its order, Sarah filed a motion to intervene, which the circuit court denied. . See Troxel v. Granville, 530 U.S. 57, 68, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (recognizing presumption that a fit parent acts in the best interest of his or her child). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283570/ | ORDER
PER CURIAM.
Walter Head appeals from the trial court’s judgment dismissing his petition for negligence with prejudice. We have reviewed the briefs of the parties and the record on appeal and conclude the trial court’s judgment was not an abuse of discretion. Black v. Rite Mortgage and Financial Inc., 239 S.W.3d 165, 167 (Mo.App.E.D.2007); Rule 67.06.1 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 Rule 84.16(b).
. All rule references are to Mo. R. Civ. P. 2013. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283571/ | ORDER
PER CURIAM.
Charles Smith appeals from the judgment of the motion court denying his Rule 24.0351 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 *863court’s findings and conclusions are not clearly erroneous. Brooks v. State, 242 S.W.3d 705, 708 (Mo.banc 2008). 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 Rule 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/5283572/ | ORDER
PER CURIAM
Eugene Thomas appeals from the motion court’s Conclusions of Law and Order on his Amended Motion to Vacate, Set Aside, or Correct Judgment and Sentence and Request for Evidentiary Hearing denying his 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 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/5283573/ | ORDER
PER CURIAM
Adrian French appeals from the motion court’s Findings of Fact, Conclusions of Law, and Order denying his Amended Motion to Vacate, Set Aside or Correct Judgment and Sentence and Request for Evi-dentiary Hearing filed pursuant to Rule 24.085. 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/5283574/ | ORDER
PER CURIAM
Brian C. Williams appeals from the motion court’s Findings of Fact, Conclusions of Law, and Order denying, without an evidentiary hearing, his amended Rule 24.035 Motion to Vacate, Set Aside, or Correct Judgment and Sentence and Request for Evidentiary Hearing. We affirm.
We have reviewed the briefs of the parties, the legal file, and the record on appeal and find the claims of error to be without merit. No error of law appears. An extended opinion reciting the detailed facts and restating the principles of law applicable to this case would serve no jurisprudential or precedential purpose. We have, however, provided a memorandum 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/5283575/ | ORDER
PER CURIAM.
Eugene N. Barnes appeals from the motion court’s judgment dismissing his amended Motion to Vacate, Set Aside or Correct Judgment and Sentence filed pursuant to Rule 24.035,1 following an eviden-tiary hearing. We have reviewed the briefs of the parties and the record on appeal and conclude the judgment of the motion court is not clearly erroneous. Rule 24.035(k). An extended opinion would have no 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/5283577/ | ORDER
PER CURIAM.
Devin Mosley appeals from the motion court’s judgment denying, following an evi-dentiary hearing, his amended Motion to Vacate, Set Aside or Correct Judgment and Sentence filed pursuant to Rule 29.15.1 We have reviewed the briefs of the parties and the record on appeal and conclude the judgment of the motion court was not clearly erroneous. Rule 29.15(k). An 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/5283578/ | OPINION
MEYERS, J.,
delivered the opinion of the Court
in which JOHNSON, KEASLER, HERVEY, COCHRAN, and ALCALA, JJ., joined.
A jury convicted Appellant, David Sa-maripas, Jr., of engaging in organized *2criminal activity1 and sentenced him, as a habitual criminal, to 53 years in the Texas Department of Criminal Justice-Correctional Institutions Division, an enhanced punishment based on two alleged prior convictions. Appellant appealed, arguing that the trial court improperly sustained the State’s objection to Appellant’s questions during voir dire. The court of appeals concluded that Appellant failed to preserve error. Samaripas v. State, 446 S.W.3d 1, 8-10 (Tex.App.-Corpus Christi 2013, pet. granted).
We granted review to address the following two questions raised by Appellant: (1) In order to preserve error relative to a limitation on voir dire examination of a prospective juror, must a defendant object after the trial court sustains the State’s objection to a proposed question? (2) May a non-aggravated state-jail felony conviction, previously punished under the range for a second-degree felony, be used for the purpose of enhancing punishment to that of a habitual criminal under Texas Penal Code Section 12.42(d)?2
We hold that error was preserved and that the court of appeals failed to apply the correct, particularized standard regarding preservation of error during voir dire. We further hold that, under Sections 12.42(d) and (e) of the Texas Penal Code as it was worded at the time of Appellant’s offense in the present case, the non-aggravated state-jail felony conviction that was punished as a second-degree felony was properly used for subsequent habitual-criminal punishment enhancement. We will reverse and remand to the court of appeals for consideration of the merits of the first issue.
FACTS AND PROCEDURAL HISTORY
Appellant was a member of the Latin Kings gang. Due to recent gang activity, officers were patrolling a known gang area when they heard gunshots. When they reached the house where the shots had been fired, the resident described the car from which the shots had come and told the officers which direction the car had gone. The officers saw a car matching the description and attempted to stop the car. The driver did not stop, and a high-speed chase ensued. During the pursuit, officers saw something being thrown out of the front passenger window. The car eventually came to a stop when the driver ran over “stop sticks” that had been placed on the highway by the police. Appellant was the front-seat passenger of the car. Officers retrieved the item that had been thrown out of the car and found that it was a colostomy bag containing a nine-millimeter handgun, three magazines, a cell phone, and two quarters. Lab tests indicated that the cartridge cases found at the scene of the shooting had been ejected from the handgun found in the colostomy bag. Officers determined that the house where the drive-by shooting occurred belonged to members of the Latin Kings’s rival gang, the Sureños, and that Appellant had to use a colostomy bag due to a gunshot injury he had suffered during a gang fight between the Latin Kings and the Sureños the previous month.
The jury found Appellant guilty of engaging in organized criminal activity and determined that he had used or exhibited a deadly weapon during its commission. In *3the sentencing phase, the State submitted two prior convictions for enhancement purposes. Appellant pled true to the prior conviction of assault of a public servant, but objected to the second offense, which was a state-jail felony for evading arrest, punished as a second-degree felony due to two prior enhancements. Finding both enhancement paragraphs true, the jury sentenced Appellant as a habitual criminal to 53 years’ imprisonment.
Appellant appealed the decision, claiming that the evidence was insufficient, that the trial court abused its discretion in limiting his voir dire examination, that the trial court erred in instructing the jury on the law of parties, and that his sentence was improperly enhanced. The court of appeals affirmed Appellant’s conviction and sentence. Appellant filed a petition for discretionary review, asking us to consider whether the court of appeals erred in holding that he failed to preserve the voir dire error and whether his prior state-jail felony conviction could be used for sentence enhancement.
PRESERVATION OF ERROR DURING VOIR DIRE
Issue Background
On appeal, Appellant argued that the trial court abused its discretion by improperly limiting his voir dire examination of a prospective juror. At issue was the question: “What type of evidence would you expect to hear? What type of evidence do you expect the State of Texas to bring you, Ms. O’Neal, in an effort to prove to you beyond a reasonable doubt that someone committed an offense?” The State objected to it as an improper commitment question, and after a brief discussion at the bench, the trial court sustained the objection.
Just before Appellant’s counsel posed the question at issue on appeal, the following exchange occurred:
DEFENSE: [Directed at Ms. Davis] In that class three years ago, you probably learned there’s no definition provided by the court to “beyond a reasonable doubt”; is that right?
MS. DAVIS: Right. We had a long discussion about it.
DEFENSE: And did that make sense to you?
MS. DAVIS: It can be fuzzy.
DEFENSE: It can be fuzzy. In order to convince somebody beyond a reasonable doubt — I’ll come back to you, Ms. O’Neal. What type of evidence would you expect the State of Texas to bring to you in order to convince you that somebody committed an offense beyond a reasonable doubt?
The State objected to this question, and the trial court called the parties to the bench.
COURT: I think he is entitled to say what is your understanding of reasonable doubt, as long as he doesn’t give them a definition they have to adhere to.
STATE: But if he’s saying what [evidence] do you need for you to get to guilty?
The trial court sustained the objection, and Appellant’s counsel rephrased with the question that was at issue on direct appeal:
DEFENSE: What type of evidence would you expect to hear? What type of evidence do you expect the State of Texas to bring you, Ms. O’Neal, in an effort to prove to you beyond a reasonable doubt that someone committed an offense?
Again, the State objected and the parties were called to the bench.
*4STATE: Same question: “What do you expect?”
COURT: You’re going to bind them to a certain level of evidence.
DEFENSE: Just asking them what do they expect the State of Texas to bring them evidence wise.
COURT: I don’t have a problem with that question. Ask it that way. Sustained.
STATE: But to prove somebody guilty at that point in time, that’s why.
COURT: I can’t let them get committed to a certain proof in order to find somebody.
DEFENSE: I’m understanding that.
COURT: I sustain the objection.
[End of bench conference.]
DEFENSE: In a criminal case, Ms. O’Neal, what type of evidence would you expect to hear period?
MS. O’NEAL: Factual.
DEFENSE: Factual evidence. What type of factual evidence, Ms. Gallagher?
MS. GALLAGHER: Good. Well, maybe some eyewitnesses.
DEFENSE: Eyewitnesses. Okay, what else? Now, we’re talking about engaging in organized criminal activity deadly conduct charge. What are you expecting?
MR. GRAUKE: Physical evidence.
DEFENSE: Physical evidence. Number 28, what type of evidence would you expect?
MR. GRAUKE: Gun. .
DEFENSE: A gun. Okay.
MR. GRAUKE: If that was the case.
DEFENSE: What else? What other type of evidence could wé have, factual physical evidence? A gun. What else might you expect?
VENIREPERSON: Eyewitness.
VENIREPERSON: Expert testimony.
DEFENSE: Expert testimony. On what?
STATE: Judge, I’m sorry. We’re going back to the same thing. Essentially saying here’s what we need to prove to get to beyond a reasonable doubt.
DEFENSE: That’s not my question, Judge.
COURT: Come up here again.
[At the bench, on the record.]
STATE: I keep objecting because he’s trying the same exact. He’s saying what kind of evidence, factual evidence—
COURT: Make clear to them in your question that your question is predicated that there’re many different kinds of evidence some of it which you can hear, some of which you cannot hear. In other words, what you’re doing now, again, is binding them to hear certain evidence before they can say guilty.
DEFENSE: ,1 respectfully disagree, your Honor. I’m just asking them their expectations for trial.
COURT: Well, phrase it clearly that these may or may not be necessary to find reasonable doubt, please.
DEFENSE: Yes, sir.
COURT: Then you can ask it.
[End of bench conference.]
DEFENSE: Understanding that these items of evidence that we’re talking about here may or may not create reasonable doubt, may or may not convince you beyond a reasonable doubt — okay, we talked about physical evidence; we talked about guns; we talked about — we were at expert testimony. Who said that?
In addressing preservation of error sua sponte, the court of appeals assumed, with*5out deciding, that Appellant’s question was proper and that its prohibition constituted an abuse of discretion. Samaripas, 446 S.W.3d at 9. The court of appeals then applied general error-preservation standards, stating that Appellant failed to object to the trial court’s ruling, complied with the ruling, rephrased his questions, and neither discussed nor challenged the ruling’s effect on the scope of voir dire. Id., 446 S.W.3d at 9-10. Accordingly, the court of appeals held that Appellant failed to preserve the issue for review. Id., 446 S.W.3d at 9.
Arguments of the Parties
Appellant argues that the preservation-of-error ruling by the court of appeals does not comport with prevailing precedent established by this Court. He identifies Nunfio v. State, 808 S.W.2d 482, 484 (Tex.Crim.App.1991), and Campbell v. State, 685 S.W.2d 23, 25 (Tex.Crim.App.1985), as enunciating unique error-preservation standards in the context of voir dire.
Appellant contends that, because the court of appeals assumed an abuse of discretion by the trial court, if this Court holds that error was preserved, then the only remaining issue to be decided on remand is whether disallowing the question was harmful.
The State says that the court of appeals properly “reviewed the context of the discussions to determine whether the issues about commitment and expectations of the evidence implicated any concern about limiting the scope of Appellant’s voir dire.”
The State argues that unique error-preservation standards do not apply in the present case. In support of this assertion, it distinguishes our holding in Campbell as controlling only circumstances in which the trial court has made a solitary ruling to disallow a question. The State also asserts that the trial court’s explanation of its rationale for sustaining the commitment objection is significant. It argues that, after the trial court explained its ruling, Appellant had to identify some concern that being required to rephrase his question would pose an unconstitutional limitation on the scope of his voir dire. Instead, according to the State, Appellant complied with the order and rephrased the question.
Finally, the State contends that Appellant’s claim on appeal did not comport with the issue at trial — “none of Appellant’s complaints here informed the trial court that its ruling risked limiting the scope of voir dire or prevented the exercise of intelligent strikes.”
Analysis
A trial court has broad discretion over the voir dire process, including setting reasonable limits and determining the propriety of a particular question. Barajas v. State, 93 S.W.3d 36, 38 (Tex.Crim.App.2002). We stated that “A trial court’s discretion is abused only when a proper question about a proper area of inquiry is prohibited. A question is proper if it seeks to discover a juror’s views on an issue applicable to the case.” Id. (citations omitted).
Appellate courts apply unique standards with respect to preservation of error during voir dire. If a party asks a proper question of the venire, the other party objects, and the court sustains the objection, then error is preserved. Campbell, 685 S.W.2d at 25. “Appellant asked the question, and the State objected to the question. The trial court sustained the objection. Appellant was thus prevented, by a ruling of the court, from asking a proper voir dire question of the jury panel. The error was preserved for review.” Id. Appellant was not required to further, develop or exhaust the subject at issue by engaging in further questioning. Id. at 26. See also Nunfio v. State, 808 S.W.2d at *6484, overruled on other grounds in Barajas, 98 S.W.3d at 40, and Gonzales v. State, 994 S.W.2d 170, 172 (Tex.Crim.App.1999). The State mischaracterizes our holding in Campbell as determining that error is preserved in such circumstances only when the court has made a solitary ruling to disallow a proffered question. We stated in Campbell that further questioning or development of the subject at issue is not required to preserve error. 685 S.W.2d at 26. However, it does not follow that engaging in further questioning or development causes error to be forfeited.
The State also argues that Appellant did not alert the trial court that the ruling improperly limited the scope of voir dire or impacted his ability to intelligently exercise his peremptory strikes. He was not required to. As wé stated in Nunfio, “Once appellant posed the specific question he sought to ask the venire and the judge refused to allow the question, the ruling by the trial court amounted to a direct order not to ask the question. Appellant obtained a specific ruling as to a specific question and properly preserved the issue for review.” 808 S.W.2d at 484.
The court of appeals erroneously applied general standards of preservation of error in evaluating Appellant’s issue. Samaripas, 446 S.W.3d at 9 (citing Tex.R.App. P. 33.1(a); Tex.R. Evid. 103(a)(1); Heidelberg v. State, 144 S.W.3d 535, 537 (Tex.Crim.App.2004)). Under the proper standard, however, the court of appeals’s own recounting of the circumstances would have been sufficient to show that the error was preserved: “During voir dire, defense counsel asked a veniremember [a question.] ... The State objected to the question as an improper commitment question, and the trial court sustained the objection.” Samaripas, 446 S.W.3d at 8
We remand to the court of appeals to determine whether the trial court abused its discretion by prohibiting defense counsel from asking a proper question about a proper area of inquiry and if so, whether appellant was harmed by the trial court’s error.
SENTENCE ENHANCEMENT
Issue Background
Appellant’s primary conviction, engaging in organized criminal activity, was based on the underlying offense of deadly conduct, a third-degree felony offense. Tex. Pen.Code § 71.02(a)(1); Tex. Pen.Code § 22.05(e). Engaging in organized criminal activity elevated the offense to a second-degree felony. Tex. Pen.Code § 71.02(b). For further punishment enhancement as a habitual offender under Penal Code Section 12.42(d), the State alleged two prior felony convictions, the second of which was for evading arrest with a motor vehicle, a state-jail felony under Penal Code Section 38.04(b)(1). Appellant’s punishment for evading arrest with a motor vehicle had itself been enhanced to that of a second-degree felony under Section 12.42(a).3
At the time of Appellant’s offense in the present case, relevant provisions of the habitual offender statute, Section 12.42, read as follows:
(d) ... [I]f it is shown on the trial of a felony offense other than a state jail felony punishable under Section 12.35(a) that the defendant has previously been finally convicted of two felony offenses, *7and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, on conviction he shall be punished by imprisonment in the Texas Department of Criminal Justice for life, or for any term of not more than 99 years or less than 25 years.
(e) A previous conviction for a state jail felony 'punished under Section 12.35(a) may not be used for enhancement purposes under Subsection (b), (c), or (d).4 (Emphasis added).
Appellant argued on appeal that, contrary to the proscription in Section 12.42(e), his sentence had been unlawfully enhanced under Section 12.42(d) with a state-jail felony conviction — evading arrest with a motor vehicle. He maintained that, although the punishment for that offense had been enhanced, that did not enhance the level of the underlying offense and, therefore, it should be excluded from use for punishment enhancement of his current offense.
The court of appeals agreed with the State’s position that Section 12.42(e) is unambiguous in its plain-text reading: Only prior state-jail felony convictions actually punished under Section 12.35(a) are prohibited from being used for enhancement. Appellant’s prior conviction was punished under Section 12.42(a)(2). According to the statute’s plain meaning, the court concluded, Section 12.42(e) is inapplicable in this case. See Samaripas, 446 S.W.3d at 13. The court stated that such a construction of the statute did not create an absurd result, given the legitimate legislative goal of “[p]unishing a defendant more severely after repeated behavior that has escalated beyond the level of an unenhanced state jail felony offense.” Id., 446 S.W.3d at 13.
Arguments of the Parties
Appellant argues now, as he did on appeal, that our decision in Ford v. State, 334 S.W.3d 230 (Tex.Crim.App.2011), bars the use of his prior state-jail felony conviction for enhancement purposes.
The State argues that the plain meaning of the statute authorizes the use of both prior convictions for habitual-criminal enhancement.
Analysis
In Ford, we considered whether the sex-offender-registration statute allowed prior offenses to increase the level of punishment or the level of the offense. We stated that because the registration statute referred to “punishment,” it operates, as does Section 12.42, by increasing only the level of punishment that applied to the primary offense. We held that, while the punishment level may be increased to the range of the next highest felony, the level of the offense was not increased. Id. at 235. We agree with the holding in Ford in that Appellant’s prior state-jail felony was not increased to a higher offense. However, at the time of *8Appellant’s current offense, Section 12.42(e) prohibited only state-jail felonies that had not been previously enhanced from being used for habitual-offender status. Prior to September 1, 2011, Section 12.42(e) stated that, “A previous conviction for a state jail felony punished under Section 12.35(a) may not be used for enhancement purposes under Subsection (b), (c), or (d).”5 We agree with the court of appeals that the plain language of the statute makes it clear that, at the time of Appellant’s offense, Section 12.42(e) focused on how the previous state-jail felony was actually punished and precluded from use for enhancement only those state-jail felonies that had not been punished under the range of a higher felony. Here, Appellant was not punished under Section 12.35(a). His prior state-jail felony had been enhanced, and he was punished for that offense under Section 12.42(a)(2). Therefore, the prior offense was properly used for enhancement purposes, and the court of appeals did not err in overruling this issue.
CONCLUSION
The judgment of the court of appeals is affirmed on the second issue. We reverse the judgment of the court of appeals on the first issue and remand the case for consideration of the first issue on the merits.
KELLER, P.J., filed a dissenting opinion in which PRICE, J., joined. WOMACK, J., concurred.
. See Tex. Pen.Code § 71.02. The jury found that Appellant committed the underlying offense of deadly conduct with the intent to establish, maintain, or participate as a member of a criminal street gang.
. Unless otherwise noted, all references to Sections refer to the Texas Penal Code.
. As provided by former Texas Penal Code 12.42(a)(2), two previous felony convictions were shown for punishment enhancement of Appellant’s conviction for evading arrest with a motor vehicle. Effective September 1, 2011, Section 12.42(a) was amended by Act of May 25, 2011, 82nd Leg., R.S., ch. 834 § 2, 2011 Tex. Gen. Laws 834.
. Effective September 1, 2011, Sections 12.42(d) and (e) were amended by Act of May 25, 2011, 82nd Leg., R.S., ch. 834 §§ 4, 6, 2011 Tex. Gen. Laws 834. The Legislature repealed Section 12.42(e), incorporating its language into Section 12.42(d), except using the word "punishable" rather than "punished.” Section 12.42(d) now reads, "A previous conviction for a state jail felony punishable under Section 12.35(a) may not be used for enhancement purposes under this subsection.” (Emphasis added). The bill analysis characterized the change as "nonsubstan-tive.” and stated that, "[Ljegislation is needed to clarify the meaning [of the repeat and habitual felony offender] provisions and to specify that the felonies do not include state jail offenses that are not aggravated. H.B. 3384 seeks to remain true to the intent of the legislature when it created the lower-level category of state felony offenses and to retain the special treatment given to state jail offenses punishable as aggravated state jail felonies.”
. Effective September 1, 2011, Section 12.42(e) was repealed and the following language was added to subsection (d): “A previous conviction for a state jail felony punishable under Section 12.35(a) may not be used for enhancement purposes under this subsection." Under this language, a state-jail felony, even if it has been enhanced, cannot be used to enhance a subsequent felony offense. The distinction between the former “punished under Section 12.35(a)” language and the current "punishable under Section 12.35(a)” is significant here because Appellant was not punished under Section 12.35(a) but his prior offense was punishable under that section. Had he committed the current offense after this amendment, it would not have been proper for his prior state-jail felony to be used for enhancement. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283585/ | CUNNINGHAM, J.,
CONCURRING IN PART AND DISSENTING IN PART:
I believe that the trial court’s restriction upon the cross examination by the defense attorney of the arson expert was error. However, I think such error was harmless. Therefore, I concur in the result of that part of the opinion.
The identity of the victims in the prior Bell County thefts as well as the dismissal of three wanton endangerment charges were introduced as part of the prior conviction evidence in the sentencing stage. However,.this error was not preserved. I strongly disagree that it was palpable error. I dissent in reversing the sentencing phase.
Therefore, I respectfully concur in affirming the conviction but dissent in the part reversing the sentencing phase of the trial. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283586/ | OPINION
LAMBERT, JUDGE:
S.L.C.E. (the mother) appeals from the Jefferson Family Court’s order terminating her parental rights to her child, A.A.S. (the child). After careful review, we affirm.
The child was born on April 28, 2012, to the mother and A.S. (the father). The Cabinet for Health and Family Services (the Cabinet) filed this action on November 20, 2012, pursuant to Kentucky Revised Statutes (KRS) 625.050, seeking involuntary termination of the parental rights of the mother and father. Although both parents were present in court with their respective counsel when the trial in this action was continued from May 22, 2013, to October 2, 2013, neither parent appeared for trial on the later date and neither parent contacted their respective counsel nor the family court to explain their absence at trial.
The underlying facts are that on April 29, 2010, the child’s two half siblings born to the mother and another father, were determined by the Jefferson Family Court to be abused or neglected children within the meaning of KRS 600.020(1). Specifically, the family court found that the children were at risk of abuse or neglect due to domestic violence between the mother and the children’s father, who had perpetrated violence on the mother in the children’s presence.
On May 1, 2012, the family court issued an emergency custody order placing the child at issue in this case in the emergency custody of the Cabinet, in whose care the child has remained to the present date. On May 3, 2012, the Cabinet’s representative filed a verified dependency, neglect, or abuse (DNA) action petition regarding the child, alleging that the child was abused or neglected because the mother had given *307birth to the child on April 28, 2012, while three other children of the mother were still in the Cabinet’s custody due to the mother’s inability to care for the children, her noncompliance with court orders, and her admission that she had been using marijuana, drinking alcohol, and abusing prescription pills. The petition also alleged that the mother reported that the father had hit her with the end of a pistol, choked her to the point of passing out, and had made threats to harm the then unborn child. The father was also alleged to have a lengthy criminal history, including multiple rape, sodomy, unlawful transactions with minors, assault, and violation of Domestic Violence Order charges.
At the temporary removal hearing on May 4, 2012, the family court placed the child in the temporary custody of the Cabinet and issued remedial orders to the child’s parents in an effort to reunify the family, including but not limited to orders that the mother complete anger management classes; that the father enroll in and complete a Batterer’s Intervention Program (BIP), have a UK TAP assessment, and follow their recommendations; and that both of the child’s parents have Jefferson Alcohol Drug Abuse Center (JADAC) assessments and follow their recommendations. The family court also recommended random drug and alcohol screens and supervised visitation. On June 28, 2012, the family court ordered that visits would not occur if the parents did not appear at the L & N Building for visits thirty to forty-five minutes before the visits were scheduled to occur.
On November 8, 2012, the parents appeared with their respective counsel in the DNA action and entered a written stipulation, accepted by the family court, that the child was an abused or neglected child within the meaning of KRS 600.020(1), in that the child had been placed at risk of abuse or neglect because “there was an incidence of domestic violence by father during mother’s pregnancy.”
In its petition, the Cabinet alleged grounds for termination of parental rights under KRS 625.090(2)(a), (e), (g), and (h). At the hearing, Michelle Cox, the Cabinet’s currently assigned case worker for the subject family, testified that the parents had abandoned the child for a period of not less than ninety days. She testified that the parents had failed to visit or otherwise contact the child for a period or periods of not less than ninety days in duration; and the parents had not maintained contact with Ms. Cox during that time to inquire about the well-being of the child. Moreover, since the child was first removed from parental custody, the parents had not availed themselves of the reunification services they were referred to or provided by the Cabinet and had otherwise failed to make sufficient progress in the court-approved case treatment plan to allow for the safe return of the child to their parental care.
The family court also found that as of the date of the filing of the petition for termination, neither of the parents had been fully compliant with the aforementioned remedial orders and the Cabinet’s court-approved case treatment plan arising out of the DNA action. Neither of the parents had availed themselves of the services provided by the Cabinet, and they had failed to make sufficient progress in the court-approved case treatment plan to allow for the safe return of the child to parental custody and care. Furthermore, the Cabinet had been unable to recommend a reunification of the child with either parent. Due to each of the parent’s failure or inability to fully engage in treatment and reform the behaviors which led to the removal of the child from parental custody, the child could not be safely re*308turned to parental custody, as he had been in state care for the past seventeen consecutive months. During all that time, “for a period of not less than six months,” the parents had been continuously or repeatedly incapable of providing essential parental care and protection for each of the children.
The family court also found that while the child had been in state care, each of the parents had continuously or repeatedly failed to provide or had been incapable of providing the child with “essential food, clothing, shelter, medical care, or education reasonably necessary and available for the child’s well-being.” KRS 625.090(2)(g). Although capable of working, neither of the parents had offered any significant financial, assistance to meet the child’s needs. Drug and alcohol abuse and instability continued to be of concern for both of the parents. The family court found that the parents’ failure to meet the child’s material needs was due to drug and alcohol abuse more than any other single factor. The court found that it was clear that the parents’ on-going failure or inability to provide the child with the material necessities of life was “for reasons other than poverty alone.”
The family court also looked at the other grounds listed in KRS 625.090(3) to determine whether termination was in the child’s best interests. The family court did not find that either parent suffered from mental illness or mental retardation that would render them unable to care for the physical and psychological needs of the child. See KRS 625.090(3)(a).
Regarding the second factor for acts- of .abuse or neglect toward any child in the family, the family court was convinced that the child had been abused or neglected within the meaning of KRS 600.020(1), based on the finding that the child’s other half-siblings were found to be abused or neglected children in their underlying DNA actions. Further, the family court found that pursuant to KRS 625.090(l)(a)(2), the Cabinet presented evidence beyond a reasonable doubt that the child had been abused or neglected within the meaning of KRS 600.020(1) as a result of being abandoned by each of the parents for a period of not less than ninety days. The child had further been abused or neglected by each of the parents’ inability or failure to comply with the court’s remedial orders and the Cabinet’s court-approved case treatment plan so that the petitioner child could be safely returned to parental custody, and by the failure or inability of each of the parents to do what was necessary to materially support the child.
Regarding the third factor for the Cabinet’s reasonable efforts to reunite the child with the parent, KRS 625.090(3)(c), the family court found that the Cabinet made appropriate referrals of the parents to parenting classes; individual therapeutic counseling for the mother and the BIP program for the father; substance abuse treatment and random drug screens; visitation services; and various other services. Ms. Cox testified that, under the circumstances of this case, she was unaware of any other services which the Cabinet could provide or refer the parents so as to allow for the safe reunification of the parents with the child, within a reasonable amount of time considering the age of the child.
The family court considered the fourth factor, the efforts and adjustments the parent has made to his circumstances, conduct, or conditions to make it in the child’s best interest to return him to his home within a reasonable period of time, considering the age of the child. KRS 625.090(3)(d). Regarding this factor, Ms. Cox testified that as of the date of the filing of the petition, the parents had not been fully compliant with the court’s reme*309dial orders out of the aforesaid DNA action.
The family court determined that the testimony clearly reflected the parents’ failure to make sufficient progress in the court-approved case treatment plan to allow for the safe return of the child to parental custody and care, and the Cabinet subsequently had been unable to recommend further reunification of the child with the parents. The family court took notice of the fact that both parents had failed to take advantage of the court-ordered supervised visitations, often missing many sessions before they stopped coming altogether. Further, the father had not completed BIP sessions, and despite the mother’s participation in JADAC, the mother had failed on numerous occasions to attend random drug screens without explanation. Further, Ms. Cox testified that since the proceedings in the instant case were instituted, the family court had yet again removed another child from the mother’s custody, a fact of which the family court took judicial notice.
Ms. Cox testified that the mother has been the victim of domestic violence by the fathers of her children on multiple occasions, and she did not seek a domestic violence order against the father for the violence against her referenced in the child’s DNA petition. The family court noted that it had concerns about the mother’s ability to protect her child if she is unable to avoid dangerous relationships and protect herself.
As a result of the parents’ inability to follow the court-approved case treatment plan and avail themselves of the services offered by the Cabinet, the child had been unable to safely return to parental custody and had instead remained in the Cabinet’s care and custody for not less than fifteen of the most recent twenty-two months.
Regarding the fifth factor set forth in KRS 625.090(S)(e), the family court held that the child’s physical, mental, and emotional needs had been met while in the Cabinet’s care and custody and that the child is expected to make continuing improvements in these areas upon termination of parental rights. Ms. Cox testified that she had visited with the child in his foster home, and he was doing well and was attached to his foster parents, who plan to adopt him. Ms. Cox further testified that she transported the child to and from visitation sessions with the parents and supervised those visitation sessions herself. She testified that on those occasions when the parents actually attended, the child would cry from the time she picked him up from his foster home or his daycare where the child’s foster grandmother worked until the time she returned the child, -with the child’s crying only lessening after she took him away from the visitation sessions. Ms. Cox observed that it got to the point that the child would cry upon seeing her enter the foster home, and then the child would go to his foster mother for consolation.
The sixth and final factor the family court considered was the parent’s “payment or failure to pay a reasonable portion of substitute physical care and maintenance if able to do so.” As noted above, the parents have not paid any substitute financial assistance since the child has been in state care, despite being financially able to do so if they chose to work.
At the hearing, Ms. Cox identified an exhibit as a letter from the Lower Brule Sioux Tribe (hereinafter Tribe) notifying the Cabinet that the Tribe was not in a position to provide services or placement for the child. She testified that the Cabinet had .sent documentation to the Tribe identifying the mother’s children and their parents as well as a birth certificate show*310ing that the mother was. a member of the Tribe.
Subsequent to the trial but before the family court had issued its ruling, the mother’s counsel moved the family court to stay its ruling pending a hearing on what should be the proper standard of proof by which it' decided the case. The family court granted the stay, heard arguments, and denied the mother’s motion, finding no legal basis to apply the “clear and convincing” standard of proof rather than the “beyond a reasonable doubt” standard articulated in the Indian Child Welfare Act, 25 U.S.C. § 1912. In concluding that the Cabinet’s termination petition should be granted, the family court held:
Each individual ground for termination found in this action is sufficient to satisfy the element for termination of parental rights as set forth in KRS 625.090(2). Furthermore, both the written record and the trial evidence reflect that all requirements of the Indian Child Welfare Act, 25 U.S.C. § 1912, have been met.
The family court then entered judgment on December 26, 2013, terminating the parental rights of the mother and father. On January 7, 2014, the mother filed various motions challenging the judgment and for a new trial, including that she should have been notified regarding the standard of proof issue. Those motions were denied by order entered on March 17, 2014, and this appeal by the mother followed.
On appeal, the mother argues that she was deprived of due process of law when she was not notified prior to the termination hearing that the family court would apply the beyond a reasonable doubt standard of proof rather than the clear and convincing standard. This is the mother’s sole argument on appeal, as she makes no argument that the termination was otherwise improper or unjustified under the Kentucky statutory scheme.
In response, the Cabinet argues that, assuming the Indian Child Welfare Act (ICWA) applies, the mother was not denied due process of law by the family court’s application of the beyond a reasonable doubt standard. In the alternative, the Cabinet argues that per the Kentucky Supreme Court, the ICWA may not apply, and thus the use of a higher standard of proof was harmless and did not deprive the mother of due process of law.
In support of her argument that she was denied due process of law, the mother argues that termination of parental rights trials in Kentucky proceed according to the dictates of. KRS 625.090(1), which states: “The Circuit Court may involuntarily terminate all parental rights of a parent of a named child, if the Circuit Court finds from the pleadings and by clear and convincing evidence ...” The mother cites to D.W.H. v. Cabinet for Human Resources, 706 S.W.2d 840 (Ky.App.1986), in support of her position. In D.W.H., the court stated, “Because the father, G.W.H., is a member of the Cheyenne River Sioux Indian tribe, this action was tried, by agreement of all of the parties, pursuant to the Indian Child Welfare Act of 1978” and the beyond a reasonable doubt standard of proof was used. Id. at 841. The mother argues that the distinction between the instant case and D.W.H. is that there was no agreement between the parties in the instant case to use the beyond a reasonable doubt standard of proof. She contends that where there is no due process notice of intent to use a standard of proof other than the standard of proof from KRS 625.090(1) requirements, and the record clearly evidences this lack of notice, there could not exist “agreement of all of the parties.” Id. at 841.
*311As mentioned above, the Cabinet presents its argument under the ICWA and in the alternative argues that the ICWA may not apply. We agree with the latter of the Cabinet’s arguments. In Rye v. Weasel and The Standing Rock Sioux Tribe, 934 S.W.2d 257 (Ky.1996), the Kentucky Supreme Court held that the ICWA did not apply because of the Existing Indian Family Doctrine. The Court reversed this Court and upheld the trial court’s determination that custody of the child in question should remain with her foster mother rather than The Standing Rock Sioux Tribe. Id. at 264. Regarding the authority for the Existing Indian Family Doctrine, the Rye Court stated that “the courts have held that ICWA was not intended by Congress to be applied to cases where there is no existing Indian family or environment because the purpose and intent of Congress cannot be furthered by such application of the Act.” Id. at 261. The Court found that there was never an existing Indian family in the case before it to be disrupted by the trial court’s custody order, inasmuch as the father was unknown, the mother had discontinued contact with the child after voluntarily placing it with foster parents, and the Tribe had declined to render any assistance to the child.
In the present case, the testimony of Ms. Cox indicates that the mother and father abandoned the child, with the mother ceasing all contact with the child after a short period of sporadic visitation following the child’s removal from her custody on May 1, 2012, by emergency contact order, only days after the child’s birth on April 28, 2012. The record further reflects that The Lower Brule Sioux Tribe had communicated to Cabinet officials that it was unable to provide any placement or assistance to the child in this case and thus would not intervene in the termination proceedings.
We agree that in the instant case, the child was not in any way raised in an Indian home or environment and then removed, which is what Congress intended to prevent with the creation of the ICWA. Thus, under the Existing Indian Family Doctrine, which the highest court in this state adopted in Rye, the ICWA is not triggered and the beyond a reasonable doubt standard was not appropriate.
We also agree with the Cabinet, however, that the mother was not prejudiced in this case. The family court did not reach its decision by applying a lesser standard of proof than the clear and convincing standard applicable in non-ICWA cases. Instead, the family court applied the higher beyond a reasonable doubt standard, and the mother otherwise has not demonstrated any way in which she has been actually prejudiced by application of the higher standard of proof rather than the lesser one. As the mother makes no challenge whatsoever to the trial court’s findings regarding the termination of her parental rights, we cannot say that the findings are clearly erroneous.
A careful review of the record and the testimony presented at the hearing indicates that the parents made very minimal efforts on behalf of the child, were addicted to drugs and alcohol, and abandoned the child within days of his birth.' Accordingly, we find no error with the family court’s order terminating the parental rights of the mother to the child.
Finding no reversible error, we affirm the December 20, 2013, judgment of the Jefferson Family Court.
ALL CONCUR. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283587/ | OPINION AND ORDER
KRAMER, JUDGE:
Petitioners, Stanton Health Facilities, et al., filed a petition for writ of mandamus to require the trial court to rule upon its motion to compel arbitration and to stay pretrial discovery pending resolution of the motion to compel arbitration. Having considered the petition for writ of mandamus, the response, and being otherwise sufficiently advised, the Court ORDERS that the petition be, and it is hereby, GRANTED.
On May 29, 2013, Real Party in Interest, Taffy Alexander, filed suit against Stanton Health in Powell Circuit Court alleging negligence in the care and medical treatment provided to her father, John D. Clemons, Sr. Stanton Health denied the allegations of negligence and asserted that the dispute was governed by an arbitration agreement between Stanton Health and Clemons, Sr.
On September 25, 2013, Stanton Health filed a motion to compel arbitration. In response, Alexander claimed that Clemons, Sr. lacked -the mental capacity to enter into the arbitration agreement. Following a hearing, the trial court deferred ruling upon the motion to compel arbitration to allow limited discovery on the circumstances surrounding the signing of the agreement.
On April 15, 2014, Stanton Health filed a renewed motion to compel arbitration. On May 7, 2014, the trial court granted Alexander leave to file an amended complaint. In an order entered on June 2, 2014, the trial court again deferred ruling on the motion to compel arbitration and ordered the parties to proceed with pretrial discovery. This petition for writ of mandamus followed.
Extraordinary writs may be granted upon a showing that: (1) “the lower court is proceeding or is about to proceed outside of its jurisdiction and there is no remedy through an application to an intermediate court,” or (2) “the lower court is acting or is about to act erroneously, although within its jurisdiction, and there exists no adequate remedy by appeal or otherwise,” and “great injustice and irreparable injury will result if the petition is not granted.” Hoskins v. Maricle, 150 S.W.3d 1, 10 (Ky. 2004).
Stanton Health first argues that the trial court lacked jurisdiction to order *314pretrial discovery without ruling on its motion to compel arbitration. We disagree.
It is well established that arbitration agreements do not divest a trial court of jurisdiction. Ernst & Young, LLP v. Clark, 323 S.W.3d 682, 692 (Ky.2010). Instead, the arbitration agreement simply passes “the trial court’s broad discretion to decide all issues pertaining to pre-hearing procedures, including discovery, all issues of substantive law, and all evidentiary matters passes to the arbitrator.” Id. Then, “[t]he trial court’s function is constricted to the simple entry of a final judgment enforcing the arbitrator’s decision.” Id. Therefore, we conclude that the trial court acted within its jurisdiction.
Next, Stanton Health argues that the trial court acted erroneously within its jurisdiction by deferring its ruling on the motion to compel arbitration and allowing pretrial discovery to proceed. We agree.
We must first determine whether Stanton Health has satisfied the requirements for the issuance of a writ. Kentucky Revised Statutes (KRS) 417.220 does not provide for the appeal of an order deferring a ruling on a motion to compel arbitration. Further, our Supreme Court has recognized that “[tjhere will rarely be an adequate remedy on appeal if the alleged error is an order that allows discovery.” Grange Mut Ins. Co. v. Trude, 151 S.W.3d 803, 810 (Ky.2004).
Our Supreme Court has held that the improper denial of a motion to compel arbitration constitutes irreparable injury. North Fork Collieries, LLC v. Hall, 322 S.W.3d 98, 103 (Ky.2010). The irreparable injury does not result from the cost of litigation. Id. Instead, irreparable injury results from the denial of a party’s “bargained-for contractual right to proceed in another forum.” Id. To require a party to proceed to defend an action in the trial court would destroy the contractual right to arbitration. Id. The destruction of that right cannot “be vindicated by an ordinary appeal at the conclusion of the trial.” Id.
While the trial court did not deny the motion to compel arbitration, it required Stanton Health to engage in discovery on the merits of the claim prior to ruling on the motion to compel arbitration. Under the reasoning of North Fork Collieries, supra, we conclude that Stanton Health has demonstrated irreparable injury. Therefore, we turn to the merits of the petition.
KRS 417.060 states:
(1) On application of a party showing an agreement described in KRS 417.050, and the opposing party’s refusal to arbitrate, the court shall order the parties to proceed with arbitration. If the opposing party denies the existence of the agreement to arbitrate, the court shall proceed summarily to the determination of the issue so raised. The court shall order arbitration if found for the moving party; otherwise, the application shall be denied.
(2) On application, the court may stay an arbitration proceeding commenced or threatened on a showing that there is no agreement to arbitrate. Such an issue, when in substantial and bona fide dispute, shall be forthwith and summarily tried and the stay ordered if found for the moving party. If found for the opposing party, the court shall order the parties to proceed to arbitration.
(3) If an issue referable to arbitration under the alleged agreement is involved in an action or proceeding pending in a court having jurisdiction to hear applications under subsection (1) of this section, the application shall be made therein. Otherwise and subject to KRS 417.210, the application may be made in any court of competent jurisdiction.
*315(4) Any action or proceeding involving an issue subject to arbitration shall be stayed if an order for arbitration or an application therefor has been made under this section; or if the issue is sever-able, the stay may be with respect thereto only. When the application is made in such action or proceeding, the order for arbitration shall include such stay.
(5) An order for arbitration shall not be refused on the ground that the claim in issue lacks merit or bona fides or because any fault or grounds for the claim sought to be arbitrated have not been shown.
(Emphasis added). The plain language of KRS 417.060 directs that a trial court “shall proceed summarily” to the determination of a motion to compel arbitration. KRS 417.060(4) requires a trial court to stay “[a]ny action or proceeding” pending the determination of a motion to compel arbitration.
When confronted with a motion to compel arbitration, the task of the trial court “is simply to decide under ordinary contract law whether the asserted arbitration agreement actually exists between the parties and, if so, whether it applies to the claim raised in the complaint.” North Fork Collieries, 822 S.W.3d at 102. “If an arbitration agreement is applicable, the motion to compel arbitration should be granted.” Id. The trial court should not weigh the equities of the situation or assess the merits of the underlying controversy. Id.
Further, as stated above, requiring a party to defend an action in court irreparably destroys the right to arbitration. Id. at 108. The costs and burdens of defending an action include pretrial discovery. See generally Breathitt County Bd. of Educ. v. Prater, 292 S.W.3d 883, 886 (Ky. 2009).
The trial court appropriately ordered limited discovery on the issue of arbitrability. However, we conclude that the trial court erred by allowing discovery to proceed on the merits of the underlying claim while the motion to compel arbitration was pending. Therefore, we issue a writ of mandamus.
Accordingly, the Court ORDERS that the petition for writ of mandamus be, and it is hereby, GRANTED.
ALL CONCUR. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283588/ | OPINION
COMBS, JUDGE:
Heather Griffith' appeals her conviction in the Boyd Circuit Court. After our review, we vacate and remand.
On January 23, 2012, a grand jury indicted Griffith for first-degree robbery, second-degree fleeing or evading police, and tampering with physical evidence. The Commonwealth negotiated a plea bargain with her. Originally, the Commonwealth offered a ten-year sentence for first-degree robbery. First-degree robbery is classified as a violent offense requiring that one must serve eighty-five percent of a sentence before becoming eligible for parole. Griffith rejected that plea offer, and negotiations continued.
On March 13, 2013, Griffith pleaded guilty to an amended charge of second-degree robbery, fleeing or evading police, and tampering with physical evidence. In exchange, she received a sentence of fifteen-years’ incarceration. Second-degree robbery resulted in her classification as a nonviolent offender and eligibility for parole after serving only twenty percent of her sentence. The trial court entered an order imposing the bargained-for sentence and scheduling a hearing to determine whether Griffith would “receive a sentence of imprisonment, a sentence of probation, or a sentence of conditional discharge” based on a presentencing report.
The sentencing hearing was held on March 22, 2013. At the beginning of the hearing, the trial court recognized the victim of Griffith’s crimes, inviting her to join the Commonwealth at counsel’s table. Then the court announced that the purpose of the hearing was for sentencing and asked Griffith’s counsel if there were any issues. Counsel replied that Griffith was concerned that the paperwork now indicated that she would be classified as a violent *317offender. She reminded the court that the plea that had been negotiated and accepted was for a lower charge entitling Griffith to be classified as a nonviolent offender.
The court responded, “I don’t agree. Uh-uh.” Counsel replied, “that’s what we amended.” The court then asked counsel for both parties to approach the bench. The Commonwealth agreed with Griffith that her guilty plea was for second-degree robbery. The court told counsel that it wanted to insure that the victim approved of the sentence and ordered a twenty-minute recess.
When court resumed, Griffith’s counsel told the court that the victim desired that Griffith serve ten years and be classified as a violent offender. The court called upon the victim to confirm. “I’m not satisfied unless you’re satisfied,” the court told the victim. The court then announced that the sentence was being modified and that the offer had been amended accordingly. It imposed the original offer of ten-years’ incarceration for first-degree robbery — a violent offense.
On August 8, 2013, Griffith filed a motion pursuant to Kentucky Rule[s] of Criminal Procedure (RCr) 11.42 to correct the sentence and to seek specific performance of her plea agreement. The court denied the order on August 19, 2013. This appeal followed.
RCr 11.42 is a vehicle by which a convicted defendant may challenge a conviction and sentence on collateral grounds. RCr 11.42(1). Where, as here, the grounds are based on claims of ineffective assistance of counsel, the appellant must satisfy a two-prong analysis:
First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984), adopted by Gall v. Commonwealth, 702 S.W.2d 37, 39-40 (Ky.1985). Both prongs must be met in order for the test to be satisfied. The Strickland Court also held as follows:
The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.
Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.
In the context of guilty pleas, “in order to satisfy the ‘prejudice’ requirement, the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and ,would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985).
When the court accepts a guilty plea, the bargain becomes a binding contract between the defendant and the government. Hensley v. Commonwealth, 217 S.W.3d 885, 887 (Ky.App.2007). However, the court retains the right to reject a guilty plea. RCr 8.10 sets forth the sequence of requirements entailed in a rejection:
If the court rejects the plea agreement, the court shall, on the record, inform the parties of this fact, advise the defendant personally in open court or, on a showing of good cause, in camera, that the court is not bound by the plea agreement, afford the defendant the opportunity to then withdraw the plea, and ad*318vise the defendant that if the defendant persists in that guilty plea the disposition of the case may be less favorable to the defendant than that contemplated by the plea agreement.
In this case, the law is clear and the facts are undisputed. Our Court has addressed this very scenario in Kennedy v. Commonwealth, 962 S.W.2d 880 (Ky.App.1997). The trial court accepted Kennedy’s guilty plea; he and the Commonwealth had negotiated a sentence of three-years’ incarceration. However, at the sentencing hearing, the court imposed a sentence of nine-years’ incarceration.
In its review, our Court held that “the language of RCr 8.10 is clearly mandatory and requires a court to permit a defendant to withdraw a guilty plea if the court rejects the plea agreement.” Id. at 882. (Emphasis added). We cautioned as follows:
A pernicious mischief would result to our entire system of jurisprudence should we adopt a dangerous “ends-justifies-the-means” approach to plea bargaining by permitting a court to depart from RCr 8.10 and to alter a negotiated plea sua sponte without allowing a defendant the right to withdraw his plea. No litany of incantations about whether a plea had been knowingly and voluntarily entered can camouflage the essential spirit of honesty and fair play that RCr 8.10 requires of all the players: the Commonwealth, the criminal accused, and the court.
Id. at 882-83.
In the case before us, the record is devoid of any indication that the court notified Griffith that she could withdraw her guilty plea upon the court’s rejection. Instead, the court sent counsel to renegotiate the sentencing terms of her plea. The only basis that the record provides for the court’s action was the victim’s preference as to sentencing.
We agree with Griffith that her counsel was ineffective in participating or acquiescing in the court’s action rather than asking the court to reconsider or filing a motion to withdraw her plea. Griffith’s counsel failed to advise the court that the victim was not entitled to determine Griffith’s sentence. While a court must be duly sensitive to a victim’s concerns, it cannot abdicate its responsibility to sentence in deference to a victim’s wishes. No legal authority exists for a victim to decide the sentence.
Additionally, the record provides more than reasonable probability that a different outcome would have been reached. The court imposed the very sentence that Griffith had rejected — a fact candidly acknowledged by the Commonwealth in harmony with the holding of Kennedy, supra. The record does not indicate that counsel filed a motion for Griffith’s plea to be withdrawn. In fact, it appears that counsel encouraged Griffith to cooperate in the new arrangement. By participating in the error committed by the trial court, Griffith’s counsel provided less than effective representation.
In Elmore v. Commonwealth, 236 S.W.3d 623 (Ky.App.2007), we held that when a court, sua sponte, revised the terms of a negotiated sentence after accepting a guilty plea, the defendant was entitled either to withdraw his plea or to enforce specific performance of the sentence for which he had bargained. Elmore is wholly applicable in this case.
We vacate Griffith’s sentence and remand for proceedings consistent with this opinion.
ALL CONCUR. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283589/ | MARY W. SHEFFIELD, PJ.
This appeal arises from a wrongful death law suit. Two men were killed in a go-kart incident, and their surviving family members sued the manufacturers, distributors, and sellers of the go-kart, alleging various counts of strict liability and negligence. The manufacturers and distributors ultimately obtained a jury verdict in their favor. The families appeal, challenging two pre-trial rulings. The points on appeal are without merit, and the trial court’s judgment is affirmed.
Factual and Procedural Background
On March 2, 2006, Lena Griffin, (“Ms. Griffin”) and Benjamin Wayne Griffin (“Mr. Griffin”) purchased a go-kart. Their friend Jackie Honea (“Mr. Honea”) was present at the time of the purchase. Later that afternoon, the go-kart flipped over while Mr. Griffin was driving, and Mr. Honea was riding as a passenger. According to a highway patrol accident reconstruction report, the incident occurred when the go-kart vaulted off a hump in Mr. Griffin’s driveway. When the vehicle landed, the front frame struck the ground first, and both occupants were ejected. The report further explained that at the time of the incident, the vehicle was traveling approximately 34 miles per hour over rough terrain, and neither of the men was wearing his safety belt. Both men received severe head injuries and died as a result of the crash. No one actually witnessed the crash.
Ms. Griffin, her children, and Mr. Ho-nea’s mother Janie Elder (“Ms. Elder”) (collectively “Plaintiffs”) subsequently filed a wrongful death suit. The named defendants included three separate groups involved in the manufacture and sale of the go-kart: (1) the companies responsible for the manufacture of the go-kart — Zhejiang Kandi Investments Group (“Kandi Investments”); Kandi Technologies Corporation (“Kandi Technologies”); and Zhejiang Kandi Vehicles Company, Ltd. (“Kandi Vehicles”) — (2) the companies responsible for importing the go-kart — SunL Group, Inc. (“SunL”) and Ham Trading, Inc. (“Ham”) — and (3) the people and organizations who participated in the ultimate sale of the go-kart to the Griffins — Rhino’s Truck Accessories (“Rhino’s”); the sole proprietor of Rhino’s, Ryan Brooks (“Mr. Brooks”); Supertints Window Tinting (“Supertints”); and the owner of Supe-rtints, Michael Keith Hampton (“Mr. Hampton”). Plaintiffs raised claims of strict liability and negligence against Kan-di Investments, Kandi Technologies, Kandi Vehicles, Ham, and SunL. They also alleged Rhino’s, Mr. Brooks, Supertints, and Mr. Hampton were negligent for failing to *345inspect the go-kart and for failing to warn of the go-kart’s alleged defects.
Rhino’s and Mr. Brooks subsequently sought summary judgment based on the argument that they did not know or have reason to know of the go-kart’s alleged defects. The trial court granted Rhino’s and Mr. Brooks’s motion for summary judgment.
The case then went to trial against the remaining defendants. The jury found against .the Plaintiffs and in favor of the defendants, and the trial court entered judgment accordingly. Plaintiffs appeal, challenging the trial court’s ruling on Rhino’s and Mr. Brooks’s motion for summary judgment and the trial court’s ruling on a-motion to set aside a default judgment entered prior to trial.
Point I, Point II, and Point III
In their first point and their second point, Plaintiffs argue the trial court erred in granting summary judgment because Rhino’s and Mr. Brooks failed to show an absence of a genuine issue of material fact. In their third point, Plaintiffs argue the trial court erred in granting summary judgment because Rhino’s and Mr. Brooks failed to prove they were entitled to judgment as a matter of law as there were facts in dispute regarding whether Rhino’s and Mr. Brooks (1) sold the go-kart and (2) knew or should have known about the alleged defects of the go-kart. We address these points together.
Appellate review of the trial court’s decision regarding a motion for summary judgment is de novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). “Facts set forth by affidavit or otherwise in support of a party’s motion are taken as true unless contradicted by the non-moving party’s response to the summary judgment motion.” Id. Furthermore, the reviewing court “will review the record in the light most favorable to the party against whom judgment was entered.” Id.
“Missouri’s Rule 74.04 sets out a procedure for granting summary judgments in cases in which the movant can establish that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law.” Id. at 377. Under that rule:
a ‘defending party” may establish a right to judgment by showing (1) facts that negate any one of the claimant’s elements facts, (2) that the non-movant, after an adequate period of discovery, has not been able to produce, and will not be able to produce, evidence sufficient to allow the trier of fact to find the existence of any one of the claimant’s elements, or (3) that there is no genuine dispute as to the existence of each of the facts necessary to support the movant’s properly-pleaded affirmative defense.
Id. at 381 (emphasis in original).
Here, Plaintiffs sought to recover against Rhino’s and Mr. Brooks on a theory of negligent failure to warn and negligent failure to inspect. For that claim, Missouri courts have adopted the test from Section 388 of the Restatement (Second) of Torts. Morris v. Shell Oil Co., 467 S.W.2d 39, 42 (Mo.1971). Thus:
One who supplies directly or through a third person a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be endangered by its probable use, for physical harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier
(a) knows or has reason to know that the chattel is or is likely to be dan*346gerous for the use for which it is supplied, and
(b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and
(c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.
Id. Accordingly, Rhino’s and Mr. Brooks sought summary judgment stating “Plaintiffs cannot establish that [Rhino’s and Mr. Brooks] knew or should have known of the alleged defects of the subject go-kart or that [Rhino’s and Mr. Brooks] failed to use ordinary care during the allege[d] sale of the subject go-kart.” Thus, the issue in this case is whether there are undisputed facts showing Rhino’s and Mr. Brooks did not know or did not have reason to know the go-kart was likely to be dangerous for the use for which it was supplied. The following additional facts relevant to that issue are gleaned from the parties’ statements of material uncontroverted facts, viewed in the light most favorable to Plaintiffs as the non-moving party. See ITT, 854 S.W.2d at 376.
At the time the Griffins bought the go-kart, Mr. Brooks was the sole proprietor of Rhino’s. He. leased space to Supertints out of the building where he operated Rhino’s, but he was not otherwise affiliated with Supertints. Rhino’s and Supertints shared retail space, parking space, and computers, but the companies did not share a cash register. Supertints and Rhino’s did not do anything to inform customers whether customers were purchasing a product from Supertints or Rhino’s.
Mr. Hampton was the owner of Supe-rtints. Mr. Hampton bought go-karts from SunL for retail sale. Mr. Hampton usually unpackaged and assembled the go-karts. Occasionally his employee Michael Snyder (“Mr. Snyder”) would help him complete those tasks.
