author: Justice COOPER.

text:
    RODNEY P., Appellant v. STACY B., Appellee.
    No. 2003-SC-0882-DG.
    Supreme Court of Kentucky.
    Aug. 25, 2005.

      Donna M. Dant, Calhoun, KY, Counsel for Appellant.
    Joseph R. Flaherty, Flaherty & Flaherty, Owensboro, KY, Counsel for Appellee.
   Opinion of the Court by

Justice COOPER.

The issue in this case is one of first impression in this jurisdiction: What effect does the commitment of a minor child of divorced parents to the custody of a state agency have on the child support obligation of the noncustodial parent, particularly when the agency is mandated by statute to collect child support from the child’s parents? As is usually and unfortunately the case with respect to matters of custody and support of older children, the child in this case reached the age of majority before the issue could reach this Court for review, thus possibly mooting any future effect of our decision. However, because the issue is one of first impression and is “capable of repetition, yet evading review,” we will address its merits. Lexington Herald-Leader Co., Inc. v. Meigs, 660 S.W.2d 658, 661 (Ky.1983) (quoting Neb. Press Ass’n v. Stuart, 427 U.S. 539, 546, 96 S.Ct. 2791, 2797, 49 L.Ed.2d 683 (1976)); see also Fletcher v. Commonwealth, ex rel. Stmnbo, 163 S.W.3d 852, 859 (Ky.2005); Woods v. Commonwealth, 142 S.W.3d 24, 31 (Ky.2004); Commonwealth v. Hughes, 873 S.W.2d 828, 830 (Ky.1994). In order to protect the confidentiality of the juvenile court proceedings and identity of the child, we will identify the parties only by their first names and last initials and the children only by their initials.

Rodney P. and Stacy B. were married on June 6,1985, and are the parents of two children, H. and A. Rodney and Stacy were divorced by a decree entered on June 6, 1988, which awarded Stacy custody of both children and ordered Rodney to pay child support. The present action was initiated by Stacy’s motion, inter alia, for an increase in child support premised upon Rodney’s substantially increased income. At the time the motion was heard, Stacy had remarried and had been voluntarily unemployed for the preceding ten years. Rodney asserted that the motion for an increase should be denied because Stacy no longer had custody of H., then age fifteen, who had been committed to the custody of the Department of Juvenile Justice (“Department”) as a public offender. At the hearing before the Domestic Relations Commissioner on March 20, 2001, Stacy admitted that she could not regain custody of H. any sooner than November 2001. In fact, KRS 635.060(3) provides that “[t]he commitment or placement shall be until the age of eighteen (18), subject to KRS 635.070 and to the power of the court to terminate the order and discharge the child prior thereto.... ” In other words, the exact duration of the commitment was unknown. Stacy admitted that H. had already been elevated to a higher level of treatment because of H.’s misconduct during commitment. Stacy did not testify to any expenditures that she had made on H.’s behalf during the commitment, and she did not identify any expenses related to H. that could not be avoided during H.’s extended absence.

The Commissioner calculated Rodney’s new child support obligation as if H. were still in Stacy’s custody and residing in her household. He applied the guidelines figure, KRS 403.212(7), for the support of two children calculated on the basis of Rodney’s present gross income, id. (2)(b), and Stacy’s imputed income, id. (2)(d), less the cost of health insurance for the children, id. (2)(g)l, on the basis of which he recommended an increase in Rodney’s child support obligation for H. and A. from $98.00 per week to $153.68 per week. Using the same formula, Rodney would have been required to pay $104.40 per week for the support of only A., or $74.95 under a “split custody” arrangement if Stacy had custody of A. and he had custody of H. KRS 403.212(6). The trial court overruled Rodney’s exceptions to the report and increased his child support obligation in accordance with the Commissioner’s recommendation. The Court of Appeals affirmed. We now reverse and hold that if Rodney is required to pay child support to the Department for the support of H., his child support obligation to Stacy for the support of A. should be calculated as if he had custody of H., ie., split custody; but if he is not required to make payments to a state agency for the support of H., his child support obligation to Stacy should be calculated on the basis of her custody of only A. until and unless the Department or the juvenile court has restored H. to Stacy’s custody or Stacy proves that she is substantially contributing to the support of H.

KRS 403.213(1) provides that a motion to modify child support should be granted “only upon a showing of a material change in circumstances that is substantial and continuing.” Rodney does not dispute that his increased income, if considered in isolation, would satisfy that requirement. KRS 403.213(2). However, he contends that the change of custody of H. from Stacy to the Department is also a material change of circumstances offsetting the factor of his increased income, ie., the increased income is offset by Stacy’s decreased need for child support. He also notes that he is exposed to a potential double jeopardy if the Department brings an action against him for H.’s support.

KRS 403.211(1) provides that “[a]n action to establish or enforce child support may be initiated by the parent, custodian, or agency substantially contributing to the support of the child.” (Emphasis added.) KRS 610.170 provides:

If it appears ... that the parent or other person exercising custodial control or supervision of any child, or the estate of any child ... who has been ... placed in a foster home or boarding home, or in the care of a public or private facility or agency, or the Department of Juvenile Justice or the cabinet, is able to contribute to the support of the child, the court shall enter an order requiring the parent or estate to pay a reasonable sum for the support, maintenance, or education of the child. The order shall direct that the money be paid to the circuit clerk to be disbursed as ordered by the court or be paid to the person, facility, agency, or the Department of Juvenile Justice or cabinet to which the child was committed or probated ....

(Emphasis added.)

Thus, if a child being supported by the state has a parent who is able to contribute to that support, ie., Rodney, since Stacy is unemployed, the agency providing the support may initiate an action for support and “the court shall” order it. The logic is obvious. Parents have a legal obligation to support their own children until emancipation, completion of high school, or completion of the high school year during which the child reaches the age of nineteen, whichever occurs last. KRS 403.213(3). Obviously, Rodney should not be required to pay support for the same child to both Stacy and the Department. If he were required to pay support to the Department, that consequence would be conceptually the same as if H. were in his custody. In that event, the trial court should calculate his child support obligation to Stacy pursuant to KRS 403.212(6) (split custody).

Nor should one noncustodial parent be required to pay child support to another noncustodial parent, absent some evidence that the other noncustodial parent is meeting some obligation to support the child. Cf. Goff v. Goff, 323 S.W.2d 209, 210 (Ky. 1959) (holding that order changing custody terminates obligation to pay child support); Adkins v. Adkins, 574 S.W.2d 898, 899-900 (Ky.App.1978) (holding that awarding husband custody for three months each summer was sufficient change of condition to warrant reduction in child support). Adkins has been properly criticized for remanding the case for a reduction without a hearing.

The primary custodian continues to have certain fixed expenses that cannot be avoided during the other parent’s summer custody period. For example, a primary custodian cannot be expected to move from a three-bedroom home to a one-bedroom home during the summer months. If the prior child support award shifted income to permit the custodial parent’s occupation of such a home, a flat twenty-five per cent reduction undermines the intent of the original award. An evidentiary hearing would have permitted the custodial parent to establish those expenses that were fixed and could not be avoided. Adkins contains a warning for custodial parents faced with motions for substantial custody changes. To prevent the change in custody from affecting support rights, the custodial parent may need to raise the support issue at the trial court level.

Louise E. Graham & James E. Keller, 16 Ky, Prac. Domestic Relations Law § 24.32 (2003). Here, Stacy did not testify to any expenditures on H.’s behalf or any fixed expenses that could not be avoided during H.’s absence. Had she done so, the trial court could have considered those facts in computing the amount of child support under KRS 403.211(3)(g) (“[a]ny similar factor of an extraordinary nature specifically identified by the court which would make application of the guidelines inappropriate”).

The Court of Appeals’ reliance on Gar-ver v. Garver, 981 P.2d 471 (Wyo.1999), is misplaced. The obligor father in Garver moved for termination of his child support obligation, arguing that his juvenile son’s conviction “as an adult” of a felony and resulting incarceration “emancipated” the son and relieved the father of any further obligation for child support. Agreeing that the transfer of the son’s custody to an adult detention facility amounted to a change in circumstances warranting modification of child support, id. at 472, the Supreme Court of Wyoming nevertheless held that the conviction and incarceration did not effect an emancipation. Id. at 474. Apparently, no claim was made that the noncustodial parent should be relieved of his child support obligation because the former custodial parent no longer had custody of the child. Interestingly, the trial court had ordered that the support payments be “redirected to the applicable detention facility which has the responsibility to care for [the son] during such incarceration.” The appellate court held that the trial court was without jurisdiction to enter that order. Id. at 473. Other than Gar-ver, there are few cases that even come close to addressing this issue. We examine them primarily for purpose of comparison to the facts of this case.

In Van Winkle v. Van Winkle, 107 Ill. App.3d 73, 62 Ill.Dec. 831, 437 N.E.2d 358 (1982), the obligor father filed a motion to terminate his child support obligation because his minor son had been adjudicated delinquent and his custody had been transferred to the Illinois Department of Corrections. The Department of Corrections did not charge parents for the support of juveniles placed in its custody. Id. at 360. The trial court denied any relief. The Appellate Court of Illinois held that the transfer of custody was a substantial change of circumstances warranting modification, though not necessarily termination, of child support. Id. Unable to determine whether the trial court had considered at least a reduction of the father’s child support obligation, it remanded the case for such a determination. Id. at 361.

In Marriage of Bordner, 220 Mont. 339, 715 P.2d 436 (1986), the child had, with the custodial parent’s (mother’s) consent, lived for awhile with her father and then for eighteen months in a half-way house and a group home until her eighteenth birthday. Approximately seven months before her eighteenth birthday, temporary legal custody of the child was transferred to the Department of Public Welfare. The father never made a motion to modify his child support obligation. Instead, in response to the mother’s motion for arrearages, he raised the child’s “emancipation” as a defense. The Supreme Court of Montana held (1) that the child was not emancipated because the mother continued to provide her with necessities, a periodic place to stay, and transportation, id. at 438-39; and (2) that accrued child support obligations cannot be retroactively modified. Id. at 439.

Because Laura’s move was intended to be permanent and was done with La-nor’s consent, a motion for modification may have been proper at that time. But once David’s payments became due under the decree of dissolution, the law puts the burden upon him to make a positive act to modify his support obligation.

Id.

