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

text:
    IOS CAPITAL, LLC, Appellant, v. ALLIED HOME MORTGAGE CAPITAL CORPORATION, Respondent, and Kevin Crisp and Jim C. Hodge, Defendants.
    No. ED 84370.
    Missouri Court of Appeals, Eastern District, Division One.
    Nov. 16, 2004.

      Thomas G. Berndsen, Law Office of Thomas G. Berndsen, P.C., St. Louis, MO, for appellant.
    Kevin F. Hormuth, Greensfelder, Hemker & Gale, P.C., St. Louis, MO, for respondent.
   GARY M. GAERTNER, SR., Presiding Judge.

Appellant, IOS Capital, LLC (“IOS”), appeals from the judgment of the trial court finding in favor of Respondent, Allied Home Mortgage Capital Corporation (“Allied”), on IOS’ breach of lease and conversion claims. We affirm.

Allied is a Texas corporation licensed to do business in Missouri and forty-seven other states. Allied is in the business of originating and processing home mortgage loans. Allied had a branch office in Chesterfield, Missouri. Kevin Crisp (“Crisp”) was officially hired as branch manager of the Chesterfield office on August 18, 2000.

IKON is a company that sells photocopy machines. IOS is a finance company that purchases the photocopy machines from IKON and then leases the equipment to customers under written lease agreements. IOS and IKON are not agents of each other.

On October 31, 2002, Christopher Lotsp-eich, an employee of IKON, presented a lease agreement, which contained the details of an agreement to lease a photocopy machine to Allied, to Crisp at Allied’s Chesterfield office. Crisp signed the lease agreement that same day as “Kevin Crisp, Branch Manager” under a heading entitled “Authorized Signer For Customer.” The lease agreement is between Allied and IOS, not IKON. IOS did not sign and accept the lease agreement until January 2, 2003. In a letter dated November 8, 2002, Crisp was notified that the Chesterfield branch office was closed, and that as a result he was terminated from his position as branch manager. On or about November 11, 2002, the copier was delivered to the Chesterfield branch office.

IOS never received any payments for the photocopy machine from Crisp or Allied. IOS filed suit against Allied, Crisp, and Jim Hodge, the President and Chief Executive Officer of Allied (“Hodge”), on August 27, 2003. Count one in the petition was a breach of the lease agreement claim, and count two against Allied was a conversion claim. Hodge was dismissed from the suit without prejudice on November 19, 2003. A bench trial took place on January 12, 2004. Crisp was dismissed from the suit without prejudice by IOS on the day of the trial. The parties stipulated that the amount of IOS’ damages was $32,464.00. On March 5, 2004, the court entered judgment on both counts in favor of Allied, and assessed court costs against IOS. This appeal followed.

In reviewing a bench-tried case, the judgment will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976).

In its first point on appeal, IOS argues that the trial court erred in holding that Crisp was not authorized to sign the lease agreement on behalf of Allied. IOS claims that Crisp had either express actual authority, implied actual authority, or apparent authority to sign the lease agreement on Allied’s behalf.

In its first sub-point, IOS claims that Crisp had an express grant of actual authority to enter into the lease agreement on Allied’s behalf.

Liability of a principal for the acts of an agent may occur as the result of an express grant of authority by the principal. K & G Farms v. Monroe County Service Co., 134 S.W.3d 40, 43 (Mo.App. E.D.2003).

IOS supports the argument that Crisp had express authority to enter into the lease agreement by asserting that Allied’s branch manual requires each branch office to obtain a photocopy machine. However, Crisp’s employment agreement with Allied states:

It is specifically understood and agreed that [Crisp] shall have no authority to act on behalf of, or to bind Employer with respect to any contract or agreement unless [Crisp] has first been otherwise so authorized in writing by one of the following officers of Allied Mortgage Capital Association.

It is clear from this language in the employment agreement that Crisp did not have express authority to enter into a lease agreement with IOS on Allied’s behalf without the written approval of specified Allied officers. Crisp did not get approval from any of the officers listed in the employment agreement before purportedly entering into the lease agreement on Allied’s behalf. Therefore, Crisp did not have express authority to enter into the lease agreement on Allied’s behalf. Sub-point denied.

In its second sub-point on appeal, IOS argues Crisp had implied authority to enter into the lease agreement on Allied’s behalf.

Implied authority is actual authority which the principal intended the agent to possess that lacks direct proof, but rather is implied from relevant facts and circumstances as reasonably necessary to accomplish the purpose or purposes of the expressly conferred authority. Mark Century Corp. v. Tiger Broadcasting Co., 509 S.W.2d 737, 739 (Mo.App.1974). Implied authority concerns only the extent of an express authority actually granted. Id. If the agent does not have actual authority, then no authority can be implied. Id.

This claim that Crisp possessed implied actual authority to bind Allied to the lease agreement is without merit. As stated previously, it is clear from Crisp’s employment agreement that he did not have express authority to enter into the lease agreement. Because IOS clearly indicated in the employment agreement that Crisp had no authority to enter into the type of lease agreement at issue without proper approval, no authority to enter into the agreement can be implied. Therefore, Crisp did not have implied authority to enter into the lease agreement on behalf of Allied. Sub-point denied.

In its third sub-point on appeal, IOS asserts Crisp had apparent authority to enter into the lease agreement on Allied’s behalf.

Apparent authority is created by the conduct of the principal that causes a third party to develop a reasonable belief that another person has the authority to act for the principal. Century Financial Services v. First Bank, 996 S.W.2d 92, 94 (Mo.App. E.D.1999). In order to establish apparent authority, the party relying on this authority must demonstrate: (1) the principal consented or knowingly allowed the agent to exercise authority; (2) the person relying on such authority had a good faith reason to believe and actually believed the agent possessed authority; and, (3) the person relying on the authority changed his position and will be harmed if the principal is not bound by the transaction executed by the agent. Ritter v. BJC, 987 S.W.2d 377, 386 (Mo.App. E.D.1999).

IOS argues that because Allied held Crisp out to the public as a branch manager, in charge of day-to-day management of the branch office, it was reasonable for a \ third party to believe Crisp had authority to bind Allied to a lease agreement for a copier.

The deposition of Steven Young, an IOS employee, was read to the court during trial. Young stated that IOS did not communicate with any Allied employees about the authority of Crisp to enter into the lease agreement prior to its execution. Claire Bynum, a financial sales specialist for IOS (“Bynum”), also testified that she did not know what IOS relied on in entering into the lease agreement. She further stated that Lotspeich, as an IKON employee who spoke with Crisp, was not an agent of IOS and that IKON and IOS are separate companies. Lotspeich testified that he did not know what IOS did to investigate Crisp’s authority to sign the lease agreement. In sum, even assuming arguendo that it would have been reasonable for IOS to believe that Crisp, based on his title as branch manager, possessed authority to sign the lease agreement on behalf of Allied, there is no evidence in the record to support a finding that IOS actually relied on such authority when it executed the lease agreement. Therefore, it cannot be said that the court’s finding that Crisp did not have apparent authority to enter into the lease agreement is against the weight of the evidence. Sub-point denied.

In its second point on appeal, IOS argues that the trial court erred in holding that Allied was not liable for conversion of the copier.

Conversion is the unauthorized assumption and exercise of ownership rights over the personal property of another party to the exclusion of the owner’s rights. Muir v. Ruder, 945 S.W.2d 33, 35 (Mo.App. E.D.1997). The elements of a cause of action for conversion are: (1) the plaintiff was the owner of the property or entitled to possession of the property, (2) the defendant took possession of the property with the intent to exercise some control over it, and (3) the defendant thereby deprived the plaintiff of the right to possession of the property. Id.

There is evidence that IOS is the owner of the copier, because the lease agreement specifically says that: “We [IOS] are the sole owner and title holder to the Equipment.” Bynum also verified that IOS bought the copier from IKON, and attempted to lease it to Allied. However, as mentioned earlier, Crisp did not have actual or apparent authority to bind Allied to the lease agreement he signed. Secondly, the copier was not even delivered to the Allied branch office until after the branch office was closed. Allied did not learn of the lease agreement and delivery of a copier until it received a demand letter from IOS dated August 18, 2003. Allied did not receive a copy of the lease until it was served with this lawsuit. The current location of the copier is unknown to both parties. While this court sympathizes with IOS’ quest to recover their copier, after reviewing the record it simply cannot be said that Allied at any time took possession of the copier with the intent to exercise some control over it or deprived IOS of its right to possession. Therefore, the court did not err in holding that Allied was not liable for conversion. Point denied.

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

SHERRI B. SULLIVAN and BOOKER T. SHAW, JJ„ concur.


source: Caselaw Access Project

author: KATHIANNE KNAUP CRANE, Judge.

license: Public Domain

text:
    Paul H. BEHLMANN, Kenneth A. Behlmann, and F. Lee Behlmann, d/b/a/ Behlmann Investments, Plaintiffs/Appellants, v. L. Marilyn WEAKS, D.M.D., Defendant/Respondent.
    No. ED 84392.
    Missouri Court of Appeals, Eastern District, Division Two.
    Nov. 16, 2004.

      Robert S. Flavin, Robert S. Flavin, P.C., Florissant, MO, for appellants.
    Patrick R. Gunn, Sharon R. Wice, Gunn and Gunn, St. Louis, MO, for respondent.
   KATHIANNE KNAUP CRANE, Judge.

