author: ROBERT S. BARNEY, Judge.

text:
    In the Matter of L.T.C., b/n/f Justin COLLINS, and Justin Collins individually, Respondents, v. Lavonne REED, now Yates, Appellant, v. William Collins and Kathleen Collins, Respondents.
    No. 26510.
    Missouri Court of Appeals, Southern District, Division Two.
    Aug. 8, 2005.

      Kevin L. Wibbenmeyer, Barklage, Brett, Martin, Wibbenmeyer & Hamill, P.C., St. Charles, for Appellant.
    Lisa Ghan Blumenstock & Thomas M. Benson, Lowther Johnson, LLC, Springfield, for Respondents.'
   ROBERT S. BARNEY, Judge.

Appellant Lavonne Reed (“Mother”) appeals the trial court’s award of “sole legal and physical custody” of her child, L.T.C., to Respondents William and Kathleen Collins, the minor’s paternal grandparents (“Grandparents”), pursuant to section 452.375.5(5). In a parenting plan devised by the trial court, the trial court authorized visitation by Mother and Justin Collins (“Father”).

This matter began in 1997 when a petition to establish the paternity of L.T.C., born November 20, 1994, was filed by Father. In its judgment of paternity, the trial court found Father to be L.T.C.’s biological father and “granted primary physical placement of [L.T.C.] with Mother.... ”

Thereafter, on July 14, 1998, the trial court entered an order modifying the original custody arrangement and transferring “primary physical placement” of L.T.C. from Mother to Father.

On September 11, 2000, the trial court again modified custody of L.T.C. and “granted joint legal custody of the child ... to Mother and Father, with the child’s residence being with Father.”

Thereafter, in October of 2002 a hotline call was placed to the Division of Family Services (“DFS”) regarding the possible sexual abuse of L.T.C. by Mother. Additionally, DFS had information that L.T.C. had himself sexually abused his stepbrother, the son of Father’s new wife. Following a DFS investigation, both allegations of abuse were unsubstantiated.

On October 23, 2002, Father had L.T.C. admitted to Lakeland Hospital for a four or five day evaluation after allegations again arose that he had been inappropriately touching his stepbrother. It was reported that during his stay at the hospital, L.T.C. disclosed that Mother “made/ taught him to do the sexual things to his [half] sister” and he admitted he had inappropriately touched his stepbrother but “he felt he couldn’t stop.” A psychiatrist later reported L.T.C. told her that “his mother showed him sexually explicit movements and discussed highly sexually charged behaviors [and] acts with him i[.]e. cunnilingus and fellatio.” The physicians evaluating L.T.C. recommended he “shouldn’t be placed in a home with small children” and that he would need further counseling.

Subsequently, another hotline call was placed to DFS on July 23, 2003, alleging Mother sexually abused L.T.C. The call was initially substantiated but was later reversed by the review board.

Mother filed an amended motion to modify custody on August 1, 2003. In her motion, Mother argued that Father had moved to St. Louis with the child for a period of three months without providing her with his relocation information as required by statute; that Father had placed L.T.C. with his parents in St. Charles, Missouri; and, that Father had even registered L.T.C. for elementary school in St. Charles, Missouri. Mother argued it would be in L.T.C.’s best interest to be placed in Mother’s custody.

On February 14, 2004, the record reveals there was an incident involving Mother’s visitation with L.T.C. at a Burger King restaurant. Mother wanted to take L.T.C. with her for the weekend; however, Grandparents would not allow her to leave with the child. As a result, Grandparents called the police to standby at the restaurant to prevent Mother from leaving with L.T.C. The incident at Burger King resulted in an ex parte order of child protection being filed against Mother by Grandparents on L.T.C.’s behalf.

On April 30, 2004, Grandparents filed a “Motion to Intervene” in the matter, pursuant to Rule 52.12(a)(1) and section 452.375.5(5)(b). They also filed a “Petition for Intervention and Temporary Custody.” In their pleadings, Grandparents averred that L.T.C. had been in their care and custody since November 2, 2002, “following a recommendation from Lakeland Hospital,” and that it would be in L.T.C.’s best interests for him to be placed with them in St. Charles, Missouri.

In its August 2, 2004, judgment, the trial court found, pursuant to section 452.375.5(5), that “both parents are unable to be a custodian of the child because both parents have small children in their home and [L.T.C.] ... should not live on a regular basis in such a home at this time.” Based primarily on the foregoing findings, the trial court granted “sole legal and physical custody” of L.T.C. to Grandparents and set out its own parenting plan. Mother now appeals, raising two points of trial court error.

Our standard of review in a child custody case is governed, as in other judge-tried cases, by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). Under this standard, we will affirm the judgment of the trial court unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Id.; Reeves-Weible v. Reeves, 995 S.W.2d 50, 55 (Mo. App.1999).

We determine the trial court erred as a matter of law because it failed to make the required findings in compliance with section 452.375.6. Speer v. Colon, 155 S.W.3d 60, 61-62 (Mo. banc 2005). Since the parties had not agreed to the custodial arrangement, the trial court was required to include in its judgment a written finding based on the public policy in section 452.375.4, and the factors listed in section 452.375.2(l)-(8), detailing the specific relevant factors that made the chosen arrangement by the trial court in the best interests of the minor child. Id.; see also Walters v. Walters, 113 S.W.3d 214, 219 (Mo.App.2003).

“Section 452.375 ... governs custody of children.” Morse v. Morse, 80 S.W.3d 898, 903 (Mo.App.2002). As it pertains to third-party custody or visitation, section 452.375.5(5)(a) states in pertinent part:

5. Prior to awarding the appropriate custody arrangement in the best interest of the child, the court shall consider each of the following as follows:
(5) Third-party custody or visitation:
(a) When the court finds that each parent is unfit, unsuitable, or unable to be a custodian, or the welfare of the child requires, and it is in the best interests of the child, then custody, temporary custody or visitation may be awarded to any other person or persons deemed by the court to be suitable and able to provide an adequate and stable environment for the child.

(Emphasis added).

“We presume parental custody is in a minor child’s best interests.” Young v. Young, 14 S.W.3d 261, 264 (Mo.App.2000). “To rebut this presumption, the third party seeking custody must carry the burden of showing either that each parent is unfit, unsuitable, or unable to have custody or that the welfare of the child requires third-party custody.” Id.; see also Flathers v. Flathers, 948 S.W.2d 463, 466 (Mo.App.1997). Here, both Mother and Father testified regarding the fact that L.T.C. had inappropriately touched their children. There was sufficient evidence supporting the trial court’s judgment that Mother and Father were “unable” to care for L.T.C., based on the fact that each had small children in their homes. Additionally, there was medical and psychiatric evidence supporting such a finding by the trial court. This evidence satisfied the first basis for rebutting the presumption in favor of either parent having custody over L.T.C., as required by section 452.375.5(5)(a). See Young, 14 S.W.3d at 264.

However, the trial court made no express finding as to the second requirement of section 452.375.5(5)(a), that it would be in the best interests of L.T.C. to be placed in the custody of Grandparents. See § 452.375.5(5)(a). As previously related, “[i]n making this determination, the trial court is required to look at all relevant factors including those found in § 452.375.2.” Jones v. Jones, 10 S.W.3d 528, 539-40 (Mo.App.1999).

We also note that the “[t]he plain language of section 452.410.1 ... provides no exception to the requirement that a moving party, any moving party, who seeks to modify a custody order must first establish that a substantial ‘change in circumstances of the child or his custodian’ has occurred.” Searcy v. Seedorff, 8 S.W.3d 113, 117 (Mo. banc 1999) (quoting § 452.410.1). In a modification of custody proceeding, as in the present matter, before reaching the issue of best interests, the trial court must first find that there has been a substantial change in circumstances of the child or custodial parent. § 452.410.1; Searcy, 8 S.W.3d at 117; Wood v. Wood, 94 S.W.3d 397, 405 (Mo. App.2003). Accordingly, the trial court’s judgment is also inadequate because the trial court modified the custody of L.T.C. from Father to Grandparents without first making the express findings required by section 452.410.1.

The judgment of the trial court is reversed and remanded for further proceedings consistent with this opinion. See Speer, 155 S.W.3d at 62.

SHRUM, P.J., and GARRISON, J., concur.

      . All statutory references are to RSMo 2000. All rules references are to Missouri Court Rules (2004).

      . We note that Mother and Father were never married.

      . The record also reveals that at the time of this custody modification in 2000 there were allegations of physical abuse and negligent supervision on the part of Mother and her husband ("Stepfather”). There was photographic evidence of cigarette burns on L.T.C.’s body and testimony relating to an incident in which Stepfather used "a tree switch and struck [L.T.C.].”

