text:
    W.L. DIXON and A.W. Witcher, Appellants, v. David DEWHURST, Texas Land Commissioner, et al., Appellees.
    No. 06-04-00079-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted June 16, 2005.
    Decided Aug. 4, 2005.

      Ben E. Jarvis, Newell S. Jarvis, Jarvis Law Firm, Tyler, for Appellants.
    Dwight A. Brannon, Gilmer, Jeffee L. Martinez-Vargas, Austin, Thomas A. Za-bel, Burns, Wooley, Marseglia & Zabel, LLP, Houston, for Appellees.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by Justice CARTER.

A vacancy is “an area of unsurveyed public school land_” Tex. Nat. Res.Code Ann. § 51.172(5) (Vernon Supp.2004-2005); see Cockerell v. Taylor County, 814 S.W.2d 892, 894 n. 2 (Tex.App.-Eastland 1991, writ denied). A person discovering that a vacancy exists has the right, in certain circumstances, to lease or purchase the property at a price fixed by the proper state agency. W.L. Dixon and A.W. Witcher (collectively Dixon) claimed a vacancy existed concerning land in Upshur County and attempted to purchase or lease the alleged fifty-four-acre vacancy. Dixon later lowered the claim for vacant land to thirty-five acres, but eventually claimed that the vacancy had to be one of the two acreages. The proceeding went to the General Land Office, which had a survey made of the land, and concluded a vacancy existed. The case was tried before an administrative law judge, who determined that no vacancy existed, and that proposal was adopted by the Commissioner of the General Land Office. Dixon appealed to the district court, and that court affirmed the Commissioner’s order. Dixon appeals.

In determining whether there was substantial evidence to conclude no vacancy existed, a primary issue is whether the administrative law judge could properly consider any evidence except the senior (William King) and junior (David Meredith) surveys in determining, on the ground, the location of the Meredith survey’s south border in relation to the King survey. Dixon urges that a vacancy exists concerning property allegedly located south of the common boundary line of the S.W. Beasley and the Meredith surveys and north of the King survey. The Meredith survey did not call to adjoin the King survey. In fact, the Meredith survey did not even mention or acknowledge the King survey.

However, the Beasley survey and other evidence indicate that they do adjoin. If this evidence could not be considered, then there was no evidence before the Commissioner to support the ruling; if it could be considered, there is.

Standard of Review

Our review is extremely protective of the agency’s decision and the trial court’s review of that decision. The Act of May 28,1993, 73rd Leg., R.S., ch. 991, § 1,1973 Tex. Gen. Laws 4323 requires the trial court to review the Commissioner’s ruling to see if it is supported by substantial evidence. Thus, we look to see if the trial court correctly decided that such substantial evidence exists.

The Administrative Procedure Act (APA) authorizes a reviewing court to test an agency’s findings, inferences, conclusions, and decisions to determine whether they are reasonably supported by substantial evidence considering the reliable and probative evidence in the record as a whole. Tex. Gov’t Code Ann. § 2001.174(2)(E) (Vernon 2000). The cases applying that standard presume that the Board’s order is supported by substantial evidence and that the plaintiff has the burden to overcome this presumption. See Meier Infiniti Co. v. Motor Vehicle Bd., 918 S.W.2d 95, 98 (Tex.App.-Austin 1996, writ denied). Further, the evidence in the record may preponderate against the decision of the agency and nevertheless amount to substantial evidence. Tex. Health Facilities Comm’n v. Charter Medical-Dallas, Inc., 665 S.W.2d 446, 452 (Tex.1984); Graff Chevrolet Co. v. Tex. Motor Vehicle Bd., 60 S.W.3d 154, 159 (Tex.App.-Austin 2001, pet. denied).

Substantial evidence is more than a scintilla and is enough relevant evidence that a reasonable mind could come to the same conclusion. Firemen’s and Policemen’s Civil Serv. Comm’n v. Brinkmeyer, 662 S.W.2d 953 (Tex.1984). A reviewing court may not simply substitute its judgment for that of the administrative body. City of Dallas v. Hamilton, 132 S.W.3d 632, 637 (Tex.App.-Eastland 2004, pet. denied); see Trapp v. Shell Oil Co., 145 Tex. 323, 198 S.W.2d 424, 436 (1946). An administrative order will not be set aside merely because evidence was conflicting or disputed or because the evidence did not compel the result reached by the agency. Substantial evidence deals only with the reasonableness of the administrative order, not with its correctness; a reviewing court may not set aside the order simply because it would have reached a different conclusion. Brinkmeyer, 662 S.W.2d at 956. Thus, the true test is not whether the agency reached the correct conclusion — but whether some reasonable basis exists in the record for the agency’s action. City of El Paso v. Pub. Util. Comm’n of Tex., 883 S.W.2d 179 (Tex.1994).

Issue

Dixon argues that a portion of the land between the Meredith and the King surveys is vacant and unpatented, and presents the following arguments:

(1) the Meredith survey and the King survey are complete on their faces,

(2) Meredith, as the junior survey of the two, does not specifically say that it adjoins the King survey’s north boundary,

(3) the corner monument of the Meredith survey could not be found,

(4) the distance measured on the Meredith survey’s west boundary is not long enough from the set point to reach the north boundary of the King survey. Dixon’s contention that he has proven the existence of the vacancy is necessarily based on his position that no other surveys or factors should be considered.

The conclusion that a vacancy exists comes from utilizing known starting points and then by following course and distance calls to the north boundary line of the King survey and the south boundary lines of the Meredith and Beasley surveys. When the boundary lines do not meet using those measurements, considering that evidence only, necessarily a portion of the land is vacant. In arriving at the conclusion that a vacancy exists, Dixon’s survey ran out the boundary from known starting points. (The north boundary of the King survey was established from a known southeast corner of the King survey. The south boundary of the Meredith survey was established from the northwest corner of the John W. Rogers survey. The south boundary of the Beasley survey is located beginning from the Meredith survey’s southwest corner, which was also established from the Rogers survey’s northwest corner.) (See diagram.)

In the Beasley survey, which is junior to the King survey, several calls stated clearly that the Beasley and Meredith surveys adjoined the north boundary line of the King survey. (E.g., the southeast corner of the Beasley survey calls to be in the north boundary line of the King survey [see diagram label number 1], the southeast corner of the Beasley survey calls for the same trees as the southwest corner of the Meredith survey [number 2], the south boundary line of the Beasley survey calls to be in the north boundary line of the King, the southwest corner of the Beasley survey calls for the same trees as the southeast corner of the Manning survey [number 3], and the southeast corner of the Manning survey calls to be in the north boundary line of the King survey [number 4],

The Controlling Concept

The ultimate function of these rules is to determine the true and correct location of the land. Stafford v. King, 30 Tex. 257, 272 (1867). Although a junior survey cannot be used to create an ambiguity in or change the location of a senior survey, Kirby Lumber Corp. v. Lindsey, 455 S.W.2d 733, 739 (Tex.1970), if the original boundaries in a senior survey have disappeared, recitals in a junior survey may be used to determine its location. Hill v. Whiteside, 749 S.W.2d 144, 152 (Tex.App.-Fort Worth 1988, writ denied). The purpose of the rule is to make a junior survey conform to the boundaries of an adjoining senior survey and thus avoid a vacancy or conflict. We also note that, if, because of a lapse of time since the making of a senior survey, the original senior survey bounds have disappeared, recitals in the junior survey are the best evidence of the location of those senior survey boundaries. Id.; see Waldrop v. Manning, 507 S.W.2d 626, 630 (Tex.Civ.App.-Texarkana 1973), writ ref'd n.r.e. per curiam, Manning v. King, 514 S.W.2d 899 (Tex.1974). We also recognize that these concepts are by no means limited to purely the two surveys presently at issue — they extend to the other surveys surrounding them, each of which is junior or senior to its neighbor. See Hill, 749 S.W.2d at 152-53.

Dixon’s Surveyor:

Garey Gilley testified there is a vacancy because the Meredith survey does not call to adjoin to the north line of the King survey, because the original monument described as the corner for the Meredith survey could not be found, and because the measurement from the calculated northwest corner did not reach down to the north line of the King survey.

Defendants’ Surveyor:

Darrell Shine testified there is no vacancy, based on his on-the-ground survey and his review of numerous written records, ranging from the various surveys to the Upshur County records and field books of Stanolind Oil dating from the 1930s and 1940s.

He agreed the original boundaries (monuments) have disappeared since the mid-1800s, and thus he used recitals in the Beasley survey to locate its common corner with the senior Meredith survey. Specifically, the southeast corner of the Beasley survey (which is junior to the Meredith survey) specified that its corner was identified by the same trees as those found on the southwest corner of the Meredith survey — and that they were located in the north boundary line of the King survey. Both the Beasley and Meredith surveys were done by surveyor J.M. Glaseo.

Shine also relied on the Manning survey, which is senior to the Meredith survey (though junior to the King survey), and which placed its southeast corner on the King survey’s north boundary line — and specified that this corner was at the same trees as the Beasley southwest corner.

The surveyor also located the Mann survey (which adjoins the east boundary of the King survey, and adjoins part of the south boundary of the Meredith survey) and noted that the field notes for the Mann survey placed the southeast corner of the Meredith survey due east of the northeast corner of the King survey, thus placing that corner in the south boundary line of the Meredith survey.

Could the Commissioner look at anything more than the King and Meredith surveys?

It is clear that the underlying purpose of retracing the original surveyor’s footsteps is to determine that original surveyor’s intent. Strong v. Delhi-Taylor Oil Corp., 405 S.W.2d 351, 376 (Tex.Civ.App.-Corpus Christi 1966, writ ref'd n.r.e.). Where conflict exists, the concept of “dignity” of calls is used to show what calls will control. 31 Tex. Admin. Code § 7.5 (1976); Stafford, 30 Tex. 257; Cherokee Water Co. v. Freeman, 145 S.W.3d 809, 814 n. 3 (Tex.App.-Texarkana 2004, pet. denied). Typically, to avoid the vacancy problem between two “adjoining” tracts of land, the survey will call to adjoin to the next survey. Also, it is clear that the oldest survey is given priority, with the newer ones subject to the older. Thus, as stated above, junior surveys cannot create ambiguity in the calls or change the location of a senior survey. Lindsey, 455 S.W.2d at 739; Knupp v. Miller, 858 S.W.2d 945, 949 (Tex. App.-Beaumont 1993, writ denied).

In addition, the Meredith and Beasley surveys, both of which are just north of the King survey, were done by the same surveyor, and there is also authority holding that, where there is a conflict or uncertainty between two surveys made by the same surveyor, it is (1) appropriate to consider extrinsic evidence to resolve the conflict, Taylor v. Higgins Oil & Fuel Co., 2 S.W.2d 288, 301 (Tex.Civ.App.-Beaumont 1928, no writ); and (2) calls in a junior survey can be considered in locating the boundaries of the senior when both were made by the same surveyor within a short period of time. Magnolia Petroleum Co. v. Biel, 285 S.W.2d 858, 864 (Tex.Civ. App.-San Antonio 1955, writ ref'd n.r.e.); see Barnes v. Wingate, 342 S.W.2d 352, 357 (Tex.Civ.App.-Beaumont 1960, writ dism’d). The administrative law judge also acknowledged the Meredith survey was completed by Glaseo in 1851 and did not contain a call to adjoin the King survey, or even mention the King survey whereas the Beasley survey was completed by Glaseo in 1871 and contained three calls for the Beasley survey to adjoin the King survey. The administrative law judge recognized that Glaseo had conducted several surveys in the area since 1851 and that it was reasonable to infer that, when Glaseo surveyed the Beasley tract, he was more familiar with the area and the King survey.