Plaintiffs, owners of a commercial property, filed an amended petition to recover rent and damages, claiming that defendant was a lessee who had abandoned the premises and stopped paying rent before the end of a five-year renewal term. Defendant filed a motion for summary judgment, contending that she had never exercised the option to renew the lease and therefore was not obligated by the terms of the expired lease. Plaintiffs appeal from the trial court’s entry of summary judgment in defendant’s favor. We reverse and remand.

On June 17, 1993, plaintiffs, Paul H. Behlmann, Kenneth A. Behlmann, and F. Lee Behlmann, d/b/a Behlmann Investments, entered into a five-year “Commercial Lease” of office space with defendant, L. Marilyn Weaks, D.M.D. Although the written lease had other dates, the parties orally agreed that the lease would begin on October 15, 1993 and end on October 14, 1998. The printed and typewritten paragraph of the lease specifying the term and rental contained the handwritten addition:

“Lessor grants Lessee Two (2) Five (5) year option periods. Option period rental rates to be adjusted by the Consumer Price Index.” The lease further provided:
12. Lessee must notify Lessor Ninety (90) days prior to renewal of Lease or said Lease will automatically be renewed. Lessor must provide written notification of lease expiration 30 days prior to date of automatic renewal.

The first sentence was typewritten; the second sentence was handwritten.

On June 15,1998, plaintiffs’ agent, Linda L. Behlmann, sent a letter to defendant, notifying her of the lease’s expiration on October 14, 1998. She continued: “If we do not hear from you prior to July 15, 1998, we will assume you wish to exercise your Five (5) year renewal option period, and will send out the appropriate information.” On June 19, 1998, defendant mailed a written response advising, “It would be my intent to renew the lease; and, since the leasehold improvements have been paid for, an appropriate reduction in the monthly rent is anticipated.” On August 14,1998, plaintiffs’ agent replied:

Per your instructions in letter dated June 19, 1998, the lease entered into between you and Behlmann Investments on the 17th day of June 1993 will extend for a period of Five (5) years.
The lease term is extended for a period of Five (5) years, through and including October 14, 2003. The lease provides for a change in rent during the new lease period, with the rent being calculated as provided under the terms of the lease. The rental for the new lease term if [sic] Thirty Two Thousand Nine Hundred Nine and 04/100 ($32,909.04) dollars per year, payable in monthly installments of Two Thousand Seven Hundred Forty Two and 42/100 ($2742.42) dollars. You should begin paying this new amount commencing with the rent payment which is due on the 1st day of November, 1998.

Defendant remained in possession of the premises and paid the increased rent to plaintiffs. On April 30, 2002, defendant vacated the property.

Plaintiffs subsequently filed a petition seeking to recover unpaid rent through the end of a five-year term ending October 14, 2003 (less amounts recouped by a subsequent rental) and the cost of repairs and taxes, as provided in the lease. Defendant filed a motion for summary judgment, claiming that, because the minds of the parties never met on the terms of the renewal, defendant did not exercise her option to renew and was a month-to-month tenant who was no longer bound by the terms of the expired lease.

For their sole point on appeal, plaintiffs assert that the trial court erred in granting defendant’s motion for summary judgment because genuine issues of material fact remained on the questions of whether defendant renewed the lease, damaged the property, failed to pay expenses during her tenancy, and wrongfully removed a sign from the premises.

Rule 74.04(b) allows a defending party to file a motion for summary judgment. A summary judgment movant who is a “defending party” need not controvert each element of the non-movant’s claim in order to establish a right to summary judgment. ITT Commercial Finance v. Mid-Am. Marine, 854 S.W.2d 371, 381 (Mo. banc 1993). Rather, a “defending party” may establish that right by showing:

(1) facts that negate any one of the claimant’s elements facts, (2) that the non-movant, after an adequate period of discovery, has not been able to produce, and will not be able to produce, evidence sufficient to allow the trier of fact to find the existence of any one of the claimant’s elements, or (3) that there is no genuine dispute as to the existence of each of the facts necessary to support the movant’s properly-pleaded affirmative defense.

Id. Any one of these showings establishes a right to judgment as a matter of law. Id. We review the grant of summary judgment de novo. Id. at 376.

Defendant’s summary judgment motion was based on her interpretation of the lease as giving her an “option to renew” and that the lease “expired by its terms” if she did not express a definite and unqualified intent to renew. This argument ignores the clause of the lease that provides that renewal was automatic unless defendant notified plaintiffs ninety days prior to the date of renewal. For purposes of this appeal, we do not need to decide if the automatic renewal clause controls or whether, because of this alleged ambiguity, the lease gave defendant an option to renew. Under either interpretation of the lease, defendant did not adduce facts in the summary judgment record that showed as a matter of law that the lease was not renewed.

Under an automatic renewal clause in a lease, the right not to renew is for the lessee’s benefit. Charter Oak Inv. Co. v. Felker, 60 S.W.2d 655, 657 (Mo.App. 1933). A party who has sent a notice of termination may elect to abandon the notice to terminate and hold over and pay rent according to the terms of the lease. Id. This action gives rise to an automatic renewal. Id. at 658. The record contains defendant’s letter, which stated an intention to renew, but expressed an anticipation of reduced rent. Even if this letter was sufficient to constitute notice of an intention not to renew under the automatic renewal clause, defendant abandoned her right not to renew by holding over for three and one-half years and paying the increased rent, instead of standing upon her letter. Id. at 657. Plaintiffs had the right to consider defendant’s holding over as an automatic renewal of the lease, and under these circumstances, the law implies that the lease was extended according to its terms. Id. at 658. The summary judgment record does not contain facts that would prevent the application of Felker if the lease is construed as providing automatic renewal.

On the other hand, if a lease gives an option to renew, a tenant’s notice of renewal must indicate a definite and unqualified determination to exercise the option. Jones v. Landmark Leasing, Ltd., 957 S.W.2d 369, 374 (Mo.App.1997). Defendant’s notice of renewal did not accept the lease in the form tendered, and the June 19 letter, by itself, did not create an acceptance of the renewal of the lease term. Id.

However, plaintiffs then responded with a letter indicating that the lease would extend for a period of five years with increased rent calculated under the terms of the lease. The summary judgment record indicates that defendant did not communicate a response to plaintiffs’ August 15 letter. However, the record shows that, after the original lease term expired, defendant remained in possession of the premises for three and one-half years and paid the increased amount of rent, which plaintiffs accepted. If a lessee holds over without giving the required notice, the lessor may waive the notice requirement, and the combination of these events constitutes an exercise of the option to renew. Grand Invest. v. Connaughton, Boyd & Renter, 119 S.W.3d 101, 107 (Mo.App. W.D.2003). The law implies that the lease will continue in accordance with the original terms in the lease. Id.

“However, ‘this principle is qualified if there is something else present, or if something in the conduct of the parties discloses a different intention.’ ” Id. (quoting Pelligreen v. Century Furniture & Appliance Co., 524 S.W.2d 168, 171 (Mo.App. St. Louis 1975)). An example of “something else present” is “if at the time of the expiration of the original term specified in the lease there were any negotiations had or pending between the parties relative to a new lease or renting, the holding over might well be regarded as merely an agreed or oral tenancy while a new contract was being made.” Blanchon v. Kellerstrass Distilling Corporation, 200 Mo.App. 610, 208 S.W. 484, 486 (1919).

Examples of conduct sufficient to disclose a different intention are found in Pelligreen. There, the tenant was required to pay increased rent, regardless of whether or not the option was exercised; the owner offered the property for sale after the lease had expired during the tenant’s holdover period; and the owner gave the tenants notice to vacate the property. The summary judgment record in this case does not contain any facts showing conduct that discloses an intention not to renew at the time defendant held over and paid the increased rent.

In her summary judgment motion, defendant did not show facts that established as a matter of law that the lease had not been renewed according to its terms until October 14, 2003. Therefore, defendant did not establish a right to summary judgment on plaintiffs’ claim for rent and other amounts due under the lease.

The judgment of the trial court is reversed, and the case is remanded.

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


author: HERSCHEL PICKENS FRANKS, P.J., E.S.,

text:
    Jerry Lou ROGERS v. David Stanley DAVIS and Vanetta Davis.
    Court of Appeals of Tennessee, Eastern Section, at Knoxville.
    March 22, 2004 Session.
    May 26, 2004.
    Permission to Appeal Denied by Supreme Court Nov. 8, 2004.
    William P. Biddle, III, Athens, Tennessee, for Appellants.
    Michael E. Jenne, Cleveland, Tennessee, for Appellee.
   OPINION

HERSCHEL PICKENS FRANKS, P.J., E.S.,

delivered the opinion of the court,

in which CHARLES D. SUSANO, JR., J., and D. MICHAEL SWINEY, J., joined.

The Trial Court awarded plaintiff Judgment for rents on property occupied by defendants, but refused Judgment for defendants for improvements made by them to plaintiffs property. On appeal, we reverse and award defendants Judgment for improvements made to the property and modify plaintiffs Judgment for the rental value of land.

