author: Justice KELLER. Chief Justice LAMBERT.

text:
    KENTUCKY ASSOCIATION OF COUNTIES ALL LINES FUND TRUST, Appellant, v. Phillip McCLENDON, Daryl Wilson, Howard Hansford, James Cothron, Kenneth Earl Hicks, James D. Slaughter and Ralph Troxtell, in Their Capacities as Magistrates of the Pulaski Fiscal Court; and Pulaski County, Kentucky, Appellees.
    No. 2002-SC-0648-DG.
    Supreme Court of Kentucky.
    March 17, 2005.
    See also 967 S.W.2d 1.

      Pamela Adams Chesnut, Robert E. Ma-clin, III, McBrayer, McGinnis, Leslie & Kirkland, Lexington, Counsel for Appellant.
    William M. Thompson, Pulaski County Attorney, Jeffrey Scott Lawless, Travis, Pruitt & Lawless, Somerset, Counsel for Appellees.
   Opinion of the Court by

Justice KELLER.

I. ISSUE

In Allen v. McClendon, we determined that the magistrate members of the Pulaski County Fiscal Court unlawfully increased their salaries. Upon remand, the trial court entered a judgment requiring the magistrates to repay the improper salary increases. Now, in this postscript to Allen, the magistrates maintain that their liability insurer, Kentucky Association of Counties All Lines Fund Trust (“KALF”), was required to defend and indemnify them against the underlying claim seeking repayment of the salary increases. Because the underlying claim was neither for the commission of a tort nor for the breach of a fiduciary duty, and thus was not covered under the insurance policy issued by KALF, we hold that KALF did not have a duty either to defend or to indemnify the magistrates. We, therefore, reverse the Court of Appeals and reinstate the trial court’s summary judgment in favor of Appellant.

II. BACKGROUND

In 1993, Phillip McClendon, Daryl Wilson, Howard Hansford, James Cothron, Kenneth Earl Hicks, James D. Slaughter, and Ralph Troxtell (collectively “Magistrates”) were elected to five-year terms as magistrates on the Pulaski County Fiscal Court beginning in January 1994. In April 1994, the Magistrates voted to double their monthly salaries from $600.00 to $1,200.00, effective July 1994. In response to the salary increases, People for Ethical Government, Inc. (“PEG”) filed a complaint alleging that the Magistrates had violated KRS 64.530 and sections 2,161, and 235 of the Kentucky Constitution by increasing their salaries during their terms. The complaint demanded that the Magistrates return the salary increases that they had received to the county coffers.

The trial court granted summary judgment in favor of the Magistrates and upheld the salary increases. This Court accepted transfer from the Court of Appeals and held that under KRS 64.530 the Magistrates could not give themselves pay increases beyond an adjustment based on the Consumer Price Index. Accordingly, we reversed the trial court’s decision and remanded the case to the trial court, which then appropriately entered a judgment requiring the Magistrates to repay the unlawful part of the salary increases that they had at that time received for several years.

Upon the initial filing of PEG’s lawsuit, the Magistrates demanded that KALF, them and Pulaski County’s liability insurer, defend them against the claim and confirm coverage for any judgment that might be entered against them. KALF declined to defend the Magistrates and denied coverage. After judgment was entered against them, the Magistrates again requested coverage from KALF. In response, KALF filed the present action seeking a declaration that its policy did not cover the judgment entered against the Magistrates and that KALF was not required to reimburse Pulaski County for its defense of the Magistrates. Subsequently, the trial court granted KALF a summary judgment on the grounds that the Magistrates’ liability for the illegal salary increases did not arise either from the commission of a tort or from the breach of a fiduciary duty, which are the only actions covered by the insurance policy. In accordance with that determination, the trial court additionally concluded that the judgment against the Magistrates did not constitute “damages” arising from a tort or from a breach of a fiduciary duty. For these reasons, the trial court found that KALF had no duty to defend or to indemnify the Magistrates. But the Court of Appeals held that the Magistrates were entitled both to a defense and to coverage, and it reversed the trial court.

III. ANALYSIS

PEG’s complaint in the underlying action against the Magistrates alleged, in relevant part, that the “action of the Defendants in doubling their pay as Magistrates of the Pulaski Fiscal Court violates Section 64.530 of the Kentucky Revised Statutes and Sections 2, 161 and 235 of the Kentucky Constitution and other applicable law.” The complaint sought “[jludgment ... requiring the Defendants, individually, to repay Pulaski County all money they have received as a result of this illegal increase in the Magistrates’ salaries.”

The Court of Appeals ruled that PEG’s claim against the Magistrates “sounded in tort” and that since KALF’s policy provided coverage for torts, the Magistrates’ actions fell within the scope of activity covered under the policy. Before this Court, the Magistrates continue to maintain that PEG’S lawsuit alleged the commission of a tort, namely, “the tort of trover or conversion, or perhaps both,” and therefore, PEG’S claim against them falls within the policy’s coverage.

KALF contends that the policy’s terms do not provide coverage for the claims stated in the complaint because it did not allege the commission of a tort by the Magistrates. The “denial of coverage” letter from KALF’s claims representative set forth the reasons for its denial of coverage:

We have been informed by the Kentucky All Lines Fund that as the plaintiff[s] in this case merely ask for Declaratory Relief and ask the Court to require the defendants to return the “illegal” increases in their salaries, the Coverage Agreement will not apply. You will note that the Coverage Agreement indemnifies the insured for torts for which money damages are sought. The plaintiffs in this case are not alleging a tort nor are they seeking money damages as damages are defined.

“Terms of insurance contracts have no technical meaning in law and are to be interpreted according to the usage of the average man and as they would be read and understood by him in the light of the' prevailing rule that uncertainties and ambiguities must be resolved in favor of the insured.” But this “rule of strict construction against an insurance company certainly does not mean that every doubt must be resolved against it and does not interfere with the rule that the policy must receive a reasonable interpretation consistent with ... the plain meaning and/or language in the contract.” When the terms of an insurance contract are unambiguous and not unreasonable, they will be enforced.

KALF’s policy, a general liability policy, provides coverage to the Magistrates - for claims brought against them for torts' and for violations of their fiduciary duties. Under the section of the policy captioned “Coverage Agreement,” the policy reads:

II. COVERAGES
A. KALF, at its election, will pay either as reimbursement to the member or on behalf of the member all sums which the member shall become legally obligated to pay as damages because of the eommitment of a tort ... by the member or its employee except as excluded hereinafter ....
C. KALF shall pay on behalf of any employee for claims brought against such individuals for torts committed by such persons or for alleged violations of such person’s fiduciary duties in their public official capacity ... except as restricted hereinafter.
KALF has no duty to defend any suit brought for the collection of money owed or claimed to be owed by the member; ... or defend any action challenging the constitutionality or legal validity of any ordinance.
D. KALF shall have the right and duty to investigate any claim and to defend any suit seeking damages for such claim against a member, or any other person to whom KALF has assumed a duty under Sections A and C of this Article, even if any of the allegations of the suit are groundless, false or fraudulent, and shall make such investigation and settlement of any claim or suit as it deems expedient. In the event the claim includes allegations of an intentional tort, KALF shall still have we [sic] the duty to defend such claim or suit but shall not be liable for that portion of any judgment due to the claim having been found to be the result of an intentional tort.

The policy defines the following relevant terms:

I. DEFINITIONS
B. Claim means a demand for money naming the member or other persons) protected under Article II of this Coverage Agreement and alleging the commission of a tort or violation of a fiduciary duty by or on behalf of the member ....
D. Employee means:
3. any executive officer, administrator, supervisor or member of a governing body of the member, whether appointed or elected
while acting within the scope of his or her duties as such.

The Coverage Agreement (or “Agreement”) governs KALF’s responsibilities to the Magistrates. Article 11(A) of the Coverage Agreement does provide coverage for torts. “Tort” is defined in Article I(J) of the Agreement as “a civil wrong other than a breach of contract or warranty for which money damages other than court costs and related attorney fees are sought from the wrongdoer of [sic] its principal.” Thus, if the underlying action “sounds in tort” and is not otherwise excluded by the Coverage Agreement, then the policy does provide coverage. Conversely, if the underlying action is based on a breach of contract or warranty or is expressly excluded by the terms of the Coverage Agreement, it does not sound in tort and is not covered under the policy.

The Magistrates argue that coverage should be extended because the complaint states a cause of action for the tort of conversion. We disagree for two reasons. First, the complaint does not allege that PEG owned the money used for the salary increase and allegedly converted by the Magistrates, nor does it allege that PEG had possession of the property or the right to possess it at the time of the claimed conversion. Regardless, “[c]on-version is an intentional tort” and “[t]here is no such thing as a conversion by accident.” The Magistrates do not claim that they intentionally violated KRS 64.530 and for good reason: intentional torts and intentional violations of a statute or constitutional provision are specifically excluded by the Coverage Agreement:

V. COVERAGE EXCLUSIONS
A. Coverage under this Agreement does not apply to:
1. To a claim arising out of the willful or intentional violation of a statute, ordinance or constitutional provision;
2. To a claim resulting from an intentional tort or an act intended to cause injury or damages[.]
“Intentional tort” is defined in Article I(J) of the Agreement as,
A tort which was committed with knowledge that committing the act was wrong or expected to produce a wrongful act or knowingly failing to correct a wrongful act after discovery .... Intentional tort additionally means any action or inaction by the member or its employees in violation of any ordinance, regulation, statute or constitutional provision ....

