source: Caselaw Access Project

author: KELLER, Justice.

license: Public Domain

text:
    GRANGE MUTUAL INSURANCE COMPANY, Appellant, v. Hon. William W. TRUDE, Jr., Judge, Appellee, and Dale WILDER Real Party in Interest.
    No. 2003-SC-0772-MR.
    Supreme Court of Kentucky.
    Oct. 21, 2004.
    As Modified Dec. 1, 2004.
    Rehearing Denied Jan. 20, 2005.

      Whitney Dunlap, III, Burnam, Thompson, Weldon, Simons and Dunlap, PSC, Richmond, Counsel for Appellant.
    William W. Trude, Jr., Judge, Owsley Circuit Court, Irvine, for Appellee.
    M. Austin Mehr, Austin Mehr Law Offices, Wesley Brian Deskins, Lexington, Counsel for Real Party in Interest.
   KELLER, Justice.

I. Introduction

The trial court ordered Grange Mutual Insurance Company (“Grange”) to comply with sixteen discovery requests. Grange petitioned the Court of Appeals for a writ of prohibition, claiming that compliance with the trial court’s order required burdensome production of irrelevant information and disclosure of privileged trade secrets. The Court of Appeals found that Grange failed to prove that production of the ordered discovery would result in irreparable harm and refused to grant the writ. With regard to the relevance, we find that the discovery requests are proper, albeit with a few exceptions, because they are aimed at production of relevant information and documents. And we agree that Grange failed to show irreparable harm because it did not adequately prove that compliance with the discovery requests would require disclosure of trade secrets. Therefore, we affirm in part and reverse in part.

II. Background

Dale Wilder (‘Wilder”) was involved in a car accident with Sid Gabbard, who was insured by Grange. Wilder submitted a personal injury claim, and Grange assigned Erica Barnes (“Barnes”) to serve as the adjuster on the claim. After negotiating with Grange for six months, Wilder was dissatisfied with the way the claim was being handled and he filed suit in the Owsley Circuit Court. Wilder’s lawsuit included a personal injury claim against Sid Gabbard and a bad faith claim against Grange.

The trial court bifurcated the claims, holding the bad faith claim in abeyance until after the trial on the personal injury claim. At the conclusion of the trial of the personal injury claim, the jury returned a verdict for Wilder and awarded him approximately $26,000.00.

The bad faith claim alleges that Barnes undervalued Wilder’s claim during negotiations and that she had repeatedly delayed communicating with Wilder’s attorney. During pretrial preparations, Wilder submitted forty-two discovery requests to Grange. Grange objected to sixteen of those requests, citing concerns about relevancy, privacy, improper motive, trade secret privileges, and the burdensome nature of the requests. The trial court overruled Grange’s objections and granted Wilder’s motion to compel the discovery. Grange then requested a protective order to limit the discovery allowed, or in the alternative, to prohibit public disclosure of the discovery. The trial court deified the motion without making any findings of fact. Grange again requested a protective order, specifically asking the trial court to conduct an in camera review of the materials to be produced to determine the extent of relevancy and privilege, and again in the alternative, to seal the file to prohibit disclosure of the discovery outside of the litigation. The trial court also denied this request.

Grange then filed a petition with the Court of Appeals for a “writ of prohibition barring the Owsley Circuit Court ... from compelling ... production ... of confidential business and trade secrets, burdensome and expensive historic data of limited relevance, and irrelevant information unrelated to the issues in the case, or limiting production to relevant information subject to appropriate Protective Orders.” Grange also described the relief it was seeking as a request that the Court of Appeals “craft[ ] a discovery order which gives [Wilder] all discovery which is relevant to his claims, balanced against the legitimate needs of the Petitioner to be protected against unwarranted public disclosure, undue burden and expense, and profiteering,” or at the very least, “[s]eal this file,” prohibit Wilder from copying the discovery, and require that Wilder return the discovery at the conclusion of the case. Grange claimed that the production of the documents would cause irreparable harm and could not be adequately remedied on appeal. The Court of Appeals denied the petition because it found that while Grange would not have an adequate remedy on appeal, it had failed to prove irreparable harm. Grange now brings this appeal as a matter of right.

III. Analysis

A. Writ of Prohibition Standard

A writ of prohibition is an “extraordinary remedy and we have always been cautious and conservative both in entertaining petitions for and in granting such relief.” We have divided writ cases into “two classes,” which are distinguished by “whether the inferior court allegedly is (1) acting without jurisdiction (which includes ‘beyond its jurisdiction’), or (2) acting erroneously within its jurisdiction.” Grange is not challenging the jurisdiction of the trial court, so we need not concern ourselves with an extensive discussion of the first class of cases.

Instead, Grange’s claim falls under the second class. In that type of case, writs of prohibition “ordinarily ha[ve] not been granted unless the petitioner established, as conditions precedent, that he (a) had no adequate remedy by appeal or otherwise, and (b) would suffer great and irreparable injury (if error has been committed and relief denied).” We “have consistently (apparently without exception) required the petitioner to pass the first test; i.e., he must show he has no adequate remedy by appeal or otherwise.” The petitioner must then also meet the requirements of the second test, i.e., by showing great and irreparable injury, alternately defined as “something of a ruinous nature,” before a writ will issue. “Ordinarily if this cannot be shown, the petition will be dismissed.”

We have also held, however, that a showing of great and irreparable harm in this second class of cases is not “an absolute prerequisite” for the issuance of a writ. The requirement may be put aside in “certain special cases ... [where] a substantial miscarriage of justice will result if the lower court is proceeding erroneously, and correction of the error is necessary and appropriate in the interest of orderly judicial administration.” But these “certain special eases” are exactly that — they are rare exceptions and tend to be limited to situations where the action for which the writ is sought would violate the law, e.g. by breaching a tightly guarded privilege or by contradicting the requirements of a civil rule. In those rare cases, a court may peek behind the curtain, i.e., beyond the petitioner’s failure to meet the great and irreparable harm test, at the merits of the petitioner’s claim of error by the lower court.

B. Appellate Review Standard

Grange claims that a denial of a writ of prohibition is examined on appeal under the de novo standard of review “where the factual underpinning for application of an articulated legal rule is so wanting as to equal, in reality, a distortion of the legal rule.” Grange cites Lexington Public Library v. Clark for this standard, but it does so by taking the qualifying language in its brief — “where the factual underpinning for application of an articulated legal rule is so wanting as to equal, in reality, a distortion of the legal rule” — out of context. The language that Grange cites reads in context as follows:

Where the challenge involves matters of fact, or application of law to facts, however, an abuse of discretion should be found only where the factual underpinning for application of an articulated legal rule is so wanting as to equal, in reality, a distortion of the legal rule. Application of any lesser standard for interlocutory intervention would ignore the extraordinary nature of the writs of prohibition and mandamus.

The cited language supports an abuse of discretion standard rather than de novo review. And the cited language actually relates the standard to be applied by the court hearing the initial petition when it reaches the merits of the case, i.e., after applying the “practical and convenient formula” of no adequate remedy on appeal and great and irreparable injury — not the standard applied in an appeal of the grant or denial of a writ to yet a higher court.

But we must review this matter under an appellate standard. The petition for this writ was filed in the Court of Appeals, which acted as a trial court because it heard the matter as an original action. And this case is now before us as a matter of right appeal, not an original action. Since the passage of the Judicial Article in 1976, the Court of Appeals has been the appropriate forum for the original action in a petition for a writ of prohibition applicable to a circuit court, and the Supreme Court is limited to appellate review. But what appellate standard — de novo, abuse of discretion, or clear error— to apply to which class of writ case is not perfectly clear because we have, unfortunately, failed to make an unambiguous distinction among the three standards in our recent writ cases.

This is perhaps a result of the fact that many of the seminal opinions on the subject of writs are from original writ actions in our predecessor Court — i.e., when there was no intermediate appellate court that would hear the original writ action and from which an appeal could be taken. Those opinions did not need to consider the standard on appeal because there was no higher court that could entertain an appeal. But it could also be that no party has framed the issue so as to require careful attention on our part as to the standard of review that we ought to apply.

By claiming that de novo is the proper standard of review, however, Grange has placed this issue squarely before us. Though our previous decisions have not dealt with this question extensively, the basic rule is simple: “Issuance of, or a refusal to issue a writ of prohibition is in the sound discretion of the court.” But in other cases, we have noted that “appellate review of that decision is limited to an abuse-of-discretion inquiry, except for issues of law which are reviewed de novo.”

Thus, it is apparent that the proper standard actually depends on the class, or category, of writ case. De novo review will occur most often under the first class of writ cases, i.e., where the lower court is alleged to be acting outside its jurisdiction, because jurisdiction is generally only a question of law. De novo review would also be applicable under the few second class of cases where the alleged error invokes the “certain special cases” exception or where the error involves a question of law. But in most of the cases under the second class of writ cases, i.e., where the lower court is acting within its jurisdiction but in error, the court with which the petition for a writ is filed only reaches the decision as to issuance of the writ once it finds the existence of the “conditions precedent,” i.e., no adequate remedy on appeal, and great and irreparable harm. “ ‘If [these] procedural prerequisites for a writ are satisfied, “whether to grant or deny a petition for a writ is within the [lower] court’s discretion.” ’ ”

But the requirement that the court must make a factual finding of great and irreparable harm before exercising discretion as to whether to grant the writ then requires a third standard of review, i.e., clear error, in some cases. This is supported by the fact that the petition for a writ is an original action in which the court that hears the petition, in this case the Court of Appeals, acts as a trial court. And findings of fact by a trial court are reviewed for clear error. Therefore, if on appeal the error is alleged to lie in the findings of fact, then the appellate court must review the findings of fact for clear error before reviewing the decision to grant or deny the petition.