Plaintiffs Complaint alleged that she was the owner of real property with a life estate, and defendants had entered on the land at issue in 1995 and made improvements without owning the property and further that they have refused to pay rent and taxes. The Complaint asked that a Judgment be entered for possession and that plaintiff recover all rents and profits of the land while defendants had been in possession and damages for waste or other injuries to the land, “as well as taxes which have yet to be paid by defendants.”

In their Answer, defendants stated that the plaintiff was holding the five acres in trust for defendants, based upon representations and conduct of their parents C.L. and Nannie Davis during their lifetime. Further, defendants said in reliance upon the representations of their parents, that they constructed a valuable residence on the property and occupied the same with the full knowledge and consent of their parents. They admitted defendants should pay a reasonable rent to plaintiff for the use and occupancy of the land and any and all property taxes assessed against the property arising from the construction of their residence. Additionally, they countered that if they are evicted from the property that they have and recover from plaintiff the value of the residence to the extent that it enhanced the value of the property.

The parties are defendant, brother (and his wife) and sister, the Plaintiff. Their parents C.L. Davis and Nannie Davis, owned 130 acres in Polk County, Tennessee, as tenants by the entirety. C.L. died in 1996 and Nannie died on October 16, 1998.

The parents’ home was on their 130 acre property, but during the last ten years of their fives they resided with the plaintiff, their daughter, whose home was also located on the parents’ land.

Another sister had built a residence on her parents’ property in 1978, and defendants were given permission by their parents to construct a log home on five acres of the 130 acres. Defendants began construction of their home in 1994 and built a log home on the property during the next year. At trial, defendants admitted that C.L. Davis told them he would not give them a deed. However, they testified he also assured them that he would “make it right”.

The Last Wills of C.L. Davis and Nannie L. Davis were both executed on June 9, 1995. C.L. died in 1996 and Nannie died on October 16, 1998. The terms of their Wills are identical and the pertinent provisions of the Last Will and Testament of Nannie L. Davis are as follows:

B. All my realty shall go to my daughter, Jerry Lou Rogers, for fife with remainder to Tonya Lowe and Davis (Skip) Rogers. Both Judy Ann Bivens and David Stanley Davis were told that they would never receive a deed for the land they later built their houses on. They use the land only by permission which I in my lifetime could have revoked and afterward my devisees can revoke at will.
C. My other children, viz: Judy Ann Bivens, David Stanley Davis, Don C. Davis, and Randall W. Davis, have not been the help to me and my spouse as have the legatees under this will and therefore I consider that what I may have already given them is their share.

After the mother’s death, plaintiff offered to rent the property to defendants on a month-to-month basis, which defendants rejected, insisting that they wanted a long term lease. The parties stipulated at trial that plaintiff repudiated the Davis’ claim to the property by letter of counsel dated March 7, 2001, and at trial the parties stipulated that the rental value of the five acres occupied by the defendants was $150.00 per month in its unimproved state.

Following trial, the Chancellor held defendants occupied and built a home on the land with the permission of their parents, and ordered that plaintiff recover of defendants a monthly rental of $150.00 per month for five acres from August 1994 through November 3, 2002, but ordered that defendants have and recover from the plaintiff the value of the improvements in the amount of $97,750.00, plus interest from the date of the entry of the Judgment. The judgments to be set off one against the other.

The Chancellor subsequently responded to a Motion to Alter and Amend the Judgment by ruling that the original Order should have stated the value of the unimproved land was $250.00 per month, and concluded that the plaintiff was entitled to $50.00 per acre per month for the five acres occupied by defendants. Further, that defendants never had color of title to the land and could only seek compensation for permanent improvements if they had a color of title. She denied the defendants any recovery for their improvements to the land.

Defendants have appealed raising these issues:

1. The Court erred in finding that defendants may only seek compensation for improvements made to the plaintiffs property if they had color title.
2. The Court erred in finding the rental value of the plaintiffs property was $250.00 a month, or that rent was due from January 1, 2000.

The Chancellor relied on our case of Uhlhorn v. Keltner, 723 S.W.2d 131 (Tenn.Ct.App.1986), in revising the Judgment. TJhl-hom does not control the facts of this casen The Rule set forth in Uhlhom applies to a party “for mistaken improvements” under TenmCode Ann. § 29-15-123 . In Uhlhorn the defendants made improvements to the land owned by the plaintiffs without plaintiffs’ permission, but in the case before us, defendants occupied the land with a parent’s permission for the purpose of improving the land by building their home.

The Rule in equity applicable here was set forth in Ridley and Wife v. M’Nairy, et al., 21 Tenn. 174, 177, 1840 WL 1560 (Tenn.1840), where the Court said:

We are of opinion that, where the owner of real estate puts a relative into possession thereof, for the purpose of cultivating and improving the same, under the promise of a future gift, and the occupier, influenced by such expectation, makes lasting and valuable improvements upon the premises, with the knowledge of the owner, such occupier will be entitled to the full value of the improvements, although they may exceed the amount of the rents and profits.

This Rule was applied by this Court in Sequatchie Coal Co. v. Sunshine C. & C. Co., 25 Tenn.App. 604, 166 S.W.2d 402 (1942). The rule is widely followed by American courts. In an early opinion by the Ohio Supreme Court, the rule was explained in Preston v. Brown, 35 Ohio State (1828, 1878):

It is a familiar rule, which a court of equity always enforces, that if an owner of an estate stands by and suffers another, acting in good faith and without notice to the title, to place improvements thereon, which add permanent value to the estate, such improvements will constitute a hen thereon.

Accord: Hughey v. Bennett, 568 S.W.2d 46, 264 Ark. 64 (1978).

The defendants were permitted by the owners to improve the land and equity, upon transfer by the owners to another, requires the later owner, who evicts, to reimburse the party who has improved the land under these circumstances.

The Chancellor found the value of the improvements to the land made by the defendants to be $97,750.00. The evidence does not preponderate against this value. Tenn. R.App. P. 13(d). We hold that defendants are entitled to recover from plaintiff this amount, plus interest from the date of the Trial Court’s Judgment. In turn, the plaintiff is entitled to possession of the property and monthly rental for the unimproved land from and after the date of Nannie L. Davis’ death, October 16, 1998 in the amount of stipulated rental value of the five acres of $150.00 per month, which will be set off against defendants’ Judgment.

Defendants testified they paid taxes on the improved value of the land, but not the underlying land tax. In any event, the tax assessor testified as to the taxes owed on the land from 1996, including the land value and the improved value. The defendants will be required to reimburse plaintiff for all taxes on this land paid by plaintiffs from 1998 forward to the time plaintiff gets possession of the property. These amounts are set forth in the tax assessor’s testimony in the record.

Plaintiff has raised the issue of admissibility of defendant’s statement that his father told him he would be taken care of, and argues that this was an effort to vary the terms of the parents’ Wills. The Will recites that defendants were told they would not receive a deed to the property, and indeed, defendant Davis admitted in his testimony that he was told he would not receive a deed to the property, but that in addition to the express permission to build, he was assured by his father that he would “be taken care of’. This testimony would not be admissible in an attempt to vary the terms of the Will. However, it was admissible to explain defendants’ actions.

Upon remand, a Judgment will be entered for the amount of the improvements to the land in favor of the defendants, and the plaintiff is entitled to set off the rental value of the land and the taxes paid by the plaintiff on this portion of the land as explained in this Opinion.

The cost of the appeal is assessed one half to each party.

      . Tenn.Code Ann. § 29-15-123 provides as follows:
      Improvement Set-Off — Persons holding possession in good faith, under color of title, are entitled to have the value of their permanent improvements set-off against the rents and profits which the plaintiff may recover.


author: HOLLY M. KIRBY, J.,

text:
    William B. TANNER v. John W. HARRIS, Jr., Trustee.
    Court of Appeals of Tennessee, Western Section, at Jackson.
    Sept. 17, 2003 Session.
    Dec. 31, 2003.
    Permission to Appeal Denied by Supreme Court June 21, 2004.

      John W. Harris, Jr., Trustee, Memphis, Tennessee, pro se.
    Gary E. Veazey, Memphis, Tennessee, for the Appellee William B. Tanner.
   OPINION

HOLLY M. KIRBY, J.,

delivered the opinion of the court,

in which DAVID R. FARMER, J., and ALAN E. HIGHERS, J., joined.

This case involves the collateral attack of a judgment. In the underlying proceedings, the defendant filed a lawsuit in general sessions court against the plaintiff individual. Process was served on the registered agent to accept service of process for the plaintiffs corporation. The plaintiff did not appear in general sessions court, and a default judgment was rendered in favor of the defendant. This was not appealed. The plaintiff then filed this separate lawsuit in chancery court to set aside the general sessions default judgment, claiming he was not served with process in the general sessions proceedings. The chancery court issued an order setting aside the general sessions judgment. The defendant appeals. We affirm, holding that the chancery court had jurisdiction to determine whether service was proper and finding no abuse of discretion on the part of the chancery court in setting aside the general sessions default judgment.

