author: Justice WRIGHT.

text:
    Ex parte Donald COUNTRYMAN.
    No. 05-05-01266-CR.
    Court of Appeals of Texas, Dallas.
    Dec. 13, 2005.

      Steven R. Lafuente, Dallas, for Appellant.
    Louis W. Conradt Jr., Crim. Dist. Atty., and Christian T. Souza, Asst. Crim. Dist. Atty., Kaufman, for State.
    Before Justices WHITTINGTON, WRIGHT, and MAZZANT.
   OPINION

Opinion by

Justice WRIGHT.

Donald Countryman was arrested on November 29, 2004 for unlawful possession of a firearm by a felon. On July 6, 2005, appellant filed an application for writ of habeas corpus seeking dismissal under article 32.01 of the code of criminal procedure because the State had not obtained an indictment by the next term of court. See TexCode Crim. Peoc. Ann. art. 32.01 (Vernon Supp.2005). The State obtained an indictment on July 14, 2005. The trial court conducted a hearing on the application for writ of habeas corpus on July 22, 2005, and denied relief by written order on September 8, 2005. Appellant contends on appeal that the trial court erred in denying relief. We reverse the trial court’s order denying habeas corpus relief and order the indictment dismissed.

Standard of Review

In reviewing the trial court’s decision to grant or deny habeas corpus relief, we view the facts in the light most favorable to the trial court’s ruling. Ex parte Peterson, 117 S.W.3d 804, 819 (Tex.Crim.App.2003) (per curiam). We will uphold the ruling absent an abuse of discretion. Id. We afford almost total deference to the judge’s determination of the historical facts that are supported by the record, especially when the fact findings are based on an evaluation of credibility and demean- or. Id. We afford the same amount of deference to the trial judge’s application of the law to the facts, if the resolution of the ultimate questions turns on an evaluation of credibility and demeanor. Id. If the resolution of the ultimate questions turns on an application of legal standards, we review the determination de novo. Id.

Cognizability of Claim

The State contends that appellant’s issues are not cognizable by application for writ of habeas corpus. The State asserts that appellant is being held on a parole violation warrant and also that the State could obtain a new indictment if the current indictment were dismissed. Therefore, the State argues, even if appellant were granted habeas corpus relief, he would not be entitled to immediate release from confinement. We disagree with the State.

“The writ of habeas corpus is an extraordinary writ.” Ex parte Weise, 55 S.W.3d 617, 619 (Tex.Crim.App.2001); see also Headrick v. State, 988 S.W.2d 226, 228 (Tex.Crim.App.1999). Generally, a pretrial writ of habeas corpus is not appropriate when resolution of the question, even when resolved in favor of the applicant, would not result in immediate release. See Headrick, 988 S.W.2d at 228. But see Ex parte Watkins, 73 S.W.3d 264, 274-75 (Tex.Crim.App.2002) (pretrial habe-as corpus available to address collateral estoppel claim based on double jeopardy even though resolution in favor of applicant would not result in dismissal of charges). In determining whether an issue is cognizable by habeas corpus, we consider a variety of factors, including whether the alleged defect would bring into question the trial court’s power to proceed. Ex parte Weise, 55 S.W.3d at 619.

In this case, if relief were granted, the indictment would be dismissed and appellant would be released from confinement on that charge. See Ex parte Martin, 6 S.W.3d 524, 529 (Tex.Crim.App.1999). Dismissal of the indictment would affect the trial court’s power to proceed in the case. See Ex parte Weise, 55 S.W.3d at 619; Ex parte Seidel, 39 S.W.3d 221, 223 (Tex.Crim.App.2001) (generally district court lacks jurisdiction over case where no indictment or information filed). The fact that appellant may be subject to an administrative parole warrant does not alter the fact that he would be entitled to have the criminal charge dismissed because the State failed to timely obtain an indictment. Appellant is not in custody as a result of prior sentences. See Anderson v. State, 986 S.W.2d 811, 813-14 (Tex.App.-Amarillo 1999, pet. ref'd). He is being detained specifically as a result of the charge of being a felon in possession of a firearm. Therefore, we conclude the parole warrant does not affect the cognizability of appellant’s claim.

Nor does the fact that the State may obtain a new indictment if the present indictment is dismissed alter the cogniza-bility of appellant’s claim. While relief to the accused may only be temporary, upon dismissal of the charges, the accused repossesses certain liberty interests: he is out of jail and off bail until the grand jury presents an indictment. See Ex parte Martin, 6 S.W.3d at 529.

Therefore, we conclude appellant’s article 32.01 claim is cognizable by application for writ of habeas corpus.

Mootness of Claim

The State also asserts that appellant’s claim is moot because the trial court did not conduct a hearing on the application for writ of habeas corpus until after the indictment was returned. In support of its argument, the State relies on State v. Condran, 951 S.W.2d 178 (Tex.App.-Dallas 1997), pet. dism’d, 977 S.W.2d 144 (Tex.Crim.App.1998) (per curiam). We conclude Condran is procedurally distinguishable from the case before us.

In Condran, appellee was charged with sexual assault and aggravated sexual assault. Appellee did not file his application for writ of habeas corpus until after the sexual assault indictment was returned and did not obtain a ruling on his article 32.01 complaint until after the aggravated sexual assault indictment was returned. Id. This Court, relying on Tatum v. State, 505 S.W.2d 548 (Tex.Crim.App.1974), concluded the issue was moot. See id. In Tatum, the court of criminal appeals held that a defendant who waits until after an indictment is returned to raise an article 32.01 speedy trial complaint waives that complaint. See Tatum, 505 S.W.2d at 550. The court reaffirmed that holding in Brooks v. State, 990 S.W.2d 278, 285 (Tex.Crim.App.1999) (defendant waived right to challenge indictment by waiting more than year after indictment returned to file application for writ of habeas corpus).

In this case, appellant filed his application for writ of habeas corpus before the State obtained the indictment. The State then obtained the indictment between the date the application was filed and the date the habeas corpus hearing was held. In 1999, the court of criminal appeals was presented with an article 32.01 issue in a case in the same procedural posture as this case. See Ex parte Martin, 6 S.W.3d at 524. Martin was arrested for forgery in June 1996 and released on bail on July 12, 1996. No indictment was returned by the end of the next term of court. On January 21, 1997, Martin filed an application for writ of habeas corpus, seeking to have the proceedings dismissed under articles 32.01 and 28.061. The grand jury returned an indictment on February 5, 1997 and the trial court conducted a hearing on Martin’s application on February 20, 1997. The trial court denied relief, and the court of appeals affirmed. The court of criminal appeals, without reference to the fact that the hearing was held after the indictment was returned, addressed the merits of Martin’s complaint. The court identified factors for courts of appeals to use in determining whether the State showed good canse for the delay in obtaining the indictment and remanded to the court of appeals to review the record in light of those factors. See id. at 526-29.

On remand, the court of appeals rejected the State’s argument that Martin’s claim was moot because the trial court did not conduct a hearing on the application for writ of habeas corpus until after the indictment was returned. See Ex parte Martin, 33 S.W.3d 843, 846 (Tex.App.-Austin 2000) (op. on remand), pet dism’d, 46 S.W.3d 932 (Tex.Crim.App.2001). The court of appeals went on to conclude the State did not show good cause for the delay in filing the indictment and ordered the indictment dismissed. Id. at 847. The court of criminal appeals dismissed the State’s petition for discretionary review as improvidently granted.

The Fort Worth court of appeals likewise rejected a mootness claim raised by the State in a case in which the application for writ of habeas corpus raising article 32.01 was filed before the indictment was returned, but the hearing on the application was not held until after the indictment was returned. See Ex parte Mann, 34 S.W.3d 716, 718 (Tex.App.-Fort Worth 2000, no pet.). The court relied on Ex parte Martin to reach the merits of Mann’s claim. See id.

We believe this is in keeping with the purpose of article 32.01. Article 32.01 prevents citizens from being left in jail or on bail for long periods of time without being indicted. Ex parte Martin, 6 S.W.3d at 529. “The State must indict within the period set by article 32.01, show good cause for the delay, or suffer the dismissal of the charges.” Id. To allow the State to be dilatory in obtaining an indictment, and then claim the benefit of an indictment obtained between the time an accused asserts his article 32.01 claim and the date a hearing is held on the claim, would defeat the purpose of article 32.01. Therefore, we conclude that as long as an application for writ of habeas corpus raising an article 32.01 claim is filed before an indictment is returned, the fact that a hearing is not held until after the indictment is returned does not render the claim moot.

Good Cause for Delay

We now turn to the merits of appellant’s complaints. Article 32.01 provides,

When a defendant has been detained in custody or held to bail for his appearance to answer any criminal accusation, the prosecution unless otherwise ordered by the court, for good cause shown, supported by affidavit, shall be dismissed and the bail discharged, if indictment or information be not presented against such defendant on or before the last day of the next term of the court which is held after his commitment or admission to bail or on or before the 180th day after the date of commitment or admission to bail, whichever is later.

Tex.Code CRiM. PROC. Ann. art. 32.01. The court of criminal appeals adopted a totality of the circumstances test for determining good cause and set out a list of factors to consider in determining whether the State has shown good cause. Ex parte Martin, 6 S.W.3d at 528. Among the factors to consider are: (1) the length of the delay; (2) the State’s reason for the delay; (3) whether the delay was due to lack of diligence on the part of the State; and (4) whether the delay harmed the accused. Id.

In this case, the facts are undisputed that the State did not obtain an indictment ■within the time provided by article 32.01. The State presented no evidence to explain the reason for the delay, whether the delay was due to lack of diligence on the part of the State, and whether the delay harmed appellant. See Ex parte Martin, 6 S.W.3d at 529 (State must show good cause for delay). Thus, we conclude good cause was not shown for continuing the prosecution, see Ex parte Mann, 34 S.W.3d at 718, and the trial court abused its discretion in denying appellant habeas corpus relief. We resolve appellant’s issues in his favor.

We reverse the trial court’s order denying appellant habeas corpus relief. We order that the indictment be dismissed.

      . In its brief, the State speculates about various reasons as to why the court dismissed the PDR, but we decline to speculate. The dismissal order speaks for itself.


source: Caselaw Access Project

author: SAM GRIFFITH, Justice.

license: Public Domain

text:
    In re The STATE of Texas, Relator.
    Nos. 12-05-00377-CV, 12-05-00378-CV.
    Court of Appeals of Texas, Tyler.
    Dec. 19, 2005.