C. Adequate Remedy on Appeal

There is no dispute that Grange would not have an adequate remedy on appeal. As the Court of Appeals noted, Wilder has conceded this point. But for the sake of completeness we point out that there will rarely be an adequate remedy on appeal if the alleged error is an order that allows discovery. Our predecessor court noted the following:

The present petition states, and we believe it evident, that petitioners are without an adequate remedy by appeal or otherwise .... Once the information is furnished it cannot be recalled .... The injury suffered by petitioners ... will be complete upon compliance with the order and such injury could not thereafter be rectified in subsequent proceedings in the case. Petitioners have no other adequate remedy.

As such, we agree with the Court of Appeals that Grange would have no adequate remedy on appeal.

D. Great and Irreparable Harm

The Court of Appeals based its decision on a finding that Grange failed to prove great and irreparable harm. Grange argues that it did show great and irreparable harm because the requested discovery is irrelevant and would require disclosure of trade secrets.

1. Irrelevant Discovery

Grange complains that almost all of the discovery requests at issue in this case aim to discover irrelevant information. But showing irrelevancy is not a method of proving great and irreparable injury. Mere possession of irrelevant information by an opposing party is not “something of a ruinous nature.”

Our predecessor court, however, held that discovery of irrelevant material could fall under the certain special cases exception, allowing a court to forego the great and irreparable harm requirement in the interests of justice. Thus, we must evaluate the relevance of the requested discovery to see if its production would be “a substantial miscarriage of justice ... and correction of the error is necessary and appropriate in the interest of orderly judicial administration.”

To frame the issue, we note that CR 26.02 allows that “[p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action .... It is not grounds for objection that the information sought will be inadmissible at the trial if the discovery sought appears to be reasonably calculated to lead to the discovery of admissible evidence.” We also note that under CR 26.02, “[t]he question of relevancy is more loosely construed upon pre-trial examination than at the trial, and the Rule requires only relevancy to the subject matter involved in the action.”

a. Interrogatories No. 9 and 10(b) and Request for Production No. 10

These discovery requests focus on other bad faith claims brought against Grange by private plaintiffs or the Kentucky Insurance Commission. Grange argues that information and documents related to such claims is irrelevant because they cover claims against adjusters other than those involved in this case. Citing Kentucky Farm Bureau Mutual Insurance Co. v. Troxell, Grange argues that discovery of other claims is limited only to claims involving the same adjusters. But Troxell addresses only the admissibility at trial of other claims, not their discoverability, and it states that evidence of other claims involving the same adjuster is admissible, which would imply that they are discoverable. The opinion does not contain the sort of limiting language that Grange implies. In fact, it does not even address in any way the admissibility or discoverability of claims involving other adjusters.

It is enough for us to note that discovery of information and documents related to similar claims involving other adjusters could reveal a pattern of bad faith conduct on the part of Grange. This would certainly be relevant to Wilder’s bad faith claim, regardless of whether such information was admissible at trial. As such, Interrogatories Nos. 9 and 10(b) and Request for Production No. 10 were proper.

b. Requests for Production No. 8, 9, 20, and 29

These discovery requests focus on manuals that contain Grange’s internal policies and procedures for evaluating and adjusting claims. Grange’s primary complaint with discovery of these items concerns their trade secret status, which is addressed separately below. But Grange also claims that these items are irrelevant.

In support of its relevance argument, Grange cites to only one case: Garvey v. National Grange Mutual Insurance Company. The plaintiff in Garvey had filed suit in which he claimed breach of contract, bad faith claim, and deceit based on the insurance company’s refusal to provide coverage for fire damage to his business. The trial court granted a protective order that prohibited discovery of the insurance company’s manuals, noting the following:

The contents of these manuals do not pertain to whether the plaintiff’s present claim for loss is “covered” under the insurance contract issued by the defendant. Moreover, the fact that the defendant may have strayed from its internal procedures does not establish bad faith on the part of the defendant in handling the plaintiffs loss.

The bad faith claim here is not based on whether the insurance adjuster may have strayed from internal procedures. The question is whether Grange’s own policies, as described in the manuals, embody or encourage bad faith practices. And use of such manuals is not without precedent in our courts. As such, we disagree with the applicability of Garvey to this case. Grange’s training and policy manuals are relevant to Wilder’s bad faith claim, and absent some sort of privilege or other showing of irreparable harm, they are discoverable.

c. Requests for Production No. 13, 14, 23, and 26

These discovery requests focus on Grange’s methodologies for setting reserves on claims that its adjusters handle. Again, Grange claims these are protected as trade secrets, which we address below. But Grange also makes the unique argument that this information is irrelevant to the case because Wilder already has discovery that lists the reserve amount set for his claim and because Wilder is only seeking this information for use in future litigation or to sell to other plaintiffs’ attorneys.

The relevance of procedures for setting reserves to a bad faith claim seems obvious. Reserve setting procedures are controlled in part by statute. Evidence of Grange’s reserve setting procedures would help show whether Grange is following the statutory and regulatory requirements and whether the specific system for setting reserves is aimed at achieving unfairly low values. We find that this evidence is relevant to the bad faith claim.

Grange’s argument that Wilder is seeking this discovery for other improper purposes, i.e., use in other litigation or for sale to other attorneys, is even more difficult to swallow. Grange cites Oppenheimer Fund, Inc. v. Sanders for the proposition that seeking discovery for use in other proceedings is an improper motive. But Grange’s reading of Oppenheimer is far too restrictive because the evidence sought in that case was useful only in other proceedings and was not relevant to the case at hand. We agree that when this is the case, then discovery of the evidence is improper.

Request for Production No. 13: All records, data or compilations showing average amounts paid on claims by any adjusters who were involved in adjusting Plaintiff's claim, and any unit they are in, for any bodily injuries, uninsured motorist, or property damage claims for the period of time, beginning 3 years prior to the accident of April 14, 1999 until present time.
Request for Production No. 14: All documents which provide definitions, methods of calculating, criteria or guidelines for the establishment of reserves.
Request for Production No. 23: All quality controlled audits or surveys for the offices handling Plaintiff’s claim including but not limited to: A. Home audits or regional audits; B. Manuals or guidelines for audits; and C. Claim handling quality criteria.
Request for Production No. 26: All annual reports of the following nature from 1990-present: A. 10K reports to the Securities and Exchange Commission. B. Reports to the shareholders or policyholders if a mutual company. C. Reports to regulators/insurance departments.

But evidence that is relevant to the proceeding at hand, as is the case here, is discoverable despite the fact that the evidence may be useful in other contexts. That discovery might be useful in other litigation or other proceedings is actually a good thing because it furthers one of the driving forces behind the Civil Rules by allowing the cost of repeating the discovery process to be avoided and thereby encouraging the efficient administration of justice. And “[e]ven though CR 1 no longer requires it ... the rules of procedure should be construed to secure the just, speedy, and inexpensive determination of every action.”

The exception in this group is Request for Production No. 18. The average amounts paid on other claims would only be relevant if the degree of damages or injury were comparable to Wilder’s. This request, however, is so blanket as to seek primarily irrelevant records and information. As such, it falls into the certain special cases exception.

d. Requests for Production No. 11, 16, and 21

These discovery requests focus on the personnel files and the records and policies concerning the compensation of various Grange employees. We agree that many of the items likely to be found in personnel records (e.g., original job application, marital information, tax and depen-dant data, medical information, health insurance data, worker’s compensations claims, and retirement account data) are irrelevant to a bad faith claim and thus are not discoverable. Thus, Wilder’s discovery requests, to the extent that such truly personal items are covered, are overly broad.

Other information to be found in personnel files (e.g., related to job performance, bonuses, wage and salary data, disciplinary matters) is relevant to Wilder’s claim. Job performance and disciplinary information could help show that the adjusters and their superiors had engaged in bad faith practices in adjusting Wilder’s initial claim or that they had engaged in bad faith practices at other times. This information could also show Grange’s knowledge or even approval of such practices. This makes those portions of the personnel records related to job performance and disciplinary matters discoverable.

Wilder claims that the compensation of Grange’s employees could be keyed to obtaining low settlements, which in turn might encourage bad faith practices by adjusters and other employees. Wage, salary, and bonus data as to the employees described in the discovery requests shed light on this subject, as would the discovery requests as to how Grange’s overall compensation system works. Thus, insofar as the requested personnel records relate to compensation of the employees involved and the other records relate to how Grange’s overall compensation system works, they are discoverable.

e. Request for Production No. 3

This discovery request focuses on advertising that Grange used from 1993 to 1997. Wilder failed to address this discovery request in his brief, which we read as a waiver of this issue.

f. Request for Production No. 22

This discovery request is for Grange newsletters that deal in any way with claims handling. Grange’s brief mentions this discovery request only in a section title. The text following the section title focuses solely on the discovery request dealing with advertisements, without addressing the issue of newsletters. Because Grange at least mentions this request, we will not read it as having been waived. Wilder also fails to address this discovery request directly, but we read his overall argument in favor of allowing discovery related to Grange’s claims handling documents as applying to this request also. On this point, we would simply note that internal company newsletters that relate to claims handling could contain evidence that shows that Grange encouraged or knew about bad faith claims handling by its adjusters, which makes those documents relevant and discoverable. Though Grange does not expressly claim these documents are covered as trade secrets, any claim that they might be is addressed below.

2. Trade Secrets

In addition to claims of irrelevance, Grange attacks Requests for Production Nos. 8, 9, 13, 14, 20, 23, 26, and 29 on the grounds that the documents requested have trade secrets status. Trade secrets enjoy substantial protection in Kentucky as embodied by the Uniform Trade Secrets Act. And usually a discovery request that would require the “disclosure of a trade secret ... clearly justifies the entry of a protective order,” though granting such an order would fall within the discretion of the trial court.