For the Magistrates’ actions to be conversion, the acts must have been intentional. If their actions were intentional, then coverage is specifically excluded as outlined above. Regardless, we find that the underlying action did not sound in tort. Second, we believe that the underlying action is more analogous to an action for breach of contract than one for conversion. PEG claims in the underlying action that the Magistrates violated KRS 64.530 and sections 2, 161, and 235 of the Kentucky Constitution — provisions that establish the Magistrates’ salaries and limit their ability to increase their own salaries. The Magistrates are elected county officers and their salaries are controlled by KRS 64.530 and the Kentucky Constitution. And as Judge Waddle noted in Stone v. Pryor, “we further find from the debates of the convention that the framers of the constitution regarded that when a citizen [i]s elected to an office to which there [i]s a salary attached, fixed by law, he [i]s to be regarded as having entered into a quasi contract with the people to serve for the compensation he expect[s] to receive ....” A “quasi-contract,” also termed an “implied-in-law contract,” is “an obligation imposed by law because of the conduct of the parties, or some special relationship between them, or because one of them would otherwise be unjustly enriched.” Consequently, by taking office, the Magistrates entered into a quasi-contract with the people of Pulaski County to serve for a monthly salary of $600.00. By increasing their salaries, the Magistrates breached this quasi-contract. It is this breach of which PEG complains. Accordingly, we hold that the Magistrates did not commit a tort by enacting the salary-increase ordinance and receiving additional compensation, but rather, their actions constituted a breach of their quasi-contract-for which the policy does not provide coverage.

Additionally, we would note that PEG’S lawsuit was in essence a collection action on behalf of Pulaski County seeking to recoup from the Magistrates the salary increases that it claimed the Magistrates had wrongfully paid themselves as a result of enacting an invalid ordinance; it did not otherwise seek damages against the Magistrates for a civil wrong. The policy provides that “KALF has no duty to defend any suit brought for the collection of money owed or claimed to be owed by the member; ... or defend any action challenging the constitutionality or legal validity of any ordinance.” Thus KALF was not required to defend the Magistrates from PEG’s claim.

The Magistrates rely heavily on the general principle of contra proferen-tem, that is, that the policy should be construed against the insurer as drafter of the document. However, where there is no ambiguity, the rule of liberal construction in favor of the insured is inapplicable. As it has been stated numerous times by the courts in this Commonwealth, courts cannot enlarge coverage or make new contracts under the guise of construction, but must determine the parties’ responsibilities according to the contract terms.

The Magistrates are mistaken that the Agreement is ambiguous and is therefore subject to interpretation. We would point out that “[a] non-existent ambiguity [should not] be utilized to resolve a policy against” an insurer. It is not enough for one party to claim ambiguity. “ ‘The mere fact that [a party] attempts] to muddy the water and create some question of interpretation does not necessarily create an ambiguity.’ ” And there is no ambiguity in the Coverage Agreement. It provides coverage for torts with the exception of intentional torts and intentional violations of statutes, ordinances, or constitutional provisions; it does not provide coverage for a breach of contract or a defense to a collection action.

The Magistrates also assert that coverage should be extended on the basis of the reasonable expectation doctrine because parties in good faith do not bargain for insurance that pays no benefits. “Under the ‘doctrine of reasonable expectations,’ an insured is entitled to all the coverage he may reasonably expect to be provided according to the terms of the policy.” “ ‘Only an unequivocally conspicuous, plain and clear manifestation of the company’s intent to exclude coverage will defeat that expectation.’” In at least two separate sections, the Agreement excludes coverage for statutory and constitutional violations and throughout the Agreement it is abundantly clear that the coverage extends only to torts and not to a breach of contract. These exclusions are “unequivocally conspicuous, plain and clear.”

Relying on Busbee v. Reserve Insurance Co., the Court of Appeals determined that insurance policies for municipal officers covered the claims made here. This reliance on Busbee, however, is misplaced. There, a “faithful performance bond” provided indemnification to the state — not the employee — for “[l]oss caused the [state] through the failure of any of its employees ... to account properly for all monies and property received by virtue of his position or employment.” At his behest, a state employee received an unauthorized salary increase and the state received a judgment against the employee for the amount of the increase. The state, however, was unable to obtain satisfaction of its judgment, so it sued the bond’s surety. The Busbee Court held that the employee, “by failing to disgorge the sums he had received in the form of his unauthorized salary increase, did not account properly for monies received by virtue of his position or employment.” Thus, the state was entitled to recover the increase from the surety. This holding is consistent with the general rule that a surety is liable under such a bond. Here, the policy — which is a general liability policy, not a faithful performance bond — understandably does not contain a failure-to-account provision; thus, Busbee is not relevant in the analysis of the KALF Coverage Agreement.

The Court of Appeals also mentions two other cases from other jurisdictions in which coverage was extended to claims against municipal officers. In City Council of City of Elizabeth v. Fumero, coverage was afforded to a municipal officer over the exclusions in a collective bargaining agreement because the exclusions were contrary to a statute. The only statute used to argue for coverage in the case at hand is the Claims Against Local Government Act. Unlike the statute in Fumero, however, this Act does not require this Court to ignore the unambiguous and clearly drafted exclusions in the Agreement. The exclusions are not contrary to public policy or statute, and thus Fumero is inapplicable.

In the second case, Graham v. James F. Jackson Associates, Inc., the insurance policy provided coverage for negligent infliction of injury resulting in death, but excluded coverage for criminal acts. A city police officer was convicted of involuntary manslaughter, a criminal act which was excluded from coverage. This particular criminal act, however, could also be characterized as negligent infliction of injury resulting in death, for which coverage would be provided. Because of this conflict, the Court of Appeals of North Carolina determined that the policy was “reasonably susceptible to more than one construction and must be construed in favor of providing coverage.” While this Court agrees that ambiguities are construed in favor of coverage, we can find no ambiguity in KALF’s Coverage Agreement. The Agreement provides coverage for torts and specifically excludes coverage for a breach of contract and any intentional action or inaction in violation of a statute or constitutional provision.

The final issue is whether KALF breached any duty to defend under the Agreement. In Kentucky, an insurer has a duty to defend if there is an allegation which might come within the coverage terms of the insurance policy, but this duty ends once the insurer establishes that the liability is in fact not covered by the policy. As previously discussed, coverage under the Agreement did not extend to the Magistrates’ actions. We believe this is readily evident from a comparison of the complaint in the underlying action and the Agreement. The claims were clearly and expressly excluded and thus KALF appropriately declined to defend the allegations.

IV. CONCLUSION

We hold that KALF did not have a duty either to defend or to indemnify the Magistrates. Accordingly, we reverse the Court of Appeals and reinstate the judgment of the Pulaski Circuit Court.

COOPER, GRAVES, JOHNSTONE, SCOTT and WINTERSHEIMER, JJ„ concur.

LAMBERT, C.J., dissents by separate opinion.

Dissenting Opinion by

Chief Justice LAMBERT.

The pivotal question that this Court has failed to address is whether a claim in tort or a claim for breach of fiduciary duty was brought against Appellees, magistrates of the Pulaski County Fiscal Court, thereby contractually obligating Kentucky Association of Counties, All Lines Fund Trust (KALF), to indemnify and to provide them a legal defense. The majority opinion erroneously concludes that the underlying action brought by People for Ethical Government against Appellees did not sound in tort, a contractual exclusion from KALF’s legal obligation to defend and indemnify Appellees. Because People for Ethical Government’s complaint can be characterized to allege tortious conduct and a potential breach of fiduciary duties, and because indemnity and liability insurance coverage should be broadly applied, I would affirm the Court of Appeals.

The People for Ethical Government opposed the self-approved salary increase of members of the Pulaski County Fiscal Court and filed a declaration of rights action alleging that the magistrates had tortiously exercised dominion and control over funds belonging to the Pulaski County government or to the taxpayers. The People for Ethical Government also alleged that the magistrates violated their fiduciary duties. Appellees immediately contacted KALF, their insurer, and requested legal defense and indemnification for any damages assessed. KALF refused to indemnify or defend Appellees. In 1998, this Court held that the magistrates’ salary increases were improper. On remand, the Pulaski Circuit Court ordered Appellees to pay money damages and required them to refund the amount of the salary increases. Appellees again requested that KALF provide a defense and indemnification for the amount of money damages, and KALF filed this declaration of rights action.

The duty of an insurer to fulfill the terms of its contract to defend is broad and extends to “any allegation which potentially, possibly or might come within the coverage of the policy.” Whether a potential action is actually pursued or proves meritorious is immaterial to the insurer’s duty to defend. “The duty to defend continues to the point of establishing that liability upon which plaintiff was relying was in fact not covered by the policy, and not merely that it might not be.” Moreover, public policy mandates that the language of an insurance contract be liberally construed so as to afford coverage with respect to defense and indemnification.

In Brown Foundation, we held that an insurer was required to provide a defense for a wood preservation treatment plant where the cause of action for environmental claims by a federal agency could possibly come within terms of the contract provisions. We denied application of coverage exclusions for intentional acts contained within the insurance agreement. We noted that such exclusions cannot subvert an insurer’s duty to defend because the “insured is entitled to all coverage he may reasonably expect under the policy”, and only a clear manifestation of an insurer’s intention to exclude coverage on that grounds will defeat its contractual obligation to provide coverage. Here, there was no clear manifestation of intent to exclude coverage for the Pulaski County magistrates while acting in their capacities as public officials. Notably, several jurisdictions enforce insurance agreements to provide legal defense and indemnification for public officials’ unauthorized salary increases.