Mr. Brooks of Rhino’s never helped Mr. Hampton un-package a go-kart. Mr. Brooks did not share in the profits from the sale of go-karts. However, Mr. Brooks admitted he had accepted deliveries for Mr. Hampton and had covered for Mr. Hampton when Mr. Hampton was not at work. Additionally, Mei Zhou (“Ms. Zhou”), an employee of SunL, believed Rhino’s was one of SunL’s customers but no documents reflected any business dealings between SunL and Rhino’s.
Mr. Hampton had a back surgery in early 2006 and did not return to work until March 3, 2006. Mr. Snyder was working on March 2, 2006. Mr. Snyder does not remember selling any go-karts. Nevertheless, Mr. Hampton recalled receiving a call from Mr. Snyder on March 2, 2006, informing him a go-kart had been sold.
Ms. Griffin stated she assumed the people they bought the go-kart from worked for Rhino’s because the building said Rhino’s. The people they spoke with stated go-karts were safer than four-wheelers. Ms. Griffin remembered speaking to a male, but she could not describe the man and could not remember his name. At the time she and Mr. Griffin purchased the go-kart, Ms. Griffin was not aware Supertints existed.
Plaintiffs hired an expert to examine the go-kart.1 The expert discovered *347the castle nut in the lower suspension of the go-kart “was not torqued to specification, and in fact needed to be twisted with fingers.” This problem “would have had an effect on the steering and handling of the go-kart.” Furthermore, “[t]he castle nut and cotter pin could have easily been inspected and tightened to specification prior to the delivery of the go-kart to the Griffin family.”
With respect to the dangerous condition of the go-kart, Plaintiffs also submitted a 2000 report titled Go-Kart Related Injuries and Deaths to Children (“the injury report”). The injury report stated that between January 1, 1990, and December 31, 1999, 113 children died as a result of go-kart accidents. The injury report also concluded the major hazards “were collision with a stationary object, collision with a moving vehicle, or loss of stability.”
These facts presented in conjunction with the summary judgment motion and response show Plaintiffs, after an adequate period of discovery, will be unable to prove Rhino’s and Mr. Brooks had the requisite knowledge. Knowledge on the part of Rhino’s and Mr. Brooks is critical to both the negligent failure to warn and negligent failure to inspect theories Plaintiffs raised in their petitions. As stated above, the first of the three elements a plaintiff must prove in a negligent failure to warn case is that the seller knew or had “reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied[.]” Malone v. Schapun, Inc., 965 S.W.2d 177, 184 (Mo.App.E.D.1997). Moreover:
[a] seller of a product, who neither knows [n]or has reason to know that the product is dangerous, is not liable in a negligence action for harm caused by the product’s dangerous condition because of the seller’s failure to discover the danger by an inspection or test of the product before selling it.
Id. at 185-86. Thus, if Plaintiffs, after an adequate period of discovery, will be unable to produce facts showing Rhino’s and Mr. Brooks had reason to know the go-kart was dangerous or was likely to be dangerous, Rhino’s and Mr. Brooks have shown a right to judgment as a matter of law. See ITT, 854 S.W.2d at 381 (noting a defending party may show a right to judgment as a matter of law by establishing “that the non-movant, after an adequate period of discovery, has not been able to produce, and will not be able to produce, evidence sufficient to allow the trier of fact to find the existence of any one of the claimant’s elements.”) (emphasis in original).
The mere act of selling a product is not sufficient to show the seller knew or had reason to know the product was likely to be dangerous. See Malone, 965 S.W.2d at 185. The phrase “reason to know” has been defined as being satisfied when “the actor has information from which a person *348of reasonable intelligence or of the superi- or intelligence of the actor would infer that the fact in question exists, or that such person would govern his conduct upon the assumption that such fact exists.” Id. Thus, where a seller in support of a motion for summary judgment provides a sworn statement that he or she lacked knowledge of the dangerous condition, and the plaintiff responds by merely adducing evidence that the sellers were responsible for ordering the stock and placing it in the store, the plaintiff has not produced sufficient facts to defeat the motion for summary judgment. Id.
In the present case, Rhino’s and Mr. Brooks demonstrated facts showing Plaintiffs would not be able to show Rhino’s and Mr. Brooks had the requisite knowledge by presenting Mr. Brooks’s affidavit in support of their statement of uncontrovert-ed material facts. In that affidavit, Mr. Brooks stated he “was not involved with the ordering, preparing, assembling or delivering of said go-kart.” He also said he did not receive any information regarding a defect in the go-kart. Thus, the burden shifted to Plaintiffs to show a dispute regarding the facts which bore upon Mr. Brooks’s knowledge. See ITT, 854 S.W.2d at 381. To do so, Plaintiffs made a two-pronged attack.
First, and primarily, Plaintiffs attempted to show Mr. Brooks was involved in the sale of the go-kart. In support of this attack, they adduced evidence (1) that Ms. Griffin believed Rhino’s sold the go-kart; (2) that Mr. Snyder did not remember selling the go-kart; and (3) a manager of Rhino’s admitted the sale when speaking to a highway patrolman shortly after the accident. This attack is unavailing. These facts do not show knowledge of or reason to know the go-kart was likely to be dangerous. Rather these facts simply show a question of fact as to whether Rhino’s and Mr. Brooks participated in the sale of the go-kart. However, as discussed above, the mere fact that Mr. Brooks participated in the sale would not require the finding that Mr. Brooks had the requisite knowledge. See Malone, 965 S.W.2d at 185. Thus, those facts, even if they are in dispute, are not material.
Plaintiffs’ second attack involved two facts: the seller’s representation to the Griffins that go-karts were safer than other four wheelers and the injury report. Neither of these two facts demonstrates Rhino’s or Mr. Brooks had reason to know of any defect in the go-kart.
Ms. Griffin’s recollection of the assurance given by the salesperson does not demonstrate a reason to know the go-kart was likely to be dangerous. Stating that a go-kart is safer than other vehicles does not imply possession of knowledge regarding specific information that would lead a person of reasonable intelligence to infer a defect existed. Furthermore, even if Mr. Brooks was the person who made that representation and even if Mr. Brooks was involved in the sale, the undisputed facts still-show it was not an ordinary part of his business. He did not order the go-kart or help assemble it. Rather, he was substituting for Mr. Hampton because of Mr. Hampton’s surgery. These facts show Rhino’s and Mr. Brooks had no specific information regarding the go-kart.
Furthermore, the injury report does not create a genuine issue of material fact because it is simply not relevant. Scientific knowledge as shown by authorita- ' five publications cannot be used to show knowledge on the part of a party without proof that the party had actual knowledge of the publication. Ball v. Burlington Northern R. Co., 672 S.W.2d 358, 362 (Mo.App.E.D.1984). Here, no facts were presented showing Mr. Brooks had actual knowledge of the report. The mere fact *349that the report was in the public domain is simply not sufficient to show Mr. Brooks, a person who did not regularly deal in the sale of go-karts, was aware of it.
The facts Plaintiffs presented failed to create a genuine issue of material fact with respect to Rhino’s and Mr. Brooks’s knowledge of any alleged dangerous condition in the go-kart. Consequently, the trial court did not err in granting summary judgment to .Rhino’s and Mr. Brooks. Plaintiffs’ first three points are denied.
Point IV
In their final point, Plaintiffs argue the trial court erred in granting the motion to set aside the default judgment that was originally entered against Kandi Investments. We disagree. •
The following additional facts are relevant to the resolution of this claim. Plaintiffs’ first petition in this case was filed on February 27, 2009. Service on Kandi Vehicles was obtained by service on Ms. Zhou. The docket sheets reflect that the summons was delivered to Ham, Kandi Vehicles, Kandi Investments, and SunL on April 15, 2009. On March 16, 2010, Plaintiffs filed a motion for default judgment. The trial court held a hearing on the motion and entered default judgments on March 19, 2010. These judgments purported to award $20 million from Kandi Investments to Ms. Griffin and her children and $20 million from Kandi Investments to Ms. Elder.
On June 9, 2010, Kandi Investments filed a motion to set aside the default judgment. Later, counsel filed a motion to substitute Kandi Vehicles for Kandi Investments. In support, counsel presented an affidavit showing that Kandi Investments is a holding company and that Kan-di Vehicles is the company who allegedly built the go-kart. The trial court granted the motion to substitute. In its subsequently filed amended motion to set aside the default judgment, Kandi Vehicles claimed service was inadequate because Ms. Zhou was not the registered agent for Kandi Vehicles. In support of the motion, Kandi Vehicles filed an affidavit made by Xiaoming Hu (“Mr. Hu”). In his affidavit, Mr. Hu stated he was the founder of Kandi Vehicles and SunL was a former distributor for Kandi Vehicles. He further stated Ms. Zhou had never been an officer, partner, or managing or general agent for .Kandi Vehicles. According to the affidavit, Ms. Zhou’s office was not a place of business for Kandi Vehicles, and Ms. Zhou did not inform Kandi Vehicles of the documents she received. Under these facts, Kandi Vehicles was never properly served, so the trial court never acquired personal jurisdiction and the default judgment was a nullity.
“[Wjhether a default judgment should be vacated because it is void is a question of law that we review de novo.” O’Hare v. Permenter, 113 S.W.3d 287, 289 (Mo.App.E.D.2003). In the interest of finality, the concept of a void judgment is narrowly limited. Ground Freight Expeditors, LLC v. Binder, 407 S.W.3d 138, 141 (Mo.App.W.D.2013). “A judgment is void under Rule 74.06(b)(4) only if the circuit court that rendered it (1) lacked subject matter jurisdiction; ’ (2) lacked personal jurisdiction; or (3) entered the judgment in a manner that violated due process.” Id. at 141-42 (quoting Goins v. Goins, 406 S.W.3d 886, 891-92 (Mo. banc 2013)). Here, the circuit court lacked personal jurisdiction.2
*350“Service of process is a prerequisite to the exercise of personal jurisdiction over a defendant.” Cook v. Polineni, 967 S.W.2d 687, 690 (Mo.App.E.D.1998). “[U]nless a defendant is served with process, or summoned, in a manner and form authorized by statute, the court is without authority to proceed.” Finnigan v. KNG Invs., Inc., 158 S.W.3d 808, 810 (Mo.App.S.D.2005) (quoting State ex rel. Illinois Farmers Ins. Co. v. Gallagher, 811 S.W.2d 353, 354 (Mo. banc 1991)). “Where the statutorily prescribed requirements for process and the manner of service are not met, the court in which the action is pending is without power to adjudicate.” Id.
Kandi Vehicles was a Chinese corporation, so service of process was governed by Rule 54.13(b)(3). See Rule 54.14(b). That rule provides that service may be made upon a foreign corporation:
by delivering a copy of the summons and petition to an officer, partner, or managing or general agent, or by leaving the copies at any business office of the defendant with the person having charge thereof or by delivering copies to its registered agent or to any other agent authorized by appointment or required by law to receive service of process.
Rule 54.13(b)(3).
Here, the purported service on Kandi Vehicles was accomplished by delivering the documents to Ms. Zhou at her office in Texas. However, Ms. Zhou was not an officer, partner, or mánaging or general agent of Kandi Vehicles. Furthermore, Kandi Vehicles did not maintain an office at Ms. Zhou’s office, so service on Ms. Zhou would not satisfy the alternative method of service by delivering copies to any business office of the defendant. Kan-di Vehicles was never properly served pri- or to the entry of the default judgment.
“When a court enters a judgment when no valid personal jurisdiction has been obtained over the defendant, the judgment is void.” Maddox v. State Auto. Mut. Ins. Co.,. 356 S.W.3d 231, 234 (Mo.App.E.D.2011). Furthermore, “[a] default judgment, being void due to lack of jurisdiction, remains void forever, and any kind of proceeding to cancel it is proper.” Bueneman v. Zykan, 52 S.W.3d 49, 58 (Mo.App.E.D.2001). The trial court did not err in granting the motion to set aside the default judgment.
In their point on appeal, Plaintiffs argue there was no jurisdiction to do anything in the case after entering the default judgment because the docket entry setting aside the default judgment was not a final judgment. This argument misses the mark. Although ordinarily, a final judgment would be needed to set aside a default judgment, the same result does not apply where the default judgment was void for lack of personal jurisdiction. Because the default judgment was void, it was as if it never existed.
Plaintiffs reliance on Lake Osage Condominium Ass’n, Inc. v. Prewitt, 179 S.W.3d 331 (Mo.App.S.D.2005), is misplaced because it does not take into account the critical fact that Kandi Vehicles was not properly served prior to the entry of the default judgment. It is true that Lake Osage holds that a final judgment is necessary to effectively set aside a default judgment. However, in that case, the default judgment was not void. Rather, the defendant in that case had been properly served, and the default judgment was set áside on other grounds. Id. at 333-34. Thus, unlike in the present case, the trial *351court had the power to enter the original default judgment. Here, the original default judgment was void.
The trial court did not err in setting aside the default judgment because the default judgment was void for lack of personal jurisdiction. Plaintiffs’ final point is denied.
Decision
The trial court’s judgment is affirmed.
NANCY STEFFEN RAHMEYER, J.— CONCURS
DON E. BURRELL, J. — CONCURS
. The facts related to the expert’s examination of the go-kart are taken from Plaintiffs’ statement of additional material facts. These facts are considered because Rhino’s and Mr. Brooks did not respond to Plaintiffs’ reply in accordance with the procedure set out in Rule 74.04. When replying to a response to a motion for summary judgment, ”[d]enials shall be supported in the manner prescribed by Rule 74.04(c)(2).” Rule 74.04(c)(3). Rule *34774.04(c)(2) provides that a response must set forth the facts in their original paragraphs and indicate whether each one is admitted or denied. Rule 74.04(c)(2). Furthermore, ‘‘[a] denial may not rest upon the mere allegations or denials of the party's pleading. Rather, the response shall support each denial with specific references to the discovery, exhibits or affidavits that demonstrate specific facts showing that there is a genuine issue for trial.” Rule 74.04(c)(2). Where a party does not comply with those requirements, the facts presented by the other party are deemed admitted. Central Trust and Inv. Co. v. Signalpoint Asset Mgmt., LLC, 422 S.W.3d 312, 320 (Mo. banc 2014). Here, while Rhino’s and Mr. Brooks replied to Plaintiffs’ response, their denials of the facts related to the expert’s examination of the go-kart did not include specific references to the discovery. Thus, those facts are deemed admitted. All rule references are to Missouri Court Rules (2014).
. Although Kandi Vehicles disputes Plaintiffs' use of the term jurisdictional, the use of that term is appropriate in this case. J.C.W. ex rel. Webb v. Wyciskalla, 275 S.W.3d 249 (Mo. banc 2009), which clarified the law regarding jurisdictional arguments in Missouri courts, *350was primarily concerned with subject matter jurisdiction. See id. at 253. That case did not alter the rules regarding personal jurisdiction which are rooted in concepts related to due process. See id. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283590/ | ORDER
Per Curiam:
Ali Cubba appeals the circuit court’s judgment denying his Rule 24.035 motion for postconviction relief after an evidentia-ry hearing. We affirm. Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283591/ | ORDER
PER CURIAM:
Randy Fisher appeals from the denial of his Rule' 29.15 motion for postconviction relief without an evidentiary hearing. After a thorough review of the record, we conclude that the judgment is based on findings of fact that are not clearly erroneous and that no error of law appears. A formal, published opinion would serve no jurisprudential purpose; however, a memorandum explaining the reasons for our decision has been provided to the parties.
Judgment affirmed. Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283592/ | Order
Per Curiam
Llkeesha Graham appeals her convictions for fraudulent use of a debit device in violation of section 570.130, RSMo Supp. 2009, and stealing in violation of section 570.030, RSMo Supp. 2003. Graham contends the trial court erred in admitting evidence of other uncharged acts. For reasons explained in a Memorandum provided to the parties, we find no error and affirm Graham’s convictions. Judgment affirmed. Rule 30.25(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283594/ | ORDER
PER CURIAM.
Appellant Cory Brooks (“Brooks”) appeals from the judgment of the motion *416court denying his Rule 24.035 motion for post-conviction relief following an eviden-tiary hearing. Brooks pleaded guilty to one count of second-degree murder, Section 565.012 (Count V), one count of armed criminal action, Section 571.015 (Count VI), and one count of conspiracy to sell a controlled substance, Section 564.016 (Count VII). On March 12, 2012, the trial court sentenced Brooks to a total of thirty years of imprisonment. Brooks filed a pro se motion for post-conviction relief pursuant to Rule 24.035 alleging, inter alia, that he was denied effective assistance of plea counsel. Appointed counsel filed an amended motion and request for evidentia-ry hearing asserting that plea counsel was ineffective in: (1) advising Brooks that he would receive a total of fifteen to twenty years in prison if he pleaded guilty, and (2) failing to advise Brooks that he would be required to serve a mandatory minimum term of eighty-five percent of the second-degree murder sentence and three years’ imprisonment of the armed criminal action sentence if he pleaded guilty. Following an evidentiary hearing, the motion court denied Brooks’s claim.
We have reviewed the briefs of the parties, the legal file, and the record on appeal and find the claims of error to be without merit. No error of law appears. An extended opinion reciting the detailed facts and restating the principles of law applicable to this case would serve no jurisprudential purpose. The parties have been furnished with a memorandum for their information only, setting forth the reasons for our decision. We affirm the judgment of the motion court pursuant to Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283595/ | ORDER
PER CURIAM.
Appellant Ronald Hamilton (“Hamilton”) appeals from the judgment of the motion court denying his Rule 29.15 motion for post-conviction relief without an evidentia-ry hearing. Following a jury trial, Hamilton. was convicted of two counts of domestic assault in the first degree and one count of armed criminal action. The trial court found Hamilton to be a prior and persistent offender and sentenced him to *417three consecutive terms of 25 years’ imprisonment. Hamilton’s conviction' and sentence were affirmed on direct appeal by this Court in State v. Hamilton, 387 S.W.3d 403 (Mo.App.E.D.2012). Hamilton subsequently filed a Rule 29.15 motion for post-conviction relief alleging ineffective assistance of appellate counsel, which the motion court denied without an evidentiary hearing. Hamilton now contends on appeal that the motion court clearly erred in denying his motion for post-conviction relief because appellate counsel rendered ineffective assistance of counsel in (1) failing to raise, on direct appeal, the trial court’s error in not appointing substitute trial counsel for Hamilton, and (2) failing to raise, on direct appeal, the trial court’s error in denying Hamilton’s request for a continuance.
We have reviewed the briefs of the parties, the legal file, and the record on appeal and find the claims of error to be without merit. No error of law appears. An extended opinion reciting the detailed facts and restating the principles of law applicable to this case would serve no jurisprudential purpose. The parties have been furnished with a memorandum for their information only, setting forth the reasons for our decision. We affirm the judgment of the motion court pursuant to Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283613/ | ORDER
PER CURIAM:
Dallas Mays appeals the summary judgment of the trial court in favor of the Missouri Board of Probation and Parole in his declaratory judgment action. 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/5283614/ | ORDER
Following a jury trial in the Circuit Court of Grundy County, Lynn D. Shipley was convicted of sexual misconduct by indecent exposure for exposing his genitals to a child, in violation of § 566.083, RSMo. Shipley appeals, arguing that evidence was insufficient to prove that he acted for the purpose of arousing or gratifying his own sexual desire. We affirm. Because a published opinion would have no precedential value, we have provided the parties an unpublished memorandum setting forth the reasons for this order. Rule 30.25(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6125706/ | Davis, P. J.:
This action was brought for the foreclosure of a mortgage made by Alexander C. Poillon and Cornelius Poillon, both now deceased. A judgment of foreclosure and sale containing the usual provision that any surplus shall be paid into the chamberlain’s office, was obtained, in pursuance of which the mortgaged premises were sold by a referee on the 13th of January, 1881. There was a surplus produced upon the sale of about $10,000. 'Subsequently to the sale the United States Life Insurance Company, the present respondents, having a judgment recovered February 6, 1878, against Mary A. Jordan, administratrix of Cornelius Poillon one of the mortgagors, moved at Special Term to amend the judgment in the foreclosure case by directing that the surplus moneys be paid to the surrogate of the county of New York instead of to the chamberlain. The court granted the motion. The motion was made under the provisions of chapter 658 of the Laws of 1867, which is as follows:
“Section 1. Whenever there shall remain any surplus moneys arising from the sale of any lands or real estate, of which any deceased person died seized, by virtue of any mortgage or other lien thereon given by or obtained against such person during life, the person or corporation making such sale, or the person holding the same, shall pay over such surplus money to the surrogate of any court having jurisdiction to entertain an application for the sale, mortgaging or leasing the real estate of a deceased person, for payment of debts, within thirty days after making such sale, or within thirty days after the passage of this act, and the surrogate’s receipt for the same shall discharge such person or corporation from all liability on account of such moneys.
“ Sec. 2. The surrogate to whom such surplus moneys shall be paid shall, upon the application of an executor or administrator or creditor of such deceased person, made in the manner prescribed by law, for the mortgaging, lease or sale of real estate for the payment of debts, and upon the same proceedings being had that would authorize the mortgaging, lease or sale of real estate under existing provisions of law, make an order disposing of such surplus moneys, in the same manner as moneys derived from the sale of real estate under the said provisions of law.”
Assuming that this act is applicable to cases where mortgages are *71foreclosed by action, the order would undoubtedly be correct if the provisions of the act remained unaffected by any subsequent legislation. But chapter 658 of the Laws of 1867, above quoted, was amended by chapter 834 of the Laws of 1871, which added to the first section of the act the following proviso :
“ But this act shall not apply to any ease where letters testamentary or letters of administration within this State have been, or shall have been, issued to the personal representatives or representative of such deceased person, four years previously to the making of the sale on which such surplus moneys arise.”
The provisions of the section, as codified, appear in section 2798 of the Code of Civil Procedure, which prescribes the practice established by the act of 1867 as well as under the provisions of the act of 1871, preventing the application of the statute to cases where letters testamentary or letters of administration have been issued four years previously to the making of the sale on which the surplus moneys shall arise. It appears in this case that letters of administration upon the estate of said Cornelius Poillon were issued by the surrogate on the 23d of December, 1876, and that the sale of the mortgaged premises in the above entitled action took place on the 13th of January, 1881. More than four years had elapsed between the issuing of the letters of administration and the date of the sale. The question seems to be, what is the meaning of the phrase “ making of the sale,” as used in chapter 834 of the Laws of 1871 ? It is argued by the respondent that that phrase should be held to mean the commencement of the foreclosure suit; or the commencement of the proceedings before the referee for making the sale, and that in that sense the making of the sale was less than four years after the granting of the letters.
But we think that the legislature had in view in using that phrase the act of sellmg, so that the words “ making of the sale ” must be construed simply to mean that act, and thereby to fix a specific time for the purpose of determining the cases to which the act should apply. Thus viewed, the case before us did not come within the provisions of the act of 1867, as amended by the act of 1871. The surplus moneys were therefore disposed of by the provisions of section 1633 of the Code, with which the original judgment, under the rules of the court, complied.
*72The motion, ought not to have been granted, and the order must therefore be reversed, but without costs.
Brady, J., concurred.
Present — -Davis, P. J., Brady and Daniels, JJ.
Order reversed, without costs. | 01-04-2023 | 02-04-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283596/ | ORDER
PER CURIAM.
Antonio Powell (“Powell”) appeals from the judgment of the motion court denying his Rule 29.15 motion for post-conviction relief without an evidentiary hearing. Powell was convicted by a jury of one count of second-degree trafficking in violation of Section 195.223. The trial court found Powell to be a prior and persistent drug offender and sentenced him to fifteen years in prison without the possibility of parole. On March 12, 2013, this Court affirmed Powell’s conviction and sentence in State v. Powell, 393 S.W.3d 617 (Mo.App.E.D.2013). Powell timely filed a pro se Rule 29.15 motion for post-conviction *418relief alleging, inter alia, that he was denied his right to effective assistance of counsel. Appointed counsel filed an amended motion and request for an evi-dentiary hearing asserting that Powell’s trial counsel was ineffective in failing to object to Jury Instruction No. 6 on the basis that the instruction failed to comply with the Notes on Use for MAI-CR3d 310.10. The motion court denied Powell’s motion without an evidentiary hearing.
We have reviewed the briefs of the parties, the legal file, and the record on appeal and find the claims of error to be without merit. No error of law appears. An extended opinion reciting the detailed facts and restating the principles of law applicable to this case would serve no jurisprudential purpose. The parties have been furnished with a memorandum for their information only, setting forth the reasons for our decision. We affirm the judgment of the motion court pursuant to Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283597/ | ORDER
Per Curiam:
Jessuan Lamar Cowans appeals the circuit court’s judgment convicting him of first-degree burglary, second-degree domestic assault, and attempted victim tampering. We affirm. Rule 30.25(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283598/ | OPINION
YVONNE T. RODRIGUEZ, Justice.
Appellants, the Commissioner of the General Land Office of the State of Texas, Wesley West Minerals, Ltd., and Longfellow Ranch Partners, L.P. (collectively referred to hereinafter as “Appellants”), appeal the outcome of several cross summary judgment motions filed by the parties in this oil and gas case. For the reasons that follow, we affirm in part, reverse in part, render in part, and remand in part this action to the trial court.
Background
This case concerns the construction of twelve oil and gas leases to which Appel-lees, SandRidge Energy, Inc. and San-dRidge Exploration and Production, L.L.C. (hereinafter collectively referred to as “SandRidge”) are lessees. Seven of these leases are situated on Texas Relinquishment Act lands, entitling the Texas General Land Office (the “GLO”) to royalty interests (collectively, the “State Leases”). Wesley West Minerals, Ltd. (“West”) and Longfellow Ranch Partners, L.P. (“Longfellow”) are the “owners of the soil” on six of the State Leases, and they equally share the royalties for these leases with the GLO. The remaining five leases do not concern the GLO, but only West and Longfellow, as lessors.1 Although the *607terms of the twelve leases are not identical, similar questions regarding their allocation of post-production costs and provision of carbon dioxide royalties under the leases form the bases of the underlying suit. The parties’ dispute over these issues arose when SandRidge changed the manner in which it processed sour gas produced from the leases.2
Prior to 2010, SandRidge transported sour gas from the various wells on the leases to one of three small plants (“the Legacy Plants”). Carbon dioxide was extracted from the natural gas stream at the Legacy Plants, leaving residue gas at the tailgate of the plants, plus small volumes of liquefied hydrocarbons. For a period of time, SandRidge sold the carbon dioxide so extracted and paid Appellants a royalty thereon. Beginning in September of 2010, however, sour gas produced from the leases was sent to a large new plant known as the Century Plant. This plant is owned by Oxy USA, Inc., but SandRidge built the plant. Whereas SandRidge used to sell the carbon dioxide after incurring the cost to extract it at the Legacy Plants, it now gives the carbon dioxide directly to Oxy, and in exchange, Oxy does not charge SandRidge for the cost of extracting carbon dioxide from the methane. Once the Century Plant was operational, SandRidge informed the Appellants that it would no longer be paying royalties on carbon dioxide because it was no longer selling the carbon dioxide, which resulted in the underlying suit. The parties filed cross motions for partial summary judgment in the trial court, seeking various declarations regarding the allocation of post-production expenses and SandRidge’s obligation to pay carbon dioxide royalties. The trial court determined all issues presented in SandRidge’s favor. After determining that its summary judgment order concerned controlling questions of law upon which there is substantial ground for differences of opinion, the trial court entered an order permitting the parties to pursue the instant interlocutory appeal.3
The Appellants’ Points of ERROR.
West and Longfellow present four issues in a jointly-filed brief. They challenge the trial court’s rulings on the carbon dioxide royalty and post-production costs issues as to each of the twelve leases. In its brief, the GLO also presents two questions on the same issues regarding only the State Leases. Other than the State Leases, which are largely uniform in language, we find it simplest and most efficient to address Appellants’ issúes in terms of the leases individually.
Governing Legal Standards
We review de novo the trial court’s decision to grant a summary judgment. Ferguson v. Bldg. Materials Corp. of Am., 295 S.W.3d 642, 644 (Tex.2009). On cross-motions for summary judgment, each moving party bears the burden of establishing that it is entitled to judgment as a matter of law. City of Garland v. Dallas Morning News, 22 S.W.3d 351, 356 (Tex.2000). When a trial court grants one motion and denies others, we review all questions presented. Id. at 356-57. “The reviewing court should render such judg*608ment as the trial court should have rendered.” Commissioners Court of Titus County v. Agan, 940 S.W.2d 77, 81 (Tex.1997). This includes, where appropriate, rendering judgment for the other movant. Jones v. Strauss, 745 S.W.2d 898, 900 (Tex.1988). However, we may also reverse the judgment and remand the cause when we find that course proper. See Coker v. Coker, 650 S.W.2d 391, 392 (Tex.1983).
It is well settled that an “oil and gas lease is a contract, and its terms are interpreted as such.” Tittizer v. Union Gas Corp., 171 S.W.3d 857, 860 (Tex.2005). The construction of a contract is a question of law that we review de novo. Chrysler Ins. Co. v. Greenspoint Dodge of Houston, Inc., 297 S.W.3d 248, 252 (Tex.2009). A court’s primary goal in interpreting a contract is to give effect to the parties’ intent as expressed in the writing. Luckel v. White, 819 S.W.2d 459, 461-63 (Tex.1991). That intent is garnered from the language of the contract, which is considered in its entirety in an effort to understand, harmonize, and effectuate all its provisions, so that none will be rendered meaningless. Anadarko Petroleum Corp. v. Thompson, 94 S.W.3d 550, 554 (Tex.2002). “No single provision taken alone will be given controlling effect; rather, all the provisions must be considered with reference to the whole instrument.” Coker, 650 S.W.2d at 393. Further, the Court should not construe a contractual provision in a manner that is unreasonable or absurd. See Reilly v. Rangers Mgmt., Inc., 727 S.W.2d 527, 530 (Tex.1987).
Lastly, we are mindful that the parties to a lease agreement are considered the masters of their own choices. See Cross Timbers Oil Co. v. Exxon Corp., 22 S.W.3d 24, 26 (Tex.App.-Amarillo 2000, no pet.). It is the parties who select the terms and provisions to be included, and in so choosing, “each is entitled to rely upon the words selected to demarcate their respective obligations and rights.” Id. “Simply put, we cannot change the contract merely because we or one of the parties comes to dislike its provisions or thinks that something else is needed in it.” Id. (citing HECI Explor. Co. v. Neel, 982 S.W.2d 881, 888-89 (Tex.1998)).
I. The State Leases
A. Summary op the Parties’ Dispute Regarding the State Leases
Although the specific terms of the seven State Leases are not identical, they are, as the parties agree, virtually the same in the pertinent sections, which are sections 4 and 7. Paragraph 4(B), which provides a royalty for non-processed gas, is the focal point of the parties’ dispute regarding Section 4.
In relevant part, paragraph 4(B) provides as follows:
NON PROCESSED GAS. Royalty on any gas (including flared gas), which is defined as all hydrocarbons and gaseous substances not defined as oil in subpara-graph (A) above, produced from any well on said land (except as provided herein with respect to gas processed in a plant for the extraction of gasoline, liquid hydrocarbons or other products) shall be 25% part of the gross production or the market value thereof, at the option of the owner of the soil or the Commissioner of the General Land Office, such value to be based on the highest market price paid or offered for gas of comparable quality in the general area where produced and when run, or the gross price paid or offered to the producer, whichever is the greater ....
Appellants contend that this language provides two separate royalty payments — one for natural gas (i.e., methane), and another for carbon dioxide. Conversely, San-*609dRidge maintains that 4(B) provides a single royalty on raw, unprocessed gas, as produced at the wellhead, contaminants (including but not limited to carbon dioxide) and all. In sum, SandRidge contends that paragraph 4(B) functions as a “market value at the well” clause, or one that pays royalty on the value of the raw gas at the wellhead, before it is transported, treated, or otherwise prepared for market. See Heritage Resources, Inc. v. NationsBank, 939 S.W.2d 118 (Tex.1996); and Judice v. Mewbourne Oil Co., 939 S.W.2d 133, 136 (Tex.1996).
Appellants contest SandRidge’s characterization of 4(B) as a market value at the well provision. Relying on the Mewbourne Oil case, Appellants argue that paragraph 4(B) is a “gross proceeds” royalty provision, which is the opposite of a market value at the well provision. Mewbourne Oil, 939 S.W.2d at 136.
The parties also dispute the significance of a “no deductions” clause found in paragraph 7 of the State Leases. Paragraph 7 provides as follows:
7. NO DEDUCTIONS. Lessee agrees that all royalties accruing under this lease (including those paid in kind) shall be without deduction for the cost of producing, gathering, storing, separating, treating, dehydrating, compressing, processing, transporting, and otherwise making the oil, gas and other products hereunder ready for sale or use. Lessee agrees to compute and pay royalties on the gross value received, including any reimbursements for severance taxes and production related costs.4
Appellants assert that this provision makes the gross proceeds nature of the State Leases unmistakable, and that as result SandRidge is not permitted to deduct these sorts of costs from royalties payable under paragraph 4(B). Sari-dRidge concedes that paragraph 7 makes it impermissible to deduct such expenses from royalties payable under paragraphs lt.(C) and í(D) of the State Leases, but it denies that paragraph 7 is applicable to paragraph 4(B).5 Whereas paragraph 4(B) provides a royalty on unprocessed gas, paragraphs 4(C) and 4(D) provide royalties on different substances. Specifically, 4(C) provides a royalty on “processed gas,” which it defines as “any gas processed in a gasoline plant or other plant for the recov*610ery of gasoline or other liquid hydrocarbons _”6 Paragraph 4(D), in turn, provides a royalty on “other products,” which it defines as follows: “carbon black, sul-phur or any other products produced or manufactured from gas7 (excepting liquid hydrocarbons) whether said gas be ‘casing-head,’ ‘dry,’ or any other gas, by fractionating, burning or any other processing!)]” SandRidge asserts that the question of whether costs are deductible under paragraphs 4(C) and 4(D) is immaterial, however, as is the question of whether carbon dioxide royalties are owed under 4(C) or 4(D). According to SandRidge, Appellants repudiated any reliance on paragraphs 4(C) and 4(D) in the trial court. Because this matter affects the scope of our review, we address it first.
B. Appellants Look Solely to Subpara-graph 4(B) of the State Leases for Carbon Dioxide Royalties
SandRidge asserts that the Appellants took the firm position in the trial court that subparagraph 4(B) is the State Lease clause that requires royalties be paid on carbon dioxide, and that neither 4(C) 'nor 4(D) is applicable. SandRidge presented the same argument to the trial court, and made it clear that it was framing its requested summary judgment relief accordingly: “SandRidge seeks summary judgment that paragraph MB) of the State Lease form does not obligate SandRidge to pay a separate royalty on C02.” [Emphasis in the original]. The Appellants did not dispute SandRidge’s description of their positions in the trial court, did not request declarations regarding subpara-graphs 4(C) or 4(D), and did not otherwise argue that CARBON DIOXIDE royalties were payable under either 4(C) or 4(D). The GLO, in fact, responded to San-dRidge’s summary judgment motion by asserting that 4(C) and 4(D) “simply do[] hot apply to the facts or the dispute in this litigation.” Before this Court, the Appellants continue to disavow any reliance on subparagraph 4(D). They likewise continue to insist that subparagraph 4(B) is the carbon dioxide royalty provision, but dispute that they have waived reliance on 4(C). We disagree.
Pursuant to Rule 166a(c) of the Texas Rules of Civil Procedure, a motion for summary judgment must specifically state the grounds on which it is based. Tex.R.Civ.P. 166a(c). Likewise, a non-movant’s response to a summary judgment motion must specifically identify the grounds it contends defeat the motion. McConnell v. Southside Independent School Dist., 858 S.W.2d 337, 341 (Tex.1993) (citing City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex.1979)). “Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal.” Tex.R.Civ.P. 166a(c). The Fourteenth District Court of Appeals considered the effect of Rule 166a(c) under analogous circumstances in an employment case, Mayfield v. Lockheed Engineering & Sciences Co., 970 S.W.2d 185 (Tex.App.Houston [14th Dist.] 1998, pet. denied).
In Mayfield, an employee/plaintiff asserted on appeal that he had been wrong*611fully terminated for refusing to perform an illegal act. Id. at 187 n. 2. In his response to the employer’s summary judgment motion, however, the employee asserted only that he had a good faith belief that the actions he was asked to perform were illegal. Id. Citing Rule 166a(c), the Houston court refused to consider this positional shift. Id. See alsoAguilar v. Trujillo, 162 S.W.3d 839, 854-55 (Tex.App.-El Paso 2005, pet. denied) (refusing to consider appellate arguments regarding statutory violations that were not raised in response to a summary judgment motion). Here, similarly, the Appellants’ summary judgment arguments were restricted to paragraph 4(B). They did not argue that carbon dioxide royalties were payable under paragraphs 4(C) or 4(D). In fact, this continued to be the state of the summary judgment record even after SandRidge specifically called attention to the Appellants’ non-reliance on 4(C) and 4(D). Thus, while we are bound to consider paragraphs 4(C) and 4(D) in order to understand, harmonize, and effectuate all of the State Leases’ provisions, only a royalty on carbon dioxide that is payable under 4(B) can form the basis of a reversal of the trial court. Thompson, 94 S.W.3d at 554; Tex. R.Civ. P. 166a(c).
C. Does Paragraph 4(B) Provide a Royalty on Carbon Dioxide?
We must now determine whether paragraph 4(B) provides a royalty on carbon dioxide in addition to a royalty on methane. SandRidge, in favor of a royalty only on methane, asserts that several components of the State Leases make it clear that paragraph 4(B) functions as a market value at the well clause. “Market value ‘at the well’ means the value of gas at the well, before it is transported, treated, compressed or otherwise prepared for market.” Heritage Resources, 939 S.W.2d at 129 (Owen, J., concurring). Conversely, Appellants contend that 4(B) is a “gross proceeds” royalty provision, which is the opposite of a market value at the well provision. These arguments turn on the Heritage Resources and Mewboume Oil cases, which the Texas Supreme Court decided on the same day. Id; Mewbourne Oil, 939 S.W.2d at 135.
The Heritage case concerned the allocation of post-production transportation costs under a market value at the well lease with a “no deduct” clause specifying that post-production costs could not be deducted from royalties paid under the lease. Heritage Resources, 939 S.W.2d at 120-21. The court began by noting that while royalties are generally not subject to the costs of production, they are generally subject to post-production costs, including taxes, treatment costs, and transportation costs. Id. at 122. Nonetheless, a lease specifying that royalty is to be paid on market value at the well effectively nullifies a clause attempting to exempt the royalty from post-production expenses. Heritage Resources, 939 S.W.2d at 123. As the concurring opinion in Heritage explained: “The concept of ‘deductions’ of marketing costs from the value of the gas is meaningless when gas is valued at the well. Value at the well is already net of reasonable marketing costs.” [Emphasis added]. Id. at 130 (Owen, J., concurring). From SandRidge’s perspective, Heritage stands for the principle that a market value at the well clause trumps any other provision that conflicts with it.
The Mewbourne Oil case, on which Appellants rely, also concerned the deduction of post-production expenses from royalties derived from royalty clauses containing market value at the well language. Mewbourne Oil, 939 S.W.2d at 135. Unlike Heritage, however, one of the clauses at issue in Mewbourne contained *612both “gross proceeds” and “at the well” language: “Settlement for gas sold shall be based on the gross proceeds realized at the well by you.” Id. at 136. Whereas “at the well” means the value of gas before it has been refined and improved, “gross proceeds” means that the royalty is to be based on the gross price received by the lessee. Id. The court held that these conflicting provisions rendered the agreement ambiguous. Id.
Determining whether a contract is ambiguous is a question of law. J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 229 (Tex.2003). We may conclude that a contract is ambiguous even when, as is the case here, the parties do not assert ambiguity. Coker, 650 S.W.2d at 392-94 (although both parties asserted agreement was unambiguous and moved for summary judgment, supreme court concluded ambiguity existed, making summary judgment improper). At the same time, ambiguity does not arise simply because the parties advance conflicting interpretations of the contract; for an ambiguity to exist, both interpretations must be reasonable. Nat’l Union Fire Ins. Co. of Pittsburgh, P.A. v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex.1995). A contract is not ambiguous when, based on the plain language, the court can give it a certain or definite legal meaning or interpretation. Univ. Health Servs., Inc. v. Renaissance Women’s Group., P.A., 121 S.W.3d 742, 746 (Tex.2003). As such, the question becomes whether Appellants’ and San-dRidge’s conflicting interpretations are reasonable, without rendering any portion of the State Leases meaningless. See Coker, 650 S.W.2d at 394 (holding that no reasonable interpretation should render a provision meaningless).
Although paragraph 4(B) does- not expressly state that it is a market value at the well clause, several other terms make it clear nonetheless that its royalty is payable only on a single substance: raw gas, as it comes out of the ground from the well, together with carbon dioxide and all of the other various components. These terms make 4(B) the functional equivalent of a market value at the well clause, and Appellants’ contrary interpretation would render the terms meaningless. For instance, reading paragraph 4(B) as providing two royalties on two substances would render the wellhead measurement requirement meaningless.
A wellhead measurement determines the volume of the gas produced at the wellhead for the purpose of calculating the amount of the royalty due. See Bowden v. Phillips Petroleum Co., 247 S.W.3d 690, 704 (Tex.2008). Paragraph 4(B) requires that the royalty be calculated on such a measurement.8 The royalty is therefore owed on the substance so measured: raw gas, including all of its components. Sowell v. Natural Gas Pipeline Co. of Am., 789 F.2d 1151, 1157-58 (5th Cir.1986) (analyzing Texas law). See also Bowden, 247 S.W.3d at 706. “[W]hen there is a wellhead measurement, payment is due for gas in its natural state, not on the liquid hydrocarbons which are later extracted.” ConocoPhillips Co. v. Incline Energy, Inc., 189 S.W.3d 377, 381 (Tex.App.-Eastland 2006, pet. denied) (citing Carter v. Exxon Carp., 842 S.W.2d 393 (Tex.App.-Eastland 1992, writ denied)). The reason for this *613rule is simple: “the volume of gas exiting the tailgate [of a processing plant] is smaller than the volume at the wellhead because natural gas liquids and impurities such as water vapor are condensed from the gas stream[.]” Dynegy Midstream Services, Ltd. Partnership v. Apache Corp., 294 S.W.3d 164, 167 (Tex.2009). Consequently, Appellants argument for that construction of 4(B) renders paragraph 4(B)’s wellhead measurement requirement meaningless. If 4(B) required separate royalty payments on methane and later-extracted carbon dioxide, there would be no purpose whatsoever in measuring the volume of the raw gas stream at the wellhead.
Appellants’ construction would also destroy the purpose of language specifying that 4(B)’s royalty stems from “gross production.” This language is found in the portion of 4(B) providing the lessors’ two payment options: they may take their royalty as an in-kind share, or they may take the market value of their in-kind share: “[The royalty on non-processed gas] shall be 25% part of the gross production or the market value thereof, at the option [of Appellants]-” [Emphasis added]. Either way, 4(B)’s royalty is based on gross production. “Production means actual physical extraction of the mineral from the land.” Exxon Corp. v. Middleton, 613 S.W.2d 240, 244 (Tex.1981). It does not include subsequent efforts to improve or refíne the gas so produced:
‘Production’ means ‘the act of producing oil, gas, and other minerals,’ not the act of transporting, gathering, treating, processing, or marketing oil or gas. Historically, ‘production’ ceases once the lessee extracts oil or gas from the ground at the wellhead. The historical definition of ‘production’ is consistent with the common understanding of the term; to ‘produce’ is to make or create a product that did not previously exist, and not to refine or improve a product already in existence.
Blackmon v. XTO Energy, 276 S.W.3d 600, 604 (Tex.App.-Waco 2008, no pet.) (quoting Byron C. Keeling & Karolyn King Gillespie, The First Marketable Product Doctrine: Just What is the “Product ”?, 37 St. MaRy’s L.J. 1, 88-89 (2005)). See also Piney Woods Country Life School v. Shell Oil Co., 539 F.Supp. 957, 971 (S.D.Miss.1982), aff'd in part, rev’d in part on other grounds, 726 F.2d 225, 240 (5th Cir.1984). Thus, paragraph 4(B) provides as-royalty a 25 percent in-kind share of the unrefined, unimproved gas produced at the wellhead; or the market value thereof. If Appellants elected to take their royalties under paragraph 4(B) in-kind, raw gas is clearly what they would take. As the limiting phrase “or the market value thereof” makes equally plain, if they instead chose the cash option, they would take the market value of their 25 percent share of the raw gas. Appellants’ proposed interpretation renders this language meaningless.
Relying on the Mewboume Oil case, Appellants counter that paragraph 4(B) is a gross proceeds royalty provision, and that construing it otherwise renders meaningless certain language regarding the manner in which the market value of gross production can be determined. Specifically, this language, contained in paragraph 4(B), provides:
[The market value of lessor’s 25 percent share of gross production shall] be based on [1] the highest market price paid or offered for gas of comparable quality in the general area where produced and when run, or [2] the gross price paid or offered to the producer, whichever is the greater [.] [Emphasis added].
Appellants assert that the second valuation method, the “gross price paid or offered” method, is a gross proceeds provision pre*614cisely like that which was at issue in Mewbourne. See Mewbourne Oil, 939 S.W.2d at 136.
While no party asserts that paragraph 4(B) is ambiguous, the presence of both gross proceeds and at the well language rendered the agreement in Mewbourne Oil ambiguous. Id. But Mewbourne is necessarily limited to its facts. The presence of seemingly conflicting terms does not render a contract ambiguous unless, looking at the entirety of the contract, both interpretations are reasonable. Nat’l Union Fire Ins. Co., 907 S.W.2d at 520. If the entirety of the State Leases is worded so that 4(B) can be given a certain or definite legal meaning, it is not ambiguous, and we must construe it as a matter of law. American Manufacturers Mutual Insurance Co. v. Schaefer, 124 S.W.3d 154, 157 (Tex.2003).
Although paragraph 4(B) provides that market value may be determined by the gross price paid or offered, the substance to be valued by its gross price continues to be “gross production.” In other words, this language refers to the gross price that might be paid or offered to SandRidge by a buyer for the raw gas— i.e., the price offered or received for gas at the well without any deduction from the royalty for the costs of production. This reading comports with the well-understood characteristics of royalty: “Royalty is commonly defined as the landowner’s share of production, free of expenses of production.” Heritage, 939 S.W.2d at 121-22 (citing Delta Drilling Co. v. Simmons, 161 Tex. 122, 338 S.W.2d 143, 147 (1960)). Appellants argue that such a reading is flawed because there is no market for sour gas at the well in the area of the State Leases, but its argument is based imper-missibly on parol evidence.9
Additionally, another function of 4(B)’s “gross price paid or offered” language becomes apparent when it is considered jointly with 4(B)’s alternative provision in determining the market value of gross production that is: “price paid or offered for gas of comparable quality in the general area where produced and when run .... ” This method is known as the “comparable sales” method. Heritage, 939 S.W.2d at 122. The most reasonable interpretation of 4(B)’s use of this two-pronged valuation approach is that it serves to protect the lessor in the event a long-term gas purchase agreement between the lessee and a buyer results in the gas being sold at a premium over a lower, then-current market value. In such a situation, and without language mandating that the lessor gets the higher of the two, a market value lessor is entitled only to the lower prevailing market price. Yzaguirre v. KCS Resources, Inc., 53 S.W.3d 368 (Tex.2001). See also Texas Oil & Gas Corp. v. Vela, 429 S.W.2d 866, 870 (Tex.1968).
Appellants next contend that construing paragraph 4(B) as a market value at the well clause renders paragraph 7 of State Leases meaningless. Paragraph 7 is a “no deduct” clause, prohibiting the deduction of post-production expenses from all royalties accruing under the State Leases. This is precisely the sort of clause that a market value at the well provision renders “surplusage as a matter of law.” Heritage Resources, 939 S.W.2d at 123. Yet another reason Appellants’ argument fails is *615that paragraph 7 provides protection from post-production costs to royalties payable under paragraphs 4(C) and 4(D) of the State Leases even though it does not do so for paragraph 4(B).
Appellants additionally assert that construing paragraph 4(B) to pay only a royalty on methane renders its “any gas” language meaningless: “Royalty on any gas (including flared gas), which is defined as all hydrocarbons and gaseous substances not defined as oil ....” [Emphasis added]. Because carbon dioxide is clearly a “gaseous substance,” argue Appellants, 4(B) requires a royalty on carbon dioxide be paid. But this argument runs afoul of the principle that no one phrase, sentence or section of a contract should be isolated and considered apart from the contract’s other provisions. See Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 134 (Tex.1994). Appellants’ interpretation incorrectly ignores paragraphs 4(C) and 4(D) of the State Leases.
. Reading all parts of the State Leases together, it is clear that paragraphs 4(B), 4(C), and 4(D) have a progressive application to the various stages of the production and refinement of natural gas.10 Paragraph 4(B) applies to “non-processed gas,” 4(C) applies to “processed gas,” and 4(D) applies to “other products” later produced or manufactured from gas. SandRidge argues that non-processed gas means raw natural gas — that is, the sour gas stream produced at the wellhead, prior to any refinement, including both methane and various other commingled substances, such as nitrogen, ethane, oxygen, and carbon dioxide. As such, says SandRidge, the royalty called for by 4(B) is singular, on all these things combined. We agree. A royalty on carbon dioxide may be separately payable under paragraphs 4(C) or 4(D), but it is not separately payable under paragraph 4(B).
First, there is quite simply no language in 4(B) requiring the lessee to calculate and pay several independent royalties on the various component elements of the raw natural gas stream. To the contrary, this is precisely the function of the portions of the State Leases that Appellants have repudiated: paragraphs 4(C) and 4(D).
Second, it is production that triggers the royalty due under 4(B), whereas the royalties payable under paragraphs 4(C) and 4(D) are triggered by post-production efforts to render or extract other substances from the raw gas. Again, “produc-. tion” means the actual physical extraction of the mineral from the ground. It does not include post-production efforts to refine or improve the gas, or to process it into other products. Middleton, 613 S.W.2d at 244; Blackmon, 276 S.W.3d at 604. Carbon dioxide is extracted from the natural gas stream in order to refine or improve the gas stream, and paragraph 4(B)’s “any gas” language cannot reasonably be read to provide a second royalty on it.
Relying on the affidavit of its oil and gas industry expert, Ricardo Garza, the GLO argues that carbon dioxide nonetheless qualifies as a non-processed gas under paragraph 4(B) because “processing,” as that term is commonly used in the oil and gas industry, does not include extracting carbon dioxide from methane. We reject this argument. A term that is not specifically defined in a contract must be given its ordinary and generally accepted meaning, unless the contract itself shows the term to have been used in a *616different sense. Fox v. Thoreson, 398 S.W.2d 88, 92 (Tex.1966). “[L]anguage used by the parties should be given its plain grammatical meaning unless it definitely appears that the intention of the parties would thereby be defeated.” [Emphasis added]. Id. There is no indication in the State Leases that the parties intended to use the term “processed” in the limited manner advanced by Garza. As such, Garza’s affidavit constitutes impermissible parol evidence. Friendswood Dev. Co. v. McDade & Co., 926 S.W.2d 280, 288 (Tex.1996). “Experts have a proper (if confined) role in litigation, but it is not to supply parol evidence to vary or contradict the terms of unambiguous contracts.” Dynegy Midstream Services, Ltd. Partnership v. Apache Corp., 294 S.W.3d 164, 170 (Tex.2009).11 Carbon dioxide cannot be construed to be a non-processed gas under the State Leases.
D. Conclusions As to the State Leases
Because paragraph 4(B) of the State Leases does not provide a royalty on carbon dioxide, we overrule the GLO’s first issue, and West’s and Longfellow’s first issue as it pertains to the State Leases. Along similar lines, because paragraph 4(B) is intended to be the functional equivalent of a market value at the well clause, there are no post-production costs to deduct. Value at the well is already net of post-production costs. Heritage Resources, 939 S.W.2d at 130 (Owen, J., concurring). Accordingly, we also overrule the GLO’s second issue, and West’s and Longfellow’s second issue as to the State Leases. This disposes of all of the GLO’s points, leaving only West’s and Longfellow’s issues concerning the other (non-state) leases.
II. the Citation Lease
A. SUMMARY OF THE PARTIES’ DISPUTE Regarding the Citation Lease
We next consider the Citation Lease, which is a lease between only West and SandRidge. The Citation Lease’s royalty provisions are similar in many respects to those of the State Leases, giving rise to similar arguments. West presents three issues for our determination. First, is a separate royalty on carbon dioxide due under the Citation Lease? Second, is the lease a gross proceeds lease, exempt from post-production costs? Third, which of the Citation Lease’s several royalty provisions applies (if any) to carbon dioxide? The third question, concedes West, controls the first two. West contends that the only paragraph of the citation lease under which a royalty on carbon dioxide is payable is paragraph 3(A)(2). Conversely, SandRidge maintains that paragraphs 3(A)(4), 3(A)(5), and 3(A)(7) control the payment of carbon dioxide royalties.
Citation Lease paragraph 3(A)(2), which West claims is controlling, provides as follows:
[The royalties to be paid by lessor to lessee are:] On gas, including casinghead gas, and all gaseous substances from the leased premises and sold or used off the leased premises except in the manufac*617ture of gasoline or other products therefrom in accordance with the provisions of subdivision [4]12 of this paragraph 8, the market value at the well of twenty-four percent (2⅛%) of eighty-eighths (8/8) of the gas sold or used, or the gross price paid or offered to the producer, whichever is greater, provided that the maximum pressure base in measuring the gas produced by virtue of this lease shall not at any time exceed 14.65 pounds per square inch absolute, and the standard base temperature shall be sixty (60) degrees Fahrenheit, correction to be made for pressure according to test made by the Balance Method or by the most approved method of testing. Lessor shall never be required to bear any portion of the expense of transportation, dehydration, compression or other similar charges.13 [Emphasis added].
Like its State Leases counterpart, paragraph 3(A)(2) contains “all gaseous substances” language, a two-prong royalty valuation test that seemingly implicates both “at the well” and “gross proceeds” interpretations, a gas pressure measurement requirement, and a “no deduct” provision.
Also like the State Leases, the Citation Lease has a series of progressive royalty provision clauses that track the downstream refinement and manipulation of raw gas. The first is paragraph 3(A)(3), which specifies that the lessee must run all gas through mechanical separators before it is sold or used. When gas is produced, it commonly goes through a mechanical separator through which condensate drops out as a liquid at the wellhead. Samson Lone Star, Ltd. Partnership v. Hooks, 389 S.W.3d 409, 436 (Tex.App.-Houston [1st Dist.] 2012, pet. granted). Condensate consists of “hydrocarbons that exist in the form of gas when contained in the natural gas reservoir underground, which condense into a liquid form when released from the reservoir’s higher pressure and temperature.” Bowden, 247 S.W.3d at 704 n. 7. Because the separators are located in the field, and the process is usually performed prior to metering and sale of the gas, condensate is therefore considered separately from liquids later processed in a plant. Id. Paragraph 3(A)(3) relates to this step of the overall process and provides a royalty on condensate.