In Conley v. Conley, 234 A.D.2d 910, 651 N.Y.S.2d 802 (N.Y.App.Div.1996), the child was adjudicated delinquent and placed with the Division for Youth in a nonsecure residential facility for a period of eighteen months. However:

Although petitioner has temporarily lost custody of the child, she has not abdicated her parental role or responsibilities. Petitioner presented evidence that the goal of the placement with the Division for Youth is to reunite the child with his family and to integrate him back into society. Visitation between the child and his family is encouraged and, at the time of the hearing, the child was spending some weekends at home with petitioner. She is responsible for his transportation to and from the facility for visits and for all of his expenses during the visits. She also makes additional trips to the facility to visit the child and take him out to lunch or shopping. She provides him with spending money and various personal items, including a winter jacket. Petitioner continues to bear costs associated with the care of the child despite her temporary loss of custody and respondent should contribute to those costs.

Id. at 803. Under those circumstances, the court also held that the obligor father could not avoid his responsibility to pay child support based on the “mere possibility” that the Division of Youth might seek reimbursement for costs incurred as a result of the child’s placement. Id.

In the case sub judice, Stacy presented no evidence to show that she continued to exercise custodial-like responsibilities after H.’s custody was transferred to the Department, or that she expended any monies or incurred any monetary obligations on behalf of H., or that she continued to incur expenses related to H. that could not be avoided during H.’s extended absence. Thus, she identified no “factor of an extraordinary nature ... which would make application of the guidelines inappropriate.” KRS 403.211(3)(g).

On the basis of the evidence presented in this case, we hold that the trial court erred in increasing Rodney’s child support obligation to a sum in excess of $104.40 (the guidelines figure for the support of one child). If the Department of Juvenile Justice has since obtained child support from Rodney pursuant to KRS 610.170, his child support obligation to Stacy should have been recalculated in accordance with KRS 403.212(6). Accordingly, we reverse the Court of Appeals and remand this case to the Daviess Circuit Court to receive any additional evidence and take any further legally authorized action deemed appropriate and in accordance with the content of this opinion.

All concur.

      . Stacy asserted at the Domestic Relations Commissioner’s hearing that H. had been committed because she was “out of control,” a status offense. KRS 630.020(2). However, she also admitted that the juvenile court had adjudicated H. guilty of theft. Status offenders may be committed to the Cabinet for Families and Children, KRS 630.120(5), KRS 600.020(3); public offenders are committed to the custody of the Department of Juvenile Justice, KRS 635.060(3).

      . Rodney has not filed a motion to reduce child support, so the effect would be to deny Stacy’s motion for increased child support.


source: Caselaw Access Project

author: Justice COOPER. Chief Justice LAMBERT.

license: Public Domain

text:
    GRAND AERIE FRATERNAL ORDER OF EAGLES, Appellant v. Marlene CARNEYHAN, Administrator of the Estate of Jamie Lee Carneyhan; William E. Carneyhan, Individually; and Marlene Carneyhan, Individually, Appellees.
    No. 2003-SC-0169-DG.
    Supreme Court of Kentucky.
    Aug. 25, 2005.

      Mark A. Osbourn, Carol Schureck Pet-itt, Schiller, Osbourn & Barnes, Louisville, KY, Counsel for Appellant.
    David F. Broderick, Broderick & Thornton, Bowling Green, KY, Counsel for Ap-pellees.
   Opinion of the Court by

Justice COOPER.

Appellant, Grand Aerie Fraternal Order of Eagles (“the Grand Aerie”), is a national fraternal organization, with local chapters chartered throughout the United States and Canada. One such chapter, Canton Aerie 4313, was located in Trigg County, Kentucky, a dry territory in which the sale of alcohol is prohibited. KRS 242.230. On the night of April 3, 1994, Jamie Lee Car-neyhan, nineteen years of age, consumed alcoholic beverages while attending a social function on premises leased by Aerie 4313. Later that night, she was killed in a single-vehicle collision in Trigg County. The administrator and her parents individually (“the Carneyhans”) filed suit against the Grand Aerie, Aerie 4313, and Michael Thomas, a member of Aerie 4313 who allegedly served alcohol to the decedent.

The Trigg Circuit Court granted partial summary judgment in favor of the Grand Aerie, finding that (1) the Grand Aerie’s constitution created no contractual obligation for it to directly supervise, control, or regulate its local chapters; and (2) no principal-agent relationship existed between the Grand Aerie and its local chapters as would impose vicarious liability upon the Grand Aerie for Aerie 4313’s negligence under a theory of respondeat superior. After the Grand Aerie’s dismissal from the action became final, the Car-neyhans appealed the partial summary judgment. The Court of Appeals agreed with the trial court that there was no agency relationship between the Grand Aerie and its local chapters, thus concluding that, as a matter of law, the Grand Aerie could not be held vicariously liable for the negligence of Aerie 4313. The Carneyhans do not contest that decision of the Court of Appeals. The Court of Appeals also held, however, that the Grand Aerie created for itself a duty to supervise its local chapters’ alcohol sales. The Court of Appeals thus concluded that the Grand Aerie could be liable to the Carneyhans for its own negligent supervision, reversed the partial summary judgment, and remanded the case for further proceedings against the Grand Aerie. We granted discretionary review and now reverse the Court of Appeals and reinstate the summary judgment of the Trigg Circuit Court.

I. SUFFICIENCY OF THE PLEADINGS.

At oral argument, the Grand Aerie’s attorney asserted, for the first time, a contention that the Carneyhans had not properly pled a negligent supervision claim against the Grand Aerie. The Carney-hans’ verified complaint filed in the Trigg Circuit Court alleged inter alia:

VII. On April 3,1994 these Defendants [the Grand Aerie, Canton Aerie 4313, and Thomas], were acting as an unlicensed vendor and trafficking in alcoholic beverages in a dry county on the property describe[d] above. Defendants, in a dry territory, unlawfully sold, bartered, loaned, gave procured or furnished another or kept or transported for sale, bartered or loaned, directly or indirectly, alcoholic beverages at the location known as “The Eagles”.
VIII. Defendants served alcoholic beverages to Plaintiffs’ decedent, Jamie Lee Carneyhan, who was under the legal drinking age of twenty-one (21) years old in violation of KRS 244.080(1). Defendants continued to serve alcoholic beverages to Plaintiffs’ decedent, Jamie Lee Carneyhan, although a reasonable person under the same or similar circumstances, should have known, that Plaintiffs decedent was already intoxicated at the time of serving.
IX. Upon leaving the premises owned by Defendants on April 3, 1994, Plaintiffs’ decedent, Jamie Lee Carneyhan, then proceeded to operate her 1988 Pontiac Firebird automobile and as a direct and proximate consequence of this over-consumption of alcoholic beverages while at “The Eagles,” Plaintiffs’ decedent’s automobile collided with a utility pole while traveling north on Kentucky 128. Plaintiffs’ decedent, Jamie Lee Carney-han, was killed in the collision.
X. The acts or omissions of the Defendants constitute negligence which was a substantial factor in causing or contributing to cause the wrongful death of Plaintiffs’ decedent, Jamie Lee Carney-han, on April 3,1994.
XI. At all times mentioned herein, the Defendant, Grand Aerie Fraternal Order of Eagles, was directly supervising, controlling and regulating the actions or omissions of the local branch of the Fraternal Order of Eagles, Canton Aerie 4313 that was in existence on April 3, 1994.

Civil Rule (CR) 8.01 requires pleadings to contain “a short and plain statement of the claim showing that the pleader is entitled to relief....” It is not necessary to state a claim with technical precision under this rule, as long as a complaint gives a defendant fair notice and identifies the claim. Cincinnati, Newport & Covington Transp. Co. v. Fischer, 357 S.W.2d 870, 872 (Ky.1962). This principle fully applies to negligent supervision claims:

As for actions based on the direct negligence of the employer, as long as the complaint generally alleges an employer’s negligence, it does not have to individually identify the employees upon whose negligence the employer’s liability is based. Otherwise, the plaintiff must allege that the defendant knew or had reason to know of the employee’s harmful propensities; that the employee injured the plaintiff; and that the hiring, supervision, or retention of such an employee proximately caused the plaintiffs injuries.

27 Am.Jur.2d Employment Relationship § 401 (2004).

Applying these principles to the case sub judice, we conclude that the Car-neyhans’ complaint sufficiently alleged a theory of negligent supervision. The complaint alleged that the Grand Aerie had reason to know of Aerie 4313’s harmful propensities; indeed, Paragraphs VII and VIII of the complaint alleged that the Grand Aerie participated with Aerie 4313 in the ostensibly unlawful and negligent activities. Paragraph IX, and subsequent paragraphs alleging damages, stated that Aerie 4313 injured the Carneyhans by causing the decedent’s over-consumption of alcohol and, proximately, her collision and death. Finally, the allegations in Paragraphs VII and VIII discussed above, when added to Paragraph XI’s allegation that the Grand Aerie supervised Aerie 4313’s actions and Paragraph X’s general allegations of causation and negligence, were sufficient to state a claim that the Grand Aerie’s supervision and retention of Aerie 4313 proximately caused the Carney-hans’ injuries. “All that our procedure presently requires is that the Complaint set out ‘facts or conclusions ... sufficiently to identify the basis of the claim.’ ” Natural Res. and Env’t. Prot. Cabinet v. Williams, 768 S.W.2d 47, 51 (Ky.1989) (quoting Clay, Kentucky Practice, 3d ed., Rule 8.01, at 133-34). The Carneyhans’ complaint was sufficient, under CR 8.01 and our decisions applying it, to allege a negligent supervision theory.

II. DUTY TO SUPERVISE.

Several former members of Aerie 4313 testified in their depositions that the Grand Aerie chartered Aerie 4313 in 1991. As is the case with each of the Grand Aerie’s local chapters, Aerie 4313 operated with a high degree of autonomy. The Grand Aerie, in its constitution, disclaimed responsibility for the acts and omissions of its local chapters and, in its by-laws, disclaimed supervision and control of its local chapters. While the Grand Aerie required payment of a “per capita tax,” and gave general guidelines about the organization of chapters and the qualifications of members, local chapters could otherwise charge dues, operate, and admit members, as they saw fit. The former members of Aerie 4313 testified that this autonomy included operation of its “social room.” Aerie 4313 held social events at the discretion of its members, and the proceeds from these events remained with the local chapter. The Grand Aerie owned no interest in the property on which these events were held. Three members of Aerie 4313 owned the property and leased it to the local chapter.