      . DFS is now known as the Division of Children's Services of the Department of Social Services.

      . Following L.T.C.'s release from Lakeland Hospital, L.T.C. began living with Grandparents due to concerns that he should not live with other small children. There was no formal order placing L.T.C. in Grandparents’ custody..

      . About this same time, DFS launched another investigation into Mother’s parenting abilities, based on reports that her home was unsuitable for children and was very unclean. The allegations were later found to be unsubstantiated.

      . Section 452.375.6 states:
      If the parties have not agreed to a custodial arrangement, or the court determines such arrangement is not in the best interest of the child, the court shall include a written finding in the judgment or order based on the public policy in subsection 4 of this section and each of the factors listed in subdivisions (1) to (8) of subsection 2 of this section detailing the specific relevant factors that made a particular arrangement in the best interest of the child. If a proposed custodial arrangement is rejected by the court, the court shall include a written finding in the judgment or order detailing the specific relevant factors resulting in the rejection of such arrangement.

      . Section 452.410.1 states in pertinent part: the court shall not modify a prior custody decree unless it has jurisdiction under the provisions of section 452.450 and it finds, upon the basis of facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, that a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interests of the child.


source: Caselaw Access Project

author: PHILLIP R. GARRISON, Presiding Judge.

license: Public Domain

text:
    Robert G. PORTER, Petitioner-Appellant, v. DIRECTOR OF REVENUE, STATE OF MISSOURI, Respondent-Respondent.
    No. 26251.
    Missouri Court of Appeals, Southern District, Division One.
    Aug. 9, 2005.

      Wayne Gifford, Waynesville, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen. and James A. Chenault, III, Assistant Attorney General, Jefferson City, for Respondent.
   PHILLIP R. GARRISON, Presiding Judge.

Robert G. Porter (“Appellant”) appeals from the judgment of the circuit court of Pulaski County upholding the suspension of his driving privileges, upon trial de novo, pursuant to Section 302.505.1. We affirm.

In the early morning of August 30, 2003, Corporal Mike Weber, Jr. (“Corporal Weber”) of the St. Robert Police Department, was on patrol in St. Robert when he noticed a blue Ford pickup truck parked in the middle of the roadway. Corporal Weber pulled behind the vehicle, activated his emergency lights, and approached Appellant, who was the driver. Corporal Weber noticed a strong odor of intoxicants on Appellant’s breath. He said that Appellant’s eyes were dilated, his speech was slurred, but his balance was steady. Appellant agreed to take field sobriety tests, and Corporal Weber administered three: the horizontal gaze nystagmus (“HGN”) test, the walk-and-turn test, and the one-leg stand test. He said that during the walk-and-turn test, Appellant was able to hold in a standing position with his right foot in front of his left foot. However, he began the test before being told to do so and during the walking portion “he had to stop several times to steady himself, and then continue the test.” During the one-leg stand test, Corporal Weber testified that Appellant swayed the entire time, and hopped several times. With regard to the HGN test, Corporal Weber stated that Appellant’s eyes did not have smooth pursuit, his pupils were of equal size, there was a distinct nystagmus at full deviation, and there was an onset of nystagmus before forty-five degrees. Corporal Weber stated that Appellant failed all of the field sobriety tests. He then placed him under arrest for driving while intoxicated. The alcohol influence report completed by Corporal Weber indicates that Appellant informed him, apparently at some point after the tests, that he had fiberbroma in both feet, causing pain and difficulty when walking.

Corporal Weber took Appellant to the St. Robert Police Department where he consented to a breath analysis test. Corporal Weber said that he observed Appellant for fifteen minutes, from a distance of approximately four feet, with Appellant never leaving his sight. He also said that Appellant did not drink, smoke, that he did not vomit to his knowledge, and that he did not observe anything come out of Appellant’s mouth. Corporal Weber then administered a breath analysis test to Appellant using a machine for which he was certified by the Missouri Department of Health. He properly completed each step of the checklist, and the device appeared to be working properly. The device returned a result of .12% blood alcohol content by weight for Appellant.

On cross-examination, Corporal Weber admitted that he did not ask Appellant whether he had any physical problems before administering the field sobriety tests. He also stated that he did not check for exterior circumstances, such as flashing lights, before the HGN test. Corporal Weber acknowledged that he received documentation from his instructor when he was certified for field sobriety testing, but he was not sure if it was the National Highway Transportation Safety Administration (“NHTSA”) book. Corporal Weber testified that the surface where he administered the field sobriety tests was somewhat level, but that it sloped like every road slopes, and that he did not recall any gravel on the road. He also stated that it was possible that Appellant went to the bathroom during the time that he was at the police station.

Appellant testified that the surface on which the field sobriety tests were administered was not level, but curved and made of two different materials with loose gravel on the surface. He stated that Corporal Weber did not ask him, and he did not volunteer information, about physical disabilities. As regards the observation time at the police station, Appellant stated that he did not stay in the observation room for the full fifteen minutes, that a second officer took him to the restroom where he urinated and vomited, and that he took the breath analysis test one minute later. He testified that he is an instructor in the Marine Corps military police academy and instructs on the procedures to be followed in DWI arrests. He also stated that he was a certified operator of breath analysis devices. On cross-examination, Appellant stated that he did not inform Corporal Weber that he had vomited within the fifteen minute observation period, but he assumed that information would be conveyed by the officer watching him.

We will affirm the judgment of the trial court unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32, (Mo. banc 1976); see also Walker v. Dir. of Revenue, 137 S.W.3d 444, 445 (Mo. banc 2004).

Appellant presents two points on appeal. In his first point, he claims that the trial court erred “in refusing to allow the NHTSA manual into evidence” and that he was prejudiced because if the manual had been admitted, it would have shown that the field sobriety tests were administered improperly and that probable cause did not exist to arrest Appellant for driving while intoxicated.

Section 302.505.1 states that the department of revenue “shall suspend or revoke the license of any person upon its determination that the person was arrested upon probable cause to believe such person was driving a motor vehicle while the alcohol concentration in the person’s ... breath ... was eight hundredths of one percent or more by weight.” At a trial de novo, the Director must prove by a preponderance of the evidence that “the driver was arrested on probable cause that he or she was committing an alcohol-related offense,” and that “the driver had been driving at a time when his or her blood alcohol concentration was at least [.08] percent by weight.” Collins v. Mo. Dir. of Revenue, 2 S.W.3d 164, 165-166 (Mo.App. S.D.1999) (quoting House v. Dir. of Revenue, 997 S.W.2d 135, 138 (Mo.App. S.D.1999)).

The trial court has broad discretion in determining whether to admit or exclude evidence, and we review for an abuse of that discretion. KC Excavating & Grading, Inc. v. Crane Const. Co., 141 S.W.3d 401, 407 (Mo.App. W.D.2004). The appellant has the burden of showing the abuse of discretion and the prejudice resulting therefrom. Id. at 408.

Appellant contends that the manual was required to be admitted into evidence, and that portions of the manual describe the correct procedure for field sobriety tests. He claims that the descriptions show that Corporal Weber did not follow the proper procedure for the walk-and-turn test, specifically that the test be performed on a reasonably dry, hard, level, non-slippery surface. It also requires that officers should first ask subjects if they have any physical disabilities, which Corporal Weber did not do. He claims that the validity of the field sobriety tests were compromised and therefore not admissible as indicators of intoxication to constitute probable cause.

At the outset, we note that Appellant’s contention under this point, that the trial court erred in not admitting the NHTSA manual, is unfounded. It appears, from the transcript, that Appellant’s counsel offered the manual into evidence following Appellant’s testimony and the trial court admitted it. The trial court stated that it took notice of the manual’s instruction that an officer should ask a subject if he or she has any physical disabilities before performing the walk-and-turn test. The trial court found that there was sufficient evidence of probable cause and that Appellant was operating a motor vehicle with a blood alcohol concentration in excess of .08% by weight. The record is clear that, contrary to Appellant’s contention under this point, the manual in question was admitted into evidence by the trial court at Appellant’s request.