Moreover, this is a specific case where it is possible to characterize the complaint to allege tortious conduct or breaches of duty. The Pulaski Circuit Court held that the magistrates had made an error, but that it was not a breach of fiduciary duty. The specific tort or fiduciary duty claim against Appellees stems from their failure to adequately research statutory law and the law applicable to decisions of members of a fiscal court, ie., KRS 64.530, and §§ 2, 161, and 235 of the Kentucky Constitution. Such decisions require a certain amount of expertise and diligence before being made. In this case, the magistrates’ actions were not intentionally tortious. Their actions were more akin to negligence in that they made an uninformed decision. While the members of the fiscal court are fiduciaries of the county and the people for whom they serve, they are required to exercise due care and act in the best interests of the county when making decisions, they are not held to a standard of perfection. Permitting an insurance company that charged and received premiums to avoid coverage of public officials exercising their best judgment, regardless of the outcome of the decision, would stalemate public business from being conducted. Public officials deserve the peace of mind to know that when they conduct public affairs within their official capacities they will be afforded a legal defense and indemnity even if those decisions prove to be imprudent.

The exclusion from coverage is also inapplicable because this was not a case of intentional tort. The magistrates relied upon an order of the Pulaski Circuit Court granting summary judgment when they decided to retain the salary increases. And there is no indication in the record of any willful or knowing violation of law. However, even if the Appellees committed an intentional tort and suffered a judgment to that effect, KALF still would be required to defend them up and until that judgment was satisfied. I agree with the Court of Appeals that the record shows that money damages were sought in this case and that KALF has a contractual obligation to both defend and provide indemnification to Appellees. The only windfall in this situation is the one improperly bestowed on KALF, as it has eluded a contractual obligation to defend and indemnify several public officials who exercised imprudent judgment.

      . 967 S.W.2d 1 (Ky.1998).

      . KRS 64.530 provides, in pertinent part:
      "(1) ... [T]he fiscal court of each county shall fix the compensation of every county officer. ... (4) In the case of county officers elected by popular vote ... the monthly compensation of the officer ... shall be fixed by the fiscal court ... not later than the first Monday in May in the year in which the officers are elected, and the compensation of the officer shall not be changed during the term-(6) ... The fiscal court shall fix the amount to be received within the above limit, but no change of compensation shall be effective as to any member of a fiscal court during his term of office.” (emphasis added).

      . Ky. Const. § 2 provides, “Absolute and arbitrary power over the lives, liberty and property of freemen exists nowhere in a republic, not even in the largest majority.''

      . Ky. Const. § 161 states, “The compensation of any city, county, town or municipal officer shall not be changed after his election or appointment, or during his term of office; nor shall the term of any such officer be extended beyond the period for which he may have been elected or appointed.” (emphasis added).

      . Ky. Const. § 235 states, "The salaries of public officers shall not he changed during the terms for which they were elected; but it shall be the duty of the General Assembly to regulate, by a general law, in what cases and what deductions shall be made for neglect of official duties. This section shall apply to members of the General Assembly also.” (emphasis added).

        . Allen, 967 S.W.2d at 3-4.

      . "Trover” is "[a] common-law action for the recovery of damages for the conversion of personal property_" BLACK'S LAW DICTIONARY 1513 (7th ed.1999) (emphasis added). It is also termed "trover and conversion.” Id. Today, it is called "conversion.” 1 DAN B. DOBBS, THE LAW OF TORTS § 59 (West Group 2001).

      . James Graham Brown Found., Inc. v. St. Paul Fire & Marine Ins. Co., 814 S.W.2d 273, 279 (Ky.1991) (citing Fryman v. Pilot Life Ins. Co., 704 S.W.2d 205 (Ky.1986)).

      . St. Paul Fire & Marine Ins. Co. v. Powell-Walton-Milward, Inc., 870 S.W.2d 223, 226 (Ky.1994).

      . Am. Nat’l Bank v. Hartford, 442 F.2d 995, 999 (6th Cir.1971) (citing Independence Ins. Co. v. Jeffries’, Adm’r, 294 Ky. 690, 172 S.W.2d 566 (1943); Gen. Exchange Ins. Corp. v. Kinney, 279 Ky. 76, 81, 129 S.W.2d 1014, 1017 (1939)) ("[U]nder Kentucky law unambiguous and clearly drafted exclusions which are not unreasonable’ are enforceable.”); see also Kemper Nat’l Ins. Cos. v. Heaven Hill Distilleries, Inc., 82 S.W.3d 869, 873-874 (Ky.2002) (quoting Diamaco, Inc. v. Aetna Cas. & Sur. Co., 97 Wash.App. 335, 983 P.2d 707 (1999)) (" ‘Because coverage exclusions are "contrary to the fundamental protective purpose of insurance,” they are "strictly construed against the insurer" and “will not be extended beyond their clear and unequivocal meaning.” But that strict construction should not overcome "plain, clear language resulting in a strained or forced construction.” ’ ”).

      . State Farm Mut. Ins. Co. v. Fireman's Fund Am. Ins. Co., 550 S.W.2d 554, 557 (Ky.1977) ("[A]n insurance policy is a contract, and insofar as it does not contravene the law any recovery against the insurance company is governed solely by its terms.”).

      . 90 C J.S. Trover and Conversion § 4 (2004) (“The elements necessary to prove a conversion claim established in case law are: (1) the plaintiff had legal title to the converted property; (2) the plaintiff had possession of the property or the right to possess it at the time of the conversion; (3) the defendant exercised dominion over the property in a manner which denied the plaintiff's rights to use and enjoy the property and which was to the defendant’s own use and beneficial enjoyment; (4) the defendant intended to interfere with the plaintiff’s possession; (5) the plaintiff made some demand for the property’s return which the defendant refused; (6) the defendant's act was the legal cause of the plaintiff's loss of the property; and (7) the plaintiff suffered damage by the loss of the property.”)

      . 1 DAN B. DOBBS, THE LAW OF TORTS § 62 at 128 (West Group 2001).

      . Id.

      . Stone v. Pryor, 103 Ky. 645, 45 S.W. 1136 (1898).

      . Id. at 666, 45 S.W. at 1137 (Waddle, J., dissenting), cited approvingly in Talbott v. Thomas, 286 Ky. 786, 804-805, 151 S.W.2d 1, 10 (1941) (Miller, J. and Malin, J., concurring).

      . BLACK’S LAW DICTIONARY 322 (7th ed.1999).

      . Frear v. P.T.A. Indus., Inc., 103 S.W.3d 99 (Ky.2003).

      . Pa. Cas. Co. v. Elkins, 70 F.Supp. 155, 159 (E.D.Ky.1947) ("¡T]he Court may not impose new or different liabilities upon the insurer under the guise of interpretation or construction.”); Jett v. Doe, 551 S.W.2d 221, 223 (Ky.1977) (citing Mullins v. Nat’l Cas. Co., 273 Ky. 686, 117 S.W.2d 928 (1938)) (”[0]nce such a condition is clearly expressed in the policy and agreed upon by the parties, the courts must give it full force and effect and abstain from making a new or different contract under the guise of interpretation at the instance of the disappointed party.”); Weaver v. Nat'l Fidelity Ins. Co., 377 S.W.2d 73, 75 (Ky.1964) (”[C]ourts cannot make a different insurance contact for the parties by enlarging the risks contrary to the natural and obvious meaning of the existing contract.”); Cheek v. Commonwealth Life Ins. Co., 277 Ky. 677, 686, 126 S.W.2d 1084, 1089 (1939) (”[C]ourts cannot make a new contract for the parties under the guise of interpretation or construction but must determine the rights of the parties according to the terms agreed upon by them.”).

        .Meyers v. Ky. Med. Ins. Co., 982 S.W.2d 203, 208 (Ky.App.1997); see also St. Paul Fire & Marine Ins. Co. v. Powell-Walton-Milward, Inc., 870 S.W.2d 223, 226 (Ky.1994) ("Neither should a nonexistent ambiguity be utilized to resolve a policy against the company.”).

      . True v. Raines, 99 S.W.3d 439, 443 (Ky.2003) (quoting Sutton v. Shelter Mutual Ins. Co., 971 S.W.2d 807, 808 (Ky.App.1997)) (alterations in original).

      . Hendrix v. Firemans Fund Ins. Co., 823 S.W.2d 937, 938 (Ky.App.1991) (citing Woodson v. Manhattan Life Ins. Co., 743 S.W.2d 835, 839 (Ky.1987)) (emphasis added).

      . Simon v. Cont'l Ins. Co., 724 S.W.2d 210, 212 (Ky.1986) (citation omitted).

      . Id.

      . 243 Ga. 371, 254 S.E.2d 324 (1979).

      . Id. at 325.

      . Id. at 325.

      .63 C AM. JUR. 2D Public Officers and Employees § 357 (2004) (“Under a bond providing indemnification for loss caused through the failure of a public officer to faithfully perform his duties or to account properly for all moneys and property received by virtue of his position or employment, the action of a public officer in seeking and receiving an unauthorized salaty increase or in refusing to return overpayments of salary constitutes a breach of the bond and renders the surety liable, since the failure to disgorge the sums the officer received as unauthorized salary constitutes a failure to properly account for moneys received by virtue of his position or employment.” (footnotes omitted)).

      . 143 N.J.Super. 275, 362 A.2d 1279 (1976).

      . KRS 65.200 et seq.