The Commissioner also considered a number of other factors relevant and persuasive, such as the location of old fence lines on the supposed joint boundary that was detailed by Stanolind Oil survey crews in the 1930s and 1940s and which fence lines still exist today.

Conclusions

The Commissioner could, under the restrictions set out by the rules above, consider evidence other than that provided only by the King and Meredith surveys. The Beasley survey, as junior to the Meredith survey, could not be utilized to change the Meredith survey’s lines. However, because the Beasley survey specifies that its southeast corner was memorialized by the same trees as was the southwest corner of Meredith, it could be considered to provide some evidence of where that memorialized corner was on the ground. Because the trees had disappeared over the last 150 years, the statement in the Beasley survey specifying that the trees were on the King survey’s north boundary could also be considered as evidence. There was also evidence that an earlier — unpatented—survey sharing the same southwest corner with the Meredith survey identified the same trees and specifically did place them in the King boundary line.

There is also authority providing the use of extrinsic evidence when none of the original corners can be located on the ground because time has destroyed the evidence left by the original surveyor. Taylor, 2 S.W.2d at 800. In this case, even under Dixon’s formulation, none of the original corners of the Meredith survey were located. Dixon’s starting point lies in the northwest corner of the Rogers survey, calculates distance and course south and east to find a corner that was in common with the northeast corner of the Meredith survey.

The inconsistency is the shortfall in surveyor Gilley’s measured line (1820 varas, as opposed to the 1925 varas required from the calculated Meredith survey corner to actually reach the north boundary of the King survey [at 38-1/3 inches per vara, that is about 291 feet off out of a total distance of 5,342 feet]). Although by twenty-first century standards such a distance is considerable, in a case contemporary with the surveys the Texas Supreme Court found that a descriptive call of 3,160 varas was a mistake, a true length of only 750 varas existed, that this was not highly exceptional, and discussed the reasons that distance measurements are of such low integrity. See Stafford, 30 Tex. at 275-76.

Under the substantial-evidence standard, it does not appear the trial court erred by concluding that the administrative decision was made with the support of applicable legal authority. Further, under the standards stated in this opinion, there was substantial evidence presented supporting the decision of the administrative body.

We affirm the judgment of the trial court.

      . Dixon first argues in his brief that the entire King survey is in the wrong place. That, however, was not part of this proceeding and is not before us in this appeal. We have been informed that a different vacancy proceeding raising that argument is presently pending in the Upshur County District Court, on appeal from the administrative proceeding.

      . The statute was rewritten effective September 1, 2001, to require a de novo review by the trial court. See Tex. Nat. Res.Code Ann. § 51.188(b) (Vernon Supp.2004-2005). The administrative hearing in this case occurred in 1999, and the Commissioner's final order was signed April 26, 2000. The petition for judicial review was filed July 6, 2000.

      .Gilley wore two hats in this proceeding. He was Dixon’s original surveyor, who formulated a fifty-four-acre vacancy in 1997, and then later was appointed as a representative of the State as a surveyor, and changed his survey to show a thirty-five-acre vacancy in 1999. In so doing, he changed the corners on which he relied.

      .Six different surveys were reconstructed and presented to the trial court:
      *William King Survey May 10, 1838
      Joseph Manning Survey December 29, 1849
      John Rogers Survey August 31, 1850
      *David Meredith Survey May 2, 1851
      Marshall Mann Survey August 11, 1853
      S.W. Beasley Survey January 24, 1871

      . Dignity of Calls:
      1 Call for natural objects;
      2 Call for artificial or manmade monuments, adjoinders, and corners;
      3 Calls for course;
      4 Calls for distance; and
      5 Calls for quantity or acreage.
      31 Tex. Admin. Code § 7.5.

      . Joseph New survey.


source: Caselaw Access Project

author: Justice LANG-MIERS.

license: Public Domain

text:
    Janci Leigh RICKS, Appellant v. Jon Todd RICKS, Appellee.
    No. 05-04-00976-CV.
    Court of Appeals of Texas, Dallas.
    Aug. 12, 2005.

      Janci Leigh Ricks, McKinney, pro se.
    Vicki Thornton Redden, Law Office of Vicki Thornton Redden, Jeffrey Neil Bo-gost and Michael L. Brummett, Dallas, for Appellant.
    Laurence A. Deplaza, Sheila O’Connor, Laurence A. DePlaza P.C., Brad M. La-morgese and William J. Akins, Cooper & Scully, P.C., Dallas, for Appellee.
    Before Justices WHITTINGTON, MOSELEY and LANG-MIERS.
   OPINION

Opinion by

Justice LANG-MIERS.

This is an appeal from the denial of a motion for new trial in a divorce case. Janci Leigh Ricks argues the trial court should have set aside the final decree and granted her a new trial because (1) the decree, which was based on a mediated settlement agreement, did not comply with section 6.602(a) of the Texas Family Code; (2) the mediated settlement agreement was obtained through her husband’s fraud, misrepresentation, and breach of fiduciary duty; (3) the decree did not strictly conform to the terms of their mediated settlement agreement; and (4) newly discovered evidence of the value of a community asset warranted a new trial. We affirm.

BACKGROUND

During discovery in this divorce proceeding, Jon gave Janci a verified inventory and appraisement listing as a community asset three shares in the Frisco Medical Center valued at $45,000 (based on his purchase price of $15,000 per share). The parties decided to mediate the case and, at that time, the parties’ respective experts valued the three shares in the medical center at $60,000. During the mediation, the attorneys for Jon and Janci and the mediator conferred with the medical center’s business manager about the shares’ value and learned that another share sold three months earlier for $42,000. Based on this new information, the value of the three shares was changed to $126,000. The parties then reached an agreement concerning the division of their property and custody of their four children and signed a mediated settlement agreement.

The parties agreed Jon’s attorney would prepare a draft of the agreed divorce decree based on the terms of the settlement agreement. After each party reviewed the proposed decree and made revisions, Jon appeared in court to finalize the divorce. He presented the court with an agreed decree of divorce which had been signed by Jon, Jon’s attorney, Janci, and Janci’s attorney. The court signed the decree that day.

That same day, Jon gave Janci a copy of their 2003 federal income tax joint return and asked her to sign it, which she did. Janci noticed the return included income of about $72,000 from “real estate, royalties, partnerships, S corporations, trusts, etc.,” but the return did not include the supporting schedules for this entry. The next day, Janci says she went to their accountant’s office for a copy of the schedules and learned that $36,000 of that amount was dividend income from the three shares in the medical center.

Janci filed a motion for new trial in which she argued Jon committed fraud and breached his fiduciary duty to her by misrepresenting the true value of the shares in the medical center. She argued that the true value was at least $500,000 and that, had she known this, she would not have agreed to the settlement because she should have received a substantially larger distribution from the community assets. Janci amended her motion for new trial and additionally asked the trial court to set aside the divorce decree because it did not comply with the mediated settlement agreement.

At the hearing on her motion, Janci testified Jon did not list the medical center as an income-producing business in his inventory and appraisement. But she admitted that she received dividend checks related to the medical center at various times prior to mediation. Janci’s attorney argued the true value of the medical center shares was not discovered until after the divorce decree had been entered and Janci discovered the shares produced dividend income of $36,000. Jon’s attorney moved for a “directed verdict,” arguing Janci had failed to show she was entitled to a new trial. The trial court granted the “directed verdict” and denied the motion for new trial. This appeal followed.

Standard op Review

Whether to grant or deny a motion for new trial is generally a matter addressed to the broad discretion of the trial court, and the trial court’s action will not be disturbed on appeal absent an abuse of that discretion. Cliff v. Huggins, 724 S.W.2d 778, 778-79 (Tex.1987); Nat’l Med. Fin. Sews., Inc. v. Irving Indep. Sch. Dist., 150 S.W.3d 901, 904 (Tex.App.Dallas 2004, no pet. h.). A trial court abuses its discretion when it fails to correctly analyze or apply the law. In re E.I. DuPont de Nemours & Co., 136 S.W.3d 218, 223 (Tex.2004). The test is whether the trial court acted in an arbitrary and unreasonable manner or without reference to any guiding principles. Cire v. Cummings, 134 S.W.3d 835, 838 (Tex.2004).

Compliance with Family Code

In her first issue, Janci argues the trial court should have set aside the divorce decree, which was based on their mediated settlement agreement, and granted her a new trial because the decree failed to comply with section 6.602(a) of the family code. Section 6.602(a) states the court may refer the parties to mediation on the parties’ written agreement or on the court’s own motion. Tex. Fam.Code Ann. § 6.602(a) (Vernon Supp.2004-05). The court did not refer the parties to mediation; the parties agreed to mediation. But there is no evidence the parties agreed in writing to mediate the case. Accordingly, Janci argues the mediated settlement agreement is unenforceable.

For Janci to preserve this issue for appellate review, the record must show she made her complaint to the trial court by a timely request, objection, or motion. Tex. R.App. P. 33.1(a)(1). Here, Janci never complained to the trial court that the mediated settlement agreement was unenforceable because it failed to comply with the family code. As a result, Janci failed to preserve error on this issue. Tex.R.App. P. 33.1; see In re B.L.D., 113 S.W.3d 340, 350 (Tex.2003); Morales v. Morales, 98 S.W.3d 343, 346 (Tex.App.-Corpus Christi 2003, pet. denied).

We overrule Janci’s first issue.

Fraud, Misrepresentation, and Breach of Fiduciary Duty

In her second issue, Janci argues the trial court should have set aside the divorce decree and granted her a new trial because Jon misrepresented the true value of the medical center shares during their mediation thereby committing fraud and breaching the fiduciary duty he owed to her.

In the divorce context, a claim for a breach of fiduciary duty is the same as a claim for fraud on the community. Toles v. Toles, 113 S.W.3d 899, 916 (Tex. App.-Dallas 2003, no pet.); In re Marriage of Moore, 890 S.W.2d 821, 827 (Tex.App.Amarillo 1994, no writ). The fiduciary duty arising from the marital relationship ceases in a contested divorce when the husband and wife each hire independent attorneys to represent them. Toles, 113 S.W.3d at 916; Boyd v. Boyd, 67 S.W.3d 398, 405 (Tex.App.-Fort Worth 2002, no pet.). However, when a person is under a duty to disclose material information, but fails to do so, and leads the other party to a contract to rely on the misrepresentation, the resulting contract is subject to rescission because of the intentional nondisclosure. Boyd, 67 S.W.3d at 404-05.