The remainder of the Citation Lease’s royalty provision clauses continue to track the downstream movement of natural gas production. These are the only provisions, says SandRidge, that are in any way relevant to carbon dioxide royalties. Paragraph 3(A)(4) provides a royalty on gas “processed in an absorption or extraction plant” owned or operated by the lessor, and paragraph 3(A)(5) provides a royalty on gas produced in such a plant that is owned or operated by a third party. The proper meaning of this phrase, “absorption or extraction plant,” is in dispute. Finally, paragraph 3(A)(7) is a catch-all that provides a royalty on residue gas, which the clause parenthetically defines as “gas remaining after processing for liquid hydro*618carbons.” The parties dispute whether methane remaining after the extraction of carbon dioxide qualifies as residue gas under this definition.14
B. Does Paragraph 3(A)(2) Provide a Separate Royalty on Carbon Dioxide?
We first consider West’s contention that Citation Lease paragraph 3(A)(2) exclusively provides and controls carbon dioxide royalties. The presence of market value at the well and gross proceeds language in paragraph 3(A)(2) once again requires us to construe ambiguity and the reasonableness of the parties’ respective interpretations. A contract is not ambiguous “merely because the parties disagree on its meaning.” Seagull Energy E & P, Inc. v. Eland Energy, Inc., 207 S.W.3d 342, 345 (Tex.2006). Likewise, lack of clarity or even inartful drafting will not alone render an agreement ambiguous. In re D. Wilson Constr. Co., 196 S.W.3d 774, 781 (Tex.2006).
The most conspicuous problem with West’s position is that paragraph 3(A)(2) simply has no framework for providing multiple royalties. There is no language, for instance, mentioning or requiring the extraction of any substance, providing that a royalty will be paid upon extraction, or stating that a royalty will be paid on methane remaining after extraction. The absence of any such language stands in stark contrast to the successive royalty clauses, paragraphs 3(A)(4) through 3(A)(7), which focus exclusively on royalties that are payable following post-production efforts. Rather than providing multiple royalties, 3(A)(2)’s royalty is unquestionably singular, to be paid “on gas,” which includes “all gaseous substances.”
Further, as with the State Leases, West’s reading of 3(A)(2)’s “all gaseous substances” language as creating two distinct royalties does not comport with the progressive nature of the lease’s royalty clauses. The Citation Lease’s royalty clauses sequentially track the stages and contingencies of the production and improvement of natural gas. This is reflected in the royalty valuation point, which shifts location as each new gas-related product emerges. Paragraph 3(A)(2) values gas at the well, 3(A)(3) measures the value of condensates at the separator, and so on. Ignoring this pattern to read 3(A)(2) as creating multiple royalties on multiple products that have no directly sequential relationship to one another is not a reasonable interpretation.
Yet another factor weighing against construing 3(A)(2) as providing multiple royalties is that the paragraph clearly valuates a single substance. This is made clear by 3(A)(2)’s language requiring that the pressure of the substance be measured. There would be no point in measuring the pressure if the substance were only to be split into multiple components and separately valued. Bowden, 247 S.W.3d at 704; Incline Energy, Inc., 189 S.W.3d at 381. Accordingly, the substance being measured and valued in 3(A)(2) is raw gas, as it is *619produced at the wellhead. West’s contrary interpretation renders the leases’ pressure measurement requirement meaningless.
Likewise, although 3(A)(2) provides two ways of determining the substance’s value — market value at the well or gross price paid or offered — the substance itself does not change. Contrary to West’s argument, such a reading does not render 3(A)(2)’s no-deductions clause meaningless. Per Heritage, because the paragraph values gas at the well, prior to any post-production expense, the no-deduct clause is immaterial. Heritage Resources, 939 S.W.2d at 123, 129-30. “Value at the well is already net of reasonable marketing costs.” Id. at 130. The presence of both at the well and gross proceeds language does not render the Citation Lease ambiguous under these circumstances. Nat’l Union Fire Ins. Co., 907 S.W.2d at 520.
C. Do Paragraphs 3(A)(4), (5), and (7) Apply to Carbon Dioxide?
Having determined that 3(A)(2) does not provide a separate royalty on carbon dioxide, we next consider whether such Citation Lease paragraphs 3(A)(4), 3(A)(5), and 3(A)(7) apply to carbon dioxide.
West argues that the Century and Legacy plants, which extract carbon dioxide from the raw gas produced from the Citation Lease, do not qualify as “absorption or extraction plants” within the meaning of paragraphs 3(A)(4) and 3(A)(5), and thus that the paragraphs do not apply to carbon dioxide. They base their argument on the opinions of their industry expert, Ricardo Garza. According to Garza, the oil and gas industry considers absorption and extraction plants to be those that extract natural gas liquids (“NGLs,” or liquid hydrocarbons, such as ethane, propane, and butane) from a gas stream. In particular, West relies on Garza’s opinion that the Century and Legacy plants are “treating plants,” not absorption or extraction plants. SandRidge objected to this characterization of the Century and Legacy plants, however, and the trial court sustained its objection. West does not challenge this evidentiary ruling. Thus, there is no evidence in the summary judgment record establishing that the Century and Legacy plants are not absorption or extraction plants. To the contrary, it is undisputed that the Century and Legacy plants indeed do extract small quantities of NGLs. Although Garza concedes this, he draws a distinction by concluding that the primary purpose of the Century and Legacy plants is the removal of carbon dioxide, not the extraction of NGLs. Regardless, there is no such “primary purpose” restriction within the terms of paragraph 3(A)(4) or 3(A)(5). Once again, expert testimony may not be relied upon to vary or contradict the terms of an unambiguous contract. Dynegy Midstream, Services, Ltd. Partnership, 294 S.W.3d at 170. Accordingly, the “absorption or extraction plant” language in paragraphs 3(A)(4) and 3(A)(5) does not render the paragraphs inapplicable to carbon dioxide.
West’s next argument pertains to Citation Lease paragraph 3(A)(7), which works in conjunction with paragraphs 3(A)(4) and 3(A)(5) by providing a royalty on residue gas — the methane remaining after the downstream refinement of the raw gas stream. It argues that paragraph 3(A)(7)’s definition of residue gas as “gas remaining after processing for liquid hydrocarbons” renders paragraphs 3(A)(4) and 3(A)(5) inapplicable to carbon dioxide, which is not a liquid hydrocarbon. Again, however, it is uncontested that the Century and Legacy plants also separate liquid hydrocarbons from the raw gas stream, leaving residue methane. Neither paragraph 3(A)(7) nor any other portion of the *620Citation Lease limits the definition of residue gas to that which is left over after processing the raw gas stream primarily for liquid hydrocarbons.
D. Conclusions As to the Citation Lease Based on the foregoing, we conclude that Citation Lease paragraph 3(A)(2) does not provide a separate royalty on carbon dioxide, and that paragraphs 3(A)(4) and 3(A)(5) are applicable to carbon dioxide. Paragraph 3(A)(4) provides a royalty on carbon dioxide extracted from the raw gas stream in a plant owned or operated in whole or in part by SandRidge, the applicable royalty percentages of which are based on the market value of such carbon dioxide as determined immediately upon extraction. SandRidge is entitled to deduct from the 3(A)(4) carbon dioxide royalty the “pro rata cost of transporting, processing, manufacturing, compressing, and selling such [carbon dioxide] and the byproducts there-from, but all such costs shall be directly attributable to such functions, and shall not include overhead.” Paragraph 3(A)(5) applies to carbon dioxide extracted from the raw gas stream in a plant owned or operated by third parties (“parties other than [SandRidge] or any assignee of [SandRidge] or affiliate, parent or subsidiary company or either of them”). However, the royalty provided in 3(A)(5) reverts to “market value at the well,” which means raw gas as produced at the wellhead, including, all of its constituents. As such, paragraph 3(A)(5) does not provide a royalty on carbon dioxide. Heritage Resources, 939 S.W.2d at 129. We overrule West’s fourth issue, as well as its first and second issues as they pertain .to the Citation Lease.15
III. The Longfellow GREen and Purple Leases
A. Summary of the Dispute Regarding the Green and Purple Leases
We next consider the Longfellow Green and Purple leases, which are between San-dRidge and Longfellow only. The relevant portions of the gas royalty clauses of these leases, which are identical, provide as follows:
The royalties reserved by Lessor, and which shall be paid by Lessee, are: ... (b) on gas (which term includes casing-head gas and all other gaseous or vaporous substances) used by Lessee off the premises for any purpose, including the manufacture of gasoline or the extraction of sulphur or any other products, the market value at the well of one-eighth (l/8th) of the gas so used, and on gas sold by Lessee, one-eighth (l/8th) of the net proceeds derived from the sale thereof computed at the contract price *621fixed in any gas sales contract, either short or long term, entered into in good faith by Lessee ... provided that the term ‘net proceeds’ herein used shall mean the proceeds remaining after deducting all severance and production taxes together with all costs and expenses actually incurred by the Lessee gathering, transporting, treating, processing, and compressing the gas so sold under the terms of said gas sales contract .... [Emphasis added].
The parties disagree as to whether this language provides a separate royalty on carbon dioxide. The parties also disagree about the proper allocation of certain transportation costs, known as “firm transportation charges.” As Longfellow acknowledges, the Green and Purple Leases are net proceeds leases. As such, transportation costs actually incurred by San-dRidge in its sales of gas are properly deductible from the royalties it pays on such gas. Nonetheless, Longfellow argues, the trial court’s ruling improperly permits SandRidge to deduct firm transportation charges from the royalties it pays regardless of whether the charges stem directly from the sale of gas that generated such royalties.
B. The Green and Purple Leases Do Not Provide a Separate Royalty on Carbon Dioxide
The language of the Green and Purple Leases plainly establishes that no separate royalty on carbon dioxide is due. The portion of the gas royalty clause pertaining to carbon dioxide is that which governs- gas used off the premises for any purpose, including “the extraction of sul-phur or any other products.” [Emphasis added]. Carbon dioxide clearly constitutes an “other product” extracted from gas off the premises. The royalty on such sour gas is singular, and it is payable on a market value at the well basis. As we have seen, market value at the well means the value of gas before it is “transported, treated, compressed or otherwise prepared for market.” Heritage Resources, 939 S.W.2d at 129. We overrule Longfellow’s first issue as it pertains to the Green and Purple Leases.
C. Firm Transportation Charges under the Green and Purple Leases
A firm transportation charge is an upfront reservation fee a gas producer pays to a pipeline owner in order to secure future space in the pipeline for the delivery of its gas to distant markets. Independent Petroleum Ass’n of Am. v. DeWitt, 279 F.3d 1036, 1038, 1042 (D.C.Cir.2002). When the producer later actually ships the gas, it typically incurs a “commodity charge” for the transport itself. Id. at 1042. The reservation fee, however, is nonrefundable. Id. The cost will be lost unless the producer is able to resell the capacity it reserved through payment of the firm transportation charge. Id. Alternatively, a producer can forgo paying firm transportation charges, but its access to pipeline capacity is then subject to the changing needs of other, higher priority customers. DeWitt, 279 F.3d at 1042.
There, is virtually no judicial authority discussing, much less meaningfully analyzing firm transportation charges. The only case cited by the parties is the DeWitt case. See DeWitt, 279 F.3d at 1042. The DeWitt case is dissimilar to our case at hand, because it did not involve a contractual dispute. Id. at 1036-42.
In DeWitt, a trade association representing gas producers challenged certain Department of the Interior regulations governing cost deductions from royalties paid to the government on federal leases. Id. at 1037-38. One of the challenged regulations prohibited producers from de*622ducting unused firm transportation costs from federal royalties. Id. at 1042. In siding with the trade association and holding the regulation to be arbitrary and capricious, the court noted that the only counterargument presented by the Department of the Interior was a single ipse dixit statement that it did “ ‘not consider the amount paid for unused capacity as a transportation cost,’ [without] revealing to what category such expenses did belong.” [Internal citations omitted]. Id. The dispute was not contractual in nature, and the Department of the Interior did not assert that such charges were unrelated to gas produced and sold from federal leases. Id. at 1036-42. Other than DeWitt’s explanation of what firm transportation charges are, the case is not helpful to our analysis.
Whether firm transportation charges are properly deductible from royalties paid under the Green and Purple Leases is determined squarely by the leases’ unambiguous contractual terms. The issue is not whether firm transportation charges qualify generally as transportation costs. They clearly do. The question instead is whether firm transportation charges must be, per the terms of these particular leases, actually incurred from sales of gas produced from the Green and Purple Leases before they are properly deductible from royalties paid under those leases. We find that they must.
SandRidge makes two critical concessions in its brief. First, it concedes, as it must, that it paid firm transportation charges prior to producing and selling gas. “SandRidge’s pipeline contracts were already in place before gas was produced.” Second, it concedes that the “anticipated production” on which it based its decision to pay firm transportation charges was expected to come from the Green and Pur-pie Leases “as well as other nearby leases.” The fact that SandRidge incurred the firm transportation charges before gas was produced and sold does not, in and of itself, prohibit the expense from later being charged against royalties. But per the terms of the Green and Purple Leases, those charges may only be taxed against royalties on a pro rata basis:
The royalties reserved by [Longfellow], and which shall be paid by [SandRidge], are ... on gas ... [sold by SandRidge] ... one-eighth (]/8th) of the net proceeds derived from the sale thereof ... remaining after deducting ... all costs and expenses actually incurred by ... [SandRidge in] ... transporting ... the gas so sold .... [Emphasis added].
Per these terms, any amounts that San-dRidge deducts from royalties for earlier-paid firm transportation charges must directly correlate to the' volumes of gas it produces, transports, and sells under the Green and Purple Leases. Firm transportation charges that are incurred for pipeline space that is not ultimately used are not “actually incurred” in connection with the sale of gas produced from the Green and Purple Leases. Likewise, firm transportation charges that SandRidge incurred to reserve pipeline space for gas produced from “other nearby leases” are not taxable against royalties payable under the Green and Purple Leases. The trial court erred by failing to draw these critical distinctions. Accordingly, we sustain Longfellow’s third issue.16
IV. The South Piñón Fee Lease
A. Summary of the Parties’ Dispute Regarding the South Piñón Fee Lease
We next consider the South Piñón Fee Lease, which is between West and San-*623dRidge only. West contends that this lease provides carbon dioxide royalties that are free of post-production costs.17 This is the only lease at issue that expressly mentions carbon dioxide. The relevant rpyalty provisions of the South Piñón Fee Lease provide as follows:
III. ' ROYALTIES
1. The royalties to be paid or delivered by Lessee to Lessor, its successors and assigns," are as follows:
a. Oil Royalty. ...
b. Gas Royalty. On gas, casinghead gas, and other gaseous substances produced and saved from the Leased Premises, subject to clause c. below, the Royalty Percentage of the market value at the Royalty Valuation Point (hereafter defined).
c. Processed Gas. On gas, casinghead gas, and other gaseous substances produced and saved from the Leased Premises and processed through or otherwise treated in any plant, whether by, or on-behalf of, Lessee or any third party, the higher of (i) the Royalty Percentage of the market value of such gas at the inlet' of the plant or (ii) the sum of (a) the Royalty Percentage of the market value at the tailgate of the plant of all liquid Hydrocarbons extracted or otherwise recovered from such gas, (b) the Royalty Percentage of the market value at the Royalty Valuation Point of all residue gas, which residue gas is understood to be the Hydrocarbon gas at the tailgate of the plant after the same has been processed or treated, and (c) the Royalty Percentage of the market value at the Royalty Valuation Point of all other substances extracted or otherwise recovered from such gas, including carbon dioxide and hydrogen sulfide, and any products extracted or recovered therefrom, including sulfur. [Emphasis added].
B. The South Piñón Fee Lease Provides a Royalty on Carbon Dioxide
Paragraph 111(a)(3), the “processed gas” paragraph, expressly provides a royalty on carbon dioxide whenever the sum of the market value of extracted liquid hydrocarbons, extracted carbon dioxide, and residue methane is greater than the market value of raw gas at the inlet of a processing plant. SandRidge argues that this is not a separate royalty on carbon dioxide, but merely a formula for valuing a single royalty to be paid on the higher of two sums. Regardless of the number of royalties the paragraph provides, it provides West with compensation for the market value of carbon dioxide when the sum of the market value of carbon dioxide, NGLs, and residue gas exceeds the market value of residue gas at the inlet of the plant.18 *624The declaration that West sought was not limited to whether or not a carbon dioxide royalty was due “separately,” but at all. The trial court erred by denying West’s request in its entirety. We sustain West’s first issue as it pertains to the South Piñón Fee Lease.19
C. The South PiÑon Fee Lease’s Royalties Are Free of Post-Production Costs
Paragraph III(l)(e) of the South Piñón Fee Lease provides that West’s royalties “shall not be reduced, directly or indirectly, on account of or charged with, any post-production cost, charge, expense or deduction, or any other cost of making the products produced hereunder ready or available for market.” This no-deduct clause is not conditioned in any way; nor is there any market value at the well provision in the lease that renders it surplusage. Moreover, paragraph III(l)(e) expressly applies to carbon dioxide, as well as all other gases and substances extracted from the raw gas stream. SandRidge acknowledges these matters, but it contends that the clause prohibits the deduction of post-production expenses only before values are determined at the applicable royalty valuation point, but not after. West does not contest this: “Plaintiffs agree that if there were no value at the Royalty Valuation Points, so that value was added further downstream, then SandRidge could deduct costs in determining the values at the Royalty Valuation Points.” It argues nonetheless that there was no summary judgment evidence establishing that such circumstances had indeed occurred, and thus that the trial court’s declaration so conditioning the deduction of post-production expenses was improper. We agree. SandRidge did not adduce evidence establishing that the products presently or formerly had no value at the royalty valuation points. A trial court cannot render declarations regarding future, hypothetical situations. Firemen’s Ins. Co. of Newark, N.J. v. Burch, 442 S.W.2d 331, 333 (Tex.1969). We sustain West’s second issue as it pertains to the South Piñón Fee Lease.
V. The 2005 Longfellow Lease
A. Summary of the Parties’ Dispute Regarding the 2005 Longfellow Lease
We next consider the 2005 Longfellow Lease, which is between Longfellow and SandRidge only. The parties dispute whether this lease provides carbon dioxide royalties and whether post-production costs can be charged against royalties. The relevant provisions of the 2005 Longfellow Lease are as follows:
3. Royalties. The royalties to be paid Lessor are:
(a) On oil ...
(b) On all gas produced from the Land covered by the lease, including casing-head gas and residue gas sold at the tailgate of any plant through which gas produced from the land covered by the lease may be processed, the percentage set forth below of the gross proceeds *625received by Lessee from the sale of gas.... Lessors hereby reserve unto themselves [an option to take their share of royalty gas in kind] ....
(c) On condensate and other products separated extracted or manufactured from gas in any type of plant wholly owned by parties who are unaffiliated with Lessee, the percentage set forth below of all money and other consideration received by Lessee or to which Lessee is entitled under Lessee’s contract or arrangement....
(d) [This paragraph establishes royalty percentages that vary depending on when wells are drilled.]
(e) The royalties provided in this Paragraph 3 shall be determined and delivered to Lessor free of any development, production, compression, processing, transportation, delivery or like costs excepting, however, taxes applicable to Lessor’s share of production which are paid by Lessee.
SandRidge contends that Longfellow has relied only on paragraph 3(b) as providing a royalty on carbon dioxide, and has repudiated any reliance on paragraph 3(c). We agree. Longfellow did not cite paragraph 3(c) in the trial court, even after SandRidge informed the trial court that it considered Longfellow’s arguments to be limited to paragraph 3(b) only. Based on this undisputed understanding of Longfellow’s arguments, SandRidge then limited its own arguments regarding carbon dioxide royalties to paragraph 3(b). Based on this procedural history, Longfellow has waived any reliance on paragraph 3(c). While we must consider and examine the entirety of the 2Ó05 Longfellow Lease in order to harmonize and effectuate all of its provisions, a carbon dioxide royalty that is payable under paragraph 3(c) cannot form the basis of a reversal of the trial court. Thompson, 94 S.W.3d at 554; Tex.R.Civ. P. 166a(c).
B. 2005 Longfellow Lease Paragraph 3(b) Does Not Provide a Royalty on Carbon Dioxide
Paragraph 3(b) does not provide a royalty on carbon dioxide. Instead, it provides a royalty on “all gas produced from the Land covered by the lease, including cas-inghead gas and residue gas sold at the tailgate of any plant .... ” Paragraph 3(c), in turn, provides a royalty on “condensate and other products separated extracted or manufactured from gas in any type of plant .... ” [Emphasis added]. Carbon dioxide clearly constitutes an “other product” under paragraph 3(c). Nonetheless, this cannot be the basis of a reversal. Thompson, 94 S.W.3d at 554; Tex.R.Civ.P. 166a(c). We overrule Longfellow’s first issue as it pertains to the 2005 Longfellow Lease.
C. The 2005 Longfellow Lease’s Royalties are free of post-production costs
The clear, unambiguous language of paragraph 3(e) of the 2005 Longfellow Lease provides that all royalties provided under the lease are free of post-production costs. As it did regarding the South Piñón Fee Lease, SandRidge contends that the no-deduct clause prohibits the deduction of post-production expenses before values are determined at the applicable royalty valuation point, but not after. But once again, Sandridge did not adduce evidence establishing that any product on which a royalty is due under the lease is incurring a post-production expense after its royalty valuation point. As such, this argument was not a proper basis for granting San-dRidge’s declaration in opposition of the assessment of their post-production costs or transportation charges. Burch, 442 *626S.W.2d at 333. We sustain West’s second issue as it pertains to the 2005 Longfellow Lease.
SUMMARY OF CONCLUSIONS
Based on all of the forgoing, we affirm the trial court’s judgment in its entirety as to the State Leases and the Citation Lease. We also affirm the trial court’s determination that carbon dioxide royalties are not owed under the Green and Purple Leases or the 2005 Longfellow Lease. We reverse the trial court’s judgment regarding the South Pifión Fee Lease in its entirety and render judgment in favor of West. We also reverse the trial court’s determination that all of the assessed firm transportation charges by Sandridge are deductible from royalties under the Longfellow Green and Purple Leases. We remand to the trial court for further proceedings regarding the determination of firm transportation charges under the Longfellow Green and Purple Leases in accordance with this opinion. We likewise reverse the trial court’s determination that post-production fees are deductible from royalties under the 2005 Longfellow Lease.
. The five non-State leases are known as the "South Piñón Fee Lease,” the "2005 Longfel*607low Lease,” the "Longfellow Green Lease,” the "Longfellow Purple Lease,” and the "West Citation Lease.”
. The wells on the leases produce both "sour” and "sweet” gas. Sour gas is gas that, in its raw form, contains substances other than methane, such as hydrogen sulfide and/or carbon dioxide. Sour gas must be processed and refined before it is usable, whereas sweet gas is purer and does not require processing.
. See Tex.Civ.Prac. & Rem.Code Ann. § 51.014(d)(West Supp.2014).
. The Appellants also consider Section 9 of the State Leases to be pertinent to their construction. Section 9 incorporates the rules regarding the payment of royalties set forth in the Texas Register. The Texas Register, in turn, provides that lessees paying royalties to the State of Texas on the basis of gross proceeds “shall not deduct production or severance taxes, or the cost of producing, processing, transporting, and otherwise making the oil, gas, and other products produced from the premises ready for sale or use.” 31 Tex.Admin.Code § 9.51(b)(l)(A)(2014)(General Land Office, Royalty and Reporting Obligations to the State). This provision is merely duplicative of Section 7 of the State Leases. Regarding lessees paying the State royalties on the basis of market value, the Register further provides that "market value shall be presumed to be the gross proceeds received pursuant to a bona fide contract entered into at arm's length between nonaffiliated parties of adverse economic interests.” 31 Tex.Admin.Code § 9.51(b)(l)(E)(i). This provision is less protective of the State than the State Leases themselves, which define market value as being the higher of gross proceeds or the highest market price paid or offered for gas of comparable quality in the general area where produced and when run. As such, the Texas Register provisions cited by Appellants simply do not affect our analysis.
. SandRidge asserts that paragraph 4(B) is immune from paragraph 7’s "no deduction” language because 4(B) is a market value at the well clause. It bases this argument on the Heritage case, which holds that a market value at the well provision renders a no deductions clause mere surplusage as a matter of law. See Heritage, 939 S.W.2d at 123.
. In one of the State Leases, the "South Piñón State Lease,” the language underlined above, "other liquid hydrocarbons,” is followed by the phrase "or other liquid or gaseous substances." Appellants do not present any particularized arguments regarding the South Pi-ñón State Lease.
. In the South Piñón State Lease, the language underlined above, "or any other products produced or manufactured from gas,” reads "or any other products produced, recovered or manufactured from gas.” [Emphasis added].
. 4(B)’s wellhead measurement provision requires that “the maximum pressure base in measuring the gas under this lease shall not at any time exceed 14.65 pounds per square inch absolute, and the standard base tempera- . ture shall be sixty (60) degrees Fahrenheit, correction to be made for pressure according, to Boyle’s Law, and for specific gravity according to tests made by the Balance Method or by the most approved method of testing being used by the industry at the time of testing.”
. Further, there is at least some market for raw gas at the well within the industry (see, e.g., Tana Oil and Gas Corp. v. Cernosek, 188 S.W.3d 354, 361 (Tex.App.-Austin 2006, pet. denied)), the existence of which is controlled by numerous variables, such as price, consumer demand, the creation of pipelines and refining facilities, and emerging technologies. Whether there is a market for raw gas at the State Leases’ wells is immaterial. The parties are the masters of their own agreement. See Cross Timbers Oil, 22 S.W.3d at 26.
. Indeed, 4(B) expressly adopts this progression by excluding from its definition of "any gas” substances that are "processed in a plant for the extraction of gasoline, liquid hydrocarbons or other products.”
. Even if we were to consider Garza’s affidavit (which actually concerns the Citation Lease, not the State Leases), it would not change the result. Garza concludes that extracting carbon dioxide from raw gas is customarily regarded as “treating,” not processing, the gas. He relies on an oil and gas industry glossary that defines "treating” as "the process of removing objectionable substances from gases and liquids.” [Emphasis added]. For our purposes, this definition is too circuitous to be useful. Moreover, while Garza’s affidavit arguably addresses whether carbon dioxide qualifies as a processed or non-processed gas, it does not address the third alternative: whether carbon dioxide constitutes an "other product" controlled by paragraph 4(D).
. As the parties agree, there is a scrivener's error in paragraph 3(A)(2), wherein there is a mistaken reference to "subdivision (d) of this paragraph 3.” [Emphasis added]. The parties stipulate that this should be a reference to "(4)," not "(d),” meaning it is intended as a reference to Citation paragraph 3(A)(4).
. The Citation Lease's royalty provisions are contained in section three of the lease, which has several subparts. Two of these subparts, paragraphs 3(A) and 3(B), which concern two different parcels of land, are the subject of parties’ dispute. The language of 3(A) and 3(B) is identical except for royalty percentages, however, and those percentages are not in dispute. As such, our opinion will refer only to paragraph 3(A), as the analysis is the same.
. Another downstream royalty provision, paragraph 3(A)(6), establishes a royalty on gas sold by the lessee to a third party as part of a "percentage of proceeds" contract. This sort of contract is based on percentages of the amounts that the third party receives for the components of the gas stream after processing. See, e.g., Tana Oil and Gas Corp. v. Cernosek, 188 S.W.3d 354, 360-61 (Tex.App.Austin 2006, pet. denied). West asserts in the alternative that it is entitled to a carbon dioxide royalty under this provision if not so entitled under paragraph 3(A)(2). But as West concedes elsewhere in its brief, SandRidge does not sell the raw gas to Oxy under such an arrangement. Consequently, there is no percentage of proceeds contract, and paragraph 3(A)(6) is immaterial to our analysis.
. West argues that SandRidge’s arrangement with Oxy, whereby SandRidge transfers ownership of carbon dioxide extracted at the Century plant to Oxy in exchange for Oxy treating the gas free of charge, constitutes a "sale” of the carbon dioxide. We agree. "The term 'sale,' when used in a property context, is commonly understood to mean any conveyance of an estate for money or money's worth.” Cherokee Water Co. v. Forderhause, 641 S.W.2d 522, 525 (Tex.1982). See also Walden v. Affiliated Computer Servs., Inc., 97 S.W.3d 303, 316 (Tex.App.-Houston [14th Dist.] 2003, pet. denied) (citing McKinney v. City of Abilene, 250 S.W.2d 924, 925 (Tex.Civ.App.-Eastland 1952, writ ref'd n.r.e.)). Nonetheless, this matter does not factor into our conclusion as to the Citation Lease. San-dRidge, by virtue of the nature of the declaration it sought from the trial court regarding paragraph 3(A)(4) of the Citation Lease, has conceded that a royalty on carbon dioxide is payable under said paragraph, regardless of any arrangement it had with Oxy. The nature of SandRidge’s arrangement with Oxy likewise has no bearing on our conclusion regarding paragraph 3(A)(5) of the Citation Lease, as no royalty on carbon dioxide is due under 3(A)(5) in the first instance.
. Our holding on this point leaves intact the trial court's partial denial of SandRidge's summary judgment motion based on its finding that a fact issue exists as to whether SandRidge reasonably incurred the firm transportation charges.
. SandRidge argues that West has limited our consideration to only paragraph III(l)(b) of the South Piñón Fee Lease. But unlike its similar argument regarding the Appellants’ disavowal of certain State Lease paragraphs, SandRidge has not demonstrated that West affirmatively disavowed reliance on paragraph III(l)(c). SandRidge did not take the position in the trial court that West had limited itself to paragraph III(l)(b); nor did San-dRidge so limit its own trial court arguments. To the contrary, SandRidge argued — as it does here — that paragraph HI(l)(c) does not provide a separate carbon dioxide royalty. West responded to this argument — both here and below — by specifically citing and relying on paragraph III(l)(c) as providing a carbon dioxide royalty.
. The royalty is calculated by the market value of the carbon dioxide at the royalty valuation point, which is where the carbon dioxide is first sold or otherwise disposed of. We are not called upon to determine what the precise location of the royalty valuation point is, although the parties seem to generally agree that it is the point where title of the *624carbon dioxide passes to Oxy at the Century plant.
. To the extent that SandRidge disputes carbon dioxide royalties under the South Piñón Fee Lease on the basis that its arrangement with Oxy does not constitute a sale, we reject the argument. As previously noted, a "sale, in its broadest sense, includes any transfer of property from one person to another for a valuable consideration.” Walden v. Affiliated Computer Serv., Inc., 97 S.W.3d 303, 316 (Tex.App.-Houston [14th Dist.] 2003, pet. denied). It is unquestionable that Oxy’s processing of the raw gas stream at no charge to San-dRidge constitutes valuable consideration. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283599/ | OPINION
EVELYN V. KEYES, Justice.
Appellees, Rukmin, Susan, Reshma, and Rehka Durgapersad (collectively, “the Durgapersads”) filed suit against appellant, Chrisondath Badall, asserting a cause of action for the wrongful death of Ram-dath Durgapersad. A jury found in the Durgapersads’ favor, and the trial court entered judgment based on the jury’s verdict. In five issues on appeal, Badall challenges the trial court’s judgment, arguing that (1) the evidence is legally and factually insufficient to support the jury’s finding that he was 100% liable for Ramdath’s death; (2) the evidence is legally and factually insufficient to support the jury’s award of damages; (3) the trial court erred in failing to allow evidence of a purported settlement agreement between the Durgapersads and the hospital where Ramdath was taken following the shooting; (4) the trial court erred in excluding his impeachment evidence against Rukmin Durgapersad; and (5) the trial court erred in failing to dismiss the Durgapersads’ suit for want of prosecution.
We affirm.
Background
In January 2004, Badall shot Ramdath Durgapersad in the tire shop Ramdath owned and operated in Liberty County, striking him in the hand and abdomen. Ramdath was taken to St. Elizabeth’s Hospital in Beaumont, where he died the next morning. Following a police investigation, Badall was charged with murder. In September 2005, a jury convicted Badall of Ramdath’s murder and assessed his punishment at fifty-five years’ confinement. The court of appeals affirmed his conviction, and the Court of Criminal Appeals refused Badall’s petition for discretionary review. See Badall v. State, 216 S.W.3d 865, 866 (Tex.App.-Beaumont 2007, pet. ref'd).
In January 2006, the Durgapersads filed suit against Badall, asserting a cause of action for wrongful death.1 Rukmin brought the action “individually and in her capacity as Administratrix of the Estate of Ramdath Durgapersad, the decedent,” and Susan, Reshma, and Rekha, them children, were named as plaintiffs. The amended petition alleged that Badall murdered Ramdath, who was fifty-six at the time of his death, and stated that,
[a]s a result of [Badall’s] wrongful conduct which led to [Ramdath’s death], [Ramdath] endured significant conscious pain and suffering before his expiration on January 9, 2004; and Plaintiffs suffered damages, including, but not limited to, pecuniary and statutory damages as well as compensation for the pain and suffering endured by [Ramdath] prior to his death.
The Durgapersads sought damages for Ramdath’s past medical bills and funeral expenses; past and future loss of earning capacity; pain and suffering; mental anguish; loss of consortium; loss of inheritance; punitive damages; and pre- and post-judgment interest.
Badall asserted the affirmative defenses of assumption of the risk, comparative responsibility, and self-defense. Subsequently, the Durgapersads moved for summary judgment, arguing that Badall was *631collaterally estopped from re-litigating issues decided in the criminal case. They provided affidavits summarizing the damages that they sustained as a result of Ramdath’s wrongful death. Badall argued, among other things, that summary judgment was improper because his prior conviction did not preclude the possibility that Ramdath attempted to shoot him, which would impact his civil liability, and because there were fact questions regarding the Durgapersads’ damages.
The trial court granted the Durgaper-sads’ motion for summary judgment and ordered that they recover $1,200,000 as damages. However, on appeal, the Ninth Court of Appeals held that there were fact questions regarding damages and reversed and remanded the case for a new trial. See Badall v. Durgapersad, No. 09-08-00188-CV, 2009 WL 857995, at *2-3 (Tex.App.-Beaumont Apr. 2, 2009, no pet.) (mem. op.).
On remand, the trial court set the case for a new trial on March 14, 2011. The Durgapersads failed to appear, and the trial court dismissed the suit pursuant to Rule of Civil Procedure 165a. However, the Durgapersads moved to reinstate the case on the ground that their failure to appear was the result of a miscommunication with the trial court’s clerk. On April 8, 2011, the trial court granted the Durga-persads’ motion to reinstate the case and set the case for a new trial date. Badall moved again to dismiss the case for want of prosecution, but the trial court denied his motion.
A trial on the merits occurred on June 11, 2013. Rukmin Durgapersad testified that Badall shot and killed her husband. The trial court admitted into evidence Ba-dall’s judgment reflecting his conviction for Ramdath’s murder. Rukmin testified that she and Ramdath were from Trinidad and were married in Puerto Rico. She testified that she moved to the United States in 1971, and that Ramdath came in 1973. Rukmin and Ramdath had four children: Ragis, their only son, and daughters Susan, Reshma, and Rehka. Rukmin testified that the family was close and that Ramdath regularly visited with his children. The family would go on vacations together about once a year. Rukmin testified that the entire family went to Trinidad in July before Ramdath died, that they enjoyed regular fishing trips to the Gulf Coast, and they were all together for Christmas just weeks before Ramdath’s murder.
Rukmin testified regarding the effect Ramdath’s death had on herself and her children. She stated that Ragis, her son, died of a heart attack at age thirty-three on the first day of Badall’s murder trial. Ragis had two children.
Susan, who was thirty-six at the time of trial, is a dentist. Rukmin testified that Ramdath “did everything for [Susan]” up until the time of his death, including paying her way through dental school and buying her books. Rukmin testified that after Ramdath’s death, she had to pay Susan’s car note until she graduated and that she “did everything for graduation for her.” Ramdath also provided advice and counseling to Susan about her schooling and her future. Rukmin testified that Susan wanted her father to see her graduate, but he was murdered before she completed her studies. Rukmin testified that Susan is married but “she still carries [Ram-dath’s] last name. She [doesn’t] want to give it up.” Susan also has three children that Ramdath was never able to meet due to his untimely death.
Reshma, the middle daughter, also suffered because of her father’s death. Resh-ma had a close relationship with her father. Reshma was pregnant with her first child at the time of Ramdath’s death. *632Rukmin testified that on “January 8th when Mr. Badall shot [Ramdath] and killed him, [Reshma] went in the hospital the next day and had the baby. She couldn’t even be a part of the funeral. She didn’t see her dad.” Ramdath provided advice, counsel, and financial support to Reshma.
Rekha, the youngest, was thirty at the time of trial and was teaching summer school in Louisiana. Rukmin testified that all of her daughters wanted to be present at the trial, but “they didn’t want to relive it like I am right now. They didn’t want to relive what happened to their dad.” Like the other two daughters, Ramdath provided advice, counsel, and financial support to Rekha. He paid for Rekha to attend Louisiana State University and bought her a car in 2003. Following Ram-dath’s death, Rekha quit her studies for a time before returning to the university.
Rukmin testified that all of her daughters suffered because of their father’s death, especially Rekha. According to Rukmin, “They all suffered. They all took it hard, and they still do.... My little daughter, it almost took her life.” Rukmin testified that she did not keep photographs of the family around because she did not want to see reminders of happier times. She testified, “I’m trying to get over it, but I can’t.” Rukmin testified that Ramdath’s death left her “without a husband, my soul mate, my friend, my everything,” but she also acknowledged that she and Ramdath had some arguments and disagreements. As a result of Ramdath’s murder, Rukmin testified that she suffered a heart attack and that she takes medication for stress. She testified that she has not slept well since the murder, that she has “been in and out of the doctor’s office or hospital,” and that she misses her husband every day.
She testified that his death also impacted her financially. She testified that, prior to his death, Ramdath “paid all the bills and did everything for us.” Rukmin stated, “It’s very hard. I had to learn everything the hard way,” like learning to run the tire shop. She testified that she did not know anything about it because Ram-dath “did everything” while she worked in Louisiana where Rekha was in school. Rukmin testified that she came to Texas on the weekends and cooked and cleaned for Ramdath for the six years she was working in Louisiana and that she had retired just a few months before Ram-dath’s death so that she could stay with him in Texas. She testified that Ramdath “provided everything” for her and that it was difficult for her to continue to meet her financial burdens, such as providing money to her children and meeting living expenses, after Ramdath’s death. Rukmin also testified that she paid between $8,000 and $9,000 to have Ramdath cremated.
On cross-examination by Badall, Rukmin testified that she knew her husband owned a firearm. She testified that she did not know her husband to carry the weapon on his person and that he kept it in his bedroom closet, hidden under some blankets so their grandchildren wouldn’t find it. Rukmin testified that she did not see him with the firearm on the day he was murdered and that when police asked her about any weapons Ramdath owned, she showed them the firearm in the bedroom closet. Rukmin denied seeing Ramdath shooting at Badall, and she testified that Ramdath came upstairs, bleeding, to ask her to call 9-1-1. When Badall asked, “Do you have any knowledge what happened with your husband’s handgun after he was shot?” Rukmin replied that she was “confused” by the question because Ramdath’s firearm was always in the closet. Rukmin denied taking the firearm from Ramdath *633after the shooting and hiding it in the closet.
Rukmin testified that she did not actually see Badall shoot Ramdath, but she knew “[Badall] didn’t act in self-defense because [Ramdath] didn’t have a gun.” She testified that Ramdath was transported to a local hospital following the shooting, but she did not ride with him in the ambulance. She testified that she was able to speak to him again at the hospital, where he died early the next morning. Badall then asked about potential settlements Rukmin had reached with the hospital, but Rukmin denied the existence of any other acts of negligence or settlements with the hospital.
Badall argued, in his opening statement and in his closing argument, that he shot Ramdath in self-defense. Badall asserted that Ramdath shot at him repeatedly, putting Badall in fear of his life so that he had to shoot Ramdath. Badall argued that, after he shot Ramdath, Ramdath ran upstairs to the bedroom and stashed his weapon in the closet, or, alternatively, that he ran upstairs, handed the weapon to Rukmin, and she hid the weapon in the closet. However, the only testimony that Badall gave at trial was his admission that he shot Ramdath “in self-defense.” He also testified that he was convicted of that murder and at the time of trial was still serving his sentence for that crime. Ba-dall testified that he submitted his self-defense issue to the jury in the criminal case, but that jury rejected his defense.
Badall also called two police officers to testify about the day of the shooting. Officer E. Taylor testified that she arrived after other officers had already arrived on the scene. She was not the investigator for the case, but she did collect a few items of evidence, including the pieces of a broken watch that she found outside the tire shop. She testified that she might also have collected some shell casing, but she could not recall with certainty the type, number, or location. Officer Taylor observed a large pool of blood at the foot of the stairs leading up to the apartment above the shop, and she saw a trail of blood on the stairs leading toward the office. Officer Taylor testified that she asked Rukmin Durgapersad whether Ram-dath had any weapons. Rukmin took her upstairs and showed her a firearm, which was in a bedroom closet under a pile of blankets. Officer Taylor did not recall seeing any blood in the bedroom or near the closet, and she did not collect the firearm from the closet as evidence.
Officer M. Custer testified that he was the first officer who arrived on the scene. He did not recall seeing a gun or any shell casings, and he did not collect any evidence at all. He testified that he followed a trail of blood leading up a set of wooden stairs, and he found Ramdath lying on the floor of the office area.
The jury found that Badall assaulted Ramdath. The jury also found that Badall alone was negligent and that Badall’s failure to use ordinary care was the proximate cause of “the occurrence in question.” The jury awarded Ramdath’s estate $100,000 for pain and mental anguish suffered by Ramdath before he died and $3,000 for burial expenses. The jury awarded Rukmin $66,000 and each daughter $18,000 for “pecuniary loss sustained in the past,” and it awarded Rukmin $66,000 for future pecuniary loss. The charge defined pecuniary loss as “the loss of care, maintenance, support, services, advice, counsel, and reasonable contributions of a pecuniary value, excluding loss of inheritance.”
The jury also awarded Rukmin $105,000 and each daughter $30,000 for past and future loss of companionship and society. The jury charge defined “loss of compan*634ionship and society” as “the loss of the positive benefits flowing from the love, comfort, companionship, and society that [the Durgapersads], in reasonable probability, would have received .from Ramdath Durgapersad had he lived.” The jury awarded Rukmin $41,250 and each daughter $11,250 for past and future mental anguish, which the charge defined as “the emotional pain, torment, and suffering experienced by [the Durgapersads] because of the death of Ramdath Durgapersad.” Finally, the jury found that Badall acted with malice or gross negligence and awarded exemplary damages of $50,000.
The trial court entered its final judgment based on the jury’s verdict, awarding the Durgapersads a total of $758,885.50. This appeal followed.
Sufficiency of the Evidence
In his first two issues on appeal, Badall argues that the evidence was legally and factually insufficient to support the jury’s finding that he was 100% liable for Ram-dath’s death or to support the jury’s award of damages to the Durgapersads.
A. Standard of Review
When conducting a legal sufficiency review, we credit favorable evidence if a reasonable fact-finder could do so and disregard contrary evidence unless a reasonable fact-finder could not. See City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.2005); Brown v. Brown, 236 S.W.3d 343, 348 (Tex.App.-Houston [1st Dist.] 2007, no pet.). We consider the evidence in the light most favorable to the finding under review, and we indulge every reasonable inference that would support the finding. City of Keller, 168 S.W.3d at 822. We sustain a no-evidence point only when the record discloses one of the following situations: (1) 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 not more than a mere scintilla; or (4) the evidence establishes conclusively the opposite of the vital fact. Id. at 810.
In a factual sufficiency review, we consider and weigh all of the evidence and set aside the finding only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex.2003); Arias v. Brookstone, L.P., 265 S.W.3d 459, 468 (Tex.App.-Houston [1st Dist.] 2007, pet. denied).
When the parties have not objected at trial to the substance of the law set forth in the jury charge, we review sufficiency of the evidence in light of legal standards contained in the unobjeeted-to charge. See, e.g., Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex.2000) (“[I]t is the court’s charge, not some other unidentified law, that measures the sufficiency of the evidence when the opposing party fails to object to the charge.”).
B. Evidence Supporting Badall’s Sole Liability
In his first issue,, Badall complains that the evidence is legally and factually insufficient to support the jury’s finding that he was “more than 51% liable for the death of Mr. Ramdath Durgapersad.” He complains that the Durgapersads relied primarily on the fact that Badall was charged with and convicted of Ramdath’s murder. Badall argues that the Durga-persads “did not present any ... evidence whatsoever to establish by a preponderance of the evidence Mr. Badall did NOT act in self-defense against [Ramdath’s] threat of harm.” He argues that the jury’s finding in his criminal conviction *635that he did not act in self-defense is not conclusive proof justifying the rejection of his self-defense argument under civil standards.
The Durgapersads bore the burden of establishing their wrongful-death claim. Civil Practice and Remedies Code section 71.002 provides a cause of action for wrongful death: “A person is liable for damages arising from an injury that causes an individual’s death if the injury was caused by the person’s or his agent’s or servant’s wrongful act, neglect, carelessness, unskillfulness, or default.” Tex. Civ. Prac. & Rem.Code Ann. § 71.002 (Vernon 2008). The jury found that Badall’s failure to use ordinary care was the proximate cause of Ramdath’s death, and it declined to ascribe any liability to Ram-dath himself.
The Durgapersads presented evidence that Badall was responsible for Ramdath’s death. Rukmin testified that Badall murdered her husband by shooting him and that the gunshot wound was the cause of Ramdath’s death. The trial court also admitted Badall’s conviction for Ramdath’s murder, and Badall himself admitted that he shot Ramdath.
We conclude that the evidence was legally sufficient to support the jury’s finding that Badall was solely responsible for Ramdath’s wrongful death. See id.; City of Keller, 168 S.W.3d at 810.
Badall argues, however, that he shot Ramdath in self-defense. With the exception of the rule of evidence that gives a person accused of a crime the benefit of a reasonable doubt, the law of self-defense is the same in both civil and criminal cases. Gibbins v. Berlin, 162 S.W.3d 335, 340 (Tex.App.-Fort Worth 2005, no pet.) (citing Forbes v. Lanzl, 9 S.W.3d 895, 900 (Tex.App.-Austin 2000, pet. denied) and Foster v. H.E. Butt Grocery Co., 548 S.W.2d 769, 771 (Tex.Civ.App.-San Antonio 1977, writ ref d n.r.e.)). A person is justified in using force against another when, and to the degree, such person reasonably believes the force is immediately necessary to protect himself against the other’s use or attempted use of unlawful force. Id. (citing Tex. Penal Code Ann. § 9.31 (Vernon 2011)).
We observe that self-defense is an affirmative defense. See id. (“[I]n civil law [self-defense] is a plea in confession and avoidance. That is, it is an affirmative defense.”). Badall — not the Durgaper-sads — bore the burden of establishing that he acted in self-defense. See Zuliani v. State, 97 S.W.3d 589, 594 n. 5 (Tex.Crim.App.2003) (holding defendant bears burden of production in establishing self-defense); see also Gibbins, 162 S.W.3d at 340 (holding that, except for benefit of reasonable doubt standard applied to alleged criminals, law of self-defense is same in both criminal and civil context).
Badall argues that he “clearly asserted the fact that [Ramdath] was in possession of a firearm and had pulled it on Badall in an attempt to shoot Badall” and that “he had no choice but to shoot [Ramdath], in fear of his life.” However, comments that he made in his opening and closing statements are not proper evidence. Badall’s only testimony on this issue was his statement, in response to the Durgapersads’ counsel’s question, that he shot Ramdath “in self-defense.” However, Rukmin testified that, although Ramdath owned a firearm, he was not carrying the weapon on his person on the day of the shooting. Rukmin testified that Ramdath’s firearm was in his closet, hidden under blankets so that their grandchildren could not find it. She testified that during the police investigation of the shooting one of the officers asked her about Ramdath’s firearm, and Rukmin showed the weapon in the closet *636to the officer. Neither witness called by Badall offered any testimony in support of his self-defense theory. The jury was free to disregard Badall’s testimony and to credit that of Rukmin. We cannot say the evidence is so contrary to the weight of the evidence as to render the verdict unjust. See Jackson, 116 S.W.3d at 761.
Badall also argues that he established his affirmative defense of “assumption of the risk” pursuant to Civil Practice and Remedies Code section 93.001(a)(1). Section 93.001(a)(1) provides that “[i]t is an affirmative defense to a civil action for damages for personal injury or death that the plaintiff, at the time the cause of action arose,” was “committing a felony, for which the plaintiff has been finally convicted, that was the sole cause of the damages sustained by the plaintiff.” Tex. Civ. Prac. & Rem.Code Ann. § 93.001(a)(1) (Vernon 2011). However, Ramdath was never charged with or convicted of any felony for his actions at the time this cause of action arose, and, thus, this provision may not be used as an affirmative defense in this case. See Dugger v. Arredondo, 408 S.W.3d 825, 834 (Tex.2013).
Badall contends that “the ‘felony, for which the plaintiff has been finally convicted,’ language in section 93.001(a) should not apply in a situation where the decedent dies so as to preclude a final conviction so as to bar application of the affirmative defense set out in Chapter 93.” We construe this as an argument that the common law unlawful acts doctrine ought to apply to his case. The Texas Supreme Court has rejected this argument, holding that the common law unlawful acts doctrine is not available as an affirmative defense in personal injury and wrongful death cases. Id. at 835-36 (observing that legislature abrogated common law defenses such as unlawful acts and assumption of the risk in Civil Practice and Remedies Code Chapter 33 and that section 93.001 reflects legislative intent to “resurrect only a small portion of the unlawful acts doctrine”).
We overrule Badall’s first issue.
C. Evidence Supporting Damages Award
Badall attacks various portions of the jury’s damages award. We address each in turn.
1. Damages awarded to Ramdath’s Estate
Badall first argues that the award of damages to Ramdath’s Estate for $100,000 for pain and mental anguish suffered by Ramdath before he died and $3,000 for burial expenses was improper because the Durgapersads did not assert a claim under the Survival Act statute in any of their pleadings.
However, the Durgapersads’ amended petition, which was the live pleading at the time of trial, stated that Rukmin brought the action “individually and in her capacity as Administratrix of the Estate of Ram-dath Durgapersad, the decedent.” The amended petition further stated that, “[a]s a result of [Badall’s] wrongful conduct which led to [Ramdath’s death], [Ramdath] endured significant conscious pain and suffering before his expiration on January 9, 2004; and Plaintiffs suffered damages, including, but not limited to, pecuniary and statutory damages as well as compensation for the pain and suffering endured by [Ramdath] prior to his death.” The Dur-gapersads also specifically sought past medical bills and funeral expenses in the amount of $35,000, and they sought $100,000 as damages for pain and suffering.
A petition is sufficient if it gives fair and adequate notice of the facts upoh *637which the pleader bases her claim. Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 897 (Tex.2000). The purpose of this rule is to give the opposing party information sufficient to enable him to prepare a defense. Id. Here, where the amended petition clearly stated that it was filed, in part, on behalf of Ramdath’s Estate and alleged facts indicating a claim asserted on Ramdath’s behalf for injuries suffered before his death, the Durgaper-sads satisfied this standard. See id. (holding that pleading was sufficient even though it referred to incorrect version of statute).
Furthermore, Badall failed to specially except to the Durgapersads’ failure to cite the survival statute as a basis for a cause of action. When a party fails to specially except, courts should construe the pleadings liberally in favor of the pleader. Id. (stating that opposing party should use special exceptions to identify defects in pleading so that they may be cured, if possible, by amendment). Because we must construe the Durgapersads’ pleadings in their favor, and because they pleaded information specific enough to provide Badall with notice of their intent to pursue claims on behalf of Ramdath’s Estate, we conclude the pleadings were sufficient. We reject Badall’s arguments on this issue.
2. Amount of Damages
Badall argues generally that the evidence is “legally and/or factually insufficient to sustain the jury’s damage [award] of $753,885.50” because the Durgapersads “presented their case solely on the testimony of Mrs. Rukmin Durgapersad” and Rukmin did not introduce any supporting evidence or documentation regarding the amount of damages incurred by the various parties. He complains specifically of the amounts awarded to Rukmin and her daughters for pecuniary loss, loss of society and companionship, and mental anguish.
(a) Pecuniary Loss
The jury awarded Rukmin $132,000 for past and future pecuniary loss, and it awarded each daughter $18,000 for past pecuniary loss. The elements of pecuniary damages in the wrongful-death context consist of more than just the lost earning capacity of the decedent — they include also the value of advice, counsel, services, care, maintenance, and support of the deceased. Moore v. Lillebo, 722 S.W.2d 683, 687 (Tex.1986); Best Steel Bldgs., Inc. v. Hardin, 553 S.W.2d 122, 133 (Tex.Civ.App.-Tyler 1977, writ ref'd n.r.e.). Thus, “[p]ecuniary loss in a wrongful-death case is not subject to precise mathematical calculation, 'and the jury is given significant discretion in determining this element of damages.” Christus Health v. Dorriety, 345 S.W.3d 104, 113 (Tex.App.-Houston [14th Dist.] 2011, pet. denied). Pecuniary losses may be recovered even in the absence of specific evidence of the amount of contributions being made by the deceased before his death or that he would have continued to contribute in the future. Id.; see also John Deere Co. v. May, 773 S.W.2d 369, 379-80 (Tex.App.-Waco 1989, writ denied) (upholding award of pecuniary loss damages to minor daughter for death of her father despite absence of testimony placing specific monetary value on his parental services). Thus, while the amount of damages awarded must be supported by evidence, a jury determining pecuniary loss may look beyond evidence of calculable financial contributions. See Saenz v. Fid. & Guar. Ins. Underwriters, 925 S.W.2d 607, 614 (Tex.1996) (holding that there must be evidence of existence and amount of damages); Dorriety, 345 S.W.3d at 113 (discussing evidence required to *638support award of pecuniary loss damages in wrongful-death case).
Here, the unobjected-to charge defined pecuniary loss as “the loss of care, maintenance, support, services, advice, counsel, and reasonable contributions of a pecuniary value, excluding loss of inheritance.” See Osterberg, 12 S.W.3d at 55 (holding that we review sufficiency of evidence in light of legal standards contained in unobjected-to charge). Jurors may apply their knowledge and experience to estimate the value of services, such as household services, rendered by a decedent, without proof of their value. Excel Corp. v. McDonald, 223 S.W.3d 506, 510 (Tex.App.-Amarillo 2006, pet. denied) (citing Mo.-Kan.-Tex. R.R. Co. v. Pierce, 519 S.W.2d 157, 160 (Tex.Civ.App.-Austin 1975, writ ref'd n.r.e.)). Likewise, “[a] parent’s services to a child, such as nurture, care, education, and guidance, have a monetary value in addition to any financial contributions.” Samco Props., Inc. v. Cheatham, 977 S.W.2d 469, 480 (Tex.App.-Houston [14th Dist.] 1998, pet. denied).
Rukmin testified that Ramdath “did everything for [Susan]” up until the time of his death, including paying her way through dental school and buying her books. Ramdath also paid for Rekha to attend LSU and provided support, including financial support, advice, and counsel to all three of his daughters. Rukmin testified that she had retired, that Ram-dath “provided everything” for her, and that it was difficult for her to continue to meet her financial burdens, such as providing money to her children and meeting living expenses, after Ramdath’s death. Rukmin had to learn “everything the hard way,” including learning how to run the tire shop after Ramdath’s death. We conclude that this is legally sufficient evidence to support the jury’s award of pecuniary damages. See City of Keller, 168 S.W.3d at 810.
Badall argues that the Durgapersads failed to present any documentary evidence supporting the award of damages. However, such evidence is not always required. See Dorriety, 345 S.W.3d at 113; see also Cheatham, 977 S.W.2d at 480 (“ [Measuring a beneficiary’s pecuniary loss is inherently speculative and imprecise and is therefore best left to the jury’s common sense and sound discretion.”). Furthermore, the jury was entitled to apply its own knowledge and experience to estimate the value of the services Ramdath provided to his daughters, such as aiding them in their educational endeavors and providing them with vehicles and other financial support appropriate to young adults. See McDonald, 223 S.W.3d at 510; Cheatham, 977 S.W.2d at 480. The jury awarded each daughter $18,000 as “the loss of care, maintenance, support, services, advice, counsel, and reasonable contributions of a pecuniary value” that Ram-dath would likely have made to each over the time between his death in January 2004 and trial in June 2013. That means that the jury determined that Ramdath would have provided approximately $2,000 worth of care, maintenance, and support to each daughter per year for the nine years following his death. Likewise, the jury determined that Ramdath’s “care, maintenance, support, services, advice, counsel, and reasonable contributions of a pecuniary value” to his wife, Rukmin, in both their business and their personal life would have totaled $7,333 per year between the time of his death and the time of trial and $66,000 for Rukmin’s future. See also McDonald, 223 S.W.3d at 510 (holding that jurors may apply their knowledge and experience to estimate value of services, such as household services, rendered by decedent without proof of their value); Cheatham, 977 S.W.2d at 480 (holding that ser*639vices such as nurture, care, and guidance have monetary value in addition to any financial contribution).