Appellant also contends that if the manual had been admitted, and in this case it was, it would have demonstrated that the field sobriety tests were improperly administered, with the result that his performance did not provide evidence of probable cause. On cross-examination Appellant elicited testimony from Corporal Weber that he did not check for exterior circumstances, such as flashing lights, before performing the HGN test, but this is his only contention that the HGN test was not reliable. However, as regards this test, the manual states that the HGN test will not be influenced by optokinetic nys-tagmus, which can result from watching strobe lights, rotating lights or rapidly moving traffic, when administered properly. As to Appellant’s contentions regarding the walk-and-turn test, the manual states that “[rjecent field validation studies have indicated that varying environmental conditions have not affected a suspect’s ability to perform this test.” Although Appellant contends that he has a foot condition which makes it painful and difficult for him to walk, he did not inform Corporal Weber of this condition before the test, and he introduced no additional evidence at trial to demonstrate that he actually has such a condition. At most, if we grant that everything Appellant claims is true, the reliability of the walk-and-turn test and the one-leg stand test might be affected. The reliability of the HGN test would not necessarily be affected by any external conditions argued by Appellant, and he did not claim that such conditions actually affected his performance on this test. Under Brown v. Dir. of Revenue, 85 S.W.3d 1, 4 (Mo. banc 2002), the trial court may, in some circumstances, disregard the results of field sobriety tests that were improperly administered. Here, the trial court chose not to do so, and, in any event, that consideration would not have affected each of the tests.

We must also consider the other indications of intoxication that Corporal Weber observed. “Even where an officer does not administer field sobriety tests, he may obtain probable cause to believe that the suspect is intoxicated from other sources of information.” Saladino v. Dir. of Revenue, 88 S.W.3d 64, 70-71 (Mo.App. W.D.2002). Corporal Weber testified that Appellant was parked in the middle of the road; that he smelled a strong odor of intoxicants on Appellant’s breath; that Appellant’s speech was slurred; that his pupils were dilated; and that he was irritated by Corporal Weber’s presence. In Saladi-no, the appellate court found sufficient probable cause for the officer to believe that the defendant was intoxicated where there was a strong odor of alcohol on his breath (a classic indicator of intoxication), his speech was slurred, he was incoherent, moody, and had difficulty standing. Id. at 71. Here, Appellant was not prejudiced as there would have been probable cause to arrest Appellant even if we took as true his dubious claims regarding the purported failure to admit the NHTSA manual and its effect on the field sobriety tests. Appellant’s first point is denied.

In his second point, Appellant claims that the trial court erred in admitting the results of the breath analysis test taken by Appellant in that it was not administered in accordance with Missouri Department of Health regulations. He claims that the fifteen minute deprivation period was not restarted after he purportedly vomited.

In support of this argument, he claims that Corporal Weber’s testimony was evasive in regard to whether he observed Appellant during the entire fifteen minute deprivation period and cites his own testimony that he vomited one minute before taking the test. He also points to the fact that a surveillance video of the observation room was not produced at trial, and that a second officer supposedly watched him vomit before the test, as support for his claim.

Where the Director makes a prima facie case for suspension, the defendant has the burden to rebut the Director’s evidence. Carr v. Dir. of Revenue, 95 S.W.3d 121, 125 (Mo.App. W.D.2002). “[T]he driver is entitled to present rebuttal evidence that raises a genuine issue of fact regarding the validity of the blood alcohol test results. The rebuttal evidence should challenge the presumption of validity established by the director’s prima facie case.” Verdoom v. Dir. of Revenue, 119 S.W.3d 543, 546 (Mo. banc 2003). The trial court then determines whether the Director has proved her case by a preponderance of the evidence. Id. at 545.

Missouri regulations provide the operating procedures for breath analyzers. See Mo.Code Regs. Ann. Tit. 19 §§ 25-30.0111-25-30.060 (2001). The procedures to be followed for use of the breath analyzer used by the St. Robert Police Department, the Data Master, are included in Mo.Code Regs. Ann. Tit. 19 § 25-30.060 Form # 7. That form requires that the subject be observed for fifteen minutes, with “[n]o smoking or oral intake of any material during this time; if vomiting occurs, start over with the [fifteen] minute observation period.” Id.

Appellant did not object to the admission of the results of the breath analysis, nor does he contend in this point that a prima facie case was not established by the Director. Appellant attempted to rebut this case at trial by presenting evidence that, if believed, would have shown that Corporal Weber did not follow the proper fifteen minute deprivation requirement. However, Corporal Weber also testified regarding the deprivation requirement and stated that Appellant did not vomit to his knowledge, that he did not observe anything come out of his mouth, and that there was no indication that he vomited in the back of the patrol car. Furthermore, on cross-examination, he stated that he did not observe Appellant vomit and that Appellant was within four feet of him and not out of his sight during the observation time.

The trial court, in a license revocation case, weighs the credibility of the witnesses and may decide to reject or accept all, part, or none of the testimony of any witness. Hawk v. Dir. of Revenue, 943 S.W.2d 18, 20 (Mo.App. S.D.1997). It is apparent that the trial court believed the testimony of Corporal Weber and not the testimony of Appellant. There was substantial evidence from which the trial court could have concluded that Appellant did not vomit during the fifteen minute observation period, and the results of the breath analysis were not rendered unreliable for the reason advanced by Appellant. The Director met its burden of proof and Appellant’s second point is denied.

The judgment of the trial court is affirmed.

BATES, C.J., and RAHMEYER, J., concur.

      . All statutory references are to RSMo (Cum. Supp.2003) unless otherwise indicated.

        . Murphy interpreted the provisions of Rule 73.01(c). The provisions of that rule now appear in essentially the same form in Rule 84.13(d), Missouri Rules of Civil Procedure (2004).

      . At the time that the Collins case was decided, Section 302.505.1 RSMo (Cum.Supp.1997), required that the alcohol concentration by weight in a person’s breath be .10%. The legislature subsequently changed this standard to .08%. Section 302.505.1.


author: HOLLY M. KIRBY, J.,

text:
    Joann WILSON v. GABLES-TENNESSEE PROPERTIES, LLC, Gables Residential Services, Inc., and Turfmaster, Inc.
    Court of Appeals of Tennessee, Western Section, at Jackson.
    July 2004 Session.
    Dec. 8, 2004.
    Permission to Appeal Denied by Supreme Court May 23, 2005.
    William M. Monroe, Memphis, for plaintiff Joann Wilson.
    Joseph K. Willcox, Memphis, for appel-lees Gables-Tennessee Properties, LLC and Gables Residential Services, Inc.
    Reid R. Phillips and John C. Murrow, Memphis, for appellee Turfmaster, Inc.
   OPINION

HOLLY M. KIRBY, J.,

delivered the opinion of the court,

in which W. FRANK CRAWFORD, P.J., W.S. and ALAN E. HIGHERS, J., joined.

This case involves premises liability. At her apartment complex, the plaintiff tripped and fell on the metal edging of a limestone gravel walkway and sustained injuries to her elbow. The plaintiff sued the owner of the apartment complex, alleging premises liability, and also sued the company that put in the metal landscape edging. The defendants filed a motion for summary judgment. The motion was granted. We affirm, finding that the plaintiff did not establish that defendants violated the duty of reasonable care.

Plaintiff/appellant Joann Wilson (“Wilson”) was a tenant in the Gables Cordova apartment complex. Defendant/appellee Gables-Tennessee Properties, L.L.C. owned the property and defendant/appel-lee Gables Residential Services (hereinafter collectively “Gables”), managed the property. The apartment complex had a trash compactor, for tenants to use to dispose of their trash. A circular driveway was in front of the compactor, with a sixteen foot concrete sidewalk leading from the driveway to the compactor. The sidewalk was wide at its base, eight feet, and narrowing closer to the compactor. In March of 2000, Gables hired defendant/ap-pellee Turfmaster, Inc. (“Turfmaster”) to install a limestone gravel walkway leading to the trash compactor, adjacent to the concrete sidewalk, for maintenance personnel to access the compactor. The line between the limestone gravel walkway and the adjacent grass and landscaping was bordered by metal landscaping edging, which was used to keep the limestone gravel on the limestone walkway and out of the grass and landscaping. Turfmaster was also responsible for maintaining the apartment complex grounds. Wilson moved into the apartment complex in September 2000, and was aware of .the metal landscape edging bordering the limestone walkway.

On January 13, 2003, Wilson drove her car to the circular driveway in front of the trash compactor to dispose of two bags of trash. Another tenant, disposing of trash, had parked his car in the circular driveway in front of Wilson’s car, partially blocking the entrance to the sidewalk. Consequently, Wilson decided to carry her trash over the landscaped grass to reach the limestone gravel walkway. While crossing from the grass to the edge of the limestone gravel walkway, Wilson tripped on the top of the metal landscape edging. Wilson alleged that the top edge had been bent and was hidden by grass. Wilson fell onto the limestone gravel walkway, resulting in an injury to her elbow that required several surgeries to repair.