Janci concedes she knew about the existence of the medical center shares prior to the mediation but claims Jon intentionally hid the shares’ true value from her. Had she known the true value of the shares, she states she would not have agreed to the terms of the settlement agreement.

Generally, the value to be accorded community property in a divorce proceeding is “market value.” R.V.K. v. L.L.K, 103 S.W.3d 612, 618 (Tex.App.-San Antonio 2003, no pet.); see Beavers v. Beavers, 675 S.W.2d 296, 299 (Tex.App.-Dallas 1984, no writ). “Fair market value has been consistently defined as the amount that a willing buyer, who desires to buy, but is under no obligation to buy would pay to a willing seller, who desires to sell, but is under no obligation to sell.” Wend-landt v. Wendlandt, 596 S.W.2d 323, 325 (Tex.Civ.App.-Houston [1st Dist.] 1980, no writ); see City of Pearland v. Alexander, 483 S.W.2d 244, 247 (Tex.1972).

In her motion for new trial, Janci made the bare assertion that because the 2003 federal income tax return showed a $36,000 dividend from the medical center shares, this is “prima facie evidence that the units’ value is approximately $500,000.00, rather than the $126,000.00 set forth on the ‘Settlement Spreadsheet.’ ”

However, there is no evidence in the record that Jon represented a value for the shares other than the value assigned by their experts and the comparable sales value arrived at during mediation. Prior to mediation, the parties’ experts valued the medical center shares at a total of $60,000. During mediation, Jon and Jan-ci’s respective attorneys determined the market value of the medical center shares should be $126,000, based on a recent sale by an independent third party of one share for $42,000.

And Janci did not present any evidence of a different value. During the divorce proceedings, Janci hired a business valuation expert, but she presented no expert opinion or testimony about the value of the medical center shares. She did not file an expert affidavit supporting her conclusion that the shares were worth at least $500,000, and she stated no factual basis upon which she arrived at this conclusion. At the hearing on her motion, Janci did not call any witnesses to testify about the value of these shares, and she did not testify about or argue their value.

Janci’s conelusory statement that “the value is approximately $500,000.00,” without any evidentiary support, is not probative of the shares’ market value. See Coastal Transp. Co. v. Crown Central Petrol. Corp., 136 S.W.3d 227, 232 (Tex.2004). And there is no evidence in the record to support a valuation of the medical center shares at anything other than the $126,000 agreed to in the mediation. As the trial court stated,

I can’t see that the outcome is going to be any different, and [Janci] had a business valuation expert. She was aware of dividends. And, frankly, I can’t tell if these are annual dividends or one-time distributions that happen every ten years. So I don’t see how, in the evidence submitted to me, that we can make any judgment as to the value of those [shares] based on one year’s dividends.

We conclude that Janci did not show that Jon misrepresented the true value of the medical center shares, and that the trial court did not abuse its discretion by denying her motion for a new trial.

We overrule issue two.

Compliance with Mediated Settlement Agreement

In her third issue, Janci argues the trial court should have set aside the divorce decree because it failed to comply with the terms of the mediated settlement agreement when it (1) ordered child support to be paid twice a month instead of monthly as agreed, and (2) expanded the injunction contained in the mediated settlement agreement.

Janci signed the final decree, agreeing “as to content.” And after it was entered, she never made the trial court aware of her specific complaints about the decree. She did not object to the decree in her first motion for new trial. In her affidavit attached to that motion Janci stated that after she signed the decree, she reviewed it and found discrepancies between it and the settlement agreement and called her attorney and demanded he make the changes. In her amended motion for new trial, she objected to the decree because it had “many provisions ... that did not comport with the [mediated settlement agreement].” She also argued that “[m]any of these changes were not made, things were added which she did not agree to, and there are other mistakes.” Janci argued she would not have agreed to the final decree if she had known these changes had not been made. But she did not specify which changes she wanted that were not made, which things were added that she did not agree to, and which “other mistakes” were in the decree. At the hearing, she did not make the trial court aware of her specific objections to the decree or in what respects it failed to comply with the settlement agreement.

To preserve error for appeal, Janci must show she made the trial court aware of her specific complaint. Tex.R.App. P. 33.1(a)(l)(A)-(B). The record also must show the court either expressly or implicitly ruled on the complaint or refused to rule. Tex.R.App. P. 33.1(a)(2)(A)-(B). If the court refused to rule, the record must show that Janci objected to the refusal. Tex.R.App. P. 33.1(a)(2)(B). Here, Janci only generally objected to the decree as containing mistakes but did not make the trial court aware of her specific objections. As a result, we conclude Janci failed to preserve error for our review. Tex.R.App. P. 33.1(a); see In re B.L.D., 113 S.W.3d at 350; McCain v. NME Hosp., Inc., 856 S.W.2d 751, 755 (Tex.App.-Dallas 1993, no pet.).

We overrule issue three.

Newly Discovered Evidence

In her fourth issue, Janci argues the trial court should have granted her a new trial because of the newly discovered evidence that Jon misrepresented the value of the medical center shares. A party seeking a new trial on the ground of newly discovered evidence must show (1) new evidence has been discovered since the trial, (2) the failure to discover the evidence prior to trial was not because of lack of due diligence, (3) the evidence is not cumulative, and (4) the evidence is so material that it would probably produce a different result if a new trial were granted. Jackson v. Van Winkle, 660 S.W.2d 807, 809 (Tex.1983), overruled on other grounds by Moritz v. Preiss, 121 S.W.3d 715 (Tex. 2003); Dallas Indep. Sch. Dist. v. Finlan, 27 S.W.3d 220, 240 (Tex.App.-Dallas 2000, pet. denied).

Janci argues that the tax schedule showing $36,000 in income from the Frisco Medical Center is new evidence that shows Jon misrepresented the value of the medical center shares. As with her issue two, she is really arguing that she would not have agreed to settle the case on the terms in the judgment if she had known about the $36,000. Janci does not explain how the $36,000 income is evidence of a different value for the shares, or how it is new evidence when she was aware prior to mediation that the shares generated income. See In re Marriage of Yarbrough, 719 S.W.2d 412, 415 (Tex.App.-Amarillo 1986, no writ) (the new evidence should bring to light new and independent truth so decisive as to show justice not obtained).

We conclude the trial court did not abuse its discretion by denying Janci’s motion for new trial. We overrule issue four.

Conclusion

Having decided all of appellant’s issues against her, we affirm the trial court’s judgment.


author: Justice O’NEILL.

text:
    TEXAS DEPARTMENT OF CRIMINAL JUSTICE, Appellant v. Lori HAWKINS, Individually and as Administratrix of the Estate of Aubrey Wright Hawkins, Deceased; Dixie Buchanan, Natural Mother and as Next Friend of Andrew Hawkins, A Minor Son of Aubrey Hawkins, Deceased; Jayne Hawkins, Individually; and Curtis Hawkins, Individually; Appellees.
    No. 05-03-01780-CV.
    Court of Appeals of Texas, Dallas.
    Aug. 12, 2005.

      Kimberly Kay Coogan, Asst. Atty. Gen., Austin, for Appellant.
    Robert Shaw Macintyre, Richard Warren Mithoff, Mithoff & Jacks, LLP, Herrick L. Sovany, William J. Stradley, Dick DeGuerin, DeGuerin & Dickson, Houston, for Appellee.
    Before Justices O’NEILL, LANG, and LANG-MIERS.
   OPINION

Opinion by

Justice O’NEILL.

This case is brought against the Texas Department of Criminal Justice (TDCJ) by the family of Officer Aubrey Hawkins. The TDCJ filed a plea to the jurisdiction, asserting that its sovereign immunity was not waived under the Texas Tort Claims Act (TTCA). The trial court denied the TDCJ’s plea. Because we conclude immunity was not waived under the TTCA, we vacate the trial court’s order denying the plea and render judgment for TDCJ dismissing the cause of action.

Facts

The facts as pleaded by the Hawkins family tell the story of how seven inmates (the Seven) escaped from the Connally Unit in Huntsville, commandeered at least 14 of the state’s weapons in the back tower, escaped through the back gate, and 11 days later and 300 miles away, used the weapons to kill Officer Aubrey Hawkins when he attempted to apprehend them. The facts alleged in the Hawkins’s petition are largely taken from the report of the official investigation of the escape. On December 13, 2000, six of the seven prisoners were left unsupervised in the maintenance area during lunch and during a “major count” of inmates. They obtained “sensitive” tools, meaning tools that might be used to effect an escape or that pose a threat to prison security. They bound certain TDCJ personnel in the electrical room. When the employees broke free, they set off the fire alarm. The signal went off in the central control tower, but the guard in the control room silenced the alarm without alerting anyone.

Familiar with prison procedures, the prisoners called in their presence during the “major count.” During the course of the escape, they commandeered state-employee uniforms. They called the back-tower officer to alert him to the arrival of a maintenance worker, who was actually one of them. A first group of offenders was not asked for proper identification and was let through a back gate. At the back tower, the guard did not ask an approaching offender for proper identification, and the offender entered the tower through the open trap door. The officer had unhol-stered his weapon and left it on a desk. The offender stole the weapon. The back tower was used to store weapons for field and transportation officers, although it was not designed for that use. From the tower, the offenders obtained 13 additional weapons, all .357 Magnum revolvers. The Seven escaped in a maintenance worker’s pickup, through an open gate.

Eleven days later, on Christmas eve, the Seven robbed an Oshman’s store in Irving, Texas. Office Hawkins responded and intercepted the Seven in the parking lot. Using the weapons they had commandeered in the prison tower, they fired at Hawkins, killing him.

Hawkins’s wife, son, and parents sued the TDCJ, alleging negligence. The TDCJ filed a plea to the jurisdiction, asserting sovereign immunity. The trial court denied the plea, without giving reasons. TDCJ brought this interlocutory appeal, as authorized under the civil practice & remedies code. Tex. Civ. PRAC. & Rem. Code Ann. § 51.014(a)(8) (Vernon 2005).

Standard of Review and Applicable Statute

Governmental immunity from suit defeats a trial court’s subject-matter jurisdiction and thus is properly asserted in a plea to the jurisdiction. Tex. Dept. of Transp. v. Jones, 8 S.W.3d 636, 637 (Tex. 1999). The existence of subject-matter jurisdiction is a question of law; thus, we review de novo the trial court’s ruling on a plea to the jurisdiction. Tex. State Employees Union/CWA Local 6184 A.F.L.C.I.O. v. Tex. Workforce Comm’n, 16 S.W.3d 61, 65 (Tex.App.-Austin 2000, no pet.).

Plaintiff has the burden to allege facts affirmatively demonstrating that the trial court has subject-matter jurisdiction. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993). In our review, we must construe the pleadings in favor of the plaintiff and look to the pleader’s intent. Id. The court is required to construe liberally the allegations in favor of jurisdiction unless, on its face, the petition affirmatively demonstrates a lack of jurisdiction. Peek v. Equip. Serv. Co., 779 S.W.2d 802, 804 (Tex.1989).

