source: Caselaw Access Project

author: LAMBERT, Chief Justice.

license: Public Domain

text:
    Leona BREWER, as Personal Representative of the Estate of Edward Rose, Deceased, Appellant, v. NATIONAL INDEMNITY COMPANY, a Nebraska Corporation, et al., Appellees.
    No. 2004-SC-000270-CL.
    Supreme Court of Kentucky.
    May 19, 2005.

      Robert Matthew Vital, Monica Leah Robinson, Vital & Vital, L.C., Huntington, WV, Brian A. Glasser, Jennifer S. Fahey, Bailey & Glasser, LLP, Charleston, WV, Counsel for Appellant.
    Anita R. Casey, MacCorkle Lavender Casey & Sweeney, Charleston, WV, Marcia Milby Ridings, Brandon C. Jones, Hamm, Milby & Ridings, London, Counsel for Appellees.
   LAMBERT, Chief Justice.

This case presents a certified question from the United States Court of Appeals for the Fourth Circuit. Specifically, the question certified is as follows: Whether a fiduciary may maintain an action against an insurer for negligently underinsuring its insured, where the fiduciary, the insurer, and the insured have executed an agreement in which:

(1) the fiduciary settled a wrongful death claim against the insured for ' the maximum limit of the insurance policy, which the insurer agreed to pay to the fiduciary in consideration for the insured’s release;
(2) the insured assigned to the fiduciary the right to pursue its claim that the insurer negligently underinsured its insured; and
(8) the insurer agreed to litigate with the fiduciary the claim that it negligently underinsured its insured.

We answer the certified question in the affirmative. Under the facts presented here, Kentucky law allows a fiduciary to proceed against an insurer pursuant to the bargained-for agreement entered into by the parties.

The defendant in this action is National Indemnity, an insurance company incorporated in Nebraska. National Indemnity’s presence in this case stems from a car wreck between its insured, Maynard’s Wrecker Service, and Edward Rose, who is represented by the plaintiff. The plaintiff, Leona Brewer, is the administratrix of the estate of Edward Rose, who was killed in the car accident.

On November 29, 2001, in West Virginia, the vehicle driven by Edward Rose, a resident of West Virginia, collided with the truck of Joe Maynard, a Kentucky resident. Maynard, an employee of a Kentucky business known as Maynard’s Wrecker Service, was operating a 1999 Ford Rollback truck within the scope of his employment when the accident occurred. Maynard’s negligence proximately caused the accident and Rose’s death.

The truck operated by Maynard was insured by National Indemnity, which provided liability coverage on the vehicle in the sum of $100,000. This policy was issued in Kentucky. Brewer, serving in her capacity as administratrix of Rose’s estate, filed a civil suit against Maynard and his wrecker company. After the claim was removed to the United States District Court for the Southern District of West Virginia, Brewer amended her complaint, naming additional defendants, including National Indemnity. Count I (the Death Claim) of Brewer’s complaint alleged a wrongful death claim against the May-nards. Count II (the Coverage Claim) alleged that National Indemnity negligently breached its duty to provide the May-nards with the minimum amount of commercial liability coverage (claimed to be $750,000) required by federal law, proximately causing the Maynards to be under-insured at the time of the accident.

Brewer, National Indemnity, and the Maynards all entered into a partial settlement agreement. Three issues were agreed upon. First, National Indemnity agreed to pay Brewer the policy limit of $100,000 in exchange for a release of its insured, the Maynards. Second, National Indemnity agreed to further litigate the Coverage Claim with Brewer. Finally, the Maynards assigned to Brewer their rights and claims for indemnification under the policy against National Indemnity, as well as all rights and claims against National Indemnity for extra-contractual, statutory, or common law liability arising out of the Coverage Claim.

Subsequent to the agreement, National Indemnity moved the trial court to dismiss the Coverage Claim. The trial court granted that motion, reasoning that Brewer lacked standing to bring the claim since Rose (whose rights Brewer was representing) had no privity of contract with National Indemnity. In seeking relief from the order of dismissal, Brewer asserted that National Indemnity was equitably es-topped from denying that she possessed standing, because National Indemnity had executed the settlement agreement in exchange for a release of its insureds. The trial court denied relief, and Brewer appealed to the United States Court of Appeals for the Fourth Circuit. The Fourth Circuit held that Kentucky law applies, and certified the above-referenced question to this Court.

National Indemnity alleges that it is not party to the assignment agreement, as it was exclusively between the Maynards and Brewer. We do not find this argument persuasive. The language of the agreement and the surrounding circumstances show that National Indemnity was in fact a party to the assignment.

There was only one document, which encompassed in five pages all of the terms of the agreement between all of the parties. National Indemnity’s representative signed at the end of the document. And it does not claim that any of the other provisions of the agreement are ineffectual, i.e., that the provisions releasing the insured from further liability should not be given effect. But it does claim that it was not a party to the assignment agreement; that agreement was exclusively between the Maynards (the insured) and Brewer (the fiduciary). But the language of the agreement belies National Indemnity’s position. The agreement repeatedly indicates that the parties contemplated that Brewer would retain the right to proceed against National Indemnity. In both the eighth and ninth recitals the agreement provides that the National Indemnity Company agreed to litigate further the Coverage Claims issue with Brewer in exchange for a release of the Maynards and that all three parties (National Indemnity, Brewer and the Maynards) desired to settle the claim against the Maynards subject to Brewer preserving the right to proceed upon the Coverage Claim. Furthermore, the release provisions stated that the release was not intended to cut off Brewer’s right to pursue the Coverage Claim against National Indemnity. However, National Indemnity argues that it is not a party because it is not named in the assignment section of the agreement as a party that agreed to the assignment. While we agree that National Indemnity is not specifically named in that section, it is named in the section of the agreement dealing with future cooperation:

It is expressly agreed and understood that Administratrix, the Maynards and National Indemnity Company will cooperate fully, and execute any and all supplementary documents and to take all additional action that may be necessary or appropriate to give full force and effect to the terms and provisions of this Release and Settlement Agreement which are not inconsistent with its terms.

Therefore, we conclude that National Indemnity was a party to the agreement, including the section that assigned all the rights and causes of action that the May-nards possessed at the time of the assignment.

Furthermore, we note that the circumstances surrounding the agreement demonstrate that the parties understood the agreement to assign the Maynards’ rights and causes of action to Brewer. In other words, the timeline of events demonstrate that Brewer would not have agreed to release the Maynards had National Indemnity not agreed to further litigate the validity of the claims that were assigned by the Maynards to Brewer. Finally, under these facts, National Indemnity is es-topped to deny the viability of the Coverage Claim issue.

In conclusion, we hold that National Indemnity agreed to the assignment of the Maynards’ rights and causes of action to Brewer. In return, National Indemnity secured a release in favor of its insured and eliminated the possibility of a bad faith claim from its insured or the plaintiff. As such, we answer the certified question in the affirmative, and hold that Brewer is entitled to maintain her action against National Indemnity to determine whether it negligently underinsured the Maynards.

All concur.

      . Brewer v. Nat'l Indem. Co., 363 F.3d 333 (4th Cir.2004).


text:
    Stephanie GULLION, Appellant, v. Matthew GULLION, Appellee.
    No. 2004-SC-000494-DG.
    Supreme Court of Kentucky.
    May 19, 2005.

      Linda W. Covington, Gess Mattingly & Atchison, P.S.C., Lexington, Counsel for Appellant.
    Thomas P. Jones, Beattyville, Counsel for Appellee.
   LAMBERT, Chief Justice.

This Court granted discretionary review upon motion of Appellant, Stephanie Gul-lion, to decide whether there is a basis in case law or the Kentucky Rules of Civil Procedure to require affidavits to accompany a CR 59.05 motion to alter, amend or vacate a custody judgment. Affidavits are clearly required for KRS 403.340 motions when a party seeks to modify a custody order. However, in this case, modification of the custody order pursuant to KRS 403.340 was not possible until the trial court had ruled on the CR 59.05 motion, and thereby rendered a final judgment. Therefore, because the language of CR 59.05 does not require affidavits to be filed, we reverse the Court of Appeals. We hold that affidavits are not required in support of a CR 59.05 motion to alter, amend or vacate a judgment.

Appellee, Matthew Gullion, filed a petition seeking dissolution of marriage and emergency temporary custody of the parties’ minor daughter. Matthew was awarded emergency custody in an ex parte order on December 23,1999. But the trial court conducted a hearing and set aside the ex parte order on January 2, 2000. Stephanie and Matthew were awarded pendente lite joint custody with the child to reside with each party for two weeks on an alternating basis. At another hearing on the issue, the Domestic Relations Commissioner (DRC) recommended that Matthew have primary custody of the child and that Stephanie be allowed reasonable visitation.

On February 14, 2002, the circuit court adopted the recommendation of the DRC, and entered its final order continuing the month-to-month custody arrangement with physical custody to Matthew. The DRC’s recommendation was adopted only six days after the report. This premature adoption of the report violated CR 53.06, which allows parties ten days in which to the file objections to the DRC’s recommendation. Nevertheless, five days later, on February 19, 2002, Stephanie timely filed a CR 59.05 motion to alter or amend the custody order on grounds that the court’s finding that Matthew has a more stable home life for the child to grow up and go to school is clearly erroneous. Within that motion, she requested primary custody. Stephanie repeatedly renewed her CR 59.05 motion in the following months, but the motion remained pending for almost one year before resolution.