We have previously addressed, at least in part, the issue of trade secrets in the context of a petition for writ of prohibition. In Wal-Mart Stores, Inc. v. Dickinson, we noted that “[m]ost likely, disclosure of a trade secret would likewise rise to the level of irreparable harm as the potential harm could extend far beyond the case in which the disclosure is made.” Grange relies heavily on Wal-Mart Stores in the course of its argument that a writ of prohibition is necessary in this case. But Wal-Mart Stores is readily distinguishable from this case. Wal-Mart was seeking a writ or prohibition against the enforcement of the trial court’s order allowing an inspection — • termed a “walk-through” — of its loss prevention headquarters. We noted that ‘Wal-Mart makes no specific claims as to irreparable harm arising from the walk through. Rather it argues that the trial court erred in denying the protective order because its ‘headquarters are not open to the public and contain extremely sensitive, proprietary, confidential information and trade secrets.’ ” We then stated that involuntary disclosure of trade secrets usually amounts to irreparable harm. But we refused to grant the writ under the irreparable-harm rubric, holding that “Wal-Mart’s general claims are not well taken and cannot serve to establish irreparable harm.” While we did subsequently grant the writ in Wal-Mart Stores, the rationale for the writ came from Bender’s certain special cases exception — because the trial judge had failed to make findings of fact as required by CR 34.01 in its premises inspection order — not the traditional irreparable harm approach.

We have already discussed the applicability of the certain special cases exception, by way of irrelevance of the proposed discovery, above, finding that the exception does not apply to Requests for Production Nos. 8, 9,13,14, 20, 23, 26, and 29. The remaining question then is whether Grange has proven great and irreparable harm. The Court of Appeals has already given us a negative answer to this question of fact. So we are left to evaluate whether the Court of Appeals, which acted as a trial court in the original petition for a writ of prohibition, committed clear error. In holding that Grange “failed to also demonstrate that ... production will cause it irreparable harm,” the Court of Appeals also noted the following:

The record that has been provided to us does not suggest that Grange sought to introduce specific evidence for each document, or category of documents for which it makes a claim of lack of relevance, confidentiality, or privilege, and it is not clear whether it submitted all the documents to the trial court for its review in camera. What is clear, however, is that the records were neither submitted, nor sufficiently described, to us.

After reviewing the record submitted to the Court of Appeals, we must agree.

Grange’s petition for a writ of prohibition contains only broad descriptions of documents, e.g., “Grange’s training and or other internally created manuals, reserve setting data, policy and procedure manuals, claims payment averages, personnel and management guidelines, wage and benefits data, and other claims programs and software,” followed by the concluso-ry statement that these documents contain proprietary trade secrets. But such a blanket, vague claim of privilege is not enough. We have previously refused to grant a writ of prohibition when the petitioner has failed to provide “access to the documents, themselves, or to sufficient descriptions of their contents,” and we continue to do so now.

Grange attempts to evade the inevitable result of this failure to prove that the documents contain trade secrets by alleging a conflict between CR 76.36(5) and the fact that the Court of Appeals found no irreparable injury because Grange “neither submitted, nor sufficiently described” the records in question. CR 76.36(5) states that “[e]vidence in support of or against the petition, other than that which may be attached to the petition and response in the form of exhibits, affidavits, and counter-affidavits, will be permitted only by order of the court.” Grange claims that, under this rule, the Court of Appeals should have ordered it to submit the records that would have allowed it to prove its case, and that absent such an order, it could not prove the privilege.

While we understand that Grange did not want to simply attach the records as exhibits to their petition, it is unclear that the Court of Appeals actually needed to see the records themselves. A thorough description of the records, perhaps in'the form of a privilege log, would have been enough to show irreparable harm, but as we have already noted, the descriptions that Grange did provide were not enough to require that the Court of Appeals find great and irreparable harm.

But more importantly, “the burden of proving that a privilege applies rests on the party claiming its benefit.” If Grange felt that it was necessary for the Court of Appeals to review the documents, then it could have made a motion for a CR 76.36(5) order to allow the presentation of more evidence. Grange could even have moved the Court of Appeals to undertake an in camera review in order to determine whether discovery of the records would have caused great and irreparable harm. But Grange made no such motion. Instead, Grange now complains that the Court of Appeals failed to grant such an order sua sponte. It is not the duty of the Court of Appeals to make Grange’s case for it. And its failure to do so is certainly not grounds for us to reverse the denial of the writ.

E. Trial Court’s Failure to Conduct an In Camera Review

As a final matter, we address Grange’s initial substantive claim that the trial court “erred as a matter of law” by not conducting an in camera review of the requested discovery. This is simply an incorrect statement of the law in Kentucky. “[T]he decision whether to engage in in camera review rests within the sound discretion of the trial court.” But review of the trial court’s decision in this regard, even under the abuse of discretion standard, would require us to engage in the merits of Grange’s request for a writ of prohibition. Because Grange failed to prove the conditions precedent for reaching the merits, we decline to review the trial court’s failure to conduct an in camera review.

IV. Conclusion

The majority of the disputed discovery requests are sufficiently relevant so as not to require a writ of prohibition. But some of the discovery that Wilder seeks—the advertising information under Request for Production No. 3; certain personal aspects of the personnel records under Request for Production No. 11 including original job applications, marital information, tax and dependant data, medical information, health insurance data, worker’s compensations claims, and retirement account data; and records showing average amounts paid on other claims under Request for Production No. 13—is not relevant to the litigation underlying this case. As such, a writ of prohibition under Bender’s certain special cases exception should issue as to - those discovery requests. Grange also failed to avail itself of the procedures that would have allowed it to prove its most significant claim — that most of the discovery requests would require disclosure of trade secrets. Therefore, we agree with the Court of Appeals that Grange failed to make a sufficient showing of great and irreparable harm that would justify a writ of prohibition.

We affirm in part and reverse in part, and thus remand this matter to the Court of Appeals for entry of a writ of prohibition in conformity with this opinion.

All concur.

      . Bender v. Eaton, Ky., 343 S.W.2d 799, 800 (1961).

        . Id.

      . Id. at 801 (emphasis in original).

      . Id.

        . Id.

        . Id.

      . Id.

        . Id. (first emphasis added).

      . See Wal-Mart Stores, Inc. v. Dickinson, Ky., 29 S.W.3d 796, 803 (2000) (noting that deposing an attorney or paralegal involved in the case would normally fall under the "certain special cases" exception because of the attorney-client privilege).

      . See id. at 801-02 (noting that a judge’s failure to include findings of fact as required by CR 34.01 in a premises inspection order met the exception); Bender, 343 S.W.2d at 803 (holding that a judge’s order for production of a doctor’s report was a violation of the then recently enacted Civil Rules and thus fell under the exception).

      . Ky., 90 S.W.3d 53, 62 (2002).

      . Id.

      . Bender, 343 S.W.2d at 801.

      . A circuit court may entertain an original action for mandamus or prohibition against a district court. Commonwealth v. Williams, Ky.App., 995 S.W.2d 400, 403 (1999). In that event, the Court of Appeals acts as a reviewing court and is then limited to appellate review of the circuit court’s decision.

      . Haight v. Williamson, Ky., 833 S.W.2d 821, 823 (1992).

      . Rehm v. Clayton, Ky., 132 S.W.3d 864, 866 (2004); see also Ky. Labor Cabinet v. Graham, Ky., 43 S.W.3d 247, 250 (2001) ("As the issues on this appeal are to be decided as a matter of law, our review of the Court of Appeals decision is not confined to an abuse of discretion inquiry.”).

      . See supra notes 7-11 and accompanying text.

      . Rehm, 132 S.W.3d at 866 (alteration in original) (quoting Peterson v. Shake, Ky., 120 S.W.3d 707, 711 (2003) (Keller, J., concurring)).

      . See CR 81 ("Relief heretofore available by the remedjy] of ... prohibition ... may be obtained by original action in the appropriate court.”); Lexington Pub. Library v. Clark, Ky., 90 S.W.3d 53, 56 (“A petition for an extraordinary writ is a separate civil action brought pursuant to CR 81, not an interlocutory appeal from the underlying action brought pursuant to CR 73.01(1).”).

      . CR 52.01.

      . Bender v. Eaton, Ky., 343 S.W.2d 799, 802 (1961); see also Wal-Mart Stores, Inc. v. Dickinson, Ky., 29 S.W.3d 796, 800 (2000) (noting the lack of adequate remedy on appeal for disclosure of trade secrets).

      . Bender, 343 S.W.2d at 801.

      . Carpenter v. Wells, Ky., 358 S.W.2d 524, 527-28 (1962).

      . Id. (emphasis in original).

      . Maddox v. Grauman, Ky., 265 S.W.2d 939, 941 (1954).

      . The production requests in their entirety are as follows:
      Interrogatory No. 9: List by docket, file number, time or jurisdiction and case title every litigation involving allegations against you of either: (a) Violations of the Unfair Claims Settlement Practices Act or similar act; (b) Violations of the Kentucky Consumer Protection Act known as KRS 367.170, et ah; and (c) Allegations of common law bad faith, which allegations were made between July 1, 1989, and the present.
      Interrogatory No. 10(b): With respect to each type of litigation identified above, state the following: ... (b) The result of the litigation, i.e., settled or verdict, and state the amounts paid for each matter, if any.

        Request for Production No. 10: Any and all documents produced, generated or disseminated by you which relate to any proceeding initiated by the Kentucky Insurance Commission regarding allegations of Unfair Claims Settlement Practices Act, including any market conduct surveys or exams or any complaints filed with the Kentucky Insurance Commission which relate to claims handling practices for auto policies between 1990-2001.

      . Ky., 959 S.W.2d 82, 85-86 (1997).