This case involves the collateral attack in chancery court of a general session court judgment. In the underlying general sessions proceedings, Defendant/Appellant John W. Harris (“Harris”), proceeding pro se, sought injunctive relief as well as compensatory and punitive damages in general sessions court against PlaintiffAp-pellee William B. Tanner, (“Tanner”) individually, for Tanner’s alleged impermissible placement of a billboard on Harris’s property. The general sessions court warrant lists Yanna Kimbrough (“Kim-brough”), secretary for attorney Martin Grusin (“Grusin”), as having accepted service of process on Tanner’s behalf as his agent. Tanner did not appear at the October 29, 1996 hearing in general sessions court, and Harris was granted a default judgment against him. On November 21, 1996 Tanner filed a motion in general sessions court to set aside the default judgment, arguing that he had not been served process. On December 12, 1996, the general sessions court entered an order denying Tanner’s motion, reasoning that a general sessions court is not permitted to set aside a final judgment under Travelers Indemnity Co. v. Callis, 481 S.W.2d 384, 385 (Tenn.1972) and, in addition, finding that the face of the return of the process server established conclusively that Kim-brough was authorized to accept service on Tanner’s behalf.

In March 1997, Tanner filed a lawsuit in Chancery Court, seeking to set aside the general sessions court judgment, again asserting that process was not served on either himself or an authorized agent. Harris filed a motion to dismiss for lack of subject matter jurisdiction, arguing that the Chancery Court did not have jurisdiction to hear appeals from general sessions court. Harris’s motion to dismiss was denied and the Chancery Court went on to hear the case on the merits. Throughout the proceedings, Harris maintained that the Chancery Court did not have subject matter jurisdiction.

At trial, the chancellor heard testimony from attorney Grusin and from the private process server who served the warrant on Kimbrough, Richard Billings (“Billings”). Billings testified that Grusin consented to accept the service of process on behalf of Tanner, and told Billings to leave the general sessions warrant with his secretary, Kimbrough. Billings testified that he followed these instructions. Grusin, on the other hand, testified that though he was the registered agent to accept process for Tanner’s corporation, he had never been authorized to accept service of process for Tanner, individually, nor had he told Billings otherwise. Grusin also described his law office’s procedures for accepting service of process on behalf of a client, including an explanation of the accompanying documentation. He testified that, in this case, there was no documentation to indicate that his office had accepted service of process on behalf of Tanner, individually. He also testified that he did not see the general sessions warrant Billings testified to leaving with his secretary, Kimbrough.

After hearing the testimony, the trial court found that Tanner had not been served process. In his oral ruling, the chancellor said:

I’m not saying that anyone’s telling anything less than the truth, but I think there was a difference between communication to give the impression to Mr. Grusin that Mr. Billings was talking about Tanner Peck LLC, and Mr. Billings thinking he’s talking about Tanner Peck Outdoor Sign Company.
But I don’t think they must have been exactly communicating about William B. Tanner because in Mr. Billings’s mind he may have thought he was talking about William B. Tanner, individually.
But I’m equally convinced that Mr. Grusin would have set him straight and said, no, I am sorry, I can’t accept that on Mr. William B. Tanner, individually because that’s not my capacity.
In any event, I find for whatever reasons, Mr. William B. Tanner, individually was not served.

Thus, the chancellor found both witnesses to be credible in relating their impressions of the events surrounding the attempted service of process, but that a lack of communication resulted in no service of process on Tanner individually. The chancellor set aside the judgment of the general sessions court. Harris filed a motion to alter or amend the order. This motion was denied. Harris now appeals the decision of the Chancery Court to set aside the general sessions court judgment against Tanner.

The issues on appeal are (1) whether the Chancery Court had jurisdiction to set aside the general sessions court judgment and (2) if so, whether the Chancery Court erred in doing so.

Because the case was tried without a jury, we review the chancellor’s factual findings de novo accompanied by a presumption of correctness unless the evidence preponderates otherwise. Tenn. R.App. P. 13(d); Campbell v. Fla. Steel Corp., 919 S.W.2d 26, 35 (Tenn.1996). We give particular deference to the credibility accorded to witnesses by the trier of fact, which makes the initial determination of the weight, faith, and credit to be given to the testimony of a witness. Estate of Walton v. Young, 950 S.W.2d 956, 959 (Tenn.1997). The trial judge, who has the opportunity to observe the witnesses in their manner and demeanor while testifying, is in a far better position than this Court to determine credibility. McCaleb v. Saturn Corp., 910 S.W.2d 412, 415 (Tenn.1995); Whitaker v. Whitaker, 957 S.W.2d 834, 837 (Tenn.Ct.App.1997). The trial court’s legal conclusions are reviewed de novo with no presumption of correctness. Campbell, 919 S.W.2d at 35.

The first issue on appeal is whether the Chancery Court had jurisdiction to set aside the general sessions court judgment. Harris asserts that, under section 27-5-108 of the Tennessee Code Annotated and Graves v. Kraft Gen. Foods, 45 S.W.3d 584, 586 (Tenn.Ct.App.2000), the chancery court did not have subject matter jurisdiction to hear Tanner’s claim. Harris argues that section 27-5-108 requires that the appeal of a judgment by a general sessions court must be to circuit court, not chancery court, and must be filed within ten days of the judgment. He contends that Graves establishes that the chancery court does not have jurisdiction to hear an appeal from general sessions court. Since Tanner’s lawsuit was filed in chancery court, not circuit court, and was filed well beyond the ten-day limit, Harris argues, Tanner not only filed his appeal in the wrong court, but he filed it too late.

Harris’s argument on appeal is based on .. the premise that this action is an appeal from a general sessions court judgment. It is not. Rather, Tanner’s complaint was a collateral attack on the general sessions court’s judgment, which the chancery court has jurisdiction to hear in limited instances. In Cullum & Maxey Camping Center, Inc. v. Adams, this Court observed: “ ‘[A] suit in equity may be prosecuted to secure relief against a decree or judgment rendered by a court which did not have jurisdiction of the person of the complaining party affected by it.’ ” Cullum & Maxey Camping Ctr., Inc. v. Adams, 640 S.W.2d 22, 24 (Tenn.Ct.App.1982) (quoting Rule v. Bell, 617 S.W.2d 885, 886 (Tenn.1981)).

The circumstances under which an independent action may be brought to collaterally attack a judgment are discussed in Jerkins v. McKinney, 533 S.W.2d 275 (Tenn.1976). In Jerkins, the Court adopted the following standard:

“Generally, such an independent action [to set aside a judgment] must show a recognized ground, such as fraud, accident, mistake or the like, for equitable relief and that there is no other available or adequate remedy. It must also appear that the situation in which the party seeking relief finds himself is not due to his own fault, neglect or carelessness. In this type of action, it is fundamental that equity will not grant relief if the complaining party ‘has, or by exercising proper diligence would have had, an adequate remedy at law, or by proceedings in the original action * * ⅜ to open, vacate, modify or otherwise obtain relief against, the judgment.’ The granting of relief in this unusual type of proceeding lies largely within the discretion of the trial judge.”

Id. at 281-82 (quoting Winfield Assoc., Inc. v. Stonecipher, 429 F.2d 1087, 1090 (10th Cir.1970)). Thus, in the instant case, for Tanner to bring an independent action in Chancery Court to collaterally attack the general sessions judgment, he must show a recognized ground for equitable relief, “such as fraud, accident, mistake or the like.” In addition, he must show that there was no other available or adequate remedy.

We address first the requirement that Tanner have no other available or adequate remedy. Here, Tanner alleges that he was not served with the general sessions court warrant. There is no indication in the record that Tanner knew of the default judgment against him within the ten-day period in which an appeal could have been filed. The record indicates that, shortly after the ten-day period for appeal had elapsed, Tanner filed a motion in general sessions court to set aside the default judgment. This motion was correctly denied on the basis “that Rule 60 of the Tenn.R.Civ.P., which provides a mechanism for obtaining relief from a judgment, [is] not applicable in a general sessions court.” Jones v. McMurray, No. M2000-01959-COA-R3-CV, 2001 WL 1097052, at *1 (Tenn.Ct.App. Sept.20, 2001). An appeal from the denial by the general sessions court of the motion to set aside would have been futile; the circuit court or an appellate court would have no choice but to affirm, since the denial of the motion by the general sessions court was correct. Thus, in this case, Tanner had no adequate remedy other than an independent action to collaterally attack the general sessions court default judgment.

As noted above, Tanner was required to establish a recognized ground for equitable relief, such as fraud or mistake. In this case, after hearing the testimony, the Chancery Court concluded that Grusin thought Billings’s inquiry was whether he was the registered agent for Tanner’s corporation, while Billings thought Grusin said that he was the registered agent to accept service of process for Tanner individually, leading to the mistaken conclusion that serving Grusin was adequate service of process on Tanner individually. After hearing the testimony presented, the Chancery Court found that such a mistake occurred, and after review of the record and with deference to the credibility determinations made by the trial judge, we cannot conclude that the evidence preponderates against the trial court’s finding. Thus, we find that the Chancery Court had jurisdiction to consider Tanner’s independent lawsuit to set aside the default judgment entered against him by the general sessions court.

In addressing the second issue on appeal, as noted above, the decision of whether to grant the equitable relief of setting aside the judgment “lies largely within the discretion of the trial judge.” Jerkins, 533 S.W.2d at 282. Under the circumstances in this case, we cannot conclude that the Chancery Court’s decision to set aside the general sessions court judgment was an abuse of discretion. Thus, the decision of the Chancery Court is affirmed.