A contentious series of events occurred between the parties prior to ruling on the CR 59.05 motion. On September 5, 2002, Matthew returned to court and obtained an emergency custody order upon a finding that Stephanie was in violation of the court’s custody order of February 14, 2002. The violation occurred because Stephanie did not return the child after a regularly scheduled visit. Stephanie argued that based upon the child’s statements that Matthew stored an unlocked weapon in his bedroom and that the child was allowed to sleep in the same bed with Matthew and his girlfriend, she feared for the child’s safety. In the emergency custody order, Matthew was awarded custody and Stephanie’s visitation was suspended. Additionally, Stephanie was ordered to immediately return the child to Matthew and appear for a show cause hearing. On September 20, 2002, Stephanie filed a response to the motion for show cause and filed a motion to set aside the order for emergency custody entered on September 5, 2002. In her motion to set aside the emergency order, she sought to reinstate the order of joint custody but to designate her as the temporary residential custodian.

The proceeding was transferred to family court and hearings were conducted on the ex parte emergency custody order, the pending CR 59.05 motion, and Stephanie’s response to the show cause order. On January 7, 2003, the family court entered an order finding it in the child’s best interest to continue joint custody, but designated Stephanie as the primary custodian. This order also allowed Matthew six weeks custody in the summer and visitation during spring and fall breaks. The trial court did not alter or amend the custody award from the original grant of joint custody, and the only change was to designate Stephanie as the primary custodian.

Matthew appealed to the Court of Appeals arguing that the trial court did not have subject matter jurisdiction, and that the trial court abused its discretion when it set aside the emergency custody order giving him primary custody. The Court of Appeals held that Stephanie did not comply with KRS 403.340 because in her CR 59.05 motion she did not file affidavits and the trial court did not make consistent findings to support a change in custody. The Court of Appeals, in holding that a CR 59.05 motion sought modification, stated that “a change in the residential custodian is a modification of custody.” We granted discretionary review to determine whether affidavits are required to be filed with a CR 59.05 motion to alter, amend or vacate a final judgment.

Stephanie contends that the Court of Appeals opinion creates a procedural requirement that is contrary to statutory law by necessitating that affidavits be submitted with a CR 59.05 motion when it involves a custody matter. She points out that CR 59.05 is not limited to custody proceedings, and acknowledges that a CR 59.05 motion may have the effect of altering or amending a custody order. But she contends that a CR 59.05 motion should not have the procedural requirements of KRS 403.340. An unusual lapse of time between filing a CR 59.05 motion and the court’s ruling, she argues, does not convert a CR 59.05 motion into a KRS 403.340 motion to amend a custody order requiring affidavits. As to the other view, Matthew contends that once the final custody determination was made, Stephanie was required to file two affidavits pursuant to KRS 403.340, and that her failure to do so prevented the trial court from acquiring subject matter jurisdiction. In support, he proposes that the specific provisions of KRS 403.340 govern modifications, and should be applied over the more general requirements of CR 59.05.

I.

CR 59.05 states that “[a] motion to alter or amend a judgment, or to vacate a judgment and enter a new one, shall be served not later than 10 days after entry of the final judgment.” The language of the rule contains no affidavit requirement. However, this Court has made clear that a ruling on a post-judgment motion is necessary to achieve finality, and procedurally, a CR 59.05 motion stays finality until the motion is ruled upon. CR 59.05 may be used to dispute an order or judgment a party believes to be incorrect, and a trial court has “unlimited power to amend and alter its own judgments.”

The requirements of CR 59.05 and that of KRS 403.340 are entirely different procedurally with regards to jurisdiction and finality. As such, each must be allowed to individually serve its own purpose. The reasoning of Dull v. George supports the proposition that if affidavits are not required for CR 60.02 motions, then likewise they should not be required for CR 59.05 motions. And we hereby adopt that reasoning upon the premise that CR 59.05 permits the trial court to continue jurisdiction over its orders while the motion is pending. While jurisdiction under a KRS 403.340 motion to modify custody order is exerted only when the requirements of that statute are met, there is no conflict between KRS 403.340 and CR 59.05 because the affidavit requirements of KRS 403.340 are not implicated unless the original custody order is final and the CR 59.05 motion has been ruled upon. Simply put, a custody modification cannot be requested unless there is a final custody order to modify. It is not within the province of this Court to create or apply statutory requirements in contravention to long established procedural rules. Therefore, we reverse the Court of Appeals.

II.

An ancillary issue we must review is whether the family court abused its discretion in granting Appellant’s CR 59.05 motion to alter or amend its judgment. It is argued by Matthew that the family court considered evidence that occurred subsequent to the circuit court’s ruling that the father be the primary custodian. The trial court, in considering the CR 59.05 motion to alter or amend, reviewed the record of the DRC hearing and considered the father’s behavior regarding communication with and between the child and Stephanie as evidence for changing the primary custodian from the father to the mother. The trial court found that the record showed that both parents are good parents and that each presented a stable environment for the child.

Here, the CR 59.05 motion lingered for approximately one year before being ruled upon by the trial court. Along with the motion to alter or amend, the trial court heard evidence on a show cause order and a motion to set aside the emergency custody order. The trial judge ruled on the other two motions, but delayed ruling on the motion to alter and amend to allow time for review of a tape of the DRC hearing. The trial court found that “[biased upon the testimony before the commissioner as well as the testimony before this court, it is clear both parents are most capable to care for and are able to care for this child.” In its determination of the best interest of the child, the trial court also found that “in the hearing of September 2001 as in the hearing before this court, the father has difficulty in allowing contact between the mother and the child and difficulty in communicating with the mother regarding the child.” It is clear that the judge did review the DRC hearing, but because Appellant’s CR 59.05 motion was granted, in part, on evidence not in existence at the time of trial, we remand to the trial court for further consistent consideration.

CR 59.05 simply provides: “A motion to alter or amend a judgment, or to vacate a judgment and enter a new one, shall be served not later than 10 days after entry of the final judgment.” A party cannot invoke CR 59.05 to raise arguments and to introduce evidence that should have been presented during the proceedings before the entry of the judgment. Unlike CR 60.02, CR 59.05 does not set forth the grounds for the motion. But because “reconsideration of a judgment after its entry is an extraordinary remedy which should be used sparingly,” the federal courts, in construing CR 59.05’s federal counterpart, Federal Rule of Civil Procedure 59(e), have limited the grounds:

There are four basic grounds upon which a Rule 59(e) motion may be granted. First, the movant may demonstrate that the motion is necessary to correct manifest errors of law or fact upon which the judgment is based. Second, the motion may be granted so that the moving party may present newly discovered or previously unavailable evidence. Third, the motion will be granted if necessary to prevent manifest injustice. Serious misconduct of counsel may justify relief under this theory. Fourth, a Rule 59(e) motion may be justified by an intervening change in controlling law.

Although a trial court may grant a CR 59.05 motion if the movant presents newly discovered evidence that was not available at the time of trial, “newly discovered evidence” must be of facts existing at the time of trial. “If it were grounds for a new trial that facts occurring subsequent to the trial have shown an inaccurate prophecy, litigation would never come to an end.” Thus, it is improper for a trial court to rely upon evidence of events that occurred subsequent to the trial in ruling on a CR 59.05 motion.

In the present case, the trial court is to be commended for reviewing the evidence before the domestic relations commissioner; however, the trial court committed reversible error when, in changing custody, it relied in part on facts that occurred subsequent to the custody trial.Although the “child’s best interest” is the standard for awarding custody, it cannot be a refuge for disregarding an established rule of law and bending procedural rules, especially when those rules are in place, at least in part, to protect the child’s best interest. If facts have occurred since the trial that justify a change of custody, the law adequately provides a method to address such a situation, but because a CR 59.05 motion cannot be granted on facts that did not exist at trial, the filing with a CR 59.05 motion of affidavits showing a change of circumstances does not make it a proper motion to change custody under KRS 403.340. Accordingly, this case is remanded to the trial court with directions to limit its consideration of Appellant’s CR 59.05 motion to facts that existed at the time of trial.

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

      . The record reflects that Stephanie renewed her CR 59.05 motion on March 14, 2002, March 29, 2002, and May 2, 2002.

      . Kurtsinger v. Bd. of Trs. of Kentucky Ret. Sys., 90 S.W.3d 454, 458 (Ky.2002) ("The timely filing of CR 59.05 motion postpones finality, and a ruling on the CR 59.05 motion is necessary to achieve finality.”). Rule 59.05 is considered the same as FRCP 59(e). See Bates v. Connelly, 892 S.W.2d 586 (Ky.1995); FHC Equities, LLC v. MBL Life Assurance Corp., 188 F.3d 678 (6th Cir.1999) (holding that a timely motion under Rule 59 toils the time for appeal until the court provides a ruling on the motion); 11 Wright & Miller, Federal Practice And Procedure: Civil 2d § 2817 [hereinafter "Federal Practice and Procedure”].