It is undisputed that Aerie 4313 unlawfully sold alcoholic beverages in Trigg County at least until local law enforcement officials raided the chapter in October 1992. Thereafter and on April 3, 1994, the chapter, according to its former members, operated on a “bring your own bottle” basis, selling only ice and materials for mixed beverages and charging a fee for bringing alcohol onto the premises. However, several witnesses who were present with the decedent on the night in question testified that they purchased alcohol from members or employees of Aerie 4313. As this case is on appeal from a grant of summary judgment to the Grand Aerie, we view this disputed fact in a light most favorable to the Carneyhans. Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 480 (Ky.1991).

The Carneyhans’ theory of liability is that the Grand Aerie’s failure to exercise reasonable care in supervising Aerie 4313 allowed the local chapter to unlawfully sell alcohol in a dry county, to unlawfully serve alcohol to the underage decedent, and to negligently serve alcohol to the already-intoxicated decedent. To establish that the Grand Aerie had a legal duty to exercise reasonable care in supervising Aerie 4313’s alcohol-related activities, the Car-neyhans rely upon our precedent regarding a “universal duty of care,” and upon provisions of the Grand Aerie’s constitution and statutes, as well as materials distributed by the Grand Aerie to its local chapters. We will first address the Grand Aerie’s constitution, statutes, and materials distributed to its local chapters, as they present a separate question of whether the Grand Aerie voluntarily assumed a duty to supervise its local chapters.

A. Assumption of Duty.

Among the resources given by the Grand Aerie to each of its local chapters is a fifty-three page officers’ handbook containing numerous and varied guidelines to aid in the efficient operation of a local chapter. One of those fifty-three pages discusses the profitable sale of alcoholic beverages. The page includes four charts, each detailing the amount of revenue that can be garnered from a single bottle of alcohol depending upon variances in the size of the glass used and the price per glass. The last paragraph of the page summarizes the purpose for its inclusion in the handbook:

REMEMBER ... PROFIT is the last portion of the bottle you pour. Be sure you receive the required number of drinks from each bottle, with money in the register. The size of your shot glass determines the number of drinks served from the bottle. The Steward must realize that every drink not paid for, or over-pouring, reduces the NET PROFIT — the justification of employment.

The Court of Appeals seized upon the contents of this page to conclude that the Grand Aerie used the officers’ handbook to encourage or induce the sale or service of alcoholic beverages by Aerie 4313. Because of this alleged encouragement or inducement, the Court of Appeals held that the Grand Aerie had assumed for itself a duty to supervise Aerie 4313’s alcohol-related activities. We disagree.

The Grand Aerie distributes the same handbook to the officers of each of its local chapters, irrespective of whether the local chapter actually serves alcohol or not. The guidelines contained throughout the fifty-three page handbook amply demonstrate the handbook’s purpose: to provide advice regarding the efficient operation of a local chapter. The page discussed above is the only provision in the entire handbook, or in the other materials distributed by the Grand Aerie to its local chapters, that discusses the sale or service of alcohol. The page, itself, contains no language of encouragement or inducement. Rather than advising local chapters to sell or serve alcohol, the page merely provides, to those local chapters that have already chosen to sell alcohol, information about how to engage in this practice profitably. We decline to hold that advice on how to operate at a profit is an inappropriate subject matter for inclusion in a manual providing guidelines for the efficient operation of an organization. Finally, because the Grand Aerie receives no portion of the revenues stemming from its local chapters’ social events, it likely has little or no interest in whether its local chapters actually engage in the sale or service of alcohol. We therefore hold that the Grand Aerie’s inclusion of this page in the handbook given to its local chapters did not create a duty to supervise Aerie 4313’s alcohol-related activities. See Foster v. Purdue Univ. Chapter, The Beta Mu of Beta Theta Pi, 567 N.E.2d 865, 872 (Ind.Ct.App.1991) (national fraternity’s communication with local chapters warning against alcohol abuse did not constitute a gratuitous assumption of duty to control local members’ alcohol consumption).

The Carneyhans also rely upon provisions of the Grand Aerie’s constitution and statutes in support of their theory that the Grand Aerie voluntarily assumed a duty. In particular, the Carneyhans cite Section 9.7 of the Grand Aerie’s statutes, which states:

Except as otherwise provided by the Constitution and Statutes of the Order and not in conflict therewith, the Board of Grand Trustees shall have the power and be charged with the following additional duties:
(e) To examine into the condition of all Local Aeries with a -view of determining whether they have complied with the Laws of the Order and are worthy of their Charter.

(Emphasis added.) To give content to the meaning of subsection (e), the Carneyhans point to Section 39.2 of the same statutes, which provides:

The Charter of a Local, State or Provincial Aerie may be suspended or revoked for any one of the following causes:
(c) Upon good cause shown that the Local Aerie has violated local, state, or federal laws, or otherwise engages in conduct which is contrary to the best interests of the Fraternal Order of Eagles.

In other words, the Carneyhans argue that the Grand Aerie assumed for itself a supervisory duty to ensure compliance by its local chapters with federal, state, and local laws. However, this interpretation is based upon an incomplete reading of the Grand Aerie’s statutes. Section 9.7 expressly states in its opening language that it is subject to other provisions of the Grand Aerie’s constitution and statutes. Section 89.10 specifically and directly discusses the issue of the Grand Aerie’s supervision of local chapters:

The operation of a licensed or unlicensed Local Aerie is not subject to Grand Aerie supervision and control, except as provided in Section 39.4.
As to the operation of the social rooms and the conduct of members and guests in such social rooms, the House Rules and By-Laws of the Local Aerie are the exclusive governing authority.

It is well established that a breach of a voluntarily assumed duty can give rise to tort liability. Louisville Cooperage Co. v. Lawrence, 313 Ky. 75, 230 S.W.2d 103, 105 (1950). A threshold inquiry under this doctrine is whether the putative tortfeasor has actually and specifically undertaken to render the services allegedly performed without reasonable care. Good v. Ohio Edison Co., 149 F.3d 413, 420 (6th Cir.1998); In re Temporomandibular Joint [TMJ] Implants Prod. Liab. Litig., 113 F.3d 1484, 1493 (8th Cir.1997) (“The scope of this undertaking defines and limits an actor’s duty....”). Further, “[t]he actor’s knowledge that the undertaking serves to reduce the risk of harm to another or circumstances that would lead a reasonable person to the same conclusion is a prerequisite for an undertaking....” Restatement (Third) of Torts: Liability for Physical Harm § 42 cmt. d (Proposed Final Draft No. 1, 2005). Our cases imposing tort liability for the breach of a voluntarily assumed duty have been consistent with this threshold requirement. See, e.g. Johnson v. Brey, 438 S.W.2d 535, 536 (Ky. 1969) (defendant voluntarily undertook to hold back a branch as plaintiff passed by); Louisville Cooperage Co., 230 S.W.2d at 104 (defendant voluntarily undertook to keep wood shavings wet at all times; breach of this agreement caused fire); Estep v. B.F. Saul Real Estate Inv. Trust, 843 S.W.2d 911, 914 (Ky.App.1992) (defendant voluntarily undertook to clear its parking lot and sidewalks of snow).

In the case sub judice, the Grand Aerie’s statute relied upon by the Carney-hans as establishing an undertaking not only fails to mention “the services allegedly performed without reasonable care,” TMJ Implants Prod. Liab. Litig., 113 F.3d at 1493, but it is also subject to Section 89.10, which expressly disclaims a supervisory role for the Grand Aerie and specifically provides for local control over the precise activity in question, i.e., the operation of a local chapter’s social room. Moreover, the limiting language in Section 89.2(c) further weakens the Carneyhans’ assertion of a voluntarily assumed broad supervisory role. Section 39.2(c) provides the Grand Aerie with the authority to revoke a charter “[u]pon good cause shown” of the local chapter’s violation of law. This language suggests that when the Grand Aerie drafted its statutes, it contemplated a passive role, rather than the actively investigative role that the Carneyhans suggest. Compare Morrison v. Kappa Alpha Psi Fraternity, 738 So.2d 1105, 1118 (La. Ct.App.1999) (holding that a national organization had voluntarily assumed a duty to supervise and prevent hazing by its local chapters where it had issued anti-hazing regulations, retained the ability to control the intake and expulsion of members, and established a network of national and regional authorities and alumni advis-ors who regularly audited and supervised local chapters and reported to the national fraternity). The record thus refutes the argument that the Grand Aerie imposed upon itself the sweeping affirmative duty to supervise each of its local chapters’ compliance with local, state, and federal law. Cf. Ky. Laborers Dist. Council Health and Welfare Trust Fund v. Hill & Knowlton, Inc., 24 F.Supp.2d 755, 774 (W.D.Ky.1998) (“Defendants may have made vaguely promissory statements to the general public, but the complaint fails to allege that they assumed a duty to render services of any sort to the [Plaintiffs].”). We hold that the Grand Aerie did not undertake a duty to affirmatively supervise Aerie 4313 to ensure its compliance with the law.

B. Affirmative Duty to Control Another.

Although the Grand Aerie did not voluntarily assume the duty to supervise Aerie 4313, the question remains whether it nevertheless had a duty to oversee the local chapter and, if so, to what extent. The Carneyhans argue that the “universal duty of care,” discussed in Grayson Fraternal Order of Eagles, Aerie No. 3738, Inc. v. Claywell, 736 S.W.2d 328 (Ky.1987), imposes a duty upon the Grand Aerie to exercise reasonable care in supervising its local chapters. The issue of whether the Grand Aerie had such a duty is a question of law. Mullins v. Commonwealth Life Ins. Co., 839 S.W.2d 245, 248 (Ky.1992).

In Grayson, we held that a “dram shop” that served intoxicating liquor to a person actually or apparently under the influence of alcohol could be held liable for harm subsequently caused by the intoxicated person. Id. at 334-35. At the outset of our analysis, we noted “that every person owes a duty to every other person to exercise ordinary care in his activities to prevent foreseeable injury.” Id. at 332. However, this proposition, frequently cited as the “universal duty of care,” is not boundless.

The requirement of “duty to all” is a beginning point for any duty analysis. The examination must be focused so as to determine whether a duty is owed, and consideration must be given to public policy, statutory and common law theories in order to determine whether a duty existed in a particular situation.

Fryman v. Harrison, 896 S.W.2d 908, 909 (Ky.1995). At the outset, we note that the Carneyhans advocate a different theory of liability than that established in Grayson. Where Grayson held that a dram shop had the duty to exercise reasonable care in the conduct of its own activities, the Carney-hans seek to impose a duty upon the Grand Aerie to control the activities of another, i.e., a semi-autonomous local chapter.