      Donna R. Bennett, Athens, for Relator.
    Stanley G. Schneider, for real party in interest.
    Panel consisted of WORTHEN, C.J., GRIFFITH, J. and DeVASTO, J.
   OPINION

SAM GRIFFITH, Justice.

The State of Texas filed a petition for writ of prohibition requesting an order prohibiting Respondent, the Honorable Carter Tarrance, Judge of the 392nd Judicial District Court, Henderson County, Texas, sitting in the 173rd Judicial District Court, Henderson County, from considering and ruling on the motions for new trial filed by the real party in interest, Adam Roberts Lewis. The State also seeks an order staying the proceedings in the trial court pending our issuance of an opinion in this proceeding. We deny the petition and overrule the request for stay.

Background

Adam Roberts Lewis was charged by separate indictments with two counts of aggravated assault on a public servant. The two cases were tried together. After hearing evidence, the jury found Lewis guilty of one count of aggravated assault on a public servant and the lesser included offense of deadly conduct. The jury assessed punishment at twenty years of imprisonment for the offense of aggravated assault on a public servant and five years of imprisonment for the deadly conduct offense. The trial court sentenced Lewis accordingly.

Trial counsel timely filed a motion for new trial alleging jury misconduct, insufficiency of the evidence, and unconstitutionality of the applicable statute. Lewis subsequently retained new counsel who filed a motion to substitute counsel, which was granted. Lewis’s new counsel then filed a motion for leave to file an amended motion for new trial and an amended motion for new trial. The amended motion included the three issues raised in the original motion for new trial and also included allegations regarding an unexecuted mental health warrant, the fact that a competency examination had not been performed on Lewis, and trial counsel’s failure to pursue an insanity defense. The trial court granted leave to file the amended motion. After hearing argument, the trial court granted the amended motion for new trial, and the State appealed. This court reversed the trial court’s judgment and remanded the causes to the trial court for further proceedings. Lewis filed a petition for discretionary review, which the court of criminal appeals refused. State v. Lewis, 151 S.W.3d 213, 224-25 (Tex.App.-Tyler 2004, pet. ref'd).

Lewis was appointed new counsel, who sought to appeal the jury verdict in each cause. We dismissed the appeals holding that the notices of appeal were untimely filed. Lewis v. State, Nos. 12-04-00372-CR, 12-04-00373-CR, 2004 WL 3153761, at *1 (Tex.App.-Tyler Dec.30, 2004, no pet.) (per curiam) (not designated for publication). Lewis filed an application for postconviction writ of habeas corpus in which he contended that he was deprived of his right to appeal by the failure of his trial counsel and his subsequently retained counsel to timely file the notices of appeal. He asked that “the Court grant Applicant the relief to which he may be entitled in this proceeding, and recommend that he be granted an out of time appeal.” The State filed an answer. The trial court made findings of fact and conclusions of law, which included the following: (1) that Lewis always desired to seek review of his conviction and had been denied his right to appeal only as a result of his counsel’s failure to comply with the Texas Rules of Appellate Procedure; (2) that appellate counsel rendered ineffective assistance of counsel on appeal; and (3) that it (the trial court) had the power to recommend that “the Applicant be afforded an out-of-time appeal, and this Court so recommends.” In an unpublished opinion, the court of criminal appeals granted an out of time appeal from each conviction. Ex parte Lewis, Nos. AP-75,234, AP-75,235, 2005 WL 2219038, at *1 (Tex.Crim.App. Sept.14, 2005) (per curiam) (not designated for publication).

On October 10, 2005, the court of criminal appeals issued its mandate, which stated that “because it is the Opinion of this Court that the relief prayed for should be Granted, it is ORDERED, ADJUDGED AND DECREED that an out-of-time appeal is GRANTED.... ” Within thirty days of the mandate, Lewis filed a motion for new trial, a proposed order setting a hearing on each motion, a proposed order granting each motion for new trial, and a notice of appeal in each cause (appellate cause numbers 12-05-00345-CR and 12-05-00346-CR). The State filed an objection and response to Lewis’s motions for new trial asserting, in part, that the court of criminal appeals granted Lewis the right to file an out of time appeal only and did not grant him the right to file another motion for new trial. By letter dated November 29, 2005, Respondent notified the parties that a “Status Conference” had been set in each cause for December 21, 2005. This original proceeding followed.

Nature of tre Writ

The writ of prohibition as used in Texas has three functions: preventing interference with higher courts in deciding a pending appeal, preventing inferior courts from entertaining suits that will relitigate controversies which have already been settled by issuing courts, and prohibiting a trial court’s action when it affirmatively appears that the court lacks jurisdiction. Texas Capital Bank-Westwood v. Johnson, 864 S.W.2d 186, 187 (Tex.App.-Texarkana 1993, orig. proceeding). Here, the State seeks a writ of prohibition to prevent a trial court from acting without jurisdiction.

A writ of prohibition operates like an injunction issued by a superior court to control, limit, or prevent action in a court of inferior jurisdiction. Holloway v. Fifth Court of Appeals, 767 S.W.2d 680, 682 (Tex.1989). The writ issues only to prevent the threatened commission of a future act. State ex rel. Rodriguez v. Onion, 741 S.W.2d 433, 435 (Tex.Crim.App.1987). However, prohibition is an extraordinary proceeding and should be used sparingly. Guerra v. Garza, 987 S.W.2d 593, 594 (Tex.Crim.App.1999). To that end, the party seeking a writ of prohibition must demonstrate that (1) it has no other adequate remedy at law and that (2) it is clearly entitled to the relief sought. Curry v. Wilson, 853 S.W.2d 40, 43-44 (Tex.Crim.App.1993). The mere possibility that a trial court will act without jurisdiction will not justify a writ of prohibition. See W.C.H., III v. Matthews, 536 S.W.2d 679, 681 (Tex.Civ.App.-Fort Worth 1976, orig. proceeding) (holding that prohibition would not issue until threatened action would constitute certain interference with appellate jurisdiction).

Availability of the Writ

In this proceeding, the State argues that the trial court has no jurisdiction to rule on Lewis’s motions for new trial and that the letter notifying the parties of the scheduled “Status Conference” constitutes a threatened commission of a future act sufficient to justify the issuance of the writ.

The Trial Court’s Jurisdiction

In support of its jurisdictional argument, the State cites the following paragraph in the court of criminal appeals opinion:

Habeas corpus relief is granted and Applicant is granted an out-of-time appeal from his conviction in cause number B-10,599-A and B-10,598-A from the 173rd District Court ' of Henderson County. The proper remedy in a case such as this is to return Applicant to the point at which he can give notice of appeal. For purposes of the Texas Rules of Appellate Procedure, all time limits shall be calculated as if the conviction had been entered on the day that the mandate of this Court issues. We hold that should Applicant desire to prosecute an appeal, he must take affirmative steps to see that notice of appeal is given within thirty (30) days after this Court’s mandate has issued.

Ex parte Lewis, 2005 WL 2219038, at *1. The State argues that by this paragraph, the court of criminal appeals only granted Lewis the right to file a notice of appeal and proceed with an appeal as set forth in the Texas Rules of Appellate Procedure. Further, the State notes that Lewis’s writ application does not include a request to file another motion for new trial in each case and argues that nothing in the court of criminal appeals opinion or mandate grants this relief. Thus, the State maintains, the trial court does not have jurisdiction to hear and rule on Lewis’s motions for new trial.

In an analogous case, the Houston Fourteenth Court of Appeals held that the above-quoted language does not include the right to file a motion for new trial, and the court of criminal appeals refused discretionary review. See McCoy v. State, 996 S.W.2d 896, 900-01 (Tex.App.-Houston [14th Dist.] 1999, pet. ref'd). In McCoy, the appellant originally filed a motion for new trial, but his original appeal was dismissed as untimely filed. Id. at 901. McCoy then filed an application for post-conviction writ of habeas corpus asserting that he was denied his right to a meaningful appeal when his counsel failed to timely perfect his notice of appeal. Id. The court of criminal appeals granted McCoy an out of time appeal. Id As in the instant case, the court of criminal appeals stated in its opinion that “should Applicant desire to prosecute an appeal, he must take affirmative steps to see that written notice of appeal is given within thirty days after the mandate of this court has issued.” Id. McCoy then filed a second motion for new trial, in which he asserted that the jury had reached a quotient verdict, both as to guilt-innocence and punishment. He also filed a notice of appeal. The trial court considered and denied his second motion for new trial. See id. After noting that McCoy did not request and the court of criminal appeals did not grant relief to file a motion for new trial, the court of appeals concluded that the trial court did not have jurisdiction to consider the second motion for new trial. Accordingly, the court did not address McCoy’s issues relating to the motion for new trial. Id.

In the instant case, neither the court of criminal appeals opinion nor its mandate specifically grants Lewis the right to file a motion for new trial. Moreover, the mandate states that the court grants the “relief prayed for” and orders “an out-of-time appeal.” Lewis did not request permission to file another motion for new trial. Therefore, applying McCoy, we conclude that Respondent is without jurisdiction to consider Lewis’s motions for new trial. See id.; see also Mestas v. State, 165 S.W.3d 917, 919 (Tex.App.-Dallas 2005, pet. granted); Muratalla v. State, No. 05-97-00486-CR, 1999 WL 333371, at *3 (Tex.App.-Dallas 1999, pet. ref'd). But see Downie v. State, No. 13-00-00488-CR, 2001 WL 1554206, at *1 (Tex.App.-Corpus Christi 2001, pet. ref'd) (not designated for publication) (noting court of criminal appeals statement that “[f]or purposes of the Texas Rules of Appellate Procedure, all time limits shall be calculated as if the convictions had been entered on the day the mandate of this Court issues”; holding that language is sufficiently broad to encompass the filing of a motion for new trial); Malley v. State, 9 S.W.3d 925, 927 (Tex.App.-Beaumont 2000, pet. ref'd) (same); see also Besch v. State, 87 S.W.3d 588, 590 n. 3 (Tex.App.-San Antonio 2002, pet. dism’d, untimely filed) (error preserved where issue raised in motion for new trial filed after court of criminal appeals granted out of time appeal).

Entitlement to the Writ

Lewis does not address the State’s jurisdictional argument, but points out that the State can appeal any adverse ruling Respondent may make. Therefore, he concludes, the State has an adequate remedy at law and cannot show its entitlement to the writ.