On December 8, 2001, Wilson filed suit against Gables, alleging negligence in failing to take reasonable measures to insure the safety of individuals lawfully on Gables premises. An amended complaint was later filed, adding Turfmaster as a defendant. Both Gables and Turfmaster filed motions for summary judgment.

The trial court judge granted summaiy judgment to Turfmaster on September 11, 2003 and granted summary judgment to Gables on September 16, 2003, holding that Gables and Turfmaster had no duty to Wilson. From these orders, Wilson now appeals.

A motion for summary judgment should be granted when the movant demonstrates that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. Tenn. R. Civ. P. 56.04. Summary judgment is only appropriate when the facts and the legal conclusions drawn from the facts reasonably permit only one conclusion. Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn.1995). Since only questions of law are involved, there is no presumption of correctness regarding a trial court’s grant of summary judgment. Bain v. Wells, 936 S.W.2d 618, 622 (Tenn.1997). Therefore, our review of the trial court’s grant of summary judgment is de novo on the record before this Court. Warren v. Estate of Kirk, 954 S.W.2d 722, 723 (Tenn.1997).

On appeal, Wilson asserts that the strip of grass and landscaping next to the limestone gravel walkway is a common area and that Gables and Turfmaster had a duty to ensure that the common areas of the apartment complex are maintained in a manner that would protect Wilson from dangerous conditions.

Wilson cites to Grizzell v. Foxx, 48 Tenn.App. 462, 348 S.W.2d 815 (1960) in support of her argument. In Grizzell, the plaintiff recovered damages from her landlord after she slipped and fell on a snow covered sidewalk that led from her building to the parking lot. Id. at 816. The plaintiff was forced to use a snow covered sidewalk because all sidewalks leading out of the apartment complex were covered in snow. Id. at 818. On appeal, this Court held that a landlord had a “duty to exercise reasonable care to keep common passageways in good repair and in a safe condition.” Id. at 817. The Grizzell court went on to note that this duty included the obligation to remove accumulations of snow and ice within a reasonable time. Id. at 817. Since the ice and snow had been on the sidewalks for four days, and all of the exits available to the plaintiff were covered with ice and snow, and it was necessary for the plaintiff to leave her apartment to get food for her ill husband, the court found that the trial court did not err in holding the landlord hable. Id. at 816-818.

While the plaintiff in Grizzell had no choice but to use the ice-covered sidewalk, in this case, Wilson had the option of using the wide concrete sidewalk provided for access to the trash compactor. Wilson acknowledged that she could have used the sidewalk to reach the trash compactor, but chose not to:

Q. All right. Then you proceeded towards the dumpster; right?
A. Yes.
Q. Was there anything to prevent you from walking up the concrete walkway? A. No.
Q. You, though, elected to walk across the grass?
A. Yes.

The issue of the defendants’ duty to Wilson hinges on the foreseeability of harm to someone in the plaintiffs position. In Miller v. Mt. Laurel Chalets, Inc., 88 S.W.3d 927 (Tenn.Ct.App.2002), perm. app. denied (Tenn.2002), the plaintiff sued the owner of rental property. The plaintiff had rented a chalet in Gatlinburg for several nights. Id. at 927. On several occasions, she had gotten out of bed at night and gone to the bathroom, which was located next to the door leading to a flight of stairs down to the basement. Id. at 928. She had also been down to the basement several times. Id. On the night in question, the plaintiff got out of bed to go to the bathroom, and did not turn on a light. Id. By mistake, the plaintiff opened the door to the basement and stepped forward, falling down the staircase leading to the basement. Id. The plaintiff alleged that defendants knew or should have known of the dangerous condition of the premises and failed to warn her of the dangerous condition. Id. The trial court granted summary judgment to the defendant. This Court upheld the grant of summary judgment; holding that the landlord could not reasonably foresee that the plaintiff, who had used the bathroom at night a number of times and had visited the basement several times as well, would get out of bed in darkness, cross a hallway and step into the stairwell. Id. at 930. Because the landlord could not have reasonably foreseen this conduct, the landlord did not have a duty to the plaintiff. Id. 930-931.

In this case, as in Miller, the plaintiff had full knowledge of the alleged hazard. She had lived in the apartment complex for over two years, had brought trash to the compactor on numerous occasions, and knew of the metal landscape edging bordering the limestone gravel walkway.

Wilson asserts that her accident was foreseeable because Gables knew that tenants sometimes cut across the grass strip to reach the limestone gravel walkway. In deposition testimony, Gables’ property manager admitted knowledge that tenants sometimes walked across the grass strip. However, there was no evidence of any prior accidents related to the metal landscape edging.

In this case, the foreseeability of a tenant walking across the grass is not the same as the foreseeability of a tenant tripping on the landscape edging. The issue of duty turns on the foreseeability of harm. Ball v. G.W. Hubbard Hospital of Mekarry Medical College, No. 01-A-01-9508-CV-00384, 1996 WL 165096, *4 (Tenn.Ct. App. April 10, 1996). Therefore, we must agree with the trial court that Wilson failed to present evidence from which we could conclude that it was foreseeable to Gables and Turfmaster that a tenant would trip and fall over a known obstacle. Moreover, there is no indication that the metal landscape edging is inherently dangerous. In Ball v. G.W. Hubbard Hospital of Meharry Medical College, 1996 WL 165096 (Tenn.Ct.App. April 10, 1996), the plaintiff fell on an unmarked step in the defendant’s parking garage. The Ball Court found that there was nothing in the record to establish that the premises were dangerous or defective; therefore, the defendant had no duty to protect the plaintiff from the condition that caused her accident. Id. at *4. Consequently, the trial court’s grant of summary judgment in favor of the defendant was affirmed. Id.

Wilson further asserts that the metal landscape edging was bent. After the accident, Turfmaster inspected the area of Wilson’s fall and agreed that the edging was slightly bent. However, there is no evidence in the record indicating that the bend in the landscape metal edging contributed to Wilson’s fall or caused it to be dangerous.

Under Wilson’s analysis, a landlord would be liable for injuries related to all potential obstacles located in a common area, of which the tenant was aware, and in the absence of evidence of any prior harm caused by the potential obstacle. This Court has clearly stated that a property owner is not an insurer of those who enter its facilities “nor will be held liable for injuries sustained from dangers that are obvious [or] reasonably apparent ...” Paradiso v. Kroger Company, 499 S.W.2d 78, 79 (Tenn.Ct.App.1973); Byrd v. State, 905 S.W.2d 195 (Tenn.Ct.App.1995).

Wilson seeks to distinguish caselaw based on premises Lability from caselaw based on landlord/tenant Lability. In this situation, however, this is a distinction without a difference, because the duty of both a landowner and landlord is to exercise reasonable care. Compare Dobson v. State, 23 S.W.3d 324, 330 (Tenn.Ct.App.1999) (“the premises owner has a duty to exercise reasonable care under the circumstances to prevent injury to persons law-fuUy on the premises ... ”) with Grizzell v. Foxx, 48 Tenn.App. 462, 348 S.W.2d 815, 817 (1960) (“Tennessee has decisively imposed upon the landlord a duty to exercise reasonable care to keep common passageways in good repair ... ”). Under all of these circumstances, we must conclude that the trial court did not err in granting summary judgment in favor of the defendants Gables and Turfmaster.

The judgment of the trial court is affirmed. Costs of the appeal are taxed to plaintiff/appellant Joann Wilson, and her surety, for which execution may issue, if necessary.


author: SHARON G. LEE, J.,

text:
    Becky BRIDGES v. Mickey BRIDGES.
    Court of Appeals of Tennessee, Eastern Section, at Knoxville.
    Oct. 28, 2004 Session.
    Nov. 23, 2004.
    Permission to Appeal Denied by Supreme Court May 2, 2005.

      Charles David Buckholts, Oak Ridge, Tennessee, for Appellant, Becky Bridges.
    April Carroll Meldrum and Sal W. Var-salona, Clinton, Tennessee, for the Appel-lee, Mickey Bridges.
   OPINION

SHARON G. LEE, J.,

delivered the opinion of the court,

in which HERSCHEL P. FRANKS, P.J. and CHARLES D. SUSANO, JR., J., joined.

This case presents the issue of whether a qualified domestic relations order which awarded the husband’s navy retirement benefits one-half to the husband and one-half to the wife can be altered more than one year later to specify the equal division of the cost of living allowance. We hold that the trial court’s order allowing the cost of living allowance to be divided equally between the husband and wife was a proper clarification of its previous order, and not a modification of the original order.