      . 84 N.C.App. 427, 352 S.E.2d 878 (1987).

      . Id. at 881.

      . James Graham Brown Found., Inc. v. St. Paul Fire & Marine Ins. Co., 814 S.W.2d 273, 279 (Ky.1991); see also Thompson v. West Am. Ins. Co., 839 S.W.2d 579, 581 (Ky.App.1992) (citing Cincinnati Ins. Co. v. Vance, 730 S.W.2d 521 (Ky.1987)) (“The allegations of the complaint cannot compel a defense if coverage does not exist. The obligation to defend arises out of the insurance contract, not from the allegations of the complaint against the insured.”); Ky. Farm Bureau Ins. Co. v. Cann, 590 S.W.2d 881, 883 (Ky.App.1979) (explaining that there is no duty to defend claims expressly excluded).

      . Allen v. McClendon, 967 S.W.2d 1, 3-4 (Ky.1998).

      . James Graham Brown Found., Inc. v. St. Paul Fire & Marine Ins. Co., 814 S.W.2d 273, 279 (Ky.1991).

      . Id.

      . Id. citing 1C Appelman, Insurance Law and Practice § 4683.01 at 69 (Berdal Ed.1979).

      . Healthwise of Kentucky, Ltd. v. Anglin, 956 S.W.2d 213 (Ky.1997).

      . Id. at 275.

      . Id. at 277.

      . Id.

      . Busbee v. Reserve Ins. Co., 243 Ga. 371, 254 S.E.2d 324 (1979) (holding that insurance surety bond had an obligation to indemnify a state board of corrections officer for failure to relinquish sums of money received following an improper salary increase, which constituted a failure to properly account for “monies received by virtue of his position or employment”). See Elizabeth v. Fumero, 143 N.J.Super. 275, 362 A.2d 1279 (1976); Graham v. James F. Jackson Assoc., Inc., 84 N.C.App. 427, 352 S.E.2d 878 (1987).

      . Chicago Park Dist. v. Kenroy, Inc., 78 Ill.2d 555, 37 Ill.Dec. 291, 402 N.E.2d 181 (1980); United States v. Holzer, 816 F.2d 304 (7th Cir.1987) rev’d on other grounds by Holzer v. United States, 484 U.S. 807, 108 S.Ct. 53, 98 L.Ed.2d 18 (1987).

      . Id.

      . This Court has noted that insurance law should apply equally to parties capable of affording the burden of a legal defense as well as those that are unable. We held in Brown Foundation that “[t]he vast majority of Kentucky insurance policy holders are not able to accept such a burden, and it may well be that they are unable financially to defend a claim and prosecute an action on the policy. The doctrine of reasonable expectations remains a viable one in Kentucky.” 814 S.W.2d at 280.


source: Caselaw Access Project

license: Public Domain

text:
    San Juan C. ROMERO, Marta West, and Tyler West, Individually and as Representative of All Members of the Kentucky Association of Judiciary Interpreters, Movants, v. ADMINISTRATIVE OFFICE OF THE COURTS, Respondent.
    No. 2004-SC-000913-OA.
    Supreme Court of Kentucky.
    March 17, 2005.
    As Modified March 21, 2005.
    San Juan C Romero, Ft. Wright, Marta West, Tylor West, Frankfort, for Movants.
    D. Scott Furkin, D. Brent Irvin, Assistant Attorney General, Civil Environmental Law Division, Office of the Attorney General, & Frankfort, Counsel for Respondents.
   OPINION AND ORDER

I. INTRODUCTION

Movants are freelance court interpreters who seek review of “Supreme Court Amended Order 2004-3,” which made substantial changes to the procedures of the Kentucky Court of Justice (“KCOJ”) concerning the appointment of court interpreters. Movants request that the amended order be set aside because they claim that it was entered without notification to them and thus “violates the Constitutional rights of Movants to Due Process.” We hold that because Movants, as freelance court Interpreters, only had a mere expectancy in continued employment as court interpreters and thus not a property interest protected by due process, no violation of their due process rights occurred with the entry of the amended order. Accordingly, we deny Movants’ petition for review.

II. BACKGROUND

In an effort to control the rising costs of Interpretive services funded by the Administrative Office of the Courts (“AOC”) and to assure the quality of services provided by court interpreters, on September 28, 2004, the Chief Justice substantially amended Part IX, Procedures for Appointment of Interpreters, of the Administrative Procedures of the Court of Justice (“Administrative Procedures”) by entering an order captioned “Supreme Court Amended Order 2004-3” (hereinafter referred to as “September Amended Order”). The September Amended Order was effective October 1, 2004. Prior to the amendment, all court interpreters provided their services as independent contractors, i.e., as freelance interpreters, and were not regular employees of the Commonwealth. Interpreters established their hours and specified the counties in which they would work, and court administrators or other court officers would contact interpreters as needed. In other words, interpreters worked for KCOJ strictly on an as-needed basis. The interpreters were paid on an hourly basis and received travel pay. With the September Amended Order, however, the Chief Justice created several full-time, salaried positions for interpreters in regions of the state with the highest demand for interpretative services. Any additional interpretative services for KCOJ would be provided on an hourly basis by freelance interpreters approved by AOC. The September Amended Order primarily established criteria for interpreters to meet before they could be approved by AOC as a court interpreter, established standardized billing procedures for freelance interpreters, and discontinued travel pay for freelance interpreters.

In response to these changes, Movants, proceeding pro se as individual court interpreters and on behalf of all members of the Kentucky Association of Judiciary interpreters, filed a petition for review of the September Amended Order. They essentially alleged a violation of their due process rights, claiming that the procedures were amended without notice to or input from them.

In order to address interpreters’ objections to the September Amended Order, AOC, acting on behalf of the Chief Justice, held several meetings in November 2004. Two separate groups of Interpreters for the deaf and hard of hearing presented AOC with written lists of concerns about the amendment. Movants agreed to provide AOC with their list of concerns by November 22, 2004, but did not submit it until the next day. AOC reviewed the written concerns, and the Chief Justice again amended the Administrative Procedures on appointment of interpreters by entering another order on November 24, 2004 (hereinafter referred to as “November Amended Order”), which had an effective date of December 1, 2004. The November Amended Order significantly amended the procedures set forth in the September Amended Order by allowing payment for time spent waiting to interpret, and in some circumstances time spent preparing to interpret, and by reinstating travel pay for freelance interpreters. Although the Movants’ petition only sought review of the September Amended Order which has been superseded by the November Amended Order and no longer exists, our analysis applies in both amended orders.

III. ANALYSIS

Both the United States and Kentucky Constitutions protect a person against deprivation of his or her property interests without due process of law. A person’s legitimate claim of entitlement to continued employment is a property interest. But “an abstract need or desire for [employment]” or merely “a unilateral expectation of it” is not a property interest. In other words, “[f]or a property interest to arise, a government employee must have a ‘legitimate claim of entitlement’ to continued employment, as opposed to a mere subjective expectancy.”

In a series of memoranda from Kathy Schiflett, AOC’s Statewide Court Interpreter Service Coordinator, to court interpreters, Ms. Schiflett describes the relationship of court interpreters with AOC and KCOJ:

May 21, 2002: All certified and/or appropriately qualified court interpreters will be included on the Statewide List of AOC Recommended interpreters, which will be used by the COJ to hire court interpreters.
January 2, 2003: Court Interpreters, both qualified and certified, are freelance workers. They are not full-time or part-time employees of the KCOJ or AOC, Court interpreters are paid by the hour, and receive travel mileage when they have traveled outside their county of residence, As a certified or qualified freelance interpreter, you will be able to determine which counties you wish to work in and when you are available. Once you are classified as a qualified or certified interpreter, your information will be listed in the court interpreting directory. The KCOJ or AOC uses the directory to obtain court interpreters when needed .... There is no guarantee that you will be called, or that you will have enough business to have a reliable Income.
June 26, 2003: According to the Administrative Office of the Courts’ (KAOC) policy, all court interpreters are to be appointed or requested by the KCOJ as freelance workers. As a court interpreter, you are not a full-time or part-time employee of the KCOJ or the KAOC; and are, therefore, not entitled to the same benefits and privileges as KCOJ and KAOC employees.
July 22, 2003: As a freelance court interpreter, you have been given an opportunity to indicate which counties you wish to work in and when you are available. Your Information has been listed in the electronic court interpreting directory. The KCOJ or the AOC uses the electronic directory to obtain court interpreters when needed. There is no guarantee that you will be called, or that you will have enough business to have a reliable income. The AOC does not promote the business of freelance or contract workers, including court interpreters.
October 29, 2003: Court Interpreters are freelance workers. They are not full-time or part-time employees of the Kentucky Court of Justice (KCOJ) or AOC. Court Interpreters are paid by the hour. They are able to determine which counties they wish to work in and when they are available. Once you have met all the qualification requirements, your information -will be listed in the court-interpreting directory. The KCOJ or AOC uses the directory to obtain court Interpreters when needed .... There is no guarantee that you will be called, or that you will have enough business to have a reliable income.

Clearly, Movants’ relationship with the KCOJ and AOC is best characterized as that of a freelance worker or Independent contractor. An independent contractor is defined as

generally, one who, in exercise of an Independent employment, contracts to do a peace of work according to his own methods and is subject to his employer’s control only as to end product or final result of his work .... One who renders service in course of self employment or occupation, and who follows employer’s desires only as to results of work, and not as to means whereby it is to be accomplished.