In Texas a governmental unit is immune from tort liability unless the legislature has waived immunity. Dallas County Mental Health and Mental Retardation v. Bossley, 968 S.W.2d 339, 341 (Tex.1998) Thus, whether a governmental unit is immune from liability for a particular claim depends entirely upon the applicable statute. Id.

The Texas Tort Claims Act (TTCA) provides a limited waiver of governmental immunity when “use” of property is involved. Tex. Civ. Prac. & Rem Code §§ 101.001-.109 (Vernon 2005). The “use” provision reads as follows:

A governmental unit in the state is liable for ... personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.

Tex. Civ. PRac. & Rem.Code Ann. § 101.021(2).

Thus, immunity is waived if injury or death is caused by a “condition or use of tangible personal or real property.” Our task is to determine whether the Hawkins family has pleaded a claim that falls within that provision. They assert waiver of immunity based on the state actors’ mishandling of the weapons, including the guard’s alleged misuse of property by unholstering his sidearm and the alleged negligent use of the tower to store weapons.

TDCJ’s Arguments

TDCJ argues that the circumstances do not constitute a “condition or use” of tangible personal or real property sufficient under the statute to effect waiver, as illustrated in San Antonio State Hosp. v. Cowan, 128 S.W.3d 244, 246^7 (Tex.2004) and Tex. A & M Univ. v. Bishop, 156 S.W.3d 580 (Tex.2005). They argue the TDCJ did not provide the weapons to the escapees, but rather they were stolen. Also, the guns were used to kill Hawkins, not by any TDCJ employee, but by the escapees. Further, they assert, the statute’s “proximate cause” requirement is not met, as construed in Bossley, 968 S.W.2d at 343. They argue the government’s involvement with the subject property was too remote “geographically, temporally, and causally” to have proximately caused Hawkins’ injury and death. Id.; see San Antonio State Hosp. v. Koehler, 981 S.W.2d 32, 36 (Tex.App.-San Antonio 1998, pet. denied) (hole in fence through which patient escaped could not be proximate cause of later rape).

We conclude that, under the facts as pleaded, the TDCJ did not “use” the weapons within the meaning of the TTCA’s waiver of governmental immunity. We further conclude that the factual allegations in this case cannot meet the proximate-cause requirement under the statute.

The TTCA’s “Use” Provision

The Texas Supreme Court has determined that immunity is waived only when the “use” is by the governmental unit itself. Cowan, 128 S.W.3d at 245-46. Cowan was involuntarily committed to the state hospital after exhibiting suicidal tendencies. The hospital employees took possession of his personal effects, except they allowed Cowan to keep his suspenders and walker, which he used to kill himself. Id. at 245. The court reiterated the definition of “use” in this context as meaning “to put or bring into action or service; to employ for or apply to a given purpose.” Id. at 246. “A governmental unit does not ‘use’ personal property merely by allowing someone else to use it and nothing more.” Id. The court distinguished from the waiver of immunity in Overton Memorial Hospital v. McGuire, 518 S.W.2d 528 (Tex. 1975). The plaintiff in McGuire alleged he was injured when he fell out of his hospital bed, which was not equipped with side rails. The Cowan court noted, “The hospital did not merely allow the patient access to the bed; it actually put the patient in the bed as part of his treatment.” Id. at 246.

The supreme court recently reaffirmed the constricted meaning of “use” in Bishop, 156 S.W.3d 580. Bishop was a student actor in a voluntary drama club, which had two faculty advisors. Bishop was accidentally stabbed with a knife when a fellow actor missed the stab pad during a performance. Both the stab pad and knife were chosen and supplied by the director and his assistant, who were independent contractors.

The court held that the faculty advisors’ alleged negligent supervision concerning the props did not constitute a “use” of tangible personal property under the TTCA. Id. at 581. In reaching this conclusion, the court stated that, to the extent Bishop had asserted that the faculty had negligently “allowed” the director to provide the knife, “such negligent supervision, without more, does not constitute a ‘use’ of personal property” that would waive immunity. Id. at 583.

In today’s case, the Hawkins family alleges that the guard negligently “misused” his weapon by unholstering it and the tower was “misused” as a weapons depot. We conclude this alleged “use” by the TDCJ amounts to no more than allowing access to the weapons. As in both Cowan and Bishop, merely allowing access to property does not constitute “use” by a governmental unit so as to effect waiver under the TTCA.

The TTCA’s Causation Requirement

In addition, the TTCA’s “use” provision requires that the personal injury or death be “caused” by a condition or use of tangible personal or real property. Tex. Civ. Prac. & Rem.Code Ann. § 101.021(2). The Bossley Court instructed that “proximate cause” is required. 948 S.W.2d at 343. The traditional proximate-cause elements are cause in fact and foreseeability. Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex.1992). “Cause in fact” means the act or omission was a substantial factor in bringing about the injury and, without it, harm would not have occurred. Id. “Foreseeability” means that the actor, as a person of ordinary intelligence, should have anticipated the dangers his or her negligent act created for others. Id.

In Bossley, the court concluded the causation requirement was not met. 968 S.W.2d at 343. After a suicide attempt, Roger Bossley was committed to Parkland Hospital and later Hillside Treatment Center. For two weeks he seemed to be recovering from his severe depression when, in reaction to a comment by a counselor, he asked another patient where he could get a gun to kill himself. He was ordered to be returned to the more restrictive environment of Parkland. Because patients often try to elope to avoid transfer, the front door was locked, although the self-locking glass doors just inside the front door were left open. Id. at 340-41.

The next day, a staff person noticed Roger at the telephone near the doors as she left. She passed through the open glass doors, looked around, and seeing no one, opened the front door. As she did, Roger rushed from behind, pushed her aside, and fled. He fled to Interstate 30, where he attempted to hitchhike from both sides of the freeway. When approached by Hillside personnel and police, he leaped into the path of an oncoming truck and was killed. Id. This occurred about a half mile from the facility and in a “fast-paced and continuous sequence.” Id. at 345.

The court stated the statute requires that the injury or death must be “proximately caused” by the condition or use of tangible property. Id. at 343. “Property does not cause injury if it does no more than furnish the condition that makes the injury possible.” Id. (citing Union Pump Co. v. Allbritton, 898 S.W.2d 773, 776 (Tex. 1995)). The court concluded, “Although Roger’s escape through the unlocked doors was part of a sequence of events that ended in his suicide, the use and condition of the doors were too attenuated from Roger’s death to be said to have caused it.” Id.

In reaching this conclusion, the Court distinguished from the “use” deemed to have waived immunity in McGuire, when a patient was put into a bed without rails. The Bossley court reasoned that the injury in McGuire was “immediate and directly related to” the absence of bedrails, but that “Roger’s death was distant geographically, temporally, and causally from the open doors at Hillside.” Id.

Thus in Bossley, the Court determined, for the purposes of causation, the death occurring within a half mile and shortly after the escape was both temporally and geographically distant. In today’s case, the injury occurred 11 days later and 300 miles away from the state employee’s alleged misuse of the property. Bossley makes clear that causation under the statute includes an element of immediacy. Id. We hold that the injurious use of the state-issued property 11 days after the escape and 300 miles away was too remote to satisfy the proximate-cause requirement of the “use” provision of the TTCA.

Accordingly, we conclude that the facts as pleaded fail to establish waiver of immunity under section 101.021(2) of the Texas Tort Claims Act. Thus, the pleadings fail to establish that the trial court has subject-matter jurisdiction in this case. We REVERSE the trial court’s order denying TDCJ’s plea to the jurisdiction and RENDER judgment for TDCJ dismissing the Hawkins’ cause of action against it.


author: /s/ Joseph E. Lambert Chief Justice

text:
    Ruben Rios SALINAS, Petitioner v. Honorable Gary D. PAYNE, Chief Judge, Fayette Circuit Court, Respondent and Commonwealth of Kentucky, Real Party in Interest.
    No. 2005-SC-0334-OA.
    Supreme Court of Kentucky.
    Aug. 16, 2005.
   OPINION AND ORDER

Petitioner, Ruben Rios Salinas, petitions this Court for a writ prohibiting the Honorable Gary D. Payne from submitting the death penalty as a possible punishment at his retrial, scheduled to begin August 25, 2005, in the Fayette Circuit Court. For the reasons set forth herein, we deny Salinas’s petition.

In December 1999, Salinas was convicted in the Fayette Circuit Court of capital kidnapping and murder, for which he received sentences of life without the possibility of parole and life imprisonment, respectively. In 2002, Salinas’s convictions were overturned by this Court, in part, because the jury had not been properly instructed in the penalty phase on the capital kidnapping charge. Salinas v. Commonwealth, 84 S.W.3d 913 (Ky.2002), cert. denied, 538 U.S. 930, 123 S.Ct. 1585, 155 L.Ed.2d 326 (2003). With respect to that error, we held:

[T]he murder of the victim of a kidnapping is an aggravating circumstance authorizing capital punishment for the kidnapping conviction. (Citations omitted). Here, the guilt phase instruction on capital kidnapping properly required the jury to find as an element of that offense that the victim was not released alive. KRS 509.040(2). That is the element that enhances kidnapping from a Class B felony to a capital offense. However, the penalty phase instruction identified that same fact as the aggravating circumstance authorizing capital punishment[.]
As stated above, the fact “that the victim was not released alive” is the element that enhances kidnapping from a Class B felony to a capital offense. However, that fact is not an aggravating circumstance necessary to authorize imposition of capital punishment under KRS 532.025(2). Although there was sufficient evidence for the jury to find the aggravating circumstance of murder committed during the course of the kidnapping, the instruction did not require ■that finding, and the verdict did not include that finding.

Id. at 919-20.

In other words, the death of the victim, while sufficient to enhance the charge to capital kidnapping, is insufficient to warrant capital punishment. Rather, the jury had to find that Salinas murdered the victim during the course of the kidnapping. In fact, the jury did find Salinas guilty of murder. Nonetheless, the penalty phase kidnapping instruction failed to state the required aggravator.

After the Commonwealth announced its intention to again seek the death penalty on retrial, Salinas filed a motion in the circuit court to preclude such penalty, arguing that double jeopardy principles barred the imposition of death. Citing this Court’s decision in Commonwealth v. Eldred, 973 S.W.2d 43 (Ky.1998), cert. denied, 526 U.S. 1070, 119 S.Ct. 1466, 143 L.Ed.2d 551 (1999), the trial court denied the motion. Salinas thereafter filed the instant petition.

As acknowledged by the Commonwealth, this Court recently noted that double jeopardy is an appropriate subject for a writ of prohibition. St. Clair v. Roark, 10 S.W.3d 482, 485 (Ky.2000):

The court in which the petition is filed may, in its discretion, address the merits of the issue within the context of the petition for the writ, or may decline to do so on grounds that there is an adequate remedy by appeal. Neither approach is mandatory and the exercise of discretion may well depend on the significance of the issue as framed by the facts of the particular case.

As the issue is well-framed by the facts in this case, we deem it appropriate to address it now rather than delay resolution until a possible appeal.