      . The production requests in their entirety are as follows:
      Request for Production No. 8: Any records or compilations, manuals, internal memorandum, documents or other communications which are maintained by you and relate to claims by insureds for unfair claim settlement practices.
      Request for Production No. 9: Any manuals, handbooks, internal publications or other instructional materials or statements of policy respecting claims handling procedures which were disseminated, utilized, or produced by you, between January 1985 and September 2001 for any claims handling in the state of Kentucky.
      Request for Production No. 20: Documents pertaining to programs designed to control costs (including both indemnity and allocated/unallocated claim costs), including but not limited to the following: A. Medical costs containments; B. Medical Management; C. Peer Review; D. Bill Review; and E. Computations regarding average claim or indemnity payments. This is limited to claims involving properly and casualty in the State of Kentucky for the last six (6) years. (last sentence added in the trial court’s order).
      Request for Production No. 29: Documents of any type which set[ ] forth Defendant Grange Insurance policies [and] philosophies on: A. Claims handling polices; B. Providing service to policy holders; C. Good/Bad Faith claims handling; D. Extra contractual damages and suits; E. Compliance with unfair claims practices and statutes; and F. Wrongful claim handling.

      .167 F.R.D. 391 (E.D.Pa.1996).

      . Id. at 396.

      . Troxell, 959 S.W.2d at 83 (noting that the trial court had allowed "evidence of company manuals used to train Farm Bureau adjusters" in a bad faith claim).

      . The production requests in their entirety are as follows:

        .See KRS 304.06-120-.06-180.

      . 437 U.S. 340, 98 S.Ct. 2380, 57 L.Ed.2d 253 (1978).

      . Id. at 353, 98 S.Ct. 2380.

      . Sisters of Charity Health Systems, Inc. v. Raikes, Ky., 984 S.W.2d 464, 468 (1998) (quoting Trammel v. United States, 445 U.S. 40, 45, 100 S.Ct. 906, 912, 63 L.Ed.2d 186 (1980), quoting United States v. Bryan, 339 U.S. 323, 331, 70 S.Ct. 724, 730, 94 L.Ed. 884 (1950)) ("We begin our analysis with the nearly universal rule that privileges should be strictly construed, because they contravene the fundamental principle that 'the public ... has a right to every man’s evidence.’ ”); accord Wauchop v. Domino's Pizza, Inc., 138 F.R.D. 539, 546-47 (N.D.Ind.1991) ("The risk — or in this case, the certainty — that the party receiving the discovery will share it with others does not alone constitute good cause for a protective order. Rule 1 of the Federal Rules of Civil Procedure requires that the Rules be construed so as to foster the just, speedy, and inexpensive determination of every civil action. Collaborative use of discovery material fosters that purpose; the sharing of discovery materials ultimately may further the goals of Rule 1 by eliminating the time and expense involved in ‘re-discovery.’ ” See Williams v. Johnson & Johnson, 50 F.R.D. 31, 32 (S.D.N.Y.1970). The efficient administration of justice should encourage such practices. Ward v. Ford Motor Co. 93 F.R.D. 579, 580 (D.Colo.1982) (“Each plaintiff should not have to undertake to discovery [sic] anew the basic evidence that other plaintiffs have uncovered. To so require would be tantamount to holding that each litigant who wishes to ride a taxi to court must undertake the expense of inventing the wheel.”); accord, Baker v. Liggett Group, Inc., 132 F.R.D. 123, 126 (D.Mass.1990) ('[T]o routinely require every plaintiff ... to go through a comparable, prolonged and expensive discovery process would be inappropriate.’); Patterson v. Ford Motor Co., 85 F.R.D. 152, 154 (W.D.Tex.1980) (‘The availability of the discovery information may reduce time and money which must be expended in similar proceedings, and may allow for effective, speedy, and efficient representation.’). Maintaining a suitably high cost of litigation for future adversaries is not a proper purpose under Rules 1 or 26. (alteration in original)).

        . Seale v. Riley, Ky., 602 S.W.2d 441, 444 (1980) (Wilhoit, J., concurring); see also West v. Goldstein, Ky., 830 S.W.2d 379, 384 (1992) ("In Kentucky in 1976, Rule 1 was rewritten to accommodate the new role of the Court of Justice in developing rules, and this sentence advising how the rules should be construed was not included. Nevertheless, the continued viability of this rule of construction is assured.”).

      . The production requests in their entirely are as follows:
      Request for Production No. 11: All personnel records, performance goals, job descriptions and objectives, whether in the form of personnel records, unit goals, divisional goals, regional goals, or interoffice memorandum, or any other papers or documents which describe the goals and objectives for the following employees for the time period of January 1, 1986 through the present: (a) The claims adjusters) who handled this claim, (b) The supervisors for (a) above, (c) The supervisors for (b) above.
      Request for Production No. 16: All personnel or salary administration manuals, or other guidance manuals applicable to all adjusters or personnel involved in the claim of Plaintiff Dale Wilder which include any of the following: A. Job description; B. Salary grade classification; C. Criteria for promotion/demotion; D. Plans for adequate staff levels; E. Performance valuation and activity reviews; F. Incentive programs and retirement funds; and G. Profit sharing and stock ownership.
      Request for Production No. 21: Employee handbooks including, but not limited to orientation manuals or booklets, information regarding profit sharing, stock ownership and incentive plans, Company philosophies and policies and personnel administration manuals used for employees in Kentucky.

      . The production request in its entirely reads as follows: “Request for Production No. 3: Any and all brochures or other advertising material (video, audio, or written) used in selling the motor vehicle policies covering Shawn Gabbard and Sid Gabbard, which are used to sell to the public generally, which were used during 1993-1997.”

      . The production request in its entirety reads as follows: "Request for Production No. 22: All company distributed newsletters, whether regional, national, or local dealing with claims (whether dedicated exclusively to claims handling or partially touching on the subject).”

      . KRS 365.880 — .900.

      . Wal-Mart Stores, Inc. v. Dickinson, Ky., 29 S.W.3d 796, 800 (2000) (citing CR 26.03(1)(g)).

      . See CR 26.03(1) ("Upon motion by a party... the court ... may make any order which justice requires to protect a party from annoyance, embarrassment, oppression, or undue burden or expense.” (emphasis added)).

      . Ky., 29 S.W.3d 796 (2000).

      . Id. at 801.

      . Id. at 800.

      . Sisters of Charity Health Systems, Inc. v. Raikes, Ky., 984 S.W.2d 464, 469 (1998) (citing ROBERT G. LAWSON, THE KENTUCKY EVIDENCE LAW HANDBOOK § 505, p. 229 (3d ed. Michie 1993)).

      . Stidham v. Clark, Ky., 74 S.W.3d 719, 727 (2002).

      . Id. at 801.

      . Grange spends a significant amount of time discussing its proprietary computer software programs such as Colossus. We would note that none of the discovery requests calls for the production of software. Grange appears to have misread Request for Production No. 20, which refers to "programs designed to control costs,” where “program” is used in the sense of “[a]n ordered list of ... procedures to be followed,” AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE (4th ed.2000), not the jargonistic sense of computer software. Wilder has acknowledged this in his brief, and Grange is not required to produce its software in discovery.

        . Lexington Public Library v. Clark, Ky., 90 S.W.3d 53, 62-63 (2002).


author: TACKETT, Judge.

text:
    Nevard WELLS, Appellant, v. Dennis SANOR and Susan Sanor, Appellees.
    No. 2002-CA-002456-MR.
    Court of Appeals of Kentucky.
    Jan. 23, 2004.
    Discretionary Review Denied by Supreme Court Jan. 12, 2005.

      J. Scott Preston, Paintsville, ICY, for appellant.
    Don A. Bailey, Wilson & Bailey, Louisa, KY, for appellee.
    Before KNOPF, TACKETT, and TAYLOR, Judges.
   OPINION

TACKETT, Judge.

Nevard Wells appeals from an order of the Johnson Circuit Court that adopted the recommended findings of fact, conclusions of law and judgment rendered by the master commissioner, which affirmed the existence of a sixteen-foot right-of-way easement in favor of the appellees, Dennis and Susan Sanor, over property owned by Wells, and also awarded the Sanors $3,000 for loss of use and enjoyment of their property because of Wells preventing access to their property by way of the easement. We affirm.

The parties own property in a hollow near Daniels Creek in Johnson County that was previously part of a single parcel of land owned by Sam Clark. In 1936, the Clark parcel was divided by a court-appointed commissioner into several lots and has been subdivided several times over the years. Nevard Wells owns the major portion of Lot 4 and a small portion of Lot 5. The Sanors own the major portion of Lot 5 and a small portion of Lot 4. Wells purchased his property, consisting of approximately 51 acres, in July 1952. The Sanors purchased their property, consisting of approximately 71 acres, in August 1998 from the heirs of George Delong, Sr. The Sa-nors’ property is behind or south of Wells’s property, which abuts a county road.

The right-of-way easement at issue first appeared in 1986 in the chains of title of both parties and was duly recorded and placed on government topographical maps of the area. The deed provision reserved a “16 foot road” from the tract now owned by the Sanors (the dominant estate) to the county road through Lot 4, which is the portion now owned by Wells (the servient estate). The Sanors’ only access to their property from the county road is through Wells’s property. The easement initially ran entirely on Lot 4 on the right side of the creek branch, but in the 1940’s before Wells purchased his property, the route was altered at the request of Wells’s predecessor in title to run through Lot 5 on the left side of the creek branch on Wells’s tract, and then cross over the creek branch at a culvert onto Lot 4 to a gated area near the Delong’s house. In effect, the beginning and ending points were the same but a major portion of the roadway was shifted from one side of the creek branch to the other side.

George Delong first purchased a one-acre parcel of Lot 4 in 1987, where he built the family residence. He later purchased a 70-acre parcel of Lot 5 in 1943 and a one-quarter acre parcel of Lot 4 in 1944. The Delong family lived on their property from 1937 to the mid 1950’s, when they moved to West Virginia. They continued to rent out a portion of the property to other persons until the 1970’s. George Delong and a few other family members moved back to the homestead for a few months in the late 1950’s. George Delong also returned 10-12 times a year and would stay for a few days or more in a converted bread truck or small building. Other Delong family members also hunted on the property until shortly before it was sold to the Sanors in 1998. Between approximately 1937 and 1943, timber was cut from the 70-acre parcel. A “tramway” with wooden tracks similar to a miniature railway was built alongside the creek branch to accommodate the transport of logs to a sawmill built near the culvert and the Delong homestead.