As a general rule, an actor whose own conduct has not created a risk of harm has no duty to control the conduct of a third person to prevent him from causing harm to another. E.g., Tarasoff v. Regents of Univ. of Cal., 17 Cal.3d 425, 131 Cal.Rptr. 14, 551 P.2d 334, 343 (1976); Bradley Center, Inc. v. Wessner, 250 Ga. 199, 296 S.E.2d 693, 696 (1982); Mangeris v. Gordon, 94 Nev. 400, 580 P.2d 481, 483 (1978); Gelbman v. Second Nat. Bank of Warren, 9 Ohio St.3d 77, 458 N.E.2d 1262, 1264 (1984); Gulf Reston, Inc. v. Rogers, 215 Va. 155, 207 S.E.2d 841, 844 (1974); Restatement (Third) of Torts: Liability for Physical Harm § 37 cmt. d (Proposed Final Draft No. 1, 2005); Restatement (Second) of Torts § 315 (1965). “This rule derives from the common law’s distinction between misfeasance and nonfeasance, and its reluctance to impose liability for the latter.” Tarasoff, 131 Cal-Rptr. 14, 551 P.2d at 343 n. 5. The reason for this common law distinction is that misfeasance creates a new risk of harm to the plaintiff, whereas nonfeasance does not make the plaintiffs situation any worse, although it fails to benefit him. W. Page Keeton et al., Prosser and Keeton on The Law of Torts § 56, at 373 (5th ed. 1984).

A duty can, however, arise to exercise reasonable care to prevent harm by controlling a third person’s conduct where: “(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or (b) a special relation exists between the actor and the other which gives to the other a right to protection.” Restatement (Second) of Torts § 315 (1965). See also James v. Wilson, 95 S.W.3d 875, 890 (Ky.App.2002); Evans v. Morehead Clinic, 749 S.W.2d 696, 698 (Ky.App.1988); Restatement (Third) of Torts: Liability for Physical Harm § 40, 41 (Proposed Final Draft No. 1, 2005). The Carneyhans do not assert, and there is no evidence in the record to suggest, that the Grand Aerie had a special relationship with the decedent. Accordingly, we confine our discussion to the relationship between the Grand Aerie and Aerie 4313.

Whether a special relationship exists between a national fraternal organization and one of its local chapters, as would give rise to an affirmative duty of supervision and control, is a question of first impression in this state. While the courts of other jurisdictions have addressed the issue of a national fraternal organization’s negligence in supervising a local chapter, most have done so only by analyzing the national organization’s voluntary assumption of a duty to supervise, supra, or the national organization’s relationship with the party who suffered the harm, rather than its relationship with the local chapter. See e.g., Foster, 567 N.E.2d at 872; Garofalo v. Lambda Chi Alpha Fraternity, 616 N.W.2d 647, 654 (Iowa 2000); Prime v. Beta Gamma Chapter of Pi Kappa Alpha, 273 Kan. 828, 47 P.3d 402, 410-411 (2002); Monison, 738 So.2d at 1118-1120; Walker v. Phi Beta Sigma Fraternity (Rho Chapter), 706 So.2d 525, 529-30 (La.Ct.App. 1997). The Carneyhans rely primarily upon a decision of the Court of Appeals of Arizona, which concluded that a special relationship exists between these types of entities. See Estate of Hernandez by Hernandez-Wheeler v. Flavio, 186 Ariz. 517, 924 P.2d 1036, 1039 n. 1 (Ct.App.1995) (“[T]he knowing association with the local chapter described above could create the special relationship imposing a duty of care.”), vacated in part on other grounds, Estate of Hernandez by Hernandez-Wheeler v. Flavio, 187 Ariz. 506, 930 P.2d 1309, 1315 (1997). The court reached this conclusion without analysis, however, and thus its decision has little persuasive effect. To determine whether this relationship should be included within the class of special relationships giving rise to an affirmative duty of control, it is necessary to examine the characteristics of the special relationships that have received widespread judicial recognition.

Well-settled special relationships giving rise to a duty to control a third person’s conduct include the relationships between parent and minor child, Restatement (Second) of Torts § 316 (1965), master and servant where the harm is committed with means supplied to the servant by virtue of the employment, id. § 317, owner of land or a chattel and the person using such, id. § 318, one who takes charge of a person with dangerous propensities and the person under control, id. § 319, and mental health professional and patient, Restatement (Third) of Torts: Liability for Physical Harm § 41(b)(4) (Proposed Final Draft No. 1, 2005). The Restatement’s enumeration of special relationships is not exclusive. Kinsey v. Bray, 596 N.E.2d 938, 941 (Ind.Ct.App.1992); Newton v. Tinsley, 970 S.W.2d 490, 493 (Tenn.Ct.App.1997); Gulf Reston, 207 S.E.2d at 844; Restatement (Third) of Torts: Liability for Physical Harm § 41 cmt. i (Proposed Final Draft No. 1, 2005). See also Thompson ex rel. Thompson v. Skate Am., Inc., 261 Va. 121, 540 S.E.2d 123, 129 (2001) (listing several de jure and de facto special relationships). “The key in each [special relationship] is that the defendant’s relationship with either the tortfeasor or the plaintiff places the defendant in the best position to protect against the risk of harm.” Hamilton v. Beretta U.S.A. Corp., 96 N.Y.2d 222, 727 N.Y.S.2d 7, 750 N.E.2d 1055, 1061 (2001).

There are two distinct types of claims based upon a defendant’s special relationship with the person causing the harm. The first type, which can be labeled “negligent failure to warn,” is generally premised upon the defendant’s “enhanced ability to observe the conditions under which [the person causing the harm] might be expected to be especially dangerous .... ” Div. of Corr. v. Neakok, 721 P.2d 1121, 1126 (Alaska 1986). The most common applications of this theory of liability occur within the contexts of the state/parolee relationship, id., and the psychotherapist/patient relationship, Tarasojf, 181 CaLRptr. 14, 551 P.2d at 844 (“[B]y entering into a doctor-patient relationship the therapist becomes sufficiently involved to assume some responsibility for the safety, not only of the patient himself, but also of any third person whom the doctor knows to be threatened by the patient.”) (quoting John G. Fleming & Bruce Maxi-mov, The Patient or His Victim: The Therapist’s Dilemma, 62 Cal. L.Rev. 1025, 1030 (1974)).

The Carneyhans have not claimed that the Grand Aerie negligently failed to warn of Aerie 4313⅛ activities; rather, their claims fall within the second category: “negligent failure to control.” In this type of claim, the considerations articulated in Neakok become less significant. Instead, the alleged tortfeasor’s ability to control the person causing the harm assumes primary importance. See Poncher v. Brackett, 246 Cal.App.2d 769, 55 Cal.Rptr. 59, 61 (1966) (“[T]he absence of such ability is fatal to a claim of legal responsibility.”); Lundgren v. Fultz, 354 N.W.2d 25, 27 (Minn.1984) (“Implicit in the duty to control is the ability to control.”); Grover v. Stechel, 132 N.M. 140, 45 P.3d 80, 84 (Ct. App.2002) (“In order to create a duty based on a special relationship, the relationship must include the right or ability to control another’s conduct.”); Restatement (Third) of Torts: Liability for Physical Harm § 41, Rep. Note cmt. h (Proposed Final Draft No. 1, 2005) (“Some courts have reasoned that because a physician does not have control over the patient, no special relationship exists.... That reasoning is most persuasive when the plaintiff claims defendant’s negligence in failing to control the patient.”).

Moreover, the defendant’s ability to control the person who caused the harm must be real and not fictional and, if exercised, would meaningfully reduce the risk of the harm that actually occurred. Special relationships involving entities in charge of a person with dangerous propensities are illustrative of what is necessary for a special relationship: courts of other jurisdictions have required a substantial degree of control. See Neakok, 721 P.2d at 1126 (parolee remained subject to state control where state could impose special conditions of parole tailored to prevent foreseeable harm and enforce such conditions with threat of parole revocation); Taggart v. State, 118 Wash.2d 195, 822 P.2d 243, 255 (1992) (same conclusion where parole officers could supervise parolees to ensure compliance with terms of parole, and where parole could be revoked upon noncompliance). The Ohio Supreme Court has held that a duty to exercise control lies even within certain psychotherapist/outpatient relationships (usually the context for claims of negligent failure to warn), if the psychotherapist has sufficient ability to control the outpatient or his violent tendencies. Estates of Morgan v. Fairfield Family Counseling Ctr., 77 Ohio St.3d 284, 673 N.E.2d 1311, 1322-24 (1997). Crucial to the court’s reasoning was the existence of “a number of anticipatory measures that could be taken in the outpatient setting to prevent the patient’s violent propensities from coming to fruition.” Id. at 1323. In other words, the psychotherapist possessed means of control that could have prevented the very harm that occurred.

Judicially imposed limitations on special relationships between employers and employees are highly illuminating as to the degree of ability to control sufficient to give rise to a duty of reasonable care in the exercise of control. The Second Restatement provides that a special relationship exists between master and servant only if the servant is using an instrumentality of the employment relationship to cause harm, ie., either the master’s chattel or premises entered by virtue of the employment relationship. Restatement (Second) of Torts § 317 (1965). The proposed Third Restatement puts this requirement more succinctly: “Special relationships giving rise to the duty provided in [§ 41(a) ] include: ... (3) an employer with employees when the employment facilitates the employee’s causing harm to third parties.” Restatement (Third) of Torts: Liability for Physical Harm § 41(b)(3) (Proposed Final Draft No. 1, 2005) (emphasis added). See also Marusa v. Dist. of Columbia, 484 F.2d 828, 831 (D.C.Cir.1973) (city had duty of reasonable care in training and supervision of police officer who caused off-duty injury with service revolver); Ponticas v. K.M.S. Investments, 331 N.W.2d 907, 911 (Minn. 1983) (apartment owner had duty to exercise reasonable care in hiring employee who later used passkey issued by apartment owner to rape tenant); McCrink v. City of New York, 296 N.Y. 99, 71 N.E.2d 419, 422 (1947) (city had duty of reasonable care in retention of police officer who, while off-duty, shot and killed plaintiffs decedent with service revolver); Hutchison ex rel. Hutchison v. Luddy, 560 Pa. 51, 742 A.2d 1052, 1060 (1999) (evidence sufficient to support negligent supervision and retention claim against employer where employee used his status as such to enter minor’s motel room where sexual abuse occurred). Again, the common thread through the above-described employment relationships is that the employer has a real means of control over the employee which, if exercised, would meaningfully reduce the risk of harm. See Weaver v. African Methodist Episcopal Church, Inc., 54 S.W.3d 575, 582-83 (Mo.Ct.App.2001) (“Such limitations serve to restrict the master’s liability for a servant’s purely personal conduct which has no relationship to the servant’s employment and the master’s ability to control the servant’s conduct or prevent harm.”).