“Freelance” is defined as a “person, usually self-employed, offering services on a temporary basis, especially to several businesses, etc., for particular assignments.” These definitions are consistent with our case law.

Generally, Independent contractors and freelance workers have a continued interest only in the specific project they have already been hired to do. Once a specific project is completed this interest no longer exists. Accordingly, as independent contractors or freelance workers, Movants have at most a mere expectancy of future employment by AOC — not a right to continued employment — and consequently they do not have a property interest entitled to due process protection. Thus, having no legitimate claim of continued employment, Movants were not deprived of a property Interest without due process of law.

IF. CONCLUSION

For the above stated reasons, the Petition for Review is denied.

COOPER, GRAVES, JOHNSTONE, KELLER and SCOTT, JJ., concur.

WINTERSHEIMER, J., dissents without opinion.

LAMBERT, C.J., not sitting.

ENTERED: March 17, 2005.

/s/ Martin E. Johnstone DEPUTY CHIEF JUSTICE

      . Although the parties refer to the order as "Supreme Court Amended Order,” the Administrative Procedures of the Court of Justice are not generally adopted by the Supreme Court of Kentucky, but rather they are usually promulgated solely by the "Chief Justice of the Commonwealth” under his authority as "the executive head of the Court of Justice.” See KY. CONST. § 110(5)(b). Administrative procedures promulgated by the Chief Justice have the force and effect of law if they are not inconsistent with enabling provisions of the Constitution, with enabling statutes, and with rules adopted by the Supreme Court. Faust v. Commonwealth, 142 S.W.3d 89, 98 (Ky.2004). Needless to say, however, administrative procedures that are also approved by the Supreme Court have the same force and effect as rules promulgated by the Supreme Court under its rule making authority. See KY. CONST. § 116.

      . Covington v. Court of Justice ex rel. Administrative Office of the Courts, 784 S.W.2d 180 (Ky.1990) ("The AOC is the staff for the Chief Justice in executing the policies and programs of the Court of Justice."); accord KY. CONST. § 110(5)(b) ("[The Chief Justice] shall appoint such administrative assistants as he deems necessary.”); KRS 27A.050 ("The Administrative Office of the Courts is created to serve as the staff for the Chief Justice in executing the policies and programs of the Court of Justice. The director of the Administrative Office of the Courts, employees thereof, and administrative assistants of the Chief Justice shall serve at the pleasure of the Chief Justice.”); Martin v. Administrative Office of Courts, 107 S.W.3d 212, 214 (Ky.2003) ("The Administrative Office of the Courts ... [is] an inseparable part of the Office of the Chief Justice. ...").

      . Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S.Ct., 2701, 2709, 33 L.Ed.2d 548 (1972); Kraus v. Ky. State Senate, 872 S.W.2d 433 (Ky.1993) (where Administrative Law Judge nominee had a sufficient interest to challenge the Senate’s rejection of his nomination because he had more than an expectation of employment).

        .Roth, 408 U.S. at 577, 92 S.Ct. at 2709; see Perry v. Sindermann, 408 U.S. 593, 603, 92 S.Ct. 2694, 2700, 33 L.Ed.2d 570 (1972) ("a mere subjective expectancy” of employment is not protected by procedural due process); Nunez v. Simms, 341 F.3d 385, 391 (5th Cir.2003) ("In [Peny ], the Supreme Court held that a mere subjective ‘expectancy’ is not liberty or property protected by the Due Process Clause. Therefore, regardless of what Nunez's subjective expectation was, it would not have been objectively reasonable for her to believe, at the time of entering into the contract, that her entitlement to teach would extend beyond the point that her certification expired by its own terms. In addition, as a temporary employee, plaintiff did not possess a property interest in her employment and was not entitled to the due process safeguards.”); Geddes v. Northwest Mo. State Univ., 49 F.3d 426, 429 (8th Cir.1995) ("Absent unusual circumstances, a teacher in a position without tenure or a formal contract does not have a legitimate entitlement to continued employment.”); Richey v. City of Lilburn, 127 F.Supp.2d 1250, 1261 (N.D.Ga.1999) ("Plaintiffs were not entitled to due process because they lacked a constitutionally protected property right in their employment since there is no genuine controversy of fact that plaintiffs were not tenured, career or regular employees but rather transitory and/or fixed-term contract employees.”); Spanish Cove Sanitation, Inc. v. Louisville-Jefferson County Metropolitan Sewer Dist., 72 S.W.3d 918, 921 (Ky.2002) ("Appellant has no protected property interest in providing sewage treatment services to the Fern Creek customers, it has but a mere expectancy.”); Dumesnil v. Reeves, 283 Ky. 563, -, 142 S.W.2d 132, 135-136 (1940) ("Since the beneficiary in the policies in question here acquired no vested right but only a mere expectancy by being designated as beneficiary we fail to see wherein the statute in question, when applied to the policies in controversy, impairs the obligation of a contract or results in a violation of the due process clause of the 14th amendment to the Federal Constitution or any provision of our state constitution.”); 16B AM. JUR. 2D Constitutional Law § 586, at 46^47 ("To constitute a violation of the provision against depriving any person of his or her property without due process of law, it should appear that such person has a property in the particular thing of which he or she is alleged to have been deprived, it is only a vested right which cannot be taken away except by due process of law. A mere subjective ‘expectancy’ is not an interest in property protected by procedural due process. To have a property interest in a benefit protected by procedural due process, a person must have more than an abstract need or desire for it, and he or she must have more than a unilateral expectation of it; in short, he or she must have a legitimate claim of entitlement to it.” (footnotes omitted)).

      . Batra v. Board of Regents of University of Nebraska, 79 F.3d 717, 720 (8th Cir.1996).

      . The memoranda are attached as exhibits to the Response to the Petition for Review.

      . BLACK'S LAW DICTIONARY 770 (6th ed.1990).

      . THE OXFORD AMERICAN DESK DICTIONARY AND THESAURUS 321 (2nd ed.2001).

      . See e.g., Bright v. Reynolds Metals Co., 490 S.W.2d 474 (Ky.1973); Barnes v. Indian Refining Co., 280 Ky. 811, 134 S.W.2d 620 (1939); Bowen v. Gradison Const., Co., 236 Ky. 270, 32 S.W.2d 1014 (1930); Williams v. Nat’l Cash Register Co., 157 Ky. 836, 164 S.W. 112 (1914); Messmer v. Bell & Coggeshall Co., 133 Ky. 19, 117 S.W. 346 (1909).

      . See 41 AM. Jur. Independent Contractors §§ 1-5 (1995).

      . In explaining the nature of a freelance worker, the Superior Court of Massachusetts stated as follows: "The Globe, for any reason, could decide that it no longer wished to publish the work of a freelancer, and a freelancer, for any reason, could decide that she no longer wished to work in the Globe. Neither could claim a breach of contract from the termination by the other of their freelance relationship .... The Globe at any time could have told any freelancer that her work was no longer welcome, or that future work would be paid at a lower rate, or that future work would be accepted only if she surrendered, in whole or in part, her copyright on that work. In other words, the Globe’s relationship with its freelancers was more akin to dating than to marriage.” Marx v. Globe Newspaper Co., 2002 WL 31662569, *6, *7, 15 Mass.L.Rptr. 400 (Mass.Super.Ct.2002).


author: PER CURIAM.

text:
    Stephen U. WEBB, Appellant, v. STATE of Missouri, Respondent.
    No. WD 62552.
    Missouri Court of Appeals, Western District.
    Nov. 23, 2004.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Feb. 1, 2005.
    Application for Transfer Denied April 5, 2005.
    Andrew A. Schroeder, Kansas City, MO, for Appellant.
    Deborah Daniels, Jefferson City, MO, for Respondent.
    Before LOWENSTEIN, P.J., EDWIN H. SMITH and HOWARD, JJ.
   ORDER

PER CURIAM.

Movant appealed the denial of his Rule 24.035 motion. Judgment affirmed. Rule 84.16(b).


author: PATRICIA BRECKENRIDGE, Judge.

text:
    GEORGE WARD BUILDERS, INC., and Robert Allen, Appellants, v. CITY OF LEE’S SUMMIT, Missouri, Respondent.
    No. WD 63347.
    Missouri Court of Appeals, Western District.
    Nov. 23, 2004.
    Motion for Transfer to Supreme Court Denied Feb. 1, 2005.
    Application for Transfer Denied April 5, 2005.

      Anthony L. Gosserand, Kansas City, MO, for appellants.
    James H. Ensz, Kansas City, MO, for respondents.
    Before ELLIS, P.J., BRECKENRIDGE and SMITH, JJ.
   PATRICIA BRECKENRIDGE, Judge.

George Ward Builders, Inc., and Robert Allen (referred to collectively as “Ward Builders”) appeal the dismissal of its two-count petition for nuisance and injunction against the City of Lee’s Summit. Specifically, Ward Builders alleged that the lighting system at a park located next to its properties creates an extreme level of light pollution that interferes with the use and enjoyment of its properties. In its sole point on appeal, Ward Builders claims that the trial court erred in dismissing its petition for failure to state a claim for relief because a municipality can be sued for a temporary nuisance under Missouri law.

This court finds that the trial court properly dismissed Ward Builders’ petition for a temporary nuisance because the exclusive and proper remedy for damage to private property caused by a nuisance maintained by a public entity having the power of eminent domain is an action in inverse condemnation. Equity requires this court to remand this case and give Ward Builders the opportunity to amend its petition to plead a claim of inverse condemnation. The trial court’s order granting the dismissal is vacated, and the cause is remanded for further proceedings consistent with this opinion.