When George Delong acquired his first tract in 1937, a wooden bridge crossing Daniels Creek existed that connected with the right-of-way roadway. Due to the deterioration of the first bridge, Delong reconstructed the bridge in the 1940’s. In 1964, a third, new bridge was constructed crossing Daniels Creek that was approximately 20-25 feet upstream from the prior bridge and was used by the Delong family and the Wells family to access the roadway. In December 1998, shortly after the Sanors purchased their property, Wells placed a locked gate near the new bridge preventing their use of the right-of-way. Since 1998, the right-of-way roadway easement has been largely unused and has become somewhat overgrown with vegetation due to lack of maintenance.

On June 8, 1999, the Sanors filed a civil action seeking to quiet title in their favor to the roadway easement, to enjoin Wells from interfering with their use of the roadway, and requesting monetary damages for their loss of use of their property. Wells filed an answer generally denying the complaint and a counterclaim alleging that he had constructed the third bridge over Daniels Creek. Wells asked for judgment enjoining the Sanors from using the bridge or entering his property.

The trial court referred the case to a master commissioner, who conducted an evidentiary hearing on June 28, 2001. Several witnesses testified at the hearing including Dennis Sanor, Nevard Wells, two of George Delong’s children' and his grandson, a land surveyor, and a state highway official. Deposition testimony of several other witnesses, including Alex Wells, Nevard Wells’s brother, was admitted as evidence as well. Both parties submitted legal memoranda on the issues following the hearing.

On November 14, 2001, the master commissioner issued a recommended judgment that included findings of fact and conclusions of law. He recommended quieting title in the Sanors to a sixteen-foot right-of-way easement through Wells’s property over, a route that traverses portions of both Lot 4 and Lot 5 and the “third” or current bridge over Daniels Creek. The judgment required Wells to remove all fences, obstructions, or gates preventing use of the entire sixteen-foot-width of the easement, and awarded the Sanors $3,000 for the loss of use of their property since December 1998, when Wells blocked their use of the roadway with the locked gate, On November 20, 2001, Wells filed exceptions to the recommended judgment challenging several factual findings and conclusions of law. The Sanors filed a response to the exceptions. On November 12, 2002, the trial court entered an order adopting the recommended judgment of the master commissioner in its entirety. This appeal followed.

Wells raises several issues involving the present existence of a right-of-way easement, the scope of the easement, the award of damages, and the admission of hearsay testimony during the hearing. We begin with a statement of the standard of review. Under Kentucky Rules of Civil Procedure (CR) 52.01, in an action tried without a jury, “[findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. The findings of a commissioner, to the extent that the court adopts them, shall be considered as the findings of the court.” See also Greater Cincinnati Marine Service, Inc. v. City of Ludlow, Ky., 602 S.W.2d 427, 429 (1980); Rife v. Fleming, 339 S.W.2d 650, 652 (1960). A factual finding is not clearly erroneous if it is supported by substantial evidence. Owens-Coming Fiberglas Corp. v. Golightly, Ky., 976 S.W.2d 409, 414 (1998). Substantial evidence is evidence that, when taken alone or in light of all the evidence, has sufficient probative value to induce conviction in the mind of a reasonable person. Golightly, 976 S.W.2d at 414; Sherfey v. Sherfey, Ky.App., 74 S.W.3d 777, 782 (2002). With respect to property title issues,,the appropriate standard of review is whether the trial court was clearly erroneous or abused its discretion, and the appellate court should not substitute its opinion for that of the trial court absent clear error. See Cole v. Gilvin, Ky.App., 59 S.W.3d 468, 473 (2001).

A major issue in this case involves the route of the right-of-way easement. The deed provisions created an easement through Lot 4. At some point in the early 1940’s, prior to Wells acquiring the property, the route was altered either at the request or acquiescence of the owner of the northern portions of Lot 4 and Lot 5. Wells contended that the new route existed entirely on Lot 5 along the tramway until it reached the Delong property then turned due south. The Sanors maintained, and the master commissioner found, that the final third of the route at the southern end turned southwesterly crossing the creek onto Lot 4 for approximately 100 feet, and ending at a gate on the quarter-acre tract of the Delong property. This finding was supported by testimony of several witnesses and a geological topographical map dated 1954 showing the route partially traversing Lot 4. Thus this finding was not clearly erroneous.

Wells does not appear to contest the existence of a right-of-way easement through Lot 5, but he challenges a 25-35 foot portion of the roadway claimed by the Sanors near the northern or beginning section of the roadway from the old bridge to the new bridge, and a 100 foot section at the southern or rear portion from the culvert to the gate on the Delong property. Wells argues that he adversely possessed that portion of Lot 4 adjacent to the roadway easement claimed on Lot 5, so the deed provisions in the parties’ chains of title describing a right-of-way easement on Lot 4 are rendered irrelevant, and any claim to an easement must be by prescription or implication. He further postulates that because the Sanors’ right to an easement derives from prescription or implication, the scope of the roadway easement is based on the nature of its use, rather than the deed language, which he claims is eight feet in width.

The traditional rule at common law is that an easement with a fixed location cannot be relocated without the express or implied consent of the owners of both the servient estate and dominant estate, except in cases of an estate by grant where the creating instrument provides otherwise. See generally, 28A C.J.S. Easements § 157 (1996); 25 Am.Jur.2d Easements and Licenses in Real Property § 79 (1996); F.M. English, Relocation of Easements, 80 A.L.R.2d 743, 1961 WL 13063 (1961); Sloan v. Rhodes, 274 Ga. 879, 560 S.E.2d 653 (2002); MacMeekin v. Low Income Housing Institute, Inc., 111 Wash.App. 188, 199 45 P.3d 570, 575 (2002). “ ‘[A]n agreement to relocate may be implied from the parties’ actions, such as when an easement holder uses a new location established by the owner of the servient estate or when a landowner stands by while the easement holder utilizes a different route.’ ” Ericsson v. Braukman, 111 Or.App. 57, 61, 824 P.2d 1174, 1177 (1992)(quoting Jon W. Bruce, Law of Easements and Licenses in Land ¶ 7.03[l][c](1988)); Henning v. Neisz, 148 Ind.App. 576, 268 N.E.2d 310 (1971). If an easement is relocated by consent of the servient estate owner, “all the rights of the original easement attach to the relocated easement.” McCarty v. Walton, 212 Cal.App.2d 39, 46, 27 Cal.Rptr. 792, 796 (1963). See also 28A C.J.S. Easements § 157; Johnson v. Allen, 33 Ky. L. Rptr. 621, 110 S.W. 851 (1908). A dominant estate owner retains the right to unobstructed use of the relocated route of a roadway easement substituted for the original route by consent even after abandonment of the original route, not by reason of any prescriptive use but by virtue of agreement of the exchange by acquiescing in the use. Scott v. Black, 95 W.Va. 48, 120 S.E. 167 (1923). Kentucky, however, follows a minority position that in addition to mutual consent also allows the owner of a servient estate to unilaterally modify or alter the location of a roadway easement so long as it does not change the beginning and ending points and does not result in a material inconvenience to the rights of the dominant estate. See Stewart v. Compton, Ky.App., 549 S.W.2d 832, 833 (1977)(citing Terry v. Boston, 246 Ky. 222, 54 S.W.2d 909 (1932)). See also Restatement (Third) of Property (Servitudes) § 4.8(3) and cmt. f. (2000).

In the current case, a right-of-way easement from the county road to the property now owned by the Sanors across property now owned by Wells was expressly created by grant with a reservation in the parties’ chains of title. Although the deed provisions stated the easement would exist on Lot 4, there was evidence that at some time in the late 1930’s or 1940’s, the northern or front end of the route was relocated from Lot 4 to its current location partially on Lot 4 and partially on Lot 5. The evidence suggests that the modification was at the request of Wells’s predecessor in title or at least by mutual consent. Additionally, a new bridge across Daniels Creek was built in 1964, after which the parties used a slightly different route over the new bridge. Wells acquiesced in the use of the new bridge route until 1998, when he attempted to prevent access by the Sanors.

Wells’s contention that his exclusive use of a portion of the original roadway easement on Lot 4 divested the Sa-nors, the dominant estate owners, of their rights under the deed provisions is without merit. Both modifications or relocations of the roadway’s route occurred by consent, either express or implied. The relocation of the roadway did not change the nature of the easement from an express grant to one by prescription or implication. The Sanors are therefore entitled to all the rights granted to them under the deed provisions, including the use of an easement sixteen feet in width and use of the new bridge along the relocated route. See, e.g., Johnson v. Allen, 33 Ky. L. Rptr. 621, 110 S.W. 851 (1908)(affirming rights of dominant estate owner to altered passway easement under express grant); Lebus v. Kennon, 207 Ky. 633, 269 S.W. 741 (1925)(recognizing right of dominant estate owner to either relocated passway easement or to original passway). Because the Sanors’ right to the easement is derived from an express grant, they are entitled to enjoyment of the full 16-foot width delineated in the deeds even if the actual use of the right-of-way did not extend to the full dimensions of the right-of-way. See Hester v. Johnson, Ky., 335 S.W.2d 574 (1960).

Wells also contests an award of monetary damages to the Sanors. In addition to injunctive relief, the trial court awarded the Sanors $3,000 in monetary damages based on the rental value of the property. Wells asserts that he would have allowed the Sanors access to the roadway if they would have merely asked him to open the gate and sought permission to use the roadway. He states that “any damages have been created by Mr. Sanor. His problem was he didn’t want the inconvenience of having to ask.” Dennis Sanor testified that Wells installed a gate with a chain and lock shortly after the Sanors purchased their property. Sanor stated that Wells told him that he (Sanor) did not have a right-of-way over his (Wells) property and he would have Sanor arrested for trespassing if he attempted to use the roadway.