Finally, Tanner asks for damages, costs, and expenses of this appeal under section 27-1-122 of the Tennessee Code Annotated, arguing that this appeal is frivolous. Since Harris raised on appeal a legitimate issue regarding whether the Chancery Court had subject matter jurisdiction to hear this case, we decline Tanner’s request.

The decision of the trial court is affirmed. Costs are taxed against Defendant/Appellant John W. Harris, and his surety, for which execution may issue if necessary.

        . The chancellor also dismissed a counter-complaint included in Harris's answer. Harris does not appeal the dismissal of his counter-claim. (Reply Brief at 9)

      . In Jerkins, the Court also discusses an independent lawsuit pursuant to Rule 60 of the Tennessee Rules of Civil Procedure to seek relief from a final judgment. Jerkins, 533 S.W.2d at 281. We do not address Rule 60 in this appeal, since the record in this case contains no indication that Tanner’s chancery court lawsuit was filed pursuant to Rule 60.

      . Harris argues that Grusin had a duty to notify Tanner of the general sessions warrant delivered to his office, since Grusin had from time to time represented Tanner individually, citing Jarvis v. Jarvis, 664 S.W.2d 694, 696-97 (Tenn.Ct.App.1983). Jarvis is distinguishable since it involves a domestic case over which the court had continuing jurisdiction. Id. at 696. Moreover, there are no facts in the record supporting the assertion that service of process on Grusin constituted service on Tanner, particularly in light of Grusin’s assertion, apparently credited by the Chancery Court, that he did not see the general sessions warrant. See Id., 664 S.W.2d at 696-97. Therefore, this argument is without merit.


author: HERSCHEL PICKENS FRANKS, J.,

text:
    Nelson Keith FOSTER v. STATE of Tennessee.
    Court of Appeals of Tennessee, Eastern Section, at Knoxville.
    Submitted on Briefs, March 24, 2004.
    April 14, 2004.
    Permission to Appeal Denied by Supreme Court Oct. 4, 2004.

      Nelson Keith Foster, Whiteville, Tennessee, pro se.
    Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General, and Tiffany Baker Cox, Assistant Attorney General, Nashville, Tennessee, for Appellee.
   OPINION

HERSCHEL PICKENS FRANKS, J.,

delivered the opinion of the court,

in which CHARLES D. SUSANO, JR., J., and D. MICHAEL SWINEY, J., joined.

Plaintiffs civil rights action against an Assistant District Attorney for prosecuto-rial misconduct was dismissed by the Chancellor. On appeal, we affirm.

Plaintiff filed an action styled “Motion for Declaratory Judgment”, naming several parties as defendants, which essentially was a civil rights action based on 42 U.S.C. § 1983. According to the Complaint, plaintiff was declared an habitual traffic offender on September 9, 1994. As to the appellee, Robert Montgomery, the Complaint alleged “that the respondent, Robert Montgomery, Assistant District Attorney, committed prosecutorial misconduct” by the way and manner he prosecuted that action against plaintiff.

Appellee filed a Motion to Dismiss pursuant to Tenn. R. Civ. P. Rule 12.02(1) setting forth that appellee was immune under the doctrine of sovereign immunity for his initiating and pursuing the criminal prosecution against plaintiff, and that the statute of limitations barred the plaintiffs action.

The Trial Court dismissed the action on the grounds that the action was barred by the doctrine of sovereign immunity as to Robert Montgomery, and expressly preter-mitted the statute of limitations defense. Plaintiff on appeal raises these issues:

(1) whether any grant of absolute immunity, from civil liability, is available to prosecutors for constitutional violations committed in the initiating of a civil proceeding;
(2) whether the Chancery Court applied the proper standard, in holding that appellee-respondent Robert Montgomery had absolute immunity from civil liability, for the acts and functions performed in initiating and pursuing a civil proceeding.

The State’s brief sets forth the issues raised by plaintiff, and in addition raises whether the statute of limitation bars appellant’s claim, and whether appellant may collaterally attack his underlying criminal conviction in a lawsuit for civil rights violations.

Plaintiffs Complaint shows on its face that he was declared an habitual traffic offender on September 9, 1994, and in October 1988 was sentenced to three consecutive three-year sentences for violating the habitual traffic offender status. This Complaint was not filed until November 22, 2002, eight years after having been declared as an habitual traffic offender, and four years after being sentenced for violating his habitual traffic offender status.

The dispositive issue on appeal is whether this action is barred by the one-year statute of limitations.

According to federal and state law, “[I]n all actions brought under 1983 alleging a violation of civil rights or personal injuries, the state statute of limitations governing actions for personal injuries is to be applied.” Berndt v. State of Tennessee and Lakeshore Mental Health Institute, 796 F.2d 879-883 (6th Cir.1986); Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 1947, 85 L.Ed.2d 254 (1985). In this State,-, the statute of limitations for civil rights actions is one year. Tenn.Code Ann. § 28-3-104(a). We affirm the Trial Court’s Judgment because plaintiffs action is time-barred.

In our discretion, we pretermit discussion of the issue of prosecutorial immunity, since this action is time-barred.

We affirm the Judgment of the Trial Court and remand, with the cost of the appeal assessed to Nelson Keith Foster.

      . Essentially, plaintiff argues there was no probable cause to support his 1992 conviction, which was later used as a basis to declare him an habitual traffic offender. Thus he argues no probable cause to prosecute is the basis for prosecutorial misconduct on the part of the appellee. For background see State v. Foster, 2002 WL 181359 (Tenn.Crim.App.)


author: COCHRAN, J., WOMACK, J.,

text:
    Ronnie Joe NEAL, Appellant, v. The STATE of Texas.
    No. PD-1559-03.
    Court of Criminal Appeals of Texas, En Banc.
    Nov. 17, 2004.

      Kathryn B. Moon, Longview, for Appellant.
    Matthew Paul, State’s Attorney, Austin, for State.
   OPINION

COCHRAN, J.,

delivered the opinion of the Court

in which KELLER, P.J., MEYERS, KEASLER, HERVEY and HOLCOMB, JJ., joined.

After a court trial, a judge found appellant guilty of possession of a deadly weapon in a penal institution and sentenced him to six years’ imprisonment. The court of appeals reversed this conviction and ordered the case dismissed. It concluded that appellant’s prosecution — which came after he filed a federal civil-rights suit— raised a presumption of vindictiveness that the State did not overcome at trial. The State asks whether the court of appeals erred by reversing the trial court’s judgment on a theory of prosecutorial vindictiveness when that theory was never properly presented to the trial court. We hold that it did err when it reversed the trial court’s judgment on a basis never pleaded, proved, or ruled upon in the trial court. We therefore reverse the court of appeals and affirm the judgment of the trial court.

I.

During the summer of 1998, appellant was in the Rusk County jail awaiting trial on charges of forgery and burglary of a habitation. On June 16, 1998, the local jailers caught him with a homemade weapon — a toothbrush sharpened into a stabbing instrument — which he had secreted in his boxer shorts. On July 17, 1998, appellant pleaded guilty, pursuant to a plea bargain, to both the forgery and burglary charges. On September 9, 1998, he was indicted for possession of a deadly weapon in a penal institution, stemming from the June 16th incident. Appellant filed a federal civil-rights lawsuit against Rusk County on May 20, 2000, alleging mistreatment in the jail. Before trial in the civil-rights suit, appellant and the State negotiated a plea bargain for a two-year sentence on the pending weapons charge. Appellant — who was by then in prison serving his burglary sentence — was bench-warranted back to Rusk County for a plea on the weapons charge. But before that plea hearing could take place, Rusk County officials returned appellant to prison because they learned he was HIV positive. Thus, on November 17, 2000, the State dismissed the weapons charge with a notation that “[t]he defendant was convicted in another case.”

On February 28, 2001, the federal district court conducted a one-day trial on appellant’s civil rights suit. Appellant testified and admitted that he had possessed the homemade weapon in the Rusk County jail. No ruling was made on that date in the federal trial. On March 6, 2001, six days after the federal hearing, the State— at the behest of the Rusk County Sheriffs Office, which had first learned about the dismissal of the weapons charge at the civil-rights trial — re-indicted appellant on the weapons charge. Appellant learned on April 18, 2001, that the federal district judge had awarded him a $6,000 judgment against Rusk County in the civil-rights suit.

The State declined to re-offer its original two-year plea bargain on the weapons case. After the trial court denied his pretrial motions (none of which claimed prose-cutorial vindictiveness), appellant waived a jury and requested a court trial. After hearing the State’s evidence, the trial court found appellant guilty.

At the punishment hearing, the State put on evidence of: 1) appellant’s previous forgery and burglary convictions; 2) appellant’s penitentiary packet, which listed four other convictions — one robbery, two burglaries, and one unauthorized use of a motor vehicle; and 3) letters appellant wrote to his girlfriend while in the Rusk County jail in which he asked for her assistance in smuggling a handgun into the jail so he could escape and in obtaining documents to create a new identification after he escaped.

The defense presented evidence that, before trial on the federal civil-rights case, the State and appellant had negotiated a plea bargain for a two-year sentence, but that the State was unwilling to re-offer that bargain after the federal trial. The defense characterized the re-indictment as unfair and retaliatory and asked the trial court to assess the original agreed-to two-year sentence. Appellant’s attorney, in closing, stated: “Now, this man here, I think to resolve this issue, he’s in agreement, his sister’s in agreement, I’m in agreement, punish him with the original two years that everybody thought was right.” In its closing, the State asked the court “to review all of the evidence that was introduced today, review the seriousness of the crime, review his criminal record and issue the appropriate sentence.” The trial court assessed punishment at six years in prison.