Badall did not present any evidence rebutting Rukmiris testimony. We conclude, after considering and weighing all of the evidence, that the jury’s award of $132,000 to Rukmin for past and future pecuniary loss and its award of $18,000 for past pecuniary loss to each daughter is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Jackson, 116 S.W.3d at 761.
(b) Loss of Companionship and Society
The jury also awarded Ruk-min $105,000 and each daughter $30,000 for past and future loss of companionship and society. The jury charge defined “loss of companionship and society” as “the loss of the positive benefits flowing from the love, comfort, companionship, and society that [the Durgapersads], in reasonable probability, would have received from Ramdath Durgapersad had he lived.” See Thomas v. Uzoka, 290 S.W.3d 437, 455 (Tex.App.-Houston [14th Dist.] 2009, pet. denied) (defining loss of companionship and society as referring to “the positive benefits flowing from the love, comfort, companionship, and society that the beneficiary would have experience had the decedent lived”). “As compared with mental anguish, which emphasizes the negative impact of the wrongful death on the beneficiary, loss of companionship and society focuses on the removal of positive benefits that the beneficiary once enjoyed but which were taken away by the wrongful death.” Id. at 455-56 (emphasis in original) (citing Moore, 722 S.W.2d at 688). Although mental anguish is distinguishable from loss of companionship and society, in awarding damages for both elements, the jury may consider some of the same factors. Id. at 456 (identifying factors to be considered as including relationship between decedent and beneficiary, living arrangements of parties, any extended absence of deceased from beneficiary, harmony of family relations, and parties’ common interests and activities).
Rukmin testified that their family was close and loving. They took a family trip to Trinidad in July before Ramdath was murdered, and the family was together for Christmas just weeks before Ramdath’s death. She testified that she and Ram-dath and various children would take trips to the Gulf of Mexico to fish and that they all spoke on the phone regularly. She testified that their only son, Ragis, had a heart attack and died at the age of thirty-three on the first day of the murder trial, leaving behind two children. She also testified that Susan and Reshma both had children whom Ramdath never got to meet because of his untimely death. Rukmin also testified that Ramdath did not get to see Susan graduate from dental school or Rekha graduate from LSU. Rukmin testified that all of the children missed their father and that they missed the advice and counsel that he had always given them.
Rukmin testified that for most of the six years preceding Ramdath’s murder she had worked in Louisiana, where Rekha was in school, while Ramdath lived in Texas and ran the tire shop. However, she also testified that she came home every weekend to cook and clean for him and that she had just retired a few months before Ramdath’s murder to spend all of her time with him.
We conclude that the evidence is legally sufficient to support the jury’s award of damages for “loss of companionship and society,” and we conclude that the award of $105,000 to Rukmin and $30,000 to each daughter does not weigh against the great weight and preponderance of the evidence. See City of Keller, 168 S.W.3d at 810; *640Jackson, 116 S.W.3d at 761; see also Thomas, 290 S.W.3d at 456 (holding that award to wife of cab driver killed in collision of $550,000 for past and future loss of companionship and society and $150,000 for mental anguish was not “so against the great weight a preponderance of the evidence that it is manifestly unjust, shocks the conscience, or clearly demonstrates the existence of bias”).
(c) Mental Anguish
The jury awarded Rukmin $41,250 and each daughter $11,250 for past and future mental anguish, which was defined as “the emotional pain, torment, and suffering experienced by [the Durgaper-sads] because of the death of Ramdath Durgapersad.” To support an award of mental anguish, a party must present either direct evidence of the nature, duration, and severity of her mental anguish, thereby establishing a substantial interruption in her daily routine, or circumstantial evidence of a high degree of mental pain and distress that is greater in degree than mere worry, anxiety, vexation, embarrassment, or anger. See Serv. Corp. Int’l v. Guerra, 348 S.W.3d 221, 231 (Tex.2011); Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex.1995). Thus, proof of mental anguish can include painful emotions such as grief, severe disappointment, indignation, wounded pride, shame, despair, public humiliation, or a combination of any or all of those feelings. Thomas, 290 S.W.3d at 455.
Here, Rukmin testified that she had suffered a heart attack because of the stress . of her husband’s murder and that she was taking medication for stress. She further testified that she was in and out of the hospital and doctor’s offices. She testified that she could not sleep well and that she did not like to have any pictures or reminders of what her family was like before Ramdath died. Rukmin testified that her son, Ragis, died of a heart attack at age thirty-three on the first day of Badall’s murder trial. She further testified that her daughter Reshma went into labor the day that Ramdath died and, as a result, was not able to come to Ramdath’s funeral. She testified that Susan still had not given up Ramdath’s name, even though she had married, because she does not want to give up her maiden name. Susan also has three children that Ramdath was never able to meet due to his untimely death. Rukmin also testified that Rekha took Ramdath’s death very hard and that it “almost took her life.” Rekha took a break from her studies at LSU while she mourned the loss of her father. Rukmin testified that they all suffered because of Ramdath’s murder and “still do.”
We conclude that this is evidence of substantial interruption in the daily routines of the Durgapersads as a result of Ramdath’s murder and that they presented evidence of mental pain and distress that is greater in degree than mere worry, anxiety, vexation, embarrassment, or anger. See Guerra, 348 S.W.3d at 231; Woodruff, 901 S.W.2d at 444. Thus, the jury’s award of mental anguish damages totaling $41,250 to Rukmin and $11,250 to each daughter was supported by legally and factually sufficient evidence. See Sanchez v. Schindler, 651 S.W.2d 249, 250-53 (Tex.1983) (upholding mental anguish award of $102,500 to mother of child killed in collision with pick-up truck, stating, “The destruction of the parent-child relationship results in mental anguish, and it would be unrealistic to separate the injury to the familial relationship from emotional injury”); Thomas, 290 S.W.3d at 455-56 (upholding mental anguish award of $150,000 as well as awards totaling $550,000 for past and future loss of companionship and society to wife of cab driver killed in collision where wife “testified *641at some length” about relationship she shared with husband and impact of his death on her, including plans they had made for future).
We overrule Badall’s second issue.
Evidentiary Complaints
In his third and fourth issues, Badall challenges the trial court’s ruling excluding certain evidence.
A. Standard of Review
We review a trial court’s admission or exclusion of evidence for an abuse of discretion. Bay Area Healthcare Grp., Ltd. v. McShane, 239 S.W.3d 231, 234 (Tex.2007) (per curiam). A trial court abuses its discretion if it acts arbitrarily, unreasonably, or without reference to any guiding principles. Bowden v. Phillips Petroleum, Co., 247 S.W.3d 690, 696 (Tex.2008). We will not reverse a trial court for an erroneous evidentiary ruling unless the error probably caused the rendition of an improper judgment. See Tex.R.App. P. 44.1; Nissan Motor Co. v. Armstrong, 145 S.W.3d 131, 144 (Tex.2004). To preserve error concerning the exclusion of evidence, a party must, among other steps, actually offer the evidence, state the purpose for which the evidence is offered, give the trial court reasons why the evidence is admissible, and obtain an adverse ruling. See Comiskey v. FH Partners, LLC, 373 S.W.3d 620, 629-30 (Tex.App.-Houston [14th Dist.] 2012, pet. denied); Rhey v. Redic, 408 S.W.3d 440, 458 (Tex.App.-El Paso 2013, no pet.); see also Tex.R.App. P. 33.1 (requiring, to preserve error, timely request that “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”).
B. Evidence of Settlement Agreement
In his third issue, Badall argues that the trial court erroneously excluded evidence of the Durgapersads’ settlement agreement with St. Elizabeth Hospital. He identifies the following exchange as presenting reversible error:
[Badall]: Ms. Durgapersad, do you know’ of any other reason why your husband may have died besides the injury from the gunshot wound?
[[Image here]]
[Rukmin]: No. He died from the gunshot wound. No other reason.
[Badall]: Do you have any knowledge whether or not any allegation was made against—
[counsel]: Objection, Your Honor. He’s trying to bring in anything that there is absolutely no evidence of in this trial. I would object as to irrelevant as well as potentially prejudicial.
[Court]: I will let him ask the question ....
[Badall]: Do you have any knowledge whether or not any allegation was made against certain medical personnel of St. Elizabeth Hospital?
[Rukmin]: No.
[Badall]: That your husband’s death was caused by improper medical treatment by medical personnel of this hospital?
[counsel]: Objection, Your Honor. Same objection. There has been no evidence whatsoever of this. [I]t’s irrelevant first of all; and second there is no evidence of it.
[[Image here]]
[court]: Objection is overruled. You can answer.
[Badall]: Do you know what medical personnel was allegedly responsible for your husband’s death?
[[Image here]]
*642[Rukmin]: No.
[Badall]: Do you know what improper medical treatment that was performed that caused your husband’s death?
[counsel]: Your Honor, same objection. He’s assuming facts not in evidence.
[Court]: Sustained.
[Badall]: Did anyone with St. Elizabeth Hospital provide you with a settlement in regard to the death of your husband?
[counsel]: Objection, Your Honor. It’s irrelevant to this case.
[Court]: Sustained.
Badall argues, first, that the Durgaper-sads failed to provide any information about their settlement with the hospital during discovery. However, he did not present this argument to the trial court. Thus, this complaint is waived. See Tex.R.App. P. 33.1; U. Lawrence Boze’ & Assocs., P.C. v. Harris Cnty. Appraisal Dist., 368 S.W.3d 17, 32 (Tex.App.-Houston [1st Dist.] 2011, no pet.) (holding that to preserve error on discovery dispute, appealing party must obtain ruling by trial court on discovery issue).
Badall also argues that “the record is clear [that] [Rukmin] was well aware of other reasons that led to her husband’s death and did not want the jury to become aware of the fact that she collected a substantial amount of money from St. Elizabeth Hospital, as part of a settlement agreement for causing her husband’s death.” However, the record demonstrates only that Rukmin did not know of any other negligence besides Badall’s that caused Ramdath’s death, nor did she know of any claims that she or anyone else had made on behalf of Ramdath’s Estate. Ba-dall did not present to the trial court a settlement agreement or any evidence of the existence of a settlement agreement between any of the Durgapersads and the hospital. Thus, we conclude that Badall did not preserve his complaint that the trial court improperly excluded evidence of a settlement agreement. See Tex.R.App. P. 33.1; Comiskey, 373 S.W.3d at 629-30; Rhey, 408 S.W.3d at 458.
We overrule Badall’s third issue.
C. Impeachment Evidence
In his fourth issue, Badall argues that the trial court erred in ruling that he could not offer certain impeachment evidence against Rukmin. Rukmin testified that she did not see Ramdath with a weapon on his person on the day he was murdered, and Badall attempted to impeach her, apparently by referring to the prior criminal proceedings and arguing that she “testified under oath in a jury trial that [she saw] her husband with a handgun coming from the bedroom on that day. It is in the transcript, ma'am.” The trial court interjected, “Hold on a second. Mr. Badall, there are proper procedures. If you’re attempting to impeach this witness, there are proper procedures. I would suggest you follow the correct procedure.” Badall “requested] to have the video statement to be shown in court today.” However, Badall never produced the video statement.
Badall argues that he should have been permitted to introduce Rukmin’s video-recorded statement for impeachment purposes. However, he has not clearly identified which video-recorded statement he is referring to, and he produced no such statement to be considered by the trial court. Thus, we conclude that Badall did not preserve his complaint that the trial court improperly excluded evidence of the video-recorded statement that allegedly would have impeached Rukmin’s testimony. See Tex.R.App. P. 33.1; Comiskey, 373 *643S.W.3d at 629-30; Rhey, 408 S.W.3d at 458.
We overrule Badall’s fourth issue.
Dismissal for Want of Prosecution
In his fifth issue, Badall argues that the trial court erred in reinstating the case and failing to dismiss it for want of prosecution. He argues that, “although [he] made requests for dismissal for want of prosecution, the court allowed the suit to remain pending from January 6, 2006, to June 11, 2013, not only causing [him] to lose'contact with defense witness(es), but also causing the interest calculation rate to be unreasonable and excessive.”
We review a trial court’s ruling on a motion to reinstate under Rule of Civil Procedure 165a for an abuse of discretion. Smith v. Babcock & Wilcox Constr. Co., 913 S.W.2d 467, 468 (Tex.1995) (per cu-riam). Rule 165a provides that a “court shall reinstate the case upon finding after a hearing that the failure of the party or his attorney was not intentional or the result of conscious indifference but was due to an accident or mistake or that the failure has been otherwise reasonably explained.” Tex.R. Civ. P. 165a(3).
The trial court dismissed the case for want of prosecution when the Durgaper-sads failed to appear at the March 14, 2011 trial setting. However, the Durgapersads moved for reinstatement, asserting that their failure to appear was not intentional or the result of conscious indifference. They asserted that it was the result of a miscommunication with the trial court’s clerk, who, they argued, told them that the trial had been reset. They supported their motion to reinstate with a printout from the trial court’s webpage showing a trial setting in April 2011.
Furthermore, we observe that many of the delays in this case were beyond the control of the Durgapersads or the trial court. The case was filed in 2006, but Badall’s criminal conviction did not become final Until 2007-when the Court of Criminal Appeals refused his petition for discretionary review. The Durgapersads then obtained a final summary judgment that was appealed to the Ninth Court of Appeals. The case was remanded for a new trial in 2009.
We conclude that the trial court acted within its discretion by finding that the Durgapersads’ explanation for why they failed to appear was not due to conscious indifference. We further conclude that the trial court did not abuse its discretion in denying Badall’s subsequent motions to dismiss pursuant to Rule 165a.
We overrule Badall’s fifth issue.
Conclusion
We affirm the judgment of the trial court.
. See Tex. Civ. Prac. & Rem.Code Ann. §§ 71.001-71.051 (Vernon 2008). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283601/ | OPINION
Opinion by
Justice Carter
Kyle King admitted his mother, Marilou Whatley King (Whatley), to The Villas of Mount Pleasant, LLC, d/b/a Greenhill Villas (the Villas) nursing facility in Mount Pleasant, Texas. Acting as Whatley’s agent, King signed an admission agreement containing an arbitration clause that purported to require the parties to arbitrate any controversy arising from the services provided by the Villas to Whatley. Whatley died, and King sued the Villas alleging that her death was caused by its failure to render proper nursing home care and to protect his mother from abuse. Under Section 74.451 of the Texas Civil Practice and Remedies Code, the arbitration agreement, to be enforceable, must contain a conspicuously placed, written notice stating that the agreement is invalid unless it is also signed by an attorney chosen by and representing the patient. Tex. Civil Prao. & Rem. Code Ann. § 74.451 (West 2011). The agreement signed by King on Whatley’s behalf contained no such notice, and it was not signed by an attorney acting on Whatley’s behalf. The trial court found that the arbitration agreement was not enforceable.
The first issue we must resolve is whether the Federal Arbitration Act (the FAA) preempts Section 74.451, thereby rendering it inapplicable to this case. If the FAA does preempt Section 74.451, then we must decide whether the McCarran-Ferguson Act (the MFA) reverse preempts the FAA, thereby negating the FAA’s preemptive effect and restoring Section 74.451’s applicability to Whatley’s agreement with the Villas.
I. Texas Law on Arbitration Agreements Between Patients and Health Care Providers
Section 74.451 of the Texas Civil Practice and Remedies Code prohibits health care providers from requiring or even requesting that a patient execute an agreement to arbitrate a health care liability claim unless such agreement includes a clear, conspicuous, written notice printed in ten-point, boldface type and stating,
UNDER TEXAS LAW, THIS AGREEMENT IS INVALID AND OF NO LEGAL EFFECT UNLESS IT IS ALSO SIGNED BY AN ATTORNEY OF YOUR OWN CHOOSING. THIS AGREEMENT CONTAINS A WAIVER OF IMPORTANT LEGAL RIGHTS, INCLUDING YOUR RIGHT TO A JURY. YOU SHOULD NOT SIGN THIS AGREEMENT WITHOUT FIRST CONSULTING WITH AN ATTORNEY.
Tex. Civ. Prao. & Rem. Code Ann. § 74.451(a). No such provision was included in the agreement at issue in this case.
II. Preemption of Texas Law by the FAA
The Villas contends that the FAA preempts Section 74.451 and that, consequently, the FAA governs the enforceability of the arbitration agreement signed by King on Whatley’s behalf. The United States Supreme Court has held that the FAA “extends to any contract affecting commerce, as far as the Commerce Clause of the United States Constitution will reach.” In re L & L Kempwood Assocs., 9 S.W.3d 125, 127 (Tex.1999) (citing Allied-Bruce Terminix Co. v. Dobson, 513 U.S. 265, 268, 115 S.Ct. 834, 130 L.Ed.2d 753 (1995)). Stated differently, if *692an arbitration agreement relates to a transaction involving interstate commerce, then the FAA preempts state law and governs the enforceability of that arbitration agreement. If, on the other hand, the arbitration agreement does not relate to a transaction involving interstate commerce, then state law governs enforceability. The Texas Supreme Court has held that the payment of federal Medicare or Medicaid funds to a Texas health care provider as reimbursement for health care services involves interstate commerce to a sufficient degree to render the transaction between the Texas health care provider and its patient a transaction affecting commerce. In re Nexion Health at Humble, Inc., 173 S.W.3d 67, 69 (Tex.2005). Consequently, an arbitration agreement between a Texas health care provider and its patient under the above scenario relates to a transaction affecting interstate commerce, and the enforceability of that arbitration agreement is governed by the FAA. Id. Here, the Villas participates in the Medicare and Medicaid programs and is obligated to meet certain minimum health and safety standards established by the Department of Health and Human Services. Further, Whatley received monthly Medicare benefits that were used to partially defray the expenses arising from her stay at the Villas. Following the precedent of the Texas Supreme Court and under the facts and circumstances of this case, we hold that the FAA preempts Section 74.451 of the Texas Civil Practice and Remedies Code. See id. The remaining question, then, is whether the reverse preemption mechanism contained in the MFA applies under the facts and circumstances of this case.
III. The MFA and Reverse Preemption
The MFA states, in pertinent part, “No Act of Congress shall be construed to invalidate, impair, or supersede any law enacted by any State for the purpose of regulating the business of insurance ... unless such Act specifically relates to the business of insurance.” 15 U.S.C. § 1012(b). “The McCarran-Ferguson Act (MFA) provides an exception to ... preemption if the conflicting state law was enacted ‘for the purpose of regulating the business of insurance.’ ” Fredericksburg Care Co., L.P. v. Perez, 406 S.W.3d 313, 318 (Tex.App.-San Antonio 2013, pet. granted) (quoting 15 U.S.C. § 1012(b)). Three conditions must be satisfied to invoke the MFA’s preemption exception: (1) the federal statute at issue — here, the FAA — must not “specifically relate[] to the business of insurance,” (2) the state statute at issue — here Section 74.451 of the Texas Civil Practice and Remedies Code— must have been “enacted ... for the purpose of regulating the business of insurance,” and (3) application of the federal statute must “invalidate, impair, or supersede” the state statute. 15 U.S.C. § 1012(b); Perez, 406 S.W.3d at 318 (citing United States Dep’t of Treasury v. Fabe, 508 U.S. 491, 500-01, 113 S.Ct. 2202, 124 L.Ed.2d 449 (1993); Munich Am. Reinsurance Co. v. Crawford, 141 F.3d 585, 590 (5th Cir.1998)). The first and third conditions are unquestionably met in the case; the issue we must decide is whether Section 74.451 was enacted for the purpose of regulating the business of insurance.
The San Antonio Court of Appeals recently addressed this issue in Perez, where several former patients sued a nursing home alleging negligence and gross negligence. After carefully analyzing the issues related to reverse preemption and the MFA, the San Antonio Court found that “section 74.451 is a law ‘enacted for the purpose of regulating the business of insurance’ within the meaning of the first clause of section 1012(b) of the MFA and is, thus, exempted from preemption by the FAA.” Perez, 406 S.W.3d at 325-26 (quot*693ing 15 U.S.C. § 1012(b)).1 In reaching this decision, the San Antonio Court relied heavily on In re Kepka, 178 S.W.3d 279 (Tex.App.-Houston [1st Dist.] 2005, orig. proceeding), overruled in part on other grounds by In re Labatt Food Serv., L.P., 279 S.W.3d 640 (Tex.2009).2 Kepka was the first case to address the interplay of Section 74.451, the FAA, and the MFA, albeit in the context of Section 74.451’s predecessor, Article 4590i, Section 15.01 of the Texas Medical Liability Insurance Improvement Act.3
In analyzing Article 4590i, the Kepka court took note of the findings and purposes underlying its enactment and found,
It is clear ... that the purpose of the entire statute — even those substantive provisions that do not expressly mention insurance — was to decrease the costs of health-care liability claims through modifications of the insurance, .tort, and medical-practice systems, in order to make insurance reasonably affordable so that health-care providers could have protection against potential liability and so that citizens could have more affordable and accessible health care.
Kepka, 178 S.W.3d at 291. The Kepka court concluded that Article 4590i, including Section 15.01, was enacted to regulate the business of insurance. Id. at 289. Consequently, the Kepka court held that the MFA’s exception was triggered, reversing the FAA’s preemptive effect on Texas’ arbitration notice requirements. Id.
A. Review of Entire Statutory Scheme or Individual Parts?
The Villas criticizes the reasoning of Kepka and Perez, labeling it an “all or nothing approach.” Indeed, the Kepka and Perez opinions considered the purpose of the TMLA — or its predecessor in Kep-ka — in its entirety and found that the purpose behind the legislation, as a whole, was to address issues of medical malpractice and the perception that professional liability insurance was either too expensive or entirely unavailable. The Villas- contends that the better approach is to analyze Section 74.451, which limits the. creation of arbitration agreements between health care providers and patients, in isolation.
The TMLA was unquestionably enacted as a part of the tort reform movement in Texas, and it was clearly intended to affect liability insurance rates paid by health care providers. However, it is also true that the particular subsection with which we are confronted does not specifically address the business of insurance; rather) Section 74.451 is a significant encumbrance on the rights of certain parties — health care providers and their patients — to enter into arbitration agreements. In fact, it is reasonable to conclude that Section 74.451 favors litigation — generally thought to increase insurance premiums — over arbitration. The conundrum, obviously,, is deter*694mining whether we should look specifically at Section 74.451 or to the larger body of legislation of which it is a subpart in determining whether the statute was enacted for the purpose of regulating the business of insurance.
In Labor Life Insurance Co. v. Pireno, 458 U.S. 119, 102 S.Ct. 3002, 73 L.Ed.2d 647 (1982), a chiropractor sued an insurance company alleging that the company was using a peer review committee to examine whether his treatment was reasonable and necessary. The allegation was that the peer review system violated the Sherman Act and was a conspiracy to eliminate competitive pricing. Id. The issue confronting the Pireno court was whether the MFA exempted the practice of using peer review committees from antitrust scrutiny. If the MFA’s exception was to apply, then the peer review practice would have to be deemed a part of the “business of insurance.” The United States Supreme Court found that the use of peer review committees was not part of the business of insurance and that the MFA’s exception did not apply. Pireno discussed three criteria, first applied in Group Life & Health Insurance Co. v. Royal Drug Co., 440 U.S. 205, 211-12, 99 S.Ct. 1067, 59 L.Ed.2d 261 (1979), relevant in determining whether a particular practice by an insurance company is part of the business of insurance: “(1) the practice has the effect of transferring or spreading a policyholder’s risk, (2) the practice is an integral part of the policy relationship between the insurer and the insured; and (3) the ’practice is limited to entities within the insurance industry.” Pireno, 458 U.S. at 129,102 S.Ct. 3002 (citing Royal Drug Co., 440 U.S. 205, 211-12, 99 S.Ct. 1067, 59 L.Ed.2d 261 (1979)).
In United States Department of Treasury v. Fabe, 508 U.S. 491, 113 S.Ct. 2202, 124 L.Ed.2d 449 (1993), an insurance company in Ohio was declared insolvent. A liquidator was appointed, and the United States filed claims in excess of $10,700,000.00. Under federal law, the United States’ claims were entitled to first priority, but under an Ohio statute, the insurance company’s policyholders were given first priority over the United States. The liquidator argued that the Ohio law was an act regulating the business of insurance and that the MFA’s exception applied, meaning Ohio law governed the issue of priorities. Id. at 497, 113 S.Ct. 2202. The United States Department of the Treasury argued that the liquidation of an insolvent insurance company was not part of the business of insurance and that, as a result, the MFA had no effect on the Sherman Act’s preemption of Ohio state law.
The United States Supreme Court applied the Pireno test to the facts of Fabe and concluded,
There can be no doubt that the actual performance of an insurance contract falls within the “business of insurance,” as we understood that phrase in Pireno and Royal Drug. To hold otherwise would be mere formalism. The Court’s statement in Pireno that the “transfer of risk from insured to insurer is effected by means of the contract between the parties ... and ... is complete at the time that the contract is entered” presumes that the insurance contract in fact will be enforced. Without performance of the terms of the insurance policy, there is no risk transfer at all. Moreover, performance of an insurance contract also satisfies the remaining prongs of the Pireno test: It is central to the policy relationship between insurer and insured and is confined entirely to entities within the insurance industry. The Ohio priority statute is designed to carry out the enforcement of insurance con*695tracts by ensuring the payment of policyholders’ claims despite the insurance company’s intervening bankruptcy. Because it is integrally related to the performance of insurance contracts after bankruptcy, Ohio’s law is one “enacted by any State for the purpose of regulating the business of insurance.”
Fabe, 508 U.S. at 503-04, 113 S.Ct. 2202 (quoting Pireno, 458 U.S. at 130, 102 S.Ct. 3002; 15 U.S.C. § 1012(b)). However, the Fabe court limited its finding on the applicability of the MFA to the Ohio priority statute’s regulation of policyholders when it stated, “The Ohio statute is enacted ‘for the purpose of regulating the business of insurance’ to the extent that it serves to ensure that, if possible, policyholders ultimately will receive payment on their claims.” Id. at.506, 113 S.Ct. 2202. The court drew a sharp distinction between the interests of policyholders, on the one hand, and those of general creditors who were not policyholders, on the other. The Court stated, “To the extent that it is designated to further the interests of other creditors, however, it is not a law enacted for the purpose of regulating the business of insurance.” Id. at 508, 113 S.Ct. 2202. It is this language from Fabe concerning the interests of non-policyholder creditors that we find critical to the case at hand.
According to the Villas, Fabe requires that we analyze individual sections or subsections that are clearly part of a larger statutory framework in a vacuum. In other words, the Villas posits that, under Fabe, we must examine Section 74.451 in isolation, without reference to or consideration of the legislative intent behind the TMLA, the larger statutory framework of which Section 74.451 is a part. The Villas points to Fabe’s limited holding — “to the extent [the Ohio statute at issue] ... regulates policyholders, [it] is a law enacted for the purpose of regulating the business of insurance.” Id. at 508, 113 S.Ct. 2202. However, “[t]o the extent [the statute] is designed to further the interests of other creditors ... it is not a law enacted for the purpose of regulating the business of insurance.” Id. By analogy, the Villas argues that, even if the overall purpose of the TMLA was to affect policyholders and rates, the purpose of this particular statute had no effect on the business of insurance.
In support of its narrow interpretation of Fabe, the Villas directs us to footnote eight, where the majority answered some of the dissent’s criticisms:
The dissent assails our holding at both ends, contending that it at once goes too far and not quite far enough. On the one hand, the dissent suggests that our holding is too “broad” in the sense that “any law' which redounds to the benefit of policyholders is, ipso facto, a law enacted to regulate the business of insurance.” Post, at 511. But this is precisely the argument we reject in the text, as evidenced by the narrowness of our actual holding. Uncomfortable with our distinction between the priority given to policyholders and the priority afforded other creditors, the dissent complains, on the other hand, that this is evidence of a “serious flaw.” Post, at 517. But the dissent itself concedes that a state statute regulating the liquidation of insolvent insurance companies need not be treated as a package which stands or falls in its entirety. Post, at 518. Given this concession, it is the dissent’s insistence upon an all-or-nothing approach to this particular statute that is flawed. The dissent adduces no support for its assertion that we must deal with the various priority provisions of the Ohio law as if they were all designed to further a single end. That was not the approach taken by this Court in National *696Securities,[4] which carefully parsed a state statute with dual goals and held that it regulated the business of insurance only to the extent that it protected policyholders. Supra, at 502, 113 S.Ct. 2202. And the dissent misinterprets our pronouncement on the clash of priorities as a “compromise holding,” Post, at 517, forgetting that the severability of the various priority provisions is a question of state law.[5]
Fabe, 508 U.S. at 509, n. 8, 113 S.Ct. 2202.
In holding that the result in Fabe was based on the dual goals of the Ohio statute, Perez rejected the argument that Fabe mandates a particularized parsing approach in determining whether a particular statute is governed by the MFA:
[Appellant nursing facility] cites to Fabe as support for this “parsing” type of statutory construction. However, Fabe clarified in a footnote that the basis for its “parsing” analysis of the Ohio statute was the statute’s dual goals in giving priority to policyholders as well as other creditors. Fabe, 508 U.S. at 508, 509 n. 8, 113 S.Ct. 2202. Section 74.451 has no such dual goal.
Perez, 406 S.W.3d at 325.
We reject this reading of Fabe. Fabe teaches that the entirety of a statute need not be treated in such a way as to overlook the particularized goals of discrete statutory provisions. Here, for example, the overarching goal of the TMLA is undoubtedly to reduce medical malpractice liability insurance premiums. It is apparent, however, that not every section of the Act explicitly advances that goal. Indeed, the particularized goal of Section 74.451 — ensuring that patients' are explicitly notified of their rights before signing an arbitration agreement — has nothing to do with regulating the business of insurance. Taking our guidance from Fabe, we do not believe the entirety of the TMLA must be treated as advancing a single, unitary purpose. Other cases have taken this approach. For example, the Austin Court of Appeals in Everest Reinsurance Co. v. Howard, 950 S.W.2d 800 (Tex.App.-Austin 1997, writ denied), relied on Fabe in holding that the now repealed Article 21.28, Section 4(h) of the Texas Insurance Code *697was “not a law enacted ‘for the purpose of regulating insurance.... ” Id. at 803; see Act of June 1, 1987, 70th Leg., R.S., ch. 1073, § 33, sec. 4(h), 1987 Tex. Gen. Laws 3610, 3649, repealed by Act of May 24, 2005, 79th Leg., R.S., ch. 727, § 18(a)(6), 2005 Tex. Gen. Laws 1752, 2187. Under Section 4(h), the filing of a delinquency proceeding against an insurer or a receiver in a Texas receivership court made that specific court the exclusive venue for all actions or proceedings filed thereafter relating to that insurer or receiver. Act of June 1, 1987, 70th Leg., R.S., ch. 1073, § 33, sec. 4(h), 1987 Tex. Gen. Laws 3610, 3649 (repealed 2005). In Howard, a delinquency proceeding was filed against an insolvent reinsurance company (Company 1), and a receiver was appointed to conduct Company l’s affairs. The receiver filed a complaint against another reinsurance company (Company 2) for monies allegedly due to Company 1. Company 2 removed the case to federal court, and the receiver fought removal by arguing that Section 4(h) was enacted for the purpose of regulating the business of insurance and that, consequently, under the MFA, Section 4(h) was excepted from preemption by the federal removal statute. In rejecting this argument, the Austin Court stated,
The exclusive venue provision of section 4(h) does not affect the relationship between insurance companies and their policyholders; it merely designates a forum in which disputes concerning insolvent insurers can be heard. The substantive rights and responsibilities of insurers and their policyholders can be protected in either state or federal court. Accordingly, because section 4(h) of the Receivership Statute is not a law enacted “for the purpose of regulating insurance,” the McCarran-Ferguson Act does not apply and cannot preempt the federal removal statute.
Id. at 803; see also Langdeau v. United States, 363 S.W.2d 327 (Tex.Civ.App.-Austin 1962, no writ) (holding that provision of Texas Insurance Code did not regulate business of insurance but established priority for class of creditors of insurance company). While the Insurance Code, when considered collectively and in broad, general terms, was obviously intended to regulate the business of insurance, the Austin Court of Appeals twice looked beyond the collective intent to the actual intent and effect of specific subsections of the Insurance Code to determine that those specific subsections were not enacted for the purpose of regulating insurance. We agree with the approach and reasoning employed by our sister court in Austin.
In Fabe, the statute in question was a part of the Ohio Insurance Code. In determining whether the MFA’s exception was triggered, the Supreme Court specifically examined the priority of claims statute, not the entirety of the Ohio Insurance Code. In analyzing that particular statute, the Supreme Court noted the differing goals for different sections of the same statute; one section was designed for the regulation of the business of insurance, and another section was not.
In the face of a “medical malpractice insurance crisis,” the Legislature broadened the scope of Article 4590i and recodi-fied it as Chapter 74 of the Texas Civil Practice and Remedies Code. Tex. West Oaks Hosp., LP v. Williams, 371 S.W.3d 171, 176-77 (Tex.2012) (citing Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.11(a)(5), 2003 Tex. Gen. Laws 847, 884). Even so, Section 74.451 does not specifically address the regulation of the business of insurance. This section has nothing to do with the relationship between insurers and insureds and is not integral to that relationship. Cf. Fabe, 508 U.S. at 504, 113 S.Ct. 2202. Laws which *698would fall within the MFA’s ambit include those
enacted “for the purpose of regulating the business of insurance” ... [which] possess the “end, intention, or aim” of adjusting, managing, or controlling the business of insurance. Black’s Law Dictionary 1236, 1286 (6th ed.1990). This category necessarily encompasses more than just the “business of insurance.” ... [W]e believe that the actual performance of an insurance contract is an essential part of the “business of insurance.” Because the Ohio statute is “aimed at protecting or regulating” the performance of an insurance contract, National Securities, 393 U.S. at 460, 89 S.Ct. 564, it follows that it is a law “enacted for the purpose of regulating the business of insurance,” within the meaning of the first clause of § 2(b).
Fabe, 508 U.S. at 505, 113 S.Ct. 2202. Section 74.451 does not fit the definition adopted in Fabe.
Finally, even if Section 74.451 has a tangential effect on insurance contracts, any such indirect effect is insufficient to trigger the MFA’s preemption exception. The United States Supreme Court’s rejection of this argument in Fabe is instructive:
Of course, every preference accorded to the creditors of an insolvent insurer ultimately may redound to the benefit of policyholders by enhancing the reliability of the insurance company. This argument, however, goes too far: “But in that sense, every business decision made by an insurance company has some impact on its reliability ... and its status as a reliable insurer.” Royal Drug, 440 U.S. at 216-17, 99 S.Ct. 1067. Royal Drug rejected the notion that such indirect effects are sufficient for a state law to avoid pre-emption under the McCarran-Ferguson Act. Id. at 217, 99 S.Ct. 1067.
Fabe, 508 U.S. at 508-09, 113 S.Ct. 2202.
In light of the foregoing, we reverse the trial court’s judgment and remand this case for further proceedings consistent with this opinion.
. San Antonio applied the same reasoning to reach the same result in two additional opinions issued the same day as Perez : Fredericksburg Care Co., L.P. v. Lira, 407 S.W.3d 810 (Tex.App.-San Antonio 2013, pet. filed), and Williamsburg Care Co., L.P. v. Acosta, 406 S.W.3d 711 (Tex.App.-San Antonio 2013, pet. filed).
. The Dallas Court of Appeals applied the reasoning of Kepka in reaching the same result in In re Sthran, 327 S.W.3d 839 (Tex. App.-Dallas 2010, orig. proceeding), as did the Federal District Court for the Eastern District of Texas in Patterson v. Nexion Health, Inc., No. 2-06-CV-443, 2007 WL 2021326 (E.D.Tex. July 9, 2007).
. See Act of May 25, 1993, 73d Leg., R.S., ch. 625, § 4, 1993 Tex. Gen. Laws 2347, 2349-50, repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, 884.
. SEC v. Nat'l Secs., Inc., 393 U.S. 453, 89 S.Ct. 564, 21 L.Ed.2d 668 (1969). Two Arizona insurance companies had merged with approval of the Arizona Director of Insurance as required by state law; the SEC sued to rescind the merger for alleged material misrepresentations, and the insurance companies invoked the MFA in arguing that federal securities law did not apply because the relevant Arizona law concerned the business of insurance. The United States Supreme Court found that the MFA’s preemption exception did not apply. In the words of the Court, "[The] core of the ‘business of insurance’ ’’ under the MFA is "[t]he relationship between insurer and insured, the type of policy which could be issued, its reliability, interpretation, and enforcement.” Id. at 460, 89 S.Ct. 564. Without elaborating, the Court also recognized that, "[ujndoubtedly, other activities of insurance companies relate so closely to their status as reliable insurers that they too must be placed in the same class.” Id. Finally, the Court stated that, "whatever the exact scope of the statutory term, it is clear where the focus was — it was on the relationship between the insurance company and the policyholder.” Id.
. In a concurring opinion, Chief Justice Roberts explicitly recognized the precedential value of footnotes by stating that "footnotes are part of an opinion, too.” United States v. Denedo, 556 U.S. 904, 921, 129 S.Ct. 2213, 173 L.Ed.2d 1235 (2009). The precedential value of footnotes has been implicitly recognized in dissenting opinions based solely on footnotes. See, e.g., Fry v. Pliler, 551 U.S. 112, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007) (Breyer, J., joining the majority except as to footnote 1 and Part II-B); William A. Ramsey, Taking Note of Footnotes: The Precedential Value of Footnotes in Judicial Opinions, Res Gestae, Sept. 2010, at 10. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283603/ | NOBLE, J.,
Concurring in part and Dissenting in part.
While I agree with the majority that Nickolas Staples’ conviction for manslaughter must be reversed, I do so for an additional reason, namely, because he cannot be criminally liable under a theory that he had “actual custody” of his girlfriend’s child when the girlfriend was present. I also believe his conviction for criminal abuse is tainted for the same reason.
The majority concludes that the jury instructions in this case were correct to the extent that they allowed the jury to *830conclude that Staples had “actual custody” of the child victim under the criminal-abuse statutes, KRS 508.100-. 120. Liability for criminal abuse arises when a person “permits another person of whom he has actual custody to be abused,” id., which, according to the majority, would allow Staples’ conviction for criminal abuse. This in turn, according to the majority, gives rise to a legal duty (to prevent criminal abuse) sufficient to allow Staples’ conviction for complicity to first-degree manslaughter.14 The majority reads “actual custody” “to apply to persons, such as Staples, who reside with a child in a continuing parent-like role and who assume or share .with the child’s parent a substantial responsibility for such day-to-day necessities as food, shélter, and care of the child.” Ante at 815.
I could not disagree more.
In reaching its conclusion, the majority relies on the General Assembly’s choice of an unusual term — “actual custody” — instead of traditional legal terms, such as “custody,” “legal custody,” or “standing in loco parentis ” to avoid the plain meaning of the phrase and instead arrive at a “technical, legal meaning.” Ante at 816. The majority also relies heavily on the fact that the abuse statutes were passed “at a time when the reporting and prevention of child abuse were prominent national concerns.” Ante at 816. From these, the majority concludes that the General Assembly intended “actual custody” to extend criminal liability beyond persons in “traditional” families to include those living in nontraditional families — even where the person’s relationship with the child is akin to that of a live-in babysitter and the abuse is committed by the child’s parent.
But the majority fails to explain why it must move beyond the plain meaning of the phrase, which it admits is something like “anyone who has ‘in fact’ (actual) the ‘care and control’ (custody) of a child.” Ante at 815. When interpreting statutes, “our goal is to give effect to the intent of the General Assembly.” Maynes v. Commonwealth, 361 S.W.3d 922, 924 (Ky.2012). We are to “derive that intent, if at all possible, from the language the General Assembly chose, either as defined by the General Assembly or as generally understood in the context of the matter under consideration.” Id. And “[ojnly if the statute is ambiguous or otherwise frustrates a plain reading, do we resort to extrinsic aids such as the statute’s legislative history or the canons of construction.” Id. The plain meaning of the phrase “actual custody” is not difficult to discern — it means a person in fact having care and control of a child — and thus there is no need to resort to examining linguistic alternatives not chosen by the General Assembly15 or a sociological history of the time when the statute was passed. It is very possible— indeed, easy for once — to derive the legislative intent from the language used here.
The term “actual custody” is intended to apply to persons who have been given care and control of a child. Obvious examples include teachers, relatives, and babysitters into whose care a child is entrusted while a *831parent is away. Thus, the defendant in Davis v. Commonwealth, 967 S.W.2d 574 (Ky.1998), was properly convicted, because the child had been temporarily left in his care while the mother was absent and he had allowed another child to hit the victim in the face while under his care.
When the parent is present, however, a non-parent like Staples cannot have actual custody. The proof in this case shows that either Staples or the child’s mother, Brittany Garcia, caused the injuries. But if the child’s mother caused the injuries, then she was necessarily present and had assumed the full mantle of custody of the child, along with all concomitant duties and rights, chief amongst which is a constitutionally protected “interest ... in the care, custody, and control of their children.” Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). In such an instance, the mother’s legal custody — and status as an actual parent — necessarily displaced any temporary custody that Staples might otherwise have had. Staples may have had “actual custody” when he was caring for the child in the mother’s absence, as the defendant in Davis did, but once the mother returned, she took up actual custody of the child.
The majority attempts to dismiss the significance of the mother’s status as legal custodian, claiming that the Penal Code is focused only “on criminal conduct and its consequences.” Ante at 818. This ignores the fact that the legal consequences of a mother’s status as a child’s biological mother and legal custodian do not evaporate in the face of the criminal law. Such consequences persist and control the rights and obligations of people absent a superseding right or obligation. A parent’s right to the care, custody, and control of her child is legally (though maybe not morally) superior to that of a non-parent with no legal tie or claim on the child. Nothing in KRS 508.100 changes that hierarchy.
That Staples had actual custody of the child when she was left in his care during the mother’s absence does not change this when the mother is present. And while Staples could have some delegated right to discipline and care for the child when the mother was present, if she gave him such permission, there is no question that his right was subsidiary and inferior to the mother’s and could be superseded by her at will. Indeed, the flaw in the majority’s understanding of “actual custody,” and its alleged independence from the notion of legal custody, is illustrated by the fact that the source of Staples’ authority over the child is the child’s mother. Without her delegation of authority to him, he had no authority, and thus could not legally control or discipline the child. Thus, Staples’ supposed actual custody of the child is inextricably linked to the mother’s legal status as the child’s biological mother and legal custodian with the power to disallow Staples any authority over the child.
When the mother was present, Staples’ authority was bound by what she permitted him to do with the child, and she had full legal authority to tell him to stop any action he might be taking toward the child. He had no such authority in return. For him to actually have custody of the child, she had to vacate the scene and leave him as the sole or at least highest authority over the child. When she was present, he simply was not the highest authority over the child. She was.
I agree with the majority to the extent that the use of the phrase “actual custody” was intended to expand the scope of liability for criminal abuse beyond a parent to include babysitters, day-care workers, and other situations where (and when) a non-parent is entrusted with full control of the child. But I cannot concur that the phrase *832was meant to capture every person living with the actual parent and child and having substantial child-care responsibilities.
That this leads to an extreme position— especially in light of increasingly common non-traditional living arrangements— should be obvious. The majority’s view of the statute would extend criminal liability — for both abuse and complicity to homicide — to an elderly mother who lives with a daughter and engages in frequent care of the daughter’s child, if the daughter abuses the child. The same could be said for a parent’s sister, or cousin, or an older daughter — if they at any time substantially assist in parenting. And the list doesn’t stop there. What about a mere roommate? Or a boarder who pays rent by providing child care and groceries? Or a live-in nanny who, in many circumstances, might have a closer relationship with the child than its parents? The majority’s reading of the statute does not apply only to live-in boyfriends and girlfriends. Surely the General Assembly did not intend the statute to have such reach. Indeed, we have already said that the “legislature presumably did not intend to extend criminal liability to every person having temporary care or charge of a child.” Davis, 967 S.W.2d at 581. Yet that is arguably exactly what the majority’s reading does, as long as the child care is a “substantial responsibility.”
Of course, the majority adds the qualifier that the defendant must also have “a continuing parent-like role.” But this applies to all the categories listed above. And if the legislature intended “actual custody” to apply only to live-in boy- or girlfriends filling the slot of the other parent, it would have said so. But anyone with enough responsibility for the care of a child could be viewed as having a “parent-like role” in the child’s life and thus would be subject to criminal liability for failing to step between the mother and child. While doing so would be a courageous and morally responsible act, failing to do so should not give rise to criminal liability. And indeed, I don’t think it does under these statutes.
The more troubling aspect of the majority’s reading is that it requires a person in Staples’ position to intercede between the actual parent and her child. There are numerous ways to accomplish that, from physically touching or physically restraining the parent to removing the child from the immediate situation or even from the home to prevent the abuse-all of which are in themselves other criminal acts. If a person were to touch the parent (such as by restraining, pushing, or even hitting), the person has likely committed at least assault in the fourth degree, KRS 508.030, or menacing, KRS 508.050, and possibly second-degree unlawful imprisonment, KRS 509.030. And if the person removes the' child, he has committed at least custodial interference, KRS 509.070, if not kidnapping, KRS 509:040(l)(f). While such a person would likely have a defense, such as protection of others, KRS 503.070, choice of evils, KRS 503.030, or prevention of a crime, KRS 503.100, he could nevertheless be charged with a potentially serious crime and face trial. Thus, if the majority’s reading stands, it requires a person to choose between committing one crime that is covered by a statute only through a tortured reading or a crime that is clearly covered by statute and to which he might have a defense. Both options cannot expose the person to criminal liability. Otherwise, he faces a penalty, one way or the other, solely for another person’s conduct — without being an accomplice or a .facilitator.
The majority buttresses its reading of the statute by pointing out that several other states have read similar statutes to *833extend liability to live-in boyfriends and step-parents. First, such interpretations in other jurisdictions are at best persuasive authority and do not bind this Court.
Second, many of the statutes interpreted by those courts are actually very different from our own. For example, in the case discussed at length by the majority, Hawkins v. State, 910 S.W.2d 176, 178 (Tex.App.1995), the statute premised liability on the defendant having “care, custody, or control” of the child, not “actual custody.” More importantly, the operative phrase— “care, custody, or control” — is specifically defined in Texas law, and it is defined broadly. See Texas Penal Code Ann. § 22.04(d) (“the actor has assumed care, custody, or control if he has by act, words, or course of conduct acted so as to cause a reasonable person to conclude that he has accepted responsibility for protection, food, shelter, and medical care for a child”). Our statute, of course, includes no such broad definition.
Similarly, the statute in Commonwealth v. Brown, 721 A.2d 1105 (Pa.Super.Ct.1998), created liability for a “person supervising the welfare of a child under 18 years of age.” Id. at 1107 (quoting 18 Pa. Cons.Stat. Ann. § 4304). That too is a broader concept than a person having “actual custody.”
And the statute at issue in Leet v. State, 595 So.2d 959 (Fla.Dist.Ct.App.1991), had no requirement of “custody,” “care and control,” “actual custody,” or any similar term. Instead, the question of the defendant’s liability turned on whether he, as a non-parent, could “permit” the child to be abused. Id. at 962. Again, our statute is very different.
And at least one other case cited by the majority found liability under a wholly different theory than simply being a custodian (real, actual, legal, or otherwise). See Commonwealth v. Torres, 442 Mass. 554, 818 N.E.2d 1261, 1272 (2004) (premising liability on principal and “joint venture” theories, the latter of which is very much like our complicity liability, not on a statute giving rise to liability for failing to stop another person from inflicting abuse).
The net effect of the majority opinion is that it criminalizes a person’s respect for a parent’s right to control his or her child without interference from a third party— despite that right having constitutional protection. While child abuse is not included within that protection, the majority’s reading of the statute places the burden of deciding when the line is crossed from control to cruelty and abuse on the third party. That cumbersome legal duty has no footing in the statutory language.
I agree that there is a moral duty to intercede in such a situation, but that does not give rise to a legal duty. Because Staples had no actual custody, he could not have committed criminal abuse under a permitting-abuse theory. Additionally, he did not have a legal duty to prevent such abuse sufficient to give rise to accomplice liability for the child’s death.
To reach this latter conclusion, however, I must also conclude that a legal duty does not arise elsewhere. The majority does not address this because it finds a legal duty in the criminal abuse statutes, but I find that Staples also had no other legal duty.
The question of complicity liability arising from a person’s legal duty to prevent another person’s violence against a child has been addressed in a series of cases from this Court. In the first of these cases, Knox v. Commonwealth, 735 S.W.2d 711 (Ky.1987), the defendant, who was the mother of the child victim, was convicted of complicity to rape for failing to prevent the child’s father from raping the child. The Court held, that a mother had no *834affirmative legal duty to intervene to prevent her daughter’s rape. Id. at 712. The Court noted that it knew of “no higher moral duty than that of preventing such a crime,” but that “a moral duty to take affirmative action is not enough to impose a legal duty to do so.” Id. at 711-12 (citing 1 Wayne R. LaFave & Austin W. Scott, Substantive Criminal Law 284 (1986)) (emphasis added). The Court could not find that such a duty existed in either the criminal statutes or in the common law.
However, the Court reversed Knox with respect to parents in Lane v. Commonwealth, 956 S.W.2d 874, 875-76 (Ky.1997), holding that a mother has a legal duty to make a reasonable attempt to prevent her boyfriend from committing assault against her child. In that case, the mother was prosecuted for assault under a complicity theory (rather than criminal abuse as a principal under a permitting-abuse theory). While five members of the Court agreed that a legal duty existed sufficient to create accomplice liability, no majority could agree as to the source of the duty.
Three justices agreed that the source of the duty was KRS 620.010, the child-abuse reporting statute. The plurality stated that this statute “creates an affirmative duty for the parent of a child to prevent such physical injury which would result in an assault on that child.” Id. at 875. Though the plurality also cited and discussed other statutes — KRS 405.020 (the nurturing statute), and KRS 508.100 et seq. (the criminal abuse statutes) — it declined to find a legal duty from those statutes alone, though they clearly informed the justices’ understanding of the reporting statute.
The other two concurring justices agreed that a parent has a legal duty to prevent harm, but found that it arose from the “special relationship” between a legal custodian and a child. Id. at 877 (Cooper, J., concurring). The concurring justices found that this special relationship (and concomitant legal duty) was found both in the common law and in the nurturing statute and criminal-abuse statutes creating liability for allowing abuse to occur to a child in one’s actual custody. Id. at 881.
Recently, this Court reiterated the core holding of Lane that a parent can be held criminally liable under a legal-duty theory of crime against his or her child.16 Bartley v. Commonwealth, 400 S.W.3d 714, 729 (Ky.2013). Specifically, this Court stated “that even the violent acts of a third person can implicate a parent’s duty under KRS 405.020 to nurture his or her child and that breaches of that duty can, at least in conjunction with other indications that the General Assembly intended criminal sanctions, amount to criminal conduct.” Id. Such liability springs from a legal duty, which in turn springs from the parent-child relationship.
Of course, Appellant was not the child’s father in this case. He was only the mother’s boyfriend, and had no relationship with the child other than living in the same household and caring for her some of the time. Appellant had no other formal or *835legal relationship with the child. Thus, the legal duty of a parent to a child as laid out in Bartley and Lane is not applicable here.
The question, then, is whether a legal duty to prevent harm exists outside the parent-child relationship when the defendant does not have actual custody of the child. The concurring justices in Lane suggested that it does, but again only in limited circumstances, namely, where there is a “special relationship,” such as legal custody. Lane, 956 S.W.2d at 877 (Cooper, J., concurring). Thus, for the concurring justices, liability could extend to a governmental entity having custody of a child. Id.
Staples, however, did not have legal custody or anything approaching a formal or legal relationship of any kind with the child. It would be a great leap to hold that the same legal duty exists for a parent and a person with no legal relationship or kinship to the child, and is not at the time of the crime acting in loco parentis or with some other legal status toward the child. While Lane overruled Knox to the extent that it said a parent has no duty to protect a child, the statement in Knox that “a moral duty to take affirmative action is not enough to impose a legal duty to do so,” Knox, 735 S.W.2d at 711-12 (emphasis added), remains an unwavering tenet of criminal law.
Indeed, as to homicide specifically, this Court recently stated:
The law recognizes that under some circumstances the omission of a duty owed by one individual to another, where such omission results in the death of the one to whom the duty is owing, will make the other chargeable with [homicide]. This rule of law is always based upon the proposition that the duty neglected must be a legal duty, and not a mere moral obligation. It must be a duty imposed by law or contract, and the omission to perform the duty must be the immediate and direct cause of death.
Bartley, 400 S.W.3d at 724 (quoting West v. Commonwealth, 935 S.W.2d 315, 317 (Ky.App.1996)) (alteration in original, emphasis added); see also Wayne R. LaFave, Substantive Criminal Law § 6.2 (2012) (“For criminal liability to be based upon a failure to act it must first be found that there is a duty to act — a legal duty and not simply a moral duty”). For that reason, this Court has usually been careful not to impose a legal duty when one has not been clearly defined by statute or delineated by the common law.
Staples had neither actual custody of the child victim nor a special or other relationship with her that might have given rise to a legal duty to protect her. He therefore cannot be convicted under a complicity theory based on his duty to prevent harm to the child.
Again, I recognize that there would be a clear moral duty to intercede in such a case. That Staples would deserve the most damning moral opprobrium and condemnation had he failed to try to stop the mother is without question. But moral duties do not per se equate to legal duties.
Unlike the Court in Knox, I cannot find a statutory or common law source for a legal duty on Staples, who was not a parent or custodian of the child at the time of the fatal injuries. However morally deplorable his conduct may have been if he failed to prevent the mother from engaging in the conduct that led to her daughter’s death, Staples had no legal duty to prevent such conduct.
Finally, there was little if any evidence, at least as described in the briefs, that Staples was present for any abuse committed by the mother. At best, the evidence showed that he was present in the apart*836ment when the abuse occurred, but he easily could have been in another room and not seen the mother’s conduct. Thus, beyond the legal failings of the majority’s view of Staples’ liability, there appear to-have been substantial evidentiary flaws in that portion of the Commonwealth’s case. Based on the briefs, this appears to have been another ground on which to reverse Staples’ convictions. And given that there was evidence to directly implicate Staples as the actual perpetrator of the abuse, including a jailhouse confession to another inmate that he was rough with the child and hated her because she was not his, there was no valid reason to pursue a complicity charge.
To. reiterate, the Commonwealth’s theory that Staples had actual custody of the child and thus committed criminal abuse by allowing the child’s mother to abuse the child is legally unsupported. Similarly, the Commonwealth’s theory that Staples had a legal duty arising from his actual custody to prevent the child’s mother from killing her and thus was complicit to manslaughter is legally unsound. Because the jury instructions included these theories, the convictions should be reversed.
VENTERS, J., joins.
. Under KRS 502.020, a person is guilty of an offense committed by another person when "he ... [hjaving a legal duty to prevent the commission of the offense, fails to make a proper effort to do so.”
. No doubt, the majority would argue that this plain meaning sounds suspiciously like standing in loco parentis, and thus the choice not to employ the Latin phrase is meaningful and requires us to look beyond plain meaning. But the General Assembly's choice is more readily explained by the requirement that statutes "be written in nontechnical language and in a clear and coherent manner using words with common and everyday meanings.” KRS 446.015.