The purpose of the requested writ is to prevent the trial court from acting without jurisdiction. An appeal will not accomplish that result. See In re State ex rel. Sistrunk, 142 S.W.3d 497, 504 (Tex.App.Houston [14th Dist.] 2004, orig. proceeding) (holding that State had no adequate remedy at law where trial court had set hearing to decide question over which it had no jurisdiction). Consequently, appeal is not an adequate remedy for the State. However, the State has not shown that it is clearly entitled to the relief it seeks.

As we have previously stated, the mere possibility that a trial court will act without jurisdiction will not justify a writ of prohibition. W.C.H., III, 536 S.W.2d at 681. Here, although Lewis requested a hearing on the merits of his motions for new trial, Respondent set only a “Status Hearing.” By his argument that “the State can appeal an adverse ruling from the December 21, 2005, hearing,” Lewis suggests that Respondent will rule on his motions for new trial at the status hearing. However, this suggestion is not based on the record.

Conclusion

The trial court lacks jurisdiction to rule on Lewis’s motions for new trial, and the State has no other adequate remedy at law. However, the State has not shown that Respondent has threatened to rule on Lewis’s motions for new trial at the December 21 status hearing. Without more, the State has shown, at most, a mere possibility that Respondent will act without jurisdiction. Therefore, extraordinary relief is inappropriate. Accordingly, the State’s petition for writ of prohibition is denied and its request for stay is overruled as moot.


author: Justice FRANCIS.

text:
    The CITY OF DALLAS, Appellant v. Jesus Mario LOPEZ, Appellee.
    No. 05-05-00448-CV.
    Court of Appeals of Texas, Dallas.
    Dec. 21, 2005.
    Barbara E. Rosenberg, Asst. City Atty., John L. Anderson, James B. Pinson, Peter B. Haskel, City Attorney’s Office, Dallas, for Appellant.
    Robert C. Hinton, Jr., Robert Hinton & Associates, Dallas, for Appellee.
    William T. Hill, Jr., Appellate Div., Dallas, for State.
    Before Justices WHITTINGTON, FRANCIS, and LANG.
   OPINION

Opinion by

Justice FRANCIS.

The City of Dallas appeals the trial court’s order granting Jesus Mario Lopez’s writ of habeas corpus ordering the City to pay $967,534 to Lopez and his attorney. In five issues, the City contends the trial court lacked subject matter jurisdiction or legal authority to grant the writ of habeas corpus, erred in ordering the money returned only to Lopez and his attorney, and abused its discretion by failing to grant the City’s request for a continuance. Because we conclude the trial court erred in granting the writ of habeas corpus, we vacate the order requiring the City to pay $967,534 to Lopez and his attorney and we dismiss the case.

On January 21, 2005, a magistrate issued a search warrant authorizing the search and seizure of drugs at 2679 W. Davis in Dallas. In executing the warrant that same day, Dallas police officers recovered seven kilograms of cocaine, weapons, body armor, and $967,534. Ten days later, the same magistrate ordered the currency transferred pursuant to article 59.03(c) of the Texas Code of Criminal Procedure to the Drug Enforcement Agency for initiation of forfeiture proceedings in accordance with federal law. That same day, the City sent Lopez notice of the transfer of the currency from state to federal custody.

Ultimately, Lopez was indicted for possession with intent to deliver cocaine in an amount of 400 grams or more. The DEA sent Lopez notice of seizure and forfeiture proceedings and gave him time to file a claim with the DEA for return of the money. Lopez did not file a claim with the DEA. Instead, he filed a document entitled “Writ of Habeas Corpus” in the 283rd Judicial District Court.

At the writ hearing, Lopez essentially argued the City could not lawfully transfer money seized by Dallas police to the federal authorities for forfeiture proceedings without allowing the owner of the money to participate in the decision to transfer. Lopez asserted such action violated articles 59.02 and 59.03 of the code of criminal procedure, violated his state and federal constitutional rights, and was “just a sham where the City is attempting to circumvent the State forfeiture laws by purporting to just launder this through the Federal Government.” Finally, Lopez asserted the federal government did not have the authority to “adopt” property from a city absent a “State order” releasing jurisdiction.

The trial judge granted Lopez’s writ and signed a document entitled “Order Granting Writ of Habeas Corpus.” The order provided that “the City’s purported ‘Transfer’ of Defendant/Claimant’s currency to the DEA is SET ASIDE as invalid and void” and ordered the City to deliver “to Defendant/Claimant’s Counsel a valid check payable to Defendant/Claimant and his counsel in the amount of the actual amount of currency seized, not less than $967,534 not later than April 4, 2005.”

On appeal, the City argues the trial court was without jurisdiction or authority to grant the writ of habeas corpus and order the money returned because a writ of habeas corpus is the remedy for a person whose liberty is being restrained in some manner. Lopez counters that this Court should disregard the title of the document filed, presented, and argued to the Court — “Writ of Habeas Corpus” — and argues we should not be confined to the context of a writ when analyzing this case. Because all arguments in the trial court on the matter were couched in terms of a writ of habeas corpus and the order signed by the trial court is specifically addressed to a writ of habeas corpus motion, we decline to re-characterize the nature of the proceedings on appeal.

“The writ of habeas corpus is the remedy to be used when any person is restrained in his liberty.” Tex.Code Crim. PROC. Ann. art. 11.01 (Vernon 2005). The Texas habeas corpus statute extends to cases involving “confinement and restraint.” Tex.Code CRiM. Proc. Ann. art. 11.23 (Vernon 2005). It is an order that is directed to one having a person in restraint.

In contrast, Lopez’s writ of habeas corpus asked for the return of money. The trial court’s order dealt only with the return of money. Because the request did not concern the restraint of the person of Lopez, the trial court erred in granting the writ, much less granting the writ and ordering the return or payment of money.

We conclude the trial court erred in granting the writ of habeas corpus and ordering the City to return to Lopez and his attorney the $967,534 in currency seized during the execution of the search warrant. Finding this error dispositive of this appeal, we do not need to address the City’s remaining issues. See Tex.R.App. P. 47.1. Accordingly, we vacate the trial court’s order and dismiss the case. See Tex.R.App. P. 43.2(e).


author: Justice MOSELEY.

text:
    UNITED PROTECTIVE SERVICES, INC., Appellant v. WEST VILLAGE LIMITED PARTNERSHIP and Preston Royal Realty Company, Appellees.
    No. 05-04-00526-CV.
    Court of Appeals of Texas, Dallas.
    Dec. 21, 2005.
    Emil Lippe, Jr., Law Offices of Lippe & Associates, Dallas, Richard G. Mills, Law Offices of Rick Mills, Duncanville, for Appellant.

      David Brian Miller, Dallas, for Appellee.
    Before Justices MORRIS, MOSELEY, and FITZGERALD.
   OPINION

Opinion by

Justice MOSELEY.

This case involves a contract dispute arising from the termination of two contracts for security services between United Protective Services (United) and two commercial property owners, West Village Limited Partnership (West Village) and Preston Royal Realty Company (Preston Royal). United sued West Village and Preston Royal for breach of contract and for a declaratory judgment arguing the contracts required defendants to give thirty days’ notice before termination and requesting damages. The parties filed cross-motions for summary judgment. The trial court granted the defendants’ motion, denied United’s motion, ordered that United take nothing by its suit, and awarded attorneys’ fees to defendants. In three issues, United argues the trial court erred: (1) in granting summary judgment for defendants because the contracts unambiguously require thirty days’ notice before termination; (2) in denying United’s cross-motion for summary judgment; and (3) in awarding attorneys’ fees to defendants under the declaratory judgments act. We conclude the contracts at issue are ambiguous and thus summary judgment was improper. We reverse the final judgment of the trial court and remand the case for further proceedings.

I. Standard of Review

We apply the traditional summary judgment standard of review. See Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985) (summary judgment standards of review). When, as here, both parties move for summary judgment, each party bears the burden of establishing that it is entitled to judgment as a matter of law; neither party can prevail because of the other’s failure to discharge its burden. City of Garland v. Dallas Morning News, 969 S.W.2d 548, 552 (Tex.App.-Dallas 1998) (en banc), aff'd, 22 S.W.3d 351 (Tex.2000). A reviewing court may determine all questions presented; it may affirm the summary judgment entered, reverse and render a judgment for the other party, if appropriate, or reverse and remand if neither party has met its summary judgment burden. Calhoun v. Killian, 888 S.W.2d 51, 54 (Tex.App.-Tyler 1994, writ denied).

II. Facts and Procedural History

In 2001, United entered into contracts with West Village and Preston Royal to provide security services at their properties. The terms of the contracts are virtually identical. The contracts do not have a specific duration, but contain the same termination clause (paragraph 8A), which is the center of this dispute:

8. Termination’s [sic] and Rights
A. It is agreed that this service will continue for the period indicated and will remain in full force and effect thereafter, unless a notice in writing to discontinue is sent to either party at least thirty (30) days prior to the expiration of the term, by regular mail. This contract may be terminated at will at any time upon notice from either party. An unsatisfactory payment pattern by Client shall constitute good cause and service at [United’s] option may be terminated immediately without penalty.

The parties agree the contracts provide no term or expiration dates as reference in paragraph 8A.

After more than a year of service, a senior property manager for West Village and Preston Royal notified United they were terminating the security services effective 6:59 a.m. on the next day, April 15, 2003. Thereafter, United billed West Village and Preston Village for $30,266.70 and $16,090.28, respectively — the cost of an additional thirty days of service after the termination date. After West Village and Preston Royal refused to pay, United filed suit.

The defendants moved for summary judgment contending the contracts unambiguously provided for termination “at will at any time upon notice from either party,” and their notice terminated the contracts without further liability. United filed a response and cross-motion for summary judgment agreeing paragraph 8A is unambiguous, but arguing the contracts required thirty days’ written notice prior to termination of the contract. The trial court granted the defendants’ motion for summary judgment, awarded their request for attorneys’ fees, ordered that United take nothing by its suit, and denied United’s cross-motion for summary judgment. United appeals.

III. Analysis

In its first issue, United contends the trial court’s ruling violates the elementary rule of contract construction that all provisions of the contract be given effect and be harmonized. United contends there is one interpretation that gives effect and harmony to the entire contract: thirty days’ notice is required before any termination. United also asserts that, if we find the contracts are ambiguous, we must remand this case for trial to resolve the ambiguity. Defendants argue the contracts unambiguously allow termination at any time, and assert that United’s interpretation renders the termination at will at any time provision meaningless.