In his brief to the court of appeals, appellant alleged, for the first time, that his conviction should be reversed and the case dismissed because it “was in violation of his rights under the Due Process Clause of the Fourteenth Amendment because of prosecutorial vindictiveness.” He stated that “[t]he prosecutor in this case acted in bad faith and maliciously by re-indicting [him] a second time” and that “there was no other reason except for revenge and retaliation for the prosecutor to pursue a second indictment.”

The court of appeals agreed and held that the sequence of events (“the State dismissed Neal’s charge completely, the civil suit was heard, and then the State refiled the same charge”) raised a presumption of vindictiveness and that there was no evidence in the trial record to overcome it. It reversed the trial court’s judgment and dismissed the indictment.

II.

Both Texas and federal courts recognize that prosecutors have broad discretion in deciding which cases to prosecute. Thus, “[i]f the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether to prosecute and what charge to file generally rests entirely within his or her discretion.” Courts must presume that a criminal prosecution is undertaken in good faith and in nondiscriminatory fashion to fulfill the State’s duty to bring violators to justice. Nevertheless, a decision to prosecute violates due process when criminal charges are brought in retaliation for the defendant’s exercise of his legal rights. Thus, the Supreme Court has held that, under specific, limited circumstances, the presumption that a prosecution is undertaken in good faith gives way to either a rebuttable presumption of prosecutorial vindictiveness or proof of actual vindictiveness.

A constitutional claim of prosecuto-rial vindictiveness may be established in either of two distinct ways: 1) proof of circumstances that pose a “realistic likelihood” of such misconduct sufficient to raise a “presumption of prosecutorial vindictiveness,” which the State must rebut or face dismissal of the charges; or 2) proof of “actual vindictiveness” — that is, direct evidence that the prosecutor’s charging decision is an unjustifiable penalty resulting solely from the defendant’s exercise of a protected legal right.

Under the first prong, if the State pursues increased charges or an enhanced sentence after a defendant is convicted, exercises his legal right to appeal, and obtains a new trial, the Supreme Court has found a presumption of prosecu-torial vindictiveness. In the very few situations in which this presumption does apply, it can be overcome by objective evidence in the record justifying the prosecutor’s action. The defendant must prove that he was convicted, he appealed and obtained a new trial, and that the State thereafter filed a greater charge or additional enhancements. The burden then shifts to the prosecution to come forward with an explanation for the charging increase that is unrelated to the defendant’s exercise of his legal right to appeal. The trial court decides the issue based upon all of the evidence, pro and con, and the credibility of the prosecutor’s explanation.

Under the second prong, when the presumption does not apply, the defendant may still obtain relief if he can show actual vindictiveness. To establish that claim, a defendant must prove, with objective evidence, that the prosecutor’s charging decision was a “direct and unjustifiable penalty” that resulted “solely from the defendant’s exercise of a protected legal right.” Under this prong, the defendant shoulders the burden of both production and persuasion, unaided by any legal presumption. Once again, the trial judge decides the ultimate factual issue based upon the evidence and credibility determinations.

Under either prong, “[i]f the defendant is unable to prove actual vindictiveness or a realistic likelihood of vindictiveness, a trial court need not reach the issue of government justification.” That is, the State may stand mute unless and until the defendant carries his burden of proof under either prong.

III.

Appellant Forfeited His Prosecutorial Vindictiveness Claim Because He Failed to Comply with Texas Rule of Appellate Procedure 33.1(a).

In this case, appellant never filed a motion to dismiss or quash the indictment based on a claim of prosecutorial vindictiveness. Even at trial, he never argued that his due-process rights had been violated by the re-indictment. As the State Prosecuting Attorney points out, the evidence that the court of appeals relied upon to find prosecutorial vindictiveness was not presented at the hearing on appellant’s pretrial motions. Instead, it was presented at the sentencing hearing after he had been found guilty. Even then, appellant offered this evidence solely in mitigation of punishment, not to support a legal due-process claim requiring dismissal of the indictment.

Texas Rule of Appellate Procedure 33.1 provides that, in general, as a prerequisite to presenting a complaint for appellate review, the record must show a timely, specific objection and a ruling by the trial court. “Except for complaints involving systemic (or absolute) requirements, or rights that are waivable only ... all other complaints, whether constitutional, statutory, or otherwise, are forfeited by failure to comply with Rule 33.1(a).”

In this case the trial court neither disregarded an absolute requirement (such as jurisdiction over the subject or person), nor denied appellant a waivable-only right (such as the right to counsel or a jury trial), so the only issue is whether appellant complied with Rule 33.1(a). He did not. Appellant’s prosecutorial “retaliation” argument, mentioned for the first time in the punishment hearing, was neither timely nor specific. Furthermore, appellant never asked for dismissal of the indictment nor did he offer evidence to support a due-process claim. The State was never afforded an opportunity to offer rebuttal evidence, and the trial court was never asked to rule upon a legal claim of prosecutorial vindictiveness.

A. The claim was not timely.

The Texas Code of Criminal Procedure requires that, if a defendant seeks dismissal of an indictment as the remedy for his constitutional or statutory claim, the Rule 33.1 requirement of timeliness means that the claim generally must be raised and ruled upon before trial. Under Article 28.01, a trial court must determine such “preliminary matters” at a pre-trial hearing. All preliminary matters which are not raised at the pre-trial hearing, are generally considered forfeited. A motion to set aside, dismiss, or quash an indictment should be made at the first opportunity, and must be presented to the trial court prior to an announcement by that party that it is ready for trial. This rule serves the salutary purpose “of preventing unnecessary trials and deterring the interruption of a trial on the merits for any objection relating to the institution and presentation of the charge.” It would make little sense to wait until after a trial is complete before complaining that the trial should never have taken place because the indictment was defective or should have been dismissed or quashed.

In this case, appellant did file a timely motion to quash the indictment based on two specific grounds: (1) an allegation of an illegal amendment to the indictment; and (2) a claim under Tex. Penal Code § 12.45, which provides that “[i]f a court lawfully takes into account an admitted offense, prosecution is barred for that offense.” The court held a pretrial hearing, and those were the only two issues discussed and ruled upon. Appellant’s counsel stated, during his closing arguments, that the State declined to re-offer its original two-year plea bargain once it had re-indicted appellant. Thus appellant had ample time and opportunity to include any pertinent legal claim of vindictiveness in his pretrial motions. Because appellant did not raise any prosecutorial vindictiveness claim at the pretrial hearing, that claim — based on events that occurred before trial and were known to appellant before trial — was untimely.

B. The claim was not specific.

Nor was appellant’s prosecutorial vindictiveness claim, to the degree that it was raised at punishment, specific under Rule 33.1(a). At trial, appellant never asserted that the timing of the re-indictment demonstrated either actual vindictiveness or a reasonable likelihood of misconduct sufficient to raise a presumption of prosecutorial vindictiveness. He used the timing to argue for mitigation of punishment — to prove that he deserved no more than the two-year sentence that the State had originally offered. Appellant took the stand and testified as follows:

Q Now, when you got re-indicted, were you still willing and able to take — willing and wanting to, to take the two original years?

A Yes, sir, I was.

Q Even though you thought it was over with?

A Yes, sir.

Q But in the negotiations then, they wouldn’t agree to that, would they?

A No, sir.

Q Now, are you asking the Judge today for the original two years that you agreed to back in 2000?

A Yes, sir, I am.

Q And after that [federal civil-rights] trial on February 28th, were you indicted for the same incident?

A Yes, sir, I was.

Q And were you surprised?

A Yes, sir because I thought it was dismissed. So the first thing I felt was this was retaliation.

Q Are you asking the Judge, in order to get this over with, — are you asking him for the two years?

A Yes, sir, I am.

Debra Neil-Terrell, appellant’s sister, likewise testified she thought the re-indictment was retaliation, but that a two year sentence would be fair:

Q And why did you want to be here for the sentencing?

A Because I would like to talk to the Judge and speak to him on behalf of my brother, because I truly feel this case is not about justice. It’s about revenge.

Q Now, are you asking the Court — what are you asking the Court to do today?

A I’m begging the Court to please give my brother the original deal.

Q Of two years?

A Of two years, yes.

Q And do you think justice will be served that way?

A Yes, I do.

Appellant never uttered the words “prosecutorial vindictiveness” at trial. He never made this due-process claim at trial nor did he request the same relief at trial — dismissal of the indictment — that he requested on appeal. What he did assert at trial was that the State acted in bad faith when it refused to re-offer the two-year plea bargain that it had agreed to before it dismissed the indictment in November 2000, which was before the federal civil trial. This was not sufficient to put the trial court or the State on notice that he was raising a legally-cognizable due-process claim and seeking dismissal of the indictment. Appellant’s due-process vindictiveness theory on appeal bore no resemblance to the equitable plea he made at trial. His position at the punishment hearing was that any sentence over two years would be unfair. This was not sufficient to put the trial court on notice of a due-process claim.