Courts that have evaluated claims to less well-settled special relationships have also sought evidence of an ability to control in a manner that would be meaningful in the prevention of the harm that actually occurred. In Lester ex rel. Mavrogenis v. Hall, 126 N.M. 404, 970 P.2d 590 (1998), the plaintiff was injured in an automobile collision and sued the other driver’s doctor, claiming that the doctor’s failure to warn his patient of side effects of a prescribed medication caused the collision. The Supreme Court of New Mexico held that the doctor owed no duty to the plaintiff, reasoning in part that a warning to the patient would likely have little efficacy, absent evidence that the warned patient would have actually responded and refrained from driving. Id. at 597. In Hamilton, the New York Court of Appeals concluded that handgun manufacturers had no duty to control aftermarket purchasers of the manufacturers’ handguns, holding that there was no special relationship between the manufacturers and the wrongdoers or the plaintiffs’ decedents. 727 N.Y.S.2d 7, 750 N.E.2d at 1061-62, 1066. Because the plaintiffs sought to impose liability for the criminal use of handguns that had wound their way through a multilevel distribution chain and often through several purchasers, the court found persuasive the fact that the defendant manufacturers were not in a realistic position to prevent the wrongs. Id. at 1062. Finally, in Graff v. Beard, 858 S.W.2d 918 (Tex.1993), the Supreme Court of Texas was faced with a question of a social host’s liability for harm caused by an intoxicated guest. The court held that the social hosts had no duty to prevent their guest from consuming alcohol or later driving, in part because the hosts had no means of effective control over the guest: “we cannot assume that guests will respond to a host’s attempts, verbal or physical, to prevent the guests from driving.” Id. at 921-22.

There is indeed a current running through the relevant Restatement sections [and the judicial opinions evaluating miscellaneous claims of special relationships] that in order for a special relation to exist between the defendant and the third person, the defendant must have the ability to control the third person’s conduct. Moreover, the cases from which these sections derive indicate that the ability to control is not the fictitious control which provides the basis for vicarious liability. Instead, “control” is “used in a very real sense.”

Estates of Morgan, 673 N.E.2d at 1322-23 (quoting Fowler V. Harper & Posey M. Kime, The Duty to Control the Conduct of Another, 43 Yale L.J. 886, 891 (1934)). A “real” ability to control necessarily includes some sort of leverage, such as the threat of involuntary commitment, Estates of Morgan, 673 N.E.2d at 1324, parole revocation, Neakok, 721 P.2d at 1126, or loss of the livelihood provided by an employment relationship, Hills v. Bridgeview Little League Ass’n, 195 Ill.2d 210, 253 Ill.Dec. 632, 745 N.E.2d 1166, 1185 (2000). Not only must the control be “real,” but it also must be related in some manner to the harm caused by the person under control, such that its exercise would restrict the person’s ability to cause harm. Absent such control, there is no special relationship giving rise to a duty of reasonable care.

Turning to the facts of the ease sub judice, the only method of control that the Grand Aerie maintained over Aerie 4313 was the ability to revoke its charter. The record is clear that the Grand Aerie otherwise disclaimed all supervision and control, and that Aerie 4313 operated in a manner consistent with that disclaimer. Aerie 4313 had wide discretion over whom to admit or expel as members, and over how to conduct chapter business, including social functions. Aerie 4313 conducted all of its business, including social functions, on property owned and leased to it by three of its members (none of whom had any previous or other ties to the Grand Aerie). There is no evidence in the record that Aerie 4313 received any financial benefits from the Grand Aerie, or from being affiliated with the Grand Aerie.

Thus, the revocation of the charter would not have removed any tangible benefit from Aerie 4313. Because the Grand Aerie’s ability to revoke the charter provided no genuine leverage over Aerie 4813, it was not a “real” method of control. Moreover, the revocation of the charter would have produced an outcome completely unrelated to the harm that occurred, since Aerie 4313’s association with the Grand Aerie did not facilitate its ability to hold social functions and serve alcohol on its own leased premises. Cf. Restatement (Third) of Torts: Liability for Physical Harm § 41 cmt. e (Proposed Final Draft No. 1, 2005) (“Employment facilitates harm to others when the employment provides the employee access to physical locations, ... or to instrumentalities, ... or other means by which to cause harm that would otherwise not be available to the employee.”). Such an outcome would not have hindered Aerie 4313 from, upon the inclination of its members, simply renaming itself, e.g., “The Falcons,” and continuing to hold social functions and serve alcohol. In contrast with the dubious efficacy of this means of control, the burden upon the Grand Aerie of affirmatively monitoring its local chapters to determine when to exercise such control would be excessive:

National organizations do not have the ability to monitor the activities of their respective chapters which would justify imposing the duty appellant seeks. The national organization in fraternal groups has only the power to discipline an errant chapter after the fact. It does not possess the resources to monitor the activities of its chapters contemporaneously with the event.

Alumni Ass’n v. Sullivan, 524 Pa. 356, 572 A.2d 1209, 1213 (1990) (holding national fraternity not hable for property damage resulting from fire set by minor student who had been served alcoholic beverages at party hosted by local chapter). Because the Grand Aerie had no actual ability to control Aerie 4313⅛ conduct of its social functions, no special relationship existed giving rise to a duty on the part of the Grand Aerie to exercise reasonable care to control Aerie 4313 so as to prevent the death of the Carneyhans’ decedent.

Accordingly, we reverse the Court of Appeals and reinstate the summary judgment entered by the Trigg Circuit Court in favor of the Grand Aerie.

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

ROACH, J., concurs in result only without separate opinion.

LAMBERT, C.J., dissents by separate opinion, with WINTERSHEIMER, J., joining that dissenting opinion.

Dissenting Opinion by

Chief Justice LAMBERT.

Respectfully, I must dissent from the majority’s opinion.

The majority “deelinefe] to hold that advice on how to operate at a profit is an inappropriate subject matter for inclusion in a manual providing guidelines for the efficient operation of an organization.” However, the officers’ handbook gives specific instructions on how to profit from the sale of alcoholic beverages, notwithstanding numerous other activities that an organization can utilize to turn a profit. Thus, the purpose for including the provision does not appear as benign as the majority indicates. The focus is not merely on how to make a profit, but rather how to profit from the sale of alcohol.

Furthermore, the majority opines that because Grand Aerie received no portion of the revenues from its local chapters’ social events, it likely had little or no interest in whether its local chapters engaged in the sale or service of alcohol. This begs the question of why, then, did Grand Aerie include the alcohol profit provision. Perhaps, it hoped that the sale of alcohol would make the organization more enticing and induce people to join the chapter or would create a reputation for the organization that would induce other locales to form chapters. As the majority notes, Grand Aerie does receive a per capita tax from its local chapters, financed no doubt from the sale of alcohol.

There are many possibilities for Grand Aerie’s inclusion of the alcohol profit provision in its officer’s handbook, which is precisely why this case is inappropriate for summary judgment. Perhaps, a jury would ultimately find that Grand Aerie did not intend to induce or encourage the sale of alcohol at its local chapters. However, a jury should have the opportunity to evaluate any proffered purposes or intentions and make factual findings of whether Grand Aerie encouraged or induced the chapters to sell alcohol and thereby assumed a duty to supervise these activities.

WINTERSHEIMER, J., joins this dissenting opinion.

      1. Section 39.4, which provides for the Grand Aerie’s authority to appoint an agent to control a local chapter whose charter has been suspended, is inapplicable to the facts of this case.

      . Even if the Grand Aerie had undertaken to render services, it does not necessarily follow that the Grand Aerie voluntarily assumed the duty to protect a third person. Before such a voluntarily assumed duty can be found, one of three further preconditions must exist: (1) the failure to exercise reasonable care in performing the undertaking must increase the risk of harm; (2) the duty undertaken must already be owed to the third person by another; or (3) the third person must rely on the undertaking. Ostendorf v. Clark Equip. Co., 122 S.W.3d 530, 538 (Ky.2003); Restatement (Second) of Torts § 324A (1965). See also Restatement (Third) of Torts: Liability for Physical Harm § 43 (Proposed Final Draft No. 1, 2005). Because we hold that the Grand Aerie has not made an undertaking at all, we do not address the existence of any of the three further preconditions.

      . This Court has previously imposed a similar requirement in actions against public officials, holding that public officials have a duty to protect a victim from harm posed by a third party only where a special relationship exists between the public officials and the victim. Commonwealth, Corr. Cabinet v. Vaster, 956 S.W.2d 204, 206 (Ky.1997); Fryman, 896 S.W.2d at 910.

      . While the record supports an inference that the decedent paid a cover charge to and purchased alcoholic beverages from Aerie 4313, there is no evidence in the record to support the notion that the decedent was also a business invitee of the Grand Aerie.

      . Some jurisdictions require even stricter control to find a special relationship in such circumstances. These courts have reasoned that because of the lack of actual physical custody, a state’s relationship with a parolee or probationer lacks the requisite control to be a special relationship. Schmidt v. HTG, Inc., 265 Kan. 372, 961 P.2d 677, 687 (1998); Lamb v. Hopkins, 303 Md. 236, 492 A.2d 1297, 1304 (1985) ("The probationer was essentially free to conduct his day-to-day affairs, and was responsible for reporting certain activities .... [T]he officers were evidently not responsible for supervising the probationer on a daily basis.’’); Small v. McKennan Hosp., 403 N.W.2d 410, 414 (S.D.1987); Fox v. Custis, 236 Va. 69, 372 S.E.2d 373, 376 (1988) ("[Pjarolees ordinarily are essentially free to conduct their day-to-day affairs, adhering to specific rules and reporting certain activities to the parole officer as they occur or are planned.”).


text:
    SHELTER MUTUAL INSURANCE COMPANY, Appellant v. Sallye J. ARNOLD, Appellee.
    No. 2002-SC-0373-DG.
    Supreme Court of Kentucky.
    Aug. 25, 2005.
    William S. Bowman, Michael P. Reilly, MacKenzie <& Peden, P.S.C., Louisville, KY, Counsel for Appellant.
    Robert G. Lohman, Jr., Louisville, KY, Counsel for Appellee.
   Opinion of the Court by

Justice COOPER.