. Technically, the Court did not address the notion of complicity under a legal-duty theory, and instead addressed direct liability under a legal-duty theory where the criminal act can be an “omission to perform a duty which the law imposes upon [a person] and which he is physically capable of performing.” Bartley v. Commonwealth, 400 S.W.3d 714, 729 (Ky.2013) (quoting KRS 501.030(1)). Still, the concept — criminal liability based on a duty to prevent harm — is the same. The existence of direct or principal liability under KRS 501.030 for failing to perform a legal duty, however, suggests that there is some redundancy in the complicity statute’s also creating liability, albeit accomplice liability, for failing in a legal duty. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283604/ | VENTERS, J.,
Concurring in Part and Dissenting in part.
I join Justice’ Noble’s separate opinion because I agree with her view as to the meaning of “actual custody” in the context under review here. But, I write separately to highlight an additional flaw of the majority opinion. Because “actual custody” of the abused child is an essential element of first-degree criminal abuse under KRS 508.100, the jury was expressly instructed that it had to believe Staples had “actual custody” of his girlfriend’s child when the injury occurred. As the majority clearly acknowledges, the meaning of “actual custody” is not obvious and, in fact, the majority devotes several pages of its opinion explaining its conception of “actual custody.”
However, this new articulation of “actual custody” is of no import unless the jury charged with determining Staples’ guilt was made aware of it. The jury, however, was never instructed to apply this new definition of “actual custody” and, we have no idea what meaning the jury may have ascribed to that phrase. Moreover, we have no reason to believe that the jury unanimously settled upon the same meaning of “actual custody” as decreed in the majority opinion, thereby casting serious doubt upon whether Appellant’s criminal abuse conviction was pursuant to a unanimous verdict. See Kingrey v. Commonwealth, 396 S.W.3d 824, 880 (Ky.2013), quoting KRS 29A.280(3) (“A unanimous verdict is required in all criminal trials by jury.”).17 Having established the definition of a term to dispel the inherent ambiguity of the statutory language, it is now incumbent upon the majority to remand the case for retrial based upon instructions consistent with this newly formulated definition. That is exactly what we did in McClellan v. Commonwealth, 715 S.W.2d 464, 468 (Ky.1986) when this Court fashioned a definition for the statutory term “extreme emotional disturbance,” which *837like “actual custody,” is used, but not de-, fined, in the criminal statutes. The failure of the majority to afford Staples a trial based upon its newly articulated conception of “actual, custody” is a violation of his fundamental due process rights under the Fifth and Fourteenth Amendments of the United States Constitution. Middleton v. McNeil 541 U.S. 433, 437, 124 S.Ct. 1830, 158 L.Ed.2d 701 (U.S.2004) (“In a criminal trial, the State must prove every element of the offense, and a jury instruction violates due process if it fails to give effect to that requirement.”). Absent a definition of “actual custody” for the jury to apply, I am unable to understand how the Commonwealth could have proven this element of first-degree criminal abuse. To the contrary, this element may only be proven by a new trial applying the definition of “actual custody” the Majority adopts today.
NOBLE, J., joins.
. The Majority’s suggestion that Appellant is not entitled to a new trial because he did not request a definitional instruction is unpersuasive. This position is in diametric opposition to our well established rule that “erroneous jury instructions are presumed to be prejudicial. And the right to a unanimous verdict is a substantial right; the violation of which we have held requires reversal. So the denial of [Appellant’s] right to a unanimous verdict is a fundamental error.” See Kingrey, 396 S.W.3d at 831-32 (citations and internal quotes omitted). . | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283606/ | Opinion of the Court by
Justice SCOTT.
I. BACKGROUND
In 1999, a Laurel Circuit Court jury found Appellee, Leslie Lawson, guilty of second-degree arson, second-degree burglary, and of being a first-degree persistent felony offender (PFO), for which Ap-pellee was sentenced to a total of eighty years’ imprisonment. However, it is uncontested that the trial court erred by giving Appellee only nine peremptory strikes during voir dire, instead of the eleven to which he was entitled. RCr 9.40. Due to Appellee’s counsel’s failure to preserve the error at trial, this Court declined to review the issue of strike misallocation on direct appeal, and confirmed Appellee’s conviction.. Lawson v. Commonwealth, 53 S.W.3d 534 (Ky.2001). Because of counsel’s failure to object, Appellee ultimately filed a motion pursuant to RCr 11.42 to vacate his sentence for ineffective assistance of counsel (IAC).
Thereafter, the trial court issued an order denying Appellee’s motion without an evidentiary hearing. Appellee appealed this issue to the Court of Appeals, which reversed the order of the trial court and remanded the matter for an evidentiary hearing on whether Appellee was prejudiced by his counsel’s error.
At the evidentiary hearing, Appellee claimed he would have used his two other peremptory strikes on Jurors 44 and 47, asserting that during voir dire: (1) neither juror was forthcoming in answering questions, (2) Juror 47’s body language made her appear biased in favor of the Commonwealth, and (3) these two jurors had “gathered together” when the video record was not recording.
Following review, the trial court found Appellee’s allegations were not supported by the trial record, and thus, were not *845credible, leading the trial court to deny Appellee’s RCr 11.42 motion. Appellee again sought review from the Court of Appeals, which rejected the findings of the trial court and reversed the trial court’s decision to deny Appellee’s motion, finding that Appellee had sufficiently proven his IAC claim.
Appellant, the Commonwealth of Kentucky, then sought discretionary review of the Court of Appeals’ decision arguing that: (1) the Court of Appeals improperly relied on Shane v. Commonwealth, 243 S.W.3d 336 (Ky.2007), in rendering its opinion; (2) the Court of Appeals improperly found the prejudice prong of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) was satisfied; and (3) the Court of Appeals improperly created a per se reversal rule using Shane. We granted review and now reverse the Court of Appeals for reasons that follow.
II. ANALYSIS
A. Timing and Applicability of Shane v. Commonwealth
The Commonwealth argues that the Court of Appeals improperly applied Shane retroactively. 243 S.W.3d 336. Specifically, the Commonwealth argues that because Shane does not apply to post-conviction cases, and was not the law at the time of Appellee’s conviction, it does not apply to the present case.
In Shane, the trial court erred in failing to strike a juror for cause, forcing Appellant to, instead, use a peremptory strike. Such an error was grounds for reversal without a determination of whether the error was harmless, as it constituted a violation of a substantial right, for reasons that: “an entitlement ... has been given to a defendant by way of process, and if an act of the trial court negates that process, reversal is required.” Id. at 340-41.
However, Shane is readily distinguishable from the case at bar, as it was decided on direct appeal in which the error was preserved at trial, as opposed to an RCr 11.42 claim like the present case, in which Appellant alleges IAC in a collateral attack on his conviction. Moreover, there is a clear delineation between RCr 11.42 motions and direct appeals:
First, the standards governing relief on RCr 11.42 motions are more stringent than those governing direct appeals. As the Court of Appeals has noted, “[tjhere are errors which would require reversal on direct appeal but which do not justify vacating a judgment of conviction by a motion under RCr 11.42.” So the putative per se reversal rule for improper allocation of peremptory challenges that may apply on direct appeal cannot be mechanically applied to collateral attacks on the judgment of conviction.
Commonwealth v. Young, 212 S.W.3d 117, 121 (Ky.2006) (citing Schooley v. Commonwealth, 556 S.W.2d 912, 917 (Ky.App.1977)).
The importance of peremptory challenges on direct appeal and Shane simply does not impact analysis in the context of a collateral attack. In Shane, “the correct inquiry is ... whether [the error] deprived the defendant of a substantial right.” 243 S.W.3d at 341. There, this Court found that peremptory strikes are a substantial right, and that deprivation of a substantial right cannot be deemed harmless on direct appeal. Id. at 340-41. Therefore,- the Court of Appeals mistakenly applied this reasoning to the present case involving a collateral attack, finding that the mere fact that Appellee was deprived of two peremptory challenges meant he automatically suffered prejudice. This, of course, is inconsistent with the analysis required in IAC cases. See Strickland, 466 U.S. at *846693, 104 S.Ct. 2052; Young, 212 S.W.3d at 121.
The Commonwealth also argues that Shane cannot be considered persuasive authority because it was decided after Appellant’s conviction. In Leonard v. Commonwealth, 279 S.W.3d 151 (Ky.2009), this Court addressed when new rules can be retroactively applied. Notably, we held that new rules to be applied within a collateral attack itself can be retroactively applied to cases already closed on direct appeal, as long as the collateral attack is still open. However, Shane deals with a new rule to be applied on direct appeal, not on collateral attack. Because Appel-lee’s direct appeal has already been finalized, Shane does not retroactively apply to this collateral attack.
As even Appellee notes, Thomas v. Commonwealth, 864 S.W.2d 252 (Ky.1993), was the law in place at the time of Appellee’s trial and appeal. Furthermore, it would not matter whether Shane or Thomas applied. Like Shane, Thomas was a direct appeal case which held that peremptory challenges were a substantial right of the defendant. Thomas, 864 S.W.2d at 259.1 Although both eases elevated the importance of the right to peremptory strikes, both are limited to direct appeals. Therefore, regardless of whether Thomas or Shane applied, the conclusion is the same, because neither case applies to collateral attacks.
Thus, the Court of Appeals erred in relying on Shane in reversing the decision of the trial court.
B. Strickland Prejudice Analysis
Kentucky courts have adopted the two-prong analysis established in Strickland, 466 U.S. 668, 104 S.Ct. 2052, to determine whether to invalidate a criminal conviction based upon a claim of IAC. Strickland requires that: (1) the court find that counsel was ineffective, and (2) that the client suffered demonstrable prejudice as a result of that ineffective assistance.2 Id. at 693, 104 S.Ct. 2052.
In performing its analysis, the trial court found that Appellee satisfied the first prong of Strickland given his counsel’s failure to object to the strike misallocation. However, it went on to determine that Appellee failed to satisfy the second prong, given that he could not demonstrate that his inability to strike these two jurors resulted in any demonstrable prejudice.
The second prong of Strickland requires “demonstrable prejudice.” See Young, 212 S.W.3d at 121. As this Court explained further in Young, “our focal point must be on whether [the defendant] received a fundamentally fair and reliable trial.... ” Id. at 122. In Young, appellant’s counsel failed to object to an improper allocation of peremptory strikes, id. at 118, but the appellant’s RCr 11.42 motion was denied because he did not “allege any identifiable prejudice at trial that resulted from his counsel’s alleged error,” id. at 122.
Here, although Appellee alleges that he suffered prejudice based upon the *847fact that he was not allowed to strike two specific jurors, the trial court found that the record did not support Appellee’s allegations. For example, Appellee claimed that Juror 47 did not appear “forthcoming with her answers” during voir dire. However, the trial record shows that Juror 47 was never asked any direct questions during voir dire. The same was true for Juror 44. Additionally, Appellee stated that he did not like the “vibes” he was getting from Juror 47, and thought she was showing favoritism toward the Commonwealth, but could not articulate a specific reason why. Finally, Appellee testified that Jurors 44 and 47 were “gathering together” during voir dire, yet the trial recording of voir dire indicates that the two jurors sat nowhere near one another.3
We agree with the trial court that Ap-pellee failed to demonstrate how he was prejudiced by not being able to strike these two jurors. Simply stating that he would have stricken them is not sufficient to satisfy demonstrable prejudice, because there is no indication that he received anything less than a reliable trial. As the trial court reasoned, to find prejudice merely because Appellee identified two jurors he would have stricken would be no different than creating a per se reversal rule in IAC cases.
Similar to the present case, in Gillie v. Commonwealth, 2006-CA-000325-MR, 2007 WL 706846 (Ky.App. Mar.9, 2007), the defendant made an RCr 11.42 motion alleging IAC. Though the case is hot binding authority, in Gillie the defendant also named the juror he would have stricken with the peremptory strike he was denied. Id. There, the trial court also concluded that even though the defendant argued he did suffer a specific, identifiable prejudice as a result of his counsel’s error, the actual findings did not support the defendant’s claim. Id. The trial court further determined that the defendant lacked credibility, and thus his testimony carried no indi-cia of trustworthiness. Id. Because the trial court rejected the defendant’s contentions about the juror he allegedly would have stricken, the court found that the defendant failed to establish any demonstrable prejudice. Id.
In the present case, the Court of Appeals reversed the trial court, holding instead that both prongs of Strickland were satisfied because Appellee’s counsel erred to the substantial detriment of his client. In doing so, it rejected the credibility findings of the trial court, and made the peremptory strike error grounds for per se reversal. The Court of Appeals reasoned that because deprivation of a peremptory strike in Shane, 243 S.W.3d 336, was considered a violation of a substantial right, and therefore could not be held harmless, analogously, the misallocation of strikes here should result in an automatic finding of prejudice. Shane, 243 S.W.3d at 343. However, because Shane is distinguishable from the present case, as discussed in detail above, we find no merit in this holding.
This Court has long held that the trial court is in the superior position to judge witness credibility and the weight to be given to witness testimony. Kotas v. Commonwealth, 565 S.W.2d 445, 447 (Ky.1978). Such judgment is critical in a Strickland analysis to determine whether an Appellant has shown “demonstrable prejudice” resulting from his counsel’s error. Young, 212 S.W.3d at 121.
*848In the present case, Appellee claimed he was prejudiced as a result of not being able to strike two jurors whom he claimed were biased in favor of the Commonwealth. The trial court was in the superi- or position to judge the credibility of that claim, and to determine whether the evidence satisfied the prejudice prong of Strickland. The trial court found, just as the court in Gillie, that Appellee’s claims were not credible, and thus, no demonstrable prejudice resulted from counsel’s error.
Therefore, the trial court appropriately determined that Appellee failed to satisfy the second prong of Strickland. For these reasons, we reverse the Court of Appeals’ opinion on this issue and reinstate the trial court’s ruling.
C. Per Se Reversal
Lastly, Appellant argues that the Court of Appeals improperly made a per se reversal rule. Specifically, Appellant alleges that by improperly relying on Shane, the Court of Appeals created an automatic grounds for reversal when peremptory strikes are misallocated on collateral attack.
The Court of Appeals noted the importance of peremptory strikes in Shane, where misallocation of strikes was automatic grounds for reversal, and applied the same rule to the present case. However, as we previously established, Shane is distinguishable and inapplicable to IAC cases. Thus, we do not find it necessary to address this argument further.
III. CONCLUSION
For the aforementioned reasons, we reverse the Court of Appeals and reinstate the trial court’s denial of Appellee’s RCr 11.42 motion.
MINTON, C.J.; ABRAMSON, CUNNINGHAM, and VENTERS, JJ., concur.
NOBLE, J., dissents by separate opinion which KELLER, J., joins.
. Thomas was overruled by Morgan v. Commonwealth, 189 S.W.3d 99 (Ky.2006), which held that peremptory challenges were not a substantial right. Morgan was then overruled by Shane.
. We acknowledge Justice Noble’s dissent, however, we believe that the attorney’s negligence in this case does not require reversal of Appellant's conviction because there was no demonstrable prejudice as a result of that negligence, as required by the second prong of Strickland. To reverse on this issue under these facts would create an exception, bypassing our long-term allegiance to the Strickland analysis in these situations.
. While Appellee claimed that this "gathering together” occurred during times when the video record was not recording, we find this unpersuasive as well. When the recording is turned off, court is not in session and jurors are free to move around and talk to one another, and many do just that. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283607/ | NOBLE, J.,
DISSENTING:
Respectfully, I believe the majority mis-perceives the argument in this case based on Shane v. Commonwealth, 243 S.W.8d 336 (Ky.2007). Appellee Lawson is not claiming that Shane requires reversal of his conviction on this collateral claim. Instead, he claims that his attorney’s negligence requires reversal through this collateral attack. Lawson claims that his trial counsel was ineffective because he did not object, and thus preserve the error, when the trial court failed to give him the eleven peremptory strikes to which he was entitled at trial. Instead, he received only nine. This court held in Shane that peremptory strikes were the grant of a substantial right under Kentucky law, and that error in allowing full and free use of peremptory strikes required reversal of the defendant’s conviction.
Negligent representation by trial counsel that caused the loss of two peremptory strikes deprived Lawson of that substantial right. If a right is substantial, then its loss cannot be anything but prejudicial. It cannot be reasonably argued that this loss of peremptory strikes was trial strategy. Thus the attorney’s failure did cause prejudice to Lawson as prejudice is defined in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
It is not debatable that counsel was ineffective in failing to obtain Lawson’s full number of peremptory strikes. Thus, the first prong of the Strickland test is met. Under the second prong, demonstrable prejudice, Lawson was not required to show how his use of those two peremptory strikes would have affected the outcome of *849the trial, as the majority states. Instead, because of what a peremptory strike is under Kentucky law — a substantial right— he had only to show that he was deprived of that right. That showing alone establishes prejudice. Shane, 243 S.W.3d at 339. This is no different than if he were denied the right to cross examine a witness, or to offer proof if he wished. The fundamental nature of these rights is such that no trial can be fair in their absence. Prejudice is demonstrated when the right is denied by the attorney’s negligence. Thus, Lawson has shown all that was necessary to prove his ineffective assistance of counsel claim. It is also true that the actual denial of the peremptory strikes would require reversal on a direct appeal, but here the ground for reversal is that the attorney negligently lost Lawson two peremptory strikes.
Consequently, I would affirm the Court of Appeals.
KELLER, J., joins. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283608/ | OPINION
COMBS, Judge:
Steve Jones appeals the February 21, 2013, judgment of the Boyd Circuit Court which held that he had failed, in part, to mitigate his damages in an action for recovery of unpaid rent and conversion. After our review, we affirm in part, reverse in part, and remand for entry of judgment consistent with this opinion.
The appellee and defendant below is Marquis Terminal, Inc. Ross Brothers Construction Company is the parent company of Marquis. The evidence at trial indicated that a supervisor of Ross Brothers had arranged for three belt conveyors to be transported to a Marquis job site at AK Steel in January 2011. The conveyors were used to unload coke from river barges for screening and transport by rail. *851The conveyors were integral to Marquis’s business at the job site. They were owned by Steve Jones, the appellant and plaintiff below.
On January 8, 2011, Jones advised Marquis by letter that the cost of rental of the equipment was $125 per day x 3 for a total of $375 per day for all three conveyors. He demanded that the equipment be returned to him if Marquis declined to sign a formal lease agreement. On January 15, 2011, Jones sent Marquis an invoice for $7,927.50. However, no formal lease agreement was produced.
On February 1, 2011, Jones filed an action against Marquis seeking to recover the rental value of the conveyors for the period during which Marquis retained possession of the equipment. He also sought an injunction for the immediate return of his equipment. No hearing was requested, however, and no injunction was issued.
On February 18, 2011, Marquis tendered a check for equipment rental in the amount of $7,875.00 ($52.50 less than the face amount of the invoice of January 15, 2011). Marquis did not return the equipment. Although Jones continued to send invoices for equipment rental, Marquis never issued another check.
In June 2011, the parties were ordered to attend mediation. In August 2011, Jones filed a motion to have the matter set for trial. A jury trial was scheduled for April 23, 2012. Jones filed an amended complaint on February 3, 2012, asserting a claim for conversion against Marquis. Over Jones’s objection, the trial was continued. The matter was eventually set for a bench trial to be conducted on November 19, 2012. The bench trial was ultimately conducted on January 23, 2013.
Marquis’s former comptroller, Elizabeth Hall, testified at trial. Hall indicated that Marquis had been aware that it owed an additional $21,262.50 to Jones as of May 27, 2011, for the equipment rental. She explained that invoices for the equipment rental had gone unpaid because of limited cash flow in the business.
Following presentation of the evidence, the trial court found that Marquis agreed to rent the equipment and knew that it was obligated to pay Jones’s invoices. The court found that Marquis utilized the equipment through June 2011, but that it had failed to make the agreed rental payments. The court found that while the equipment was still in Marquis’s possession at the time of trial, Jones was not entitled to recover rent “after he should have taken steps to mitigate his damages and recover his equipment.” Judgment at 7. The court did not allow Jones to recover for the ongoing use of the equipment up to and including the entry of judgment on February 20, 2013. Instead, it concluded that Marquis owed Jones $67,125.00 to cover rental costs for only 179 days. The sum of $7,875.00 (Marquis’s only payment) was subtracted from the total, leaving a balance of $59,250.00. That figure was computed based upon the trial court’s conclusion that Jones had a duty to mitigate damages by forcing the issue as of June 30, 2011 — despite the fact of Marquis’s actual use of it for a far longer period of time. The court ordered Marquis to return the equipment to Jones.
On appeal, Jones contends that the trial court erred: by improperly computing his damages; by failing to award pre-judgment interest; and by failing to consider his allegation that Marquis’s retention of the equipment under the circumstances amounted to conversion. We shall address each of these contentions.
Since this matter was tried before the circuit court without a jury, our review is governed by the provisions of Kentucky Rule[s] of Civil Procedure (CR) 52.01. *852Under this rule, findings of fact cannot be set aside unless clearly erroneous. Id. Findings of fact are not clearly erroneous if they are supported by substantial evidence. Owens-Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409 (Ky.1998). However, the trial court’s application of the law to the facts as it finds them is subject to our plenary review. A & A Mechanical, Inc. v. Thermal Equipment Sales, Inc., 998 S.W.2d 505 (Ky.App.1999).
Jones contends that the trial court failed to compute his contract damages correctly. He claims that he is entitled to the payment of rent at the agreed rental rate for the entire period during which Marquis retained possession of the equipment. Therefore, he argues that the trial court erred by concluding that he failed to mitigate his damages after June 30, 2011. We agree.
A party claiming damages for breach of contract is obligated to use reasonable efforts to mitigate his damages. Deskins v. Estep, 314 S.W.3d 300 (Ky.App.2010). The injured party must act reasonably so as not to enhance the damages caused by the breach. 22 Am.Jur.2d Damages § 353 (2010). However, his efforts to minimize or avoid losses need not be unduly risky, expensive, burdensome, or humiliating.' See 24 Williston on Contracts § 64:27 (4th ed.2010). The party committing the breach bears the burden of proving that the plaintiff failed to mitigate his damages.
In this case, the trial court found that by the end of June 2011, Jones should have sought injunctive relief to recover the equipment. The court observed that Jones never sought an order authorizing him to go onto the property of AK Steel to confirm that his equipment was being utilized by Marquis; nor did he secure a court order directing the return of the property. In its brief, Marquis argues that Jones was under an obligation to prevent Marquis from retaining the equipment when it was evident that it would not pay the rent. Marquis also relies on evidence indicating that Jones declined its offer to purchase the equipment from him.
Marquis has not produced sufficient evidence to establish that Jones failed to mitigate his damages in this matter. Under the terms of the parties’ agreement, Marquis was plainly under a duty either to pay the rental cost or to return the equipment to Jones. Once Marquis realized that it could not pay under the terms of the agreement, Marquis could have — and arguably should have — returned the equipment. Thus, it had an opportunity to mitigate damages itself. Instead of doing so, it elected to retain and to use the equipment.
Marquis’s evidence did not establish that Jones allowed his damages to accumulate unreasonably. We cannot agree that Jones had any obligation to elect either to sell his equipment to Marquis or to secure the court’s intervention before he filed this action against Marquis in February 2011. The evidence indicates that Jones took reasonable steps to minimize the losses resulting from Marquis’s blatant breach of the agreement. It does not indicate that he sat idly by and permitted the damages to accrue. Consequently, Jones’s recovery should not be limited by any alleged failure to mitigate damages. Instead, he is entitled to contract damages in accordance with the terms of the parties’ agreed rental rate multiplied by the number of days that Marquis actually retained the equipment. And so, we reverse on this issue.
We next address Jones’s contention that the trial court erred by failing to award pre-judgment interest. Jones argues that he is entitled to pre-judgment interest as a matter of course since the *853parties’ contract provided a fixed rental rate and his damages could be determined by reference to that rate. We agree.
An award of pre-judgment interest in a contract case is controlled by the Restatement (Second) of Contracts § 354 (1981), which provides as follows:
(1) If the breach consists of á failure to pay a definite sum in money or to render a performance with fixed or ascertainable monetary value, interest is recoverable from the time for performance on the amount due less all deductions to which the party in breach is entitled.
(2) In any other case, such interest may be allowed as justice requires on the amount that would have been just compensation had it been paid when performance was due. (Emphases added.)
Subsection (1) is applicable to this matter. The trial court found that the parties had agreed to a rental rate for the equipment of $375 per day. There is no dispute regarding the number of days that Marquis retained possession of the equipment. Nothing in the record suggests that there is any equitable reason not to require the payment of pre-judgment interest. It is due as a matter of course, and indeed it would have been inequitable for the court to refuse to do so.
In his amended complaint, Jones alleged that Marquis wrongfully converted the equipment in reckless disregard of his rights. He sought recovery of the full value of the equipment and an award of punitive damages. Jones contends that the'trial court erred by failing to award him tort damages based upon Marquis’s conversion of the equipment. We disagree.
Conversion is an intentional tort that involves the wrongful exercise of dominion and control over the property of another. See St. Auto. Mutual Ins. Co. v. Chrysler Credit Corp., 792 S.W.2d 626, 627 (Ky.App.1990); see also Oliver v. J.J.B. Hilliard, Nos. 2010-CA-001138-MR, 2010-CA-001236-MR, 2010-CA-001428-MR, 2010-CA-001479-MR, 2013 WL 762593 (Ky.App. Mar. 1, 2013) (“Conversion is an intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor, may justly be required to pay the other the full value of the chattel.”) (quoting Restatement (Second) of Torts § 222A (1965)). In Kentucky, a claim of conversion consists of the following elements:
(1) the plaintiff had legal title to the converted property;
(2) the plaintiff had possession of the property or the right to possess it at the time of the conversion;
(3) the defendant , exercised dominion over the property in a manner which denied the plaintiffs rights to use and enjoy the property and which was to the defendant’s own use and beneficial enjoyment;
(4) the defendant intended to interfere with the plaintiffs possession;
(5) the plaintiff made some demand for the property’s return which the defendant refused;
(6) the defendant’s act was the legal cause of the plaintiffs loss of the property; and
(7) the plaintiff suffered damage by the loss of the property.
Ky. Ass’n of Counties All Lines Fund Trust v. McClendon, 157 S.W.3d 626, 632 n. 12 (Ky.2005) (quoting 90 C.J.S. Trover and Conversion § 4 (2004)); see also Meade v. Richardson Fuel, Inc., 166 S.W.3d 55 (Ky.App.2005).
Although a breach of contract action and a claim for conversion are not necessarily *854incompatible, they do not coincide under the circumstances presented in the case before us. While Jones’s complaint did not state with particularity the basis of his tort claim, it does not appear that the rented equipment was physically damaged in any material way. Furthermore, the court finally ordered the return of Jones’s equipment, and the economic losses arising from the breach of contract were fully recoverable upon its return. Jones did not show that he sustained tort damages or a loss independent of the contract damages. Thus, the trial court did not err by failing to award Jones either the value of the equipment or punitive damages for its conversion.
The judgment of the Boyd Circuit Court is affirmed in part, reversed as to the issue of mitigation of damages, and remanded for entry of a judgment consistent with this opinion.
ALL CONCUR. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283609/ | OPINION
MOORE, Judge:
David Sangster appeals a judgment of the Jefferson Circuit Court dismissing his civil rights action against the above-captioned appellees (ie., the Kentucky Board of Medical Licensure and its members in their individual capacities). Upon review, we affirm.
FACTUAL AND PROCEDURAL HISTORY
On August 2, 2010, the Kentucky Board of Medical Licensure (KBML) entered an administrative order indefinitely restricting David Sangster’s license to practice medicine. In particular, the order prohibited Sangster from performing any act constituting the “practice of medicine” as the term is defined in Kentucky Revised Statutes (KRS) 311.550(10); it provided that the KBML retained the sole discretion to grant any petition to amend or terminate the order of restriction; and, assuming the KBML granted any such petition, the order also provided that Sangster’s reinstatement to the practice of medicine would be subject to certain conditions, including his payment of $52,594.52 in costs attributable to his disciplinary proceedings.
The basis of Sángster’s appeal stems from an action he filed in Jefferson Circuit Court nearly one year later regarding the aforementioned order and the disciplinary proceedings that accompanied it. Essentially, Sangster asserted that the KBML’s order was 1) the product of the KBML’s fraud and misconduct involving its administration of its authorizing legislation and the provisions of KRS 13B.005 et seq.; 2) in violation of constitutional or statutory provisions; 3) in excess of the statutory authority of the KMBL; 4) without support of substantial evidence on the whole record; 5) arbitrary, capricious, or characterized by abuse of discretion; 6) based on ex parte communications which substantially prejudiced his rights and likely affected the outcome of his disciplinary pro*856ceedings; and 7) affected by a failure of the hearing officer conducting the proceeding to be disqualified due to bias.
Sangster’s action was not for the judicial review of administrative action pursuant to KRS 13B.150. When he filed this action, Sangster already had another action pending before another court in Jefferson Circuit Court filed pursuant to that statute, and that action also relied upon roughly the same allegations.1 To the contrary, Sangster’s subsequent action relied upon these allegations to support a 42 United States Code (U.S.C.) § 19832 claim for violations of procedural due process, in which he asked for monetary damages and injunctive relief against the KBML and its members in their individual capacities.
Rather than answering Sangster’s complaint, the above-captioned appellees filed a Kentucky Rules of Civil Procedure (CR) 12.02(f) motion to dismiss. Specifically, the KBML asserted immunity from suit based upon the Eleventh Amendment of the United States Constitution, whereas the members of the KBML, who had been sued in their individual capacities, asserted absolute quasi-judicial immunity. Thereafter, the circuit court granted the appel-lees’ motion and dismissed Sangster’s claims for monetary relief on both bases. The circuit court further dismissed Sang-ster’s claim for injunctive relief after determining that Sangster had failed to articulate in his complaint how the KBML violated any of his federally protected procedural due process rights. This appeal followed. Additional facts will be discussed as they become relevant to our analysis below.
■ANALYSIS
Sangster puts forth three arguments in his brief respectively titled “the individual board members are not entitled to absolute immunity,” “absolute immunity for the adjudicative function is not available under these circumstances,” and “qualified immunity under KRS 311.603 is not available to the concerned KBML members.” The thrust of his arguments is that his 42 U.S.C. § 1983 actions against the KBML and its members in their individual capacities for monetary damages should not have been dismissed on immunity grounds.3 The question of immunity is a matter of law which this Court reviews de novo. Rowan County v. Sloas, 201 S.W.3d 469, 475 (Ky.2006); Estate of Clark ex rel. Mitchell v. Daviess County, 105 S.W.3d 841, 844 (Ky.App.2003).
*857As it relates to Sangster’s 42 U.S.C. § 1983 claim against the KBML for monetary relief, we agree with the circuit court’s decision to dismiss. However, it was unnecessary for the circuit court to even reach the issue of whether the KBML was entitled to any form of immunity because Sangster’s claim failed for a more basic reason: the KBML is a state agency,4 and states, state agencies, and state officials sued in their official capacities for money damages are not “persons” subject to suit under § 1983. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 2312, 105 L.Ed.2d 45 (1989).
In rebuttal, Sangster points to KRS 311.603, which he asserts is an avenue for holding the KBML liable for monetary damages under 42 U.S.C. § 1983. It pro-, vides:
There shall be no monetary liability on the part of, and no cause of action for damages shall arise against the board, any current or former member, officer, administrator, staff member, committee member, representative, agent, consultant, or employee of the board, either as a part of the board’s operation or as an individual, as the result of any act, omission, proceeding, conduct, or decision related to his official duties undertaken or performed within the scope of the function of the board, except where actual malice is shown or willful misconduct is involved.
As it goes, Sangster’s theory is that this Kentucky statute effectively expands the scope of a federal 42 U.S.C. § 1983 action to include the KBML in instances where the KBML’s offending conduct is outside its operation, unrelated to the scope of its function, or indicative of actual malice or willful misconduct.
Even if this were a viable interpretation of KRS 311.603, however, Sangster overlooks that under the United States Supreme Court’s holding in Will, a state and its agencies cannot be sued under section 1983 even if the state consents because it is powerless to rewrite the congressional definition of “person.” The manner in which we should view federal causes of action in state courts was specifically stated in Howlett v. Rose, 496 U.S. 356, 375-76, 110 S.Ct. 2430, 2442-2443, 110 L.Ed.2d 332 (1990):
The elements of, and the defenses to, a federal cause of action are defined by federal law. See, e.g., Monessen Southwestern R. Co. v. Morgan, 486 U.S. 330, 335 [, 108 S.Ct. 1837, 100 L.Ed.2d 349] (1988), Chesapeake & Ohio R. Co. v. Kuhn, 284 U.S. 44, 46-47 [, 52 S.Ct. 45, 76 L.Ed. 157] (1931). A State may not, by statute or common law, create a cause of action under § 1983 against an entity whom Congress has not subjected to liability. Moor v. County of Alameda, 411 U.S. 693, 698-710 [, 93 S.Ct. 1785, 36 L.Ed.2d 596] (1973). Since this Court has construed the word “person” in § 1983 to exclude States, neither a federal court nor a state court may entertain a § 1983 action against such a defendant.
This federal rule was restated in Arizonans for Official English v. Arizona, 520 U.S. 43, 69, 117 S.Ct. 1055, 1069-70, 137 L.Ed.2d 170 (1997), as follows:
We have held, however, that § 1983 actions do not lie against a State. Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 [, 109 S.Ct. 2304, 105 L.Ed.2d 45] (1989). Thus, the claim for relief the Ninth Circuit found sufficient to overcome mootness was nonexistent. The barrier was not, as the Ninth Circuit *858supposed, Eleventh Amendment immunity, which the State could waive. The stopper was that § 1988 creates no remedy against a State.
This, in turn, leads to a discussion of Sangster’s 42 U.S.C. § 1983 claim for monetary relief against the KBML board members in their individual capacities. Sangster argues that it was error for the circuit court to dismiss this claim on the basis of absolute quasi-judicial immunity for two reasons.
First, Sangster argues that Kentucky (i.e., KRS 311.603) has abrogated any form of immunity to a 42 U.S.C. § 1983 suit for offending conduct of individual board members that is outside the operation of the KBML, unrelated to the scope of its function, or indicative of actual malice or willful misconduct. As before, however, Sangster overlooks that a 42 U.S.C. § 1983 suit is a federal cause of action. It was the decision of Congress to provide certain forms of absolute and qualified immunity to 42 U.S.C. § 1983 claims. Howlett, 496 U.S. at 383, 110 S.Ct. at 2446-2447. Kentucky has no authority to override it. See id. at 378, 110 S.Ct. at 2444 (“Congress surely did not intend to assign to state courts and legislatures a conclusive role in the formative function of defining and characterizing the essential elements of a federal cause of action.”) (citing Wilson v. Garcia, 471 U.S. 261, 269, 105 S.Ct. 1938, 1943, 85 L.Ed.2d 254 (1985)). As such, irrespective of KRS 311.603, “[t]he elements of, and the defenses to, a federal cause of action are defined by federal law,” Howlett, 496 U.S. at 375, 110 S.Ct. at 2442 (emphasis added), not state law.
Next, Sangster argues that federal law and precedent interpreting 42 U.S.C. § 1983 would not accord the individual KBML board members absolute quasi-judicial immunity from suit. We disagree.
As a general matter, absolute judicial immunity and absolute quasi-judicial immunity apply to 42 U.S.C. § 1983-claims for monetary relief. In Quatkemeyer v. Kentucky Bd. of Medical Licensure, 506 Fed.Appx. 342 (6th Cir.2012),5 the Federal Court of Appeals for the Sixth Circuit explained:
Absolute immunity against suits for money damages is “well established” for judges, and such immunity has also been extended to non-judicial officers performing “quasi-judicial” duties. Bush v. Rauch, 38 F.3d 842, 847 (6th Cir.1994); see also Greater L.A. Council on Deafness, Inc. v. Zolin, 812 F.2d 1103, 1108 (9th Cir.1987) (“Quasi-judicial immunity, like judicial immunity, derives historically from the recognition that participation in the court system raises a significant risk of ‘entanglement in vexatious litigation.’ ”) (quoting Mitchell v. Forsyth, 472 U.S. 511, 521, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)). “Quasi-judicial immunity extends to those persons performing tasks so integral or intertwined with the judicial process that these persons are considered an arm of the judicial officer who is immune.” Bush, 38 F.3d at 847. “The Supreme Court has endorsed a ‘functional approach in determining whether an official is entitled to absolute immunity. Under this approach, a court ‘looks to’ the nature of the function per*859formed, not the identity of the actor who performed it.’” Collyer v. Darling, 98 F.3d 211, 221 (6th Cir.1996) (citation omitted) (quoting Bush, 38 F.3d at 847). The party claiming absolute immunity bears the burden of establishing a justification for that immunity. Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 432, 113 S.Ct. 2167, 124 L.Ed.2d 391 (1993); Burns v. Reed, 500 U.S. 478, 486, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991). To determine whether the doctrine of judicial immunity applies to officials other than judges, a court must determine whether performance of a function requires exercise of discretionary judgment. Antoine, 508 U.S. at 436, 113 S.Ct. 2167; see also Imbler v. Pachtman, 424 U.S. 409, 422-24, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976).
The Supreme Court has ruled upon the applicability of quasi-judicial immunity to state agencies:
Because the legal remedies already available to the defendant in [an agency enforcement] proceeding provide sufficient checks on agency zeal, we hold that those [agency] officials [who perform certain functions analogous to those of a prosecutor and] who are responsible for the decision to initiate or continue a proceeding subject to agency adjudication are entitled to absolute immunity from damages liability for their parts in that decision.
Butz v. Economou, 438 U.S. 478, 516, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978).
Id. at 346.
Quatkemeyer also determined that federal law accords the individual members of the KBML immunity for any quasi-judicial acts taken within the function of their positions:
It is undisputed that the Kentucky Board of Medical Licensure is a state agency. Previously, Butz has been applied to medical licensing boards, granting the members of the boards absolute immunity when sued for damages in their individual capacity. See Watts v. Burkhart, 978 F.2d 269 (6th Cir.1992); Bettencourt v. Bd. of Registration in Med. of Mass., 904 F.2d 772 (1st Cir. 1990); Horwitz v. State Bd. of Med. Exam’rs of Colo., 822 F.2d 1508 (10th Cir.1987). Pursuant to the “functional” approach that was adopted in Forrester v. White, 484 U.S. 219, 224, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988), the determination is centered upon the action of the individual. As explained in Bush: “a prosecutor who undertakes acts in the preparation or initiation of judicial proceedings is entitled to absolute immunity. On the other hand, when a prosecutor performs administrative acts unrelated to judicial proceedings, qualified immunity is all that is available.” 38 F.3d at 847 (citations omitted). Thus, while members of state medical boards may receive immunity, it is not presumed merely because they are members of those boards.
The members of the Kentucky Board of Medical Licensure exercise the requisite adjudicatory functioning for quasi-judicial immunity. The Board exercises authority over medical practitioners in Kentucky and has authority to issue subpoenas, conduct various levels of inquiries, make findings and issue different orders. See KRS § 311.591. By allowing its determination to be reviewed by the courts, rather than another agency body or third party arbitrator, the Board provides one who is dissatisfied ample opportunity to seek redress. See KRS § 311.593.
Id.
Sangster argues that the KBML does not have the appropriate safeguards that were present in Watts and, therefore, pur*860suant to Cleavinger v. Saxner, 474 U.S. 193, 106 S.Ct. 496, 88 L.Ed.2d 507 (1985), absolute immunity does not exist for its members in their individual capacities. This argument was offered and rejected in Quatkemeyer. And, because we agree with the reasoning of that case, we adopt it:
In Watts, a physician filed a § 1983 action against the members of the Tennessee Board of Medical Examiners individually for damages based upon violations of due process and equal protection. 978 F.2d at 271-72. Having found it persuasive that all members of the Tennessee Board were physicians, we determined the members were “independent professionals” entitled to quasi-judicial immunity and reversed the district court decision. Id. at 274, 276.
In Cleavinger, the Supreme Court determined that disciplinary committee members lacked the independence that characterizes judges and therefore were not entitled to quasi-judicial immunity. 474 U.S. at 203, 106 S.Ct. 496. The committee in Cleavinger was composed of Bureau of Prison employees who were direct subordinates of the warden who reviewed their decisions, and were “under obvious pressure to resolve a disciplinary dispute in favor of the institution and their fellow employee.” Id. at 204, 106 S.Ct. 496. They were not impartial and the hearing body was not detached or neutral. Id.
While it is correct to say neither the facts nor the statutory guidelines in the instant case are identical to those in Watts, this case is far more analogous to Watts than Cleavinger. Here, the Board is comprised of independent professionals whom were not direct subordinates of the person or entity that appoints them. Further, no party alleges its decisions were reviewed by the Governor. Also, the Board is comprised of fifteen members: eleven are licensed physicians; one is an osteopathic physician; and the remaining three are representatives of healthcare consumer organizations who are not associated with or financially interested in the business regulated. See KRS § 311.530.[FN]
[FN] KRS § 311.530(2) requires that the Board consist of fifteen members, “including the commissioner of public health, the dean of the University of Kentucky College of Medicine, the vice dean for clinical affairs of the University of Louisville School of Medicine, the dean of the University of Pikeville School of Osteopathic Medicine, and eleven (11) members appointed by the Governor.” Of the Governor’s appointees, § 311.530(3) provides that:
(a) One (1) member shall be a licensed osteopathic physician and shall be appointed from a list of three (3) names submitted by the Kentucky Osteopathic Association;
(b) Seven (7) members shall be licensed medical physicians and may be appointed from a list of three (3) names submitted for each position by the Kentucky Medical Association. In making appointments under this paragraph, the Governor shall ensure that the physician members represented different specialties from a broad cross section of the medical profession; and
(c) Three (3) members shall be citizens at large who are representatives of any recognized consumer advocacy groups with an interest in the delivery of health care and are not associated with or financially interest in the practice or business regulated.
The board in Watts consisted of five members whom were required by stat*861ute to be professionals. Watts, 978 F.2d at 275. However, the slight differences in the makeup of the Board in the instant case and Watts do not result in a denial of immunity as long as the Board is made up primarily of professionals and required to be independent.
Sangster argues that the individual KBML members are not entitled to quasi-judicial immunity for several other reasons, but many of these reasons were also rejected in Quatkemeyer. First, he alleges that the KBML did not adequately apprise him of its charges relating to his purported misconduct prior to his disciplinary proceeding. “However, in Watts, the plaintiffs ‘due process claim rested on allegations that the proceedings before the board were defective because, among other things, the charges had not been stated with sufficient specificity[.]”’ Quatkemeyer, 506 Fed.Appx. at 348 (citing Watts, 978 F.2d at 272).
Next, Sangster alleges that certain findings within the KBML’s order misinterpret the evidence of record, are not supported by substantial evidence, or were based upon evidence that should have been excluded; the legal conclusions within the KBML’s order misapply and misinterpret the applicable statutes and the KBML’s own standards for physician conduct; the hearing officer’s recommended order failed to include a “recommended disposition” as required by KRS 13B.110(1); and, that the KBML failed to adequately review the record before ultimately adopting the hearing officer’s recommended order. However,
[Sangster’s] argument is misplaced. The challenged acts he describes, such as relying upon wrong analyses and false allegations, are prosecutorial in nature. If [Sangster’s] contention is that the [KBML] failed to properly consider the evidence, such failure would not negate immunity. The function and action of the [KBML] was prosecutorial or adjudicatory in nature, regardless of how ineffectively the [KBML] may have performed it.
Id. at 347.
Finally, Sangster argues that the individual KBML members are not entitled to absolute quasi-judicial immunity because they were biased against him, the hearing officer was biased against him, and because the hearing officer appointed by the KBML in the instant case was a lawyer, rather than a medical professional. However, it is the very function of absolute immunity to defeat a suit from the outset and immunize even capricious decisions motivated by prejudice, bias, or greed. See Stump v. Sparkman, 435 U.S. 349, 359, 98 S.Ct. 1099, 1106, 55 L.Ed.2d 331 (1978). See also Pierson v. Ray, 386 U.S. 547, 553, 87 S.Ct. 1213, 1218, 18 L.Ed.2d 288 (1967) (noting absolute immunity applies even when judge is accused of acting maliciously and corruptly); Bradley v. Fisher, 80 U.S. 335, 346, 13 Wall. 335, 20 L.Ed. 646 (1871) (If an act is judicial in character and within the court’s jurisdiction, “the defendant cannot be subjected to responsibility for it in a civil action, however erroneous the act may have been, and however injurious in its consequences it may have proved to the plaintiff.”) And in any event, “The fact that the Hearing Officer in the instant case was a lawyer appointed by the [KBML] does not render him biased or the procedural safeguards inadequate.” Quatkemeyer, 506 Fed.Appx. at 348.
In sum, we agree with Quatkemeyer in that the KBML’s authorizing legislation and procedures adequately protect “the policy interests identified in Watts. The [KBML] ’s position is akin to that of judges or prosecutors, the potential for vexatious lawsuits is great, and sufficient safeguards exist to protect a physician’s constitutional *862rights.” Id. at 348-349 (citations omitted). Moreover, taking the allegations in his complaint as true, Sangster has merely asserted that the individual KBML members acted with bad faith or malice, rendered an incorrect decision, took action in excess of their authority, or committed grave procedural errors over the course of his disciplinary proceedings — none of which are adequate to vitiate absolute immunity from suit. Stump, 435 U.S. at 356 and 359, 98 S.Ct. at 1104-1105 and 1106.6
CONCLUSION
For the foregoing reasons, the Court finds that absolute quasi-judicial immunity protects the individual KBML members from Sangster’s claims against them in their individual capacities, and that Sang-ster failed to assert a cognizable cause of action against the KBML as a state agency. Therefore, the Jefferson Circuit Court is affirmed.
ALL CONCUR.
. It appears that Sangster's action for judicial review, KBML v. David P. Sangster, M.D., 10-CI-006159, remains pending before the Jefferson Circuit Court as of the date of this opinion.
. 42 U.S.C. § 1983 provides civil recourse for violations of protected rights. In relevant part, § 1983 provides:
Every person who, under color of any statute, ordinance, regulation, [or] custom, ... of any State ... subjects, or causes to be subjected, any citizen of the. United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. ...
.Sangster's arguments on appeal are limited to whether the circuit court erred in finding the KBML and its individuals immune to suit. The circuit court did not dismiss Sangster’s claim for injunctive relief under 42 U.S.C. § 1983 on the basis of any form of immunity, and Sangster’s brief does not include any argument regarding the propriety of the circuit court’s decision to dismiss his claim for prospective injunctive relief. Therefore, we deem this argument waived. See, e.g., Osborne v. Payne, 31 S.W.3d 911, 916 (Ky.2000) ("Any part of a judgment appealed from that is not briefed is affirmed as being confessed.”).
. See, e.g., KRS 311.530.
. In accordance with Federal Rules of Appellate Procedure (FRAP) 32.1, "[a] court may not prohibit or restrict the citation of federal judicial opinions, orders, judgments, or other written dispositions that have been: (i) designated as ‘unpublished’ ... and (ii) issued after January 1, 1997.” While Kentucky courts are not bound by FRAP 32.1, the federal judiciary has determined that all of its opinions rendered after January 1, 1997, have equally persuasive import without regard to their designation as unpublished. We should take no less a view of those opinions.
. To be clear, the Supreme Court has held that absolute judicial immunity (and thus by extension absolute quasi-judicial immunity) is generally overcome in only two sets of circumstances: "First, a judge is not immune from liability for nonjudicial actions, i.e., actions not taken in the judge’s judicial capacity.” Míreles v. Waco, 502 U.S. 9, 11, 112 S.Ct. 286, 288, 116 L.Ed.2d 9 (1991) (citing Forrester v. White, 484 U.S. 219, 227-229, 108 S.Ct. 538, 544-545, 98 L.Ed.2d 555 (1988)); and Stump, 435 U.S. at 360, 98 S.Ct. at 1106. "Second, a judge is not immune for actions, though judicial in nature, taken in the complete absence of all jurisdiction.” Id. at 12, 112 S.Ct. at 288 (citing Stump, 435 U.S. at 356-357, 98 S.Ct. at 1104-1105; and Bradley v. Fisher, 80 U.S. 335, 351). Because the present case implicates neither of these exceptional circumstances, the individual members of the KBML are entitled to absolute quasi-judicial immunity, and all monetary claims against them must therefore be dismissed. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283610/ | OPINION
MOORE, Judge:
The Kentucky Board of Chiropractic Examiners (“Board”) sought injunctive relief in Franklin Circuit Court against two physicians, Drs. Charles Barlow and Michael Best. The Franklin Circuit Court dismissed both actions, and the Board now appeals.
The overarching legal issue presented in this consolidated appeal involves two competing interpretations of “peer review,” as the term is used in Kentucky Revised Statutes (KRS) 312.015(4) and 312.200. KRS 312.015(4) provides:
*864“Peer review” means an evaluation, based upon generally accepted standards, by a peer review committee established in KRS 312.200 or by other persons performing peer review pursuant to KRS 312.200(8), of the appropriateness, quality, utilization, and cost of chiropractic health care and health service provided to a patient.
Next, KRS 312.200 (entitled “Peer review committee — Initiation of peer review — Report of findings — Licensure of other persons performing peer review of chiropractic claims”) provides:
(1) The board shall appoint a peer review committee not to exceed five (5) doctors of chiropractic licensed under this chapter, none of whom are in direct business relationship with the provider, insurer, or patient whose case is being reviewed. Members of the peer review committee shall serve at the pleasure of the board.
(2) Peer review shall occur upon submission by a patient, the patient’s representative, insurer, or chiropractor, in accordance with the procedures and fees approved by the board, of an inquiry about a treatment rendered to a patient by a chiropractor. The peer review committee shall examine each inquiry submitted to it and shall report its findings to the board and furnish copies of the findings to the patient, chiropractor, and third-party payor. The findings of the peer review committee on each inquiry reviewed may include a determination of whether or not the chiropractor properly utilized services and rendered or ordered appropriate treatment or services and whether or not the cost of the treatment was unconscionable.
(3)Other persons performing peer review of chiropractic claims shall be licensed by the board and complete annually a board approved utilization review course, in addition to the required annual education in KRS 312.175. Persons performing review services under this subsection shall annually register with the board and pay a registration fee not to exceed one hundred dollars ($100).
The appellees intérpret these provisions to mean that if a person evaluates the appropriateness, quality, utilization, and cost of health care and health service provided to a patient by a Kentucky chiropractor, but has done so without the license and training described in KRS 312.200(3), and without purporting to do so under the purview of KRS 312.200, that person has not conducted a “peer review” within the meaning of these statutory provisions and is not, therefore, subject to any kind of action or censure from the Board.
The Board, on the other hand, asserts these provisions mean that if any person ever evaluates the appropriateness, quality, utilization, and cost of chiropractic health care and health service provided to a patient of chiropractic services in Kentucky, but does so without the license and additional training described in KRS 312.200(3), that person is conducting an unauthorized “peer review” and is, therefore, subject to injunctive action pursuant to KRS 312.991(3).1 Stated differently, *865the Board contends that these statutory provisions lend it the exclusive authority to determine — in every given circumstance— who is qualified to evaluate whether or not a Kentucky chiropractor properly utilized services and rendered or ordered appropriate treatment or services and whether or not the cost of the treatment was unconscionable.
Per its interpretation of KRS 312.200(B), the- Board unsuccessfully filed suit to enjoin Drs. Barlow and Best from conducting what it characterized as illegal “peer reviews.” Specifically, both doctors had rendered opinions to an insurance carrier— appellee Geico Insurance Company — for the purpose of assisting Geico in determining whether to pay or deny personal injury protection (PIP) benefits2 to individuals involved in motor vehicle accidents. And, as the above would indicate, the Board contended that in doing so the two doctors had violated KRS 312.200(3) because 1) it had not licensed and trained either doctor pursuant to KRS 312.200(3); and 2) both doctors had rendered opinions regarding the. reasonableness and necessity of chiropractic treatment and, in its view, had therefore conducted unauthorized “peer reviews” within the meaning of KRS 312.015(4).
With that said, the Board’s interpretation of KRS 312.015(4) and KRS 312.200 has already been rejected outside of these proceedings. Interestingly, one such instance comes not from case law, but from how another agency of the Commonwealth has interpreted its own authorizing legislation. Medical fee disputes are often resolved through administrative processes designed by the Department of Workers’ Claims, pursuant to its statutory authority under KRS 342.0011 et seq., in the context of workers’ compensation claims. One such administrative process is located in 803 Kentucky Administrative Regulation (KAR) 25:190. Generally speaking, this regulation requires workers’ compensation insurers to determine whether medical services that are “reasonably related” to a claim are “medically necessary and appropriate.” See 803 KAR 25:190 Section 2(b) and Section 5(1). Contrary to the Board’s understanding of the law, however, 803 KAR 25:190 does not require a chiropractor licensed pursuant to KRS 312.200(3) to take any part in this form of utilization review where chiropractic treatment is concerned.3 This regulation only contem*866plates that a Kentucky chiropractor licensed and trained by the Board pursuant to KRS 312.200(3) may be requested to play a role in this process after two other utilization reviews regarding the chiropractic treatment in question have already been conducted.4,5 Thus, if thé Board’s interpretation of KRS 312.200(3) is the correct one, it would stand for the proposition that the Department of Workers’ Claims has been sanctioning and encouraging illegal conduct for the several years that 803 KAR 25:190 has been in effect.
The Board’s interpretation has also been rejected in an unpublished opinion from this Court, Rodriguez v. Kentucky Farm Bureau Mut. Ins. Co., 2003 WL 21949164 (Ky.App.2003)(2002-CA-001191-MR, 2002-CA-001229-MR).6 The appellant in that matter had sought PIP coverage for $9,010 in chiropractic treatment ostensibly related to injuries he sustained in a motor vehicle accident; his reparations obligor (Farm Bureau) denied all but $3,110 based upon an outside review of the appellant’s chiropractor’s billings. At trial, Farm Bureau defended its decision to deny all but $3,110 of the appellant’s chiropractic expenses by introducing testimony of two expert witness doctors to the effect that the unpaid chiropractic expenses were either unreasonable in cost or represented unnecessary treatment.7 The appellant moved to exclude this testimony on the basis of KRS 312.200, his motion was overruled, and this Court subsequently affirmed the trial court’s decision. In relevant part, this Court explained:
Appellant asserts that Dr. Alan Brag-man’s testimony should not have been *867admitted because he does not qualify as a peer reviewer in Kentucky. Similarly, appellant asserts that Dr. L.B. Payne’s testimony should not have been admitted because appellant never executed a release permitting a peer review of his records.[8] However, since Bragman and Payne both testified as expert witnesses in regard to their review of appellant’s records for purposes of litigation, rather than as peer reviewers of those records for the Kentucky Board of Chiropractors, we are not persuaded that the witnesses’ failure to be qualified as peer reviewers was relevant in any way to their qualifications as expert witnesses or to the admissibility of their testimony at trial. Hence, the court did not err by admitting their testimony.
Id. at *3.
What is implicit in Rodriguez is an adherence to the following rule of constitutional law and statutory construction: “[I]f a statute is reasonably susceptible to two constructions, one of which renders it unconstitutional, ‘the court must adopt the construction which sustains the constitutionality of the statute.’” Davidson v. American Freightways, Inc., 25 S.W.3d 94, 96 (Ky.2000) (quoting American Trucking Ass’n v. Commonwealth, Transp. Cabinet, 676 S.W.2d 785, 789-90 (Ky.1984)). As noted, the Rodriguez eourt drew a distinction between expert trial testimony and peer review for the Board, determining that the former had nothing to do with the latter. This is because Kentucky Rules of Evidence (KRE) 702 vests the trial court with broad discretion to determine whether a witness is qualified to express an opinion in a matter which requires expert knowledge, skill, experience, training, or education. Likewise, the rule requires the trial court to determine if such expert testimony will assist the trier of fact to understand the evidence or to determine a fact in issue.