Whether a contract is ambiguous is a question of law for the court. J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 229 (Tex.2003). A contract is not ambiguous if it can be given a definite or certain legal meaning. Columbia Gas Transmission Corp. v. New Ulm Gas, Ltd., 940 S.W.2d 587, 589 (Tex.1996). When construing a written contract, the primary concern of the court is to ascertain the true intentions of the parties as expressed in the instrument. J.M. Davidson, Inc., 128 S.W.3d at 229. A contract, however, is ambiguous when its meaning is uncertain and doubtful or when it is reasonably susceptible to more than one meaning. Coker v. Coker, 650 S.W.2d 391, 393 (Tex.1983). When the provisions of a contract appear to conflict, we will attempt to harmonize the two provisions and assume the parties intended every provision to have some effect. See Edlund v. Bounds, 842 S.W.2d 719, 726 (Tex.App.-Dallas 1992, writ denied) (when provisions of contract appear to conflict, they should be harmonized if possible to reflect intentions of parties, so entire agreement can be given effect). If we are unable to harmonize the provisions and give effect to all clauses, and the contract is susceptible to more than one reasonable interpretation, we will find the contract is ambiguous. Royal Maccabees Life Ins. Co. v. James, 146 S.W.3d 340, 347 (Tex.App.-Dallas 2004, pet. denied).

When a contract contains an ambiguity, the granting of a motion for summary judgment is improper because the interpretation of the instrument becomes a fact issue. Coker, 650 S.W.2d at 394; Harris v. Rowe, 593 S.W.2d 303, 306 (Tex.1980). A court may conclude that a contract is ambiguous even in the absence of such a pleading by either party. Sage St. Assocs. v. Northdale Constr. Co., 863 S.W.2d 438, 445 (Tex.1993); see Coker, 650 S.W.2d at 392-94 (although both parties asserted property settlement agreement was unambiguous and moved for summary judgment, supreme court concluded ambiguity existed).

Paragraph 8A of the contracts contains three different provisions concerning termination:

(1) The contract continues for the period indicated unless a notice to discontinue is sent thirty days before the end of the term.
(2) The contract may be terminated at will at any time upon notice from either party.
(3) The contract may be terminated by United immediately without penalty for an unsatisfactory payment pattern by client.

Termination under the first provision may be for any reason, but not at any time. Termination must be by written notice sent at least thirty days before the end of the term. As noted above, however, there is no term specified in these contracts. The second provision allows termination by either party at will at any time upon notice. The third provision allows United to terminate immediately without penalty (and apparently without notice) at its option if the client’s payment history is unsatisfactory. Thus, the first and second provisions conflict; one cannot be given effect without rendering the other meaningless.

Paragraph 8A is subject to different constructions, but none gives effect to all of its provisions. It could mean that the contract can be terminated only on thirty days’ notice by either party, but that United may terminate immediately without notice for unsatisfactory payment by the client. This construction, however, leaves the termination at will at any time provision meaningless.

In contrast, the paragraph could be construed to provide for automatic renewal of the contract “unless a notice in writing to discontinue is sent to either party at least thirty (30) days prior to the expiration of the term,” and the second provision allows the parties to terminate the contract at will, at any time upon notice. The third provision is only an example of a cause of immediate termination. However, if the contract can be terminated at any time under the second provision, the first and third provisions are superfluous.

United .argues that the word “notice” in the second provision (termination at any time) must mean thirty days’ notice as used in the first sentence of paragraph 8A. While this may be one reasonable interpretation of the paragraph, it is not the only one. The language of paragraph 8A does not tie the term “notice” to a particular time period. Elsewhere in the contracts, “notice” is used in connection with different time periods, for example fifteen days; thus, “notice” used without a specified time period could reasonably mean no time period is required. The language that the contract may be terminated “at will at any time upon notice from either party” could reasonably mean that no time period is required after notice for the termination to be effective.

In Coker the supreme court considered conflicting provisions in a property settlement agreement. The conflict was whether a payment obligation was an individual liability of the husband or was limited to commissions to be received by the husband. Coker, 650 S.W.2d at 392-93. Some language in the agreement appeared to guarantee payment of a specific sum (paragraph 8), while other language indicated the obligation was merely an assignment of the right to receive commissions when paid (paragraph 5). Id. These provisions had to be considered together; however, giving effect to the guarantee language (paragraph 8) would render the assignment of commission language (paragraph 5) surplusage. Id., at 394. The court concluded paragraph 8 conflicted with paragraph 5 and “[t]his conflict creates an ambiguity as to the intent of the parties as expressed in the written agreement and the decree.” Id.

We conclude the termination provisions in paragraph 8A are conflicting and we cannot harmonize those provisions while giving effect to the entire agreement. See Royal Maccabees, 146 S.W.3d at 347. Thus the contracts are susceptible of more than one reasonable interpretation. Therefore, we conclude the contracts are ambiguous and the parties’ intent regarding the notice requirement for terminating the contract is a fact issue to be resolved by the trier of fact. Because the contracts are ambiguous, the trial court erred in granting summary judgment.

We sustain United’s first issue in part, overrule its second issue, and do not reach the third issue regarding the award of attorneys’ fees. See Tex.R.App. P. 47.1. Accordingly, we reverse the judgment of the trial court and remand the cause to the trial court for further proceedings.


author: Justice JOHNSTONE.

text:
    Nollaig PREVIS Appellant, v. Pete DAILEY Appellee
    No. 2004-SC-0131-DG.
    Supreme Court of Kentucky.
    Nov. 23, 2005.
    Rehearing Denied Jan. 19, 2006.

      David A. Weinberg, David A. Weinberg, P.S.C., Lexington, Counsel for Appellant.
    Thomas L. Travis, Chadwick A. Wells, Clark & Ward, Lexington, Counsel for Ap-pellee.
    Victor B. Maddox, Tachau Maddox Ho-vious & Dickens PLC, Louisville, Counsel for Amici Curiae, League of American Bicyclists, Louisville Bicycle Club, Ashland Cycling Enthusiasts, Inc., Bluegrass Cycling Club, Bowling Green League of Cyclists, and Chain Reaction Cycling Club of Paducah.
   Opinion of the Court by

Justice JOHNSTONE.

On May 29, 1999, Appellant, Nollaig Previs, was riding her bicycle on the right-hand side of Escondida Road in Bourbon County, when she was approached from behind by a vehicle driven by Appellee, Pete Dailey. Dailey was driving a pick-up truck with an eight-foot bed and camper top that was pulling two flatbed wagons, making the total length of the vehicle approximately forty-eight feet. When Dailey first observed Previs, she was pedaling up a hill at a speed of approximately one or two miles per hour. When Previs crested the top of the hill, Dailey moved his truck over into the left lane of the road to pass Previs. Assuming he had passed her, Dai-ley maneuvered his truck back into the right-hand lane. As he did so, the handlebars of Previs’s bike became wedged under the second flatbed wagon. The bike was pulled under the wagon and Previs was thrown into a ditch on the side of the road.

Previs subsequently filed a personal injury action against Dailey in the Bourbon Circuit Court seeking damages. A one-day trial was held on November 8, 2001. The trial court denied both parties’ motions for a directed verdict, and the case was thereafter submitted to the jury, which returned a verdict in favor of Dailey.

The following day, the trial judge received a telephone call from the jury foreman, Jeffery Norkus, who expressed concerns about the jury’s deliberations. Norkus subsequently drafted a letter in which he alleged that jurors had discussed a matter not presented at trial, namely whether a reasonable bicyclist would have pulled off of the side of the road to allow a large vehicle to pass. Norkus later gave a similar statement in chambers under oath, in which he further stated that to his knowledge there was no discussion as to whether Dailey violated his duties. When asked how the ten jurors who found for Dailey reached their verdict, Norkus responded, “I cannot speak for them. I don’t know how they arrived at their conclusion.” Notably, Norkus was not one of the ten jurors who found in favor of Dailey.

As a result, Previs filed several motions, including a motion for a new trial based on juror misconduct and a motion for judgment notwithstanding the verdict, as well as a motion to alter, amend, or vacate the judgment. All were denied and Previs appealed to the Court of Appeals.

Affirming the trial court, the Court of Appeals acknowledged that “at first blush,” the record contained evidence sufficient for the jury to conclude that Dailey had operated his truck in a negligent fashion. “It is uncontroverted that [Dailey] had not fully passed Previs before directing his vehicle back into the right lane, and he all but admitted that he did not look in his rear view mirror when doing so.” (Opinion p. 438). Notwithstanding, the court held:

[I]t is still possible that the jury reasonably concluded either that [Dailey] was not negligent, or if he was negligent that said negligence was not the cause of the collision. Dailey notes that Previs was not an experienced cyclist, that she may have accelerated while Dailey’s vehicle was passing her, and that she stated that she did not see him. While much of this is speculative, the law required the trial judge to give Dailey every fair and reasonable inference from the evidence. In so doing, the trial judge properly denied Previs’s motion for a directed verdict, and we find no basis for tampering with this ruling. For the same reason, we conclude that Previs was not entitled to a judgment notwithstanding the verdict.

Id. (Internal citations omitted).

This Court thereafter granted Previs’s motion for discretionary review. For the reasons set forth herein, we now reverse the decision of the Court of Appeals and remand the matter to the trial court for farther proceedings consistent with this opinion.

Our law is well settled that in ruling on a motion for a directed verdict, the trial court is under a duty to consider the evidence in the light most favorable to the party opposing the motion, and must give the opposing party the advantage of every fair and reasonable inference that can be drawn from the evidence. See Taylor v. Kennedy, 700 S.W.2d 415 (Ky.App.1985). When engaging in appellate review of a ruling on a motion for directed verdict, the reviewing court must ascribe to the evidence all reasonable inferences and deductions which support the claim of the prevailing party. Meyers v. Chapman Printing Co., Inc., 840 S.W.2d 814 (Ky.1992). In Lewis v. Bledsoe Surface Mining Co., 798 S.W.2d 459, 461-62 (Ky.1990), this Court stated:

Upon review of the evidence supporting a judgment entered upon a jury verdict, the role of an appellate court is limited to determining whether the trial court erred in failing to grant the motion for directed verdict. All evidence which favors the prevailing party must be taken as true and the reviewing court is not at liberty to determine credibility or the weight which should be given to the evidence, these being functions reserved to the trier of fact. The prevailing party is entitled to all reasonable inferences which may be drawn from the evidence. Upon completion of such an evidentiary review, the appellate court must determine whether the verdict rendered is “ ‘palpably or flagrantly’ against the evidence so as ‘to indicate that it was reached as a result of passion or prejudice.’ ” NCAA v. Hornung, 754 S.W.2d 855, 860 (Ky.1988). If the reviewing court concludes that such is the case, it is at liberty to reverse the judgment on the grounds that the trial court erred in failing to sustain the motion for directed verdict. Otherwise, the judgment must be affirmed.