Appellee Becky Bridges (“Wife”) and Appellant Mickey Bridges (“Husband”) were awarded a divorce in the Chancery Court for Anderson County by a final order entered on March 26, 2001. Among other things, this order decrees that, by agreement of the parties, Wife shall be awarded “one-half (1/2) of the Defendant’s retirement from the United States Navy” and Husband “shall retain one-half of his retirement from the United States Navy.” The order further provides that “Husband shall execute any and all necessary documents to facilitate said transfer, including but not limited to, a Qualified Domestic Relations Order.” Thereafter, on June 26, 2002, nunc pro tunc to March 26, 2001, the trial court entered a clarifying order which substitutes the following language for the two sentences in the original order which state, “The Husband shall retain one-half (1/2) of his retirement from the United States Navy.” and “The parties agree that the Husband shall execute any and all necessary documents to facilitate said transfer, including but not limited to, a Qualified Domestic Relations Order.”:

The Plaintiff Wife is awarded a percentage of the Defendant Husband’s disposable military retired pay, to be computed by multiplying 50% (fifty percent) times a fraction, the numerator of which is 278 (two hundred and seventy eight) months of marriage during the Defendant Husband’s creditable military service, divided by the Defendant Husband’s total number of months of creditable military service at retirement. For the purpose of this computation, the Defendant Husband’s military retired pay is defined as the military retired pay the Defendant Husband would have received had the Defendant Husband retired on March 26, 2001, at the rank of Chief Petty Office (E-7) with 22 (twenty-two) years and 7 (seven) months of creditable service.

We would note at this point that it appears that the clarifying order erroneously decrees the substitution of the above language in part for the sentence “The parties agree that the Husband shall execute any and all necessary documents to facilitate said transfer, including but not limited to, a Qualified Domestic Relations Order.” It is apparent from our review of the parties’ briefs and the record as a whole that it was not the intent of the parties or the trial court to replace this language in the original order, but rather the language which provides that Wife shall be awarded “one-half (1/2) of the Defendant’s retirement from the United States Navy” and “The Husband shall retain one-half (1/2) of his retirement from the United States Navy.”

Apparently, based upon the formula set forth above, Wife’s award of Husband’s retirement pay was calculated to be $1,061.50 per month. Later, Wife received the following letter dated October 28, 2002, from Defense Finance and Accounting Service:

Dear Becky L. Bridges:
Your community property award for a division of the above member’s disposable retired pay has been modified per the enclosed Clarifying Order issued by the Chancery Court of Anderson County, Tennessee effective November 2002.
Below is an explanation of how we computed the amount:
50% x 278/288 = 48.2638%
Hypo gross pay: .025 x 22.5833 years (22 years and 7 months) = .564582 x $2890.80 (active pay of an E7) = $1632.09
Actual gross pay: $2123.00 Adjustment: $1632/$2123.00 = .768723 x 48.2638% = 37.1014%
Since no Cost of Living Allowances were specifically awarded in either order, we had to convert the percentage to a fixed dollar amount, so your award has been modified as follows:
37.10U% x $2123.00 = $787.66 per month.
Should you have any questions give our Customer Service Department a call at (216) 522-5301, or write me at the above address.
Sincerely,
David Vicens,
Paralegal Specialist (Emphasis added.)

After receiving this letter, Wife filed a motion which states that “according to the Defense, Finance and Accounting Service, the community property award for division of the retired pay included no cost of living allowance; therefore, the pay to the Plaintiff was reduced from One Thousand, Sixty-one Dollars and Fifty Cents ($1,061.50) per month to Seven Hundred Eighty-seven Dollars and Sixty-six Cents ($787.66) per month.” The motion requests that the trial court “modify or clarify the Final Decree of Divorce, and/or the Clarifying Order to allow the Plaintiff to receive as was the parties’ intention and the Court’s understanding, fifty percent (50%) of the Defendant/Husband’s creditable military service pay in the amount of One Thousand, Sixty -one Dollars and Fifty Cents ($1,061.50).” On December 8, 2003, the trial court entered its order upon this motion decreeing ... “the Plaintiff/Counter-Defendant, Becky Bridges, be awarded a cost of living allowance regarding the husband’s military retirement due to the fact the Court contemplated the cost-living allowance at the initial hearing.” Thereafter, Husband filed a motion to reconsider which was denied by the court and this appeal followed.

The sole issue we address in this appeal is whether the trial court’s order awarding Wife cost of living allowances as part of Husband’s military retirement constituted a prohibited modification of the trial court’s final order of divorce.

As noted, the division of property set forth in the divorce decree in this case is based upon the parties’ agreement in that regard. The interpretation of a written agreement, such as that reflected in the trial court’s decree, is a matter of law, not fact, and, accordingly, our review is de novo on the record with no presumption of correctness. Wills & Wills, L.P. v. Gill, 54 S.W.3d 283, 285 (Tenn.Ct.App.2001) and Tenn.R.App. P. 13(d).

Husband contends that the parties’ agreement as set forth in the order of final divorce did not provide that Husband’s disposable retirement pay would include cost of living allowances. He maintains that the order of final divorce was a contract between the parties, that they agreed to be bound by its provisions, and that, although wife could have requested the inclusion of cost of living allowances, she failed to do so. Husband argues that the trial court erred because it “substituted its own interpretation of the agreement with the intent of the parties based upon the plain contractual language.” Finally, Husband points out that under Tennessee law court orders distributing marital property are not subject to modification.

In Hays v. Hays, C/A No. 02A01-9406-CV-00128,1995 WL 475449 (Tenn. Ct.App. W.S., filed August 11, 1995) we recognized the following guidelines as being applicable to an analysis of a contractual agreement:

In interpreting contracts, the cardinal rule requires the court to ascertain the intention of the parties and to give effect to that intention consistent with legal principles. Rainey v. Stansell, 836 S.W.2d 117, 118 (Tenn.App.1992). Absent an ambiguity in the terms, the intention of a contract is determined from the language of the contract. HMF Trust v. Bankers Trust Co., 827 S.W.2d 296, 299 (Tenn.App.1991). The words expressing the parties’ intentions should be given their usual, natural and ordinary meaning. Park Place Ctr. Enter., Inc. v. Park Place Mall Assoc., 886 S.W.2d 113, 116 (Tenn.App.1992).

Hays, 1995 WL 475449 at *1.

It is our determination that cost of living allowances were included in the award of Husband’s retirement pay as set forth in the order of final divorce and subsequent clarifying order entered June 26, 2002, nunc pro tunc to March 26, 2001. We are guided in this determination by the decision of the Supreme Court of this state in Johnson v. Johnson, 37 S.W.3d 892 (Tenn. 2001).

In Johnson a marital dissolution agreement (“MDA”) entitled wife to one-half of husband’s “military retirement benefits.” After the parties’ divorce and upon husband’s retirement the MDA was implemented without incident for approximately one year. Husband then elected to receive a portion of his retirement pay in the form of tax-free disability benefits and his retirement pay was reduced to compensate for payment of these disability benefits. Consequently, the portion of his retirement benefits being paid to wife was also reduced. In response, wife petitioned the trial court to modify the final divorce decree to award additional alimony to offset the reduction in her portion of husband’s retirement benefits. The Supreme Court noted that, although under Tenn.Code Ann. § 36-5-101(a)(l) modification of an order directing payment of alimony is allowed upon a showing of a substantial and material change in circumstances, “court orders distributing marital property are not subject to modification”, citing Towner v. Towner, 858 S.W.2d 888, 892 (Tenn.1993). The Court determined, however, that wife’s petition was, in fact, not a petition to modify, but rather a request for enforcement:

We are of the opinion, however, that [wife’s] characterization of her petition as one seeking “modification” is incorrect. The whole of her argument and the remedy she seeks indicate that she desires no more than that which she originally received at the time of [husband’s] retirement: one half of the military retired pay he was entitled to receive at the time of his retirement. [Wife’s] primary argument that the term “retirement benefits” as contemplated by the MDA was intended to include both [husband’s] “retired pay” and “disability benefits.” She, therefore, claims that the parties agreed that she should receive one half of [husband’s] post-employment military compensation in whatever form it might be paid. This argument does not support a need for modification of the divorce decree. Instead, it alleges that the parties agreed to a course of action, that the trial court ordered that action, and that [husband] has failed to perform as ordered.

Johnson, 37 S.W.3d at 895-896.

With respect to interpretation of the phrase “all military retirement benefits” used by the parties in their MDA, the Court stated as follows:

We find that “retirement benefits” has a usual, natural and ordinary meaning. In the absence of express definition, limitation, or indication to the contrary in the MDA, the term comprehensively references all amounts to which the retiree would ordinarily be entitled as a result of retirement from the military. Id at 896.