The Rodriguez appellant’s interpretation of KRS 312.200, now being offered by the Board, would limit the trial court’s authority under KRE 702. It would prohibit the trial court from allowing any person to testify regarding the reasonableness of the cost and necessity of chiropractic treatment, unless the Board authorized it by licensing and training the person in question as provided in KRS 312.200(3). This interpretation would transgress established procedure relating to the qualification and admission of expert testimony; it would usurp the power of the judiciary to control the rules of evidence; and, as such, it would violate the separation of powers and render KRS 312.200(3) unconstitutional.9 Consequently, the only way to uphold *868the constitutionality of this statute would be to interpret it as having no preclusive effect upon the authority of a trial court to qualify an expert witness to offer testimony at trial regarding whether or not a Kentucky chiropractor properly utilized services and rendered or ordered appropriate treatment or services and whether or not the cost of the treatment was unconscionable.
In any event, it is unnecessary to delve any deeper into the constitutionality of the Board’s interpretation of KRS 812.200, or the effect it might have upon other agencies of the Commonwealth, because it is contrary to our interpretation.
We pause to note what the peer review process is not. The “peer review” process is not a mechanism for adjudicating medical fee disputes because the Board has no statutory authority to adjudicate medical fee disputes. Moreover, nothing in KRS 312.200 or anywhere else prohibits a patient, insurer, chiropractor, or other party from instituting a civil suit, workers’ compensation claim, or other legal action related to the subject of the peer review inquiry before, during, or after the peer review process.
The KRS 812.200 peer review process is also not a part of or a preliminary step in the Board’s professional disciplinary process.10 That much is evident because: 1) per KRS 312.200(2), the process is initiated by an “inquiry” and the payment of a fee from a patient, insurer, or the chiropractor whose service or fee is at issue, as opposed to action from the Board or a grievance or complaint (which do not require the payment of any fee); 2) there is no right to an appeal from a peer review; and, 3) nothing indicates that the results of any KRS 312.200 peer review, favorable or otherwise, could operate to constrain the discretion of the Board to thereafter pursue any kind of disciplinary action against the chiropractor whose services and fees were reviewed. See KRS 312.150(3).11
*869Moreover, KRS 312.200(2) is the only indication of when a “peer review” under the definition of KRS 812.015(4) ever occurs — whether it is a “peer review” conducted by a peer review committee appointed by the Board pursuant to KRS 812.200(1), or by other persons licensed and trained by the Board pursuant to KRS 312.200(3). In particular, KRS 312.200(2) provides that “peer review shall occur upon submission ... in accordance with the procedures and fees approved by the board.”
In light of the above, we are left to conclude that a “peer review” within the meaning of KRS 312.015(4) merely refers to an optional and nonbinding evaluation process that the Board provides as a service in exchange for a fee. In turn, the Board’s procedures require that its nonbinding evaluation process only be performed by a “peer review committee” composed of chiropractors appointed by the Board per KRS 312.200(1), or, alternatively, by an individual chiropractor who has received additional training and has been licensed by the Board per KRS 312.200(3).12 We are unwilling to read anything more into what a “peer review” is, and we certainly do not understand it to also include or to have any effect upon some other kind of review conducted outside of this process. Thus, we interpret KRS 312.015(4) and KRS 312.200, taken collectively, to simply mean that any matter not submitted to the Board cannot be a “peer review” under the limited purview of those statutes and cannot, therefore, be subject to any action or censure from the Board. This interpretation coincides with the plain language of KRS 312.200(2). Moreover, this interpretation avoids the necessity of otherwise declaring KRS 312.200(3) unconstitutional.
As our holding would imply, we affirm the circuit court’s decisions dismissing each of the Board’s suits. Neither of the aforementioned doctors — Drs. Charles Barlow or Michael Best — purported to conduct Chapter 312 peer reviews of any matter, much less any matter submitted to the Board for evaluation, when they rendered their opinions to Geico. Consequently, the Board had no interest in or authority over their activities.
As an aside, the Board also appears to be focusing upon another issue in this dispute. Drs. Barlow and Best admittedly know little to nothing about chiropractic treatment; they both specialize in altogether different schools of medicine; and, the Board spends much of its brief arguing that it would be improper to allow such physicians to express any opinion, in any context, regarding the necessity of chiropractic care or the reasonableness of its cost. The question presented in this appeal is not, however, whether it is legally acceptable or particularly wise for an insurer to decide that chiropractic treatment is unreasonable or unnecessary based sole*870ly upon the word of a doctor who does not specialize in chiropractic medicine.13 The question presented is whether, outside of its specific peer review process, the Board has the authority to prohibit any doctor it has not licensed and trained per KRS 312.200(3) from evaluating whether or not a chiropractor properly utilized services and rendered or ordered appropriate treatment or services and whether or not the cost of the treatment was unconscionable. And, we have answered that question in the negative.
For these reasons, we affirm.
ALL CONCUR.
. KRS 312.991(3) provides:
Whenever in the judgment of the board any person has engaged or is about to engage in the acts or practices that constitute, or will constitute, a violation of any of the provisions of this chapter or the rules and regulations adopted by the board, the board may make application to the Franklin Circuit Court for an order enjoining such acts or practices. Upon a showing by the board that such person has engaged, or is about to engage, in any such acts or practices, and injunction, restraining order, or such other order as may be appropriate shall be granted by such court. Any order of the Franklin Circuit Court shall be enforceable and *865shall be valid anywhere in this state and the order of the court shall be reviewable as provided in the Rules of Civil Procedure in the case of other injunctions and restraining orders.
. PIP is also known as "basic reparations benefits” coverage, or “BRB.” These terms are used interchangeably by Kentucky Courts and have the same meaning as no-fault benefits under the Kentucky Motor Vehicle Reparations Act, KRS 304.39-010 et seq. See Samons v. Kentucky Farm Bureau Mut. Ins. Co., 399 S.W.3d 425, 428 (Ky.2013). Essentially, these benefits only cover medical services to the extent that the medical services in question are reasonable in cost and are reasonably needed for the treatment and care of a covered injury. See KRS 304.39-020(5)(a).
. 803 KAR 25:190 Section 6 provides in relevant part:
(1) Utilization review personnel shall have education, training, and experience necessary for evaluating the clinical issues and services under review. A physician, registered nurse, licensed practical nurse, medical records technician or other personnel, who through training and experience is qualified to issue decisions on medical necessity or appropriateness, shall issue the initial utilization review approval.
(2) A physician shall issue an initial utilization review denial. A physician shall supervise utilization review personnel in making utilization review recommendations. Personnel shall hold the license required by the jurisdiction in which they are employed.
. In this vein, 803 KAR 25:190 Section 8(2)(a) provides:
If a utilization review denial is upheld upon reconsideration and a board eligible or certified physician in the appropriate specialty or subspecialty area, or a chiropractor qualified pursuant to KRS 312.200(3) and 201 KAR 21:095 has not previously reviewed the matter, an aggrieved party may request further review by:
1. A board eligible or certified physician in the appropriate specialty or subspecialty; or
2. A chiropractor qualified pursuant to KRS 312.200(3) and 201 KAR 21:095.
(Emphasis added.)
. We also note that there are distinctions between a Chapter 312 peer review and a workers' compensation utilization review. For example, unlike the utilization reviews conducted in workers’ compensation proceedings which often involve requests for preauthorization of treatment (see 803 KAR 25:190 Section 5(a)), the KRS 312.200 peer review process does not contemplate hypothetical or preauthorization situations in which chiropractic services have yet to be rendered and charged for. See KRS 312.015(4) (providing that peer review concerns "health care and health service provided to a patient”); see also KRS 312.200(2) ("The findings of the peer review committee on each inquiry reviewed may include a determination of whether or not the chiropractor properly utilized services and rendered or ordered appropriate treatment or services and whether or not the cost of the treatment was unconscionable”). (Emphasis added.)
. For the proposition of law discussed herein, we find Rodriguez to be persuasive authority in this case and proper to cite as it fulfills the criteria of Kentucky Rules of Civil Procedure (CR) 76.28(4)(c).
. The Rodriguez opinion is not as clear as it could be on the specialties of these doctors or the substance of their testimony. The objection to Bragman’s testimony in Rodriguez was that he did not "qualify as a peer reviewer in Kentucky.” Id. at *3. The implication from the appellant’s objection to the testimony offered by these respective doctors (i.e., that neither doctor was qualified as a “peer reviewer” under KRS 312.200) is that neither doctor was competent to express any opinion on the subjects that the "peer review” process is designed to cover, namely, "[W]hether or not the chiropractor properly utilized services and rendered or ordered appropriate treatment or services and whether or not the cost of the treatment was unconscionable.” See KRS 312.200(2).
. This statement is a reference to 201 KAR 21:075 Section 1(a), which prohibits any peer review of a patient’s treatment records absent the patient's authorization.
. For similar reasoning, see R.C. v. Commonwealth, 101 S.W.3d 897, 901 (Ky.App.2002). There, a question was presented regarding whether the General Assembly could statutorily override (or whether a particular statute, KRS 600.020(47), could be interpreted to override) the Kentucky Supreme Court’s holding in Hellstrom v. Commonwealth, 825 S.W.2d 612, 614 (Ky.1992), that social workers are incompetent to offer testimony vouching for the credibility of a child’s statement made during evaluation, and that a social worker who is not a physician, psychiatrist, or psychologist trained in diagnosing the cause of a child's mental distress is not qualified to express an opinion that the child’s symptoms were indicative of sexual abuse. Answering this question in the negative, this Court held in relevant part:
[E]ven if we could conclude that the General Assembly intended to allow licensed clinical social workers to express an opinion regarding a psychological diagnosis or symptoms, then such an enactment would be a violation of the separation of powers doctrine and hence unconstitutional. KRE 702 vests the trial court with broad discre*868tion to determine whether a witness is qualified to express an opinion in a matter which requires expert knowledge, skill, experience, training, or education. Likewise, the rule requires the trial court to determine if such expert testimony will assist the trier of fact to understand the evidence or to determine a fact in issue. The Cabinet’s interpretation of KRS 600.020(47) would transgress established procedure relating to the qualification and admission of expert testimony, and would usurp the power of the. judiciary to control the rules of evidence. In the absence of any indication that the General Assembly intended such a result, we will not interpret a statute in a manner which would render it unconstitutional.
R.C. v. Commonwealth, 101 S.W.3d at 901.
. KRS 312.200(2) does provide that "The peer review committee shall examine each inquiry submitted to it and shall report its findings to the board[.]” There appear to be at least two reasons for this. First, chiropractic peer reviewers are not exempt from the chiropractic code of ethical conduct and standards of practice enumerated in 201 KAR 21:015. Section 1(7) of that regulation requires all chiropractors licensed by the Board to "report to the board any reasonably suspected violation of KRS Chapter 312 or 201 KAR Chapter 21 by another licensee or applicant within thirty (30) days.” And, rendering unnecessary treatment and charging an unconscionable fee — two subjects of a KRS 312.200 peer review — are respectively violations of KRS 312.150(2)(b) and (c). The second reason appears to be an educational one. As illustrated by 201 KAR 21:075 Section 2, the peer review committee prepares and submits an annual summary of its findings to the Board, which the Board makes available to interested persons upon request and upon payment of the cost of reproduction.
. KRS 312.150(3) provides:
Upon receipt and due consideration of any charges, the board upon an affirmative vote shall determine whether the nature and quality of the charges are such that further investigation or initiation of disciplinary proceedings against the charged licensee is *869indicated. If disciplinary proceedings are not warranted, the charges shall be dismissed with or without prejudice. If the board determines that disciplinary proceedings are appropriate, the case may be resolved informally by agreed order or set for hearing to be conducted in accordance with KRS Chapter 13B.
. Nothing in KRS 312.200 requires a matter submitted to the Board to be referred to a peer review committee, as opposed to an individual licensed and trained per KRS 312.200(3). Furthermore, nothing in KRS 312.200(1) requires any member of the peer review committee to receive the additional training and licensure described in KRS 312.200(3). By its own terms KRS 312.200(3) only applies to "Other persons performing peer review of chiropractic claims[.]”. (Emphasis added.)
. But see Morgan v. Hill, 663 S.W.2d 232, 234 (Ky.App.1984) ("Certainly, a medical doctor can testify as to the cause of any injury, just as a chiropractor may so testify. A physician may not testify to the chiropractor's standard of care, however, because he does not have the appropriate training and experience to determine what constitutes chiropractic malpractice.”); see also KRS 304.17A-545(2)(a) (requiring medical director for managed care plan to ensure "any utilization management decision to deny, reduce, or terminate a health care ... service because that service is not medically necessary shall be made by a physician, except in the case of a health care service rendered by a chiropractor or optometrist, that decision shall be made respectively by a chiropractor or optometrist duly licensed in Kentucky”); KRS 304.17A — 607( I)(b)( 1) (requiring insurer or private review agent, in context of managed care plans, to do the same); 803 KAR 25:190 Section 6 (requiring utilization review personnel to be qualified through training and experience to issue decisions on medical necessity and appropriateness). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283611/ | ORDER
PER CURIAM.
Christy Buchanan appeals the trial court’s grant of summary judgment in favor of The Coca-Cola Company and Galen D. Bingham (collectively “Defendants”) on Buchanan’s petition alleging Defendants violated the Missouri Human Rights Act. No error of law appears.
An extended opinion would have no precedential value. We have, however, provided the parties a memorandum setting forth the reasons for our decision. The judgment of the trial court is affirmed under Rule 86.14(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283612/ | ORDER
PER CURIAM.
Lonnie Snelling (Plaintiff) appeals the judgment of the Circuit Court of the City of Saint Louis denying his fifth motion to set aside the circuit court’s orders and *903judgment dismissing Plaintiff’s claim. On appeal, Plaintiff asserts that the circuit court erred by denying his motion to set aside the orders and judgment of dismissal because (1) the record does not establish failure to prosecute; (2) the order was entered without affording Plaintiff a hearing on the issue of an alleged subpoena; (3) Plaintiff was not afforded a meaningful opportunity to be heard on his objections in violation of his due process rights; and (4) the prior orders and judgment dismissing Plaintiffs claim were procured through misconduct and are void. We affirm.
We have reviewed Plaintiff’s brief and the record on appeal and conclude that the circuit court did not err by denying Plaintiffs motion to set aside the orders and judgment dismissing Plaintiffs claim. An extended opinion would have no prece-dential value.
We affirm the judgment pursuant to Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/577953/ | 956 F.2d 1164
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Roger R. WILKERSON, Plaintiff-Appellant,v.EATON CORPORATION, et al, Defendants-Appellees.
No. 91-3493.
United States Court of Appeals, Sixth Circuit.
March 11, 1992.
Before BOGGS and WILLIAM A. NORRIS, Circuit Judges; and ENGEL, Senior Circuit Judge.
PER CURIAM.
1
Roger Wilkerson filed this suit against his former employer, the Eaton Corporation, and various individual Eaton employees, claiming that he was discharged in violation of Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e et seq. and the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. The district court granted the defendants' motion to dismiss the case pursuant to Fed.R.Civ.P. 12(b)(6) on grounds of res judicata. For the reasons discussed below, we affirm the judgment of the district court.
2
* On November 22, 1989, Wilkerson filed his initial action against Eaton in Ohio state court setting forth numerous state law claims arising from his termination. On December 8, 1989, Wilkerson amended his state court complaint to include allegations of race discrimination in violation of 42 U.S.C. §§ 1981 and 1985. The defendants then removed the original case to federal court.
3
On August 10, 1990, while the case was still pending in the district court, the EEOC issued Wilkerson a right to sue letter with respect to charges of race and age discrimination arising from his termination. Wilkerson never attempted to add these claims to his first suit against Eaton. On October 2, 1990, the district court granted Eaton's motion to dismiss the § 1981 and 1985 claims. The state law claims were remanded to state court.
4
On November 7, 1990, Wilkerson filed this second action against Eaton and a variety of individual defendants, alleging race and age discrimination in violation of Title VII and the ADEA arising from Wilkerson's dismissal. Wilkerson filed an amended complaint that did not alter the substance of his factual allegations in this matter. As a result, the district court granted Eaton's motion to dismiss the complaint pursuant to Rule 12(b)(6) on grounds of res judicata and, with respect to the individual defendants, on the additional grounds that such individuals were not named in Wilkerson's EEOC charges. Wilkerson appeals the district court dismissal of his case.
II
5
This court conducts a de novo review of a district court's decision to dismiss a suit pursuit to Rule 12(b)(6). Meador v. Cabinet For Human Resources, 902 F.2d 474, 475 (6th Cir.), cert. denied, 111 S.Ct. 182 (1990); Dana Corp. v. Blue Cross & Blue Shield, 900 F.2d 882, 885 (6th Cir.1990). When making a determination under Rule 12(b)(6), a court must construe the complaint in a light most favorable to the plaintiff and accept all the factual allegations as true. Meador, 902 F.2d at 475; Dana Corp., 900 F.2d at 885.
6
In this case, Wilkerson received his right to sue letter from the EEOC while the original action arising from this set of facts was still pending. Although his initial federal case was not dismissed until nearly two months after the EEOC issued the right to sue letter, Wilkerson chose not to attempt to amend the complaint in his first case to include the Title VII and ADEA claims. Rather, Wilkerson waited until the district court dismissed the initial federal case and then instituted this case. There is no dispute that the Title VII and ADEA claims arise out of the same set of facts, namely, the plaintiff's discharge. The district court therefore dismissed these claims pursuant to the doctrine of res judicata.
7
Res judicata bars a party from litigating any claims that were or could have been litigated in a prior action. "[T]he doctrine of res judicata provides that when a final judgment has been entered on the merits of a case, '[i]t is a finality as to the claim or demand in controversy, concluding parties and those in privity with them, not only as to every matter which was offered and received to sustain or defeat the claim or demand, but to any other admissible matter which might have been offered for that purpose.' " Nevada v. United States, 463 U.S. 110, 129-30 (1983), quoting Cromwell v. County of Sac, 94 U.S. 351, 352 (1877).
8
In Fleming v. Travenol Laboratories, Inc., 707 F.2d 829 (5th Cir.1983), the Fifth Circuit addressed a case virtually identical to this matter. In Fleming, the plaintiff filed an action against her employer under §§ 1981, 1983 and 1985. While the racial discrimination case was pending, the plaintiff received a right to sue letter from the EEOC. Rather than amending her complaint, the plaintiff filed another action in federal court. Five weeks later, the district court dismissed the original action for various reasons. The district court then ruled that the second action was barred by res judicata by virtue of the plaintiff's failure to amend her complaint in the first action when she had the opportunity to do so. The Fifth Circuit affirmed, holding that when "one has a choice of more than one remedy for a given wrong, here the suspension and discharge, he or she may not assert them serially, in successive actions, but must advance all at once on pain of bar." Id. at 833.
9
This Circuit has held repeatedly that once a final judgment is rendered, a litigant cannot seek relief in a successive action for the same injury, even where different legal theories are advanced. Harrington v. Vandalia-Butler Board of Education, et al., 649 F.2d 434, 437 (6th Cir.1981); Cemer v. Marathon Oil Company, 583 F.2d 830, 832 (6th Cir.1978). In the Harrington case, for example, this court stated:
10
It is undisputed that appellant's earlier Title VII action and the present § 1983 suit are based on the same discriminatory acts. When two successive suits seek recovery for the same injury, a judgment on the merits operates as a bar to the later suit, even though a different legal theory of recovery is advanced in the second suit.
11
Harrington, 649 F.2d at 437.
12
Wilkerson makes several arguments against the judgment of the district court. First, he maintains that res judicata cannot be a bar to this case because there was no "final judgment" in this matter since some state claims survived and were remanded to the state court. However, the district court in the original action dismissed the federal claims under 12(b)(6) for failure to state a claim upon which relief can be granted. All federal aspects of this case were disposed of in the original 12(b)(6) dismissal. More precisely, the district court dismissed the entire federal case. "A dismissal pursuant to 12(b)(6) is considered a decision on the merits with full res judicata effect." Dyer v. Intera Corp., 870 F.2d 1063 (6th Cir.1989); Federated Dept. Stores v. Moitie, 452 U.S. 394 (1981).
13
Wilkerson also cites Lytle v. Household Mfg. Inc., 110 S.Ct. 1331 (1990), in support of his position, claiming that the Supreme Court "refused to bar the litigation of a Title VII action after a 42 U.S.C. § 1981 claim has failed." However, plaintiff mischaracterizes Lytle, which held that an adverse judgment in a Title VII action could not bar the relitigation of a previously, but erroneously, dismissed § 1981 claim. In Lytle, the plaintiff joined his § 1981 and Title VII claims in the same action. Further, the Supreme Court specifically noted that both claims had to be joined in the same action or be barred by res judicata:
14
It would be anomalous to hold that a district court may not deprive a litigant of his right to a jury trial by resolving an equitable claim before a jury hears a legal claim raising common issues, but the court may accomplish the same result by erroneously dismissing the legal claim. Such a holding would be particularly unfair here because Lytle was required to join his legal [§ 1981] and equitable [Title VII] claims to avoid the bar of res judicata.
15
Id. at 1334.
16
In sum, plaintiff Wilkerson had ample opportunity to join his Title VII and ADEA claims in the original lawsuit. He did not do so and, as a result, res judicata bars subsequent litigation of any such claims arising from the same set of facts. The district court's ruling is therefore affirmed.
III
17
Defendants-appellees seek to recover their costs and attorneys fees on this appeal pursuant to 28 U.S.C. § 1927. That request is denied. For the above reasons, we AFFIRM the judgment of the district court in this matter. | 01-04-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/581523/ | 961 F.2d 1048
HUNTINGTON BRANCH, NATIONAL ASSOCIATION FOR the ADVANCEMENTOF COLORED PEOPLE; Housing Help, Inc.; MabelHarris; Perrepper Crutchfield; KennethL. Cofield, Plaintiffs-Appellees,v.TOWN OF HUNTINGTON, NEW YORK; United States Department ofHousing and Urban Development; Samuel R. Pierce; KennethC. Butterfield; Claire Kroft; Kenneth Deegan; EdwardThompson; Joseph Clemente, Defendants,Town of Huntington, New York; Kenneth C. Butterfield;Claire Kroft; Kenneth Deegan; Edward Thompson;Joseph Clemente, Defendants-Appellants.
No. 298, Docket 91-6124.
United States Court of Appeals,Second Circuit.
Argued Oct. 9, 1991.Decided April 13, 1992.
Richard C. Cahn, Melville, N.Y. (Cahn Wishod Wishod & Lamb, of counsel), for defendant-appellant Town of Huntington.
Leon Friedman, New York City (Richard Bellman, of counsel), for plaintiffs-appellees.
Before: OAKES, VAN GRAAFEILAND and NEWMAN, Circuit Judges.
VAN GRAAFEILAND, Circuit Judge:
This is an appeal from that portion of a judgment and order of the United States District Court for the Eastern District of New York (Glasser, J.), which increased an award of attorneys' fees in a civil rights action by $377,276.73, enhancing by 75 percent the lodestar figure of $503,035.65. In granting plaintiffs' application in this manner, the district court increased the allowance for plaintiffs' two principal attorneys from a lodestar hourly rate of $225 to an enhanced rate of $393, and made this retroactive to 1981, the year the attorneys were retained. The allowance for the attorneys' two associates and an NAACP attorney was increased from a lodestar rate of $135 per hour to approximately $170 per hour. The district court's MEMORANDUM AND ORDER is reported at 749 F.Supp. 62 (E.D.N.Y.1990), modified, 762 F.Supp. 528 (E.D.N.Y.1991), and familiarity with it is assumed.
The district court arrived at the lodestar figures by looking to the rates that prevailed in the pertinent field and community in 1990. Neither the record nor the district court's opinion discloses what plaintiffs' attorneys were charging in 1981 or in any of the intervening years during which their associates were employed. The Supreme Court has said that district courts may use currently prevailing rates to compensate for delay in payment of fees previously earned. See Missouri v. Jenkins, 491 U.S. 274, 282-84, 109 S.Ct. 2463, 2468-69, 105 L.Ed.2d 229 (1989). This does not mean, however, that district courts must do so. See Chambless v. Masters, Mates & Pilots Pension Plan, 885 F.2d 1053, 1060 (2d Cir.1989), cert. denied, 496 U.S. 905, 110 S.Ct. 2587, 110 L.Ed.2d 268 (1990). It would be unfair, for example, to use current rates where the services at issue were performed in protracted litigation and current inflated rates did not reflect with some degree of accuracy the loss attributable to delay. See New York State Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1153 (2d Cir.1983). Because defendants have not pursued their challenge to the lodestar awards on appeal, the issue of historical rates and enhancement attributable to delay in payment need not concern us insofar as those awards are concerned. However, because defendants continue to contest the retroactive 75 percent enhancement of the lodestar figures, the issue of historical rates continues to be of significance.
After some uncertainties, the law now is well settled that the lodestar figure in a fee-shifting case is strongly presumed to be reasonable, Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 565, 106 S.Ct. 3088, 3098, 92 L.Ed.2d 439 (1986) ("Delaware Valley I "), and that "enhancement of an award may no longer be justified on the basis of factors such as the novelty of the issues, the complexity of the litigation, the high quality of the representation, or the number of people benefited," Krieger v. Gold Bond Bldg. Prods., 863 F.2d 1091, 1099 (2d Cir.1988) (citing Blum v. Stenson, 465 U.S. 886, 898-900, 104 S.Ct. 1541, 1548-1550, 79 L.Ed.2d 891 (1984)). Modifications of the lodestar figure are permissible, if at all, only in "certain 'rare' and 'exceptional' cases supported by both 'specific evidence' on the record and detailed findings by the lower courts." Delaware Valley I, supra, 478 U.S. at 565, 106 S.Ct. at 3098 (quoting Blum, supra, 465 U.S. at 899, 104 S.Ct. at 1549); see also Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 1941, 76 L.Ed.2d 40 (1983).
The Supreme Court has rejected the argument that a prevailing party is entitled to a fee augmentation to compensate for the risk of nonpayment. Missouri v. Jenkins, supra, 491 U.S. at 282, 109 S.Ct. at 2468 (citing Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 483 U.S. 711, 107 S.Ct. 3078, 97 L.Ed.2d 585 (1987) ("Delaware Valley II ")). Prior to the Supreme Court's decision in Delaware Valley II, however, we had held that the element of risk is pertinent to the extent that it makes it difficult for a would-be plaintiff to secure competent counsel. In Lewis v. Coughlin, 801 F.2d 570, 576 (2d Cir.1986), we said that "an attorney's fee award should be only as large as necessary to attract competent counsel" and that "one relevant factor bearing on high-risk is whether other counsel had declined to take the case because there was little or no prospect of earning a fee." This holding was quoted with apparent approval by Justice White who wrote for four justices in Delaware Valley II, supra, 483 U.S. at 731 n. 12, 107 S.Ct. at 3089 n. 12. Justice O'Connor, who concurred in part in Delaware Valley II, restated the proposition in her own words:
1
I would also hold that a court may not enhance a fee award any more than necessary to bring the fee within the range that would attract competent counsel.
2
Id. at 733, 107 S.Ct. at 3090.
3
Other circuits also have recognized the relevance of evidence that unretained counsel had declined to take the case because of the risk of nonpayment. See Fadhl v. City and County of San Francisco, 859 F.2d 649, 651 (9th Cir.1988) (case rejected by 35 other lawyers); Clark v. City of Los Angeles, 803 F.2d 987, 991 (9th Cir.1986) (case rejected by at least 10 other lawyers); Wildman v. Lerner Stores Corp., 771 F.2d 605, 614 (1st Cir.1985) (district court directed to determine on remand whether other attorneys refused to take the case because of risk of nonpayment). The court below held, however, that it was irrelevant whether plaintiffs had approached lawyers other than those they retained and had been turned down because of the risk of not recovering.
4
Subsequent to Delaware Valley II, we have adhered to our prior holdings, see Dague v. City of Burlington, 935 F.2d 1343, 1360 (2d Cir.1991), cert. granted, --- U.S. ----, 112 S.Ct. 964, 117 L.Ed.2d 130 (1992); Friends of the Earth v. Eastman Kodak Co., 834 F.2d 295, 298 (2d Cir.1987), and we do so here. We do not decide whether proof of substantial difficulties in finding counsel can be established in other cases by lawyers' conclusory affidavits, such as were used in the instant case, although to some extent we share the misgivings of the en banc majority of the Court of Appeals for the District of Columbia as expressed in King v. Palmer, 950 F.2d 771, 779 (D.C.Cir.1991) ("We think it is indisputable that if such evidence were treated as determinative, or even weighty, the substantial difficulties test would be met so easily as to become a mere formality."). We hold that in the instant case the issue of substantial difficulties in finding representation requires some specific factual development, because one of the plaintiffs is the Huntington Branch, National Association for the Advancement of Colored People, "whose purpose in society is to eliminate racial discrimination in housing, employment, education and other areas...." Huntington Branch NAACP v. Town of Huntington, 530 F.Supp. 838, 839 (E.D.N.Y.1981), rev'd, 689 F.2d 391 (2d Cir.1982), cert. denied, 460 U.S. 1069, 103 S.Ct. 1523, 75 L.Ed.2d 947 (1983). As a general rule, fee enhancement is unnecessary "where plaintiffs secure help from organizations whose very purpose is to provide legal help through salaried counsel to those who themselves cannot afford to pay a lawyer." Delaware Valley II, supra, 483 U.S. at 726, 107 S.Ct. at 3087; see also New York State Ass'n for Retarded Children, Inc. v. Carey, supra, 711 F.2d at 1154.
5
The active role that the NAACP, acting through staff and associate counsel, has played in these areas of the law is too well known to require citation. It is worth noting, however, that when an action strikingly similar to the instant one was brought against the Town of Oyster Bay in 1972, NAACP attorneys represented the plaintiff, and the NAACP sought to be added as a party plaintiff "because of its special interest in the problems of housing and discrimination and in order to secure for its members, a great many of whom are Black, economically disadvantaged persons in the New York metropolitan area, equal housing and land use opportunities in the Town." Fair Housing Dev. Fund Corp. v. Burke, 55 F.R.D. 414, 421 (E.D.N.Y.1972). We note also that Charles Sanders, an Assistant General Counsel of the NAACP, aided in the preparation and trial of the action below; that Thomas Atkins, Curtis Rodgers and Margrett Ford, other Assistant General Counsel, who have represented the NAACP in such diverse districts as the Western District of North Carolina, see NAACP, Inc. v. Statesville, 606 F.Supp. 569, 570 (W.D.N.C.1985), and the Eastern District of Michigan, see NAACP, Detroit Branch v. Detroit Police Officers Ass'n, 620 F.Supp. 1173, 1176 (E.D.Mich.1985), were "of counsel" to the plaintiffs on the first appeal to this court, see 689 F.2d at 392, and that Grover G. Hankins, NAACP's General Counsel, was "on the brief" for plaintiffs on the second appeal, see 844 F.2d 926, 927 (2d Cir.1988), aff'd, 488 U.S. 15, 109 S.Ct. 276, 102 L.Ed.2d 180 (1988). This is not an unusual practice. Even where the NAACP is not named as a party plaintiff, as it is in the instant case, it often participates in the legal proceedings. See, e.g., Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 206, 93 S.Ct. 364, 365, 34 L.Ed.2d 415 (1972); Banks v. Perk, 341 F.Supp. 1175, 1177 (N.D.Ohio 1972). Former Judge Costantino was squarely on the mark when he said that one of NAACP's purposes in society was to eliminate housing discrimination.
6
The affidavits of the several attorneys, upon which plaintiffs rely in seeking to justify an enhanced hourly rate of $393, discuss neither the 1981 prevailing rate nor the fact that the Huntington Branch of NAACP is a plaintiff in the case. Neither do they discuss how much of an inducement is reflected in Suffolk Housing Services' promise to pay part of plaintiffs' attorneys' fees and its actual payment of $52,000. Without deciding whether affidavits such as these, standing alone, would be sufficient to warrant a fee enhancement in another case, we hold that they do not suffice in the instant case.
7
The district court's MEMORANDUM AND ORDER has few of the "detailed findings" based upon "specific evidence" that the Supreme Court held to be necessary for the modification of lodestar awards. Delaware Valley I, supra, 478 U.S. at 565, 106 S.Ct. at 3098. Accordingly, upon the remand which we now order, the district court, before ordering a fee enhancement, should make detailed findings supported by specific evidence in the record concerning the following: (1) the customary charges made by plaintiffs' attorneys in 1981; (2) plaintiffs' efforts and specifically those of the plaintiff Huntington Branch, NAACP, to secure or furnish counsel; (3) the effect that NAACP's presence in the case, both as party and counsel, had on the need for fee enhancement; (4) whether Charles Sanders, an Assistant General Counsel for the NAACP, is entitled to an enhancement of his lodestar fees; (5) the effect on the need for fee enhancement of Suffolk Housing's agreement to pay part of the attorneys' fees; (6) the circumstances concerning the receipt and the possible obligation of the plaintiffs or their attorneys to return to Suffolk Housing the $52,000 that it paid to plaintiffs' attorneys. In light of these findings, the district court will then be able to determine (a) whether any fee enhancement is appropriate, and, if so, in what amount, (b) whether plaintiffs or their attorneys are legally obligated to return the $52,000 to Suffolk Housing, (c) whether a multiplier, if allowed at all, should in any event be applied to the noncontingent fee of $52,000, and (d) whether the multiplier, if allowed at all, should be applied to the fees accrued after the 1988 decisions which removed the contingency of recovery from the case.
8
That part of the district court's judgment and order allowing a fee enhancement is vacated and the matter is returned to the district court for further proceedings consistent with this opinion. The district court may, however, defer further proceedings to await possible additional enlightenment in this troublesome area by the Supreme Court's anticipated decision in Dague v. City of Burlington, supra, in which certiorari has been granted. | 01-04-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/5283616/ | Order
Per Curiam:
Mr. Allan L. Petty appeals the judgment of the Circuit Court of Boone County, Missouri, finding him guilty, following a jury trial, of statutory rape in the first degree. Because a published opinion would have no precedential value, we have instead provided a separate memorandum of law to the parties explaining our ruling. The judgment is affirmed. Rule 30.25(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283617/ | Order
Per Curiam:
Rakeyia M. Young appeals the circuit court’s grant of summary judgment in favor of Respondent, Asset Acceptance, LLC, on its claims for Suit on Contract, Money Had and Received, and Account Stated. Though less than clear, it appears that Young is arguing that Asset Acceptance was not entitled to summary judgment insofar as Asset Acceptance failed to demonstrate that there were no genuine issues of material fact. Affirmed. Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283618/ | ORDER
Per Curiam:
Mr. Lakeir Brown appeals the judgment denying a Rule 29.15 post-conviction motion. He alleges ineffective assistance of trial counsel.
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/5283619/ | ORDER
PER CURIAM:
Appellant Eric Schaefer pled guilty to one count of domestic assault in the first degree in the Circuit Court of Jackson County, and was sentenced to a seven-year term of imprisonment. Schaefer filed a motion for post-conviction relief under Supreme Court Rule 24.035. The circuit court denied Schaefer’s motion following an evidentiary hearing. Schaefer appeals, arguing that his plea counsel was ineffective because counsel falsely assured him that he would not be sentenced to more than the time he had already served, approximately three years. We affirm. Because a published opinion would have no precedential' value, an unpublished memorandum setting forth the reasons for this order has been provided to the parties. Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283620/ | ORDER
PER CURIAM:
Jackson County, Missouri (“the County”) appeals from a judgment entered in favor of Isiah Pickett in a slip-and-fall, *926negligence action brought by Pickett against the County. After a thorough review of the record, we conclude that the judgment is supported by substantial evidence, is not against the weight of the evidence, and that no error of law appears. No jurisprudential purpose would be served by a formal, published opinion; however, a memorandum explaining the reasons for our decision has been provided to the parties.
Judgment affirmed. Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/584916/ | 966 F.2d 1452
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Starlin T. HARGROVE, Petitioner-Appellant,v.Terry MORRIS, Respondent-Appellee.
No. 92-3093.
United States Court of Appeals, Sixth Circuit.
July 1, 1992.
Before BOYCE F. MARTIN Jr., and SUHRHEINRICH, Circuit Judges, and KRUPANSKY, Senior Circuit Judge.
ORDER
1
Starlin T. Hargrove, a pro se Ohio prisoner, appeals a district court order dismissing his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).
2
After a jury trial, Hargrove was convicted on four counts of aggravated robbery. All counts included a firearm specification pursuant to Ohio Rev.Code § 2929.71. He received consecutive five to twenty-five year terms for each aggravated robbery conviction. The trial court merged one of the firearm specifications for two of the robbery counts while imposing three additional consecutive three year terms for each of the remaining firearm specifications.
3
His direct appeal was denied by the Ohio appellate courts. He then filed his first habeas corpus petition in the federal district court which was dismissed because Hargrove did not exhaust his state court remedies. He then instituted post-conviction proceedings which were unsuccessful. Hargrove has fully exhausted his available state court remedies.
4
He filed his current habeas corpus petition alleging the following seven grounds for relief: 1) his trial counsel's representation was ineffective; 2) his appellate counsel's representation was ineffective; 3) his incarceration, pursuant to Ohio Rev.Code § 2929.71(A), violates the Equal Protection Clause; 4) he was subjected to multiple punishments for the same offense in violation of his protection against double jeopardy; 5) the trial court erred when it refused to declare a mistrial after the prosecutor improperly presented evidence of a prior juvenile conviction; 6) the prosecutor's derogatory and prejudicial comments denied him a fair trial; and 7) the evidence is insufficient to support a guilty verdict. A magistrate judge recommended denying the petition in a 31 page report. After de novo review in light of Hargrove's objections, the district court dismissed his habeas petition.
5
Hargrove has filed a timely appeal. His brief has been construed as alleging the same grounds for relief which he raised in the district court. He moves for the appointment of counsel, and requests, in his brief, leave to proceed as a pauper and a transcript at government expense.
6
Upon review, we conclude that the district court properly dismissed Hargrove's habeas petition as he has not shown that he was denied a fundamentally fair trial or appeal. See Lundy v. Campbell, 888 F.2d 467, 469-70 (6th Cir.1989), cert. denied, 495 U.S. 950 (1990).
7
Accordingly, Hargrove's request to proceed as a pauper is granted, his motion for counsel and request for a free transcript are denied, and the judgment of the district court is hereby affirmed. Rule 9(b)(3), Rules of the Sixth Circuit. | 01-04-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/5283621/ | ORDER
PER CURIAM:
Maurice L. Glenn pleaded guilty to charges of second-degree robbery, armed criminal action, felonious restraint, receiving stolen property, and resisting arrest, in addition to two probation violations. Following his guilty pleas, he filed a motion for post-conviction relief under Supreme Court Rule 24.035, which the circuit court denied following an evidentiary hearing. Glenn appeals. He argues that he received ineffective assistance from his plea counsel, because counsel’s failure to share discovery materials with him and to adequately prepare for trial left Glenn with no choice but to plead guilty. We affirm. Because a published opinion would have no precedential value, a memorandum setting forth the reasons for this order has been provided to the parties. Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/584915/ | 966 F.2d 1452
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Stacie Ben HUNT, Plaintiff-Appellant,v.FELD, Officer, Defendant-Appellee.
No. 91-1946.
United States Court of Appeals, Sixth Circuit.
June 16, 1992.
Before MERRITT, Chief Judge, MILBURN, Circuit Judge, and BAILEY BROWN, Senior Circuit Judge.
ORDER
1
Stacie Ben Hunt, pro se, appeals the district court's judgment granting the defendant's motion for summary judgment and dismissing this civil rights action filed under 42 U.S.C. § 1983. The defendant is an officer with the Detroit Police Department. This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).
2
In his complaint, Hunt alleged that Feld deliberately withheld certain evidence in the trunk of his car for a period of four and one half years, which evidence was exculpatory and should have been produced by the prosecution prior to his trial pursuant to the Brady doctrine. See Brady v. Maryland, 373 U.S. 83 (1963). Hunt further alleged that this same evidence, in the form of two civil complaints, was false evidence used to support the probable cause necessary to issue the search warrant which led to his ultimate arrest in 1983. Finally, the plaintiff alleges that the state disregarded the court's discovery order requiring it to disclose material favorable to the accused, and, therefore, violated his right to due process. The plaintiff admitted that a fourth allegation, that the defendant used excessive force during the 1983 search and seizure, was barred by the Michigan Statute of Limitations, applicable to § 1983 actions. Thus, the only issues on appeal are those set forth above.
3
The district court dismissed this complaint for lack of the requisite specificity to constitute a valid claim under § 1983. See Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir.1987). Upon review, this court concludes that the district court's dismissal should be affirmed for the reasons stated by that court. The additional facts that Hunt now alleges were not first presented to the district court. Therefore, these facts may not be considered for the first time, on appeal. White v. Anchor Motor Freight, Inc., 899 F.2d 555, 559 (6th Cir.1990).
4
Accordingly, the district court's judgment dismissing this complaint is hereby affirmed. Rule 9(b)(3), Rules of the Sixth Circuit. | 01-04-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/547337/ | 912 F.2d 1448
Carl L. BAKER, Petitioner,v.DEPARTMENT OF HEALTH AND HUMAN SERVICES, Respondent.
No. 89-3430.
United States Court of Appeals,Federal Circuit.
Aug. 31, 1990.
Louis J. Kozlakowski, Jr., Blum, Yumkas, Mailman, Gutman & Denick, P.A., of Baltimore, Md., argued for petitioner. With him on the brief was Edward J. Gutman.
Martha H. DeGraff, Attorney, Commercial Litigation Branch, Dept. of Justice, of Washington, D.C., argued for respondent. With her on the brief were Stuart M. Gerson, Asst. Atty. Gen., David M. Cohen, Director and Stephen J. McHale, Asst. Director.
Before MAYER, Circuit Judge, COWEN, Senior Circuit Judge, and ALARCON, Circuit Judge.*
OPINION
ALARCON, Circuit Judge.
1
Carl L. Baker appeals from the final decision of the Merit Systems Protection Board (the Board), which removed him from his position as a supervising computer specialist with the Department of Health and Human Services, Social Security Administration (the SSA), for accepting a gratuity and divulging confidential information to a potential subcontractor. 41 M.S.P.R. 363. We affirm.
BACKGROUND
2
Prior to his removal, Baker had been employed by the SSA for twenty-nine years. During his last nine years of service, he advanced to a GM-15 Supervisory Computer Specialist and became the Deputy Director of the Office of Computer Processing Operations. In his capacity as Deputy Director, Baker was involved in the awarding of contracts to companies eligible to participate in the Small Business Administration's business development program pursuant to section 8(a) of the Small Business Act, 15 U.S.C. Sec. 637(a) (the section 8(a) program).
3
The Small Business Administration's section 8(a) program is designed to promote the viability of socially and economically disadvantaged small business concerns by empowering the Small Business Administration (SBA) to enter into contracts with other federal agencies and "to arrange for the performance of such contracts by negotiating or otherwise letting subcontracts to small business concerns." Baillie Trash Hauling, Inc. v. Kleppe, 477 F.2d 696, 702 (5th Cir.1973), cert. denied, 415 U.S. 914, 94 S. Ct. 1410, 39 L. Ed. 2d 468 (1974). In order to accomplish this goal, the SBA may dispense with competitive bidding. Id. at 708. In a noncompetitive contract award, the SBA awards the contract based on the technical capabilities of the company, not on price competition. 15 U.S.C. Sec. 637(a)(2)(D), (a)(7) (1988). The SBA may also provide socially and economically disadvantaged business concerns with technical and managerial assistanceby advising and counseling on matters in connection with Government procurement and property disposal and on policies, principles and practices of good management, including but not limited to cost accounting, methods of financing, business insurance, accident control, wage incentives, computer security, and methods engineering, by cooperating and advising with voluntary, business, educational, and other nonprofit organizations, associations, and institutions and with other Federal and State agencies, by maintaining a clearinghouse for information concerning the management, financing, and operation of small-business enterprises, by disseminating such information, and by such other activities as are deemed appropriate by the Administration.
4
Id. Sec. 637(b)(1)(A).
5
In 1987, the SBA delegated the selection of subcontractors and the negotiation of SSA procurement contracts to the SSA. The SSA maintained a list of companies that were eligible to participate in the section 8(a) program. The SSA also maintained information regarding the technical capabilities of each company.
6
At this time, Baker was one of the persons responsible for reviewing the technical information in the SSA's files and for selecting five companies to make presentations to the SSA technical review committee for an annual wage reporting technical support services contract (the AWR contract). Baker was also a member of the five-person technical review committee. This committee had the responsibility of evaluating the technical capabilities of each company and making a recommendation to the Small Business Administration for the award of the AWR contract. The five companies selected to make presentations for the AWR contract award were Washington Data Systems, Information Control Systems Corporation, American Information Systems, Kenrob & Associates, Inc., and Computer Dynamics, Inc.
7
In November 1987, after the five companies had been selected to appear before the technical review committee, but prior to the date of their presentations, Baker accepted an invitation to join Jack Wicklein, the marketing manager for Rehabilitation Group, Inc. (RGI), for lunch. Prior to resigning to work in the private sector, Wicklein had served as the SSA Associate Commissioner for Systems Operations. In that capacity, Wicklein was Baker's superior. Baker and Wicklein had developed a personal friendship that endured after Wicklein left government service. Baker was aware that Wicklein was then employed by RGI. Baker also knew that RGI was a subcontractor to one of the five companies that had been selected to appear before the technical review committee.
8
Several days before the luncheon, Wicklein asked Baker if Richard Quigg could attend. Notwithstanding his misgivings because he knew that Quigg was the president of RGI, Baker agreed.
9
On November 27, 1987, Baker met Quigg and Wicklein for lunch. Baker gave the following description of the lunch in his sworn affidavit:
10
Eventually, Quigg asked me how the Annual Wage Report (AWR) contract was going. After I responded by saying that it was going along fine, Quigg asked me how I would rate the five corporations that were in the running for the contract. I told Quigg that at the present I would probably have to rate:
Washington Data Systems # 1
Kenrob and Associates # 2
Information Control Systems # 3
American Information Systems # 4
Computer Dynamics # 5
11
I did not think that my numerical rating of the corporations would present a problem to Quigg because I knew that RGI had teamed with Washington Data Systems on a previous contract. Also, I felt at that time that my appraisal of the corporations was reasonably accurate based on my knowledge[ ] of their abilities.
12
I was surprised to hear Quigg say that he had a problem with Washington Data Systems being number one because RGI was teamed with Kenrob and Associates for the AWR contract. Quigg then asked me how I could make number two (Kenrob and Associates) number one.
13
At that point, I reached to Jack Wicklein, touched him on the chest and asked, "Are you wired?"
14
"You can't ask me those questions!" Jack immediately excused himself and went to the men's room where he stayed for approximately 10 minutes. While Jack was away, I told Quigg in no uncertain terms how upset I was that he tried to compromise my integrity. However, when Jack returned, Quigg again asked me how I could make number two number one. I then said, "Are you sure you guys aren't wired?"
15
After saying that, I told Jack and Quigg that that was it and that I was leaving. I offered to pay the bill, but they said that they would take care of it.
16
After the companies' presentations to the technical review committee, the committee decided to recommend Washington Data Systems, Inc. for the AWR contract. During the week of December 21, 1987, more than three weeks after Baker's meeting with Quigg and Wicklein, the other companies were notified of the technical review committee's recommendation.
17
On December 24, 1987, Wicklein told Baker during a telephone conversation that Quigg was considering filing a lawsuit because Baker had expressed his preference for Washington Data Systems, Inc., prior to the presentations to the technical review committee. Four days later, Baker met with Bert Reid, Director of the Division of ADP and Telecommunications Contracts, and reported to him that he had had lunch with Wicklein and Quigg prior to the presentations. Thereafter, on May 17, 1988, the SSA canceled the AWR solicitation.
18
On July 18, 1988, Baker's employment with the SSA was terminated for accepting a gratuitous meal and for divulging confidential information to the representatives of a company teamed with another company involved in competing for an SSA contract. On November 1, 1988, the administrative law judge (the ALJ) sustained the charges against Baker. The ALJ ordered the SSA to cancel Baker's removal, however, and to demote him to a non-supervisory position.
19
Baker filed a petition for review of the ALJ's decision. The SSA filed a cross-petition challenging that portion of the order regarding the reduced penalty imposed by the ALJ. The Board denied Baker's petition pursuant to 5 C.F.R. Sec. 1201.115. The SSA's petition was granted. The Board concluded that the removal penalty should not have been mitigated by the ALJ. Baker timely appealed.
DISCUSSION
20
Baker presents the following contentions in his appeal:
21
1. The Department of Health and Human Services Standards of Conduct (the HHS Standards) do not apply to section 8(a) contracts.
22
2. The Board's decision is not supported by substantial evidence.
23
3. The ALJ erred in imposing pre-hearing sanctions.
24
4. The Board erred in failing to reverse the SSA's removal decision because the SSA committed harmful error in applying its oral reply procedure.
25
5. The sanction of removal has not been imposed on similarly situated SSA officials.
26
We address each of these arguments in turn.
27
I. Applicability of the Department's Standards of Conduct
28
45 C.F.R. Sec. 73.735-307 sets forth the HHS Standard governing the use of official information. Section 73.735-307 provides in pertinent part:
29
(a) The public interest requires that certain information in the possession of the Government be kept confidential, and released only with general or specific authority under Department or operating component regulations. Such information may involve the national security or be private, personal, or business information which has been furnished to the Government in confidence. In addition, information in the possession of the Government and not generally available may not be used for private gain. The following paragraphs set forth the rules to be followed by Department employees in handling information in official files or documents:
30
....
31
(4) Use of information for private gain. Government employees are sometimes able to obtain information about some action the Government is about to take or some other matter which is not generally known. Information of this kind shall not be used by the employee to further his or her or someone else's private financial or other interests. Such a use of official information is clearly a violation of a public trust. Employees shall not, directly or indirectly, make use of, or permit others to make use of, for the purpose of furthering any private interest, official information not made available to the general public.
32
45 C.F.R. Sec. 73.735-307 (1989).
33
Baker contends that because of the exemption from competitive bidding accorded to disadvantaged business concerns and the requirement that they be provided with technical assistance pursuant to 15 U.S.C. Sec. 637(b), the HHS Standards do not preclude a government officer in his position from disclosing information that would enable a potential subcontractor to obtain a government contract. He argues that such a disclosure promotes the goals of the section 8(a) program.
34
Baker misapprehends the scope of the HHS Standards and the design of the section 8(a) program. The HHS Standards apply to each officer or employee of the Department in order "[t]o assure that the business of the Department of Health and Human Services (HHS) is conducted effectively, objectively, and without improper influence or the appearance of improper influence." 45 C.F.R. Sec. 73.735-101 (1989). The regulations prohibit all employees of the Department from permitting others to make use, for private interest, of "official information not made available to the general public." Id. Sec. 73.735-307(a)(4). As an employee of the Department, Baker was subject to this regulation.
35
The structure of the regulations governing the section 8(a) program reinforces this conclusion. The SSA, in conjunction with the SBA, may hold a limited technical competition "for consulting services, research, computer science and related services, research, development, test, evaluation, demonstration, and technical and professional services, where technical aspects, methodology, or approach are of primary importance rather than price." 48 C.F.R. Sec. 319.870(a)(2) (1989). 48 C.F.R. Sec. 319.870(c) sets forth the procedure for holding a limited technical competition:
36
(c) Technical evaluation. (1) When the concerns to be included in the limited technical competition have been determined by the contracting activity, in consultation with SBA, the contracting officer shall hold a technical competition among those concerns. Cost factors shall not be included in the technical proposals nor brought out in any manner during technical discussions of the proposals.
37
(2) When the limited technical competition is completed, a technical evaluation report shall be prepared and signed by the technical evaluators. The report shall indicate the ranking of the concerns, include a narrative evaluation specifying the strengths and weaknesses of each concern, and state any reservations or qualifications that might bear upon the selection of a source for negotiation and award. The technical evaluation report is required whether the limited technical competition was conducted on the basis of written technical proposals or oral technical discussions. The technical evaluation report shall be furnished [to] the contracting officer and maintained as a permanent record in the contract file.
38
(3) The contracting officer shall send a letter to the SBA naming the highest rated concern and indicating the concern appears to have the capability to perform the requirement. The letter shall request authority to negotiate with the concern nominated for award, and include the title of the acquisition and the national buy number assigned by SBA. No other data need be furnished to SBA. Within ten (10) business days after receipt of the letter, the local SBA office will contact the contracting officer to arrange for contract negotiation. If a shorter response time is required, the contracting officer should notify SBA in the letter.
39
Id. Sec. 319.870(c). Although the SSA is not required to conduct a technical competition among the participating concerns under these regulations, if such a limited competition is utilized, a technical evaluation is to be made and disclosed only after the limited technical competition. Id. Sec. 319.870(c). The unsuccessful participating concerns are then counseled in order to strengthen future proposals. Id. Sec. 319.870(f). This sequence of disclosure establishes that the rankings of the firms participating in the limited technical competition are "official information not made available to the general public" at all times before the limited technical competition.
40
The HHS Standards demand an even-handed administration of the section 8(a) program. The fact that disadvantaged firms are entitled to technical and managerial assistance does not justify leaking "official information" that further disadvantages other similarly situated competitors. Baker had no authority to give RGI such a competitive edge.
41
II. Sufficiency of the Evidence to Support the Removal Penalty
42
Baker maintains that the Board's findings that he divulged confidential information to a potential subcontractor and that he accepted a gratuity from a potential subcontractor are not supported by substantial evidence.
43
Pursuant to 5 U.S.C. Sec. 7703(c), the Board's decisions must be sustained unless found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, or unsupported by substantial evidence. Spezzaferro v. FAA, 807 F.2d 169, 173 (Fed.Cir.1986). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Massa v. Department of Defense, 815 F.2d 69, 72 (Fed.Cir.1987).
A. Confidential Information
44
Baker first argues that the information he divulged was not confidential because his opinion concerning the relative technical capabilities of the companies being considered for the AWR contract was based on their past performance on SSA contracts.
45
Section 73.735-307(a)(4) of the HHS Standards states that government employees may not divulge information to which they are privy because of their government employment to others who may use it for private gain when that information is regarding "some action the Government is about to take or some other matter which is not generally known." 45 C.F.R. Sec. 73.735-307(a)(4). The Board affirmed the ALJ's finding that Baker had divulged confidential government information in violation of section 73.735-307(4).
46
Baker testified that his duties included contract administration and procurement. He stated that he was one of the people "most essential" in the section 8(a) contract procurement process. Because of his significant role in the process, he was privy to confidential government information. Disclosure of this information, or any evaluations made therefrom, could directly affect the procurement, as well as compromise Baker's position.
47
Baker admitted giving the ranking information to Wicklein and Quigg. This information was "not made available to the general public." This disclosure provided RGI with an opportunity not available to other participants to better its chances of participating in the AWR contract. Wicklein and Quigg could have used the ranking information to change RGI's teaming. Thus, Baker's opinion of the ranking of the firms, by virtue of his access to information valuable to a potential subcontractor such as RGI, and his prominent position in the procurement process, violated the prohibition of disclosure of official information. We therefore conclude that the Board's finding that Baker released information in violation of section 73.735-307(a) is supported by substantial evidence.
48
Baker next asserts that disclosure of the ranking information did not violate section 73.735-307(a) because the government may disclose the names of firms that have been selected to receive a solicitation to enable subcontractors to contact prospective prime contractors early in the procurement. 48 C.F.R. Sec. 5.206(a)(1) (1989). 48 C.F.R. Sec. 5.206(a)(1) provides, in pertinent part:
49
Contracting officers shall encourage prime contractors and subcontractors to use the [Commerce Business Daily] to publicize subcontracting opportunities stemming from their Government business. Subcontract information should be mailed directly to the [Commerce Business Daily] under the heading "Subcontracting Assistance Wanted," using the format in 5.207.