On March 24, 2000, Appellee, Sallye J. Arnold, was injured in a chain-reaction automobile accident involving three vehicles: one driven by Arnold, another driven by Leonard A. Lee, and a third whose driver immediately left the scene of the accident and has never been located or identified. The accident occurred when the unidentified vehicle struck Lee’s vehicle, propelling it into Arnold’s vehicle. There was no direct contact between the unidentified vehicle and Arnold’s vehicle. Arnold brought this action against Appellant, Shelter Mutual Insurance Company, her personal automobile insurer, seeking to recover under the “hit-and-run” provision of the uninsured motorists (UM) coverage of her policy. That provision provides in pertinent part:

(3) Uninsured motor vehicle means:
(b) a hit-and-run motor vehicle,
(4) Hit-and-run motor vehicle means a motor vehicle whose owner or operator cannot be identified and which kits the insured or a motor vehicle the insured is occupying.

(Emphasis added.)

The Jefferson Circuit Court entered summary judgment in favor of Shelter. The Court of Appeals reversed, citing the following dictum in State Farm Automobile Insurance Co. v. Mitchell, 553 S.W.2d 691 (Ky.1977):

The majority rule in this respect holds that where an unknown hit-and-run motorist strikes a third vehicle, which in turn strikes the insured vehicle, there is “actual physical contact” within the meaning of the contractual requirements contained in an uninsured motorist policy-

Id. at 692. In Mitchell, however, the unknown motorist did not strike the vehicle that struck the plaintiffs vehicle; thus, there was no coverage.

[W]here there has been no actual physical contact between the hit-and-run vehicle itself and either the insured vehicle or the intermediate vehicle, the “physical contact” requirement of the hit-and-run clause of the uninsured motorist policy under consideration in this case has not been met.

Id. Presented with the additional fact that was absent in Mitchell, we now adopt the majority rule.

The UM statute, KRS 304.20-020, does not require insurers to provide coverage for hit-and-run accidents. Jett v. Doe, 551 S.W.2d 221, 222-23 (Ky.1977). However, “individual insurers may, by contractual definitions, provide coverages and terms and conditions in addition to those required by statute.” Burton v. Farm Bureau Ins. Co., 116 S.W.3d 475, 478 (Ky. 2003). As noted in Burton, virtually every policy of automobile liability insurance includes a “hit-and-run” vehicle within its definition of an “uninsured motor vehicle;” but virtually every such provision also requires as a condition of coverage either “physical contact” or a “hit” between that vehicle and the insured or the insured vehicle. Id. (We perceive no conceptual distinction between policies that require “physical contact” and those that require a “hit.”) We have consistently held that the “physical contact” condition is a valid requirement. Id. at 477 (citing Masler v. State Farm Mut. Auto. Ins. Co., 894 S.W.2d 633 (Ky.1995); Belcher v. Travelers Indem. Co., 740 S.W.2d 952 (Ky.1987); State Farm Mut. Auto. Ins. Co. v. Mitchell, 553 S.W.2d 691 (Ky.1977); Jett, 551 S.W.2d 221; Huelsman v. Nat’l Emblem Ins. Co., 551 S.W.2d 579 (Ky.App.1977)). Its purpose is to protect the insurer from having to defend against potentially fraudulent claims “arising in cases where the insured’s injuries are the result of his own negligence, without the intervention of any other vehicle, although it is alleged that the accident was caused by an unidentified vehicle which immediately fled the scene.” Jett, 551 S.W.2d at 222; see also Belcher, 740 S.W.2d at 953.

The issue now before us is whether the “hit” requirement in Shelter’s definition of a “hit-and-run motor vehicle” is satisfied when a hit-and-run motorist hits an intermediate vehicle causing it to hit the insured vehicle. We hold that it is. The fact situation here is conceptually the same as if the hit-and-run motorist had first struck a stationary object, such as a road sign, driving the sign forward into Arnold’s vehicle, and causing the sign to interpose itself between her vehicle and that of the tortfeasor, preventing the sort of intimate and literal “physical contact” urged by Shelter. Such a scenario has been held to constitute “physical contact.” Progressive Cas. Ins. Co. v. Mastin, 4 Ohio App.3d 86, 446 N.E.2d 817, 819 (1982). In both that scenario and the situation that occurred in this case, there might have been no technical physical contact between the hit-and-run vehicle and the insured vehicle, but the hit-and-run vehicle initiated the force that ultimately struck the insured vehicle. We hold that an indirect “hit” resulting from a chain-reaction accident initiated by a “hit-and-run” motorist satisfies the “hit” requirement of Shelter’s definition of a “hit-and-run motor vehicle.”

Accord Louthian v. State Farm Mut. Ins. Co., 493 F.2d 240, 242 (4th Cir.1973) (“[T]he rationale for requiring proof of physical contact is satisfied.... The vehicle which made actual contact with [the insured] automobile in this case was a mere involuntary intermediary.”); State Farm Mut. Auto. Ins. Co. v. Spinola, 374 F.2d 873, 874 (5th Cir.1967); Anderson v. State Farm Mut. Auto. Ins. Co., 133 Ariz. 464, 652 P.2d 537, 540 (1982) (“[T]he injuries were the result of physical (albeit indirect) contact with the hit-and-run vehicle. Where force has been exerted from an unidentified vehicle through an intermediate object and where this fact may be verified in such a way to provide safeguards against fraud, ... the physical contact requirement of the policy has been satisfied.”); Inter-Insurance Exch. of Auto. Club of S. Cal. v. Lopez, 238 Cal. App.2d 441, 47 Cal.Rptr. 834, 837 (1966) (“In our view a direct application of force, as by Car X striking Car B and forcing it to hit Car C, qualifies as physical contact within the meaning of the statute.”); State Farm Mut. Auto. Ins. Co. v. Carlson, 130 Ga.App. 27, 202 S.E.2d 213, 215 (1973); Hartford Acc. and Indem. Co. v. LeJeune, 114 Ill.2d 54, 101 Ill.Dec. 876, 499 N.E.2d 464, 466 (1986) (“We decline to amend the policy provision to require that the ‘hit’ be direct.... [B]ecause a ‘hit’ must be proved, our decision does not enhance the ability of an insured to blame an occurrence on a ‘phantom’ motorist.”); Springer v. Gov’t Employees Ins. Co., Inc., 311 So.2d 36, 40 (La.Ct.App.1975) (However, “the impact must be the result of an unbroken chain of events with a clearly definable beginning and ending, occurring in a continuous sequence.”); Lord v. Auto-Owners Ins. Co., 22 Mich.App. 669, 177 N.W.2d 653, 655 (1970) (“It is clear that ever since the time of Sir Isaac Newton man has recognized and lived by certain physical laws of impact and motion.... We find, as did Sir Isaac, that this acceptance of a fundamental property of natural phenomena is the more sensible and consistent view as regards transfer of impact through intermediate objects.”); Allstate Ins. Co. v. Basdeo, 273 A.D.2d 466, 710 N.Y.S.2d 111, 112 (N.Y.App.Div.2000); Spaulding v. State Farm Mut. Ins. Co., 262 S.C. 95, 202 S.E.2d 653, 654 (1974) (physical contact means “causal physical contact”); Hoyle v. Carroll, 646 S.W.2d 161, 163 (Tenn.1983); Latham v. Mountain States Mut. Cas. Co., 482 S.W.2d 655, 657 (Tex.Civ.App.1972); Johnson v. State Farm Mut. Auto. Ins. Co., 70 Wash.2d 587, 424 P.2d 648, 650 (1967) (“Had appellant intended the provision to apply only where there is actual and immediate, as opposed to indirect, physical contact between the hit-and-run vehicle and the vehicle of the insured, it should have so provided in unmistakably clear language.”); Smith v. Gen. Cas. Ins. Co., 239 Wis.2d 646, 619 N.W.2d 882, 887 (2000) (“[W]hen physical contact has been applied by an unidentified motor vehicle to an intermediate motor vehicle and then transmitted through to the insured’s vehicle, and where this physical contact may be confirmed in such a way as to provide safeguards against fraud, this purpose for the physical contact requirement is satisfied.”).

Accordingly, we affirm the Court of Appeals and remand this case to the Jefferson Circuit Court for further proceedings consistent with the content of this opinion.

All concur.


author: LAMBERT, Chief Justice.

text:
    Christie L. WRIGHT, Movant, v. KENTUCKY BAR ASSOCIATION, Respondent.
    No. 2005-SC-000476-KB.
    Supreme Court of Kentucky.
    Aug. 25, 2005.
    Christie Lynn Wright, Belcher, Counsel for Movant.

      Bruce K. Davis, Executive Director, Jay R. Garrett, Deputy Bar Counsel, Kentucky Bar Association, Frankfort, Counsel for Respondent.
   OPINION AND ORDER

LAMBERT, Chief Justice.

Movant, Christie L. Wright, moves the Court to impose the sanction of a Public Reprimand to which the Kentucky Bar Association (KBA) agrees. Movant admits that she is guilty of all violations, and we grant her motion for a Public Reprimand.

Movant was admitted to the practice of law on October 16, 1998, and maintains a bar roster address at P.O. Box 314, Bel-cher, Kentucky 41513. Movant admits that she is guilty of violating the Rules of Professional Conduct as set out in Counts I and II in the KBA Charge 10611.

On February 4, 2003, by order of Kentucky Supreme Court, Movant was suspended for non-compliance with Continuing Legal Education (CLE) requirements. Movant was restored to membership by order of the Kentucky Supreme Court on June 24, 2003.

On April 28, 2003, while under suspension, Movant received a document filed by the Clerk of the Kentucky Court of Appeals entitled “Return of Unauthorized Pleading” in a case in which Movant was representing the Appellee, CertainTeed Corporation. The clerk’s notice stated that CertainTeed’s pleading was being returned to Movant because it was unauthorized as a reply to a response without leave of the Court, and because Movant was not authorized to practice law in Kentucky nor had she filed a motion to proceed pro hac vice.

After receiving this document, Movant appeared in Fayette Circuit Court at a prehearing conference on April 30, 2003. Despite her knowledge that there was a question regarding her license to practice law in the Commonwealth of Kentucky, Movant did not inform the Court that she had been suspended, or that there was a question regarding her membership status with the KBA. Movant stated that she did not receive the notice of her suspension prior to receipt of such notice from the Court of Appeals.