The Court held that wife’s interest in husband’s retirement benefits vested when the trial court entered the divorce decree and could not be unilaterally altered by husband’s decision to accept the disability benefits.

In accord with Johnson, we conclude that the trial court’s order of December 8, 2003, by which Wife was “awarded a cost of living allowance regarding Husband’s military retirement” was not a modification of the original order, but was an order of clarification, the purpose of which was to facilitate enforcement of the final order of divorce. We hold that the term “retirement” is subject to the same definition the Court applied to the phrase “retirement benefits” in Johnson and adjudge that the “usual, natural, and ordinary meaning” of “retirement” includes cost of living allowances since there is no proof that such allowances are not amounts “to which the retiree would ordinarily be entitled as a result of retirement from the military.”

A recent opinion of this Court, Jordan v. Jordan, 147 S.W.3d 255 (Tenn. Ct.App. E.S., 2004), offers additional and alternative support for our conclusion that the trial court’s order of December 8, 2003, was not an order of modification.

In Jordan, a judgment of divorce provided that wife receive benefits under husband’s pension and/or retirement plan. Upon motion of wife, a subsequent order was entered which directed the parties to prepare and present a Qualified Domestic Relations Order (“QDRO”) for the pension/retirement benefits allowed wife under the divorce judgment. Wife did not file the proposed QDRO until over ten years after entry of the judgment for divorce and husband argued that wife’s attempt to enforce the judgment by presenting the proposed QDRO was barred under Tenn.Code Ann. § 28-3-110 which requires that an action on a judgment be commenced within ten years after accrual. Under the facts in Jordan, the administrator of husband’s pension plan had not approved the QDRO. On appeal we concluded that wife’s attempt to obtain the plan administrator’s approval of the proposed QDRO and its entry was not an action to enforce the divorce judgment:

The plan administrator in the instant case has yet to prove the proposed QDRO. Hence, the trial court’s decree cannot be enforced against the “holder of the purse strings.” Any attempt to “enforce” the trial court’s validly-entered division of Husband’s pension plan would be futile. We conclude from all of this that the approval of the proposed QDRO is adjunct to the entry of the judgment of divorce and not an attempt to “enforce” the judgment. It is an essential act to bring to fruition the trial court’s decree regarding a division of Husband’s interest in the Dupont pension plan. Until the proposed QDRO is approved by the plan administrator and entered by the trial court, the act of the trial court in dividing the pension plan is not complete and hence not enforceable. (Emphasis in original.)

Jordan, at 262.

As noted by the Tennessee Supreme Court in Johnson, supra, a court order distributing marital property is not subject to modification. Husband contends that the trial court’s inclusion of cost of living allowances as part of his military retirement constitutes a prohibited modification of the order of divorce. Based upon the authority of Jordan, we find no merit in this argument. As the trial court’s judgment in Jordan was not yet subject to enforcement absent approval of the plan administrator, so in the matter before us, the order of divorce was not yet subject to modification absent clarification that Husband’s retirement included cost of living allowances. In each case, the act of the trial court in dividing the parties property was incomplete.

Wife contends that Husband’s appeal of this case is frivolous; however, our review of the record compels us to disagree. Accordingly, Wife’s request that she be awarded attorney’s fees, court costs and accrued interest on that basis is denied.

The judgment of the trial court is affirmed and this case is remanded for further proceedings consistent with this opinion. Costs of appeal are adjudged against the Appellee, Mickey Bridges and his surety.


author: Justice HECHT

text:
    DIAMOND SHAMROCK REFINING CO., L.P., Diamond Shamrock Refining and Marketing Co., Diamond Shamrock, Inc., Sigmor Corp., and Ultramar Diamond Shamrock Corp., Petitioners, v. Donna HALL, Respondent
    No. 02-0566.
    Supreme Court of Texas.
    Argued Oct. 1, 2003.
    Decided July 8, 2005.

      Reagan W. Simpson, King & Spalding, William J. Boyce, Fulbright & Jaworski L.L.P., Daryl G. Dursum, Erin Patterson, Adams & Reese, L.L.P., Houston, for Petitioners.
    Channy F. Wood, Wood Law Firm, L.L.P., Amarillo, James Christopher Dean, Robert E. Garner, Garner, Stein & Dean, L.L.P., Joe L. Lovell, Lovell Lovell New-som & Isern, L.L.P., John Smithee, Tem-pleton Smithee Hayes Heinrich & Russell, L.L.P., Amarillo, George J. Kacal, Kacal Adams & Law, P.C., Houston, John N. McCamish Jr., McCamish, Socks & Mont-pas, San Antonio, Sam L. Stein, Garner & Stein, L.L.P., Cherokee, OK, for Respondent.
   Justice HECHT

delivered the opinion of the Court.

Charles Hall died of burns he suffered in a refinery explosion. His wife sued his employer, Diamond Shamrock Refining Co., L.P., a self-insured subscriber under the Texas Workers’ Compensation Act, its parent, Ultramar Diamond Shamrock Corp. (collectively “Diamond Shamrock”), and others for gross negligence to recover exemplary damages as permitted by article XVI, section 26 of the Texas Constitution and section 408.001 of the Texas Labor Code. The trial court rendered judgment for the plaintiff for a portion of the damages assessed by the jury, and she and Diamond Shamrock both appealed. A divided court of appeals reversed and remanded the case for a new trial. The plaintiff and Diamond Shamrock have both petitioned this Court for review. The dis-positive issue for us is whether any clear and convincing evidence supports the jury’s finding that Diamond Shamrock was grossly negligent — more specifically, that Diamond Shamrock was actually, subjectively aware of the risk to Hall and was nevertheless consciously indifferent to his welfare. Applying the standard of eviden-tiary review adopted in Southwestern Bell Telephone Co. v. Garza, we conclude that there is no such evidence. Accordingly, we reverse and render judgment for Diamond Shamrock.

I

The explosion that resulted in Charles Hall’s death occurred when a reciprocating gas compressor at Diamond Shamrock’s crude oil refinery in Dumas ruptured. The compressor, located in the Feed Prep Unit (FPU), compressed vapors (like hexane) produced in other parts of the plant so that their hydrocarbon constituents (like propane and butane) could be extracted and used rather than burned at the torch. The compressor could not compress liquids (liquids, of course, cannot usually be compressed), and the injection of even a small amount of liquid into the compressor cylinder could cause it to fracture, releasing highly combustible hydrocarbons that could ignite and explode. That had happened twice at the refinery some thirty years earlier, before the FPU was built, when exceptionally cold weather caused liquid hydrocarbons to condense out of the vapor stream in the compressor suction line on the way to the FPU. To prevent such problems from recurring, the FPU was designed to include a large suction drum to collect liquid hydrocarbons from the line entering the FPU and drain them to an underground accumulator drum. The suction drum had a sight glass to allow the compressor crew to see if liquids were present, a high-level alarm to warn if the drum was filling with liquids, and an automatic shutoff switch for the compressor.

Circumstances leading to the explosion at issue here began when the Hydrocracker Unit (HCU) was restarted following a routine maintenance shutdown. Although the HCU crew was attempting to follow the same restart procedures that had been used many times before, the HCU began to overheat, causing excessive vaporization of liquid hydrocarbons in the HCU. This vapor was sent to the FPU, but on its way it cooled, causing the liquids to condense and flow through the vapor line into the suction drum. As the suction drum began to fill, the high-level alarm sounded, prompting the FPU operator to ascertain that the liquids were coming from the HCU. When the operator saw in the sight glass that liquids were filling the suction drum faster than it would drain, he insisted that the HCU operator stop the flow. The HCU operator requested permission from a plant foreman to divert the flow from the HCU to the torch or to storage, but permission was refused. Recognizing the danger of sending liquids to the FPU compressor, the HCU operator disobeyed the instructions he had been given and diverted the flow to storage. Meanwhile, the automatic shutoff switch on the suction drum failed to operate, and the FPU crew shut down the compressor manually.

Liquids draining from the suction drum into the accumulator drum were pumped from there to the compressor’s discharge line. This took several hours, and while it was in progress, there was a shift change. A new crew, including Charles Hall and two other men, finished the process. After some 456 barrels had been pumped out, the crew checked the sight glass on the suction drum and opened bleeder valves on the compressor suction line to be sure no more liquids were present. None were, and the crew then began the process of restarting the compressor.