      . Security Federal Sav. & Loan Ass’n of Mayfield v. Nesler, 697 S.W.2d 136, 139 (Ky.1985) (holding that the final order stood because there was no filing of a CR 59.05 motion in ten days, and that an when earlier order is incorrect or "priorities were misapplied, then a motion under CR 59.05 was the proper remedy”).

      . Henry Clay Mining Co. v. V & V Min. Co., 742 S.W.2d 566, 566-67 (Ky.1987) (holding that a trial court under CR 52.02 may amend its judgment's effective date to rectify a clerical error and that it was permissible for a trial court judgment sua sponte, or on the motion of a party made within the ten day period after entry of judgment, to amend its findings or make additional findings under CR 59) citing Pattie A. Clay Infirmary v. First Presbyterian Church, 605 S.W.2d 52, 54 (Ky.App.1980). See also Vincent v. Vincent, 316 S.W.2d 853, 855 (Ky.1958) (noting that where a supplemental complaint or request for reconsideration of an original custody order was filed three days after the last order had been entered, and two months had elapsed before judgment was rendered on it, the review of its custody order would have been proper under CR 59.05).

      . In Perry v. Com., ex rel. Kessinger, 652 S.W.2d 655, 659 (Ky.1983), we held that "[ojne procedural rule or statute does not supersede another merely by providing an alternative means for obtaining the same type of evidence. For example, the discovery rules sometimes do so without one becoming subordinate to another. While overlapping in some instances, each of such rules has its particular function to perform just as CR 35.01 and KRS 406.081 have.”

      . 982 S.W.2d 227, 229 (Ky.App.1998). See Granville & Nutter Shoe Co. v. Florsheim Shoe Co., 569 S.W.2d 721, 723 (Ky.App.1978) (holding that CR 60.02 motions are not inconsistent with CR 59.05).

      . Petrey v. Cain, 987 S.W.2d 786, 788 (Ky.1999) (holding that a trial court does not acquire subject matter jurisdiction in a post dissolution motion to modify a prior custody decree unless the motion is accompanied by the requisite affidavit or affidavits); Copas v. Copas, 699 S.W.2d 758, 759 (Ky.App.1985) (holding that trial court had no authority to consider custody modification motion that was not supported by at least two affidavits filed almost one year after the initial custody order).

      . Both parties agree that the record of the DRC hearing was rendered inaudible and un-reviewable, but agree that this occurred sometime after the family court judge reviewed the tape.

      . Hopkins v. Ratliff, 957 S.W.2d 300 (Ky.App.1997). Kurt A. Philipps, Jr., 7 Kentucky Practice, Rules of Civil Procedure Annotated, CR 59, cmt. 6, at 406 (5th ed.1995).

      . Federal Practice and Procedure § 2810.1.

      . Fed.R.Civ.P. 59(e) ("Motion to Alter or Amend Judgment. Any motion to alter or amend a judgment shall be filed no later than 10 days after entry of the judgment.”).

      . Cosgrove v. Bartolotta, 150 F.3d 729, 732 (7th Cir.1998) ("And the only grounds for a Rule 59(e) motion, as the plaintiff points out, are newly discovered evidence, an intervening change in the controlling law, and manifest error of law.”).

      . Federal Practice and Procedure § 2810.1; see Cosgrove v. Bartolotta, 150 F.3d 729, 732 (7th Cir.1998) ("And the only grounds for a Rule 59(e) motion, as the plaintiff points out, are newly discovered evidence, an intervening change in the controlling law, and manifest error of law.”).

      . Eli Lilly and Co. v. Aradigm Corp., 376 F.3d 1352, 1369 (Fed.Cir.2004) ("[A] district court 'may grant a Rule 59(e) motion to alter or amend the judgment if the movant presents newly discovered evidence that was not available at the time of trial or if the movant points to evidence in the record that clearly establishes a manifest error of law or fact.’ ”).

      . Corex Corp. v. United States, 638 F.2d 119, 121 (9th Cir.1981) ("Cases construing 'newly discovered evidence,’ either under 60(b)(2) or Rule 59, uniformly hold that evidence of events occurring after the trial is not newly discovered evidence within the meaning of the rules.”); Federal Practice and Procedure § 2808; cf. Vincent, 316 S.W.2d at 854-55 ("As stated above, the real ground upon which the court gave the custody of the child back to the mother after having changed his order is that upon further inquiry and evidence he had found he had made a mistake rather than that there had been a change in the conditions.... The court retains a continuing power to revise or alter its order or to enter a new decree, as the circumstances may require, both under the statutory provision and the inherent power of a court of equity in such cases. In the present case it is to be noted that the proceeding was also authorized by CR 59.05 as a motion to alter or amend a judgment, as well as under KRS 403.070.’’).

      . Nordin Const. Co. v. City of Nome, 489 P.2d 455, 473 (Alaska 1971).

      . See KRS 403.340.


author: MILLER, Senior Judge.

text:
    Michael D. GOSNEY; Donna R. Gosney, Appellants, v. Donald GLENN; Angela Glenn; Rich Glenn, Appellees.
    Nos. 2004-CA-000169-MR, 2004-CA-000965-MR.
    Court of Appeals of Kentucky.
    April 15, 2005.

      David A. Koenig, Florence, KY, for appellants.
    Michael T. Sutton, Edgewood, KY, for appellees.
    Before COMBS, Chief Judge; McANULTY, Judge; MILLER, Senior Judge.

      . Senior Judge John D. Miller sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110.(5)(b) of the Kentucky Constitution and Kentucky Revised Statute 21.580.

   OPINION

MILLER, Senior Judge.

Michael D. Gosney and Donna Gosney appeal from judgments of the Kenton Circuit Court determining that they do not have the right to use a passageway crossing the appellees’ property as an access way to reach their property and awarding damages for their trespass onto the appel-lees’ property. The appellants claim that they are entitled to use the passageway on the basis of easement by estoppel; easement by necessity; and on the basis that the passageway is an unabandoned county road. For the reasons stated below, we affirm.

By deed dated May 22, 2001, Appellants Michael and Donna Gosney, husband and wife, acquired a 10.7-acre tract of property located in Morningview, Kentucky. The appellants purchased their 10.7-acre tract from Ernest and Sandra Gosney, Michael’s brother and sister-in-law.

Appellees Donald and Angela Glenn, husband and wife, reside at 14471 Stephenson Road, Morningview, Kentucky, on a one-acre tract at the terminus of the paved portion of Stephenson Road. They acquired their one-acre tract by deed dated May 20, 1998, from Donald’s parents, Rich Glenn and Esther Glenn. Donald and Angela also own an adjacent unimproved 7.9-acre tract acquired from Rich and Esther Glenn by deed dated June 18, 1998. This property is to the north and west of Donald and Angela’s one-acre tract.

Rich Glenn and Esther Glenn were the owners of, and resided on, a 20.484-acre tract acquired by deed dated September 1, 1967. This tract was the source of Donald and Angela’s one-acre tract. Esther Glenn died prior to the filing of this action; Rich Glenn, who was a party to the circuit court proceedings and is named as an ap-pellee in the present appeal, died on November 1, 2008, after the filing of this action.

The Gosneys contend that they are entitled to traverse a passageway running across the Glenn property in order to reach their ten-acre tract to the north. The disputed portion of the passageway begins at the end of the paved portion of Stephenson Road at the junction of the two Glenn tracts. The paved portion of Stephenson Road runs to the northwest and terminates at the southwest boundary of Michael and Donna’s one-acre tract. It is undisputed that this portion of the access way is a county road maintained by the Kenton County Road Department. At the conclusion of the paved portion of Stephenson Road, the passageway runs toward the northeast for approximately 280 feet to an old gate (referred to in the record as “the first gate”) at a common corner of the two Donald and Angela Glenn tracts and the Rich Glenn tract.

After the first gate, the passageway turns back to the northwest for a distance, and then to the north. There is a discern-able passageway beyond the first gate, which serves as the boundary between the Donald and Angela Glenn 7.876-acre tract and the Rich Glenn tract for approximately 831.17 feet. The Gosney tract is accessible from the south by this passageway.

According to the Gosneys, Michael first began traveling to the 10.7-acre tract in contemplation of purchasing it in early 1998. Michael testified that beginning at that time he would access the 10.7-acre tract by the disputed passageway. Michael testified that he believed he had a right to use the passageway because Rich Glenn had indicated to him that the passageway was the right-of-way of Old Stephenson Road, which Michael interpreted to mean that the general public had a right to use the passageway. Gosney testified that in the following years he accessed the property by this route on a regular basis and made clear to the appellees that it was his intent to buy the property and construct a residence thereon.

In December 2001, after the Gosneys had purchased their tract and had commenced improvements to the passageway, Donald and Angela sent a letter to the Gosneys advising them that they could no longer travel on the disputed passageway, and informing them that any such use of the passageway would be considered as a trespass. It appears, however, that the Gosneys continued to make use of the passageway, and, further, commenced making improvements to it.

On July 25, 2002, Donald, Angela, and Rich Glenn -filed a complaint in Kenton Circuit Court seeking to enjoin the Gos-neys from using the passageway and seeking damages for their alleged trespass.