On July 17, 2003, the Fayette Circuit Court entered an order in the case of Linda Ann Hurst, et al. v. Cardinal Industrial Installation, Inc., et al., disqualifying Movant as counsel for CertainTeed, one of the defendants in the case. The court also disqualified the law firm of Hawkins & Parnell, Movant’s employer at the time. The trial court struck all pleadings filed by Movant and Hawkins & Parnell since February 4, 2003, the date Mov-ant violated the suspension order, engaged in the practice of law, filed pleadings on behalf of CertainTeed, and represented CertainTeed in the Fayette Circuit Court.

Movant admits that she violated SCR 3.130-5.5(a) as stated in Count I of the Charge. That rule provides that a lawyer shall not “practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction.” Movant violated SCR 3.130-5.5(a) when she practiced law in the Commonwealth of Kentucky following her suspension from the practice of law on February 4, 2003.

Additionally, Movant admits that she violated SCR 3.130-3.3(a)(2) as set out in Count II of the KBA Charge. That rule provides that a lawyer shall not knowingly “fail to disclose a material fact to the tribunal when disclosure is necessary to avoid a fraud being perpetrated on the tribunal.” Movant violated SCR 3.130 — 3.3(a)(2) when she appeared and represented a client in the Fayette Circuit Court, but failed to inform the Court that she had been suspended from the practice of law, or that there was a question regarding her membership status with the Kentucky Bar Association. Movant apologized to the Fay-ette Circuit Court for her actions and said that she has no prior disciplinary history.

Movant admits that she violated SCR 3.130-5.5(a) as set out in Count I of the Charge; and that she violated SCR 3.130-3.3(a)(2) as set out in Count II of the Charge. Movant admits that she violated these rules and states that she has agreed to imposition of discipline.

IT IS HEREBY ORDERED that

1. Movant, Christie L. Wright, shall be and is hereby Publicly Reprimanded.
2. Movant, Christie L. Wright, shall complete, at her expense, ten hours of remedial ethics education, separate and apart from fulfillment of any other continuing legal education requirements, within two years of the date after filing of this order for Public Reprimand.
3. The remedial ethics education shall be satisfied by Movant’s, Christie L. Wright’s, personal attendance at live legal education or adult educational programs to be approved in advance by the Kentucky Bar Association Office of Bar Counsel and with subject matter related to compliance with the rules of the Court. Movant shall not apply for or obtain continuing legal education credits for her attendance at these programs. Movant shall provide the CLE commission with a release to allow the Office of Bar Counsel to review her confidential CLE records, so it can verify that she has not applied for CLE credit for any such remedial ethics training as she completes it.
4. If Movant, Christie L. Wright, fails to comply with any of the terms of discipline set forth hereinabove, or receives a charge of professional misconduct during the two year period after entry of this order, upon Motion of the Kentucky Bar Association Office of Bar Counsel, the Court may convert the Public Reprimand to a thirty day suspension from the practice of law.
5.In accordance with SCR 3.450, Mov-ant, Christie L. Wright, is directed to pay all costs associated with these disciplinary proceedings in the amount of $63.99 for which execution may issue from this Court upon finality of this Order.

All concur.


author: /s/ Joseph E. Lambert CHIEF JUSTICE

text:
    KENTUCKY BAR ASSOCIATION, Movant v. Robert M. BEAL, Respondent.
    No. 2005-SC-00382-KB.
    Supreme Court of Kentucky.
    Aug. 25, 2005.
   OPINION AND ORDER

The Board of Governors of the Kentucky Bar Association has recommended that the Court find Respondent, Robert M. Beal, whose Bar Roster Address is P.O. Box 70051, Louisville, Kentucky 40270-0051 and whose KBA Member Number is 03887, guilty of violating SCR 3.130-8.1(b) for having knowingly failed to “respond to a lawful demand for information from an admission or disciplinary authority.” The Board has recommended that Beal receive a public reprimand for the violation and that the costs of this action be assessed against him.

The charge against Beal arose out of a bar complaint filed by Charles Green alleging misconduct by Beal in the handling of a worker’s compensation case. On April 8, 2002, Bar Counsel sent a copy of the bar complaint to Beal by certified mail. The bar complaint was accompanied by a cover letter indicating that “failure to respond to the Complaint may subject you to an additional Charge of misconduct pursuant to SCR 3.130-8.1.” Beal received and signed for the bar complaint on April 13, 2004. Beal did not respond to the bar complaint.

A second notification letter was sent to Beal by certified mail on May 7, 2004. The second letter indicated that the KBA had not received a response to the first notice and again indicated that failure to file a response as required by the Rules might subject Beal to an additional charge of misconduct. Again, Beal filed no response.

On November 9, 2004, the Inquiry Commission issued a one-count charge that Beal had violated SCR 3.130-8.1(b) when he failed to file a response to the complaint against him. A reminder letter was sent to Beal on December 21, 2004. Beal has not responded to this charge.

A member of the Board of Governors filed a report with the Board, which then considered the charge against Beal. The Board voted on whether Beal was guilty of violating SCR 3.130-8.1(b), with fifteen members present voting “guilty” and two members present voting “not guilty.” The Board then voted on the appropriate discipline to recommend to this Court, with fifteen members present voting for a public reprimand and two members present abstaining.

The Board then filed a recommendation that Beal be found guilty of the charge in Kentucky Bar Association File No. 11622 for failure to respond to a bar complaint in violation of SCR 3.130 — 8.1(b) and recommending that Beal be publicly reprimanded and that the costs of these proceedings be assessed against him. Beal has not filed a notice for this Court to review the Board’s decision, and we do not elect to review the decision of the Board of Governors pursuant to SCR 3.370(8). Wherefore, the decision of the Board of Governors is hereby adopted pursuant to SCR 3.370(10).

ACCORDINGLY, IT IS HEREBY ORDERED:

(1) Beal is publicly reprimanded for violating SCR 3.130-8.1(b).

(2) In accordance with SCR 3.450, Beal is directed to pay all costs associated with these disciplinary proceedings against him, said sum being $125.92, and for which execution may issue from this Court upon finality of this Opinion and Order.

All concur.

Entered: August 25, 2005.

/s/ Joseph E. Lambert CHIEF JUSTICE

      . The Office of Bar Counsel investigated Charles Green's underlying complaint and found that it had no basis. The Inquiry Corn-mission chose not to charge Beal with regard to Green’s complaint about his worker’s compensation claim.


text:
    David M. ANDREWS, Movant v. KENTUCKY BAR ASSOCIATION, Respondent.
    No. 2005-SC-000510-KB.
    Supreme Court of Kentucky.
    Aug. 25, 2005.

      John R. Leathers, Pittsburgh, PA, Counsel for Movant.
    Bruce K. Davis, Executive Director, Linda A. Gosnell, Chief Bar Counsel, Kentucky Bar Association, Frankfort, KY, Counsel for Respondent.
   OPINION AND ORDER

Movant, David M. Andrews, of Lexington, Kentucky Bar Association (KBA) number 01436, moves this Court for an order suspending his license to practice law in the Commonwealth of Kentucky for sixty-one days, thirty days to serve and thirty-one days probated for two years during which time Movant agrees to accumulate eight hours of remedial ethics education. The KBA has requested that Andrews’ motion under these terms be granted. There exist four KBA files regarding Andrews (no. 6546, no. 7719, no. 7949, and no. 10090). Andrews admits his violation of all charges.

In regard to KBA file no. 6546, Andrews had direct supervision at his firm of Angela Allen, who had been suspended from the practice of law in Kentucky because of non-payment of bar dues. Andrews did not ascertain this information at the time Allen’s employment began on April 29, 1997. On November 19, 1997, the Inquiry Tribunal notified Andrews that Allen’s license had been suspended. However, Andrews permitted Allen to continue to practice law until at least December 5, 1997, despite communication with the Inquiry Tribunal and the Office of Bar Counsel. On December 3, 1997 Andrews wrote a letter to the Office of Bar Counsel relaying his understanding that Allen had been reinstated and that the reinstatement was retroactive to May 2, 1996. Following receipt of the letter on December 5, 1997, the Office of Bar Counsel immediately contacted Andrews by telephone and advised him that Allen had not been reinstated and that she was still not permitted to practice law in Kentucky. This conversation was confirmed by letter on December 8, 1997. However, Andrews still took no steps to curtail Allen’s practice of law. In January of 1998, Andrews issued a check in the amount of $610.00 to the KBA for the restoration of Allen’s membership in the association. The check was drawn from an escrow account in Andrews’s firm in which Allen’s funds had been commingled with client funds. Andrews admits that he violated, as charged by the Inquiry Tribunal, SCR 3.130-5.1, SCR 3.130-5.5(b), SCR 3.470, and SCR 3.130-1.15(a).

In regard to KBA file no. 7719, Andrews knowingly failed to disclose information in response to discovery requests and related inquiries from opposing counsel in the case of Lewis v. Wiseman Homes, civil action no. 94-CI-1995, Fayette Circuit Court. Andrews admits that he violated, as charged by the Inquiry Tribunal, SCR 3.130-3.3, SCR 3.130-3.4, and SCR 3.130-8.3(c).

In regard to KBA file no. 7947, Andrews sent a letter to the KBA Office of Bar Counsel, dated April 15, 1998, regarding KBA file no. 6547. The letter contained false statements regarding matters that were the subject of a pending disciplinary case and enclosed falsified evidence in support of the statements contained in the letter. Andrews admits that he violated, as charged by the Inquiry Tribunal, SCR 3.130-3.3(a), SCR 130-8.1(a), and 3.130-8.3(c).

In regard to KBA file no. 10090, Andrews served as counsel for United Companies Financial Corporation in a real estate transaction in 1991. The property involved was being transferred to Janice Crouch from her mother for the purpose of securing a loan. The property was to be reconveyed after the loan was satisfied. Andrews prepared a quitclaim deed from Janice Crouch back to her mother to be filed upon satisfaction of the mortgage. Andrews retained the original deed. In August of 2001, the mortgage was satisfied and a request was made to Andrews to have the quitclaim deed recorded. However, Andrews had lost the deed. Andrews took no action to resolve the matter by either preparing a new quitclaim deed or pursuing an action to quiet title to the property. Andrews admits that he violated, as charged by the Inquiry Tribunal, SCR 3.130-1.15(a), SCR 3.130-4.4, and SCR 3.130-1.3.

Upon the foregoing charges and facts, it is ordered that Movant’s Motion for suspension be granted. Therefore, it is ORDERED that:

1. Movant, David M. Andrews, is hereby suspended for sixty-one days, thirty days to serve and thirty-one days probated for two years during which time Movant will accumulate eight hours of remedial ethics education.

2. In accordance with SCR 3.450, Andrews is directed to pay all costs associated with these disciplinary proceedings in the amount of $27.27, for which execution may issue from this Court upon finality of this Opinion and Order.