In Commonwealth v. Eldred, this Court held that the Commonwealth was not precluded from seeking the death penalty on retrial if, in the original sentencing phase, the jury had indicated in writing the finding of an aggravating circumstance beyond a reasonable doubt, even though it did not choose to impose the death penalty. Id. Although recognizing the implied acquittal exception under which a defendant convicted of a lesser-degree offense cannot be convicted on retrial of a higher-degree offense, Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957), the Eldred opinion noted that such exception is a poor fit with Kentucky’s capital sentencing procedure:

Taken to its extreme, the implied acquittal theory results in any sentence being an implied acquittal of any higher sentence- We reject any such outcome out of hand. Thus, had Eldred’s jury returned a recommendation of 20 years’ imprisonment, this recommendation would not have been an implied acquittal of a term of years greater than 20 or an implied acquittal of life. Nor would it have been an implied acquittal of Life-25, even though a sentence of Life-25, like the death penalty, requires a written finding of the existence of at least one aggravating factor beyond a reasonable doubt.

Id. at 48.

Further, as Eldred explains, the only relevant difference between the penalty phase in a bifurcated felony trial versus a capital case is that a jury may not consider death, life without parole, or life-25 unless the Commonwealth meets its burden of proving one or more aggravating circumstances beyond a reasonable doubt. After the Commonwealth has met that burden, the issue in both penalty phases is the same: “What punishment is appropriate for the particular defendant? The difference in the gravity of the offense committed in a capital case and the gravity of the corresponding possible punishment does not in this case create a constitutional distinction.” Id.

Salinas’s reliance on Arizona v. Rumsey, 467 U.S. 203, 104 S.Ct. 2305, 81 L.Ed.2d 164 (1984) and Poland v. Arizona, 476 U.S. 147, 106 S.Ct. 1749, 90 L.Ed.2d 123 (1986) is misplaced. Although the Supreme Court held in Rumsey that an error of law resulting in the trial judge’s failure to find an aggravating circumstance was the equivalent of an acquittal of the death penalty, the Court was also clear that the trial judge’s findings were that the state had failed to prove the existence of any aggravating circumstances. Id. at 211,104 S.Ct. at 2310 (citing Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981)). Here, the jury found Salinas guilty of capital kidnapping and guilty of murder. The penalty phase instruction was erroneous in failing to include the necessary language of murder in the course of a kidnapping. Notwithstanding, even our opinion noted that there was sufficient evidence for the jury to find the aggravating circumstance of murder committed in the course of kidnapping. Salinas, 84 S.W.3d at 920.

Salinas similarly misconstrues the holding in Poland as standing for the proposition that a defendant may only be subjected to death on retrial if the jury determined that death was the appropriate penalty during the first trial. In fact, the Poland Court held that although there was insufficient evidence to support the aggravating circumstance underlying Poland’s death sentence, there was evidence in the record to support another aggravating circumstance which the fact finder had erroneously rejected. Poland, 476 U.S. at 156-57, 106 S.Ct. at 1756. “It is true that the sentencer must find some aggravating circumstance before the death penalty may be imposed, and that the sentencer’s finding, albeit erroneous, that no aggravating circumstance is present is an ‘acquittal’ barring a second death sentence proceeding.” Id. (citing Rumsey, id.). Unlike the decisions cited by Salinas, neither the jury nor this Court on review ever made a determination that the Commonwealth failed to prove the existence of an aggravating circumstance.

Salinas further argues that even if we hold that Eldred governs this case, it should be overruled in light of recent United States Supreme Court decisions in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002); and Sattazahn v. Pennsylvania, 537 U.S. 101, 123 S.Ct. 732, 154 L.Ed.2d 588 (2003). We disagree.

In Apprendi, the Supreme Court held that any fact that enhances a defendant’s penalty, other than a prior conviction, beyond the otherwise applicable statutory maximum is deemed to be an element of the offense and must be found by the jury to exist beyond a reasonable doubt. 530 U.S. at 490, 120 S.Ct. at 2363. A year later, in Ring v. Arizona, the Apprendi decision was extended to death penalty cases. Id. In Ring the Court stated that the jury, rather than the trial court, must make specific findings regarding the existence of an aggravating circumstance before the death penalty may be imposed. 536 U.S. at 589, 122 S.Ct. at 2432. Finally, most recently in Sattazahn, the Court noted that the crucial inquiry in determining whether a defendant is subject to the death penalty on retrial when the first jury did not impose death, is whether the jury made findings of fact in the first trial that “constituted an ‘acquittal’ of the aggravating circumstances.” 537 U.S. at 109, 123 S.Ct. at 738. The Sattazahn Court concluded that since the jury had deadlocked without reaching a decision regarding aggravating circumstances (and the trial court thereafter imposed a life sentence), Sattazahn was not “acquitted” for double jeopardy purposes and, as such, the state could seek the death penalty upon retrial. Id.

We are of the opinion that the succession of United States Supreme Court cases since our decision in Eldred does not change the effect of its holding. An “implied acquittal” of the death penalty occurs only where the jury or reviewing court affirmatively finds that the Commonwealth has failed to prove the existence of an aggravating circumstance. If the jury has found that evidence of an aggravating circumstance was proven beyond a reasonable doubt, but nonetheless imposes a sentence of less than death, the Commonwealth simply cannot be precluded on double jeopardy grounds from seeking the full range of penalties, including death, on retrial.

The jury herein found beyond a reasonable doubt that Salmas was guilty of capital kidnapping and murder. And as previously stated, we held that there was sufficient evidence for the jury to find the aggravating circumstance of murder committed during the course of kidnapping, despite the fact that the penalty instruction did not require such finding. As a result, the Commonwealth is entitled to seek the full range of penalties, including death, at Salinas’s retrial. “If the evidence is the same ..., the jury shall be instructed to the effect that capital punishment cannot be imposed absent a finding that [Safinas] murdered [the victim] during the course of the kidnapping.” Salinas, 84 S.W.3d at 920.

Accordingly, for the foregoing reasons, Ruben Rios Salinas’s petition for a -writ of prohibition is hereby denied.

All concur.

Entered: August 16, 2005.

/s/ Joseph E. Lambert Chief Justice


text:
    KENTUCKY BAR ASSOCIATION, Petitioner v. Rodney McDANIEL, KBA Member No. 46027, Respondent.
    No. 2005-SC-0494-KB.
    Supreme Court of Kentucky.
    Aug. 25, 2005.
    Bruce K. Davis, Executive Director, Jay R. Garrett, Kentucky Bar Association, Frankfort, Counsel for Petitioner.
    Rodney McDaniel, Frankfort, Counsel for Respondent.
   OPINION AND ORDER

Rodney McDaniel, KBA No. 46027, of Frankfort, Kentucky, was admitted to the practice of law in Kentucky on October 1, 1976.

On August 13, 2004, previous clients of McDaniel filed a Bar Complaint. McDaniel failed to respond to the copy of the complaint or the reminder letter, each served upon him by the Franklin County Sheriff. The Inquiry Commission of the Kentucky Bar Association filed a four-count charge against McDaniel. Count I alleges violation of SCR 3.130-1.3 for failure to act with reasonable diligence and promptness in representing a client. Count II alleges violation of SCR 3.130-1.4(a) for failure to communicate with the client. Count III alleges violation of SCR 3.130-1.15(b) for failure to return funds belonging to the client. Count IV alleges violation of SCR 3.130 — 8.1(b) that he knowingly failed to respond to a lawful demand for information from a disciplinary authority.

In addition to another pending case before this Court, 2005-SC-172-KB, McDaniel has been privately admonished on two prior occasions for violations of SCR 3.130-1.3 and SCR 3.130-1.4(b). In an order from the Inquiry Commission dated November 6, 2000, he was informally privately admonished pursuant to SCR 3.185 for failing to appear at a hearing as the attorney for defendant facing contempt charges for failing to attend drug counseling. On July 10, 2002, he was again informally privately admonished pursuant to SCR 3.185 for accepting appointment of a client, after which he made one single attempt to contact the client.

The complaint underlying these charges alleges that on January 27, 2003, a husband and wife gave McDaniel a check for $150 in order to cover the filing fees of a defamation lawsuit to be brought by the husband. The complaint stated that the lawsuit was never filed. In addition, only after these clients made several attempts to contact him did McDaniel respond. At that time, he promised to refund the $150 filing fee. On August 13, 2004, they filed the ensuing bar complaint.

On October 30, 2004, the Franklin County Sheriff served McDaniel with a copy of the complaint. Because he failed to respond, on December 2, 2004, the Franklin County Sheriff again served him with a reminder letter dated November 30, 2004.

McDaniel did not answer any of the communications or file a response.

On February 8, 2005, the sheriff served McDaniel with a copy of the Inquiry Commission charges. Because he did not respond, a letter dated March 22, 2005 was mailed to McDaniel to remind him.

McDaniel failed to respond to the Inquiry Commission charges.

The Board of Governors noted prior discipline and pending charges. In a vote of 18-0, they found him guilty of Counts I, II, III, and IV.

The Board considered that Harry E. Sykes, Jr. v. Kentucky Bar Ass’n, 968 S.W.2d 90 (Ky.1998) and Kathy Lynn Munroe v. Kentucky Bar Ass’n, 927 S.W.2d 839 (Ky.1996), each suspended lawyers for 30 days for similar violations. Given the previous discipline coupled with the pending case and failure to refund the fee, however, the Board sought more severe discipline. It noted that SCR 3.510(3) requires a member suspended for more than 180 days to be referred to the Character and Fitness Committee. Accordingly, by a vote of 13 members, it recommended a 181-day suspension and that McDaniel be required to refund the $150 to the complainants. The remaining five members recommended a 1-year suspension instead of 181-days.

Considering the above facts, we find Rodney McDaniel guilty of violating SCR 3.130-1.3, 1.4(a), 1.15(b), and 8.1(b) as charged.

Based on the foregoing, we find that the similarity of violations in the past when coupled with McDaniel’s lack of response to the instant charges presents a cause for temporary suspension under SCR 3.165(l)(b), which provides that a suspension is appropriate where “it appears that probable cause exists to believe that an attorney’s conduct poses a substantial threat of harm to his clients or to the public.”

THEREFORE IT IS HEREBY ORDERED as follows:

(1) Respondent, Rodney McDaniel, is hereby suspended from the practice of law in the Commonwealth of Kentucky for a period of one hundred eighty-one (181) days.

(2) Prior to reinstatement, respondent must refund the $150.00 to his clients who were the subject of these violations.

(3) In accordance with SCR 3.450 and SCR 3.480(3), respondent is directed to pay all costs associated with this disciplinary proceeding against him in the amount of $108.77, for which execution may issue from this Court upon finality of this order.

(4) Pursuant to SCR 3.390, respondent is hereby ordered to provide notice to any clients, if applicable, he currently represents of his inability to provide further legal services, to notify all courts in which he has matters of his pending suspension and to provide the Director of the Kentucky Bar Association with a copy of all such letters simultaneously to their mailing.

(5) This suspension shall run concurrently with any other disciplinary suspension.

All concur.

ENTERED: August 25, 2005.