50
Id. This section does not authorize a government officer to divulge information at a private meeting with a potential subcontractor.
B. Gratuitous Lunch
51
Baker next contends that the Board's finding that he accepted a gratuity from a potential subcontractor is not supported by substantial evidence. Relying on Massa v. Department of Defense, 815 F.2d 69 (Fed.Cir.1987), Baker asserts that he did not have actual or constructive knowledge that he was receiving something of value from a potential subcontractor. He argues that the evidence shows that the lunch was a social engagement between friends.
52
Section 73.735-501 of the HHS Standards provides, in pertinent part:
53
(a) Except as provided in 73.735-502 and 73.735-506, an employee shall not directly or indirectly solicit or accept anything of monetary value, including gifts, gratuities, favors, entertainment or loans from a person who the employee knows, or should know because of the nature of the employee's work:
54
(1) Has, or is seeking to obtain, contractual or other business or financial relations with the employee's principal operating component, or sub-unit thereof; or with a component of the Department with respect to which the employee has official duties;
55
* * * * * *
56
(3) Has interests that may be substantially affected by the performance or non-performance of the employee's official duties.
57
45 C.F.R. Sec. 73.735-501 (1989). Section 73.735-502(d) specifies that "[a]n employee may accept food ... only if the employee is properly in attendance and there is not a reasonable opportunity to pay." Id. Sec. 73.735-502(d).
58
The Board adopted the ALJ's finding that Baker knew or should have known that he had accepted a gratuity when he left the restaurant without paying for his meal. The ALJ based her finding on testimony that Baker was aware of Quigg's and Wicklein's positions at RGI, that he had agreed to meet with them, that he discussed the AWR contract with them, that he told them that the firm with which they were paired was not the top prospect for the award of the contract, and that he left the luncheon knowing that Quigg or Wicklein would have to pay the bill. These facts can be reasonably interpreted to demonstrate Baker's actual or constructive knowledge that he "was receiving something of value from a contractor," Massa v. Department of Defense, 815 F.2d at 72 (emphasis in original), rather than a personal friend. The Board's finding that Baker accepted a gratuitous lunch from a potential subcontractor is based on substantial evidence.
III. Reasonableness of the Penalty
59
A. Sufficiency of the Evidence to Modify the ALJ's Penalty Mitigation
60
Baker argues that the Board abused its discretion by reversing the ALJ's mitigation of the penalty of termination. The review by the Board of an agency action is denominated "an appeal" of agency action. 5 U.S.C. Sec. 7701(a) (1988). Even though the employee is the initiating party, the agency is required to establish its case to the Board by a preponderance of the evidence. Id. Sec. 7701(c). Under this standard, the "appeal" requires a de novo determination of the facts. Jackson v. Veterans Admin., 768 F.2d 1325, 1329 (Fed.Cir.1985). The Board initially delegates this duty to an administrative judge. The Board may adopt the administrative judge's decision or modify it. Id. at 1330; 5 C.F.R. Sec. 1201.116(a)(5) (1989). The Board's decision to reverse the administrative judge's determination must be supported by substantial evidence. Jackson v. Veterans Admin., 768 F.2d at 1330.
61
In this matter, the Board examined the evidence and concluded that the factors supporting mitigation of the penalty were outweighed by the factors supporting termination of Baker's employment. The Board found that Baker's conduct was "serious and intentional" and that it related directly to his duties and the agency's mission. The Board based these findings on the evidence in the record that Baker played a key role in the section 8(a) contracting process and was responsible for assigning the administration of contracts to subordinates. Substantial evidence in the record supports each of the Board's findings. The Board also found that Baker's conduct undermined the integrity of the SSA's contracting process and contributed to the cancellation of a multi-million dollar contract. The Board did not abuse its discretion by reversing the sanction imposed by the ALJ.
B. Reasonableness of the Removal Penalty
62
Baker contends that the removal penalty was grossly disproportionate to his alleged misconduct. "It is a well-established rule of civil service law that the penalty for employee misconduct is left to the sound discretion of the agency." Miguel v. Department of the Army, 727 F.2d 1081, 1083 (Fed.Cir.1984). We will defer to the agency's choice of penalty unless it is "grossly disproportionate to the offense charged." Id.
63
We are persuaded that the penalty was not grossly disproportionate. Baker was in a supervisory position within the Department. As such, he was responsible for enforcing the HHS Standards against his subordinates. 45 C.F.R. Sec. 73.735-201(b) (1989). Baker had access to information about the AWR procurement solely because of his key position within the Department. He abused the trust reposed in him by divulging his assessment of the firms' rankings. Baker's conduct gave a potential subcontractor an unfair opportunity to foreclose other participants from obtaining a government contract. As an employee with twenty-nine years' experience in government service, Baker should have been aware of the seriousness of his conduct in meeting with a potential subcontractor and responding to the subcontractor's questions concerning the competitive rankings. The government presented evidence that Baker's violation of trust contributed to the cancellation of a multi-million dollar procurement program that was intended to benefit disadvantaged small business concerns. Under these circumstances, the penalty of removal was not grossly disproportionate.
64
IV. Validity of the Evidentiary Sanctions Imposed by the ALJ
65
On August 23, 1988, the ALJ issued an order setting deadlines for the submission of prehearing materials. On September 9, 1988, the ALJ issued an order postponing the date of Baker's hearing and setting a new deadline for the receipt of all evidence to be presented at the hearing, including a list of witnesses and a summary of their testimony. The order stated, in pertinent part:
66
At the request of the appellant, the submission date for prehearing material has been pushed back until October 1, 1988. All material and motions must be received in this office by that date. Nothing will be accepted after that day absent a showing that it is new and material evidence that could not be discovered prior to the established due date.
67
(Emphasis added). Baker failed to present his list of witnesses on the date established by the ALJ. The ALJ granted the Department's motion to strike those witnesses pursuant to 5 C.F.R. Secs. 1201.41(11) and 1201.43. The ALJ permitted Baker to call Wicklein as a witness, but Wicklein refused to appear without a subpoena. Because the Board refused to issue a subpoena, however, Wicklein was unavailable to testify. Baker contends that the ALJ's order imposing sanctions was harmful procedural error, and that the Board erred in denying his petition for review without addressing this contention. He further argues that the Board abused its discretion by refusing to issue a subpoena to Wicklein.
68
The ALJ had the power to grant sanctions pursuant to 5 C.F.R. Sec. 1201.43. 5 C.F.R. Sec. 1201.41(11) (1990). When a party fails to comply with an order for the production of witnesses, an administrative law judge may "[s]trike any appropriate part of the pleadings or other submissions of the party failing to comply with such order." Id. Sec. 1201.43(a)(4). Such sanctions may be imposed by an administrative law judge "as necessary to serve the ends of justice." Id. Sec. 1201.43.
69
Sanctions relating to discovery and evidentiary issues fall within the sound discretion of the Board and its officials. Curtin v. Office of Personnel Management, 846 F.2d 1373, 1378 (Fed.Cir.1988); 5 C.F.R. Sec. 1201.41(a), (b). "This court will not overturn the board on such matters unless an abuse of discretion is clear and is harmful." Curtin v. Office of Personnel Management, 846 F.2d at 1378. If an abuse of discretion did occur with respect to the ALJ's evidentiary rulings, Baker must prove harmful error "that could have affected the outcome of the case." Id. at 1379.
70
The ALJ acted within her sound discretion by striking Baker's untimely submission of his witness list. The deadline for submitting this material had been postponed for two weeks at Baker's request. The order stated unequivocally that October 1, 1988 was the deadline for receipt of Baker's witness list in the ALJ's office. Baker failed to mail his witness list by that date. Baker also failed to make a showing that his witness list contained new and material evidence that could not have been discovered prior to October 1, 1988. Because Baker failed to comply with the ALJ's order, the imposition of sanctions pursuant to 5 C.F.R. Sec. 1201.43(a) was not an abuse of discretion.
71
Baker contends that the Board erred by refusing to issue a subpoena to Wicklein. The ALJ's August 23, 1988 order directed Baker to file a motion for a subpoena of all non-federal witnesses by September 16, 1988, pursuant to 5 C.F.R. Sec. 1201.81(b). Baker has failed to point to any evidence in the record that demonstrates that he filed a motion for a subpoena of Wicklein. The Board did not err in refusing to issue the subpoena.
72
The Board did not specifically address Baker's contention that the ALJ committed harmful procedural error by striking the witness list. The Board concluded, instead, that Baker had failed to establish that new and material evidence was available that could not have been presented at the hearing or that the ALJ's decision was based on an erroneous interpretation of a statute or regulation. 5 C.F.R. Sec. 1201.115 (1990). Baker argues that the Board abused its discretion by failing to explain its decision to deny his petition for review. Baker relies on Spezzaferro v. FAA, 807 F.2d 169 (Fed.Cir.1986), for the proposition that the Board may not conclude that error is not harmful without articulating its reasoning.
73
Baker was required to demonstrate that the ALJ abused her discretion before the Board was required to consider any alleged harm resulting from the challenged order. See Curtin v. Office of Personnel Management, 846 F.2d at 1379 ("If an abuse of discretion did occur with respect to the discovery and evidentiary rulings, in order for petitioner to prevail on these issues he must prove that the error caused substantial harm or prejudice to his rights which could have affected the outcome of the case."). Baker has been unable to show that the ALJ's imposition of sanctions was an abuse of discretion. Accordingly, the Board did not err in failing to explain its decision.
V. Oral Reply Procedure
74
Baker argues that the SSA's oral reply procedure was improperly applied because the reply official did not have the authority to make or recommend a final decision in this matter. Baker asserts that this alleged procedural error was prejudicial. Pursuant to 5 U.S.C. Sec. 7513, a government employee against whom a personnel action is proposed is entitled to:
75
(1) at least 30 days' advance written notice, unless there is reasonable cause to believe the employee has committed a crime for which a sentence of imprisonment may be imposed, stating the specific reasons for the proposed action;
76
(2) a reasonable time, but not less than 7 days, to furnish affidavits and other documentary evidence in support of the answer;
77
(3) to be represented by an attorney or other representative; and
78
(4) a written decision and the specific reasons therefor at the earliest practicable date.
79
5 U.S.C. Sec. 7513 (1988). The Department must "designate an official to hear the employee's oral answer who has authority either to make or recommend a final decision on the proposed adverse action." 5 C.F.R. Sec. 752.404(c)(2) (1990).
80
The reply official heard Baker's arguments and presented a written summary of the hearing to the deciding official. Baker contends that this procedure resulted in harmful error. The ALJ found that the reply official had the authority to make a recommendation to the deciding official.
81
An employee who claims that the oral reply was flawed must establish that the authority of the oral reply officer was erroneously restricted and that this error was harmful. Schultz v. Department of Transp., 773 F.2d 296, 299 (Fed.Cir.1985). Presentation of a summary of the employee's arguments and a recommendation by the reply official is sufficient to satisfy the oral reply requirements. Monroe v. Department of the Treasury, 770 F.2d 1044, 1046-47 (Fed.Cir.1985), cert. denied, 475 U.S. 1045, 106 S. Ct. 1260, 89 L. Ed. 2d 570 (1986).
82
Several factors support the ALJ's conclusion that the oral reply procedure was not flawed. First, the deciding officer testified that the reply officer made a recommendation to settle the case. Second, the reply officer participated actively in the hearing, fulfilling Baker's entitlement to "a general give and take discussion of the case." Ricucci v. United States, 192 Ct. Cl. 1, 3-4, 425 F.2d 1252, 1254-55 (1970). Third, the reply officer was a line officer and therefore could be expected to make a recommendation that would "have weight" with the deciding officer. Id., 192 Ct.Cl. at 4, 425 F.2d at 1255. Baker has failed to demonstrate that the reply officer did not have the authority to make a recommendation to the deciding official.
VI. Disparate Treatment
83
Baker maintains that he received disparate treatment because other SSA officials named in a General Accounting Office report as having accepted gratuities from subcontractors were not removed from their positions as he had been. The ALJ found this argument unpersuasive because Baker did not establish that he and the employees mentioned in the report were "similarly situated." The ALJ found that the employees named in the General Accounting Office report did not improperly disclose government information.
84
In Facer v. Department of the Air Force, 836 F.2d 535 (Fed.Cir.1988), we held that a person does not have a legally protected interest in having a misconduct penalty similar to that imposed on another. Id. at 539. An exception applies only if employees are knowingly treated differently. Id. Baker does not allege that the agency knowingly treated him differently. Therefore, the Board did not err in denying Baker's petition on the ground that he did not prove disparate treatment.CONCLUSION
85
The Board's decision removing Baker from his position at the SSA for divulging confidential information to a potential subcontractor and for accepting a gratuity from a potential subcontractor is AFFIRMED.
AFFIRMED
*
Honorable Arthur L. Alarcon, United States Circuit Judge for the Ninth Circuit Court of Appeals, sitting by designation | 01-04-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/578232/ | 957 F.2d 178
60 USLW 2659, 15 Employee Benefits Cas. 1007
MDPHYSICIANS & ASSOCIATES, INC., Plaintiff-Appellant,v.STATE BOARD OF INSURANCE, A Body Politic of the State ofTexas, et al., Defendants-Appellees.
No. 91-1469.
United States Court of Appeals,Fifth Circuit.
April 1, 1992.
Richard C. Titus, Raleigh, N.C., for plaintiff-appellant.
Fred I. Lewis, Sedora Rosetta Jefferson, Asst. Attys. Gen., Dan Morales, Atty. Gen., Austin, Tex., for defendants-appellees.
Tess J. Ferrara, Atty., Dept. of Labor, Plan Benefits Sec. Div., Washington, D.C., for amicus curiae Secretary of Labor.
Appeal from the United States District Court for the Northern District of Texas.
Before GOLDBERG, JOLLY, and WIENER, Circuit Judges.
GOLDBERG, Circuit Judge:
1
This case involves the definition of an "employee welfare benefit plan" found in the Employee Retirement Income Security Act of 1974. We confess that the parties seemed "bewitched, bothered and bewildered"1 in attempting to apply the statute to the facts of this case at oral argument--the outset of our journey through ERISA. The statutory map, along with statements of legislative purpose by Congress, the map-maker, enables us to answer the issue presented: Whether the MDPhysicians & Associates, Inc. Employee Benefit Plan constituted an "employee welfare benefit plan" within the meaning of ERISA. We hold that the plan is not an "employee welfare benefit plan" and affirm the district court's dismissal for lack of subject matter jurisdiction.I.
2
MDPhysicians, Inc. ("MDPhysicians," also known as MDPhysicians of Amarillo, Inc.) is an independent physician practice association of over 130 doctors who work in the Amarillo, Texas area. MDPhysicians, a Texas corporation, contracts its professional services to health care providers. In 1988, MDPhysicians formed an entity called MDPhysicians & Associates, Inc. ("MDP") and created the MDPhysicians and Associates, Inc. Employee Benefit Plan ("MDP Plan" or "Plan"). MDP adopted the Plan, served as Plan Administrator, and funded the Plan through a trust established by itself and three physicians. The same three doctors who control MDPhysicians, the practice association, also control the MDP entity and the MDP Plan--not only are these three doctors officers of MDP, but they also serve as trustees of the Plan. MDP entered into a service agreement with a third-party administrator to provide administrative claims services. The Plan is self-funded, which simply means that it is not fully insured. Rather, it purchased stop-loss insurance to protect the Plan only from losses exceeding a certain amount per beneficiary.
3
The MDP Plan operated in the following manner. Through the broadcast and print media, MDP advertised the Plan to employers located in the Texas panhandle. Over 100 disparate employers ("Subscribing Employers") subscribed to the MDP Plan by executing an Application and Subscription Agreement, paying a one-time fee, and paying a small, monthly, per-employee fee. MDP administered the Plan under the Trust Agreement and Summary Plan Description to provide medical and health benefits to the Subscribing Employers' employees and the employees' dependents (collectively, the "Employees"). An Employee who needed medical or health care could choose to obtain treatment from a network medical service provider and pay only 10% of the medical expense or seek treatment from a non-network provider and pay 20% of the charge. Under the Plan, then, the Employees had a financial incentive to pursue treatment from a network medical service provider, which included physicians in the physicians practice association that formed MDP.
4
MDP sued the Texas State Board of Insurance ("Board"), seeking a declaratory judgment that the Board's attempts to regulate MDP and the MDP Plan were inconsistent with the Employee Retirement Income Security Act of 1974, 29 U.S.C. §§ 1001-1461 ("ERISA"), and a permanent injunction restraining the Board from regulating MDP and the MDP Plan. The Secretary of the United States Department of Labor ("DOL"), as amicus curiae, filed a brief in the district court and issued several opinions concerning the MDP Plan's status under ERISA and its susceptibility to regulation by the Board. DOL Op. No. 90-18a (July 2, 1990); DOL Op. No. 90-10a (May 3, 1990).
5
The district court concluded that the MDP Plan did not constitute an "employee welfare benefit plan" under ERISA, and, in dicta, noted that even if it did, ERISA did not preempt the application of a Texas law requiring a certificate of authority as a Texas insurance company because the regulation was not inconsistent with Title I of ERISA. After finding that the Plan was not an "employee welfare benefit plan" under ERISA, the court granted the Board's motion to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). MDPhysicians & Assocs. Inc. v. Wrotenbery, 762 F.Supp. 695 (N.D.Tex.1991).
6
Appellant MDP argues that the federal district court had jurisdiction over this case because the MDP Plan qualified as an "employee welfare benefit plan" within the meaning of ERISA. If the MDP Plan did not constitute an "employee welfare benefit plan," however, the district court properly dismissed the case for lack of subject matter jurisdiction. See Hansen v. Continental Ins. Co., 940 F.2d 971, 976 (5th Cir.1991). We conclude that the Plan is not an "employee welfare benefit plan" under ERISA and affirm the district court.
II.
7
Since a motion to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) concerns the court's "very power to hear the case ... the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case." Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.) (quoting Mortensen v. First Fed. Sav. and Loan Ass'n, 549 F.2d 884, 891 (3rd Cir.1977)), cert. denied, 454 U.S. 897, 102 S.Ct. 396, 70 L.Ed.2d 212 (1981). The district court dismissed the case for lack of subject matter jurisdiction based on the complaint, supplemented by undisputed facts and the court's resolution of disputed facts.2 The court relied in part "on its own determination of disputed factual issues" in resolving the challenge to its jurisdiction; therefore, "we must then review those findings as we would any other district court resolution of factual disputes--we must accept the district court's findings unless they are 'clearly erroneous.' " Id. (citations omitted).
A. The ERISA Map
8
Before we embark on our journey, we comment that our task as judicial travellers is confined to following the ERISA map charted by the Congressional cartographers. We travel to determine whether the landmark called "MDP Plan" is located within that jurisdiction marked "employee welfare benefit plan." Our logical path is dotted with definitional markers, which we discuss in the order in which we encountered them.
9
The parties do not disagree that the MDP Plan is a "multiple employer welfare arrangement" as defined by ERISA, commonly referred to as a "MEWA." See DOL Op. No. 90-10A (May 3, 1990). The term "MEWA" includes all arrangements "established or maintained for the purpose of offering or providing" certain benefits "to the employees of two or more employers ... or to their beneficiaries." 29 U.S.C. § 1002(40)(A) (defining MEWA and listing exceptions irrelevant to this appeal). But ERISA does not automatically govern all MEWAs. Congress's notion of a MEWA is broader than its concept of an "employee welfare benefit plan" ("EWBP"). The statutory definition of a MEWA encompasses both EWBPs and arrangements "other than ... employee welfare benefit plan[s]." Id. Some MEWAs locate themselves in the jurisdiction known as "employee welfare benefit plans," while others remain outside the borders of ERISA.
10
The parties disagree whether the MDP Plan, admittedly a MEWA, constitutes an EWBP under ERISA. Not only does resolution of the ERISA coverage issue decide whether this case belongs in federal court, but, if resolved against ERISA coverage, determines whether the Texas State Board of Insurance can regulate MDP and the MDP Plan. We detour from our course to explain this phenomena. Only MEWAs that also constitute statutory EWBPs are governed by and regulated under federal law--ERISA. These EWBP-MEWAs qualify for the limited preemption from state insurance regulations found in ERISA. 29 U.S.C. § 1144(b)(6)(A)(ii) (preempting application of state insurance regulations "inconsistent with" Title 1 of ERISA).3 Non-EWBP MEWAs, however, are subject to state regulation. See Wisconsin Educ. Ass'n Ins. Trust v. Iowa State Bd., 804 F.2d 1059, 1061 (8th Cir.1986). We thus make no diversion to the path marked "possible ERISA preemption of state law" unless we first decide that the MDP Plan constitutes an EWBP-MEWA within the meaning of ERISA.
11
The driving force of our journey remains whether this lawsuit belonged in federal court or whether the district court properly dismissed it for lack of subject matter jurisdiction. ERISA extends federal jurisdiction to cases brought by a "fiduciary" of an "employee welfare benefit plan" to enforce the provisions of ERISA. 29 U.S.C. 1132(a)(3). We assume, without deciding, that MDP qualifies as a "fiduciary" under ERISA with respect to the MDP Plan.4 See 29 U.S.C. § 1002(21)(A). We must discover, then, whether the multiple employer welfare arrangement, the MDPlan, constitutes an "employee welfare benefit plan" under ERISA, giving the district court original jurisdiction over the action as one "arising under the ... laws of the United States." 28 U.S.C. § 1331. Whether the MDPlan constituted an "employee welfare benefit plan" is a question of fact. Hansen v. Continental Ins. Co., 940 F.2d 971, 976 (5th Cir.1991) (citing Gahn v. Allstate Life Ins. Co., 926 F.2d 1449, 1451 (5th Cir.1991)).
12
We continue to traverse the lexicographic topography charted by Congress. ERISA applies to "any employee benefit plan if it is established or maintained (1) by an employer ...; or (2) by an employee organization ...; or (3) by both" an employer and an employee organization. 29 U.S.C. § 1003(a).5 ERISA defines an "employee welfare benefit plan" as any plan, fund, or program ... established or maintained by an employer or by an employee organization, or by both, ... for the purpose of providing its participants or their beneficiaries [with certain medical and health benefits] through the purchase of insurance or otherwise."6 29 U.S.C. § 1002(1). MDP does not contend that it constitutes an "employee organization" because employers, not employees, composed its membership. Rather, MDP argues that it established and maintained the MDP Plan as an "employer." So, following the statutory trail, we look to ERISA's characterization of an "employer": "[A]ny person acting directly as an employer or indirectly in the interests of an employer in relation to an employee benefit plan; ... includ[ing] a group or association of employers acting for an employer in such a capacity." 29 U.S.C. § 1002(5). ERISA does not, however, define the term "group or association of employers."
13
B. The Place Called "Employee Welfare Benefit Plans"
14
A court deciding whether a particular arrangement constitutes an EWBP under ERISA "must first satisfy itself that there is in fact a 'plan' at all." Hansen, 940 F.2d at 977. Only then will the court consider the two primary elements of an ERISA "employee welfare benefit plan" as defined in the statute: 1) whether an employer established or maintained the plan; and 2) whether the employer intended to provide benefits to its employees. Id.; see Donovan, 688 F.2d at 1371 (setting out five elements of an EWBP). We assume, without deciding, that the MDP Plan itself "is a reality." Hansen, 940 F.2d at 977 (quoting Donovan, 688 F.2d at 1373). Just because "a 'plan' exists, however, does not necessarily mean that the plan is an ERISA plan."7 Id. (emphasis added). The district court found that MDP did not constitute an "employer" within the meaning of ERISA. Of course, if MDP is not an "employer," then the MDP Plan is not an EWBP within the territory we know as ERISA.
15
As we read the definition of "employer," MDP had to prove that it acted in one of two ways to fall within the scope of the term: Either MDP acted directly as an employer in relation to an employee benefit plan or MDP acted indirectly in the interests of an employer in relation to an employee benefit plan. 29 U.S.C. § 1002(5). The latter characterization of conduct that transforms a "person" into an "employer" "include[s] a group or association of employers acting [indirectly] for an employer " in relation to an employee benefit plan. Id.
16
The district court considered the definitional language of ERISA and judicial interpretations of that statutory language. The court first found that MDP did not act directly as an employer in relation to the MDP Plan because no employment or economic relationship existed between the doctors who established the MDP Plan and the employees of the Subscribing Employers. MDPhysicians, 762 F.Supp. at 697 (citation omitted). Second, the court found that MDP did not act indirectly in the interests of the Subscribing Employers. It determined that MDP was merely an entrepreneurial venture formed to market the MDP Plan to unrelated employers and, further, that the Subscribing Employers did not "participate in the day-to-day operation or administration" of the MDP Plan. Id. at 698 (citations omitted).
17
MDP argues that it constitutes an "employer" within the plain language of the statute and that the MDP Plan qualifies as an "employee welfare benefit plan." MDP insists that the definitional language interpreted by the district court is clear and unambiguous. Thus, the argument continues, the court erred in subjecting the language to statutory construction, inserting language into the definitions that modified the plain meaning of the statute, looking to interpretive case law, and relying on DOL opinions.8
18
We suspect that MDP urges this position because the indications of the Congressional map-makers and the helpful legends supplied by judicial interpreters on journeys similar to ours all counsel against locating the MDP Plan within the borders of ERISA. Cf. Donovan, 688 F.2d at 1371 ("[C]ourts, congressional comittees, and the Secretary have uniformly held that [a multiple employer trust--the enterprise--is] not an employee welfare benefit plan."). As we noted in our initial trek over the statutory ground, ERISA does not define the term "group or association of employers." This void injects ambiguity into the statute. In the absence of any statutory elucidation as to the meaning of the phrase "group or association of employers acting [indirectly] for an employer" in relation to an employee benefit plan, we look to the intent of the Congressional cartographers in determining whether we can locate the MDP Plan on the ERISA map.
19
In reaction to the broad range of "persons" claiming "employer" status to gain the protection of ERISA's broad preemption against application of state regulations, Congress evidenced its intent shortly after the passage of ERISA. The Activity Report of the Committee on Education and Labor revealed that
20
certain entrepreneurs have undertaken to market insurance products to employers and employees at large, claiming these products to be ERISA covered plans. For instance, persons whose primary interest is in profiting from the provision of administrative services are establishing insurance companies and related enterprises. The entrepreneur will then argue that [its] enterprise is an ERISA benefit plan which is protected, under ERISA's preemption provision, from state regulation.... [W]e are of the opinion that these programs are not 'employee benefit plans'.... [T]hese plans are established and maintained by entrepreneurs for the purpose of marketing insurance products or services to others. They are not established or maintained by the appropriate parties to confer ERISA jurisdiction.... They are no more ERISA plans than is any other insurance policy sold to an employee benefit plan.
21
....
22
... [W]e do not believe that the statute and legislative history will support the inclusion of what amounts to commercial products within the umbrella of the ['employee benefit plan'] definition.... [T]o be properly characterized as an ERISA employee benefit plan, a plan must satisfy the definitional requirement of section 3(3) [, which defines "employee benefit plan",] in both form and substance.
23
H.R.Rep. No. 1785, 94th Cong., 2d Sess. 48 (1977). "While not contemporaneous legislative history," we, like other courts, find the Report " 'virtually conclusive' as to legislative intent." Hamberlin v. VIP Ins. Trust, 434 F.Supp. 1196, 1199 (D.Ariz.1977) (quoting Sioux Tribe v. United States, 316 U.S. 317, 62 S.Ct. 1095, 1101, 86 L.Ed. 1501 (1942)) (footnote omitted), cited in Taggart Corp. v. Life and Health Benefits Admin., Inc., 617 F.2d 1208, 1210 (5th Cir.1980), cert. denied, 450 U.S. 1030, 101 S.Ct. 1739, 68 L.Ed.2d 225 (1981) and Bell v. Employee Sec. Benefit Ass'n, 437 F.Supp. 382, 392 (D.Kan.1977).
24
We glean several guiding principles from this passage, but we are not the first judicial travellers to make this same statutory journey. Other courts, examining similar terrain, provide certain descriptive attributes that characterize statutory "employers." We do not attempt to formulate or ascertain a comprehensive, definitive test for determining whether an entity constitutes an "employer" for the purposes of ERISA. Rather, we survey the interpretive legend and confine our travel to that required to decide whether this particular entity, MDP, is a statutory "employer." We located several principles in our search that convince us that the MDP Plan does not belong on the ERISA map.
25
First, we know that the MDP Plan, as a MEWA, offered or provided certain medical and health benefits to the Employees of the multiple Subscribing Employers. See supra at 181 (explaining definition of MEWA). But we also understand that the Subscribing Employers did not establish the MDP Plan, nor did they "participate in the day-to-day operation or administration of the plan"; rather, MDP established and maintained the MDP Plan, at least in terms of the Plan's status as a "multiple employer welfare arrangement." MDPhysicians, 762 F.Supp. at 698; 29 U.S.C. § 1002(40)(A) (defining a MEWA as an EWBP or "any other arrangement ... established or maintained" to offer or provide certain benefits to employees of two or more employers); see Matthew 25 Ministries, 771 F.2d at 22 (holding that a trust that solicited "disparate and unaffiliated" employer-enrollees that evidently played no role in management of the trust was not "established or maintained" by a statutory "employer"); Taggart, 617 F.2d at 1210 (holding that a multiple employer trust, a "proprietary enterprise" that acted "as a mere conduit for hundreds of unrelated subscriber customers," which did not participate in the "day-to-day operation or administration" of the trust, was not "established or maintained" by an "employer" under ERISA), cited in Memorial Hospital System v. Northbrook Life Ins. Co., 904 F.2d 236, 241-42 (5th Cir.1990). So, assuming that MDP established and maintained the MDP Plan to offer and provide these benefits to the Subscribing Employers' Employees, the appropriate question is whether MDP did so "in the interests of" the Subscribing Employers. 29 U.S.C. § 1002(5).
26
We hold that MDP did not act indirectly "for the [Subscribing Employers]" in relation to the MDP Plan. Id. Rather, it acted for itself in relation to the MDP Plan. MDP advertised the MDP Plan as a "commercial product" to "employers at large" in the Texas panhandle. House Report 1785. The record indicates that MDP sometimes used insurance agents to sell the Plan to employers for a commission. MDP established, marketed, and maintained the MDP Plan to enable the physician practice association, MDP Physicians, to compete with other exclusive providers of medical and health services. MDP's "primary interest" was in profiting from the provision of medical and administrative services. Id. The MDP Plan helped doctors in the practice association, MDPhysicians, retain current patients and recruit new patients. Further, MDP's Executive Director personally profited from his position as sole shareholder of the entity that exclusively precertified all hospitalization of Employees; the Plan covered hospitalization charges only if the Employee obtained precertification. To allow an entrepreneurial venture to qualify as an "employer" by establishing and maintaining a multiple employer welfare arrangement without input by the employers who subscribe to the plan would twist the language of the statute and defeat the purposes of Congress. See Taggart, 617 F.2d at 1210, cited in Gahn v. Allstate Life Ins. Co., 926 F.2d 1449, 1452 (5th Cir.1991); cf. Bell, 437 F.Supp. at 392 (operation of the plan "provided by a third-party entrepreneur" afforded "profit-making opportunities" for a marketing agency and administrative services provider, who retained "substantial ties" to the organizers of the plan); Hamberlin v. VIP Ins. Trust, 434 F.Supp. 1196, 1198 (D.Ariz.1977) (trustees not acting on behalf of "employers" in promoting and selling insurance policies directly to individual employees, but acting "on behalf of the business of ... their employer," an insurance broker who established a self-funded multiple employer trust).
27
Next, we consider the relationship between the provider of benefits, MDP, and the recipients of those benefits under the Plan, the Employees of Subscribing Employers. We agree with the Eighth Circuit, which reads the pertinent definitions as requiring "that the entity that maintains the plan and the individuals that benefit from the plan [be] tied by a common economic or representation interest, unrelated to the provision of benefits." Wisconsin Educ. Ass'n Ins. Trust v. Iowa State Bd., 804 F.2d 1059, 1063 (8th Cir.1986). The most common example is the economic relationship between employees and a person acting directly as their employer. See Hansen, 940 F.2d at 978; supra n. 4. The representational link between employees and an association of employers in the same industry who establish a trust for the benefit of those employees also supplies the requisite connection. See National Business Ass'n Trust v. Morgan, 770 F.Supp. 1169, 1174-75 (W.D.Ky.1991) (holding that trust established by employers in the bottling and canning business constituted an EWBP). This special relationship protects the employee, who can rely on the "person acting directly as an employer" or the person "acting indirectly in the interests of" that employer to represent the employee's interests relating to the provision of benefits. Cf. Wisconsin Educ. Ass'n, 804 F.2d at 1063.
28
Outside the provision of medical and health benefits under the MDP Plan, MDP had no relationship with the Employees of Subscribing Employers. DOL persuasively contends that the "relationship between the plan sponsor and the participants ... distinguishes an employee welfare benefit arrangement from other health insurance arrangements."9 We agree: Absent the protective nexus between the entity providing the benefits and the individuals receiving the benefits, we cannot consider MDP a "group or association of employers" acting indirectly for the Subscribing Employers in relation to the MDP Plan.
29
Our final destination in the jurisdiction of ERISA leaves us without doubt that we cannot locate MDP as an "employer" within ERISA. MDP established and maintained the MDP Plan to generate profits. The Subscribing Employers, the entities with economic and representational ties to the individuals that benefitted from the MDP Plan, were not involved in the establishment or maintenance of the MDP Plan. We hold that MDP did not act as "group or association of employers" in the interest of the Subscribing Employers in relation to the MDP Plan.
III.
30
Based on our excursion through the definitional topography of ERISA, we conclude that the district court correctly found that MDP did not constitute an "employer" within the meaning of 29 U.S.C. § 1002(5), nor did the MDP Plan qualify as an "employee welfare benefit plan" under 29 U.S.C. § 1002(1). We AFFIRM the district court's grant of the Board's motion to dismiss for lack of subject matter jurisdiction.
1
Title of song by Pal Joey (1940)
2
Under Williamson, a court considering a motion to dismiss under 12(b)(1) can consider either: 1) the complaint alone; 2) the complaint supplemented by undisputed facts evidenced in the record; or, as in this case, 3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts. Williamson, 645 F.2d at 413
3
Congress amended ERISA in 1983 and added the definition of a MEWA, 29 U.S.C. § 1002(40), and 29 U.S.C. § 1144(b)(6)(A)(ii), which provides that
[n]otwithstanding any other provision in this section--(ii) in the case of any other employee welfare benefit plan which is a multiple employer welfare arrangement, in addition to this subchapter, any law of any State which regulates insurance may apply to the extent not inconsistent with the preceding sections of this subchapter.
If the MDP Plan qualified as an EWBP, subsection (b)(6)(A)(ii) would apply because the MDP Plan is not fully insured. Subsection (b)(6)(A)(i) is directed to "employee welfare benefit plan"--MEWAs that are fully insured.
4
We emphasize that we merely decide the narrow issue presented on appeal: Whether the multiple employer welfare arrangement, the MDP Plan, constitutes an EWBP governed by ERISA. We do not decide whether any of the Subscribing Employers directly established or maintained "single employer" EWBPs covered by ERISA--that is, "whether each employer who subscribed to the [MDP Plan] thereby established its own individual ERISA plan." Credit Managers Ass'n v. Kennesaw Life and Accident Ins. Co., 809 F.2d 617, 625 (9th Cir.1987) (emphasis added); see International Resources, Inc. v. New York Life Ins. Co., 950 F.2d 294, 297-98 (6th Cir.1991); Hansen v. Continental Ins. Co., 940 F.2d 971, 977-78 (5th Cir.1991); Kidder v. H & B Marine, Inc., 932 F.2d 347, 352-53 (5th Cir.1991) (per curiam); Donovan v. Dillingham, 688 F.2d 1367, 1375 (11th Cir.1982) (en banc). The Board attempted to regulate the MDP Plan, not single employer plans. MDP alleged "fiduciary" status only with respect to the MDP Plan, not with respect to distinct plans possibly established by individual Subscribing Employers. MDPhysicians, 762 F.Supp. at 698 (noting that MDP did not plead or prove "that it [wa]s bringing suit as the fiduciary of numerous single-employer plans"); cf. Donovan, 688 F.2d at 1372 n. 10 (noting that multiple employer trust, "even though it is not an employee benefit welfare plan, may nonetheless be subject to ERISA's fiduciary responsibilities if it is a fiduciary to employee benefit plans established or maintained by other entities.")
5
Two types of "employee benefits plans" exist: "Employee welfare benefit plans" and "employee pension benefit plans." 29 U.S.C. § 1002(3). In this appeal, we concern ourselves only with "employee welfare benefit plans."
6
In full, ERISA defines "employee welfare benefit plan" and "welfare plan" as
any plan, fund, or program which was heretofor or is hereafter established or maintained by an employer or by an employee organization, or by both, to the extent that such plan, fund, or program was established or is maintained for the purpose of providing its participants or their beneficiaries, through the purchase of insurance or otherwise, (A) medical, surgical, or hospital care or benefits, or benefits in the event of sickness, accident, disability, death or unemployment, or vacation benefits, apprenticeship or other training programs, or day care centers, scholarship funds, or prepaid legal services, or (B) any benefit described in section 186(c) of this title (other than pensions on retirement or death, and insurance to provide such pensions).
29 U.S.C. § 1002(1).
7
MDP argues that the MDP Plan constitutes a "plan, fund or program" because it crafted the Plan to comply with ERISA requirements. It painstakingly drafted the required documents and agreements, which all stated that ERISA controlled the terms of the particular document. MDP filed the requisite annual report with the IRS and distributed the required Summary Annual Report to Employees of Subscribing Employers. See Donovan, 688 F.2d at 1372 (A " 'plan, fund or program' under ERISA implies the existence of intended benefits, intended beneficiaries, a source of financing, and procedure to apply for and collect benefits"). MDP fervently argues that because MDP intended ERISA to cover the MDP Plan, ERISA governs the Plan. We find this logic flawed. ERISA protection and coverage turns on whether the MDP Plan satisfies the statutory definition of "employee welfare benefit plan," not whether the entity that established and maintained the MEWA intended ERISA to govern the MEWA. See Matthew 25 Ministries, Inc. v. Corcoran, 771 F.2d 21, 22 (2d Cir.1985)
MDP also contends that it "established and maintained" the Plan to provide health benefits for its participants and their beneficiaries. Appellees do not dispute that MDP "established or maintained" a "system of providing benefits pursuant to a written instrument that satisfies ERISA ..., 29 U.S.C. §§ 1022 and 1102." Donovan, 688 F.2d at 1372.
8
Nothing substantiates MDP's conclusion that the district court relied on DOL opinions regarding the MDP Plan; rather, it cited the relevant statutory provisions and case law interpreting those provisions. But see infra n. 9 (describing persuasive value of DOL opinions)
9
The DOL uses six criteria to determine whether an "association of employers" exists under 29 U.S.C. § 1002(5): 1) the process by which the association was formed and the purposes for which it was formed; 2) the existence, if any, of pre-existing relationships among the employer/members; 3) whether employer/members were solicited; 4) who is entitled to participate and who actually participates in the association; 5) the powers, rights, and privileges of employer/members; and 6) whether employer/members actually control and direct the activities of the benefit plan. DOL Op. No. 86-08a at 4 (Feb. 3, 1989); DOL Op. No. 84-11 at 3 (Feb. 22, 1984); DOL Op. No. 82-59 at 2 (Nov. 10, 1982). Although we ground our decision on the statutory language of ERISA and the intent of Congress, we recognize that DOL opinions "constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance." Cf. Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 164, 89 L.Ed. 124 (1944) (determining precedential value of the Administrator's "rulings, interpretations and opinions" under the Fair Labor Standards Act). We consider the opinions of the Department of Labor of persuasive value in making our decision, and pause merely to note that it appears that none of these factors favor MDP's interpretation of the term "employer." | 01-04-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/5283622/ | ORDER
PER CURIAM:
Following a jury trial, Demetrius Har-bour was convicted in the Circuit Court of Jackson County of second-degree murder. After this Court affirmed his conviction, Harbour filed a motion for post-conviction relief under Supreme Court Rule 29.15. The circuit court denied his motion following an evidentiary hearing. Harbour appeals. He argues that his counsel was ineffective because counsel: (1) failed to object to the State’s introduction of evidence concerning a set of brass knuckles which Harbour contends were unrelated to the offense; (2) failed to cross examine the victim’s daughter regarding the timing of her mother’s screams in relation to blows which the victim’s daughter heard; and (3) failed to impeach the victim’s daughter’s testimony with prior inconsistent statements. We -affirm. Because a published opinion would have no precedential value, an unpublished memorandum setting forth the reasons for this order has been provided to the parties. Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
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01/07/2022 01:07 AM CST
- 376 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. TAYLOR
Cite as 310 Neb. 376
State of Nebraska, appellee, v.
James E. Taylor, appellant.
___ N.W.2d ___
Filed November 12, 2021. No. S-21-096.
1. Appeal and Error. It is a fundamental rule of appellate practice that an
alleged error must be both specifically assigned and specifically argued
in the brief of the party asserting the error to be considered by an appel-
late court.
2. ____. A generalized and vague assignment of error that does not advise
an appellate court of the issue submitted for decision will not be
considered.
3. Criminal Law: Courts: Appeal and Error. In an appeal of a criminal
case from the county court, the district court acts as an intermediate
court of appeals, and its review is limited to an examination of the
record for error or abuse of discretion.
4. Courts: Appeal and Error. Both the district court and a higher appel-
late court generally review appeals from the county court for error
appearing on the record.
5. Judgments: Appeal and Error. When reviewing a judgment for errors
appearing on the record, an appellate court’s inquiry is whether the deci-
sion conforms to the law, is supported by competent evidence, and is
neither arbitrary, capricious, not unreasonable.
6. Courts: Appeal and Error. An appellate court independently reviews
questions of law in appeals from the county court.
7. Criminal Law: Courts: Appeal and Error. When deciding appeals
from criminal convictions in county court, an appellate court applies the
same standards of review that it applies to decide appeals from criminal
convictions in district court.
8. Trial: Convictions: Evidence: Appeal and Error. An appellate court
will sustain a conviction in a bench trial of a criminal case if the properly
admitted evidence, viewed and construed most favorably to the State, is
sufficient to support that conviction. In making this determination, an
- 377 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. TAYLOR
Cite as 310 Neb. 376
appellate court does not resolve conflicts in the evidence, pass on the
credibility of witnesses, evaluate explanations, or reweigh the evidence
presented, which are within a fact finder’s province for disposition.
Instead, the relevant question is whether, after viewing the evidence
in the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a reason-
able doubt.
9. Ordinances: Appeal and Error. Interpretation of a municipal ordinance
is a question of law, on which an appellate court reaches an independent
conclusion irrespective of the determination made by the court below.
10. Statutes: Appeal and Error. The interpretation of statutes and regu-
lations presents a question of law which an appellate court reviews
de novo.
11. Statutes: Intent. When interpreting a statute, the starting point and
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12. Statutes: Appeal and Error. Statutory language is to be given its plain
and ordinary meaning, and an appellate court will not resort to inter-
pretation to ascertain the meaning of statutory words which are plain,
direct, and unambiguous.
13. Statutes. It is not within the province of the courts to read meaning
into a statute that is not there or to read anything direct and plain out of
a statute.
14. Drunk Driving: Words and Phrases. As used in Neb. Rev. Stat.
§ 60-6,196 (Reissue 2010), the phrase “under the influence of alcoholic
liquor or of any drug” requires the ingestion of alcohol or drugs in an
amount sufficient to impair to any appreciable degree the driver’s ability
to operate a motor vehicle in a prudent and cautious manner.
Appeal from the District Court for Lancaster County, Susan
I. Strong, Judge, on appeal thereto from the County Court
for Lancaster County, Joseph E. Dalton, Judge. Judgment of
District Court affirmed.
Joe Nigro, Lancaster County Public Defender, and James
Sieben for appellant.
Robert E. Caples, Assistant Lincoln City Prosecutor, for
appellee.
Heavican, C.J., Cassel, Stacy, Funke, Papik, and
Freudenberg, JJ., and Thompson, District Judge.
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Papik, J.
The State prosecuted James E. Taylor for violating a munic-
ipal ordinance prohibiting driving under the influence. The
State’s theory was that Taylor was driving while impaired
by his prescription medication. Taylor was convicted in the
county court and unsuccessfully appealed his conviction to
the district court. He now appeals again, arguing that the State
could not establish a driving under the influence conviction on
the theory he was under the influence of prescription medica-
tions and that the evidence was otherwise insufficient to sup-
port his conviction. We disagree with Taylor’s arguments and
therefore affirm.
BACKGROUND
The State charged Taylor with several offenses arising out
of a traffic stop in Lincoln, Nebraska, in July 2019. The sole
charge relevant to this appeal was that Taylor violated Lincoln
Mun. Code § 10.16.030 (2017), a certified copy of which is in
our record. That ordinance makes it “unlawful for any person
to operate or be in the actual physical control of any motor
vehicle while under the influence of alcoholic liquor, or of
any drug.”
At trial, the State called the police officers who completed
the traffic stop, Matthew Stegman and Bryan Gruber. Stegman
testified that because he was training Gruber, they were riding
together that night. Stegman and Gruber testified that just after
11 p.m., they saw a vehicle driving on a Lincoln street with its
headlights off. While following the vehicle, the officers saw it
cross the centerline and strike a curb. Gruber initiated a traffic
stop. Taylor was the vehicle’s only occupant.
Stegman testified about his interaction with Taylor dur-
ing the traffic stop. Stegman asked Taylor why his headlights
were not on and why he struck the curb. Taylor responded
that he thought his headlights were on and that he fell asleep
while driving. Stegman also testified that when he asked
Taylor whether he had taken any medications or drugs recently,
Taylor responded that he had taken some prescription pills.
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Stegman observed that Taylor had “somewhat slurred speech”
and appeared “overtired” and not “completely aware of what
[was] going on.”
Stegman testified that he then asked Taylor to get out of
the vehicle so that he could administer field sobriety tests.
Taylor’s performance on several field sobriety tests indicated
that he was impaired. Gruber testified that while Stegman was
administering the field sobriety tests, Taylor was “basically
falling asleep periodically during the test.” The officers did not
smell any alcohol on Taylor’s breath, and Taylor denied using
alcohol. A preliminary breath test did not detect any alcohol on
Taylor’s breath.
As a result of Taylor’s driving and his performance on the
field sobriety tests, the officers transported him to another
location so that he could be evaluated by a drug recognition
expert (DRE). Prior to the DRE evaluation, Taylor submitted
to a formal breath test on a DataMaster machine, which also
showed no indication of alcohol. After Stegman read Taylor his
Miranda rights, Taylor also agreed to be interviewed. During
this interview, Taylor again acknowledged recently taking med-
ications. He informed the officers he was taking the medica-
tions for mental and behavioral health reasons and provided
the names of those medications. The medications included
Seroquel and Effexor. According to Stegman, Taylor stated that
when taking the medications, he did get “sleepy,” but that he
felt he could still drive safely.
Sgt. Max Hubka, the certified DRE who evaluated Taylor,
also testified. He described the multistep DRE protocol, which
included performance tests of Taylor, the formation of an
opinion by Hubka, and toxicology. Hubka observed that dur-
ing the evaluation, Taylor appeared tired and stated that he
was tired. Hubka also observed that Taylor’s speech was
slow, “with a slight slur to it.” Hubka testified that Taylor told
him what prescription medications he had taken that evening
and that they included Seroquel and Effexor. Hubka testified
that based on his training, he knew those two medications to
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be central nervous system (CNS) depressants. Hubka testi-
fied over Taylor’s objection that the term “CNS depressants”
refers to a category of drugs that “slow[] the processes of the
body.” According to Hubka, CNS depressants would include
antidepressants and antipsychotics and Seroquel is an anti
psychotic medication.
Hubka also testified over Taylor’s objection that in his opin-
ion, Taylor was under the influence of CNS depressants. Hubka
based this opinion on Taylor’s performance on field sobriety
tests, inability to stay awake, slightly slurred speech, and poor
balance, as well as Taylor’s agreement with Hubka’s opinion
that Taylor was not safe to drive and his admission that he had
ingested multiple types of CNS depressants before driving.
A forensic scientist in the Nebraska State Patrol Crime
Laboratory testified that she analyzed a urine sample provided
by Taylor. She explained that her analysis was governed by
177 Neb. Admin. Code, ch. 7 (2007), a certified copy of which
was received in evidence. Over Taylor’s objection, she testi-
fied that in Taylor’s urine sample, she detected venlafaxine, the
generic term for Effexor, which she characterized as a “mild
CNS depressant.” She also testified that she detected que
tiapine, the generic term for Seroquel, and explained that que-
tiapine is an antipsychotic medication with “CNS depressant
side effects.”
In his defense, Taylor called a friend he had visited imme-
diately before the traffic stop. She testified that Taylor had
fallen asleep at her residence, but she denied seeing him use
any drugs or medications and did not believe he was “high” or
under the influence.
Taylor also testified in his own defense. He testified that for
at least 5 years prior to the traffic stop, he had prescriptions
for and had been taking Effexor and Seroquel. Taylor could not
recall ever being told by a doctor that the medications should
not be used prior to driving and testified that the labels on the
medication bottles directed only that those taking the medica-
tions should use caution while driving.
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The county court found Taylor guilty of driving under the
influence of drugs and sentenced him accordingly. Taylor
appealed that conviction to the district court. Taylor challenged
several of the county court’s evidentiary rulings and argued
that the county court had erred in finding him guilty with-
out sufficient evidence. The district court affirmed Taylor’s
conviction.
Taylor then appealed the district court’s decision, and we
moved the case to our docket.
ASSIGNMENT OF ERROR
Taylor’s appellate brief sets forth two numbered assignments
of error. The second assigned error is that the district court
erred by finding that there was sufficient evidence to support
the conviction of driving under the influence. We will analyze
Taylor’s challenge to the sufficiency of the evidence below.
[1,2] Taylor’s first assigned error is more general. He asserts
that “[t]he district court erred by affirming [Taylor’s] convic-
tion in county court of driving under the influence as a matter
of law.” It is a fundamental rule of appellate practice that an
alleged error must be both specifically assigned and specifi-
cally argued in the brief of the party asserting the error to be
considered by an appellate court. State v. Iddings, 304 Neb.
759, 936 N.W.2d 747 (2020). A generalized and vague assign-
ment of error that does not advise an appellate court of the
issue submitted for decision will not be considered. Id. Taylor’s
assertion that the district court erred “as a matter of law” with-
out any elaboration as to the nature of that error is the type of
generalized assignment of error that we do not consider.
STANDARD OF REVIEW
[3-7] In an appeal of a criminal case from the county court,
the district court acts as an intermediate court of appeals, and
its review is limited to an examination of the record for error
or abuse of discretion. State v. Valentino, 305 Neb. 96, 939
N.W.2d 345 (2020). Both the district court and a higher appel-
late court generally review appeals from the county court for
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error appearing on the record. Id. When reviewing a judgment
for errors appearing on the record, an appellate court’s inquiry
is whether the decision conforms to the law, is supported
by competent evidence, and is neither arbitrary, capricious,
nor unreasonable. Id. But we independently review questions
of law in appeals from the county court. Id. When deciding
appeals from criminal convictions in county court, we apply
the same standards of review that we apply to decide appeals
from criminal convictions in district court. Id.
[8] An appellate court will sustain a conviction in a bench
trial of a criminal case if the properly admitted evidence,
viewed and construed most favorably to the State, is sufficient
to support that conviction. State v. Montoya, 304 Neb. 96,
933 N.W.2d 558 (2019). In making this determination, we do
not resolve conflicts in the evidence, pass on the credibility
of witnesses, evaluate explanations, or reweigh the evidence
presented, which are within a fact finder’s province for disposi-
tion. Id. Instead, the relevant question is whether, after viewing
the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt. Id.
[9,10] Interpretation of a municipal ordinance is a question
of law, on which we reach an independent conclusion irrespec-
tive of the determination made by the court below. Wilkison v.
City of Arapahoe, 302 Neb. 968, 926 N.W.2d 441 (2019). The
interpretation of statutes and regulations presents a question of
law which we review de novo. Id.
ANALYSIS
Taylor makes two arguments to challenge the sufficiency of
the evidence to support his conviction for violating the city of
Lincoln (the City) driving under the influence ordinance. His
first argument depends on his interpretation of the ordinance.
Taylor contends that while the State’s theory at trial was that
he was under the influence of his prescription medications,
those medications do not qualify as “any drug” under the
ordinance, and therefore, there was insufficient evidence of
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an essential element of the crime. Alternatively, he argues that
even if his prescription medications qualify as “any drug,”
there was insufficient evidence that he was under the influence
of those prescription medications. We address each of these
arguments below.
Taylor’s Prescription Medications Qualify
as “Any Drug” Under Ordinance.
As we have noted, the municipal ordinance at issue crimi-
nalizes the operation or actual physical control of a motor
vehicle while under the influence of “alcoholic liquor, or of
any drug.” This language mirrors a state statute, Neb. Rev.
Stat. § 60-6,196(1)(a) (Reissue 2010). Another statute autho-
rizes cities and villages to enact ordinances in conformance
with § 60-6,196. See Neb. Rev. Stat. § 60-6,197.07 (Reissue
2010).
While the City ordinance refers to driving under the influ-
ence of “any drug,” Taylor argues that a person can be con-
victed of violating the ordinance only if the State proves that he
or she was under the influence of one of seven drugs listed in a
definition of “drug” contained within a regulation promulgated
by the Nebraska Department of Health and Human Services
(DHHS). Under that regulation, “Drug means any of the fol-
lowing. Marijuana, cocaine, morphine, codeine, phencyclidine,
amphetamine, or methamphetamine.” 177 Neb. Admin. Code,
ch. 7, § 001.13. He contends that the prescription medications
he admitted to taking on the night at issue are not among the
substances listed in the regulation and that therefore, the evi-
dence was insufficient to support his conviction.
Taylor’s understanding of the ordinance rests on a theory
of delegation. He contends that the Legislature authorized
DHHS to promulgate rules governing the driving under the
influence statutes and ordinances and that DHHS has, in an
exercise of that authority, chosen to limit the definition of
“drug,” as it appears in those statutes and ordinances, to the
seven substances listed in the above-quoted regulation. Taylor
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claims his theory of delegation is supported by Neb. Rev.
Stat. § 60-6,201 (Reissue 2010). That statute sets forth certain
requirements for chemical tests of blood, breath, and urine,
and it directs that if tests are made in conformity with those
requirements, the results “shall be competent evidence” in a
prosecution for violating a driving under the influence statute
or ordinance. See § 60-6,201(1). Among those requirements is
a provision that “[t]o be considered valid,” such tests “shall be
performed according to methods approved by [DHHS].” See
§ 60-6,201(3).
[11-13] Taylor’s argument requires that we interpret the
City’s driving under the influence ordinance as well as the
driving under the influence statutes mentioned above. We apply
the same principles to interpret ordinances that we do to inter-
pret statutes. See Walsh v. City of Omaha Police & Fire Ret.
Sys., 277 Neb. 554, 763 N.W.2d 411 (2009). When interpret-
ing a statute, the starting point and focus of the inquiry is the
meaning of the statutory language, understood in context. In
re Guardianship of Eliza W., 304 Neb. 995, 938 N.W.2d 307
(2020). Our analysis begins with the text, because statutory
language is to be given its plain and ordinary meaning, and
an appellate court will not resort to interpretation to ascertain
the meaning of statutory words which are plain, direct, and
unambiguous. See id. Neither is it within the province of the
courts to read meaning into a statute that is not there or to read
anything direct and plain out of a statute. Parks v. Hy-Vee, 307
Neb. 927, 951 N.W.2d 504 (2020). Applying those rules here,
we are not persuaded by Taylor’s argument.