(Internal citations omitted). See also USAA Casualty Insurance Co. v. Kramer, 987 S.W.2d 779 (Ky.1999), and Bierman v. Klapheke, 967 S.W.2d 16 (Ky.1998).

Dailey’s legal duties as a passing motorist were set forth in jury Instruction No. 3, which provided as follows:

[I]t was the duty of the Defendant, Pete Dailey, upon the occasion about which you have just heard evidence, in driving his automobile to exercise ordinary care for his own safety and for the safety of other persons using the roadway, and this general duty included the following specific duties:
1. To keep said automobile under reasonable control;
2. To drive and keep his automobile on the right-hand side of the roadway, and not to pass the Plaintiff on her bicycle moving in the same direction ahead of him unless the overtaking and passing could be completed without interfering with the safe operation of the bicycle ridden by the Plaintiff;
3. After passing the Plaintiff to not drive to the right until reasonably clear of her;
4. To maintain a lookout both to the front and to the rear for other vehicles near enough to be affected by the intended movement of his automobile;
5. To exercise ordinary care to avoid collision with other automobiles on the roadway.

Thus, Dailey’s legal duty required that he not pass Previs unless he could do so without interfering with the safe operation of her bicycle, and that if, in fact, he did pass her that he not drive to the right until he was reasonably clear of her.

Yet, Dailey’s own testimony established that he violated this legal duty:

[I]f I made any mistake, that was it, because if I had looked in my rearview mirror, at me making a turn in like this, I wouldn’t have probably seen Nollaig anyhow .... My thought is, when I pass a grown person — whether it be a lady or a man — I have no thought of trying to protect her .... I mean, once I started passing her, I felt it would be her obligation to allow me around her.

(Emphasis added).

The Court of Appeals commented that Dailey “all but admitted” that he did not look in his rearview mirror before maneuvering his truck back into the right lane. To the contrary, we are of the opinion that Dailey’s testimony is nothing less than a frank admission of his failure to ascertain Previs’s location. Apparently, Dailey believed that it was solely Previs’s obligation to make sure he safely passed her. Clearly that is not the law. See KRS 189.340(1). Nor are we sympathetic to Dailey’s claim that he had no choice but to move back into the right lane so as to avoid a potential collision with oncoming traffic. If the terrain was such that Dailey could not see oncoming traffic, then he certainly was in violation of his duty to exercise ordinary care for the safety of other persons using the roadway. See KRS 189.340(4).

In Bierman, we noted:

In reviewing the sufficiency of evidence, the appellate court must respect the opinion of the trial judge who heard the evidence. A reviewing court is rarely in as good a position as the trial judge who presided over the initial trial to decide whether a jury can properly consider the evidence presented. Generally, a trial judge cannot enter a directed verdict unless there is a complete absence of proof on a material issue or if no disputed issues of fact exist upon which reasonable minds could differ.

967 S.W.2d at 18-19. The evidence presented at trial was uncontroverted that Dailey had not fully passed Previs at the time he maneuvered his truck back into the right lane. Such is a clear violation of Dailey’s statutory duties and constitutes negligence per se.

The Court of Appeals referenced several speculative, self-serving comments by Dai-ley concerning Previs’s inexperience with biking and his “belief’ that she must have accelerated as he tried to pass her, as evidence from which a jury could have reasonably found that Dailey was not negligent. In doing so, however, the court failed to recognize that Previs’s negligence, if any, did not have any bearing on the fact that Dailey was negligent as a matter of law. Viewing the facts even in the light most favorable to Dailey, the trial court erred in submitting the question of Dailey’s negligence to the jury, and we must conclude that the jury’s verdict absolving him of liability was so flagrantly and palpably against the weight of the evidence as to indicate that it was reached as a result of passion or prejudice. See Lewis, supra.

We hold that the trial court should have granted Previs a directed verdict on the issue of Dailey’s negligence. However, a jury is still entitled to consider Previs’s duties in operating her bicycle, and apportion fault should it find that Previs was negligent as well. The jury was given instructions on both Previs’s duties and apportionment, but was directed not to consider them upon finding for Dailey. On remand, a jury must consider these additional issues.

Our resolution of the first issue renders moot Previs’s argument concerning the trial court’s failure to grant a new trial based upon juror Norkus’s allegations of juror misconduct. Nevertheless, we agree with the Court of Appeals that the trial court did not err in this respect. Previs concedes that it is fairly well settled in this Commonwealth that, with few exceptions, a verdict cannot be impeached by the testimony of a juror. Rietze v. Williams, 458 S.W.2d 613 (Ky.1970), overruled on other grounds in Centre College v. Trzop, 127 S.W.3d 562, 566 (Ky.2003); Doyle v. Marymount Hospital, Inc., 762 S.W.2d 813 (Ky.App.1988). As noted by the Court of Appeals, to allow a juror to single-handedly overturn a verdict after it has been rendered “would invite the very kind of mischief the [CR 59.01 new trial] rule was designed to obviate.” Id. at 815.

The decision of the Court of Appeals is reversed and this matter is remanded to the Bourbon Circuit Court for further proceedings consistent with this opinion.

LAMBERT, C.J.; COOPER, GRAVES, ROACH, and SCOTT, JJ., concur.

WINTERSHEIMER, J., dissents without opinion.

      . Instruction No. 3 was based, in part, upon language contained in KRS 189.340(1):
      "Vehicles overtaking other vehicles proceeding in the same direction shall pass to the left of them and shall not again drive to the right until reasonably clear of those vehicles.”

      . KRS 189.340(4) provides:
      No vehicle shall be driven to the left side of the center of the roadway in overtaking and passing another vehicle proceeding in the same direction unless the left side is clearly visible and free of oncoming traffic for a sufficient distance ahead to permit overtaking and passing to be completely made without interfering with the safe operation of any vehicle approaching from the opposite direction or any vehicle overtaken. In every event the overtaking vehicle must return to the right-hand side of the roadway before coming within one hundred feet (100') of any vehicle approaching from the opposite direction.


author: ROACH, Justice. GRAVES, Dissenting Justice.

text:
    Michael J. BAYLESS, II; Michael J. Bayless; and Deborah Bayless, Appellants v. Robert L. BOYER, M.D.; and Walter Eiseman, M.D., Appellees.
    No. 2003-SC-0250-DG.
    Supreme Court of Kentucky.
    Dec. 22, 2005.

      John H. Metz, Kenneth J. Koenig, Cincinnati, OH, Counsel for Appellants.
    Frank V. Benton, Benton, Benton & Luedeke, East Row Historic District, Newport, Counsel for Appellee, Robert L. Boyer, M.D.
    Arnold S. Taylor, O’Hara, Ruberg, Taylor, Sloan & Sergent, David A. Futscher, Covington, Counsel for Appellee, Walter Eiseman, M.D.
   ROACH, Justice.

I. INTRODUCTION

This appeal arises from Appellants’ allegation of medical malpractice against Robert L. Boyer, M.D. and Walter Eiseman, M.D., for failing to diagnose a wrist fracture. At trial, Appellants, Michael J. Bay-less, II, and his parents, Michael J. and Deborah Bayless, were awarded damages for medical bills but no damages for pain and suffering. They appeal the decision of the Court of Appeals affirming the denial of their motion for a new trial in the Kenton Circuit Court. Appellants allege that numerous errors occurred, the cumulative effect of which entitles them to a new trial. Primarily, they claim: (1) that the jury’s “zero” verdict for pain and suffering damages was inappropriate; and (2) that limitations on the scope of questioning allowed by the trial court, particularly as related to the alleged bias of witnesses, were improper. In addition to their two central claims, Appellants raise several additional issues which we discuss below. Having reviewed each of Appellants’ claims of error, we conclude they are without merit. Thus we affirm the Court of Appeals.

II. BACKGROUND

Michael Bayless, II, fractured his right wrist while playing with friends on March 12, 1995. Later that night, his wrist became swollen and painful, so his mother took him to the emergency room of St. Elizabeth Medical Center (“Medical Center”).

The triage nurse at the emergency room ordered an x-ray of Michael’s wrist. Dr. Robert L. Boyer examined Michael. Dr. Boyer’s notes of this examination included the entry “no wrist pain.” Deborah Bay-less’s testimony suggested that, in addition to his physical examination of Michael, Dr. Boyer had also examined x-rays of the boy’s wrist. Although Dr. Boyer did not remember any details of their meeting, he testified that because Michael had not complained of any acute pain during his brief examination, he thought it was unlikely that he would have reviewed the wrist x-rays. Dr. Boyer failed to diagnose the fracture and concluded instead that Michael had only a sprained wrist. He instructed Michael to wrap the injured wrist with an elastic bandage, apply ice, and take ibuprofen for pain. Pre-printed instructions on Michael’s discharge paperwork stated, “IF YOUR CONDITION WORSENS OR RETURNS, PLEASE CALL OR SEE YOUR PHYSICIAN OR RETURN TO THE EMERGENCY DEPARTMENT.”

The next day, Dr. Walter Eiseman, a radiologist under contract with the Medical Center, examined the x-ray of Michael’s wrist. He too failed to recognize the fracture. At trial, Dr. Eiseman stipulated that he had violated the standard of care applicable to him in failing to diagnose Michael’s broken wrist, but he argued that his failure to detect the fracture had not been a substantial factor contributing to Michael’s injury.

After his discharge from the hospital, Michael continued to lead a very active lifestyle as a member of his high school’s freshman baseball team. During this time, he claimed that he also experienced chronic pain in his wrist, routinely icing his arm and taking over the counter medications in an effort to relieve his symptoms. Despite his claim of constant pain, neither Michael nor his parents sought follow-up medical treatment until two months after his visit to the emergency room. Michael finally learned that he had a fractured wrist during a visit to his pediatrician. Although Michael testified at trial that the injury was not discovered until after the baseball season ended, this testimony was impeached by his prior deposition testimony which indicated that he had actually learned of the injury shortly before the end of the season and had continued to play.

After the season, Dr. John Wyriek, an orthopedic surgeon, evaluated and treated Michael’s fractured wrist. Because of the delay in diagnosis, movement and calcification of the fractured bone made treatment by casting the wrist impossible. Dr. Wy-rick subsequently performed surgery to repair the fractured bone. He testified that he had great confidence that the surgery was successful, that Michael would have normal strength in the wrist, and that the surgery had not rendered Michael any more susceptible to chronic pain or arthritis — in short, Michael’s surgical treatment was no less successful than had his wrist been treated promptly by casting.