The evidence clearly shows that Wells obstructed the use of the roadway easement by the Sanors. Wells’s argument indicates that he required the Sanors to request his permission before he would allow them to use the roadway. Wells was subject to damages for interfering with the Sanors’ enjoyment of their right to use the right-of-way easement and their real property. “The measure of damages for obstruction of a passway is the diminution in value of the use of the property during the time the obstruction continued,” and rental value is a relevant factor in determining the amount of damages. Wheeler v. Tackett, Ky., 339 S.W.2d 646, 649 (1960). The trial court properly awarded damages to the Sanors based on rental value for the period Wells obstructed access to the roadway and their property.

For the foregoing reasons, we affirm the order and judgment of the Johnson Circuit Court.

ALL CONCUR.

      . See generally Cole v. Gilvin, Ky.App., 59 S.W.3d 468 (2001)(describing easements by prescription and implication).

      . Although Stewart involved an easement with an express reservation in the servient estate owner’s chain of title, the case of Gabbard v. Campbell, 296 Ky. 216, 176 S.W.2d 411 (1943), suggests that the rule allowing unilateral relocation may apply only to easements created by prescription.

      . In addition, the master commissioner’s alternative finding that the Delong family had a concurrent ownership interest along with Wells in the new bridge was supported by sufficient evidence and is not clearly erroneous. Wells’s complaint that the finding was based on inadmissible hearsay testimony from George Delong’s sons about his statements concerning creation of the new bridge is without merit. This testimony was admissible as an exception to the hearsay rule under KRE 803(20) for reputation concerning boundaries or general history. See, e.g., Broyhill v. Coppage, 79 N.C.App. 221, 339 S.E.2d 32 (1986)(applying Evidence Rule 803(20) to testimony regarding use of roadway easement).


author: COMBS, Judge.

text:
    Vester W. HOLBROOK, Appellant, v. Gwendolyn M. HOLBROOK and Jeffrey L. Preston, Appellees.
    No. 2003-CA-000136-MR.
    Court of Appeals of Kentucky.
    March 12, 2004.
    Discretionary Review Denied by Supreme Court Jan. 12, 2005.

      Patrick M. Hedrick, Ashland, KY, for appellant.
    Jeffrey L. Preston, Catlettsburg, KY, for appellee.
    Before COMBS, KNOPF, and McANULTY, Judges.
   OPINION

COMBS, Judge.

Vester Holbrook appeals from a judgment of the Boyd Circuit Court of November 22, 2002, which adopted the recommendation of the Domestic Relations Commission (DRC) and ordered him to pay his former wife, Gwendolyn Holbrook, the appellee, the sum of $60,659.07 — plus attorney’s fees. Vester argues that this money represents Gwendolyn’s portion of his pension benefits. However, he contends that it was a debt that was discharged by the United States Bankruptcy Court. We are compelled to agree and thus to conclude that the trial court erred as a matter of law in failing to give due effect to Vester’s discharge in bankruptcy. Therefore, we reverse and remand.

The parties’ twenty-year marriage was dissolved by a decree entered in the trial court on August 8, 1991. Incorporated into the final decree was their property settlement agreement, the terms of which awarded the parties an equal interest in the marital portion of Vester’s two pension funds: the Plumbers and Pipefitters National Pension Fund and the Plumbers and Pipefitters, Local # 348, Pension Fund. Because Vester had not retired at the time of the dissolution, the parties agreed to postpone undertaking the calculations required in order to determine their respective interest in the two funds. The agreement required that the parties communicate with one another to accomplish the division of the pensions as follows:

The parties hereto agree to obtain a yearly listing of any amounts paid into [Vester’s] pension plan. Upon obtaining said itemized yearly. list, the parties agree that [Gwendolyn] shall be entitled to a percentage of that pension based upon the number of years married and the number of years paid into the plan. For example, if [Vester] has been employed twenty-five years and married, nine years during that period, then [Gwendolyn] shall be entitled to eighteen percent of [Vester’s] pension. A Qualified Domestic Relations Order [QDRO] shall issue for the payment of same once the percentage is determined.

However, they did not communicate after the divorce. Vester retired in 1992, the year following the dissolution. He failed to notify Gwendolyn, and a QDRO was not entered. From his retirement date until some time in 1999, Vester received all of his monthly pension benefits. When Gwendolyn finally learned in 1999 that Vester had retired, she filed a motion in the Boyd Circuit Court seeking to hold him in contempt for failing to comply with their agreement. She also requested that the court order him to reimburse her for her share of the retirement benefits that had already been disbursed to him.

Gwendolyn’s share of the pensions was determined, and QDRO’s were accordingly entered to enable her to receive her portion of the on-going monthly pension benefits. She has received $298.87 per month from the national pension fund since August of 1999; however, her monthly benefit of $885.80 from the local pension fund did not commence until January 2001.

Yester, by now a resident of Florida, sought protection from his creditors in bankruptcy court. His petition resulted in an automatic stay of Gwendolyn’s legal efforts both to enforce the provisions of the dissolution decree and to collect the sums wrongfully withheld by him.

Gwendolyn and her attorney were named as creditors in the pending bankruptcy action and were provided notice of that proceeding. Nonetheless, they filed no claims to challenge Vester’s effort to discharge his debt to Gwendolyn. Accordingly, Vester’s debts, including the debt to Gwendolyn, were discharged by order of the United States Bankruptcy Court for the Southern District of Florida on September 9,1999.

In February 2001, Gwendolyn renewed her motion for contempt and for reimbursement of her share of the pensions that had been paid to Vester between 1992 and 1999. Vester responded that Gwendolyn’s loss of her share of the pension benefits was directly attributable to her own failure to have QDRO’s entered at the time of the dissolution, arguing that it was not his duty to see that the QDRO’s were entered. He further contended that his personal liability to Gwendolyn had been discharged in the 1999 bankruptcy proceeding. The circuit court remanded the matter to the DRC.

The DRC entered her report on February 28, 2002, recommending that Vester be ordered to pay Gwendolyn the pension ar-rearage of $60,659.07. The DRC concluded that because Gwendolyn had possessed a property interest in the pension plans at the time of dissolution, Vester “no longer had any interest in [Gwendolyn’s] portion [of the plans].” However, the DRC did not address Vester’s defense that his discharge in bankruptcy barred any further attempt to collect the arrearage.

Vester timely filed exceptions to the DRC’s report, again contending that his debt to Gwendolyn had been discharged in bankruptcy. The circuit court approved the DRC’s report without elaboration on November 22, 2002. Vester filed a motion to amend the judgment or to enter specific findings of fact — asking the court once again to weigh and to properly consider the effect of his discharge in bankruptcy. That motion was denied on December 19, 2002. This appeal followed.

Vester argues that the court’s order violates his discharge in bankruptcy by attempting to enforce an obligation that was previously discharged. He challenges the underlying jurisdiction of the court even to entertain the issue of dischargeability in bankruptcy of his obligations to Gwendolyn arising from the decree of dissolution. He contends that Gwendolyn was required to file an objection to the discharge in the bankruptcy proceeding in order to preserve her claim against him for the pensions benefits already paid. Gwendolyn argues that the Boyd Circuit Court “saw through” Vester’s attempt to defraud her of her share of the pensions, urging that he “cannot hide behind the Bankruptcy code for this type of behavior.”

Neither the DRC nor the trial judge addressed the critical issue of the legal effect of Vester’s bankruptcy. Not all marital debts are dischargeable in bankruptcy. The Bankruptcy Code separates debts arising from a marital relationship into two classes. Some debts (such as debts for child support or spousal support or maintenance) are non-dischargeable as a matter of law. 'll U.S.C. § 523(a)(5). Gwendolyn acknowledges that the debt at issue is not in the nature of support or maintenance and that it does not fall within the protected classification. However, other obligations incurred “in the course of a divorce or separation, or in connection with a separation agreement, [or] divorce decree” are dischargeable. 11 U.S.C. § 523(a)(15). Although state courts have concurrent jurisdiction to determine whether a debt is in the nature of support or maintenance, the bankruptcy court has exclusive jurisdiction to determine whether a nonsupport obligation is dischargea-ble. 11 U.S.C. § 523(c); In re Milburn, 218 B.R. 862, 865 (Bankr.W.D.Ky.1998).

The Bankruptcy Code further provides that a nonsupport marital debt, like the pension arrearage at issue, shall be discharged unless the creditor files a complaint “no later than 60 days after the date set for the meeting of creditors.” FRBP 4007; 11 U.S.C. § 523(c)(1). As stated earlier, Gwendolyn did not file such a complaint. Thus, although she may have arguably been successful in preventing the discharge of the debt if she had respondéd in that forum, neither the Boyd Circuit Court nor this Court has the jurisdiction to reverse the order of the bankruptcy court discharging Vester’s debt.

In the course of defrauding Gwendolyn, Vester also managed to enjoy a wrongful windfall by invoking bankruptcy. Repugnant as were both his deceptive behavior and the legal result of the bankruptcy proceeding, we believe that the trial court had no choice but to recognize and to give full faith and credit to the order of discharge of the bankruptcy court — including the Code’s provision barring the commencement or continuation of any action to collect personal debts of the debtor predating the filing of the petition. 11 U.S.C. § 524(a). Therefore, we conclude that the court erred in failing to give effect to the discharge of the bankruptcy court.

Without citing any authority, Gwendolyn argues that the Boyd Circuit Court somehow maintained jurisdiction to order Vester to pay the arrearage because he admittedly had fraudulently received his benefits over the seven-year period. However, despite his fraudulent and unsavory conduct, the dischargeability of his debt to Gwendolyn was a matter wholly entrusted to the exclusive purview of the bankruptcy court. In addition to debts relating to nonsupport marital dissolution obligations, Congress has conferred solely upon the bankruptcy court the jurisdiction to determine the dischargeability of debts incurred by fraud (§ 523(a)(2)) and debts arising from “fiduciary misconduct, embezzlement or larceny.” § 523(a)(4).