C. The claim was not ruled on by the trial court.

Because appellant never made his due-process claim in the trial court, that court was never given the opportunity to either hear evidence or rule on it. In Zillender v. State, we stated the two-fold policies of requiring specific objections at trial:

First, a specific objection is required to inform the trial judge of the basis of the objection and afford him the opportunity to rule on it. Second, a specific objection is required to afford opposing counsel an opportunity to remove the objection or supply other testimony.

Because a defendant must prove his prose-cutorial vindictiveness claim, the importance of making that claim in the trial court is paramount. Appellant never formally offered any evidence to support this claim, and the State was never given an opportunity to offer evidence to rebut this claim. We stated in Bone v. State:

Under our system of justice, the criminal defendant is entitled to an opportunity to explain himself and present evidence on his behalf. His counsel should ordinarily be accorded an opportunity to explain her actions before being condemned as unprofessional and incompetent.

We should ordinarily accord the same opportunity to a prosecutor to explain his actions before a court condemns him as having violated a defendant’s due-process rights with a vindictive prosecution and orders dismissal of a felony conviction.

If appellant had properly raised this issue in a written pretrial motion, the State would have been on notice to introduce the federal court judgment (thus obviating a mistake of fact by the court of appeals) and the prosecutor could have testified concerning any new evidence, such as appellant’s letters from jail, that had come to his attention since the original dismissal of charges. The trial judge would have had an opportunity to rule upon that motion, based upon all of the evidence and by assessing the credibility of the prosecutor’s explanations.

IV.

We conclude that the court of appeals violated ordinary notions of procedural default in reversing the trial court’s judgment on a legal claim which was never presented in the trial court. In this case, it was only on appeal that appellant analogized his situation to that in Blackledge. The court of appeals agreed with his analogy:

Even though the charges are exactly the same in this case, the reasoning still applies. The sequence of events was that the State dismissed Neal’s charge completely, the civil suit was heard, and then the State refiled the same charge. So in this case, Neal’s position changed from being free from all charges to being subjected to a newly-filed charge-hence the “same” charge (as the original one) is “more serious” (than no charge at all).

The court of appeals stated that there was no evidence in the record to overcome the presumption of vindictiveness. This is not surprising because the State was never on notice of the claim, the defense never offered evidence to support that claim, the State was never given an opportunity to offer rebutting evidence, and the trial court never given an opportunity to rule upon that claim.

Because appellant never presented his prosecutorial vindictiveness claim in the trial court, he failed to preserve this issue for appellate review. We therefore reverse the judgment of the court of appeals and affirm the trial court’s judgment.

WOMACK, J., filed a dissenting opinion, in which PRICE and JOHNSON, JJ., joined.

WOMACK, J.,

dissenting, in which PRICE and JOHNSON, JJ., joined.

The court concludes, “Because appellant never presented his prosecutorial vindictiveness claim in the trial court, he failed to preserve this issue for appellate review.” This conclusion rests on three bases: “The claim was [1] not timely, ... [2] not specific, ... [and 3] not ruled on by the trial court.”

As I read the record, the opposite is true. The appellant’s prosecutorial-vindic-tiveness claim in the trial court was timely, specific, and ruled on. It was not the claim that this court discusses.

The claim that this court discusses is one that calls for dismissal of a subsequent prosecution on the basis of prosecutorial vindictiveness. The appellant’s claim did not call for dismissal. It asked that punishment be limited to that which the State had agreed to recommend before he sued the sheriffs deputies for their violations of his civil rights. The court relegates it to a footnote in the opinion, but the reader who looks for it will find it quoted verbatim. Edited to its essence, it was:

Now ... the law is supposed to do justice. ... At one time, me and the Prosecutor in this case were on the same line with Ronnie Joe Neal as to what justice was in this case, and that was two years in the state penitentiary.
... But then when the federal lawsuit is heard, all at once justice should be 2 to 20 years. Not 2 years, but anywhere between 2 and 20 years.
That is not justice. That is punishing a man for filing suit on violation of his civil rights and not punishing for any criminal things he had done. And that ain’t justice, Judge. In no sense of the word is that justice. Now, ... punish him with the two years that everybody thought was right.

This court’s opinion says that “never ... did he request the same relief at trial— dismissal of the indictment — that he requested on appeal.” It fails to say that the appellant’s brief in the court of appeals also sought the relief that he did request in the trial court: “In the alternative, the Defendant requests that the judgment of the trial court be reversed and remanded for a new trial, or the original indictment be reinstated, [and] the plea agreement for two years indictment be enforced ....” The appellant made such a request to the trial court, and this court’s opinion has quoted it.

The request was timely, because it was made before the assessment of punishment.

The request was quite specific. This court says, “Appellant never uttered the words ‘prosecutorial vindictiveness’ at trial.” But he made his due-process claim in terms that were specific and powerful (if somewhat folksy). They closely resemble the language in another footnote of this court’s opinion: “To punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort, and for an agent of the State to pursue a course of action, whose objective is to penalize a person’s reliance on his legal rights is ‘patently unconstitutional.’ ”

The request was ruled on when, by assessing a punishment of six years, the trial court refused to limit the punishment to two years.

The appellant muddied the water on appeal by advancing an additional request for dismissal of the prosecution. This request was not presented to the trial court. I agree with this court that the request for dismissal may not be made for the first time on appeal. As the court’s opinion says, such a claim must be brought before trial. I agree that the court of appeals should not have sustained that claim.

I do not agree that the court of appeals or this court may ignore the claim that the appellant did make. I would vacate the judgment of the court of appeals and remand the case to that court for reconsideration of the appellant’s claim.

      . Neal v. State, 117 S.W.3d 301 (Tex.App.Texarkana 2003).

      . We granted the State Prosecuting Attorney’s two grounds for review:
      1) The court of appeals erred by reversing the trial court’s judgment on a theory not properly presented to the trial court and upon which the trial court was given no opportunity to rule; and
      2) The court of appeals erred in applying a presumption of prosecutorial vindictiveness to the prosecutor's pretrial decision to re-indict, where the record fails to establish a reasonable likelihood of vindictiveness.
      Because we agree with the State’s first issue, we need not address the State’s second ground for review, and we therefore dismiss it.

      . In a bill of exceptions, the prosecutor testified that the decision to re-indict came after the Sheriff's Office complained about the original dismissal. The Rusk County Jail Administrator also testified. He stated that after appellant admitted under oath and in open court that he was in possession of the deadly weapon, his office contacted the district attorney's office about re-indicting appellant.

      . The court of appeals mistakenly believed that the weapons charge "was not re-filed until after Neal went to trial and was awarded damages for violations of his civil rights against Rusk County.” Neal, 117 S.W.3d at 308. In fact, appellant testified that he found out he was awarded damages on April 18th. The State has attached a copy of the federal district court’s written judgment to its brief in this Court. We decline to consider that attachment for the truth of its contents, but we do take notice of the fact that this document, verifying the date of the federal judgment as April 18, 2001, could have been introduced into evidence had appellant timely raised his complaint in the proper forum.

      . Neal, 117 S.W.3d at 308-09.

      . State v. Malone Serv. Co., 829 S.W.2d 763, 769 (Tex.1992); Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978) ("[i]n our system, so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion”)-

      . Gawlik v. State, 608 S.W.2d 671, 673 (Tex.Crim.App.1980).

      . Castleberry v. State, 704 S.W.2d 21, 24 (Tex.Crim.App.1984) ("[t]o punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort, and for an agent of the State to pursue a course of action whose objective is to penalize a person’s reliance on his legal rights is ‘patently unconstitutional.’ ”) (quoting Hayes, 434 U.S. at 363, 98 S.Ct. 663).

      . United States v. Goodwin, 457 U.S. 368, 373, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982).

      . United States v. Johnson, 171 F.3d 139, 140-41 (2d Cir.1999).

      . Goodwin, 457 U.S. at 380-81, 102 S.Ct. 2485. See generally 4 Wayne R. LaFave, Jerold H. Israel & Nancy J. King, Criminal Procedure § 13.7(c) (1999) (discussing historical evolution of constitutional "prosecutorial vindictiveness” claims). The Supreme Court made clear that it would be quite difficult for a defendant to meet the high burden of demonstrating actual vindictiveness. Goodwin, 457 U.S. at 384 n. 19, 102 S.Ct. 2485 (quoting government’s brief that "the defendant is free to tender evidence to the court to support a claim that enhanced charges are a direct and unjustifiable penalty for the exercise of a procedural right. Of course, only in a rare case would a defendant be able to overcome the presumptive validity of the prosecutor's actions through such a demonstration”).

      . Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974). In Goodwin, the Supreme Court explained why the presumption of vindictiveness prong rarely — if ever — applied outside the context of prior conviction, successful appeal, and post-appeal enhanced charging decision:
      There is good reason to be cautious before adopting an inflexible presumption of pros-ecutorial vindictiveness in a pretrial setting. In the course of preparing a case for trial, the prosecutor may uncover additional information that suggests a basis for further prosecution or he simply may come to realize that information possessed by the State has a broader significance. At this stage of the proceedings, the prosecutor’s assessment of the proper extent of prosecution may not have crystallized. In contrast, once a trial begins — and certainly by the time a conviction has been obtained — it is much more likely that the State has discovered and assessed all of the information against an accused and has made a determination, on the basis of that information, of the extent to which he should be prosecuted. Thus, a change in the charging decision made after an initial trial is completed is much more likely to be improperly motivated than is a pretrial decision.