The Gosneys filed their answer and counterclaim which, as amended, alleged that the passageway is a county road or, alternatively, that they were lawfully entitled to use the passageway based upon prescriptive easement, easement by necessity, and easement by estoppel.

Following a bench trial, on August 14, 2003, the trial court rendered its Findings of Fact, Conclusions of Law, and Judgment. The trial court determined that the passageway was not a county road, and that the Gosneys did not have a right to traverse the passageway based upon easement by necessity, easement by prescription, or easement by estoppel. On December 23, 2003, the trial court entered an order making its August 14, 2003, order final and appealable. The Gosneys subsequently filed an appeal of the December 23, 2003, order (Appeal 2004-CA-000169-MR). Following a hearing concerning damages as a result of the Gosneys’ trespass onto the passageway, on April 13, 2004, the trial court entered an order awarding the Glenns total damages of $2,020.00. The Gosneys subsequently appealed the order setting damages (Appeal 2004-CA-000965-MR).

First, the Gosneys contend that the trial court erred by failing to find an easement by estoppel across the passageway in their favor.

We begin by noting that this case was tried by the circuit court sitting without a jury. It is before this Court upon the trial court’s findings of fact and conclusions of law and upon the record made in the trial court. Accordingly, appellate review of the trial court’s findings of fact is governed by the rule that such findings shall not be set aside unless clearly erroneous. A factual finding is not clearly erroneous if it is supported by substantial evidence. Owens-Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 414 (Ky.1998); Uninsured Employers’ Fund v. Garland, 805 S.W.2d 116, 117 (Ky.1991). Substantial evidence is evidence, 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, 74 S.W.3d 777, 782 (Ky.App.2002). Ky. R. Civ. P. (CR) 52.01; Largent v. Largent, 643 S.W.2d 261 (Ky.1982). The trial court’s conclusions of law, however, are subject to independent de novo appellate determination. A & A Mechanical, Inc. v. Thermal Equipment Sales, Inc., 998 S.W.2d 505, 509 (Ky.App.1999); Morganfield, National Bank v. Damien Elder & Sons, 836 S.W.2d 893 (Ky.1992).

Generally, an easement may be created by express written grant, implication, prescription or estoppel. Loid v. Kell, 844 S.W.2d 428, 429 (Ky.App.1992)(citing Grinestaff v. Grinestaff, 318 S.W.2d 881, 884 (Ky.1958) and Holbrook v. Taylor, 532 S.W.2d 763, 764 (Ky.1976)). Easements are not favored, and the party claiming the right to an easement bears the burden of establishing all the requirements for recognizing the easement. Carroll v. Meredith, 59 S.W.3d 484, 489-490 (Ky.App.2001).

An easement by estoppel concerns prohibiting a party from denying the existence of a right to use property, i.e., a license, based on justifiable reliance that the license will continue. The reliance derives from conduct by the licensor and typically also includes actions by the licensee such as the making of improvements based on that reliance. Cole v. Gilvin, 59 S.W.3d 468, 477-478 (Ky.App.2001).

An easement by estoppel is based upon the principles of equitable estoppel. Smith v. Howard, 407 S.W.2d 139, 143 (Ky.1966). The essential elements of equitable estoppel are:

(1) Conduct which amounts to a false representation or concealment of material facts, or, at least, which is calculated to convey the impression that the facts are otherwise than, and inconsistent with, those which the party subsequently attempts to assert; (2) intention, or at least expectation, that such conduct shall be acted upon by the other party; (3) knowledge, actual or constructive, of the real facts. As related to the party claiming the estoppel, they are: (1) Lack of knowledge and of the means of knowledge of the truth as to the facts in question; (2) reliance upon the conduct of the party estopped; and (3) action based thereon of such a character as to change his position prejudicially.

Id.

The Gosneys allege an easement by estoppel based upon the following factors: the Gosneys accessed the 10.7-acre tract over the disputed passageway and the Glenns were aware of this access; the Gosneys told the Glenns that they intended to purchase the property; various statements were made by Rich Glenn concerning access to the land; the existence of a right-of-way by prescription in the deed to the Glenns’ one-acre tract; the Gosneys having spent approximately $22,021.60 to acquire and improve their tract; and because the Glenns stood by while the Gosneys acted in reliance on their belief that they would be entitled to access their tract through the disputed passageway.

The trial court made the following finding relative to the Gosneys’ claim of easement by estoppel:

Based on the testimony from the parties, the Court finds [that the] Gosneys’ purchase of [their] property and actions in clearing and fencing [their] ten (10) acre property were not in reliance on statements made by [Donald] Glenn or Rich Glenn that right-of-way, passageway, or access to Gosneys’ property was available through the Glenn properties.

Testimony was presented at trial supporting the trial court’s finding. The Glenns presented testimony that the Gos-neys merely had permission to occasionally access the land through the disputed passageway; that Donald Glenn never had knowledge of the Gosneys’ intention to access their tract primarily through the disputed tract; that the Gosneys never communicated to either Rich Glenn or Donald Glenn their intention of making the disputed passageway the primary means of access to their tract; and that the only actions by the Gosneys to improve the passageway were to lay a small amount of gravel, trim some trees, and tear down an existing gate.

The trial court’s finding that the Gos-neys did not purchase their tract or undertake other activities on their property in reliance upon statements or actions by the Glenns is supported by substantial evidence. Moreover, we note that the Glenns were not in unique control of the relevant facts concerning the passageway, and the Gosneys had the means, through appropriate inquiry and investigation, of ascertaining the correct facts concerning the passageway. The trial court did not err in its finding that the Gosneys did not have a right to traverse the passageway based upon an easement by estoppel.

Next, the Gosneys contend that the trial court erred by failing to find an easement by necessity across the passageway in their favor.

An easement by necessity is based primarily on the policy favoring beneficial use of property. Carroll, 59 S.W.3d at 491 (citing Warfield v. Basich, 161 Cal.App.2d 493, 498, 326 P.2d 942 (1958)). Unlike a quasi-easement involving prior use, an easement by necessity exists in favor of the dominant estate whether it is used or not, so long as it is necessary for access. Id.

The three prerequisites to creation of an easement or way of necessity are (1) unity of ownership of the dominant and servient estates; (2) severance of the unity of title by a conveyance of one of the tracts; and (3) necessity of the use of the servient estate at the time of the division and ownership to provide access to the dominant estate. Id. (citing 28A C.J.S. Easements § 93 (1996 and Supp.2001); Tobias v. Dailey, 196 Ariz. 418, 998 P.2d 1091 (2000); Graff v. Scanlan, 673 A.2d 1028 (Pa.Cmwlth.1996); Albert G. Hoyem Trust v. Galt, 292 Mont. 56, 61, 968 P.2d 1135, 1138 (1998); and Thompson v. Whinnery, 895 P.2d 537, 540 (Colo.1995))

Necessity of access is the primary factor for the existence of an easement by necessity. Id. Indeed, a requirement of “strict” necessity has traditionally applied to easements or ways of necessity. Id. (citing Marrs v. Ratliff, 278 Ky. 164, 128 S.W.2d 604, 609 (1939)(way of necessity involves “strict necessity; mere convenience will not do”) and Kentucky Revised Statutes (KRS) 416.350, which creates a private right of eminent domain to acquire a right-of-way for landlocked property).

An easement by necessity generally will not be implied if the claimant has another means of access to a public road from his land however inconvenient. Id. (citing Standard Elkhorn Coal Co. v. Moore, 217 Ky. 317, 289 S.W. 261 (1926); Michael A. DiSabatino, J.D., Annotation, Way of Necessity Over Anothers Land, Where a Means of Access Does Exist, 10 A.L.R.4th 447 (1981); and Scoville v. Bailey, 307 Ky. 719, 211 S.W.2d 816 (1948)).

In addition, courts applying the strict necessity standard have rejected the creation of an easement by necessity to a portion of a claimant’s property where any part of the property abuts or has direct access to a public road. Id. (citing Phillippi v. Knotter, 2000 Pa.Super. 71, 748 A.2d 757 (2000); McConnell v. Satterfield, 576 N.E.2d 1300 (Ind.Ct.App.1991); Canei v. Culley, 179 W.Va. 797, 374 S.E.2d 523 (1988); Burling v. Letter, 272 Mich. 448, 262 N.W. 388 (1935); Gowan v. Crawford, 599 So.2d 619 (Ala.1992); Miskoff v. Cross Fox Condominium Ass’n, 460 So.2d 987 (Fla.Dist.Ct.App.1984); and Marrs, supra. But see Black v. Van Steenwyk, 333 Ark. 629, 970 S.W.2d 280 (1998)(finding quasi-easement to portion of property under reasonable necessity standard); Liles v. Wedding, 84 Or.App. 350, 733 P.2d 952 (1987); and Beeson v. Phillips, 41 Wash.App. 183, 702 P.2d 1244 (1985)(finding easement under state private condemnation statute applying reasonable necessity standard)).

A party seeking an implied easement has the burden of proving the existence of the easement by clear and convincing evidence. Id. at 491-92, (citing Griffith v. Eid, 1998 N.D. 38, 573 N.W.2d 829 (1998) and Roberts v. Smith, 41 Wash.App. 861, 707 P.2d 143 (1985)).