Factual and Procedural Background

Although the trial court’s judgment was entered in response to the City’s motion for summary judgment, in its judgment dismissing Ward Builders’ petition, the trial court ruled as a matter of law and “[wjithout respect to disputed facts” that Ward Builders’ petition failed to state a cause of action. Therefore, the trial court’s ruling will be reviewed as a grant of a motion to dismiss. Chandler v. Allen, 108 S.W.3d 756, 764 (Mo.App.2003). In reviewing the grant of a motion to dismiss, this court takes as true the facts alleged in the petition. Johnson ex rel. Wilken v. Jones, 67 S.W.3d 702, 704 n. 2 (Mo.App.2002).

According to Ward Builders’ petition, George Ward Builders owns improved and unimproved lots and develops single-family homes in the Windsor Subdivision Development (‘Windsor”) in Jackson County. Robert Allen resides in and owns other improved and unimproved lots in Windsor. While Windsor is not within the city limits of Lee’s Summit, the subdivision is next to a park that the City owns and is developing. The park contains several sports and baseball fields that abut Windsor. To illuminate the ball fields, the City installed an outdoor lighting system.

On August 10, 2002, Ward Builders filed a two-count petition against the City. In this petition, Ward Builders alleged that the lighting system for the ball fields has lights that are located and positioned in such a manner as to shine directly into several homes in Windsor, including properties owned by Ward Builders. Ward Builders further alleged that the lights create an extreme level of light pollution that interferes with Windsor residents’ and Ward Builders’ use and enjoyment of their property and, therefore, the lighting system negatively impacts Windsor’s marketability. In Count I, Ward Builders sought damages for common law nuisance. In Count II, Ward Builders sought to permanently enjoin the City from operating the lighting system at the park.

In response, the City filed a motion for summary judgment, asserting that, “where a governmental entity is involved, what might be a nuisance claim against a private entity is an inverse condemnation claim against the governmental entity.” Following Ward Builders’ response to the City’s motion for summary judgment, the trial court entered its “Judgment” dismissing Ward Builders’ petition, as a matter of law, based on its interpretation of Heins Implement Co. v. Missouri Highway & Transportation Commission, 859 S.W.2d 681 (Mo. banc 1993), and Byrom v. Little Blue Valley Sewer District, 16 S.W.3d 573 (Mo. banc 2000). Specifically, the trial court found that Ward Builders could not state a cause of action for common law nuisance against the City. The court stated that “in light of [Ward Builders’] denial of their intent to seek relief by way of inverse condemnation in [Ward Builders’] Response to the Summary Judgment Motion, [Ward Builders’] Petition fails to state a cause of action.” This appeal followed.

Standard of Review

As noted above, even though the trial court’s judgment was entered in response to the City’s motion for summary judgment, because the trial court relied on only Ward Builders’ petition in dismissing the petition, this court reviews the trial court’s ruling as a grant of a motion to dismiss. A motion to dismiss for failure to state a claim upon which relief can be granted is an attack on the plaintiff’s pleadings. Bosch v. St. Louis Healthcare Network, 41 S.W.3d 462, 463-64 (Mo. banc 2001). When reviewing the grant of a motion to dismiss for failure to state a claim, this court considers that:

“A motion to dismiss for failure to state a cause of action is solely a test of the adequacy of the plaintiff’s petition. It assumes that all of plaintiffs averments are true, and liberally grants to plaintiff all reasonable inferences therefrom. No attempt is made to weigh any facts alleged as to whether they are credible or persuasive. Instead, the petition is reviewed in an almost academic manner, to determine if the facts alleged meet the elements of a recognized cause of action, or of a cause that might be adopted in that case.”

Id. (quoting Nazeri v. Mo. Valley College, 860 S.W.2d 303, 306 (Mo. banc 1993) (internal citations omitted)).

Judgment Is Final and Appealable

Before reaching Ward Builders’ point on appeal, this court must determine, sua sponte, whether it has jurisdiction to hear the appeal. Chromalloy Am. Corp. v. Elyria Foundry Co., 955 S.W.2d 1, 3 (Mo. banc 1997). The trial court dismissed Ward Builders’ petition without stating whether the dismissal was with or without prejudice. Therefore, the dismissal was without prejudice. Rule 67.03 (stating that “[a]ny involuntary dismissal shall be without prejudice unless the court in its order for dismissal shall otherwise specify”). “The general rule is that a dismissal without prejudice is not a final judgment and, therefore, is not appealable.” Chromalloy, 955 S.W.2d at 3.

An exception to this rule is “where the dismissal has the practical effect of terminating the litigation in the form cast by the plaintiff.” Masonic Temple Ass’n of St. Louis v. Soc’y for Pres. of Masonic Temple, 70 S.W.3d 24, 26 (Mo.App.2002). “When the effect of the order is to dismiss the plaintiffs action and not the pleading merely, then the judgment entered is final and appealable.” Mahoney v. Doerhoff Surgical Servs., Inc., 807 S.W.2d 503, 506 (Mo. banc 1991). “[Tjhat the plaintiff may, if he chooses, bring another action for the same cause does not alter the fact that that judgment was a final adjudication as to that petition and if plaintiff chose to stand on that petition, the judgment was final and appealable.” Hasemeier v. Smith, 361 S.W.2d 697, 699 (Mo. banc 1962).

Here, the trial court ruled that Ward Builders’ petition failed to state a cause of action under the holdings of Heins and Byrom. The trial court did not find that Ward Builders failed to plead the required elements of its claim. Rather, the trial court effectively ruled that, under Missouri Supreme Court precedent, no cause of action for nuisance exists against municipalities with condemning authority. Instead of bringing another action for the same cause, Ward Builders chose to stand on its petition alleging a nuisance action. Thus, the trial court’s dismissal of that petition was final and appealable.

No Claim for Nuisance Against Municipality

In its sole point on appeal, Ward Builders argues that the trial court erred in dismissing its petition because it stated a cause of action against the City for common law nuisance. Specifically, Ward Builders claims that a municipality can be sued for a temporary nuisance, and the use of the fighting system at the ballpark is a temporary nuisance. The trial court, however, found that, under Heins and Byrom, there is no cause of action for damages or the abatement of a temporary nuisance against municipalities with condemning authority under Missouri law.

In Heins, landowners sued the Missouri Highway & Transportation Commission (the “MHTC”) and others after a highway bypass project caused flooding on their property. 859 S.W.2d at 684. Against the MHTC, the landowners asserted claims of inverse condemnation, negligence, and nuisance. Id. The trial court granted summary judgment in favor of the MHTC on the landowners’ negligence and nuisance claims. Id. After a jury verdict for landowners on their inverse condemnation claim, the trial court granted a judgment notwithstanding the verdict in MHTC’s favor on that claim. Id.

In the landowners’ appeal to the Supreme Court, the Court determined that the evidence was sufficient to permit a jury to find inverse condemnation, and the Court reversed and remanded that claim. Id. at 691-92. The Court affirmed the summary judgment in favor of the MHTC on the landowners’ negligence and nuisance claims, however. Id. at 694. The Court found that the MHTC was empowered to exercise the right of eminent domain and, “when private property is damaged by a nuisance operated by an entity having the power of eminent domain, the proper remedy is an action in inverse condemnation.” Id. at 693.

Nevertheless, Ward Builders argues that, because the alleged damage in Heins was caused by a permanent nuisance, that Heins should be specifically limited to permanent nuisances. The Court in Heins, however, did not make such a distinction. Although Ward Builders acknowledges that fact, it contends that if Heins is read to mean that claims involving both permanent and temporary nuisances must now be exclusively brought as inverse condemnation claims, the Supreme Court departed from prior case law sub silentio. Subsequent to Heins, however, this court interpreted the Supreme Court’s holding in Clay v. Missouri Highway & Transportation Commission, to be that in cases where plaintiffs were seeking to recover for damages to their own property, “inverse condemnation has been held to be the exclusive and proper remedy.” 951 S.W.2d 617, 628 (Mo.App.1997) (emphasis added).

That inverse condemnation is the exclusive remedy for damage to property from either a temporary or permanent nuisance was made clear in the Supreme Court’s decision in Byrom, a case decided seven years after Heins. In Byrom, residents of the Atherton community sued the Little Blue Valley Sewer District (the “Sewer District”), alleging claims of temporary nuisance and inverse condemnation for foul odors and personal injuries caused by the Sewer District’s operation of a wastewater treatment plant. 16 S.W.3d at 574-75. The trial court entered judgment in favor of the residents. Id. On appeal to the Supreme Court, the Sewer District alleged that the residents’ nuisance claim was barred by sovereign immunity, and that the trial court erred in computing damages on the inverse condemnation claim. Id. at 575.

The Supreme Court found that the residents had abandoned their temporary nuisance claim for personal injuries at trial and, therefore, the trial court’s judgment should be reviewed as a judgment “awarding damages for property injury based on principles of inverse condemnation.” Id. at 576. The Court characterized the residents’ action as an inverse condemnation claim based on nuisance. Id. at 578. The Court determined that:

Absent a claim for personal injury and a waiver of sovereign immunity under section 537.600.1, recovery for nuisance is more limited when, as here, a public entity is the defendant. In Heins Implement v. Highway & Transport Commission, [859 S.W.2d 681 (Mo. 1993) ] we noted, “when private property is damaged by a nuisance operated by an entity having the power of eminent domain, the proper remedy is an action in inverse condemnation.” The Residents, therefore, are constitutionally entitled to just compensation from the Sewer District.