/s/ Joseph E. Lambert Chief Justice


author: KATHIANNE KNAUP CRANE, Judge.

text:
    Larry A. BAGSBY, Petitioner/Respondent, v. Tina K. GEHRES, Respondent/Appellant.
    No. ED 85351.
    Missouri Court of Appeals, Eastern District, Division Two.
    June 28, 2005.

      Benicia Baker-Livorsi, The Family Law Group LLC, St. Charles, MO, for respondent.
    Tina K. Gehres, Lincoln, MI, appellant acting pro se.
   KATHIANNE KNAUP CRANE, Judge.

This is an appeal from three judgments entered on September 7, 2004: 1) A Judgment and Order of Contempt that found respondent guilty of indirect civil contempt for filing an affidavit in support of her motion for summary judgment in a case pending in the U.S. District Court for the Eastern District of Michigan and for claiming entitlement to funds that were the subject of litigation in that case; 2) A Judgment and Order and Warrant of Commitment ordering respondent jailed until she purged herself of contempt; and 3) A Judgment of Permanent Injunction enjoining respondent from filing an affidavit in the federal case that “contradicted” the parties’ separation agreement and from making claims on the funds in litigation in the federal court. We reverse and remand to the trial court with directions to dismiss the cause of action for lack of subject matter jurisdiction.

FACTUAL AND PROCEDURAL BACKGROUND

The parties to this case, petitioner, Larry A. Bagsby, and respondent, Tina K. Gehres, are former spouses and former law partners. Their marriage was dissolved in the Circuit Court of St. Charles County in April, 1999. Pursuant to the parties’ separation agreement, the dissolution decree awarded petitioner, as his separate property, all of his interest in his law practice.

In July, 1999, after the dissolution, petitioner settled a lawsuit and received a $1,000,000 legal fee. Petitioner then wired $83,000 to respondent and sent her a check in the amount of $354,500 in connection with the parties’ attempts to reconcile the marriage and the start of a new law partnership. Respondent deposited the $354,500 into a joint account at Smith Barney, and petitioner subsequently transferred an additional $355,000 into the account. The parties quarreled, and petitioner threatened to withdraw all of the funds forwarded to respondent. Respondent then transferred $354,500 out of the joint account. Petitioner demanded that respondent return the $83,000 and $354,500, but she refused.

1999 Federal Lawsuit

In the fall of 1999, petitioner filed a lawsuit in the U.S. District Court for the Southern District of California, where respondent was then living, to recover the $83,000 and $354,500, naming respondent, her family members, attorney, former employer, a real estate agent, the California Franchise Tax Board, and the Internal Revenue Service (IRS) as defendants. He alleged that he had sent respondent those amounts so she could make a down payment on a house and to fund a new law practice that the two had agreed to start. He further alleged that he sent her additional amounts so that she could prepare and file the income tax statements on the fee.

The federal district court in California denied petitioner’s request for a preliminary injunction. In its order, it recited that the parties did not dispute that respondent had spent the $83,000 on personal debts and had removed the $354,000 that had been deposited into a Smith Barney joint account to other accounts under her control and eventually used some of the funds from the Smith Barney account to pay the IRS. This lawsuit was transferred to the U.S. District Court for the Eastern District of Michigan because respondent had moved to Michigan.

1999 St. Charles County Contempt Motion

In December, 1999, petitioner filed a motion for contempt in the Circuit Court of St. Charles County on the grounds that respondent had violated the terms of the dissolution decree by retaining the $437,500 ($83,000 and $354,500) that he voluntarily paid her after dissolution. On June 22, 2000, after a trial, the trial court denied the motion and entered a judgment in respondent’s favor. It concluded that although the $1,000,000 fee became petitioner’s separate property after dissolution, petitioner was free to do what he wanted with it after dissolution, including transferring the funds to respondent. It specifically concluded:

14. Whether one accepts Wife’s contention that she “earned” the funds after the dissolution of the parties’ marriage, or whether one accepts Husband’s contention that Wife is unlawfully retaining the funds after abandoning their new personal and business enterprises, it is clear that neither party’s claim to the funds is rooted in the Judgment of April 28,1999. Whatever other remedies may be available to Husband to recover the funds transferred to Wife, civil contempt is not one of them.

No appeal was taken from this judgment.

2000 St. Charles County Lawsuit

On August 8, 2000, while the federal litigation was still pending, petitioner filed another lawsuit against respondent in the Circuit Court of St. Charles County, also to recover on various theories the $354,000 and $83,000, which petitioner alleged had been transferred to respondent, along with other funds, pursuant to an agreement to establish a law partnership and fund it with the August 1999 fee, and to make a down payment on a home. He alleged that he transferred the remainder of the fee to respondent so she could prepare the estimated tax payment on the original fee. He alleged that she converted the $83,000 and $354,000 for her own use. The trial court entered judgment for petitioner, and respondent appealed to this court.

On June 16, 2004, while the appeal was pending, the Circuit Court of St. Charles County entered another judgment in that case and awarded petitioner $197,975.30 in attorney’s fees. On July 9, 2004, again while the appeal was still pending, the circuit court entered a judgment of contempt against respondent in the same case. On July 29, 2004, we issued a Preliminary Order in Prohibition ordering the trial judge not to proceed further on either of these matters, except to withdraw any capias warrants for respondent’s arrest.

On July 27, 2004, we handed down our opinion in the appeal from the original judgment. Bagsby, 139 S.W.3d 611. We reversed the judgment in favor of petitioner and remanded with instructions to dismiss his petition without prejudice because petitioner had an action against respondent pending in the federal district court in Michigan that arose from the same alleged post-dissolution partnership agreement and respondent’s withdrawal of the funds from the Smith Barney joint account, and which also sought recovery of the same funds. Id. at 616-17.

On September 28, 2004, we handed down our opinion making the Preliminary Order in Prohibition absolute. State ex rel. Geh-res v. Schneider, 144 S.W.3d 903 (Mo.App. 2004). We held that the court had no jurisdiction to award attorney’s fees after the expiration of the thirty day period prescribed in Rule 75.01, while the case was pending on appeal. Id. at 904. We also found that the court could not enforce by its order of contempt the judgment found invalid in Bagsby, 139 S.W.3d at 616-17. Gehres, 144 S.W.3d at 904-05.

200⅛ St. Charles County Motion for Contempt/Petition for Injunction

On August 4, 2004, one week after we handed down our opinion in Bagsby, 139 S.W.3d 611, petitioner filed a verified motion for contempt and a petition for temporary restraining order and injunction against respondent in the Circuit Court of St. Charles County. In both his motion for contempt and his petition for permanent injunction, petitioner alleged that respondent had filed an affidavit in the federal lawsuit in Michigan that was contrary to the parties’ separation agreement and that respondent had refused to release funds held by the IRS that had been divided in the parties’ separation agreement.

On the same day, the trial court issued a show cause order to respondent and ordered her to appear on September 7, 2004 to show cause why the contempt motion should not be granted. It also issued an “ORDER TO APPEAR ON HEARING FOR TEMPORARY RESTRAINING ORDER” that ordered her to appear on September 7, 2004 “to answer Petitioner’s petition for a temporary restraining order.”

On August 30, 2004, respondent filed a motion to dismiss the motion and petition with a supporting brief and exhibits that included the final judgment. She also filed a motion to continue the hearing.

Respondent did not appear at the hearing on the temporary restraining order and permanent injunction on September 7, 2004. The docket does not reflect that the trial court entered an order advancing and consolidating the trial on the merits with the September 7, 2004 hearing. However, on September 7, 2004, the trial court entered the three judgments against her.

In its Judgment and Order of Contempt, the trial court found respondent in indirect civil contempt for filing an affidavit in the federal case that, it concluded, violated the terms of the separation agreement and by claiming entitlement to funds that had been divided in the settlement agreement, including funds held by the IRS. It found that petitioner had incurred attorney’s fees on the contempt motion in the amount of $200,253.34. It sentenced respondent to “imprisonment” in the St. Charles County jail “until such time as she elects to adhere fully to” the 1999 dissolution decree. It ordered that respondent could purge herself of contempt by paying petitioner $200,253.34, withdrawing her affidavit in the federal case, relinquishing claims to funds held in escrow by the IRS, and providing a copy of the contempt judgment and permanent injunction to all courts, including the federal court in Michigan, in which the parties’ claims were pending. It ordered her to refrain from claiming any entitlement to the disputed funds in the federal litigation for any work she did prior to dissolution and to pay a fine of $500.00 a day for each day after September 9, 2004 that she failed to purge herself of contempt.

In its Judgment and Order and Warrant of Commitment, the trial court ordered respondent arrested and held in jail until she purged herself of contempt, based on the same findings it had made in its contemporaneous Judgment and Order of Contempt. It conditioned her release on the same conditions set out in its Judgment and Order of Contempt.

In its Judgment of Permanent Injunction, the trial court found that respondent had filed an affidavit in the federal court making claims to funds that were divided in the marital settlement agreement and that petitioner would “be irreparably harmed in the federal litigation if this injunction is not issued.” It permanently barred respondent from asserting a claim of entitlement to any funds in any case in which petitioner was counsel of record pri- or to the dissolution of the parties’ marriage and from making a claim to “funds on deposit with the IRS” in the amount of $121,976.00.

DISCUSSION

On appeal, respondent asserts that the trial court made numerous procedural and substantive errors in entering the three judgments against her. Before we reach the merits of this appeal, we must sua sponte determine whether we have jurisdiction. Riverside-Quindaro v. Intercontinental, 121 S.W.3d 531, 533 (Mo. banc 2003); Govern. e-Management v. American Arbitrat., 142 S.W.3d 857, 860 (Mo.App.2004). Our jurisdiction is predicated on that of the trial court. Govern. e-Management, 142 S.W.3d at 860. If the trial court did not have jurisdiction over this action, any judgment entered thereon would be void, and we would have no jurisdiction except to reverse the judgment and remand the cause for dismissal. Id. Whether or not the trial court had subject matter jurisdiction over a cause is an issue of law which we review de novo. In re Marriage of Jeffrey, 53 S.W.3d 173, 175 (Mo.App.2001).

A state court lacks subject matter jurisdiction to control the action, process, or proceeding in a federal court. Viehweg v. Mello, 8 S.W.3d 187, 188-89 (Mo.App.1999). This rule is “not altered by the fact that the injunction sought by [petitioner] was addressed to [respondent rather than the federal court itself.” Id. A state court has no power to enjoin a litigant from proceeding in a pending or prospective in personam action in federal court. General Atomic Co. v. Felter, 434 U.S. 12, 17-19, 98 S.Ct. 76, 78-79, 54 L.Ed.2d 199 (1977); Donovan v. City of Dallas, 377 U.S. 408, 411-13, 84 S.Ct. 1579, 1582, 12 L.Ed.2d 409 (1964). By the same measure, a state court may not hold a litigant in contempt for pursuing a right to federal court remedies. Donovan, 377 U.S. at 413-14, 84 S.Ct. at 1583.