Taylor has not pointed to any statutory language provid-
ing DHHS with authorization to define the phrase “any drug”
as it appears in § 60-6,196(1)(a) or in municipal ordinances
authorized by § 60-6,197.07. Neither has he identified any
language in either § 60-6,196(1)(a) or the City ordinance
incorporating the DHHS regulation definition of “drug.” The
sole statute upon which Taylor relies for his delegation argu-
ment, § 60-6,201, does give DHHS a role to play in driving
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under the influence prosecutions, but that role is limited to
approving methods and techniques for valid chemical tests.
See § 60-6,201(3). And, consistent with that limited role, the
DHHS definition of “drug” upon which Taylor relies appears
in a regulation setting forth methods and techniques for detect-
ing drug content in urine among those suspected of driving
under the influence. See 177 Neb. Admin. Code, ch. 7. In sum,
the interpretation Taylor advances would require us to read
meaning into either the driving under the influence statutes
or the City ordinance. That is not how we interpret statutes or
municipal ordinances. See, Parks, supra; Walsh, supra.
While we find no support for Taylor’s interpretation of the
phrase “any drug” in the City ordinance, the question remains
whether, under that language, the State could establish a con-
viction under the ordinance on a theory that Taylor was under
the influence of his prescription medications, Effexor and
Seroquel. We find that it could.
The parties agree that the phrase “any drug” is not defined
by the municipal ordinance. Accordingly, we are obligated to
interpret the phrase according to its plain and ordinary meaning.
See Robert M. on behalf of Bella O. v. Danielle O., 303 Neb.
268, 928 N.W.2d 407 (2019) (holding that undefined statutory
terms must be given their plain and ordinary meaning).
The plain and ordinary meaning of the term “drug” would
encompass Taylor’s prescription medications. In everyday
English, it is common to refer to any prescription medication
as a prescription “drug.” Taylor’s medications are no excep-
tion. See, e.g., In re: Seroquel Products Liability Litigation,
542 F. Supp. 2d 1366, 1367 (J.P.M.L. 2008) (referring to “the
prescription drug Seroquel”); Jackson v. Brotherhood’s Relief
& Comp. Fund, 273 Neb. 1013, 1015, 734 N.W.2d 739, 743
(2007) (referring to “a prescription drug called Effexor”). See,
also, brief for appellant at 21 (“Effexor and its generic counter-
part, [v]enlafaxine, are commonly prescribed drugs”).
To be sure, words like “prescription” or “illegal” can modify
the term “drug” and thereby refer to different subcategories
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of substances, each of which bears the label “drug.” The
ordinance before us, however, does not limit its coverage to
illegal or some other subcategory of drugs. To the contrary, it
makes it unlawful to drive under the influence of “any drug.”
Lincoln Mun. Code § 10.16.030 (emphasis supplied). As we
have previously recognized, the word “any,” read naturally, is
expansive and refers to all that fall within a particular category
“of whatever kind.” See Rouse v. State, 301 Neb. 1037, 1044,
921 N.W.2d 355, 361 (2019), quoting Ali v. Federal Bureau
of Prisons, 552 U.S. 214, 128 S. Ct. 831, 169 L. Ed. 2d 680
(2008) (internal quotation marks omitted). On this basis, we
interpreted the statutory phrase “‘any law enforcement offi-
cer’” to cover “all law enforcement officers.” Rouse, 301
Neb. at 1043, 921 N.W.2d at 361. In much the same way, we
interpret the phrase “any drug” in the City ordinance to refer
to all drugs, “of whatever kind,” including Taylor’s prescrip-
tion medications.
Record Contains Sufficient Evidence
That Taylor Was Under Influence
of His Prescription Medications.
[14] Taylor next claims that even if his prescription medica-
tions qualify as “any drug,” there was insufficient evidence in
the record that he was under the influence of those medications
for purposes of the ordinance. We have said that as used in
§ 60-6,196, the phrase “under the influence of alcoholic liquor
or of any drug” requires the ingestion of alcohol or drugs
in an amount sufficient to impair to any appreciable degree
the driver’s ability to operate a motor vehicle in a prudent
and cautious manner. See State v. Daly, 278 Neb. 903, 775
N.W.2d 47 (2009). We see no reason not to apply the same
standard to determine whether there was evidence that Taylor
was “under the influence of . . . any drug” for purposes of the
City ordinance.
The record unquestionably contains some evidence to sup-
port the State’s position that Taylor’s ability to drive safely
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was impaired as a result of his prescription medications. As
recounted above, there was evidence that Taylor was driving
at night with his headlights off, that he crossed the centerline
of the road, that he struck a curb, that he admitted he had
fallen asleep while driving and was very tired, that he showed
impairment on field sobriety tests despite having no alcohol in
his system, that he admitted to taking his prescription medi-
cations earlier that night, and that a urinalysis confirmed the
presence of those prescription medications in his system. In
addition to all this, Hubka, a certified DRE, testified to his
opinion that Taylor was under the influence of his prescription
medications.
In the face of all this evidence, Taylor maintains that there
was insufficient evidence that he was under the influence of his
prescription medications. He argues that some of the evidence
summarized above was inadmissible. He points to evidence
that he was tired on the night of the traffic stop and claims that
was the reason for his poor driving. Finally, he makes a public
policy argument that a person should not be convicted of driv-
ing under the influence if he or she is shown only to be under
the influence of medications taken as prescribed.
Each of Taylor’s arguments is unavailing. Taylor did not
assign error to the district court’s resolution of his claim that
the county court received inadmissible evidence, so that issue
is not before us. See State v. Iddings, 304 Neb. 759, 936
N.W.2d 747 (2020). His claim that he was driving poorly only
because he was tired invites us to evaluate explanations and
reweigh evidence, neither of which are properly a part of an
appellate review of sufficiency of the evidence. See State v.
Montoya, 304 Neb. 96, 933 N.W.2d 558 (2019). Furthermore,
given the evidence in the record that Taylor admitted that his
prescription medications made him “sleepy,” it is not clear
that evidence that Taylor was tired is even helpful to his argu-
ment that he was not impaired by his prescription medica-
tions. Finally, Taylor’s general public policy argument is not
relevant to the sufficiency of the evidence and, indeed, is
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not even properly directed to this court. See Rogers v. Jack’s
Supper Club, 304 Neb. 605, 614, 935 N.W.2d 754, 762 (2019)
(“we are not tasked with selecting what we believe is the best
policy. It is the function of the Legislature, through the enact-
ment of statutes, to declare what is the law and public policy
of this state”).
Viewing all of the evidence summarized above in the light
most favorable to the State, we conclude that a rational trier of
fact could have found beyond a reasonable doubt that Taylor’s
ingestion of his prescription medication had impaired to an
appreciable degree his ability to operate his vehicle in a pru-
dent and cautious manner. We therefore reject Taylor’s argu-
ment that the evidence was insufficient to support his driving
under the influence conviction.
CONCLUSION
We find the district court did not err in affirming Taylor’s
driving under the influence conviction. We therefore affirm.
Affirmed.
Miller-Lerman, J., not participating. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283623/ | ORDER
Per curiam:
Rodney Ray Carpenter, appearing pro se, appeals from the motion court’s denial of his Rule 24.035 motion. Carpenter argues that the trial court erred in denying his motion for post-conviction relief. Carpenter also alleges that he was entitled to appointed counsel in connection with this appeal. Finding no error, we affirm. Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283624/ | ORDER
Per Curiam:
M.A.H. appeals the circuit court’s judgment on a motion to modify child custody and support. We affirm. Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283625/ | GARY W. LYNCH, J.
Michael S. Williams (“Defendant”) appeals his conviction following a bench trial for two counts of statutory sodomy in the first degree, in violation of section 566.062,1 for which he was sentenced to concurrent ten-year terms. On appeal, Defendant presents two points that challenge the sufficiency of the evidence to convict. Finding no merit in Defendant’s claims, we affirm.
Factual and Procedural Background
“When judging the sufficiency of the evidence to support a conviction, appellate courts ... accept as true all evidence tending to prove guilt together with all reasonable inferences that support the verdict and ignore all contrary evidence and inferences.” State v. Wooden, 388 S.W.3d 522, 527 (Mo. banc 2013). Viewed in this light, the following evidence was adduced at trial.
T.R. (“Victim”) was born in July 2007 and lived with her mother (“Mother”) and brother in Harrison, Arkansas.2 Approximately a year or two before the circumstances giving rise to this case, Mother befriended a woman named Shannah Woodruff (“Woodruff’) who was at all rele*4vant times married to Defendant. Thereafter, Mother periodically arranged for Woodruff to babysit Victim at Woodruff and Defendant’s home, which was also located in Harrison, Arkansas. At some point, Woodruff and Defendant moved to Seymour, Missouri. For a period between December 2010 and February 2011, Wood-ruff periodically continued to babysit Victim at the house she shared with Defendant in Missouri. Mother never went to Missouri to either drop off or pick up Victim at Woodruffs home; instead, Woodruff would rendezvous with Mother in Harrison, Arkansas, or somewhere in between for the exchange. On one occasion, when the exchange took place at the Missouri-Arkansas state line, Woodruff was accompanied by Defendant.
The length of time that Woodruff babysat Victim varied between a single night to, on one occasion, an entire week. With regard to Woodruffs babysitting, Mother observed that “[Victim] loved it[,]” and “[s]he wanted to go.” However, on one occasion in February 2011, when Woodruff was supposed to babysit Victim, Victim cried and told Mother that she did not want to go. At first, Mother thought little of the episode and concluded that Victim merely wanted to stay at home with Mother.
Sometime in May 2011, however, Victim informed Mother that she was scared of Defendant. Mother asked Victim what she meant, whereupon Victim disclosed that Defendant had put his finger in her “butt,” further stating that “[i]t hurt so badly, but he did it anyway.” Later, Victim disclosed to Mother that Defendant also had touched her “peepee.”
Shortly thereafter, Victim was taken to see Michelle Stein (“Stein”), a forensic examiner, who interviewed Victim at Grandma’s House Children’s Advocacy Center in Harrison, Arkansas. During the recorded interview, Victim stated that Defendant had touched her “peepee” and her “butt.”
Defendant was charged by felony information with two counts of first-degree statutory sodomy. Count 1 alleged in part that Defendant had deviate sexual intercourse with Victim “by inserting the defendant’s finger in the vagina of [Victim].” Count 2 alleged in part that Defendant had deviate sexual intercourse with Victim “by inserting the defendant’s finger in the anus of [Victim].” Both offenses were alleged to have occurred “on or between December 1, 2010[,] and February 15, 2011, in the County of Webster, State of Missouri.”
At trial, Victim’s hearsay statements to her mother and Stein were admitted pursuant to section 491.075. An investigator with the Webster County Sherriffs Department also testified, establishing the address of Woodruff and Defendant’s Seymour residence and its location within Webster County, Missouri. Victim, who was five years old at the time of trial, was the final’witness to testify for the State. During the direct examination of Victim, the prosecutor asked where Defendant had touched Victim, to which Victim responded, “My peepee.” The prosecutor (“Ms. Padgett”) proceeded to inquire whether Defendant had also touched Victim in other places. The following colloquy ensued, punctuated by an objection from defense counsel (“Ms. Porter”):
Q.’ Okay. Has he — Had [Defendant] ever touched any other place on your body other than your peepee?
A. No.
Q. Okay.
A. That’s all.
Q. That’s all. He didn’t touch your butt?
A. (No audible response.)
MS. PORTER: Judge, I’m going to object, that’s leading.
*5MS. PADGETT: You may not want to object because she just said no.
MS. PORTER: Okay. Withdrawn.
MS. PADGETT: Okay.
THE COURT: All right. Overruled. And then for the record, it was a negative headshake in response to the question.
MS. PADGETT: That’s correct.
Following the trial, the court found that the alleged crimes occurred within the state of Missouri and found Defendant guilty as charged on the two counts of first-degree statutory sodomy. Defendant timely appeals.
Standard of Review
“The same standard of review is followed in criminal cases tried by the court without a jury as in cases tried by a jury.” State v. Parrow, 118 S.W.3d 629, 629 (Mo.App.2003). “ ‘Generally, this Court’s review of the sufficiency of the evidence is limited to whether the State has introduced sufficient evidence for any reasonable juror to have been convinced of the defendant’s guilt beyond a reasonable doubt.’ ” State v. Jeffrey, 400 S.W.3d 303, 312-13 (Mo. banc 2013) (quoting State v. Nash, 339 S.W.3d 500, 508-09 (Mo. banc 2011)).
When judging the sufficiency of the evidence to support a conviction, appellate courts do not weigh the evidence but accept as true all evidence tending to prove guilt together with all reasonable inferences that support the verdict and ignore all contrary evidence and inferences. This is not an assessment of whether the Court believes that the evidence at trial established guilt beyond a reasonable doubt but rather a question of whether, in light of the evidence most favorable to the State, any rational fact-finder could have found the essential elements of the crime beyond a reasonable doubt. This Court will not weigh the evidence anew since the fact-finder may believe all, some, or none of the testimony of a witness when considered with the facts, circumstances, and other testimony in the case.
Jeffrey, 400 S.W.3d at 313 (internal quotation marks and citations omitted).
Discussion
Evidence was Sufficient to Support Finding that Missouri has Jurisdiction
In his first point on appeal, Defendant contends that the state of Missouri lacked jurisdiction over the alleged crimes. Defendant does not dispute that Missouri would have jurisdiction if the crimes were committed as alleged in the felony information. See section 541.191.3 Rather, De*6fendant’s contention takes the form of a sufficiency-of-the-evidence challenge, in that Defendant argues that the state “failed to prove beyond a reasonable doubt that the crimes occurred in Missouri[.]”
The State counters that it was not obligated to prove jurisdiction beyond a reasonable doubt. Rather, because jurisdiction is not an “element” of statutory sodomy in the first degree, see § 566.062, the State argues that it need only be ‘“reasonably inferred by the facts and circumstances that the charged crime occurred within the trial court’s jurisdiction.’ ” (quoting State v. Walton, 920 S.W.2d 585, 586 (Mo.App.1996)). However, the State’s argument ignores that the quoted language from Walton concerned the standard of proof for establishing proper venue — not jurisdiction. See Walton, 920 S.W.2d at 586.
Recognizing that the concepts of venue and jurisdiction have traditionally been conflated in Missouri criminal jurisprudence, our supreme court in State v. Taylor, 238 S.W.3d 145 (Mo. banc 2007), clarified that venue is not jurisdictional.4 “Venue determines, among many courts with jurisdiction, the appropriate forum for the trial.” Id. at 149. The venue requirement is not absolute; it can be waived, for example if a defendant moves for a change of venue or fails to raise the issue before trial. Id. at 150; see also Rules 32.03 and 32.04. If venue is properly objected to, the State then must prove by a preponderance of the evidence that the crime occurred in the county where the case is filed. Taylor, 238 S.W.3d at 150.
In contrast, “[j]urisdictional doctrine prevents courts from holding trials when the crime at issue occurred out of state; a state court lacks the authority to enforce criminal law unless the conduct, or some substantial portion of it, occurred within the state.” Id. at 149. If jurisdiction is lacking, a court has “no power to hear a case.” Id.; see also State v. Kleen, 491 S.W.2d 244, 245 (Mo.1973); State v. Moss, 791 S.W.2d 501, 502 (Mo.App.1990).
Because of this fundamental difference between venue and jurisdiction, cases discussing the standard of proof for establishing venue offer no support as to the appropriate standard of proof for establishing jurisdiction. Unfortunately, neither party has cited us to any case law, nor can we find any, that directly addresses the standard of proof required to establish jurisdiction in a criminal case in Missouri.5 We need not decide that issue, however, because we are convinced that the evidence adduced here was sufficient under the highest standard — beyond a reasonable doubt — to establish that Missouri has jurisdiction.6
*7The record reveals that around December 2010, Defendant and Woodruff moved from Harrison, Arkansas, to Seymour, Missouri. Following this move, Mother arranged for Woodruff to continue to babysit Victim periodically. To facilitate this arrangement, Woodruff, accompanied by Defendant on one occasion, would pick up Victim in Arkansas and then drive her to their home in Missouri. The period of this arrangement lasted from December 2010 through February 2011, which encompasses the time period specified in the felony information. Before February 2011, Victim had “loved” going to Woodruffs home. Her disposition regarding babysitting, however, suddenly and dramatically turned negative. Within about three months after this marked change in attitude, Victim disclosed the alleged crimes, specifically implicating Defendant.
Defendant takes issue with the State’s evidence, arguing that it was “circumstantial” and that the State “was unable to provide any definitive proof’ that Defendant committed'the alleged crimes in Missouri. Defendant attempts to underscore this argument by highlighting evidence that Woodruff babysat Victim for almost two years while living in Arkansas with Defendant, that Mother testified that the alleged offenses “could have” occurred in Arkansas, that Steiner testified that it was not unusual for victims of sexual abuse to delay their disclosure of the abuse, and that Mother testified she did not know whether Defendant was at home with Woodruff during the periods when Wood-ruff babysat Victim in Missouri.
Defendant, however, directs us to no authority stating that jurisdiction must be shown by direct evidence or “definitive proof,” whatever that may be. To the contrary, the general rule is that “[t]he State may prove its case by presenting either direct or circumstantial evidence connecting the defendant to each element of the crime.” State v. Jones, 296 S.W.3d 506, 509 (Mo.App.2009). Upon appellate review, “[cjircumstantial evidence is afforded the same weight as direct evidence.” State v. Hutchison, 957 S.W.2d 757, 767 (Mo. banc 1997). “A verdict is not flawed because it was based on circumstantial evidence or because that circumstantial evidence failed to exclude every reasonable theory of innocence.” State v. Middlemist, 319 S.W.3d 531, 537 (Mo.App.2010). Here, jurisdiction is not, strictly speaking, an element of statutory sodomy. See section 566.062.7 Defendant, however, has not cited us to any legal authority supporting the notion that proof of jurisdiction requires any greater evidentiary basis than that required to prove an element of the offense. Because circumstantial evidence may provide a sufficient evi-dentiary basis for proving an element of the offense, we see no reason why it cannot provide a sufficient evidentiary basis to support a finding of jurisdiction.
In the instant case, the State adduced sufficient circumstantial evidence for a reasonable fact-finder to reasonably infer and thereby conclude beyond a reasonable doubt that the alleged crimes occurred in Missouri. Defendant’s arguments that the alleged crimes “could have” occurred in Arkansas rather than in Missouri are speculative and contrary to our standard of review, supra, in that they rely upon evidence and inferences contrary to *8the trial court’s judgment. State v. Niederstadt, 66 S.W.3d 12, 14 (Mo. banc 2002); State v. McCleod, 186 S.W.3d 439, 443 (Mo.App.2006). Defendant’s first point is denied.
Corroboration Rule Does Not Apply
In his second point, Defendant contends that the trial court erred in overruling his motion for judgment of acquittal at the close of all the evidence, in that
the State failed [to] present evidence that would prove beyond a reasonable doubt that [Defendant] touched [Victim] in her vagina and anus with his finger because[Victim]’s statements regarding where she was touched were so inconsistent that her testimony alone was not sufficient to support convictions for two counts of statutory sodomy in the first degree.
“When reviewing a motion for judgment of acquittal, we apply the same standard of review as the standard used in reviewing a challenge to the sufficiency of the evidence.” State v. McQuary, 173 S.W.3d 663, 666-67 (Mo.App.2005).
Defendant acknowledges that, as a general rule, “ ‘[t]he uncorroborated testimony of the victim in a case of sexual assault is sufficient to sustain a conviction.’ ” State v. Waddell, 164 S.W.3d 550, 553 (Mo.App.2005) (quoting State v. Sladek, 835 S.W.2d 308, 310 (Mo. banc 1992)). However, Defendant urges that corroboration of Victim’s testimony was required in this case. He notes that whereas Victim’s out-of-court statements to her mother and Steiner reveal that Defendant touched her in two places (her “peepee” and “butt”), Victim “changed her story” when she testified at trial that Defendant touched only her “peepee.” Defendant cites Waddell for the proposition that corroboration is required when “the victim’s testimony is contradictory and in conflict with physical facts, surrounding circumstances and common experience, that its validity is thereby rendered doubtful.” 164 S.W.3d at 553. Citing State v. Gatewood, Defendant notes that “[t]he discrepancies must amount to ‘gross inconsistencies’ and contradictions and must relate directly to an essential element of the case.” 965 S.W.2d 852, 856 (Mo.App.1998).
After correctly citing the above general principles, Defendant urges us to invoke and apply the corroboration rule here. Defendant ignores, however, that both Waddell and Gatewood — the only cases cited by Defendant in support of his argument — declined to apply the corroboration rule where the challenged inconsistencies were between a witness’s trial testimony and the witness’s out-of-court statements.8 Waddell, 164 S.W.3d at 553-54; Gatewood, 965 S.W.2d at 857. “ ‘[T]he corroboration rule ... does not apply to conflicts between the-victim’s trial testimony and the victim’s out-of-court statements.”’ Waddell, 164 S.W.3d at 553 (quoting State v. Paxton, 140 S.W.3d 226, 230 (Mo.App.2004) (emphasis added in Waddell)). .
Here, the discrepancies were between Victim’s testimony regarding where Defendant touched her and her out-of-court statements to her mother and Steiner. The corroboration rule does not apply in this context. See Waddell, 164 S.W.3d at 553-54; Gatewood, 965 S.W.2d at 857. Any inconsistencies between thesk statements were “ ‘for the ... trier of fact to *9reconcile and consider when judging the witness’s credibility.’ ” Waddell, 164 S.W.3d at 553 (quoting State v. Paxton, 140 S.W.3d 226, 230 (Mo.App.2004)). The trial court was free to “believe all, some, or none of the testimony of [Victim] when considered with the facts, circumstances, and other testimony in the case.” Jeffrey, 400 S.W.3d at 313. Defendant’s second point is denied.
Decision
The trial court’s judgment of conviction is affirmed.
JEFFREY W. BATES, P.J. and MARY W. SHEFFIELD, J., concur.
. All references to statute are to RSMo Cum. Supp.2010, unless otherwise indicated.
. We have chosen to withhold the names of Victim and members of her family in order to protect their identity. See section 566.226.
. Section 541.191 provides:
1. This state has jurisdiction over an offense that a person commits by his own conduct or the conduct of another for which such person is legally accountable if:
(1) Conduct constituting any element of the offense or a result of such conduct occurs within this state; or
(2) The conduct outside this state constitutes an attempt or conspiracy to commit an offense within this state and an act in furtherance of the attempt or conspiracy occurs within this state; or
(3) The conduct within this state constitutes an attempt, solicitation, conspiracy or facilitation to commit or establishes criminal accountability for the commission of an offense in another jurisdiction that is also an offense under the law of this state; or
(4) The offense consists of an omission to perform a duty imposed by the law of this state regardless of the location of the defendant at the time of the offense; and
(5) The offense is a violation of a statute of this state that prohibits conduct outside the state.
2. When the offense involves a homicide, either the death of the victim or the bodily impact causing death constitutes a *6result within the meaning of subdivision (1) of subsection 1 of this section. If the body of a homicide victim is found in this state it is presumed that the result occurred in this state.
’ 3. This state includes the land and water and the air space above the land and water.
. The melding of venue with personal jurisdiction was effectively severed in the civil context by State ex rel. DePaul Health Center v. Mummert, 870 S.W.2d 820 (Mo. banc 1994).
. Defendant analogizes the instant case to State v. Kleen, 491 S.W.2d 244 (Mo.1973), in which the Supreme Court of Missouri found that Missouri did not have jurisdiction to convict the defendant on an insufficient funds check charge. However, Kleen is inapposite in that the dispositive facts were not contested; rather, the issue on appeal was purely legal. See id. at 245.
.We note that of the states that have addressed the standard of proof for establishing jurisdiction when factually disputed in a criminal context, the dominate view is that the state must establish its jurisdiction beyond a reasonable doubt. People v. Gayheart, 285 Mich.App. 202, 776 N.W.2d 330, 338 (2009) *7(collecting cases); see also Wayne R. LaFave, et al„ Criminal Procedure 16.4(d) (3d ed.2007).
. Statutory sodomy in the first degree is composed of the following statutory elements: (1) deviate sexual intercourse (2) with another person who is less than fourteen years old. State v. Brown, 58 S.W.3d 649, 655 (Mo.App.2001).
. The repeated and continued disregard of this qualification to the corroboration rule by defendants urging its application in case after case where it does not apply buttresses our recent observation that the rule is "often asserted but seldom supported[.]” State v. Shinn, 420 S.W.3d 619, 626 (Mo.App.2013). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283626/ | KURT S. ODENWALD, Judge.
Introduction
Richard and Patricia Burton (“the Bur-tons”) appeal from the trial court’s judgment awarding attorney fees to Janice Klaus (“Klaus”). On appeal, the Burtons claim that the trial court’s judgment awarding attorney fees is invalid because the trial court lacked jurisdiction over the case when it entered its judgment. Because the Burtons did not preserve their challenge to the trial court’s judgment and award of attorney fees for appeal, we dismiss the appeal.
Factual and Procedural History
In June 2009, the Burtons entered into a residential sale contract with Klaus for the purchase of a home located in St. Louis County. Section 13 of the residential sale contract provided that, “[i]n the event of litigation between the parties, the prevailing party shall recover, in addition to damages or equitable relief, the cost of litigation including reasonable attorney’s fees.”
In December 2010, the Burtons filed a petition in the Circuit Court of St. Louis County alleging breach of the residential sale contract, fraudulent misrepresentation, negligent misrepresentation, and violation of the Merchandising Practices Act. The petition requested judgment in the Burtons’ favor as well as costs, expenses, and attorney fees. Klaus filed an answer to the Burtons’ petition, which included a prayer for relief requesting that the petition be dismissed and that she be awarded attorney fees and costs pursuant to Section 18 of the residential sale contract. At the same time, Klaus filed a motion for summary judgment. In her suggestions in support of summary judgment, Klaus requested judgment as a matter of law as well as “10 days from the entry of judgment to file a Motion for Attorney Fees pursuant to Section 13 of the Residential Sale Contract.”
On November 21, 2011, the trial court entered summary judgment in favor of Klaus on all counts (“November 21, 2011 Order and Judgment”). On December 15, 2011, Klaus filed “Defendant’s Motion for Attorney Fees and Related Costs.” Klaus’s motion cited Section 13 of the residential sale contract and requested attorney fees and related costs in the amount of $28,607.55.
On February 24, 2012, the trial court entered a subsequent order and judgment awarding $12,000 in attorney fees plus $2,950.35 in costs to Klaus per the terms and conditions of the residential sale contract (“February 24, 2012 Order and Judgment”).
On March 5, 2012, the Burtons filed their notice of appeal to this Court. The notice of appeal stated that the Burtons were appealing the November 21, 2011 Order and Judgment, the trial court’s entry of summary judgment. The Burtons described their case on appeal as an appeal of the trial court’s award of summary judgment on the basis that the trial court erroneously characterized questions of fact as questions of law.
On June 5, 2012, this Court issued the Burtons an Order to Show Cause for filing their notice of appeal out of time. In the Order to Show Cause, this Court stated that the trial court entered its judgment on November 21, 2011, and further noted that the motion for attorney fees filed by Klaus was not an authorized after-trial motion. As a result, per Rules 81.04(a)1 and 81.05(a), the judgment of November *1121, 2011 became final on December 21, 2011, and the Burtons’ notice of appeal was due 10 days later, or January 3, 2012. The Order to Show Cause further stated: “The notice of appeal would be timely as to the February 24, 2012 judgment awarding attorneys’ fees, but Appellant does not appear to be appealing it.” We then instructed the Burtons to show cause as to why the appeal should not be dismissed for lack of a timely notice of appeal.
In their response to this Court’s Order to Show Cause, the Burtons maintained that the November 21, 2011 Order and Judgment was not a final appealable judgment because the Order and Judgment did not adjudicate Klaus’s claim or right to attorney fees. The Burtons claimed that the trial court’s November 21, 2011 Order and Judgment did not become a final judgment for purposes of appeal until amended by the trial court in its February 24, 2012 Order and Judgment. The Burtons argued that Klaus’s motion for attorney fees actually operated as a motion to amend the judgment or motion for new trial, two of the six after-trial motions permitted by Rule 78.04 that extend the time at which the trial court’s judgment becomes final to 90 days for purposes of filing a notice of appeal. In further support of their argument, the Burtons claimed the November 21, 2011 Order and Judgment was not a final judgment because, under Rule 74.01(b), any order that adjudicates fewer than all of the claims or rights and liabilities of the parties does not terminate the action. The Burtons alleged that Klaus’s prayer for relief in her answer, which requested attorney fees, was essentially a counterclaim that was not adjudicated by the November 21, 2011 Order and Judgment.
On June 11, 2013, this Court entered an Order stating that the question of our jurisdiction over the appeal would be taken with the case. In that Order, this Court again stated that Klaus’s motion for attorney fees was not an authorized after-trial motion that would extend the time for filing a notice of appeal, citing Glandon v. Daimler Chrysler Corp., 142 S.W.3d 174, 178 (Mo.App.E.D.2004). As a result, the Burtons were required to file their notice of appeal from the trial court’s entry of summary judgment no later than January 3, 2012, which they failed to do. We further rejected the Burtons’ claim that the November 21, 2011 Judgment was not final for purposes of appeal because Klaus’s prayer for relief in her Answer was in fact a counterclaim that was not disposed of by the trial court. However, this Court also stated that the Burtons “claim to be aggrieved by the judgment of February 24, 2012. We shall consider the notice of appeal filed on March 5, 2012 timely as to that judgment.” We then directed the Burtons to submit their appellate brief by August 9, 2013.
Point on Appeal
In their only point on appeal, the Bur-tons argue that the trial court’s February 24, 2012 Order and Judgment awarding attorney fees and costs is invalid because the trial court lacked jurisdiction to enter further orders in the case after its November 21, 2011 Order and Judgment became final on December 21, 2011.2
*12
Discussion
Initially, we must sua sponte consider this Court’s authority to review the Burtons’ appeal. St. Louis Union Station Holdings, Inc. v. Discovery Channel Store, Inc., 272 S.W.3d 504, 505 (Mo.App.E.D.2008). Generally, under Rule 81.04(a), a notice of appeal must be filed no later than 10 days after a judgment becomes final. Rule 81.04(a). A judgment becomes final 30 days after its entry if no timely, authorized after-trial motion is final. Rule 81.05(a)(1). However, if a party files an authorized after-trial motion, the time at which a judgment becomes final—for purposes of ascertaining the time within which an appeal may be taken—is extended for up to 90 days. Rule 81.05(a)(2). The Missouri Supreme Court has recognized six authorized after-trial motions:
1. Motion to dismiss without prejudice after the introduction of evidence at trial, pursuant to Rule 67.01.
2. Motion for directed verdict under Rule 72.01(a).
3. Motion for judgment notwithstanding the verdict under Rule 72.01(b).
4. Motion to amend the judgment pursuant to Rule 78.04 (formerly Rule 73.01(a)(5)).
5. Motion for relief from a judgment or order pursuant to Rule 74.06(a) and (b).
6. Motion for new trial under Rule 78.04.
Glandon, 142 S.W.3d at 177 (citing Taylor v. United Parcel Service, Inc., 854 S.W.2d 390, 392 (Mo. banc 1993)).
In Glandon, this Court held that a petition for attorney fees is not an authorized after-trial motion that serves to extend the time period for filing a notice of appeal. Id. at 178. Based on Glandon, this Court previously held that Klaus’s motion for attorney fees was not an authorized after-trial motion for purposes of extending the time period for appeal. Because the motion for attorney fees did not extend the time for appeal, the trial court’s entry of summary ’judgment on November 21, 2011, became final on December 21, 2011. The Burtons then had 10 days to file their notice of appeal. Because the Burtons did not file their notice of appeal until March 5, 2012, they failed to meet the requirements of Rule 81.04(a) and their notice of appeal was untimely. We see no reason to digress from this Court’s earlier ruling and Order.
Although Burton’s notice of appeal was held to be untimely as to the trial court’s November 21, 2011 entry of summary judgment, we stated in our Order of June 11, 2013 that because the Burtons claimed to be aggrieved by the February 24, 2012 judgment awarding attorney fees, we “shall consider the notice of appeal filed on March 5, 2012 timely as to that judgment.”
While the Burtons’ notice of appeal was deemed timely as to the trial court’s judgment awarding attorney fees, substantive deficiencies in the notice nevertheless require our dismissal of the appeal. Rule 81.08(a) requires that a notice of appeal specify the judgment or order appealed from. Rule 81.08(a); Schrader v. Quik-Trip Corp., 292 S.W.3d 453, 456 (Mo.App.E.D.2009). Our review on appeal is confined to a review of the decision identified in the notice of appeal. Maskill v. Cummins, 397 S.W.3d 27, 32 (Mo.App.W.D.2013).
Here, the Burtons’ notice of appeal specifically states that they appeal from the judgment entered on November 21, 2011—the trial court’s entry of summary judgment. Moreover, the civil case information form filed with the notice of appeal further provides:
*13Plaintiffs appeal the trial court’s award of summary judgment on their breach of contract, negligent misrepresentation, fraudulent misrepresentation and MMPA claims on the basis that the trial court erroneously characterized questions of fact that should have been left for the jury as questions of law and erroneously entered summary judgment in favor of Defendant.
The Burtons clearly described the issue to be raised on appeal — that “the trial court erroneously characterized questions of fact that should have been left for the jury as questions of law and erroneously entered summary judgment in favor of Defendant.” The notice of appeal is expressly limited to the substantive issues relating to the grant of summary judgment. Nowhere in the notice of appeal do the Burtons raise the issue of the trial court’s award of attorney fees.3
Because the notice of appeal only refers to the November 21, 2011 Order and Judgment granting summary judgment to Klaus, this Court is precluded from reviewing matters outside of that judgment, including the February 24, 2012 Order and Judgment awarding attorney fees to Klaus. See Schrader, 292 S.W.3d at 456 (where notice of appeal only referred to trial court’s entry of summary judgment and not subsequent dismissal of another claim, Court of Appeals was limited to a review of the entry of summary judgment); Erickson, 797 S.W.2d at 858 (Court of Appeals was confined to reviewing judgment referred to in notice of appeal); Sutton v. Schwartz, 808 S.W.2d 15, 23 (Mo.App.E.D.1991) (Court of Appeals lacked jurisdiction to consider issue of attorney fees when appellant’s notice of appeal said she was appealing from a different trial court order that did not address attorney fees). And, as this Court has previously concluded, the notice of appeal is untimely as to the November 21, 2011 Order and Judgment. Accordingly, the appeal is dismissed.
Conclusion
Because the Burtons’ notice of appeal is limited to issues relating only to the trial court’s entry of summary judgment, they have not preserved the issue of the trial court’s award of attorney fees for this Court’s review. The appeal is dismissed.
KURT S. ODENWALD, Judge, MARY K. HOFF, P.J., Concurs.
ANGELA T. QUIGLESS J., Concurs.
. All rule references are to Mo. R. Civ. P. (2012).
. In their response to this Court’s Order to Show Cause for filing a late notice of appeal, the Burtons argued that the trial court’s November 21, 2011 Order and Judgment was not final until the trial court entered its February 24, 2012 Order and Judgment awarding attorney fees. The Buttons now argue just the opposite-that the November 21, 2011 Order and Judgment was a final judgment, and therefore the trial court erred in entering its February 24, 2012 Order and Judgment.
. We also note that this Court’s Order of June 5, 2012, stated the Burtons do "not appear to be appealing” the February 24, 2012 Order and Judgment awarding attorney fees. At that point, pursuant to Rule 81.07(a), the Bur-tons could have filed a motion with this Court to file a late notice of appeal in order to appeal the issue of attorney fees. However, the Burtons failed to do so. See Erickson v. Pulitzer Pub. Co., 797 S.W.2d 853, 858-59 (Mo.App.E.D.1990). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/584917/ | 966 F.2d 1452
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Barbara Ann HINES, Plaintiff-Appellant,v.VANDERBILT UNIVERSITY MEDICAL CENTER; Vanderbilt UniversityDepartment of Pathology; Vanderbilt University Departmentof Employee Relations; Fred Gorstein, M.D., Chairman ofPathology; John Cousar, M.D., Director of Pathology; HelgaMcCaw, Director of Human Resources; Linda Billett;Supervisor, Lab Liaison; Judy Greer Rhodes, Supervisor, LabLiaison; Richard Smogur, Director of Employee Relations,Defendants-Appellees.
No. 91-5418.
United States Court of Appeals, Sixth Circuit.
June 17, 1992.
1
Before KENNEDY and SILER, Circuit Judges, and JOINER, Senior District Judge.*
ORDER
2
This pro se Tennessee plaintiff appeals the district court's order dismissing her complaint filed under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-1 et seq. She includes in her brief on appeal a request for the appointment of counsel, leave to proceed without prepayment of fees, and for a transcript at government expense. The appeal has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).
3
Barbara Ann Hines brought this action against the Vanderbilt University Medical Center, its Departments of Pathology and Employee Relations, their chairmen and directors, and her former supervisors. Hines alleged that she was terminated from her employment in the Department of Pathology in retaliation for making prior claims of discrimination based on race. Defendants maintained that the termination was based on misconduct after Hines allegedly threatened another employee.
4
Upon review, we conclude that the complaint was properly dismissed. The findings of fact as found by the special master and adopted by the district court are not clearly erroneous, see Anderson v. City of Bessemer City, 470 U.S. 564, 573 (1985); and a de novo review of its legal conclusions reflects that the court properly dismissed the complaint. See In re Edward M. Johnson & Assocs., Inc., 845 F.2d 1395, 1398 (6th Cir.1988).
5
Hines failed to make out a prima facie case of retaliatory discharge or to show that the reason given for termination was pretextual. See Canitia v. Yellow Freight Sys., Inc., 903 F.2d 1064, 1066 (6th Cir.), cert. denied, 111 S. Ct. 516 (1990). To establish a case of retaliatory discharge, the plaintiff must prove (1) that she engaged in an activity protected by Title VII; (2) that the exercise of the protected right was known to the defendant; (3) that defendant thereafter took an employment action adverse to the plaintiff; and (4) that there was a causal connection between the activity and the adverse action. Wrenn v. Gould, 808 F.2d 493, 500 (6th Cir.1987). Moreover, findings that are based on a determination of credibility can virtually never be clear error. See Anderson, 470 U.S. at 575.
6
Hines failed to make a prima facie showing of a retaliatory discharge under Title VII. It is undisputed that the right to seek redress for discriminatory practices is protected and that defendants took an action adverse to Hines. However, Hines must also show that the employer knew about previously filed EEOC charges and that the charges were causally connected to the termination. See Polk v. Yellow Freight Sys., Inc., 876 F.2d 527, 531 (6th Cir.1989). The district court's finding that Dr. Cousar, the individual responsible for the decision to discharge, was unaware of the EEOC charges is not clearly erroneous and can not be disturbed. See Anderson, 470 U.S. at 575; Wrenn, 808 F.2d at 499.
7
Additionally, the suit could not be maintained under 42 U.S.C. § 1981 because it did not concern matters relating to the formation of Hines's employment contract. See Patterson v. McLean Credit Union, 491 U.S. 164, 180 (1989). Section 1981 does not reach claims of discriminatory discharge. Prather v. Dayton Power & Light Co., 918 F.2d 1255, 1258 (6th Cir.1990), cert. denied, 111 S. Ct. 2889 (1991). Hines could not maintain her suit under 42 U.S.C. § 1983 because no state action was involved. See NCAA v. Tarkanian, 488 U.S. 179, 191 (1988). Lastly, Hines may not seek relief under the Civil Rights Act of 1991 because the act does not apply retroactively. See Vogel v. City of Cincinnati, 959 F.2d 594, 598 (6th Cir.1992).
8
Accordingly, the requests for appointment of counsel, for leave to proceed without prepayment of fees and for a transcript at government expense are denied. The district court's order is hereby affirmed. Rule 9(b)(3), Rules of the Sixth Circuit.
*
The Honorable Charles W. Joiner, Senior U.S. District Judge for the Eastern District of Michigan, sitting by designation | 01-04-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/5283628/ | COHEN.
Introduction
Manuel Burgess (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 contends the motion court clearly erred in denying his claim that his counsel provided ineffective assistance by failing to advise him that, if he pleaded guilty, he would be subject to “lifetime parole supervision with electronic monitoring.” We affirm.
Factual and Procedural Background
The State charged Movant with four counts of first-degree statutory rape (Count I, II, IV, and VI), one count of first-degree statutory sodomy (Count III), one count of first-degree child molestation (Count V), and one count of incest (Count VII). At the plea hearing, the prosecutor announced that, if the case proceeded to trial, the State would prove that from October 5, 2002 to October 4, 2009, Movant knowingly engaged in sexual intercourse with his biological daughter, D.S., a child less than fourteen years of age. The State also intended to present evidence that Defendant “had deviate sexual intercourse” with D.S. by placing his mouth on her vagina and “subjected [D.S.] ... to sexual contact by touching her breasts.” Finally, the State planned to introduce medical testimony establishing that both D.S. and Movant had genital herpes. When the plea court asked Movant if he agreed that “the facts as presented[,] if presented to a jury[,] could be substantial facts to warrant a conviction in this case?,” Movant responded, “Yes, ma’am.”
The prosecutor announced the following ranges of punishment: five to thirty years or life in prison for Counts I through VI; five to fifteen years’ incarceration for Count V; and one day to four years incarceration and/or a fine of up to $5,000 for Count VII. Movant affirmed his understanding of the ranges of punishment. The prosecutor recommended that the court sentence Movant to concurrent terms of fifteen years on Counts I through *23VI and four years on Count VII. Movant verified that he understood the State’s recommendation and acknowledged that no one had “made any promises to [him] as to what sentence [he] would receive.”
Prior to announcing Movant’s sentence, the plea court questioned Movant about his satisfaction with counsel’s representation. Movant advised that he had sufficient time to discuss the State’s recommendation with counsel and no complaints or criticisms about his counsel. He further acknowledged that his counsel did not make “any promises to [him] regarding [his] sentence or anything else in order to get [him] to plead guilty.” The plea court accepted Movant’s guilty plea and sentenced him to concurrent terms of four years’ imprisonment for Count VII and fifteen years’ imprisonment on the remaining six counts.
Movant filed a Rule 24.035 motion for post-conviction relief, which counsel later amended. In his motion, Movant alleged, inter alia, that he did not learn about the electronic monitoring requirement until he was in prison and that his counsel was ineffective in failing to inform him that, if he entered a guilty plea, he would be subject to lifetime supervision by electronic monitoring. The motion court denied Movant’s motion without an evidentiary hearing. Movant appeals.
Standard of Review
Our review of the motion court’s denial of post-conviction relief is “limited to a determination of whether the findings and conclusions of the [motion] court are clearly erroneous.” Rule 24.035(k). The motion court’s “judgment is clearly erroneous when an appellate court is left with a definite and firm impression that a mistake has been made.” McNeal v. State, 412 S.W.3d 886, 889 (Mo. banc 2013) (internal quotation omitted).
Discussion
In his sole point on appeal, Movant claims the motion court clearly erred in denying his Rule 24.035 motion without an evidentiary hearing because the record does not refute his allegations that his counsel failed to inform him of the direct consequences of his guilty plea. More specifically, Movant alleges that his counsel failed to inform him that a guilty plea subjected him to lifetime parole supervision with electronic monitoring. Movant further asserts that, had he known about lifetime electronic monitoring, there is a reasonable probability that he would not have pleaded guilty and would have proceeded to trial. In response, the State asserts that the motion court did not err in denying Movant’s Rule 24.035 motion without an evidentiary hearing because lifetime supervision “which applied only after [Movant] was paroled or served his sentence, was a collateral consequence of the guilty plea about which neither counsel nor the court was constitutionally required to inform [Movant].”
A movant is entitled to an evidentiary hearing on a motion for post-conviction relief only if: (1) he alleges facts, not conclusions, warranting relief; (2) the facts alleged raise matters not refuted by the files and record of the movant’s case; and (3) the matters complained of resulted in prejudice to the movant. Roberts v. State, 276 S.W.3d 833, 835 (Mo. banc 2009). “If the court shall determine the motion and the files and records of the case conclusively show that the movant is entitled to no relief, a hearing shall not be held.” Rule 24.035(h). To be entitled to an evi-dentiary hearing involving a claim of ineffective assistance of counsel, the movant must “allege facts, unrefuted by the record, that (1) trial counsel’s performance did not conform to the degree of skill, care and diligence of a reasonably competent *24attorney and (2) he was thereby prejudiced.” McLaughlin v. State, 378 S.W.3d 328, 352 (Mo. banc 2012) (internal quotation marks omitted). To satisfy the prejudice requirement, a movant must show that “that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); Burnett v. State, 311 S.W.3d 810, 817 (Mo.App.E.D.2009).
“[A] guilty plea must be a voluntary expression of the defendant’s choice, and a knowing and intelligent act done with sufficient awareness of the relevant circumstances and likely consequences.” State v. Roll 942 S.W.2d 370, 375 (Mo. banc 1997). When a defendant enters a guilty plea, ineffective assistance of counsel is relevant only to the extent it affected the voluntariness of the plea. Burnett, 311 S.W.3d at 817. A voluntary and intelligent plea “means, inter alia, that the defendant must enter the plea with knowledge of the direct consequences of the plea.” Reynolds v. State, 994 S.W.2d 944, 946 (Mo. banc 1999) (citing Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d. 747 (1970)). “Direct consequences are those which definitely, immediately and largely automatically follow the entry of a plea of guilty.” Ramsey v. State, 182 S.W.3d 655, 659 (Mo.App.E.D.2005).
“The trial court and counsel have a duty to inform the defendant of the direct consequences of pleading guilty, but not the collateral consequences.” Id. Counsel’s failure to inform the defendant of the collateral consequences of a guilty plea is not a sufficient basis for an ineffective assistance of counsel claim. Id. However, counsel’s actions may rise to the level of constitutionally ineffective assistance “[w]hen a defendant inquires of his trial counsel concerning a collateral consequence, counsel misinforms him or her regarding that consequence, and the defendant relies upon the misrepresentation in deciding to plead guilty....” Redeemer v. State, 979 S.W.2d 565, 572 (Mo.App.W.D.1998).
Movant contends that he did not enter his plea knowingly and voluntarily because his counsel failed to inform him of direct consequences of his plea, namely the requirement of lifetime parole supervision with electronic monitoring. Movant relies on Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010) in support of his argument that the Sixth Amendment imposes a duty on plea counsel to inform his or her client of lifetime parole supervision with electronic monitoring, which is a mandatory consequence of conviction of certain charges pursuant to Section 217.735.1 Mo.Rev.Stat. § 217.735.
In essence, Movant asks this court to expand Padilla’s holding with respect to deportation to include advice relating to parole consequences. The Padilla Court focused on deportation’s severity as a penalty, its close connection to the criminal process, and the fact that it constituted “nearly an automatic result for a broad class of noncitizen offenders.” Id. at 365-66, 130 S.Ct. 1473. The Court also recognized that “preserving the client’s right to remain in the United States may be more *25important to the client than any potential jail sentence.” Id. at 368, 130 S.Ct. 1473 (quotation omitted). Because of the “unique nature” of deportation as a consequence of a criminal conviction, the Court held that the “collateral versus direct distinction is ... ill suited [sic] to evaluating a Strickland claim concerning the specific risk of deportation.” Id. at 365, 366, 130 S.Ct. 1473. Instead, the Court concluded that, when the immigration consequence of a guilty plea “is truly clear ... the duty to give correct advice is equally clear.” Id. at 369, 130 S.Ct. 1473.
Missouri courts have declined to expand Padilla ’s reasoning to non-deportation consequences of a guilty plea. In Webb v. State, 334 S.W.3d 126, 128-29 (Mo. banc 2011), the movant alleged that plea counsel misadvised him that he would be required to serve only forty percent of his twelve-year sentence when, in fact, he was required to serve eight-five percent. Because the record did not refute the movant’s claim that counsel affirmatively misrepresented the percentage of his sentence he would be required to serve, the Court remanded the case for an eviden-tiary hearing. Id. at 130-31. Importantly, however, the majority did not overturn existing case law holding that parole eligibility is a collateral consequence.2 Id. at 129 (citing Reynolds, 994 S.W.2d at 946); see also Smith v. State, 353 S.W.3d 1, 5 (Mo.App.E.D.2011) (“[E]ligibility for parole, like other matters relating to parole, is a collateral matter, which does not affect the voluntariness of the plea.”); Johnson v. State, 398 S.W.3d 513, 518 (Mo.App.S.D.2013) (“[UJnder existing ease law plea counsel has no obligation to advise [the movant] of his parole eligibility....”).
We also note that our courts have determined that significant consequences of guilty pleas in sex offense cases are collateral. Ramsey, 182 S.W.3d at 661 ,(“[T]he registration requirement is a collateral consequence of a guilty plea.”); Morales v. State, 104 S.W.3d 432, 437 (Mo.App.E.D.2003) (holding that civil commitment under the Sexually Violent Predator statutes was a collateral consequence of a guilty plea). In discussing registration requirements, the court determined in Ramsey, that “[although registration definitely, immediately and largely automatically follows the entry of a guilty plea in this case, because it is not punitive, it does not enhance [the movant’s] sentence or affect the range of his punishment.” Ramsey, 182 S.W.3d at 661. We conclude that this reasoning is applicable to parole monitoring. As with registration, parole monitoring is “non-punitive and regulatory,” id., and therefore not a direct consequence of a guilty plea.
The motion court did not clearly err in denying Movant’s Rule 24.035 motion without an evidentiary hearing. Because it is a collateral consequence, Movant’s counsel was not ineffective in failing to advise him that a guilty plea subjected him to lifetime supervision by electronic monitoring. Point denied.
Conclusion
The judgment of the motion court is affirmed.
LISA S. VAN AMBURG, P.J., and PHILIP M. HESS, J., concur.
. Movant incorrectly cites Section 559.106.1 as the source of the lifetime supervision requirement. Mo.Rev.Stat. § 559.106.1. As the State points out in its brief, Section 217.735.1 "applies to [sex] offenders who have been granted probation, and to offenders who have been released on parole, conditional release, or upon serving their full sentence without early release.” Mo.Rev.Stat. § 217.735.3. Section 217.735.4 provides: "A mandatory condition of lifetime supervision of an offender under this section is that the offender be electronically monitored.” Mo.Rev.Stat. § 217.735.4.
. The majority noted that neither the trial court nor plea counsel was obligated to inform the defendant of the parole consequences of his guilty plea, but that "misinforming — in contrast to failing to inform— may affect the voluntariness of a defendant's plea.” Webb, 334 S.W.3d at 129. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283629/ | ROBERT G. DOWD, JR., Judge.
John J. Smith (“Appellant”) appeals from the judgment dismissing with prejudice his petition for declaratory judgment, in which he sought to have the 2007 judgment dissolving his marriage to Lora J. Smith (“Respondent”) declared void. Respondent has filed a motion to dismiss the appeal, arguing that Appellant has failed to comply with Rule 84.04 and Rule 81.12. We agree and dismiss the appeal.
Appellant claims to be an attorney and is representing himself in this matter. Attorneys and non-attorneys alike are held to the same strict standards for compliance with the briefing requirements in Rule 84.04. Studt v. Fastenal Co., 326 S.W.3d 507 (Mo.App.E.D.2010). Insistence on strict compliance with the rules of appellate procedure is “necessary to assure judicial impartiality, judicial economy, and fairness to all parties.” Id at 507-08. A deficient brief would require the court to become an advocate by speculating on facts and errors and making arguments that have not been made, which is to be avoided. See The Advisory Group USA, LC v. Miner, 365 S.W.3d 615, 616 (Mo.App.E.D.2012). Failure to comply with the rules preserves nothing for review and is a proper basis for the Court to dismiss *27an appeal. See id. at 615-16; see also Studt, 326 S.W.3d at 508.
As Respondent alleges in her motion, there are numerous violations of Rule 84.04 in Appellant’s brief. First, the Statement of Facts is not “fair and concise.” Rule 84.04(c). It contains numerous facts that are seemingly irrelevant to the questions presented and that are argumentative. For example, Appellant asserts as fact: “The intentional falsely made finding by the trial judge [in the dissolution case, not in the case being appealed] made falsely and untruthfully impugns Appellant’s reputation, both personally and professionally, for honesty, integrity and ethical behavior as an attorney as it is a clear, explicit and untrue statement that the gross wages asserted in Appellant’s Statement of Income and Expenses was lower than his paystub.” The Statement of Facts may contain only those facts “relevant to the questions presented for determination without argument.” Id. Moreover, many facts are asserted without “specific page references to the relevant portion of the record on appeal.” Id. Because of these violations, the Statement of Facts wholly fails to set forth “an immediate, accurate, complete, and unbiased understanding of the facts of the case.” Waller v. A.C. Cleaners Management Inc. 371 S.W.3d 6, 10 (Mo.App.E.D.2012).
Likewise, Appellant’s Point Relied On violates Rule 84.04(d). Appellant asserts in his sole point on appeal that the trial court erred in entering the judgment dismissing his case and then sets forth several more allegations of error in the part of the point that should “explain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error.” Rule 84.04(d). This includes several claims that the trial court incorrectly applied the law and repeated assertions that the trial court abdicated its duty to rule on pending motions. When an appellant makes the entire judgment one error and then lists multiple grounds therefore, the point contains multiple legal issues in violation of Rule 84.04(d). See In re Marriage of Fritz, 243 S.W.3d 484, 486-87 (Mo.App.E.D.2007). “Multifarious points preserve nothing for review.” Id.
The Argument portion of a brief can sometimes save a case from dismissal if it can correct the deficiencies found elsewhere. In this case, however, the Argument makes matters worse. It is unduly repetitive, convoluted and disorganized-probably due to the combination of multiple issues being raised in one point. As a result, the arguments are difficult to decipher. Moreover, the argument contains many unsupported conclusions without explanation as to how the principles of law cited interact with the facts of the case. We are not required to search through this lengthy argument and the record on our own to garner a better understanding of the case and make Appellant’s arguments for him. See In re Marriage of Weinshenker, 177 S.W.3d 859, 863 (Mo.App.E.D.2005). Nothing has been preserved for review under these circumstances. See Carlisle v. Rainbow Connection, Inc., 300 S.W.3d 583, 585-86 (Mo.App.E.D.2009).
Finally, Respondent points out that transcripts from two hearings referenced in Appellant’s brief were not included in the record on appeal. They appear from the docket sheets to have been hearings on the Respondent’s motion to dismiss the petition and Appellant’s motion for summary judgment. To the extent that one of the issues in his Point Relied On appears to be the trial court’s refusal to rule on or grant summary judgment, the failure to include the transcript of the hearing on that motion may have precluded appellate *28review of that issue. Taken together, the briefing deficiencies and incomplete record on appeal warrant dismissal.
Respondent’s motion to dismiss the appeal is granted. The appeal is dismissed.
LAWRENCE E. MOONEY, P.J., and SHERRI B. SULLIVAN, J., concur. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283630/ | ORDER
PER CURIAM.
Sanchez Torello (Movant) appeals from the circuit court’s judgment denying, after an evidentiary hearing, his Rule 29.15 motion for post-conviction relief.
We have reviewed the briefs of the parties and the record on appeal and find no error of law. No jurisprudential purpose would be served by a written opinion. However, the parties have been furnished with a memorandum 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/5283631/ | ORDER
PER CURIAM.
Gene Rademacher appeals from the trial court’s judgment, following a bench trial before the Circuit Court of Gasconade *29County, ordering him to set aside the transfer of the family farm to himself and his new wife, Jean Rademacher, pursuant to Section 428.039.1; denying Appellant’s claims for injunctive relief, and awarding his sons, Simon Rademacher and Cletus Rademacher amounts of money for their claims of quantum meruit as well as unjust enrichment for the loss of their access to their soybean crop.
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 |