At trial, the jury found no liability on the part of Dr. Boyer for his care and treatment of Michael. However, the jury concluded that Dr. Eiseman was liable for his negligence in Michael’s treatment. The jury also found that Michael and his parents failed to exercise ordinary care for Michael’s safety and health, and apportioned liability between Dr. Eiseman and Appellants equally. The jury found damages of $9,802.16 based on the amount of his medical expenses, primarily the costs of the surgical procedure, but the jury declined to award any damages for Michael’s pain and suffering. The final judgment of the trial court against Dr. Eise-man was $4,901.08.

The trial court denied Appellants’ motion for a new trial, and the Court of Appeals affirmed on direct appeal. We granted discretionary review.

III. ANALYSIS

As noted above, Appellants allege numerous trial errors. The two primary issues — the appropriateness of the jury’s “zero” verdict for pain and suffering and the trial court’s restriction as to the scope of witness questioning — demand the greatest attention and will be discussed first.

A. “Zero” Verdict for Pain and Suffering

Appellants claim it was error for the trial court to deny their motion for a new trial on the issue of damages for pain and suffering. Appellants’ motion, pursuant to CR 59.01(d), specifically challenged the validity of the jury’s verdict of zero damages for Michael’s pain and suffering. Appellants claim that uncontroverted evidence of Michael’s pain from the surgery entitled them to an award for these damages. In response, Appellees argue that Appellants’ evidence was inconclusive and that the jury verdict was justified by testimony at trial.

It is well-established that appellate courts in this state review trial court rulings on a motion for new trial on grounds of inadequate damages under a “clearly erroneous” standard of review. See, e.g., Cooper v. Fultz, 812 S.W.2d 497 (Ky.1991). “Our decision in Cooper amounts to a recognition that a proper ruling on a motion for new trial depends to a great extent upon factors which may not readily appear in an appellate record. Only if the appellate court concludes that the trial court’s order was clearly erroneous may it reverse.” Turfway Park Racing Ass’n v. Griffin, 834 S.W.2d 667, 669 (Ky.1992) (emphasis added). Accordingly, we treat the decision of a trial court on this issue with a great deal of deference.

In addition, we recently rejected the notion that a jury verdict of zero for pain and suffering is inadequate as a matter of law in cases where a jury also awards damages for medical expenses. In Miller v. Swift, 42 S.W.3d 599 (Ky.2001), we held, “[t]he law in Kentucky ... does not require a jury to award damages for pain and suffering in every case in which it awards medical expenses.” Id. at 601. Relying heavily on Turfway Park, we reiterated that “[o]ur review ... is limited to whether the trial court’s denial of [the motion for retrial] was clearly erroneous.” Id. Although not specifically argued in this case, we must also note that the general principle advanced in Miller — that a zero verdict for pain and suffering may sometimes be appropriate — is not constrained to the facts of that case. Rather, that principle is broadly applicable to cases which claim this type of error. We note this only to confirm that our holding here reaffirms and does not expand or alter the principle set forth in Miller.

Appellants claim that had Michael been properly diagnosed, his fractured wrist could have been treated with a cast and would not have required surgery. They argue that because this fact was uncontro-verted at trial and because the surgical procedure was necessarily painful, the judge’s denial of their motion for a new trial was clearly erroneous.

Appellants cite Hazelwood v. Beauchamp, 766 S.W.2d 439 (Ky.App.1989), in support of this contention. In that case the Court of Appeals stated: “While it is true that the jury did not have to believe [the plaintiff’s] testimony regarding the pain he claims to have endured, it was not free to disregard the uncontroverted evidence of the nature of the accident itself and the medical procedures performed.” Id. at 441. We would first point out that because Hazelwood is a case from the Court of Appeals, it is not binding on this Court. But the facts in Hazelwood are also markedly different from the facts in this case. In Hazelwood, the plaintiff sued his employer and a coworker after having his hand maimed in a mechanical hay bail-er that he was attempting to repair. The jury concluded that his injury was, at least in part, the result of his coworker’s negligence. Nevertheless, they awarded only nominal damages for pain and suffering. In contrast, Appellants in this case sued on a theory of medical malpractice; damages were not based directly on a physical injury, but resulted from a delay in the diagnosis and treatment of Michael’s broken wrist. The nature of any pain and suffering damages that Michael could have rightfully claimed is fundamentally different than that discussed in Hazelwood.

Additionally, despite Appellants’ claim that the evidence of Michael’s pain and suffering was uncontroverted, there were numerous instances where relevant testimony on the subject was either impeached or contradicted. In fact, we note substantial problems in three key areas of Appellants’ proof of pain and suffering: (1) Michael’s deposition and trial testimony, (2) Dr. Wyrick’s testimony, and (3) Michael’s medical records describing the surgical procedure and follow-up treatments.

First, Michael’s claim that he constantly suffered pain after the surgery was not corroborated by Dr. Wyrick’s notes describing Michael’s follow-up appointments. Remarkably, the notes, which detail several separate visits, do not include any indication that Michael was experiencing pain until after this lawsuit was initiated. In addition, Dr. Wyrick’s notes directly contradicted Michael’s testimony on this point, since they expressly observed that Michael “denie[d] any pain at all” on one occasion and was “having no pain” on another. Second, although Michael claimed that the pain in his arm following surgery prevented the normal use of this hand during his day-to-day activities, he admitted under cross examination that he had fully participated in two baseball seasons after the surgery. This fact was substantially confirmed in his medical records, which noted he had been playing baseball and could do pushups without any significant problems. Third, Dr. Wyrick testified that there would likely have been significant pain associated with treatment of Michael’s fractured wrist regardless of the treatment option, either casting or surgery, that was used. He further testified that he could not predict any significant difference in pain between the two options. Finally, Michael’s surgery was performed under general anesthesia, preventing or limiting the acute pain directly related to the procedure. There was substantial evidence for the jury to conclude that Appellants were not entitled to a damages award for pain and suffering.

B. Scope of Cross-Examination

Appellants claim their due process rights were violated by the trial court’s decision to limit the scope of cross-examination of witnesses as to possible bias and prejudice. Specifically they claim that they should have been freely permitted to ask questions relating (1) to the compensation of expert witnesses and (2) to whether there was any commonality between the insurance carriers of those experts and the Appellees. We address these claims individually.

1. Cross-Examination as to Compensation

This issue was not even addressed, much less preserved by objection, at trial. Appellants admit that they did not raise the issue of expert compensation and justify this failure because, at the time of trial, Kentucky courts were not generally required to allow such questioning. See Current v. Columbia Gas of Kentucky, Inc., 383 S.W.2d 139 (Ky.1964) (holding that although it was a matter within the trial court’s discretion, admission of testimony disclosing specific details of witness compensation was not generally favored). Current was overruled by this Court in Tuttle v. Perry, 82 S.W.3d 920 (Ky.2002), which was decided during the pendency of this appeal. In Tuttle, which reversed a defense judgment in a medical malpractice trial, we held that “the amount of money a witness is paid for testifying in a particular case is unquestionably diselosable on cross-examination.... To the extent Current v. Columbia Gas of Kentucky is to the contrary, it is overruled.” Id. at 923 (citing Wrobleski v. Nora de Lara, 353 Md. 509, 727 A.2d 930 (1999)).

Despite their failure to preserve or even address the issue at trial, Appellants ask that we reverse the judgment in this case on the authority of Mitchell v. Hadl, 816 S.W.2d 183 (Ky.1991) (“When the facts reveal a fundamental basis for decision not presented by the parties, it is our duty to address the issue to avoid a misleading application of the law.”). This we will not do. The Appellants’ reliance on Mitchell, wherein the Court decided the case on a unique legal theory that was not addressed by any party, is clearly misplaced. Appellants do not, indeed cannot, claim that the trial court took any action preventing them from raising the issue of expert witness compensation. More importantly, however, Current only discouraged the introduction of testimony as to expert witness compensation; the decision to admit such testimony was still ultimately left to the discretion of a trial court. Had Appellants wished to introduce the testimony, they could, and should, have raised the issue at trial. As such, there is no doubt that Appellants’ decision to forego the issue was unquestionably their own. Such a mistake in judgment, even one that is arguably understandable, provides no basis for reversal.

2. Cross-Examination as to Commonality of Insurance Providers

In contrast to their failure to address the compensation of defense experts, Appellants did make some attempt to raise the issue of commonality between the malpractice insurance carriers of the defense witnesses and the defendants as a source of potential bias. This issue has previously been addressed only by the Court of Appeals. In Wallace v. Leedhanachoke, 949 S.W.2d 624 (Ky.App.1996), the Court of Appeals held that “the [trial court] was required to balance the probative value of the evidence [of commonality between insurance carriers] ... against the prejudicial effect it may have produced before it permitted the cross-examination proposed by the plaintiffs.” Id. at 628. The Court of Appeals went on to note:

The mere fact that the two physicians shared a common insurance carrier— absent a more compelling degree of connection — does not clearly evince bias by the expert, and its arguable relevance or probative value is insufficient to outweigh the well-established rule as to the inadmissibility of evidence as to the existence of insurance.

Id. We agree with the Court of Appeals. Its holding in Wallace is a sound application of the balancing test required by KRE 403 as applied to the specific issue of commonality of insurance carriers.

During Appellants’ cross-examination of Dr. Boyer, the trial court summarily refused to allow this proposed line of questioning without engaging in the balancing test described in Wallace. The trial court’s refusal even to consider admission of this testimony might constitute error if it could be shown to be prejudicial. However, we cannot undertake such analysis because there is no evidence in the record, even by avowal, of commonality of insurance carriers. Appellants’ attorney stated he would proffer evidence as to commonality of malpractice providers later in the trial, but this never occurred. Having been denied the opportunity to cross-examine Dr. Boyer on this issue, it was incumbent upon Appellants’ counsel to at least make an avowal in order to ensure the issue could be adequately reviewed on appeal. “[W]ithout an avowal to show what a witness would have said an appellate court has no basis for determining whether an error in excluding his proffered testimony was prejudicial.” Cain v. Commonwealth, 554 S.W.2d 369 (Ky.1977). In this case, it is not enough that Appellants have identified the issue because their failure to proffer any evidence of commonality, much less any improper motive or bias on behalf of those testifying, precludes any finding of prejudice.