In its findings of fact and conclusions of law the trial court made a finding that

Gosney has other means of access to his property. Gosney purchased the back ten (10) acre parcel of his brother’s property and could access a public road through his brother’s remaining property-

Evidence presented at trial disclosed that the Gosneys purchased their tract from Michael’s brother, Ernie Gosney. Gosney testified that, with his brother’s permission, he had bulldozed a passageway across his brother’s property to his tract so as to create an access way to Kentucky Highway 17.

While the Gosneys argue that the passageway across Ernie’s land permits access to their tract only by tractor or four-wheeler, nevertheless, it was the Gosneys’ burden to establish by clear and convincing evidence that there was no other access way other than the disputed passageway. By Michael’s own testimony, there is another access way to his property. We accordingly conclude that the trial court’s finding was not clearly erroneous under the clear and convincing evidence standard.

Finally, the Gosneys contend that the trial court erred by failing to find that the disputed passageway is a county road.

In support of their position that the disputed passageway is a county road, the Gosneys cite us to a map titled “Map of Kenton County, Kentucky, made for and accepted by the Fiscal Court A.D. 1914_” The trial court made the following findings of fact relevant to this issue:

12. James Bertram, a surveyor hired by Gosney to prepare a boundary survey of the Gosney property, testified that while the 1914 Map of Kenton County, Kentucky, did show Stephenson Road connecting between Green Road and Bract-Piner Road, this 1914 Map was never adopted or approved by the Kenton County Fiscal Court as an official county road map depicting county roads and rights-of-way in Kenton County.
13. A map, prepared by surveyors Noel Walton and David Walton, based on paved roads and deeds of property in the area, depicted and showed Stephenson Road ending at Frank Rust’s property and not connecting through from Bract-Piner Road to Green Road.
14. William Deupree, III, Esq., a real estate attorney who performed a title examination for the Gosneys in the Kenton County Real Estate Records at Independence, Kentucky relating to the property owned by the Glenns and Gos-neys, found isolated calls and references to Stephenson Road in various deeds but did not find any written offer or acceptance of Stephenson Road in any instrument recorded in the Kenton County Real Estate Records. Deupree found no easement, right-of-way or passway in the Gosneys’ chain of title granting a right-of-way, passage or passway through the Glenn properties to “Old Stephenson Road.” Likewise, Mr. Deu-pree did not find an easement, right-of-way, or passway in the Glenns’ chain of title, granting a right-of-way, or access through the Glenn properties from Stephenson Road to “Old Stephenson Road.”
15. Both James Bertram and William Deupree, III, Esq. concluded that the 1914 Map of Kenton County, Kentucky was never adopted by the Kenton Fiscal Court nor did they find any of the official Kenton County Fiscal Court minutes that the 1914 Map of Kenton County, Kentucky, was adopted as or ordered to be the official county road map depicting and showing the county roads in Kenton County, Kentucky in the year 1914.
16. William Deupree, III, did find that the 1971 Kenton County Road Series Map and the 1990 Kenton County Road Series Map had been formally adopted by the Kenton County fiscal Court to be the official county road map depicting the county roads in Kenton County Kentucky in the year 1971 and in the year 1990. Deupree found that neither the 1971 and 1990 Road Series Maps depicted Stephenson Road right-of-way as one continuous right-of-way through from Bract-Piner Road to Green Road. Deu-pree found that both the 1971 and the 1990 County Road Series Maps showed Stephenson Road ending where the pavement ends at the Glenn property.

The current version of KRS 178.010(l)(b) defines “county roads” as “public roads which have been formally accepted by the fiscal court of the county as a part of the county road system,.... ” The version of the provision during the trial proceedings defined a county road as a public road which has “been accepted by the fiscal court of the county as a part of the county road system after July 1, 1914....”

Under either version of the statute, the road must have been accepted by the fiscal court. Evidence of such acceptance has not been produced by the appellants and, to the contrary, the trial evidence indicated that there had been no such acceptance. As such, the trial court’s finding that the disputed passageway is not a county road was not clearly erroneous.

Finally, the Gosneys raise the issue that if they are successful in this appeal and are determined to have a right to traverse the passageway, then the Glenns are not entitled to damages for trespass. However, as we have determined that the trial court did not err in its determination that the Gosneys do not have such a right, this issue is moot.

For the foregoing reasons the judgment of the Kenton Circuit Court is affirmed.

ALL CONCUR.


author: RICHARD B. TEITELMAN, Judge.

text:
    STATE of Missouri, Respondent, v. Ronald HAMPTON, Jr., Appellant.
    No. SC 86417.
    Supreme Court of Missouri, En Banc.
    May 10, 2005.
    Rehearing Denied June 21, 2005.
    Craig A. Johnston, Office of Public Defender, Columbia, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Evan J. Buchheim, Asst. Atty. Gen., Jefferson City, for respondent.
   RICHARD B. TEITELMAN, Judge.

Ronald Hampton, Jr. was tried by a jury and convicted of first degree murder, section 565.020 RSMo 2000, and of armed criminal action, section 571.015 RSMo 2000. The judgment of conviction is reversed and the case is remanded for a new trial because the trial court clearly erred in allowing the state to exercise a peremptory strike against an African-American venireperson, in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

I. Batson

“Under the Equal Protection Clause, a party may not exercise a peremptory challenge to remove a potential juror solely on the basis of the juror’s gender, ethnic origin, or race.” State v. Marlowe, 89 S.W.3d 464, 468 (Mo. banc 2002). The resolution of a Batson challenge is a three-step process.

First, the defendant must raise a Batson challenge with regard to one or more specific venirepersons struck by the state and identify the cognizable racial group to which the venireperson or persons belong. The trial court will then require the state to come forward with reasonably specific and clear race-neutral explanations for the strike. Assuming the prosecutor is able to articulate an acceptable reason for the strike, the defendant will then need to show that the state’s proffered reasons for the strikes were merely pretextual and that the strikes were racially motivated.

Id., quoting State v. Parker, 836 S.W.2d 930, 939 (Mo. banc 1992). Appellate courts review the trial court’s Batson determination for clear error. State v. Nicklasson, 967 S.W.2d 596, 613 (Mo. banc 1998).

II. The Batson violation

During jury selection, the state used five of its six peremptory strikes to remove African-Americans, including venireperson Jones. Defense counsel objected to the strike of Jones, arguing that the strike was racially motivated. The state countered that Jones was stricken not because she was African-American, but because she had previously been cross-examined in a criminal trial and stated that she did not like the experience. Defense counsel then argued that the state’s explanation was pretextual because the state did not strike Sestrich, a similarly situated white venire-person. Defense counsel also noted that, contrary to the state’s assertion, Jones did not state that she did not like the experience of being cross-examined and the state did not ask her which party had cross-examined her. Jones also stated that her previous experience as a witness would not prevent her from being fair and impartial.

The trial court agreed with defense counsel and denied the state’s motion to strike venireperson Jones. The court found that “there are similarly situated white jurors that were not stricken. The motion to strike will be denied ... under Batson.” The state responded by offering to strike a similarly situated white venire-person along with Jones. The trial court accepted the state’s proposed remedy, and allowed the state to strike Sestrich while permitting the state’s strike of Jones to stand. Sestrich was replaced by another white venireperson. The trial proceeded and Hampton was convicted.

III. Remedy

If the court determines that a potential juror is stricken in violation of Bat- son, the remedy is “to quash the strikes and permit those members of the venire stricken for discriminatory reasons to sit on the jury if they otherwise would.” State v. Grim, 854 S.W.2d 403, 416 (Mo. banc 1998). This remedy vindicates the equal protection rights both of the accused and the stricken venireperson. State v. Parker, 836 S.W.2d 930, 936 (Mo. banc 1992).

In this case, the trial court determined that the state’s strike of Jones was a Batson violation. The court stated specifically that the strike against African-American venireperson Jones was denied “under Batson.” Although evidence was later presented that venireperson Sestrich was not in fact similarly situated to Jones, the circuit court’s decision requiring the state to strike a similarly situated white venireperson confirmed the court’s initial ruling that a Batson violation had occurred. If the court had found no Batson violation, there would have been no reason to require a remedy. Having determined there was a Batson violation, the only appropriate remedy was to quash the state’s strike of Jones. See State v. Grim, 854 S.W.2d at 416. Instead, the trial court allowed the state to strike a similarly situated white venireperson, thus leaving the racial composition of the jury intact as if no attempt had been made to remedy the Batson violation. The trial court’s remedy does not comport with this Court’s precedent regarding the appropriate remedy for a Batson violation because it does not vindicate the equal protection rights of Jones or Hampton. While there is no doubt that trial court’s attempt to fashion a remedy for the Batson violation was anything but a good faith attempt to cure an impermissible peremptory strike, the trial court clearly erred in permitting the state to strike venireperson Jones after determining that the strike violated Batson.

The judgment of conviction is reversed and the case is remanded for a new trial.

WHITE, C.J., WOLFF, STITH, PRICE and LIMBAUGH, JJ., and BAKER, Sp.J., concur.

RUSSELL, J., not participating.