Id. at 576-77 (footnote omitted).

After stating the rule of Heins that the proper remedy for private property damaged by a condemning authority is inverse condemnation, Byrom discussed that there is a different measure of damages depending on whether a nuisance is temporary or permanent. Id. at 577. In particular, By-rom held that a public entity that permanently damages a plaintiffs property rights “is liable for the fair market value lost in that property.” Id. On the other hand, a public entity that temporarily damages a plaintiffs property rights is hable for the “ ‘diminution in value of the use of occupancy of the property for [the] period’ taken or damaged.” Id. (citation omitted). Had the Court intended that Heins only be applicable in cases involving permanent nuisances, it would not have drawn a distinction between the different damage measures. Consequently, under Heins and Byrom, when private property is damaged by a nuisance operated by a public entity with condemning authority, regardless of whether the nuisance is temporary or permanent, the exclusive and proper remedy is inverse condemnation. See also Thomas v. City of Kansas City, 92 S.W.3d 92, 98-100, 102 n. 4 (Mo.App.2002) (noting that neither of the two defendant cities argued that plaintiffs’ petition was deficient for failing to plead property damage as inverse condemnation claim under Heins and, therefore, on remand, petition was to be construed merely as claim for personal injury and not property damage); Shade v. Mo. Highway & Transp. Comm’n, 69 S.W.3d 503, 510 (Mo.App.2002) (“The effect of the court’s holding in Heins was to remove inverse condemnation actions from the realm of tort liability and set them in a constitutional context, i.e., preventing the taking of private property for public use without compensation.”).

Ward Builders, however, cites this court’s prior decision in King v. City of Independence, 64 S.W.3d 335 (Mo.App.2002), a case decided after both Heins and Byrom, as authority for the validity of a temporary nuisance cause of action against a public entity. In King, the plaintiff sued the City of Independence, alleging nuisance for sewer backup into her basement and garage caused by the city’s operation of its sanitary sewer system. 64 S.W.3d at 338. The trial court concluded that the alleged nuisance was permanent and awarded damages in favor of the plaintiff. Id. On appeal, the city argued that the trial court erred in finding a permanent nuisance and in its award of damages. Id. at 337. Finding that the trial court erred in classifying the nuisance as permanent, this court remanded the case to the trial court to identify the nuisance as temporary and retry the issue of damages for a temporary nuisance. Id. at 343.

Thus, based on King, Ward Builders argues that it is possible to state a cause of action for a temporary nuisance against a municipality with condemning authority. Unlike this case, however, there was no issue raised in King as to the propriety of the cause of action for nuisance. Consequently, this court never considered whether the plaintiffs cause of action for a temporary nuisance for her claim of property damage caused by a nuisance maintained by a condemning authority was a valid cause of action. In addressing the issues raised in King, however, the court stated that “[a] sewer backup into private premises may be actionable against a municipality for nuisance,” 64 S.W.3d at 339, which indicates that nuisance is a viable cause of action against a municipality. King’s subsequent reliance on Byrom in discussing the measure of damages for a temporary nuisance, id. at 340, also suggests that this court interprets Byrom as permitting a nuisance claim against a municipality.

To the extent that this court’s decision in King indicates that a nuisance-based claim is viable against a public entity with condemning authority, it is contrary to Heins and Byrom. Accordingly, King should no longer be followed on this point. Under Heins and Byrom, a nuisance claim for injury to property, regardless of whether the nuisance is temporary or permanent, may not be substituted for a claim of inverse condemnation, as long as the complained of entity is one having the power of eminent domain.

Conclusion

Ward Builders relied on King when it repeatedly insisted in its pleadings, and on appeal, that a nuisance claim can be maintained against a municipality. Although rare, Missouri appellate courts have given plaintiffs, who have misconceived the law, the opportunity to amend their pleadings when equity and fairness requires it, even in cases where a verdict was reached by a judge or jury. “[W]here a plaintiff has from the outset misconceived the law and has chosen a mistaken legal theory to submit to the jury for redress, we may reverse the judgment against the plaintiff and remand the cause to allow the plaintiff to plead and to submit another theory.” Blaine v. J.E. Jones Constr. Co., 841 S.W.2d 703, 710 (Mo.App.1992). See Stouse v. Stouse, 270 S.W.2d 822, 825-26 (Mo.1954); Davidson v. Kenney, 971 S.W.2d 896, 900 (Mo.App.1998). This is permissible “because the plaintiffs counsel has missed completely the appropriate theory. Simple fairness requires the plaintiff be given a meaningful day in court.” Blaine, 841 S.W.2d at 710. Remand will not be permitted if the record shows that the plaintiff deliberately chose its legal theory — in lieu of other legal theories — to gain strategic advantage. Id. Such a “choice is a matter of legal strategy, not a misadventure.” Id.

In this case, it is evident that Ward Builders chose to assert its nuisance claim against the City not as a matter of trial strategy, but because it mistakenly believed that such a claim was viable on its own and did not need to be brought as the basis for an inverse condemnation claim. Because this mistaken belief was based on a reasonable interpretation of this court’s opinion in King, simple fairness requires that this court remand the case and give Ward Builders the opportunity to amend its petition to state a claim for inverse condemnation. See Davidson, 971 S.W.2d at 900. See also Adolphsen v. Hallmark Cards, Inc., 907 S.W.2d 333, 338-39 (Mo.App.1995). If the amended petition states a claim for inverse condemnation, then the case shall be permitted to proceed. If not, the court shall dismiss the claim with prejudice.

The trial court’s order is vacated. The cause is remanded for further proceedings consistent with this opinion.

All concur.

      . The City made two additional arguments. First, it argued that, even if Ward Builders had characterized its claim as one of inverse condemnation, it still would not succeed. Second, it claimed that, even if Ward Builders had a viable inverse condemnation claim, Ward Builders would be estopped from pursuing it because Ward Builders never complained about the lighting until after the park had been constructed.

      . Prior to Heins, Missouri case law drew a distinction between the proper remedy for a temporary and a permanent nuisance. For cases finding that the proper cause of action for property damage caused by a permanent nuisance maintained by a condemning authority is inverse condemnation see Owen v. City of Springfield, 741 S.W.2d 16, 18 (Mo. banc 1987); Barr v. KAMO Elec. Corp., 648 S.W.2d 616, 618-19 (Mo.App.1983); Drybread v. City of St. Louis, 634 S.W.2d 519, 520-21 (Mo.App.1982); Stewart v. City of Marshfield, 431 S.W.2d 819, 822-23 (Mo.App.1968); Lewis v. City of Potosi, 317 S.W.2d 623, 629 (Mo.App. 1958). In Rodgers v. Kansas City, 327 S.W.2d 478 (Mo.App.1959), however, the landowner sought damages for a temporary nuisance.

      . This opinion has been reviewed and approved by order of the court en banc.

      . The City claims that, even if Ward Builders had a claim for inverse condemnation, they would be estopped from pursuing it. To support this claim, the City relies on language in Hasemeier that a plaintiff who elects “to appeal from the judgment dismissing the 'cause of action' without prejudice rather than to bring another action [is] estopped to bring another action for the same cause after an appellate court ... affirm[s] the trial court’s dismissal judgment.” 361 S.W.2d at 699. Collateral estoppel "deals with the relitigation of previously decided issues in subsequent litigation brought on a different cause of action.” Shores v. Express Lending Servs., Inc., 998 S.W.2d 122, 126 (Mo.App.1999). A remand to amend the petition would not be "subsequent litigation”; therefore, collateral estoppel would not apply.


author: ROBERT G. ULRICH, Judge.

text:
    William S. GOMEZ a/k/a Billy Gomez, Appellant, v. CONSTRUCTION DESIGN, INC., Respondent.
    No. WD 64056.
    Missouri Court of Appeals, Western District.
    Nov. 30, 2004.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Feb. 1, 2005.
    Application for Transfer Denied April 5, 2005.
    See also 126 S.W.3d 366.

      Candis L. Young, Kansas City, MO, for appellant.
    Douglas N. Ghertner, Kansas City, MO, for respondent.
    Before LISA WHITE HARDWICK, P.J., ROBERT G. ULRICH and THOMAS H. NEWTON, JJ.
   ROBERT G. ULRICH, Judge.

William Gomez appeals the judgment acknowledging full satisfaction of the trial court’s award (prior judgment for damages resulting from personal injuries) of $2.76 million against Defendant Construction Design, Inc. (CDI) and releasing the supersedes bond filed by CDI to appeal the award. The Missouri Supreme Court affirmed the award following CDI’s appeal and Mr. Gomez’s cross-appeal. Gomez v. Constr. Design, Inc., 126 S.W.3d 366 (Mo. banc 2004). The judgment provides for post judgment interest at the statutory rate of nine percent from the date of the Supreme Court’s opinion affirming the remitted judgment in the sum of $2.76 million until the total sum was paid. Mr. Gomez claims that the trial court erred in determining when the statutory interest begins to run. He claims that the trial court erred in not compelling CDI to pay interest from the date the trial court entered its amended judgment for remitted damages on May 31, 2001, rather than from the date the Supreme Court affirmed the judgment of the trial court on January 13, 2004. The judgment of the trial court is affirmed.