To understand what happened next, one must understand the system of lines and valves around the compressor, as illustrated in this schematic diagram:

The numbers indicate where valves were positioned on the lines. Just past the suction drum (not shown), Valve 1, the suction valve, regulated the input to the compressor, and Valve 4, the discharge valve, regulated the output. Valve 2 regulated the flow through a recirculating line that connected the discharge end of the compressor to its intake. All three were block valves that had to be manually operated by the crew. When the compressor was shut down, they were all closed. Valve 8 was a bleeder valve that if opened would release the contents of the discharge line into the open air just outside the compressor building. It may have been installed so that the system could be hydrostatically tested when it was first constructed, and it had not been used since. Valve 5 was a check valve with a flapper that operated automatically. Vapor flow from the compressor would push the flapper up; when the flow stopped, the flapper would fall by force of gravity to block any backflow in the discharge line toward the compressor.

Cheek valves are not generally designed to be leak-proof, and at some earlier time (the record is not clear exactly when) an FPU operator thought this check valve leaked and had “written it up” — that is, asked that it be repaired. It never was. Crew members were not instructed to inspect Valve 5 before restarting the compressor, and Hall and his co-workers did not do so. Unbeknownst to them, the valve flapper inside the line had become detached, rendering the valve inoperable.

Liquids pumped from the accumulator drum entered the discharge line beyond Valve 5, as shown at the upper right of the schematic. When the compressor was running and Valves 1, 4, and 5 were open, vapor flow from the compressor flushed any liquids pumped from the accumulator drum down the discharge line. But when the compressor was stopped and Valve 4 was closed, there was a back-pressure on the discharge line. The line also sloped toward the compressor. Diamond Shamrock knew that without Valve 5, back-pressure and gravity would force liquids pumped into the discharge line while the compressor was stopped to run down toward Valve 4, and when it was opened, they would be sucked into the compressor. That is in fact what happened the day of the explosion. Because Valve 5 was broken, it did not block the liquids being pumped into the discharge line from flowing back toward Valve 4.

The compressor had been shut down and restarted many times since the FPU was constructed fifteen years earlier, and the restart procedures were clearly prescribed. Following those procedures to the letter, Hall opened Valve 2 and started the compressor engine. With Valves 1 and 4 both closed, vapor simply recirculated without putting any load on the compressor until its engine had warmed up. (An open torch line, not shown in the schematic, also reduced pressure on the system during startup.) The crew was then required first to open Valve 4, next to open Valve 1, and finally to close Valve 2, at which point the compressor would be back on line. Restart procedures did not call for the crew to check for liquids on the discharge side of the compressor, and they did not do so. Had they been instructed to open Valve 3, liquids would have escaped, revealing their presence in the discharge line. But Valve 3, as already noted, had not been used to test for the presence of liquids and apparently had not been installed for that purpose. Because it was never used, over the years it had become covered up with dirt. Some FPU crew members knew where it was, but Hall and his co-workers did not.

As Valve 4 was opened, gravity and back-pressure on the discharge line pushed the accumulated liquids that had moved down the line from the broken check valve into the recirculating line where they were pulled up into the suction of the compressor. Seconds later, the compressor began to make loud, knocking noises, which one crew member described as sounding like cannon fire. Hall’s coworker quickly tried to close Valve 4, but the knocking continued. Almost immediately, a cover plate on the compressor cylinder cracked from the pressure, and vapor and liquids began spewing out, catching fire. The crew realized that to prevent an explosion, they would have to stop the compressor, which they could do only by shutting off the fuel to its engine. Before they could reach the cutoff, the compressor exploded. All three men were severely burned, and eight days later Hall died of his injuries.

After the explosion, Diamond Shamrock modified the bleeder valves in the discharge line, adding a collection line and an extension handle, so that they could be used to detect and collect liquids in the discharge line when the compressor was shut down, before it was restarted. Diamond Shamrock also instructed FPU crews to monitor the pressure on the compressor cylinder when the compressor was shut down to determine whether the discharge valve, Valve 4, or the check valve, Valve 5, was leaking.

Hall’s widow, Donna Hall (to whom we refer as “the plaintiff’, to distinguish her from her husband), sued Diamond Shamrock and three related entities for wrongful death. Because the Texas Workers’ Compensation Act allowed her to recover only exemplary damages for gross negligence, the trial court excluded all evidence of actual damages. Without objection, the court instructed the jury—

• that gross negligence means an act or omission—
(i) which, when viewed objectively from the standpoint of Diamond Shamrock Refining Company, L.P. at the time of its occurrence, involved an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and
(ii) of which Diamond Shamrock Refining Company, L.P. had actual, subjective awareness of the risk involved, but nevertheless proceeded with conscious indifference to the rights, safety, or welfare of others.
• that it could find gross negligence only by clear and convincing evidence, defined as “proof that produces a firm belief or conviction as to the truth of the allegation sought to be established.”

The jury found that Diamond Shamrock Refining Co., L.P. was grossly negligent and assessed exemplary damages of $42.5 million. Following the announcement of the verdict, defendants’ counsel moved in open court “to have the court limit the recovery of punitive damages in this case ... to the amount of $200,000” in accordance with section 41.008 of the Texas Civil Practice and Remedies Code. The court agreed and rendered judgment against Diamond Shamrock for that amount plus prejudgment interest.

Both the plaintiff and Diamond Shamrock appealed. A divided court of appeals held: that evidence of gross negligence was legally and factually sufficient; that section 41.008 applied; that section 41.008 was not unconstitutional as applied; and that Diamond Shamrock did not waive its right to the statutory cap; but that the trial court erred by precluding the plaintiff from proving actual damages for purposes of calculating the statutory cap. Accordingly, the court reversed and remanded the case for a new trial. The court of appeals did not reach other arguments raised by the parties. Justice Green, dissenting, would have held that there was no evidence of the subjective component of gross negligence, paragraph (ii) of the definition quoted above.

We granted both parties’ petitions for review.

II

The parties have raised several arguments we need not address because, as already noted, we have concluded that there is no clear and convincing evidence of gross negligence.

The plaintiff argues that Diamond Shamrock waived its evidentiary challenge by moving in open court for judgment on the verdict. Although she acknowledges that Diamond Shamrock later argued that there was no evidence to support a judgment, she complains that Diamond Shamrock was trying to “have it both ways”, citing our opinion in Litton Industrial Products, Inc. v. Gammage, There, Litton moved that judgment be rendered against it for actual damages rather than treble damages, but argued in an accompanying brief that it reserved the right to challenge any judgment. We “disapprove[d] a practice by which a party, by motion, induces the trial court on the one hand to render a judgment, but reserves in a brief the right for the movant to attack the judgment if the court grants the motion.” Unlike Litton, Diamond Shamrock did not move for judgment of a specific amount; it urged only that judgment not exceed what it argued was the statutory cap. This was not inconsistent with its arguments that no evidence supported a judgment of any amount. Diamond Shamrock did not waive its evidentiary challenge.

In Southwestern Bell Telephone Co. v. Garza, we held that—

in reviewing the legal sufficiency of evidence to support a finding that must be proved by clear and convincing evidence, an appellate court must “look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true.”

The parties in this case agree that gross negligence was required to be proved by clear and convincing evidence as defined in the jury charge. Accordingly, we apply this elevated standard of review in assessing the evidence. As in Garza, we follow the procedure set out in In re J.F.C.:

In a legal sufficiency review, a court should look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true. To give appropriate deference to the fact-finder’s conclusions and the role of a court conducting a legal sufficiency review, looking at the evidence in the light most favorable to the judgment means that a reviewing court must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable fact-finder could do so. A corollary to this requirement is that a court should disregard all evidence that a reasonable fact-finder could have disbelieved or found to have been incredible. This does not mean that a court must disregard all evidence that does not support the finding. Disregarding undisputed facts that do not support the finding could skew the analysis of whether there is clear and convincing evidence.
If, after conducting its legal sufficiency review of the record evidence, a court determines that no reasonable factfinder could form a firm belief or conviction that the matter that must be proven is true, then that court must conclude that the evidence is legally insufficient.