Here, petitioner sought to enjoin respondent from and hold her in contempt for filing an affidavit in support of her summary judgment motion and asserting claims in the federal case. All of the relief granted by the trial court was designed to prevent respondent from litigating her claims in the federal lawsuit that had been pending for five years. The trial court did not have subject matter jurisdiction to grant this relief, Viehweg, 8 S.W.3d at 188-89, and its judgment is void. Govern, e-Management, 142 S.W.3d at 860.

We reverse the judgment and remand to the trial court with directions to dismiss the action.

PATRICIA L. COHEN, P.J. and ROBERT G. DOWD, JR., J. concur.

      . These background facts are taken from the findings of the court in a June 22, 2000 final judgment entered after trial in In re Marriage of Larry A. Bagsby and Tina K. Gehres, Cause No. CV 198-72560R, Circuit Court of St. Charles County, another contempt action petitioner filed against respondent. For clarity, we point out that the numbers have not been consistent in the various lawsuits. The fee has also been alleged to be $850,000, and the initial amount deposited into and withdrawn from the Smith Barney account has also been alleged to be $354,000.

      . A more detailed summary of the allegations is contained in Bagsby v. Gehres, 139 S.W.3d 611, 612-14 (Mo.App.2004).

      . While this appeal was pending, on February 16, 2005, the federal district court in Michigan granted respondent's motion for summary judgment, finding that she did not convert the $83,000 and $354,000 because petitioner had unconditionally transferred those funds to respondent after dissolution. This judgment is now on appeal to the United States Court of Appeals for the Sixth Circuit.

      . Respondent's motion to add the memorandum opinion and order of the federal court for the Eastern District of Michigan in Bagsby v. Gehres, No. 00-CV-10153 BC, 195 F.Supp.2d 957 (E.D.Mich. 2002) to the legal file is granted. Petitioner’s motion to strike this opinion from the legal file is denied. Petitioner’s motion to strike respondent's brief is denied.


author: PER CURIAM.

text:
    STATE of Missouri, Respondent, v. Jean McPHEARSON, Defendant/Appellant.
    No. ED 84718.
    Missouri Court of Appeals, Eastern District, Division Three.
    Aug. 16, 2005.
    Jessica Hathaway, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Ronald S. Ribaudo, Asst. Atty. Gen., Jefferson City, MO, for respondent.
    Before GLENN A. NORTON, C.J., LAWRENCE E. MOONEY and BOOKER T. SHAW, JJ.
   ORDER

PER CURIAM.

The defendant, Jean McPhearson, appeals the judgment entered upon his convictions by a jury for possession of a controlled substance (marijuana), Section 195.202, RSMo.2000, possession of drug paraphernalia with intent to use, section 195.233, and driving with a revoked license, section 302.321. We have reviewed the parties’ briefs and the record on appeal and find no error. An extended opinion reciting the detailed facts and restating the principles of law would have no prece-dential value. The parties, however, have been furnished with a memorandum, for their information only, setting forth the reasons for our decision.

We affirm the judgment pursuant to Rule 30.25(b).

      . All statutory references are to RSMo.2000.


text:
    Danielle RICHARDSON, Respondent, v. DIRECTOR OF REVENUE, STATE OF MISSOURI, Appellant.
    No. ED 85005.
    Missouri Court of Appeals, Eastern District, Division Four.
    Aug. 16, 2005.

      Andrew Caleb Scholz, Columbia, MO, for Appellant.
    Travis Noble, Clayton, MO, for Respondent.
    Before GLENN A. NORTON, C. J., LAWRENCE E. MOONEY, J., and MARY K. HOFF, J.
   ORDER

PER CURIAM.

The Director of Revenue for the State of Missouri appeals the judgment of the trial court reinstating Danielle Richardson’s driving privileges after an administrative suspension. We have reviewed the briefs of the parties and the record on appeal and find no error of law. An extended opinion would be of no precedential value. We have, however, provided a memorandum opinion for the use of the parties only setting forth the reasons for our decision. The judgment is affirmed pursuant to Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. David Lee RAYFORD, Defendant/Appellant.
    No. ED 85167.
    Missouri Court of Appeals, Eastern District, Division Three.
    Aug. 16, 2005.
    Lisa M. Stroup, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Lacey R. Searfoss, Asst. Atty. Gen., Jefferson City, MO, for respondent.
    Before GLENN A. NORTON, C.J., LAWRENCE E. MOONEY and BOOKER T. SHAW, JJ.
   ORDER

PER CURIAM.

The defendant, David L. Rayford, appeals the judgment entered upon his conviction for stealing third offense, Section 570.040.1 RSMo.2000. The defendant alleges the trial court plainly erred in allowing the prosecutor to ask certain questions during voir dire. The defendant’s claim does not facially establish substantial grounds for believing that manifest injustice or a miscarriage of justice has resulted and, therefore, we decline to exercise our discretion to review the defendant’s unpre-served claim for plain error. An extended opinion reciting the detailed facts and restating the principles of law would have no precedential value. The parties, however, have been furnished with a memorandum, for their information only, setting forth the reasons for our decision.

We affirm the judgment pursuant to Rule 30.25(b).


author: GARY M. GAERTNER, SR., Presiding Judge.

text:
    Donna BOWAN by her Next Friend Audrey BOWAN, Respondent, v. EXPRESS MEDICAL TRANSPORTERS, INC., Appellant.
    No. ED 85144.
    Missouri Court of Appeals, Eastern District, Division One.
    Aug. 16, 2005.
    Peter J. Dunne, Susan L. Thurmer, Rabbitt, Pitzer & Snodgrass, P.C., St. Louis, MO, for Appellant.
    James P. Leonard, Devereaux, Stokes, Nolan & Fernandez, P.C., St. Louis, MO, for Respondent.
   GARY M. GAERTNER, SR., Presiding Judge.

Appellant, Express Medical Transporters, Inc. (“EMT”), appeals from a judgment of the Circuit Court of the City of St. Louis. The Circuit Court, on a remand directed from this Court, awarded Respondent, Donna Bowan (“Passenger”), $208,303.79 in prejudgment interest. We affirm.

Passenger is a physically and mentally disabled individual. EMT is a non-emergency transportation company under contract with the Missouri Department of Mental Health. EMT regularly provided Passenger with assisted transportation to and from her job at Lafayette Industries. Passenger was being transported home from work when the van in which she was riding was involved in an accident with another vehicle. Due to the accident, Passenger became a paraplegic and was forced to move to a nursing home.

The underlying case involved an action for negligence brought by Passenger against both EMT and a third party, Amy Jo Demery. Prior to trial, Passenger received $960,000 pursuant to an agreement made under section 537.065. The agreement stated that the $960,000 payment would be applied to offset any award or judgment made in this case. EMT was held liable for the negligence of its transport driver in operating the vehicle and in failing to ensure that Passenger was wearing her seat belt. A jury awarded Passenger $3.5 million. However, Passenger was also found twenty percent at fault for failing to wear a seatbelt. Thus, the trial court awarded her $2.8 million. The trial court thereafter granted a motion filed by EMT to reduce the award by $960,000. The trial court further denied a motion by Passenger to recover prejudgment interest under section 480.040. EMT subsequently appealed.

In a 2004 opinion, we reversed the trial court’s judgment with respect to the award of prejudgment interest, but affirmed the judgment in all other respects. In determining whether prejudgment interest was appropriate, we refused to offset the amount of Passenger’s award by the $960,000 payment. Instead, we found that because Passenger’s initial settlement offer was $2.5 million and her award was $2.8 million, she was entitled to prejudgment interest under section 408.040. However, we stated that the trial court should, before calculating prejudgment interest, apply the $960,000 paid to Passenger before trial “to reduce the verdict in her favor so that she does not receive a windfall of interest on that amount.” Bowan v. Express Medical Transporters, 135 S.W.3d 452, 465 (Mo.App. E.D.2004)

The trial court entered a Second Amended Judgment on August 9, 2004, which calculated prejudgment interests on the following amounts: $2.8 million from January 15, 2002 through June 25, 2002; $1.87 million from June 26, 2002 through October 3, 2002; and $1.84 million from October 4, 2002 through January 24, 2003. This appeal followed.

In EMT’s sole point on appeal, it contends that the trial court improperly calculated prejudgment interest. In particular, it argues that the trial court departed from our directive by using three different figures to calculate interest, based on the dates when Passenger actually received payments, rather than using the specified amount of $1.84 million.

A trial court acting on remand under a directive from an appellate court has no power to “modify, alter, amend, or otherwise depart from the appellate mandate.” In re Marriage of Bullard, 18 S.W.3d 134, 138 (Mo.App. E.D.2000). Yet the mandate of the appellate court is not the only source upon which a trial court may rely in issuing a judgment on remand. Rather, the “mandate is not to be read and applied in a vacuum. The opinion is part of the mandate and must be used to interpret the mandate itself.” McDonald v. McDonald, 795 S.W.2d 626, 627 (Mo.App. E.D.1990). Flexibility is necessary for trial courts, as appellate judgments are not self-executing. Id. at 628.

In this case, we did not allow Passenger to collect prejudgment interest on the entire award, for the entire eligibility period, because we wanted to avoid a situation where Passenger could collect interest twice on the settlement payment she received before trial. We stated that “[b]e-cause Passenger could have been earning interest on the money paid to her pursuant to the section 587.065 agreement as soon as it was in her possession, she suffers no harm if we apply the $960,000 payment to reduce the $2.8 million verdict before determining the [prejudgment interest] (emphasis added).” Bowan, 135 S.W.3d at 464. Following this reasoning, before Passenger had actually received the $960,000 payment, there was no danger that she would unjustifiably receive double interest. Therefore, Passenger should still have received prejudgment interest on the yet-unpaid amount.

The trial court exercised the kind of flexibility accorded it under McDonald. That is, the court calculated prejudgment interest on $2.8 million for the period of time before Passenger received any part of the $960,000 award. For the time after Passenger had received $930,000, the trial court based its calculation on $1.87 million. Finally, for the period of time when Passenger had in her possession the entire $960,000, the court used $1.84 million in its calculation. Had the trial court adhered rigidly to the figure of $1.84 million, it would have largely ignored our rationale and contemplated result, in contravention of McDonald. Therefore, the trial court did not err in calculating Passenger’s award of prejudgment interest.

Based on the foregoing, we affirm the judgment of the trial court.

SHERRI B. SULLIVAN, J., and NANNETTE A. BAKER, J., concur.

      . All statutory citations are to RSMo 2000 unless otherwise indicated. Section 537.065 allows a person with an unliquidated claim for damages against a tort-feasor to:
      enter into a contract with such tort-feasor or any insurer in his behalf or both, whereby, in consideration of the payment of a specified amount, the person asserting the claim agrees that in the event of a judgment, he [will not] levy execution ... except against the specific assets listed in the contract and except against any insurer which insures the legal liability of the tort-feasor for such damage.


author: GEORGE W. DRAPER III, Chief Judge.

text:
    BELL SCOTT, LLC, Plaintiff/Respondent, v. WOOD, WOOD AND WOOD INVESTMENTS, INC., Defendant/Appellant.
    No. ED 86296.
    Missouri Court of Appeals, Eastern District, Division Five.
    Aug. 16, 2005.