Again without citing any authority, Gwendolyn seeks to distinguish away the pre-emptive impact of federal bankruptcy law by characterizing the arrearage as a “property right” rather than as a debt susceptible of being discharged. This argument is valid only as it relates to ongoing pension benefits. That is, by filing bankruptcy, Vester cannot subject Gwendolyn’s interest in the funds remaining in the pensions to the interests of his creditors; neither could he terminate her rights in his own favor.

We conclude that Gwendolyn has no claim against the pension funds for the accumulated past arrearage. Her claim for the arrearage can only be asserted against Vester personally as his debt. 11 U.S.C. § 101(12) defines “debt” as a “liability on a claim.” A “claim” is defined broadly as follows:

(A) right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured; or
(B) right to an equitable remedy for breach of performance if such breach gives rise to a right to payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured, or unsecured;

11 U.S.C. § 101(5). Notwithstanding Gwendolyn’s initial interest in the pension funds, Vester’s breach of the property settlement agreement constituted a claim which he was legally (although not morally or equitably) entitled to discharge upon approval by the bankruptcy court. A new debt was created each month when Vester received a pension payment which he concealed and withheld from Gwendolyn. Federal bankruptcy law and the doctrine of res judicata preclude further consideration by the trial court of Vester’s obligation to pay that debt.

Finally, it appears that Vester may have received some pension benefits following the filing of his bankruptcy petition and before one or both of the pension funds accepted Gwendolyn’s QDRO’s. In a voluntary Chapter 7 case, only those debts arising prior to the petition date are eligible for discharge. 11 U.S.C. § 727(b). Therefore, we remand this matter for a determination of the amount of benefits, if any, owed to Gwendolyn resulting from the payments of pension benefits accruing between the date of filing of Vester’s bankruptcy petition and the effective date of Gwendolyn’s QDRO’s.

The judgment of the Boyd Circuit Court is reversed, and this matter is remanded for further proceedings consistent with this Opinion.

ALL CONCUR.

      . Federal Rules of Bankruptcy Procedure.


author: MINTON, Judge.

text:
    MARTINGALE, LLC, Appellant, v. CITY OF LOUISVILLE; County of Jefferson; Bridge the Gap, Inc; and Commonwealth of Kentucky, Appellees.
    No. 2003-CA-000074-MR.
    Court of Appeals of Kentucky.
    July 9, 2004.
    Reconsideration Denied Aug. 13, 2004.
    Discretionary Review Denied by Supreme Court Jan. 12, 2005.

      Donald L. Cox, William H. Mooney, Lynch, Cox, Gilma & Mahan, P.S.C., Louisville, KY, for Appellant.
    James R. Williamson, Bethany A. Breetz, Stites & Harbison PLLC, Louisville, KY, for Appellee City of Louisville.
    Before GUIDUGLI, JOHNSON, and MINTON, Judges.

      . This appeal was filed before the merger of the two entities.

   OPINION AND ORDER

MINTON, Judge.

This appeal arises following the condemnation of a bridge across the Ohio River, known as the Big Four Bridge. Martingale, LLC argues that the City of Louisville lacked the authority to condemn the bridge under principles of eminent domain, or in the alternative, that the condemnation was done improperly. Martingale attempted to enjoin the condemnation action through a separate suit in the federal courts, but was unsuccessful in seeking relief.

Though the history of the bridge begins in 1888, the instant case has its genesis more recently. The circuit court provided a succinct background which we incorporate as follows:

In Jefferson Circuit Court Case No. 86-CI-05157, a personal judgment was recovered against The Louisville & Jef-fersonville Bridge Corporation (“LJBC[”]), and the Jefferson County Sheriff levied against LJBC’s personal property interest in the Big Four Bridge. (The bridge’s superstructure had been severed from the underlying real estate.) At the Sheriffs sale on October 16, 1987, Bridge the Gap purchased the bridge’s superstructure for the sum of $10,300. Subsequently, Bridge the Gap entered into an agreement to sell said superstructure to Martingale.
On December 7, 2000, the Board of Aldermen’s Resolution No. 268, authorizing the City of Louisville [ ] to bring a condemnation action on behalf of the Waterfront Development Corporation (“WDC”) in connection with the development of Phase II of the Waterfront Park, was passed and approved. Condemnation proceedings were to be instituted if WDC was unable to negotiate a voluntary sale of the bridge with the property owner.
On April 25, 2001, Bridge the Gap and Martingale filed a declaration of rights action in the United States District Court for the Western District of Kentucky, to enjoin the City and WDC from pursuing a condemnation action. On July 27, 2001, the City brought this condemnation action as to the Kentucky portion of the bridge. The Big Four Bridge spans the Ohio River. A majority of the bridge is located in Kentucky, but a portion thereof is located in Indiana.
On August 6, 2001, the Court appointed three Commissioners to determine the difference between the fair market value of the Kentucky portion of the bridge before the taking and the fair market value remaining, if any, immediately after the taking. The August 22, 2001 Commissioners’ Report set forth said difference to be $80,000.
On October 4, 2001, Bridge the Gap and Martingale filed a motion to set aside the Commissioner’s Report for failing to comply with KRS 416.580 and/or to stay this condemnation action pending the adjudication of the parties’ federal action.

The circuit court ultimately decided against Martingale and Bridge the Gap, holding that the City did have the authority to condemn the bridge and had proceeded properly in the condemnation.

Shortly before the scheduled oral arguments, the City moved to dismiss Martingale’s appeal on the basis that Martingale lacked a sufficient interest in the bridge to have standing to appeal. Martingale responded by asserting it did have an equitable interest in the bridge, and by moving to strike the City’s motion because it relies extensively on matters not contained within the record prepared for this appeal.

Martingale is correct that the City relies extensively on matters not made part of the record before this appeal was taken. As an appellate Court, we generally do not consider matters outside the record. Therefore, the City’s attempted reliance on matters not presented to the circuit court until well after this appeal was filed is not well taken. Rather, any issue regarding Martingale’s standing in the underlying condemnation action must be addressed in a subsequent appeal taken from the circuit court’s final resolution of the matter, at which time a proper record may be developed. Accordingly, we deny the City’s motion to dismiss Martingale’s appeal, and grant Martingale’s motion to strike the City’s motion.

Though presented in multiple sections, Martingale’s arguments on appeal from the circuit court’s judgment on the City’s right to take essentially fit into two main groupings. The first is that Martingale possesses certain franchises granted by the United States, the Commonwealth of Kentucky, and the State of Indiana, and that the City lacks the authority to condemn these franchises. The second group of arguments is essentially that the City failed to comply with various condemnation statutes, making the purported condemnation invalid.

Martingale’s franchise argument is wholly without merit. As explained by the United States Supreme Court in Monongahela Navigation Co. v. United States, the existence of a franchise, be it from the government of the United States or of an individual state, is not a bar to condemnation. Rather, it is a factor to be considered in determining the value of the property taken through condemnation. “[T]hat value depends largely upon the productiveness of the property, — the franchise to take tolls.” Therefore, the existence of a state or federal franchise would only affect the condemnation action to the extent that the City would be required to pay the reasonable value of the franchise taken.

However, in this case Martingale does not possess a valuable franchise from any government, state or federal. Martingale’s predecessor petitioned the Interstate Commerce Commission to be allowed to abandon the bridge. The ICC declared that continued operation of the bridge would constitute an undue burden on interstate commerce which should no longer be permitted and accordingly granted the petition for abandonment in 1969. The approaches to the bridge were removed in 1974, making the bridge inaccessible.

The United States Supreme Court has acknowledged the possibility of abandonment of a franchise in both interstate and/or intrastate commerce. “[T]he company [holding such a franchise] may withdraw its property from use by the public when that use can be kept up only at a loss.” Similarly, in McConnell v. Crittenden County, Kentucky’s highest Court was faced with a question of whether a ferry operator had abandoned his franchise across the Ohio River. While the Court held that no abandonment had occurred in that case, it can be inferred from its analysis that the Court presupposed the possibility that an abandonment of the ferry franchise was possible and legally permissible. Furthermore, the Court expressly held that a ferry franchise is property, and as such ordinary rules of property may be applied to questions involving franchises.

In this case, whatever franchises were associated with the bridge were abandoned by Martingale’s predecessor. The actions of petitioning the ICC to be allowed to abandon the bridge and removing the approaches to the bridge manifest a clear intention to abandon any franchise to collect tolls, operate a post road, or any activity associated with commerce across the bridge. Therefore, Martingale possessed no franchises associated with the bridge, those franchises having been abandoned decades earlier.

Another of Martingale’s arguments is that the condemnation failed to conform to the mandate of KRS 416.580(1) that the commissioners appointed by the circuit court consider the value of the entire property before the taking in calculating the difference in value after the taking. Martingale argues that it was error to only consider the value of the Kentucky side of the bridge in determining the value to be awarded following the condemnation. Martingale presents the interesting hypothetical wherein an owner of a building which straddles a state boundary is only compensated for a portion of the building which is demolished in one state, while a portion of the building remains standing in the other state. While this is an intriguing question which may need to be resolved in a proper case, this is not such a case.

Martingale’s predecessor, Bridge the Gap, purchased its interest in the bridge at a sheriff’s sale which was held to satisfy a judgment debt against the Louisville and Jeffersonville Bridge Corp. The Bridge Corp.’s only asset was the Big Four Bridge, which was seized to satisfy the outstanding judgment.