We focus on the subjective component of gross negligence as stated in the jury charge: that an actor has “subjective awareness of the risk involved, but nevertheless proceed[s] with conscious indifference to the rights, safety, or welfare of others.” The risk here was that liquids could accumulate in the discharge line while the compressor was shut down and be drawn into the compressor when it was restarted, causing an explosion like the one that resulted in Hall’s death. As clear and convincing proof of Diamond Shamrock’s actual, subjective awareness of, and conscious indifference to, this risk, the plaintiff points to the following evidence, which we address in three categories:

• Past experience and the HCU: Diamond Shamrock knew that sending liquids through the vapor line to the FPU compressor could cause an explosion, as it had on two prior occasions. Yet on the day of this explosion a plant foreman refused to divert liquids from the HCU to storage or the torch and prevent them from flooding the FPU.
The check valve: Diamond Shamrock knew that liquids pumped from the accumulator drum emptied into the compressor’s discharge line, that the check valve would leak or fail, that pressure from the discharge line appeared to an FPU operator sometime earlier to be leaking past the check valve, that a request from that operator to fix the valve had gone unheeded, and that if liquids accumulated in the discharge line near the discharge valve an explosion could result. Diamond Shamrock’s expert testified that to know of a problem with the check valve was to know of a potential danger. Yet not until after the explosion was the FPU redesigned to allow the integrity of the check valve to be monitored by measuring the line pressure at the discharge valve.
The absence of bleeder valves: Diamond Shamrock knew that the bleeder valves in the discharge line (Valve 3) could have been used to determine whether liquids were present, yet it did not tell Hall or his crew about the existence of the valves or instruct them in their use. Bleeder valves were used elsewhere in the refinery for that purpose, and after the explosion the bleeder valves in the discharge line were modified so that they could be used to check for liquids.

As for the first category: What Diamond Shamrock knew from the prior explosions was that it had to guard against liquids in the suction line, upstream from the suction valve (Valve 1). The suction drum, with its sight glass and high-level warning alarm, was intended to serve this purpose, and on the day of the explosion, it did. Even if the flow from the HCU should have been stopped sooner, that delay is no evidence that Diamond Shamrock was consciously indifferent to the danger of an explosion. The FPU was designed so that the compressor would be shut down before any liquids from the HCU or anywhere else reached the suction valve, and that is exactly what happened.

Regarding the check valve: Diamond Shamrock was aware of the possibility that liquids could backflow in the discharge line, and it installed the check valve to prevent back pressure in the line. This system worked without incident for fifteen years. Even though an FPU operator thought the check valve was leaking, nothing in the evidence suggests that Diamond Shamrock actually knew that it presented any danger of explosion. Certainly, no one that day imagined that liquids had traveled back through the discharge line toward the compressor. The FPU crews were careful to see that all liquids were removed from the suction line to the compressor, a process that took several hours. Diamond Shamrock’s failure to take further precautions may have been evidence of negligence. But “[ejvidence of simple negligence alone is not sufficient to establish gross negligence.” There is no evidence, certainly no clear and convincing evidence, that Diamond Shamrock was consciously indifferent to the risk of explosion.

Regarding the use of bleeder valves: The bleeder valve in the discharge line (Valve 3) vented the flammable contents of the line into the open air. The valve had been used only to test the system hydro-statically when it first came on line and had not been used since. After the explosion, Diamond Shamrock modified the bleeder valves so that they could be used to check for liquids in the line, adding an extension to allow operation from a platform outside the building and a collection line to gather any contents. Its failure to make these modifications before the explosion may have been negligent, but again, this is not enough to prove gross negligence. Diamond Shamrock was not indifferent to the risk that liquids would accumulate in the discharge line. It installed a check valve which appeared to have protected against the risk for fifteen years. Diamond Shamrock’s failure to implement redundant safety systems is not, on this record, any evidence of conscious indifference to the risk of explosion.

The plaintiff complains that Diamond Shamrock’s arguments are tantamount to claiming that it was entitled to “one free explosion”, but that characterization is not supported by the evidence. For one thing, any explosion threatened the entire refinery and all of its employees, and this one certainly took a tremendous toll. It was by no means “free”. More importantly, the record establishes, and no one disputes, that refinery operations are by their very nature dangerous. Diamond Shamrock’s efforts to protect against those dangers were imperfect; they may have been negligent. But there is no evidence that Diamond Shamrock was unconcerned.

The plaintiff argues that this case is like Mobil Oil Corp. v. Ellender and Seminole Pipeline Co. v. Broad Leaf Partners, Inc,, cases in which the. defendant was grossly negligent, but each is distinguishable. In Mobil Oil, there was evidence that the employer went to great lengths to protect its own employees from improperly handling benzene but intentionally did nothing to protect contract workers from the same danger, even though employees and contract workers worked side by side. There is no evidence in the present case that Diamond Shamrock intentionally did nothing to protect Hall from the risk of explosion. In Seminole Pipeline, the defendant’s own employees testified that they knew its salt dome storage safety system was inadequate but continued to expand storage capacity despite the risk of explosion. In the present case, there is no evidence that Diamond Shamrock knew the FPU compressor was unsafe as designed and operated. We think the case is closer to Louisianar-Pacific Corp. v. Andrade, in which the defendant’s employees knew that electricity to an overhead crane near where Andrade was working had to be “locked out” (disconnected) and thought that had been done Although the employees were mistaken, there was no evidence of conscious indifference to the risk of harm. To the contrary:

“all of the testimony indicated that the [defendant’s] employees involved in the chain of the lock-out process actually, subjectively believed that they personally had either locked-out the crane, or that their personal subjective recollection of various events led them to believe that the crane had been locked-out by someone prior to Andrade beginning work on the day in question.” And “[w]hat is further lacking from the evidence, even inferentially, is proof that any [of defendant’s] personnel were consciously indifferent to the risk of electrocution if the crane was energized.”

“[W]hat separates ordinary negligence from gross negligence is the defendant’s state of mind; in other words, the plaintiff must show that the defendant knew about the peril, but his acts or omissions demonstrate that he did not care.” Viewing the record in the light most favorable to the plaintiff, there is no clear and convincing evidence that Diamond Shamrock knew of the risk of the compressor explosion that resulted in Hall’s death and yet did not care.

Accordingly, the judgment of the court of appeals is reversed and judgment is rendered that Hall take nothing.

Justice GREEN did not participate in the decision.

      . TEX. CONST, art. XVI, § 26 (“Every person, corporation, or company, that may commit a homicide, through wilful act, or omission, or gross neglect, shall be responsible, in exemplary damages, to the surviving husband, widow, heirs of his or her body, or such of them as there may be, without regard to any criminal proceeding that may or may not be had in relation to the homicide.”).

      . TEX. LAB. CODE § 408.001(b)(“This section [making workers’ compensation benefits the exclusive remedy against an employer for the death or work-related injury of an employee] does not prohibit the recovery of exemplary damages by the surviving spouse or heirs of the body of a deceased employee whose death was caused by an intentional act or omission of the employer or by the employer's gross negligence.”).

      . 82 S.W.3d 5 (Tex.App. — San Antonio 2001).

      . 164 S.W.3d 607 (Tex.2004).

      . See TEX. CIV. PRAC. & REM. CODE § 41.001(11).

      . See id. § 41.003(a).

      . See id. § 41.001(2).

      . Id. § 41.008(b) (“Exemplary damages awarded against a defendant may not exceed an amount equal to the greater of: (1)(A) two times the amount of economic damages; plus (B) an amount equal to any noneconomic damages found by the jury, not to exceed $750,000; or (2) $200,000.”).

      . 82 S.W.3dat 12-18.

      . Id. at 18-21.

      . Id. at 21-22.

      . Id. at 22-23.

      . Id. at 23-24.

      . Id. at 25.

      . Id. (Green, J., dissenting).

      . 46 Tex. Sup.Ct. J. 584 (Apr. 17, 2003).

      . 668 S.W.2d 319 (Tex. 1984).

      . Id. at 321-322.

      . Id. at 322.

      . Southwestern Bell Telephone Co. v. Garza, 164 S.W.3d 607, 632 (Tex.2004) (quoting In re J.F.C., 96 S.W.3d 256, 266 (Tex.2002)).

      . In re J.F.C., 96 S.W.3d at 266.

      . Louisiana-Pacific Corp. v. Andrade, 19 S.W.3d 245, 247 (Tex.1999).

      . 968 S.W.2d 917 (Tex.1998).

      . 979 S.W.2d 730 (Tex.App.—Houston [14th Dist.] 1998, no pet.).

      . 979 S.W.2d at 743-748.

      . 19 S.W.3d 245, 247-248(Tex.1999).

      . Id. at 248 (quoting Louisiana-Pacific Corp. v. Andrade, 964 S.W.2d 944, 953 (Tex.App.— Beaumont 1998) (Walker, C.J., dissenting)) (citations omitted).

      . Id. at 246-247 (citing Williams v. Steves Indus., Inc., 699 S.W.2d 570, 573 (Tex.1985), and Burk Royalty Co. v. Walls, 616 S.W.2d 911, 922 (Tex.1981)).