      Joseph P. Cunningham III, Crystal City, MO, for Appellant.
    Michael P. Kelly, Potosí, MO, for Respondent.
   GEORGE W. DRAPER III, Chief Judge.

Wood, Wood and Wood Investments, Inc. (Appellant) appeals from the trial court’s order denying its motion to dismiss. Because there is no final, appeal-able judgment, we dismiss the appeal.

Bell Scott, LLC (Respondent) filed a petition seeking a prescriptive easement over Appellant’s real property. Appellant filed a motion to dismiss the petition, contending Respondent’s suit was barred by res judicata, because the issue had been previously determined in a prior lawsuit. On April 7, 2005, the trial court entered an order denying Appellant’s motion to dismiss. In addition, the trial court stated, “Pursuant to Rule '74.01(b) of the Missouri Rules of Civil Procedure, the Court certifies this Order and Judgment, denying Defendant’s Motion to Dismiss, as appropriate for appellate review, there being no just reason for delay.” Appellant then filed its notice of appeal to this Court, although the case remains pending in circuit court.

Respondent has filed a motion to dismiss the appeal. Respondent asserts this Court lacks jurisdiction over the appeal, because the denial of a motion to dismiss is not appealable. In addition, Respondent argues that the trial court’s designation of the order under Rule 74.01(b) is improper. In response to the motion, Appellant has filed suggestions in opposition in which it asserts that the Rule 74.01(b) designation is proper and that resolution of the res judicata issue is necessary at this juncture before judicial resources are allotted for trial.

A party may only appeal from a final judgment, one that disposes of all parties and claims in the case and leaves nothing for future determination. American Family Mut. Ins. Co. v. Lindley, 112 S.W.3d 449, 451 (Mo.App. E.D.2003). A judgment as to “one or more but fewer than all of the claims” may be certified for appeal if the trial court expressly designates under Rule 74.01(b) that “there is no just reason for delay.” Id. However, a judgment that resolves fewer than all legal issues as to any single claim for relief is not final even if the trial court has certified it for appeal. Committee for Educational Equality v. State, 878 S.W.2d 446, 450 (Mo. banc 1994). A ruling on any issue that does not finally dispose of a single claim is not a “judicial unit” for appeal and cannot serve as the foundation for a final judgment. Blechle v. Goodyear Tire & Rubber Co., 28 S.W.3d 484, 487 (Mo.App. E.D.2000). The required judicial unit for appeal is “ ‘the final judgment on a claim, and not a ruling on some of several issues arising out of the same transaction or occurrence which does not dispose of the claim.’ ” Gibson v. Brewer, 952 S.W.2d 239, 244 (Mo. banc 1997), quoting State ex rel. State Hwy. Comm’n v. Smith, 303 S.W.2d 120, 123 (Mo.1957).

The denial of a motion to dismiss is not a final judgment and is not appealable. Halbman v. Pitzer, 22 S.W.3d 196 (Mo. App. E.D.2000). Moreover, the trial court’s certification of under Rule 74.01(b) was improper. Rule 74.01(b) specifically states that the trial court may only certify “one or more but fewer than all of the claims” for appeal. The ruling in question did not finally dispose of a single claim in the case, but is instead simply a ruling on one issue.

The Respondent s motion to dismiss is granted and the appeal is dismissed.

GLENN A. NORTON, J., and NANNETTE A. BAKER, J., concur.


text:
    Brian S. WILLIAMS, Respondent, v. IMPERIAL HOMES, INC., Appellant.
    No. ED 85399.
    Missouri Court of Appeals, Eastern District, Division Five.
    Aug. 16, 2005.
    Joseph P. Cunningham III, Crystal City, MO, for appellant.
    Michael P. Kelly, Potosí, MO, for respondent.
   GEORGE W. DRAPER III, Chief Judge.

Brian Williams (Respondent) filed a petition against Imperial Homes, Inc. (Appellant) and two other defendants for fraudulent misrepresentation and fraud. After a trial, the jury awarded Respondent $84,000 in damages. Appellant filed a motion for new trial, which was denied. The trial court did not enter a judgment as defined by Rule 74.01(a). Appellant filed this appeal.

This Court must determine its jurisdiction sua sponte and if we lack jurisdiction, we should dismiss the appeal. Bryant v. City of University City, 105 S.W.Bd 855, 856 (Mo.App. E.D.2003). In a civil case, a judgment must be expressly denominated “judgment” to be appealable. Rule 74.01(a); Peet v. Randolph, 103 S.W.3d 872, 875 (Mo.App. E.D.2003). In designating the writing a “judgment,” it must be clear from the writing that the trial court is calling the document or docket sheet entry a judgment. City of St. Louis v. Hughes, 950 S.W.2d 850, 853 (Mo. banc 1997).

Here, there is a jury verdict. However, the legal file fails to include a judgment as defined under Rule 74.01(a). We issued an order directing Appellant to show cause why the appeal should not be dismissed and providing Appellant an opportunity to obtain a judgment that complied with Rule 74.01(a). In response, Appellant filed a motion for extension of time to file a supplemental legal file. Appellant stated that no judgment has ever been filed despite his request of the circuit court to enter a judgment in conformity with Rule 74.01(a). This court granted Appellant an extension to file a supplemental legal file. Appellant has been given an opportunity to file a supplemental legal file, but has not done so.

The requirements for determining when a judgment is entered under Rule 74.01(a) establish a bright line test as to when a judgment is entered. Hughes, 950 S.W.2d at 853; See also, Brooks v. Brooks, 98 S.W.3d 530, 532 (Mo. banc 2003). Without a judgment, this Court lacks jurisdiction. Jon E. Fuhrer Co. v. Gerhardt, 955 S.W.2d 212, 213 (Mo.App. E.D.1997).

We dismiss the appeal without prejudice for lack of a final, appealable judgment.

GLENN A. NORTON, J., and NANNETTE A. BAKER, J., concur.

      . It appears the other two defendants were dismissed, but this is not entirely clear from the record before us.


text:
    Starla ZARBO, Plaintiff/Respondent, v. Robert ZARBO, Defendant/Appellant.
    No. ED 86273.
    Missouri Court of Appeals, Eastern District, Division Five.
    Aug. 16, 2005.
    Jennifer R. Piper, St. Louis, MO, for appellant.
    Devin A. Sauer, St. Louis, MO, for respondent.
   GEORGE W. DRAPER III, Chief Judge.

Robert Zarbo (Father) appeals from a judgment of civil contempt entered against him. Because there is no final and appeal-able judgment, the appeal is dismissed.

In 2000, the marriage of Father and respondent Starla Zarbo (Mother) was dissolved. Pursuant to that judgment, Father was ordered to pay one-half of the health expenses incurred by the minor child of the marriage. After Father failed to pay, Mother sought a judgment of contempt against him. The court entered a judgment of contempt and Father appealed.

For an appeal to lie, there must be a final judgment or order. Section 512.020 RSMo 2000. A civil contempt order is not final until it is enforced. In re Marriage of Crow and Gilmore, 103 S.W.3d 778, 780 (Mo. banc 2003). Here, the judgment of contempt ordered that Father was sentenced to serve an indefinite term of imprisonment until he paid arrearages of $2,407.03 into the court registry. The judgment then provided that execution of the judgment would be stayed as long as he paid $100 per month directly to Mother. If Father failed to pay, “warrant for his arrest shall issue forthwith.” When the remedy in a contempt judgment is imprisonment, enforcement occurs when actual incarceration occurs or when a warrant or an order of commitment is issued. Id. Here, it does not appear that an order of commitment or warrant has ever issued. Therefore, the contempt order is not enforced and remains interlocutory and unappealable. Id. at 782; See also, Eaton v. Bell, 127 S.W.3d 690, 697 (Mo.App. W.D. 2004).

This court has a duty to examine its jurisdiction sua sponte. South County Orthopedics & Sports Medicine, Inc. v. Pona, 149 S.W.3d 545, 546 (Mo.App. E.D.2004). This Court issued an order directing Father to show cause why his appeal should not be dismissed. Father has failed to file a response.

The appeal is dismissed for lack of a final, appealable judgment.

GLENN A. NORTON, J., and NANNETTE A. BAKER, J., concur.


text:
    STATE of Missouri, Respondent, v. Randy J. WOLLEN, Appellant.
    No. WD 64341.
    Missouri Court of Appeals, Western District.
    Aug. 16, 2005.
    Rosalynn Koch, Asst. State Public Defender, Columbia, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Nicole L. Loethen, Asst. Atty. Gen., Jefferson City, MO, for Respondent.
    Before HOWARD, P.J., and SMART and NEWTON, JJ.
   Order

PER CURIAM.

Randy J. Wollen appeals from his conviction by a jury of second-degree statutory sodomy in violation of section 566.064, RSMo 2000. At trial, Wollen raised the affirmative defense under section 566.020.3, RSMo 2000, that he reasonably believed the victim to be seventeen years of age or older. On appeal, Wollen claims that the trial court abused its discretion in sustaining the State’s objections to his questioning of several witnesses regarding whether the victim looked “more mature” than her actual age.

Affirmed. Rule 30.25(b).


text:
    Rodney K. JAMES, Appellant, v. STATE of Missouri, Respondent.
    No. WD 64408.
    Missouri Court of Appeals, Western District.
    Aug. 16, 2005.
    Susan L. Hogan, Kansas City, MO, for Appellant.
    Shaun J. Mackelprang, Jefferson City, MO, for Respondent.
    Before HARDWICK, P.J., BRECKENRIDGE and SPINDEN, JJ.
   ORDER

PER CURIAM.

Rodney James appeals from the denial of his Rule 29.15 motion, following an evi-dentiary hearing. Upon review of the record, we find no error and affirm the motion court’s determination that James failed to prove his ineffective assistance of counsel claim by a preponderance of the evidence. We have provided the parties with a Memorandum explaining the reasons for our decision, because a published opinion would have no precedential value.

AFFIRMED. Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Charles MARTIN, Appellant.
    No. ED 84822.
    Missouri Court of Appeals, Eastern District, Division Two.
    Aug. 23, 2005.
    Kristina Starke, St. Louis, MO, for Appellant.
    Deborah Daniels, Ronald S. Ribaudo, Jefferson City, MO, for Respondent.
    Before GARY M. GAERTNER, SR., P.J., GEORGE W. DRAPER III, J., and KENNETH M. ROMINES, J.
   ORDER

PER CURIAM.

Charles Martin (hereinafter, “Defendant”) appeals from the judgment entered by the trial court after a jury found him guilty of burglary in the second degree, Section 569.170 RSMo (2000), and resisting arrest, Section 575.150 RSMo (2000). The trial court sentenced Defendant to concurrent terms of eight years imprisonment in the Missouri Department of Corrections for burglary and one year in the medium security institution for resisting arrest. Defendant raises three points on appeal, claiming he had a valid Batson challenge, there was insufficient evidence to support the charge of resisting arrest, and the State made improper and prejudicial comments during closing argument.

We have reviewed the briefs of the parties and the record on appeal. An extended opinion would have no precedential value.

The judgment is affirmed pursuant to Rule 30.25(b).