      . Hampton’s remaining four points on appeal are not addressed because his Batson claim is dispositive.


author: PER CURIAM.

text:
    CITY OF ST. JOSEPH, Missouri, Appellant, v. VILLAGE OF COUNTRY CLUB, Missouri, Respondent.
    No. SC 86603.
    Supreme Court of Missouri, En Banc.
    May 31, 2005.

      Neil R. Shortlidge, Overland Park, KS, T. Chris Williams, Paul A. Campo, Kansas City, Lisa M. Robertson, Timothy J. Davis, St. Joseph, MO, for Appellant.
    Ronald R. Holliday, Buchanan County Prosecutor’s Office, St. Joseph, MO, for Respondent.
   PER CURIAM.

Both the City of St. Joseph (City) and the Village of County Club (Village) sought to involuntarily annex the same unincorporated area of land in Andrew County pursuant to section 71.015, RSMo 2000 . The City approved a resolution of intent to annex the land. One week later, the Village similarly approved a resolution of intent to annex the same area of land. At the same time, it gave first reading to an ordinance proposing annexation and set a public hearing for the following month.

The City filed this declaratory judgment action seeking a determination that under the doctrine of prior jurisdiction it gained the right to proceed with annexing the unincorporated area of land because it took the first “valid step” toward annexation when it passed its resolution of intent to annex the area. The Circuit Court of Andrew County disagreed. It determined that, under section 71.015, the Village took the first valid step towards annexation of the disputed area when, a week later, it proposed its annexation ordinance. Judgment was entered for the Village. City appeals. Following a per cu-riam opinion by the Court of Appeals, Western District, this Court granted transfer. Mo. Const. art. V, sec. 10.

The trial court correctly determined that under section 71.015 the proposal of an ordinance to annex is the first valid step toward annexation. The judgment is affirmed.

DISCUSSION

At issue is which of the two municipalities has jurisdiction to proceed with the annexation. The issue is determined by application of the common law doctrine of “prior jurisdiction.” The doctrine of prior jurisdiction has long been established in Missouri. It provides that, as between two municipalities competing for the same territory, the one undertaking the first “valid step” toward annexation has priority. State ex inf. Taylor ex rel., Kansas City v. North Kansas City, 360 Mo. 374, 228 S.W.2d 762, 779 (1950). This Court described the doctrine in Liberty v. Dealers Transport Co. as follows:

The prior jurisdiction doctrine resulted from the sound recognition that there cannot be two municipal corporations with co-extensive powers of government extending over the same area. The resulting and settled rule is that where two public bodies such as a municipal corporation or school district each claim jurisdiction over the same territory by virtue of completed consolidation proceedings or by completed annexation proceedings, the one which takes the first valid step to establish the consolidation or annexation has the superior claim regardless of which one completes its proceedings first.

343 S.W.2d 40, 42 (Mo.1961).

The question then becomes, which action constitutes the first valid step for purposes of section 71.015 — adoption of a resolution of intent to annex or proposal of an ordinance to annex? Section 71.015.1 sets out the procedures that must be followed to effect an involuntary annexation. Statutory construction is strictly a matter of law. Lincoln Industrial, Inc. v. Dir. of Revenue, 51 S.W.3d 462, 464 (Mo. banc 2001). Questions of law are matters for the independent judgment of this Court. Gammaitoni v. Dir. of Revenue, 786 S.W.2d 126, 128 (Mo. banc 1990).

Although section 71.015.1 contains nine subdivisions, the first two are most relevant to the dispute on appeal. The City suggests that subdivision (1) is dispositive and makes passage of a resolution the first valid step, while the Village suggests that subdivision (2) is dispositive and makes proposal of an ordinance the first valid step. These subdivisions provide:

1. Should any city, town or village [other than a charter county] seek to annex an area to which objection is made, the following shall be satisfied:
(1) Before the governing body of any city, town, or village has adopted a resolution to annex any unincorporated area of land, such city, town, or village shall first as a condition precedent determine that the land to be annexed is contiguous to the existing city, town, or village limits and that the length of the contiguous boundary common to the existing city, town, or village limit and the proposed area to be annexed is at least fifteen percent of the length of the perimeter of the area proposed for annexation.
(2) The governing body of any city, town, or village shall propose an ordinance setting forth the following:
(a) The area to be annexed and affirmatively stating that the boundaries comply with the condition precedent referred to in subdivision (1) above;
(b) That such annexation is reasonable and necessary to the proper development of the city, town, or village;
(c) That the city has developed a plan of intent to provide services to the area proposed for annexation;
(d) That a public hearing shall be held prior to the adoption of the ordinance;
(e) When the annexation is proposed to be effective, the effective date being up to thirty-six months from the date of any election held in conjunction thereto.

(emphasis added). This version of the statute was adopted in 1980. Prior to its 1980 amendment, section 71.015, RSMo 1978, had read in relevant part:

Whenever the governing body of any city has adopted a resolution to annex any unincorporated area of land, such city shall, before proceeding as otherwise authorized by law or charter for annexation of unincorporated areas, file an action in the circuit court of the county in which such unincorporated area is situated under the provisions of chapter 527, RSMo, praying for a declaratory judgment authorizing such annexation. The petition in such action shall state facts showing:
(1) The area to be annexed;
(2) That such annexation is reasonable and necessary to the proper development of said city; and
(3) The ability of said city to furnish normal municipal services of said city to said unincorporated area within a reasonable time after said annexation is to become effective.
Such action shall be a class action against the inhabitants of such unincorporated area under the provision of section 507.070.

(emphasis added).

The pre-1980 version of the statute was clear that the first valid step toward annexation was adopting a resolution to annex, for that statute provided that the city must first pass such a resolution and then file a declaratory judgment action. An ordinance was neither necessary nor sufficient as a basis to annex.

The current statute is different. Looking at the plain language of section 71.015.1(1), while it mentions adoption of a “resolution to annex,” that reference can best be described as vague. The timing to adopt a resolution is not set out, and the purpose of doing so is not explained, for the statute no longer makes adoption of such a resolution a requirement for annexation. Neither does the statute set out any matters that must be included in such a resolution or require the municipality to follow through with any additional actions in regard to the resolution if it is adopted. A general resolution thus does little more than place an area on notice that it is under consideration for possible annexation.

By contrast, subdivision (2) of the statute sets forth a very detailed and elaborate structure for a municipality to accomplish an involuntary annexation of territory, beginning with the proposal of an ordinance by the city, village or town’s governing body. Subdivision (2) then sets forth various matters that must be contained in the ordinance, including a description of the area to be annexed and an affirmative statement of compliance with the contigu-ousness requirement; (b) a finding that the annexation is reasonable and necessary to the proper development of municipality; (c) a plan of intent to provide services for the area, (d) provision for a public hearing prior to adoption of the ordinance, and (e) the effective date of the annexation.

In keeping with the detailed nature of the ordinance requirement, subdivision (3) provides that the city must fix a date for public hearing on the ordinance, not on a resolution, and subsection (5) requires the filing of a declaratory judgment action to (a) ensure compliance with the contiguousness requirement, (b) demonstrate the annexation is reasonable and necessary to the proper development of the municipality, and (c) demonstrate that the municipality can furnish appropriate services to the area. Section 71.015.1(8), (5). Finally, subdivision (6) also requires at least one election to be held on the issue of annexation. Section 71.015.1(6).

As these detailed requirements for annexation make clear, the legislature intended to require a municipality to approach involuntary annexation with careful attention to its consequences and with respect for the rights of, and the need for information by, the citizens in both the annexing municipality and the proposed annexation area. The ordinance requirements reflect this careful and precise process. Cf. Julian v. Mayor of Liberty, 391 S.W.2d 864, 866-67 (Mo.1965) (explaining a “resolution” is “something less formal than” an “ordinance[.]” “[Gjenerally, it is a mere expression of the opinion or mind.... A resolution is not a law,” and “it need not be in any set or particular form.” (internal quotation marks and citations omitted)); State ex rel. Gove v. Tate, 442 S.W.2d 541, 542 (Mo. banc 1969) (discussing a long line of cases differentiating between a “resolution” and an “ordinance” and quoting Julian, 391 S.W.2d at 867, in holding that “[a] resolution ‘will not suffice when action on the part of a municipality is required to be taken by ordinance’ ”).

In sum, section 71.015.1 makes proposal of an ordinance to annex the triggering mechanism for the requirements of section 71.015; it ensures that the annexing municipality is genuinely serious about the annexation. To allow an annexing municipality to acquire prior jurisdiction with a bare resolution of intent would frustrate the thoughtful process installed by the legislature that calls for the demonstration of detailed planning and careful consideration. For these reasons, this Court finds that under section 71.015 the annexing municipalities are to approach involuntary annexation with deliberation and care as reflected by the required contents of a proposed ordinance. Accordingly, this Court holds that the first “valid step” toward involuntary annexation for the purpose of the prior jurisdiction rule is the municipality’s proposal of an ordinance as required by section 71.015.1(2).

CONCLUSION

Because Village proposed an ordinance first, the trial court correctly held that Village has exclusive jurisdiction to proceed with the involuntary annexation procedures of the unincorporated area of land in Andrew County described in its proposed ordinance. The judgment is affirmed.