Facts

William Gomez filed his action against CDI for recovery of damages resulting from personal injuries. Following trial, the jury awarded Mr. Gomez $3.76 million in compensatory damages. The trial court denied CDI’s motion for a new trial but sustained CDI’s alternative motion for re-mittitur and reduced the jury’s award to $2.76 million, which was accepted by Mr. Gomez in lieu of the court’s granting a new trial. The court entered its amended judgment in the sum of $2.76 million against CDI and in favor of Mr. Gomez, and CDI appealed the judgment. Mr. Gomez filed his cross-appeal contending that the jury award of $3.76 million was not excessive and that the trial court erred in granting CDI’s alternative motion to remit the verdict. The case was transferred to the Supreme Court, and the Court affirmed the trial court’s judgment awarding $2.76 million to Mr. Gomez.

The parties disagreed as to the amount required to satisfy the award. CDI contended that the amount required to satisfy the judgment for damages included interest at the nine percent statutory rate ($680.55 per day) from January 13, 2004, the date the Supreme Court’s decision affirming the judgment. Mr. Gomez asserted that the amount required to satisfy the judgment included interest at the statutory nine percent rate from May 31, 2001, the date the trial court entered its amended judgment remitting the jury award to $2.76 million. CDI claimed in its motion before the trial court that the denial of interest from January 13, 2004, until the judgment was satisfied would be legally correct because Mr. Gomez was unsuccessful in his cross-appeal challenging the reduction of the jury award from $3.67 million to $2.67 million.

The trial court granted CDI’s motion and entered its Order and Judgment Acknowledging Full Satisfaction of Judgment and Releasing the Appeal Bond, effectively denying Mr. Gomez’s request for post-judgment interest from May 31, 2001, until the date of full payment of the judgment. Mr. Gomez now appeals from the trial court’s judgment awarding interest on the $2.67 million award from January 13, 2004, the date of the Supreme Court’s affirming opinion and not from May 31, 2001, the date the trial court entered its judgment.

Standard of Review

The trial court’s decision in a court-tried case will be affirmed on appeal unless no substantial evidence supports it, it is against the weight of the evidence, it erroneously declares the law or it erroneously applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Appeal from the interpretation and application of a statute, however, involves a question of law, and review is de novo. Psychiatric Healthcare Corp. of Mo. v. Dep’t of Soc. Servs., 100 S.W.3d 891, 899 (Mo.App. W.D.2003). Whether section 408.040, RSMo 2000, allows a judgment creditor to recover post judgment interest from the date the judgment is entered where the judgment debtor appeals the judgment and the judgment creditor then appeals the remittur is a question of law. Thus, this court shall review the interpretation and application of section 408.040 independently of the trial court’s determination without deference to its interpretation. Lakin v. Gen. Am. Mut. Holding Co., 55 S.W.3d 499, 503 (Mo.App. W.D.2001).

Point One

Mr. Gomez claims as his first point on appeal that the trial court erred in issuing its judgment acknowledging full satisfaction of the award and prior judgment for the injuries that he sustained as a result of CDI’s negligence when it permitted statutory post judgment interest on the award from January 13, 2004, and not from May 31, 2001. He contends that his cross-appeal did not delay or prolong the litigation and revealed prior misrepresentations regarding available insurance coverage.

Section 408.040.1, RSMo 2000, states:

Interest shall be allowed on all money due upon any judgment or order of any court from the day of rendering the same until satisfaction be made by payment, accord or sale of property; all such judgments and orders for money upon contracts bearing more than nine percent interest shall bear the same interest borne by such contracts, and all other judgments and orders for money shall bear nine percent per annum until satisfaction made as aforesaid.

Notwithstanding that interest is allowed on all money due upon any court judgment or order from the day the judgment is entered until the judgment is satisfied, where a judgment creditor appeals on the ground of inadequacy from a recovery in his favor and the judgment is affirmed on appeal, the judgment creditor is not entitled to interest pending the appeal. Jesser v. Mayfair Hotel, Inc., 360 S.W.2d 652, 665 (Mo. banc 1962); Investors Title Co. v. Chicago Title Ins. Co., 18 S.W.3d 70, 72 (Mo.App. E.D.2000); Land Clearance for Redevelopment Auth. of Kansas City, Mo. v. Kansas Univ. Endowment Ass’n, 831 S.W.2d 649, 650 (Mo.App. W.D.1992). The rationale for this rule is expressed in State ex rel. Southern Real Estate & Financial Co. v. City of St. Louis, 234 Mo.App. 209, 115 S.W.2d 513, 515 (1938):

[W]here it is the judgment creditor himself who is dissatisfied, and he appeals upon the ground of what he conceives to be the inadequacy of the judgment which was rendered in his favor, then if the judgment is affirmed he is held not to be entitled to interest on the judgment pending the disposition of the appeal, since it was by his own act that the proceeding was delayed and prolonged until such time as judicial sanction of the correctness of the judgment finally culminated in its affirmance by the appellate court.

In Investors Title Co. v. Chicago Title Insurance Co., Investors sued Chicago Title Insurance and Chicago Title Trust for breach of contract. 18 S.W.3d at 71. The case was tried without a jury, and the court entered judgment for plaintiff on its claim and for Chicago Title Insurance on its counterclaim. Id. The judgment was amended, and the defendants filed their notice of appeal. Id. Plaintiff filed its cross-appeal. Id. The amended judgment of the trial court was affirmed on appeal. Id. The trial court then declined to award post judgment interest from the date plaintiff filed its notice of appeal through the date on which the appellate court affirmed the original amended judgment. Id. at 71-72. Plaintiff appealed claiming that the trial court erred in not granting it post judgment interest for the time the case was on appeal because defendants first appealed the amended judgment and plaintiff only then filed its cross-appeal. Id. at 73-74. Plaintiff asserted that defendants’ action in appealing and posting a supersedes bond caused the delay in the payment of the judgment, not its filing of a cross-appeal. Id. In rejecting plaintiff’s claim on appeal, the Eastern District stated, “Plaintiff wrongly focuses on Defendants’ acts, rather than on its own acts in delaying potential payment of the judgment. Regardless of Defendants’ own appeal, Defendants could not have satisfied the judgment against them so long as Plaintiff’s appeal was pending.” Id. at 74.

Investors is on point with this case. Like Investors, Mr. Gomez filed his cross-appeal dissatisfied with the adequacy of the judgment after CDI filed its notice of appeal. And like the plaintiff in Investors, Mr. Gomez’s cross-appeal was unsuccessful. For the reasons stated in Investors, Mr. Gomez is held not to be entitled to interest on the judgment pending the disposition of his appeal as determined by the trial court. Point one is denied.

Point Two

Mr. Gomez states as point two that the trial court erred in entering its judgment acknowledging full satisfaction of the remitted $2.67 million judgment plus interest from January 13, 2004, because his cross-appeal contesting the reduction of the jury’s award was based on CDI’s having committed fraud by not timely disclosing during discovery that insurance coverage included an additional two million dollar umbrella policy, thereby providing three million dollars in insurance coverage and not the one million dollar coverage previously stated in response to discovery. He did not learn of the additional two million dollars coverage until the remitted sum was accepted and judgment had been entered and CDI disclosed the additional coverage when it posted its supersedes bond following its filing of the notice of appeal. Mr. Gomez effectively asserts that CDI’s failure to timely inform him of the total insurance coverage until after the case had concluded before the trial court and CDI’s notice of appeal had been filed warrants the imposition of sanctions. Thus, the remedy Mr. Gomez seeks for CDI’s failure to timely disclose the total insurance coverage is not that the remitted judgment be set aside to permit him a new trial but is sanctions in the form of an amended judgment that grants interest at the statutory rate from the date the amended judgment was entered, May 31, 2001, until the judgment is paid.

Mr. Gomez’s cross-appeal before the Supreme Court following the trial court’s entry of the remitted judgment raised the issue that the trial court erred in granting CDI’s motion for remittitur “because CDI committed fraud and deceived him and the trial court by not disclosing, in its response to interrogatories, an additional $2 million in insurance coverage until after the trial court entered its judgment.” Gomez, 126 S.W.3d at 376. The Court noted that Mr. Gomez cited no evidence in the record that he was prejudiced by CDI’s late disclosure of the actual insurance coverage. Id. Prejudice might have occurred, the Court noted, if inadequate disclosure of the insurance coverage affected a party’s willingness to settle. Id. Prejudice might, therefore, have occurred to Mr. Gomez if CDI’s failure to timely disclose the correct insurance coverage affected his decision to accept the remitted judgment. No evidence regarding prejudice to Mr. Gomez appears in the record before this court either. Presenting evidence of prejudice resulting from CDI’s untimely disclosure of the actual insurance coverage may have necessitated asking the appellate court before which the appeal from the judgment was presented to remand the case to the trial court to conduct a hearing to elicit evidence of prejudice resulting to Mr. Gomez and for the trial court’s determination of whether Mr. Gomez was prejudiced. Because of the absence of evidence demonstrating prejudice, the record presents nothing for review. The point is denied.

Finally, CDI filed motions to dismiss Mr. Gomez’s brief and appendix and his reply brief claiming that each attempts to raise arguments, assertions, inferences, matters, and references to the allegations raised for the first time on appeal that CDI committed fraud and deceived him by not disclosing additional insurance coverage in response to interrogatories until after the trial court granted remittitur of the jury’s verdict and that the failure to timely disclose caused Mr. Gomez to challenge the inadequacy of the remitted judgment on appeal. CDI’s motions are moot and are, therefore, denied.

The judgment of the trial court is affirmed.

HARDWICK, P.J., and NEWTON, J., concur.