It is axiomatic that “[t]he sheriff of one state may not levy process issued by the courts of that state on property situated in another state, since no state tribunal can exercise jurisdiction over persons or property within the borders of another state.” Here, the Jefferson County Sheriff had no authority to seize that portion of the bridge which is located within the borders of Indiana. Accordingly, Bridge the Gap purchased only that portion of the bridge located in Kentucky, and it is only that Kentucky interest which Bridge the Gap could sell to Martingale. Therefore the commissioners appointed by the circuit court had no obligation to consider the value of the portion of the bridge in Indiana because Martingale did not purchase an interest in it from Bridge the Gap. Like the circuit court, we do not undertake to answer the question of the ownership of the Indiana side of the bridge. We hold only that Bridge the Gap did not purchase any part of the bridge outside of Kentucky at the aforementioned sheriffs sale in 1987, which precludes Martingale’s current ownership claim based exclusively on that sale. Any remaining question regarding the ownership of the Indiana side of the bridge is for the courts, of Indiana.

Finally, we must address Martingale’s argument that the city either lacked the statutory authority to condemn the bridge as personal property or did not follow the appropriate procedure. However, this argument ignores a point made clear by the circuit court’s opinion; namely, that there are multiple avenues of condemnation available to the city and “one avenue for condemnation does not preclude other avenues for condemnation.” We cannot improve on the circuit court’s analysis of this issue, so we adopt it herein as follows:

[Martingale] also argues[s] that the City needed to set up a bridge commission to condemn the bridge under KRS 181.853(2). The Court agrees that KRS 181.853(2) gives a bridge commission the power to acquire by condemnation. However, under KRS 181.850(1), the City is not required to create a bridge commission but may do so. As a commission was not created by the City, KRS 181.853(2) is inapplicable.

[Martingale] further argue[s] that condemnation of the bridge for a park purpose needs to be ordered by the director of parks and recreation under KRS 97.257. They also contend that only real property can -be condemned under this statute, but the plain language of KRS 97.257 does not support such a limitation. The language of KRS 97.257 is permissive rather than mandatory, as alleged by [Martingale], as it reads that the director of parks and recreation may order the condemnation. KRS 82.082(1) gives the City, under a grant of home rule, the power of eminent domain in accordance with the provisions of the Eminent Domain Act of Kentucky, KRS 416.540 to KRS 416.680. KRS 83.520 provides that the provisions of KRS Chapter 97, among others, shall be considered permissive rather than mandatory and restrictions therein shall not be considered abridging the complete grant of home rule.

[Martingale] also contendfs] that WDC is an instrumentality of the state and can only execute its right of eminent domain by requesting the Finance and Administration Cabinet to institute condemnation under KRS 416.560(3). This argument ignores the fact that WDC is also a city and county agency. As a city agency, in this instance, KRS 416.560(1) required WDC to request the City’s governing body to institute condemnation proceedings on its behalf.

Consequently, the Court finds that the City, acting on its own behalf and on behalf of WDC, has complied with the applicable condemnation statutes to this action.

Accordingly, the judgment of the circuit court is AFFIRMED. The City’s motion to dismiss is DENIED, and Martingale’s motion to strike the City’s motion is GRANTED,

ALL CONCUR.

      . See Martingale LLC v. City of Louisville, 361 F.3d 297 (6th Cir.2004). The Court held that Martingale's attempted action is barred by the Anti-Injunction Act, 28 USCA § 2283.

      . We note at this point that Martingale failed to provide a copy of the circuit court’s opinion and order in the otherwise voluminous appendix to its brief, as mandated by Ky. R. Civ. P. (CR) 76.12(4)(c)(vii). While we have chosen not to do so, we are authorized to impose sanctions for this failing under CR 76.12(8) and accordingly caution Martingale to be more cognizant of our rules in the future.

        4. Affirmed, Louisville and Jeffersonville Bridge Corp. v. Senler, Campbell & Assoc., Inc., No. 88-CA-001098-MR (Opinion rendered Aug. 25, 1989, and designated not to be published).

      . See, e.g., Ky. R. Civ. P. (CR) 75 et seq.; White v. White, Ky.App., 883 S.W.2d 502, 505 (1994).

      . At the time of this writing, a motion for reconsideration of the circuit court's order dismissing Martingale from the underlying condemnation action remains pending.

      . 148 U.S. 312, 13 S.Ct. 622, 37 L.Ed. 463 (1893).

      . Id., 148 U.S. at 329, 13 S.Ct. 622.

      . The United States District Court, in similarly rejecting Martingale’s arguments regarding the bridge’s status as a post road, its role in interstate commerce, and the continued existence of state and federal franchises to collect tolls stated:
      First, the contention that the Bridge is in interstate commerce is ludicrous. The structure is usable only by pigeons and other winged creatures. It is inaccessible to humans, except those with extremely long ladders. The Bridge has not been in use as a means of transportation across the river for over 30 years. The approaches having been removed, the Bridge cannot be used as a means of transporting goods or people.
      Slip Opinion at 5.

      . See Railroad Commission of Texas v. Eastern Texas R. Co., 264 U.S. 79, 44 S.Ct. 247, 68 L.Ed. 569 (1924).

      . Id., 264 U.S. at 86, 44 S.Ct. 247 (quotation omitted).

      . 250 Ky. 359, 63 S.W.2d 329 (1933).

      . Id., 63 S.W.2d at 330.

      . 30 Am.Jur.2d Executions and Enforcement of Judgments, § 209 (citations omitted). See also KRS 426.010, et seq.

      . Op. at 831.

      . Op. at 831-32 (original emphasis).


author: PER CURIAM. .

text:
    STATE of Missouri, Respondent, v. Steven NIEBRZYDOSKI, Appellant.
    No. ED 83046.
    Missouri Court of Appeals, Eastern District, Division Three.
    Sept. 21, 2004.
    As Corrected Oct. 5, 2004.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 30, 2004.
    Application for Transfer Denied Jan. 25, 2005.
    Melinda K. Pendergraph, Columbia, MO, for appellant.
    Andrea Kaye Spillars, Leslie E. McNamara, Jefferson City, MO, for respondent.
    Before MARY R. RUSSELL, P.J., WILLIAM H. CRANDALL, JR., J., CLIFFORD H. AHRENS, J.
   ORDER

PER CURIAM. .

Steven Niebrzydoski appeals from the judgment entered on a jury verdict convicting him of possession of a controlled substance with intent to distribute. He was sentenced as a prior and persistent offender to ten years imprisonment. He alleges two points of error on appeal. First, he contends that the trial court erred in denying his motion to suppress and admitting evidence found during a search based on an invalid search warrant. Second, he alleges the trial court abused its discretion by overruling his objection to the introduction of prior bad acts.

We have reviewed the briefs of the parties and the record on appeal and find no reversible error. An extended opinion would have no precedential value. We have, however, provided a memorandum for the use of the parties only setting forth the reasons for our decision.

The judgment entered on the jury’s verdict is affirmed pursuant to Rule 30.25(b).


author: PER CURIAM.

text:
    STATE of Missouri, Plaintiff/Respondent, v. Steven WRIGHT, Defendant/Appellant.
    No. ED 82243.
    Missouri Court of Appeals, Eastern District, Division Four.
    Sept. 28, 2004.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 30, 2004.
    Application for Transfer Denied Jan. 25, 2005.
    John Gregory Mermelstein, Columbia, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Andrea Kaye Spillars, Assistant Attorney General, Shaun Mackelprang, Jefferson City, MO, Co-Counsel for respondent.
    Before LAWRENCE E. MOONEY, P.J. and LAWRENCE G. CRAHAN, J. and MARY K. HOFF, J.
   ORDER

PER CURIAM.

Steven Wright (Defendant) appeals from the trial court’s judgment and sentence imposed after a jury trial finding him guilty of second degree murder, a Class A felony, in violation of Section 565.021 RSMo 1994. The trial court sentenced Defendant, as a prior and persistent offender pursuant to Section 558.016, to life imprisonment.

We have reviewed the briefs of the parties, the legal file, and the record on appeal, and find the claims of error to be without merit. No error of law appears. An extended opinion would serve no jurisprudential purpose. The parties have been furnished with a memorandum for their information only setting forth the reasons for our decision. We affirm the judgment pursuant to Rule 30.25(b).


author: PER CURIAM.'

text:
    Marlis & Joseph THUM, Appellants, v. Joseph J. WILLIAMS, Respondent.
    No. ED 84020.
    Missouri Court of Appeals, Eastern District, Division Three.
    Sept. 28, 2004.
    Application for Transfer to Supreme Court Denied Nov. 30, 2004.
    Application for Transfer Denied Jan. 25, 2005.
    Rocco A. Marrese, Edwardsville, IL, for appellant.
    Clark H. Cole, St. Louis, MO, for respondent.
    Before CLIFFORD H. AHRENS, P.J., WILLIAM H. CRANDALL, JR,, J., and ROBERT G. DOWD, JR., J.
   ORDER

PER CURIAM.'

Mariis Thum (“Patient”) and Joseph Thum (“Spouse”) appeal from judgment entered upon a jury verdict denying their claim for damages against Dr. Joseph Williams (“Surgeon”). Patient claimed that Surgeon negligently performed her hip replacement surgery, which required an additional surgery and caused a permanent leg' deformity. Spouse asserted a claim for loss of consortium. The jury found in favor of Surgeon and awarded no damages to Patient or Spouse.

On appeal, Patient and Spouse allege that the trial court erred in denying their Batson challenges to Surgeon’s peremptory strikes of two African-American jurors. They also assert that the trial court abused its discretion by denying their motion for a new trial because Surgeon’s closing argument was prejudicial in that it was not confined to the evidence, and it suggested a matter of personal interest to jurors. We find no error and affirm.

No jurisprudential purpose would be served by a written opinion reciting the detailed facts and restating the principles of law. The parties have been furnished with a memorandum opinion for their information only, which sets forth the facts and reasons for this order.

We affirm the judgment pursuant to Rule 84.16(b).