All concur.

      . Unless otherwise indicated, all statutory references are to RSMo 2000.

      . Portions of that per curiam opinion are incorporated without further attribution.

      . Subsequent amendments to section 71.015 do not have any substantive effect on the discussion of the 1980 amendment to the statute. Unless otherwise noted, the current version of the statute is quoted, which incorporates both the 1980 version and subsequent, non-relevant amendments, for simplification purposes.

      . Any reliance on City of Kirkwood v. Allen, 399 S.W.2d 30, 38 (Mo. banc 1966), by the city is misplaced because that case predates the 1980 amendment of section 71.015. State ex inf. Nesslage v. Vil. of Flint Hill, 718 S.W.2d 210 (Mo.App.1986), does not aid the city because the parties in that case agreed that the resolution of intent to annex was the first valid step to the annexation. The court was not required to examine the validity of that agreement. Similarly, in State ex inf. Nesslage v. Lake St. Louis, 718 S.W.2d 214, 219 (Mo.App.1986), the parties did not contest what act constituted the first valid step to annexation. To the extent Flint Hill and Lake St. Louis hold that adoption of a resolution of intent to annex is the first valid step of an annexation, they are overruled.


author: MICHAEL A. WOLFF, Judge.

text:
    UTILITY SERVICE AND MAINTENANCE, INC., and TIG Insurance Company, Respondents, v. NORANDA ALUMINUM, INC., and Zurich Insurance Company, Appellants.
    No. SC 86363.
    Supreme Court of Missouri, En Banc.
    May 31, 2005.

      John M. McFarland, Bradley J. Baum-gart, Kutak Rock LLP, Kansas City, MO, Mark G. Arnold, Ronald C. Willenbrock, Mark F. Mueller, St. Louis, MO, for Appellants.
    Debbie S. Champion, Amy R. Brown, Gerre S. Langton, St. Louis, MO, for Respondents.
   MICHAEL A. WOLFF, Judge.

This case calls for interpretation of an indemnity provision that was part of a contract between two businesses. The trial court held that the indemnity provision was not enforceable. This Court concludes that the provision should be enforced as written and reverses the judgment of the trial court.

Facts and Procedural History

Noranda Aluminum, Inc., operates an aluminum manufacturing plant in New Madrid, Missouri. Utility Service & Maintenance, Inc., specializes in the technical and dangerous job of painting high voltage electrical equipment for industrial clients. TIG Insurance Company issued general liability and excess insurance policies totaling $ 5 million to Utility. These policies included coverage for liabilities resulting from any agreements under which Utility assumed the tort liability of another party. Noranda was insured by Zurich Insurance Company.

Noranda requested a bid from Utility in July 1992 for industrial painting at Noran-da’s New Madrid facility. Noranda’s bid request states that it includes Exhibit C, including a provision requiring Utility to indemnify Noranda. Utility’s president, Denny Dunaway, testified that he did not receive Exhibit C along with the bid solicitation. Dunaway, however, signed Utility’s proposal and sent it to Noranda, affirming that Utility had received all of the information listed as included in the bid solicitation.

Noranda issued a purchase order to Utility in August 1992. The purchase order stated that its acceptance “confirms [Utility’s] acknowledgement of [Noranda’s] standard terms and conditions.” Dunaway received a copy of Noranda’s standard terms and conditions in September 1992 before Utility’s work was to begin under the contract.

The standard terms and conditions include Paragraph 19, which states:

Seller [Utility] shall indemnify and save Purchaser [Noranda] free and harmless from and against any and all claims, damages, liabilities or obligations of whatsoever kind, including, but not limited to, damage or destruction of property and injury or death of persons resulting from or connected with Seller’s performance hereunder or any default by Seller or breach of its obligations hereunder.

This Court agrees with the circuit court’s conclusion that Paragraph 19 was part of the parties’ contract.

In October 1992, Gary Murphy, a Utility employee, was severely injured while working at Noranda’s plant under the Utility-Noranda contract. Murphy sued No-randa in the circuit court of St. Louis County in 1995, alleging that Noranda’s negligence had caused his injuries, Shortly after the Murphy lawsuit was filed, No-randa requested that Utility defend and indemnify Noranda, based on the indemnity agreement in Exhibit C. Utility passed this request on to TIG, its insurance company, for evaluation. TIG assigned the claim to an experienced senior claims adjuster, who retained the St. Louis law firm of Brown & James to represent Noranda in the lawsuit.

Brown & James entered an appearance in the Murphy suit on Noranda’s behalf and requested a continuance to assess whether TIG was obligated to defend No-randa. Brown & James advised Noranda that it might withdraw and ask Noranda to assume the defense if TIG determined that there was no valid indemnity agreement.

Brown & James notified TIG in September 1995 that “paragraph 19 may require Utility to honor the tender of defense and indemnity made by Noranda.” Based on this advice, the language of Paragraph 19, and the allegations in Murphy’s petition, TIG’s adjuster determined that Utility and TIG were obligated to defend and indemnify Noranda. The adjuster instructed Brown & James in December 1995 to “[ejnter an unconditional appearance and answer and proceed with the defense of this case.”

Brown & James informed Noranda in writing in January 1996 that TIG had decided to “accept, unconditionally, Noranda Aluminum’s tender of defense and indemnification.” After receiving this written confirmation from TIG, Noranda allowed TIG’s attorneys to handle the defense and to make decisions regarding the lawsuit. TIG ultimately agreed to settle the case for $4.3 million dollars.

In March 1997 — over one year after advising that it would unconditionally assume the defense — -TIG began requesting -Exhibit C, asserting it had never been received. TIG notified Noranda that it was concerned that there was no enforceable indemnity agreement; it consistently referenced Exhibit C, although Exhibit C was not the basis of its assumption of the defense.

The Murphy suit was settled in November 1998. Shortly thereafter, TIG filed an action for declaratory judgment and indemnity, claiming that there was no enforceable indemnification clause in the contract. A bench trial was held in January 2002, and the court found in favor of TIG. The court found that Exhibit C was not a part of the contract, that TIG did not waive its right to withdraw its promise to defend and was not estopped from asserting that right after the case was settled, and that Paragraph 19 did not require Utility to indemnify Noranda for Noran-da’s own negligence.

On appeal, this Court granted transfer after opinion by the Court of Appeals, Eastern District. This Court has jurisdiction under Mo. Const. art. V, sec. 10.

Noranda argues that:

1. TIG is estopped from contesting coverage because it unconditionally accepted the defense without reserving its rights;
2. TIG is estopped from contesting coverage based on the language of Paragraph 19, because it knew about the language before it assumed the defense and did not question the language before settling the lawsuit;
3. TIG was not entitled to indemnification because it voluntarily assumed the defense and paid the settlement with full knowledge of the facts; and
4. TIG was required to defend and indemnify Noranda pursuant to Paragraph 19, which applied even to cases where Noranda’s own negligence was alleged.

Zurich also appeals, arguing that the trial court did not have “subject matter jurisdiction” to interpret the contract between Noranda and Zurich and that TIG had no right to indemnification from No-randa and Zurich. This Court concludes that reversal is warranted based on the language of Paragraph 19; there is no need to reach Noranda’s other claims or Zurich’s contention regarding “subject matter jurisdiction.”

Discussion

Parties are generally free to contract as they wish, and courts will enforce contracts according to their plain meaning, unless induced by fraud, duress, or undue influence. Malan Realty Investors, Inc. v. Harris, 953 S.W.2d 624, 626-27 (Mo. banc 1997). As a general proposition, however, contractual provisions releasing a party from liability for its own negligent acts must be stated clearly, unequivocally, and conspicuously. Kansas City Power & Light Co. v. Federal Const. Corp., 351 S.W.2d 741, 745 (Mo.1961); Parks v. Union Carbide Corp., 602 S.W.2d 188, 190 (Mo. banc 1980); Nusbaum v. City of Kansas City, 100 S.W.3d 101, 105 (Mo. banc 2003). General, broad, and all-inclusive language has been held insufficient to release a party from its own negligence. Kansas City Power & Light Co., 351 S.W.2d at 745; Economy Forms Corp. v. J.S. Alberici Const. Co., Inc., 53 S.W.3d 552, 554-55 (Mo.App.2000).

Despite these general principles regarding contracts that eschew liability, this Court has drawn a distinction between contracts with consumers and contracts between businesses of equal power and sophistication. This Court held, in Alack v. Vic Tanny Intern. of Missouri, Inc., 923 S.W.2d 330 (Mo. banc 1996), that a contract releasing a health club from “any and all claims” was not sufficient to release the club from its own negligence when a consumer was injured. Id. at 337. The decision, however, noted that “[t]his case does not involve an agreement negotiated at arms length between equally sophisticated commercial entities. Less precise language may be effective in such situations, and we reserve any such issues.” Id. at 338, n. 4.

This Court addressed the issue reserved in Alack in Purcell Tire & Rubber Co., Inc. v. Exec. Beechcraft, Inc., 59 S.W.3d 505 (Mo. banc 2001). Purcell contracted to buy a used plane from Beechcraft. Both parties were sophisticated commercial entities that negotiated at arm’s length for the purchase. Id. at 508. The three-page contract, prepared by Beechcraft, limited Beechcraft’s liability to the performance of a maintenance survey prior to purchase. Id.