C. Miscellaneous Allegations of Error

Appellants also claim that (1) the trial court erred by finding that the Appellees were adverse parties and thereby granting them each three peremptory challenges; (2) the trial court improperly denied Appellants’ claim of loss of consortium; (3) Appellees and/or their counsel engaged in misconduct; (4) the jury instructions erroneously directed the jury to consider Appellants’ comparative negligence; (5) the jury instructions failed to properly instruct the jury as to the applicable law; (6) the jury’s verdict as to Dr. Boyer’s liability was not supported by the evidence; and (7) the jury engaged in misconduct. We address each of these issues in turn.

1. Peremptory Challenges

Appellants claim that it was error for the trial court to allow Dr. Eiseman and Dr, Boyer three peremptory challenges each during the jury selection process in violation of CR 47.03. The rule states, in relevant part: “In civil cases each opposing side shall have three peremptory challenges, but co-parties having antagonistic interests shall have three peremptory challenges each.” CR 47.03(1). The thrust of Appellants’ argument is that Dr. Boyer and Dr. Eiseman were not sufficiently antagonistic to entitle them to separate peremptory challenges.

The trial court must consider several factors in allocating the appropriate number of peremptory strikes under CR 47.03. In a recent unanimous opinion, we held:

Generally, there are three elements to be considered in determining if coparties have antagonistic interests. They are 1) whether the coparties are charged with separate acts of negligence; 2) whether they share a common theory of the case; and 3) whether they have filed cross-claims. Additional important factors are whether the defendants are represented by separate counsel; whether the alleged acts of negligence occurred at different times; whether the defendants have individual theories of defense; and whether fault will be subject to apportionment. All of these factors are to be weighed by the trial court in determining if the defendants have antagonistic interests and thus are entitled to separate peremptory challenges.

Sommerkamp v. Linton, 114 S.W.3d 811, 815 (Ky.2003) (internal citations omitted). We further stated:

[Interests that are antagonistic at the time of jury selection or when the trial judge makes a determination regarding entitlement to separate peremptory challenges, do not necessarily have to remain antagonistic throughout the trial in order to support the allocation of separate challenges. There can be no certainty as to what the evidence will demonstrate or precisely what the claims or defenses will be during trial.

Id. at 816.

Appellants have provided no specific rationale for reversing the trial court on this issue and rely instead on a general objection that the Appellees pursued a common defense strategy throughout the trial. Appellees have each noted several instances during the trial which demonstrated their antagonistic interests. That being said, there is no need to recount each of those instances here. As noted above, a trial court’s ruling under CR 47.03 is necessarily made prior to trial and a review of that decision need not focus on what actually occurred during the proceedings.

In Roberts v. Taylor, 339 S.W.2d 653 (Ky.1960), a decision discussing an earlier version of the peremptory challenge rule, our predecessor court stated: “Where the defendants in a personal injury action are charged with independent acts of negligence ... the interests of the defendants are most always antagonistic, because each may escape liability or reduce his liability by convincing the jury that the other was solely or primarily responsible.” Id. at 656. In this case, where two physicians were alleged to have committed entirely separate acts of negligence, that statement alone provides sufficient justification for the trial court’s decision. This is particularly true given the jury’s ability to consider the comparative negligence of the parties. We cannot say that the trial court abused its discretion in granting separate peremptory challenges to the defending parties.

2. Denial of Appellants’ Loss of Consortium Claim

Appellants claim the trial court improperly refused to instruct the jury on their claim of loss of consortium. We first note that the only statutory support we can find for such a claim is limited to cases involving the wrongful death of a minor. See KRS 411.135 (“In a wrongful death action in which the decedent was a minor child, the surviving parent, or parents, may recover for loss of affection and companionship that would have been derived from such child during its minority, in addition to all other elements of the damage usually recoverable in a wrongful death action.”). It suffices to say that Michael Bayless was not killed.

Appellants cite Department of Education v. Blevins, 707 S.W.2d 782 (Ky.1986), for the general proposition that a parent may bring a claim for loss of consortium. But the cause of action in Blevins was premised on KRS 411.135 and loss of consortium damages were alleged after the death of a child. Nothing in Blevins supports the expansion of loss of consortium claims beyond the extreme case of a wrongful death lawsuit. Even if it did, we would point out that the holding in Blevins is limited to the context in which it arose, namely as an action against a state entity, and not an individual tortfeasor, pursuant to the Commonwealth’s Board of Claims Act. Furthermore, Blevins ’s allowance for parental loss of consortium claims under the act was abrogated by statute as recognized in Williams v. Kentucky Department of Education, 113 S.W.3d 145, 156 (Ky.2003).

Appellants provide no binding authority suggesting that Kentucky law recognizes a cause of action for loss of parental consortium in a personal injury case such as this. Instead Appellants cite an opinion of the Ohio Court of Appeals, Rouse v. Riverside Methodist Hosp., 9 Ohio App.3d 206, 9 O.B.R. 355, 459 N.E.2d 593, 600 (1983), which they claim as proof that “other courts have recognized and protected the right of a parent to be compensated for the interruption of parental rights.” But Appellants’ assertion about Rouse is clearly false. In fact, Rouse does not address the loss of consortium issue at all; rather it merely “allow[s] a parent to recover from the wrongdoer the reasonable value of the care or attendance which he himself renders to his child as the result of a negligent injury.” Id. at 600.

Having cited no primary or secondary authority supporting their position, Appellants give us little reason to depart from the holding of the Court of Appeals in Humana of Kentucky, Inc. v. McKee, 834 S.W.2d 711 (Ky.App.1992). In that case, despite proof of serious and permanent injury to a child, the Court of Appeals upheld the trial court’s denial of an instruction on “the loss of [the child’s] companionship, love and affection,” that is, a claim for parental loss of consortium. Id. at 725. The Court of Appeals correctly noted that “there is no Kentucky law which authorizes the giving of such an instruction.” Id.

3. Misconduct of Dr. Eiseman and His Attorney

Appellants argue they are entitled to a new trial because of the “[mjisconduct ... of the prevailing party, or of his attorney.” CR 59.01(b). Appellants’ claim that after stipulating shortly before the trial that he had deviated from the requisite standard of care in examining Michael’s x-ray, Dr. Eiseman testified and his attorney argued that this deviation was inconsequential and that he was “sorry” for the mistake. Appellants argue that Dr. Eise-man and his counsel should not have been permitted to make these and similar statements to the jury since they had admitted his “liability” for Michael’s injuries. However, Appellants’ argument reveals a fundamental misunderstanding of our tort law in that it assumes Dr. Eiseman’s stipulation that he had violated the standard of care was equivalent to an admission of his liability for Michael’s injuries, the ultimate issue in this case. In light of the foregoing, we have reviewed Dr. Eiseman’s testimony and find no evidence of misconduct.

4. Jury Instructions on Comparative Negligence

Appellants contend that the trial court erred in submitting an instruction to the jury which permitted a finding of comparative negligence on the part of the Appellants, “Michael Bayless and/or his parents.” Appellants’ primary argument is that it was error to submit the question of Michael’s negligence to the jury because of his relative youth and inexperience given that he was only 14 years old at the time of the accident. In support of their claim, Appellants cite Baldwin v. Hosley, 328 S.W.2d 426 (Ky.1959), which discusses the application of the long-overruled principle of contributory negligence in cases where a party is a minor. They also claim that Boyer’s allegedly inadequate discharge instructions relieved them of any duty they might have had to seek follow-up medical care.

Appellants claim there was no factual basis for a jury instruction on the issue of comparative negligence and such an instruction was therefore impermissible. While it is true that “an instruction must not be submitted on an issue that is entirely unsupported by evidence or reasonable inferences therefrom,” West Virginia Tractor & Equip. Co. v. Cain, 487 S.W.2d 910, 911 (Ky.1972), Appellants have clearly ignored any and all such evidence in constructing this argument. Instead, Appellants present a litany of reasons that their liability should be excused or minimized. Such an argument, while appropriate for a jury at trial, does not address the fundamental error they have alleged here. There was sufficient evidence in this case to suggest that Appellants bore some responsibility for the injuries they claimed, not the least of which was the 66 day delay between Michael’s treatment in the emergency room and his decision to seek followup treatment. Therefore the trial court’s decision to instruct the jury on the issue of comparative negligence was not error.

5. General Inadequacy of Jury Instructions

This ground for appeal is, at best, a makeweight argument. Appellants’ brief states that the instructions provided at trial “essentially [gave] the jury no legal direction at all.” Appellants cite no specific deficiencies or problems with the jury instructions and instead make only broad assertions of error. They ask that we overrule Cox v. Cooper, 510 S.W.2d 530 (Ky.1974), which held that jury instructions “should provide only the bare bones, which can be fleshed out by counsel in their closing arguments if they so desire.” Id. at 535 (emphasis added). Cox is not alone, however, and is buttressed by a long line of Kentucky cases which call for a substantially similar approach. See, e.g., Meyers v. Chapman Printing Co., 840 S.W.2d 814 (Ky.1992); Rogers v. Kasdan, 612 S.W.2d 133 (Ky.1981); King v. Grecco, 111 S.W.3d 877 (Ky.App.2002). The instructions provided to the jury in this case were clearly adequate under Kentucky’s established standard. Furthermore, Appellants’ failure to cite any specific deficiency or to provide any more than a general objection to the practice of “bare bones” instructions gives us no reason to depart from our time-tested method of instructing juries.

6. The Jury’s Verdict of No Liability for Dr. Boyer

Appellants claim that the jury’s verdict in favor of Dr. Boyer was not supported by sufficient evidence and that it was error for the trial court to deny their motion for a new trial pursuant to CR 59.01(f). Appellants have identified three independent examples of what they claim was uncontroverted evidence of Dr. Boyer’s negligence. These include his alleged failures (1) to perform the “Anatomical Snuff-Box Test” during Michael’s emergency room examination, (2) to diagnose Michael’s broken wrist through examination of the x-ray, and (3) to provide adequate discharge instructions upon Michael’s release.

At the outset, we would note that our role as a reviewing court is limited:

The role of the appellate court when deciding negligence issues of this sort is limited to viewing the evidence from a standpoint most favorable to the prevailing party. In negligence cases such as this one the verdict of the jury resolves any conflicts in the testimony and also any conflicts in the reasonable inferences to be drawn from the testimony in favor of the prevailing party.... In short, an appellate court must not substitute its findings of fact for those of the jury if there is evidence to support them.

Horton v. Union Light, Heat & Power Co., 690 S.W.2d 382, 385 (Ky.1985) (internal citations omitted). As stated above in our discussion of the zero verdict, appellate review of a trial court ruling on a motion brought pursuant to CR 59.01 is subject to the clearly erroneous standard, and requires a great deal of deference to the trial court. See Turfway Park Racing Ass’n v. Griffin, 834 S.W.2d 667, 669 (Ky.1992).