        Goodwin, 457 U.S. at 381, 102 S.Ct. 2485.

      . Goodwin, 457 U.S. at 375, 102 S.Ct. 2485; see also United States v. Paramo, 998 F.2d 1212, 1220 (3rd Cir.l993)(''[e]ven if a defendant establishes a realistic likelihood of vindictiveness, however, the government still has an opportunity to proffer legitimate, objective reasons for its conduct”).

        . United States v. Krezdorn, 693 F.2d 1221, 1229 (5th Cir.1982) (stating that when presumption of prosecutorial vindictiveness applies, "the district court may consider any reasonable explanation for the added charges, so long as the explanation tends to negate an inference of retaliatory motivation").

      . Id.; see also United States v. Johnson, 91 F.3d 695, 698 (5th Cir.1996) ("[a] district court’s factual findings on prosecutorial vindictiveness are reviewed for clear error and the legal principles which guide the district court are reviewed de novo”).

      . Texas v. McCullough, 475 U.S. 134, 138, 106 S.Ct. 976, 89 L.Ed.2d 104 (1986).

      . Goodwin, 457 U.S. at 384 & n. 19, 102 S.Ct. 2485; see also United States v. Whaley, 830 F.2d 1469, 1479 (7th Cir.1987) (”[t]o prove actual vindictiveness, there must be objective evidence that a prosecutor acted in order to punish the defendant for standing on his legal rights”).

      . United States v. Sarracino, 340 F.3d 1148, 1177-79 (10th Cir.2003); United States v. Moulder, 141 F.3d 568, 572 (5th Cir.1998) (”[i]n reviewing a prosecutorial vindictiveness claim, 'the court must examine the prosecutor’s actions in the context of the entire proceedings.’ The defendant must prove the claim by a preponderance of the evidence; and, '[i]f any objective event or combination of events ... should indicate to a reasonable minded defendant that the prosecutor’s decision to increase the severity of charges was motivated by some purpose other than a vindictive desire to deter or punish appeals, no presumption of vindictiveness is created’ ”) (citations omitted).

      . United States v. Contreras, 108 F.3d 1255, 1262-63 (10th Cir.1997).

      . The dissent argues that this Court does not address the claim that appellant actually raised in the trial court. That is, to some extent, true. The claim that appellant brought in the trial court was his closing argument equitable plea that the trial judge should not impose any greater sentence than the two-year plea bargain that the prosecutor had once agreed to. That is not a legal claim of prosecutorial vindictiveness. Neither appellant nor the dissent cite any precedent that a plea-bargain offer that is once made, but later retracted, may form the basis of a legal claim of prosecutorial vindictiveness. It is largely for this reason that we have set out the two possible legal bases for a constitutional claim of prosecutorial vindictiveness in Part II.
      This Court can address only the decision by the court of appeals, see Tex.R.App. P. 66.1, and that court ordered dismissal of the indictment on a legal claim that was not raised in the trial court.

        . Mendez v. State, 138 S.W.3d 334, 342 (Tex.Crim.App.2004).

      . See 43A George E. Dix and Robert O. Dawson, Texas Practice: Criminal Practice and Procedure § 42.78, at 274 (2d ed.2001).

      . Under Tex.Code Crim. Proc art. 28.01 preliminary matters include:
      (1) Arraignment of the defendant, if such be necessary; and appointment of counsel to represent the defendant, if such be necessary; (2) Pleadings of the defendant; (3) Special pleas, if any; (4) Exceptions to the form or substance of the indictment or information. ...

      . Tex.Code Crim. Proc. art. 28.01, § 2, provides that “[w]hen a criminal case is set for such pre-trial hearing, any such preliminary matters not raised or filed seven days before the hearing will not thereafter be allowed to be raised or filed, except by permission of the court for good cause shown; provided that the defendant shall have sufficient notice of such hearing to allow him not less than 10 days in which to raise or file such preliminary matters. The record made at such pre-trial hearing, the rulings of the court and the exceptions and objections thereto shall become a part of the trial record of the case upon its merits."

      . Valadez v. State, 408 S.W.2d 109, 111 (Tex.Crim.App.1966).

      . Wilson v. State, 398 S.W.2d 291, 293 (Tex.Crim.App.1966) (op. on reh’g).

      . Sewell v. United States, 406 F.2d 1289, 1292 (8th Cir. 1969).

      . Appellant claimed that, because the State checked the box "convicted on other charges” on the dismissal form when it originally dismissed the weapons indictment, the trial court must have taken this indictment into account in accepting the plea bargain in the forgery and burglary charges. The trial court rejected this claim because appellant pleaded guilty to those crimes before he was ever indicted for the deadly-weapon offense and there was no evidence that the trial court had taken this uncharged offense into account in accepting the plea bargain on the forgery and burglary charges.

      . See United States v. Peterson, 233 F.3d 101, 105 (1st Cir.2000) (“[b]ecause Peterson failed to raise a claim of vindictive prosecution pri- or to trial, the claim is waived and we review for plain error”); Jarrett v. United States, 822 F.2d 1438, 1442 (7th Cir.1987) (“Rule 12(b) requires that motions for selective and vindictive prosecution must be brought prior to trial or they will be deemed waived”); United States v. Conkins, 9 F.3d 1377, 1382 (9th Cir.1993) (“a claim of ‘vindictive prosecution’ presents primarily factual questions of government motive. However, Sandvig did not raise this issue below, and therefore there is no evidence in the record to support his contention. Therefore, this issue does not present any of the exceptional circumstances that warrant a departure from our rule barring consideration of an issue raised for the first time on appeal”).

      . The dissent notes that appellant did request, as alternative relief, that the court of appeals remand the case for a new trial or enforcement of the State's original plea offer, but that alternative relief is nonetheless based upon a legal claim that was never presented to the trial court.

      . In his closing statement, appellant's attorney argued for a two-year sentence, not dismissal of the indictment:
      Now, you know, you try — the law is supposed to do justice. The law is supposed to be equal to all. What each one of us interpret as justice makes the difference on what different people get. At one time, me and the Prosecutor in this case were on the same line with Ronnie Joe Neal as to what justice was in this case, and that was two years in the state penitentiary. That’s what we all thought justice would be served in this case.
      But for some reason, it was dismissed, just up and dismissed by the District Attorney, who undoubtedly thought at that time even two years was too much justice, so they just dismissed. And I think there’s been testimony as to why it was dismissed is because the night before the plea, the Sheriff's Office found out he had AIDS, and they took him back and didn’t want to bring him back to Rusk County. But then when the federal lawsuit is heard, all at once justice should be 2 to 20 years. Not 2 years, but anywhere between 2 and 20 years.
      That is not justice. That is punishing a man for filing suit on violation of his civil rights and not punishing for any criminal things he had done. And that ain’t justice, Judge. In no sense of the word is that justice. Now, this man here, I think to resolve this issue, he's in agreement, his sister’s in agreement, I’m in agreement, punish him with the original two years that everybody thought was right.

      . 557 S.W.2d 515 (Tex.Crim.App.1977).

      . Id. at 517.

      . 77 S.W.3d 828 (Tex.Crim.App.2002).

      . Id. at 836.

      . See United States v. Amberslie, 312 F.Supp.2d 570, 571-72 (S.D.N.Y.2004) (stating that when defendant provides sufficient circumstances to raise a rebuttable presumption of vindictiveness sufficient to require the Government to respond with evidence of lack of animus, "[s]uch a response may normally be made, at least in the first instance, through affidavits from the relevant prosecutors, after which the burden shifts back to the defense to establish that the proffered response is pretex-tual or otherwise inadequate”).

      . See note 4, supra.

      . Hailey v. State, 87 S.W.3d 118, 122 (Tex.Crim.App.2002) (“a trial court’s decision will not be reversed on a theory the trial court did not have an opportunity to rule upon and upon which the non-appealing party did not have an opportunity to develop a complete factual record”).

      . Even &en, appellant did not articulate whether his vindictive-prosecution claim was one purportedly raising a presumption of vindictiveness or one of actual animus. Arguably, therefore, the court of appeals reversed the trial court on a theory that was never properly raised, even in the appellate court.

      . Neal, 117 S.W.3d at 308.

      . But see United States v. White, 972 F.2d 16, 19 (2d Cir.l992)("White violated federal and state laws in selling illegal drugs. The state's 1986 decision not to prosecute White is unrelated to the federal Government’s 1991 determination that there was probable cause to believe that White had committed narcotics offenses. Even though White can show that his forfeiture claim brought his unprosecuted activities to the prosecutor’s attention, this showing does not establish vindictiveness”).

      . Ante, at 180.

      . Id., at 175-76.

      . Id., at 177.

      . Id., at 178-79.

      . See id., at 178 n. 31.

      . Id., at 178.

      .Brief, at 14.

      . Ante, at 177.

      . See id.., at 173 n. 6 (quoting Bordenkircher v. Hayes, 434 U.S. 357, 363, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978), as this court quoted it in Castleberry v. State, 704 S.W.2d 21, 24 (1984)).

        .See id., at 175-76.