All concur.

ENTERED: August 25, 2005.

/s/ Joseph E. Lambert CHIEF JUSTICE


author: MARY R. RUSSELL, Judge.

text:
    Thera Oleta LAVELOCK, et al., Respondents, v. COOPER TIRE & RUBBER COMPANY, et al., Appellants.
    No. SC 86904.
    Supreme Court of Missouri, En Banc.
    Aug. 2, 2005.
    Rehearing Denied Sept. 20, 2005.
    Juliet A. Cox, Kansas City, MO, for appellants.
    Richard L. Rollings, Jr., Camdenton, Mark E. Parrish, Lee’s Summit, William G. Petrus, Springfield, MO, for respondents.
   MARY R. RUSSELL, Judge.

Cooper Tire & Rubber Co. (“Cooper Tire”) appeals the judgment entered following a settlement agreement it reached with Rodger and Thera Oleta La-velock (“Customers”) in a products liability lawsuit. This Court, on its own motion, transferred this appeal from the court of appeals prior to opinion. Mo. Const, art. V, sec. 10. The judgment, as modified, is affirmed.

I. Background

Cooper Tire and Customers resolved their lawsuit by entering into a settlement agreement after much negotiation. Prior to the settlement, the court had entered a protective order to ensure the confidentiality of certain documents associated with the discovery conducted during the case. One provision of the protective order required Customers to return confidential material to Cooper Tire within 20 days of the termination of the cause, and this provision was also incorporated into the settlement agreement. Customers returned the confidential documents to Cooper Tire following the settlement.

While the case was still awaiting a final order of dismissal, however, Customers filed a motion for a protective order that requested preservation of the confidential documents they had returned to Cooper Tire. Customers’ motion expressed fear that Cooper Tire would “destroy the returned materials to avoid having to produce them in other lawsuits” and alleged that Cooper Tire had an established history of destroying documents. Cooper Tire opposed Customers’ motion and filed its own motion seeking enforcement of the settlement agreement.

The trial court took up both parties’ motions and entered a judgment in June 2004, ordering the parties to perform the terms and conditions of the settlement, including the provision requiring Customers to return all confidential documents, and dismissing the underlying cause with prejudice. The judgment, however, also included provisions not contained in the settlement agreement that required Cooper Tire to “preserve and maintain all original transcripts and all copies” of the confidential material Customers sought to protect. It further ordered Cooper Tire to “create and file with the Court an index of all documents it produced [that] were returned to it pursuant to the protective order.”

Cooper Tire asserts that the trial court erred in imposing the maintenance and indexing requirements because it could not add provisions in the judgment that went beyond the terms of the settlement agreement.

II. Did the trial court err in entering terms not in the settlement agreement?

Where parties reach a settlement agreement, the trial court should enter its judgment based on that agreement according to the terms of the parties’ agreement and should not impose terms not contemplated or negotiated by the parties. See Lugena v. Hanna, 420 S.W.2d 335, 341 (Mo.1967) (“In the absence of words in the operative part of a general release which indicate an intention to limit or restrict its effect, it must be concluded that the instrument was contemplated and intended to be a complete settlement of all matters between the parties to the release.”).

The terms of the settlement agreement did not require Cooper Tire to maintain or index the confidential documents as required by the trial court. Instead, the terms of the settlement agreement required Customers to return the documents to Cooper Tire. Customers did so before seeking protection of the documents. The parties clearly contemplated the handling of the confidential documents post-settlement, but did not include maintenance or indexing requirements as part of their written agreement. The trial court erred in imposing provisions that were not included in the settlement agreement. The portions of the judgment imposing maintenance and indexing requirements as to the confidential documents are stricken and the judgment, as modified, is affirmed pursuant to Rule 84.14.

III. Conclusion

The judgment, as modified, is affirmed.

All concur.

      . Customers filed a motion to dismiss Cooper Tire's appeal as untimely under Rule 81.07. The motion was taken with the case.
      The intent of Rule 81.07 is to provide a six-month grace period "from the date of final judgment” within which an appellate court may permit a late filing of a notice of appeal. To give meaning to the word "final” as used in Rule 81.07, it must mean the period prescribed by Rule 81.05 within which a judgment becomes a final judgment. See Block v. Block, 593 S.W.2d 584, 586-87 (Mo.App. 1979), overruled on other grounds by Dow v. Dow, 732 S.W.2d 906, 908 (Mo. banc 1987); see also Schroff v. Smart, 120 S.W.3d 751, 755 (Mo.App.2003) (appeals are favored in the law and the right to appeal should be liberally construed).
      Customers’ argument is unpersuasive and the motion to dismiss is overruled.

      . The documents include the depositions of expert witnesses and Cooper Tire’s employees.


author: PER CURIAM.

text:
    STATE of Missouri ex rel. COOPER TIRE & RUBBER COMPANY, Relator, v. The Honorable W. Stephen NIXON, Respondent.
    No. SC 86530.
    Supreme Court of Missouri, En Banc.
    Aug. 2, 2005.
    Rehearing Denied Sept. 20, 2005.
    Juliet A. Cox, David S. Ladwig, Jerome T. Wolf, Kansas City, MO, for Appellant.
    Richard L. Rollings, Jr., Camdenton, MO, Anthony M. Totta, Mark E. Parrish, Lee’s Summit, MO, Robert M.N. Palmer, William G. Petrus, Springfield, MO, for Respondent.
   PER CURIAM.

Cooper Tire & Rubber Co. (“Cooper Tire”) seeks a writ of prohibition prohibiting enforcement of a judgment imposing obligations on it to maintain and index certain confidential documents. Cooper Tire also seeks to prohibit enforcement of the order of contempt Respondent imposed on it because it failed to comply with the judgment.

For the reasons expressed in Thera Oleta Lavelock, et al. v. Cooper Tire & Rubber Co., et al., 169 S.W.3d 865, 2005 WL 1804886 (Mo. banc 2005) (No. SC86904, decided Aug. 2, 2005), Cooper Tire’s direct appeal of the judgment, this Court struck from the judgment the maintenance and indexing requirements that Cooper Tire challenges in this writ proceeding. A contempt judgment cannot be based on willful disobedience of an order not lawfully made by the trial court. Mo. Elec. Power Co. v. City of Mountain Grove, 352 Mo. 262, 176 S.W.2d 612, 616 (1944).

The disposition of Cooper Tire’s direct appeal renders this writ proceeding moot as to the obligation to maintain and index the subject documents. Respondent’s issuance of an order of contempt was an abuse of discretion. The preliminary writ is made absolute as modified to prohibit enforcement of the order of contempt.

All concur.

      . The facts of this case are discussed in Thera Oleta Lavelock, et al. v. Cooper Tire & Rubber Co., et al, 169 S.W.3d 865 (Mo. banc 2005) (No. SC86904, decided Aug. 2, 2005).


text:
    Thomas A. LEE, Appellant, v. Deborah A. LEE, Respondent.
    No. ED 84948.
    Missouri Court of Appeals, Eastern District, Division Four.
    July 19, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Aug. 24, 2005.
    Richard B. Blanke, St. Louis, MO, for Appellant.
    Dennis Buchheit, St. Louis, MO, for Respondent.
    Before LAWRENCE E. MOONEY, P.J., LAWRENCE G. CRAHAN, J„ and MARY K. HOFF, J.
   ORDER

PER CURIAM.

Thomas Lee appeals the judgment of the trial court amending the amounts awarded to Deborah Lee for maintenance and child support on remand after this court’s ruling in Lee v. Lee, 117 S.W.3d 693 (Mo.App.2003). We have reviewed the briefs of the parties and the record on appeal and find no error of law. An extended opinion would serve no jurisprudential purpose. 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:
    Minnie HENSON, et al., Appellants, v. DUTCH FLOWERS, L.L.C., Respondent.
    No. WD 64284.
    Missouri Court of Appeals, Western District.
    Aug. 30, 2005.
    Michael R. Fletcher, Kansas City, MO, for appellants.

      John E. Franke, Kansas City, MO, for respondent.
    Before SMART, P.J., HOLLIGER and HARDWICK, J.J.
   ORDER

PER CURIAM.

Minnie Henson and Celestine Broom appeal from a summary judgment denying their wrongful death claim against Dutch Flowers, L.L.C. Upon review of the parties’ briefs and the record, we find summary judgment was proper because there was no evidence to support a material element of the respondeat superior claim of liability against Dutch Flowers. The judgment is affirmed.

We have provided the parties with a memorandum explaining the reasons for our decision because a published opinion would have no precedential value. Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. George J. HUFFMAN, IV, Appellant.
    No. WD 63240.
    Missouri Court of Appeals, Western District.
    Aug. 30, 2005.
    Craig A. Johnston Columbia, MO, for appellant.
    Deborah Daniels, Asst. Atty. Gen., Jefferson City, MO, for respondent.
    Before JOSEPH M. ELLIS, Presiding Judge, PAUL M. SPINDEN, Judge and VICTOR C. HOWARD, Judge.
   ORDER

PER CURIAM.

George J. Huffman IV appeals his convictions by a jury on two counts of the class C felony of domestic assault in the second degree, § 565.073, RSMo 2000, for which he was sentenced, as a prior offender, to two concurrent seven-year terms of imprisonment in the custody of the Missouri Department of Corrections. No jurisprudential purpose would be served by a formal written opinion. However, a memorandum explaining the reasons for our decision has been provided to the parties.

The convictions are affirmed. Rule 30.25(b).


text:
    Maryna Vasilievna MAY, Respondent, v. Joseph Allen MAY, Appellant.
    No. WD 64756.
    Missouri Court of Appeals, Western District.
    Aug. 30, 2005.

      Joseph Allen May, Jefferson City, MO, pro se.
    James D. Barding, Jefferson City, MO, for respondent.
    Before JOSEPH M. ELLIS, Presiding Judge, PAUL M. SPINDEN, Judge and VICTOR C. HOWARD, Judge.
   ORDER

PER CURIAM.

This is an appeal from a September 24, 2004 judgment of the Circuit Court of Cole County dissolving the marriage of Maryna V. May and Dr. Joseph A. May, DDS, awarding maintenance of limited duration and dividing their marital property. The record contains substantial evidence supporting the trial court’s decision. Because the judgment was not against the weight of the evidence, and because the trial court did not erroneously declare or apply the law or abuse its discretion, no error of law appears. Accordingly, the trial court’s judgment is affirmed. Rule 8k.l6(b).