Viewing the evidence in this case in the light most favorable to Dr. Boyer, it is clear that there was substantial evidence supporting the jury’s verdict in his favor. Appellants first contend that it was uncon-troverted that Dr. Boyer did not perform an adequate physical examination of Michael’s wrist, namely a palpation known as the “Anatomic Snuff-Box Test.” Significantly, Dr. Boyer did not remember the details of his meeting with Michael. However, he did testify that his notes taken during the examination included the comment “no wrist pain,” indicating to him that it was likely he performed the test because he would have thoroughly examined each of the bones in the wrist before making such an observation. Further, Michael admitted that Dr. Boyer had palpated different areas of his wrist, each time asking him if he experienced any acute pain.

As for the x-rays, Dr. Boyer testified that because his physical examination revealed no acute pain in Michael’s wrist, he did not believe that he would have ordered, much less examined, x-rays of the joint. Although Appellants contend that he did in fact examine the x-rays, such inconclusive testimony does not bar an inference by the jury in favor of the other party. Furthermore, the jury may have concluded that a failure by Dr. Boyer to properly interpret the x-rays was not a substantial factor in causing further injury to Michael due to Dr. Eiseman’s subsequent admission that he had misread Michael’s x-ray.

Finally, Appellants argue that Dr. Boyer’s discharge instructions to Michael were inappropriate. Although there was some disputed evidence regarding the verbal instructions given by Dr. Boyer, the discharge form clearly indicated that Michael should call his physician or return to the emergency room if his condition worsened or returned. Because Michael received such notice, it was reasonable for the jury to conclude that Dr. Boyer’s instructions were sufficient.

In the end, Appellants’ list of “uncontro-verted” evidence, though it musters perhaps the strongest factual arguments from which a jury might infer that Dr. Boyer was liable, is incomplete in that it avoids any mention of evidence in the record that might lead a jury to the opposite conclusion. We, however, cannot ignore the existence of that evidence. Stated simply, Appellants ignored their obligation to show that the jury’s verdict was not based on substantial evidence and instead endeavored to prove to this Court that they had the “better” case.

7. Juror Misconduct

Finally, Appellants claim it was error to deny their motion for a new trial because CR 59.01(b) permits such relief when there has been “misconduct of the jury.” Specifically, Appellants claim that it was misconduct for one juror to vote against liability for Dr. Eiseman because the doctor had stipulated that his failure to recognize the fracture in the x-ray of Michael’s wrist fell below the appropriate standard of care and the jury had been instructed as to that fact. Appellants state, “[tjhis illogical vote demonstrates a clear bias and prejudice which forecloses the ability to achieve a fair trial when a juror ignores stipulations and a court’s directive.” Appellants press this claim despite the fact that the jury concluded in their favor that Dr. Eiseman was partially liable for Michael’s injuries, albeit by a vote of 11-1.

As noted by the Court of Appeals, Appellants cite no legal authority supporting this claim. They confuse Dr. Eise-man’s stipulation that his treatment fell below the standard of care with an admission that he is liable for Michael’s injuries. In so doing, they ignore the possibility that a party might admit to a deviation from the standard of care but still avoid liability for an injury because the jury determines that the deviation was not the cause or proximate cause of the opposing party’s injury. The trial court’s instruction to the jury on this issue clearly contemplated just such a scenario. It read:

The Defendant, Walter Eiseman, M.D., has stipulated that he did not meet his duty of care as a radiologist when he read Michael Bayless’ x-ray of March 12, 1995. Given Walter Eiseman’s failure to comply with this duty, if you believe from the evidence that such failure was a substantial factor in causing Michael Bayless’ injuries, you will find for Michael Bayless against Walter Eiseman; otherwise, you will find for Walter Eise-man, M.D.

Bayless et al. v. St. Elizabeth Medical Center et al., No. 96-CI-00438 (Kenton Cir. Ct. filed Jan. 25, 2001) (Jury Instructions, Instruction No. 4). In light of these facts, Appellants’ statement in their brief that “[t]he [trial court] so instructed the jury that they should find for plaintiffs on that issue,” is clearly inaccurate. Likewise, their claim of juror misconduct is wholly without merit.

IV. CONCLUSION

Appellants argue that they are entitled to a new trial due to the cumulative effect of errors alleged to have occurred at trial. Having failed to identify any error in the proceedings, we affirm the Court of Appeals.

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

GRAVES, J., dissents by separate opinion in which LAMBERT, C.J., joins.

GRAVES, Dissenting Justice.

Respectfully, I dissent from the majority’s decision to affirm the “zero” verdict for pain and suffering.

Michael Bayless was improperly diagnosed with a sprained wrist. In this diagnosis, his doctor told him that the pain from a sprained wrist could be worse than a broken bone, and could last a long period of time. When a physician examines a patient and gives an expert diagnosis, the patient naturally trusts this diagnosis. The fourteen-year-old Bayless, who by all accounts does not seem to be particularly outspoken, did not have any reason to doubt his doctor. Although the pre-print-ed words on his discharge paperwork stated that he should contact his physician if his condition “worsened” or “returned,” his physician directly told him that the pain would persist for a long period of time. Yet, this minor child and his parents were found to be contributory negligent for their failure to second-guess his treating physician sooner. As a result of the improper diagnosis, Michael had an untreated wrist fracture for a two-month period. He played baseball with a fractured wrist that he believed to be a sprain, icing it down and taking over-the-counter medication to alleviate the pain. However, he was ultimately punished for “playing through the pain.”

In affirming the jury’s zero verdict for pain and suffering, the majority fails to adequately address several key points which indicate that Michael necessarily experienced more pain and suffering as a result of the improper diagnosis than he would have had his wrist been properly diagnosed as a fracture in the first place.

First, in considering Dr. Wyrick’s testimony that there is no significant difference in pain from casting versus surgery associated with treating a fractured wrist, it is important to note that this conclusion only refers to the pain associated with healing of the wrist itself, and does not include the pain associated with the surgical procedure. The procedure involved placing Michael under general anesthesia, cutting into Michael’s thigh, harvesting a portion of his thighbone, and inserting the bone into his wrist with a permanent metal screw. Michael would not have undergone this surgery if the fracture had been diagnosed in a timely manner. The majority dismisses the pain associated "with this procedure because it was “performed under general anesthesia.” Anesthesia, of course, wears off, and when it does, there undoubtedly is pain associated when one undergoes such an invasive procedure. There was uncontroverted testimony from Michael that he was fearful of undergoing the operation, the anesthesia made him vomit, his hip felt like somebody had stabbed him and twisted a knife in his bone, and that his wrist felt like someone had “parked a car” on top of it. By the majority’s rationale, any pain associated with invasive surgery is negligible so long as the surgery itself is preformed under anesthesia (which is the general practice this day and age).

The majority also ignores the fact that Michael’s misdiagnosis resulted in a delay of treatment, which in turn caused Michael to endure pain and suffering for an additional two-month period. Although Michael may not have been vocal about his pain, he had a fractured wrist, and definitely experienced pain as a result of it. He certainly would not have played an entire baseball season and postponed treatment for two months if he had known of the fracture from the onset, regardless of whether or not he knew of the fracture at the end of his season.

Pain and suffering damages are long recognized by our jurisprudence. However, this case illustrates an unfairness that may arise in calculating these damages. By its nature, pain and suffering is a subjective experience. In addition, pain and suffering is an abstract, albeit real, impairment. The award for pain and damages, then, seeks to measure this abstract harm. It requires jurors to assess the inherently subjective pain and suffering of another, and then determine the economic value of this noneconomic harm.

It is difficult for an individual to measure one’s own pain, let alone the pain of another. Yet, jurors are required to measure the pain of another with a dollar amount without clear guidance from the court. Instead, guidance comes from the attorneys who have broad latitude to present evidence of pain and suffering, and suggest how these damages should be calculated. See Randall R. Bovbjerg et. al., Valuing Life and Limb in Tort: Scheduling Pain and Suffering, 83 Nw. U.L. Rev. 908, 913-16 (1989).

As a result, pain and suffering awards are unpredictable and varied. Although jurors should have discretion to weigh the facts of a particular case, empirical evidence reveals significant inconsistencies in pain and suffering awards. Bovbjerg, supra, at 917 (analyzing the variance of jury findings on damages in Florida and Kansas City from 1973-1987). As many scholars have noted, this variance and lack of predictability in juror awards runs contrary to the rationality and stability that is a hallmark of the rule of law. See Paul V. Niemeyer, Atoarás for Pain and Suffering: The Irrational Centerpiece of Our Tort System, 90 Va. L. Rev. 1401 (2004); Joseph H. King, Jr., Pain and Suffering, Noneconomic Damages, and the Goals of Tort Law, 57 Smu L. Rev. 163 (2004).

There is, of course, no way for jurors to “feel the pain” of a plaintiff, and as a result, “evidence” of such pain is reduced to factors such as how much an individual complains of pain, or the kind of physical activities that the individual performs. Plaintiffs like Michael, who quietly endure pain and persist with their activities, are punished as a result. I believe that a form of scheduling for noneconomic damages such as pain and suffering will result in greater predictability and fairness in awards. See e.g., Bovbjerg, supra.

Pain and suffering was clearly established in this ease, thus, I find the “zero” verdict to be clearly erroneous.

LAMBERT, C.J., joins this dissent.

      . The Medical Center was named as a defendant in the original lawsuit, but the jury did not find against it. Appellants declined to pursue an appeal as to this portion of the jury’s verdict, exonerating the Medical Center of any liability.

      . In Miller, the plaintiff suffered from a variety of chronic illnesses prior to the accident. The basis of her claim for pain and suffering damages was that the pain from these conditions had been exacerbated by her injuries and had increased in the wake of the accident. We noted that the trial judge’s decision denying retrial on the issue of damages was appropriate ”[b]ecause the evidence at trial supported a finding by the jury that Miller did not suffer additional pain as a result of the accident....” Miller, 42 S.W.3d at 599.

      . Boyer named two expert witnesses, Bruce D. Janiak, M.D. and James L. Evans, M.D. Dr. Evans was unable to testify at the trial due to a scheduling conflict, however Dr. Janiak did testify before the court. Dr. Eiseman did not call any expert witnesses to testify on his behalf.

      . KRS Chapter 44.

      . The doctrine of pure comparative negligence was adopted in Hilen v. Hays, 673 S.W.2d 713 (Ky.1984).