When an oil leak was later discovered that required an engine to be replaced, Purcell sued Beechcraft for negligence in failing to detect the leak during the maintenance survey. Id. This Court held that, although limitations of liability for one’s own negligence must be clear, unambiguous, unmistakable, and conspicuous, “[s]o-phisticated businesses that negotiate at arm’s length may limit liability without specifically mentioning ‘negligence,’ ‘fault,’ or an equivalent.” Id. at 509.

The fact that Noranda and Utility did not bargain for the indemnification clause is irrelevant. “Courts enforce the objective terms of contracts between sophisticated businesses, without regard to the parties’ subjective intent.. The character and quality of negotiations do not vary the terms of a vratten contract between sophisticated businesses.” Id. (Citations omitted). In such a contract, the economic reality is that the price for the work may well include the cost of insurance for Utility to indemnify Noranda for “any and all claims.” A contract between sophisticated businesses that does not include indemnification would presumably carry a different price than a contract that does include such a provision.

This Court concluded in Purcell that use of the word “any” was not ambiguous, where both parties were sophisticated commercial entities. Id. at 510-11. The contract here is similar to that in Purcell.

TIG argues that Paragraph 19 is ambiguous and therefore should be interpreted as applying only to Utility’s performance. The contract, however, specifically states that it includes, but is not limited to, Utility’s performance under the contract. Thus, the contract by its plain language states that it relates to more than just Utility’s performance. There is nothing ambiguous about a requirement that one party indemnify the other for “any and all claims” in a commercial contract. Claims for Noranda’s negligence are included within the phrase “any and all claims.” See Monsanto Co. v. Gould Electronics, Inc., 965 S.W.2d 314, 316-17 (Mo.App.1998). This language was sufficient to require Utility, a sophisticated commercial entity, to indemnify Noranda for all claims, including those alleging negligence by No-randa.

TIG also argues that the indemnity provision of Paragraph 19 is not conspicuous. There is no material difference between the indemnity provision here and that in Purcell. Although Paragraph 19 was not specifically identified as an indemnity provision, it was one of 23 provisions referenced as being part of the contract. Utility’s president testified that indemnity provisions were always included in its contracts; Utility, therefore, should have looked for and recognized the provision. Any failure to read the conditions thoroughly was due to Utility’s own fault.

The requirement that clauses providing indemnity for one’s own negligence be conspicuous remains, particularly for contracts involving consumers. However, in a case such as this, where the parties are contracting for the performance of technical and dangerous work, and where both parties are sophisticated commercial entities, it is not required that the indemnity provision be set apart from the other contractual provisions or that it be labeled as an indemnity provision.

Conclusion

Because Paragraph 19 is enforceable, the trial court erred in concluding that TIG had no duty to indemnify Noranda. Since this issue is dispositive, Noranda’s remaining claims and Zurich’s claims regarding “subject matter jurisdiction” are not addressed.

The judgment of the circuit court is reversed.

WHITE, C.J., STITH, PRICE, TEITELMAN and LIMBAUGH, JJ., and QUIGLESS, Sp.J., concur.

RUSSELL, J., not participating.

      . Zurich labels its contentions as involving subject matter jurisdiction. In truth, its arguments relate to TIG’s standing to enforce or interpret the insurance contract between Zurich and Noranda and to its position that section 379.200 bars entering a judgment against Zurich without obtaining a final judgment against Noranda. Although the "subject matter jurisdiction” label does not seem appropriate, in light of the disposition of this appeal on other grounds, there is no need to address these issues here.

      . In a court-tried civil case, the judgment will be affirmed "unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law.” Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Issues of law are reviewed de novo. Delta Air Lines, Inc. v. Dir. of Revenue, 908 S.W.2d 353, 355 (Mo. banc 1995).


text:
    In re the Matter of Scott DYER.
    No. SC 86236.
    Supreme Court of Missouri, En Banc.
    May 31, 2005.

      Jeremiah W. (Jay) Nixon, Atty. Gen., David F. Barrett, Assistant Atty. Gen., Jefferson City, MO, Linda S. Wasserman, St. Louis County Counselor’s Office, Patrick E. Richmond, St. Louis County Prosecutor’s Office, Clayton, MO, for Appellant.
    Kenneth J. Heinz, Laura J. Gerdes, St. Louis, MO, for Respondent.
   MICHAEL A. WOLFF, Judge.

In 1990 when Scott Dyer was 18 years old, he had one significant run-in with the law in St. Louis County, pleading guilty to felony charges of forgery and stealing over $150. He received probation on a suspended imposition of sentence, completed the probation successfully, and has not encountered the criminal justice system in the past 15 years.

Dyer, now a Colorado resident, lost his job with a government contractor as chief building engineer at the United States Courthouse in Denver because he was unable to renew his security clearance from the Department of Homeland Security in January 2004 because of the record of his arrest.

The incident that led to the 1991 guilty plea occurred when Dyer was arrested in 1990 by an officer of the Florissant police department and charged with one count of stealing and two counts of forgery for taking another man’s baseball bag, baseball glove, shoes, wallet, and two personal checks that Dyer and a friend then forged. In April 1991, Dyer pleaded guilty to one count of forgery and the stealing charge; the other forgery count was dismissed. The court suspended imposition of sentence and placed Dyer on probation for a period of three years.

Last year Dyer filed a petition for ex-pungement of his 1990 arrest record because it made it impossible for him to obtain the security clearance he needed for his job. The trial court entered judgment and ordered Dyer’s arrest record expunged.

The state, through the criminal records repository, appealed directly to this Court because the trial court concluded that the statute governing Dyer’s case is unconstitutional. This Court has exclusive jurisdiction. Mo. Const, art. V, sec. 3.

There is, unfortunately for Dyer, no law that allows a court, in the circumstances presented here, to expunge his record.

The Law as to Expungement

Dyer’s arrest and guilty plea preceded enactments of statutes dealing with expungement of criminal records. Prior to the 1993 enactment, arrest records could be expunged under a court’s general equitable powers. See Kuenzle v. Missouri State Highway Patrol, 865 S.W.2d 667, 669 (Mo. banc 1993).

The 1993 legislation supplanted equitable expungement with a statutory remedy of expungement. Under sec. 610.126 , expungement was permitted only if the requirements of sec. 610.122 were satisfied. Specifically, the 1993 version of sec. 610.122 permitted expungement only if the arrest was based on “false information” and:

(1) There is no probable cause, at the time of the action to expunge, to believe the individual committed the offense;
(2) No charges will be pursued as a result of the arrest;
(3) The subject of the arrest has no prior felony convictions; and
(4) An action to expunge the record of arrest is commenced within three years from the date of the arrest or if criminal charges were filed, within three years from the date of any dismissal or reversal.

In 1995, the General Assembly modified sec. 610.122 to permit expungement only if the arrest was based on “false information” and:

(1) There is no probable cause, at the time of the action to expunge, to believe the individual committed the offense;
(2) No charges will be pursued as a result of the arrest;
(3) The subject of the arrest has no prior or subsequent misdemeanor or felony convictions;
(4) The subject of the arrest did not receive a suspended imposition of sentence for the offense for which the arrest was made or for any offense related to the arrest; and
(5)No civil action is pending relating to the arrest or the records sought to be expunged.

Section 610.122 has remained unchanged since 1995.

The Trial Court’s Decision

The trial court ordered Dyer’s arrest record expunged for three reasons. First, the trial court said that Dyer satisfied the requirements of the current version of sec. 610.122. Second, the trial court said that the current version of sec. 610.122 is unconstitutional. Third, the trial court claimed that it could issue the expungement under its equitable powers. All three of these reasons are erroneous.

1. The requirements of the current version of sec. 610.122 have not been satisfied.

The current version of sec. 610.122 contains six requirements: (1) false information, (2) absence of probable cause, (3) no future charges, (4) no prior convictions, (5) no suspended imposition of sentence, (6) no civil action pending relating to the arrest or the record.

The third, fourth, and sixth requirements do not present any problems in this case, and the state does not dispute that those requirements are satisfied. But the first, second, and fifth requirements are not met.

To establish that the arrest was based on “false information” the petitioner in most cases must prove that the alleged victim—who knew the petitioner and on whose accusation his arrest was based— had falsely accused the petitioner. Martinez v. State, 24 S.W.3d 10, 20 (Mo.App.2000). In all cases, the petitioner must prove that some or all of the information upon which the police relied to arrest the petitioner is simply a lie. Dyer admits, however, that he was at least somewhat involved in the disappearance of the bag, even if only by association, and the sentencing court determined that Dyer was guilty by accepting his guilty plea and sentencing him. Dyer makes it difficult to prove that his arrest was based on false information since he admitted the facts supporting his guilty plea.

For the same reasons, Dyer’s arrest was supported by probable cause. Probable cause here is different than what is required to justify an arrest. In this context “ ‘probable cause’ is intended in the broad sense of ‘reasonable cause,’ of ‘having more evidence for than against,’ and of facts which would cause a reasonably intelligent and prudent person to believe ‘that the accused person had committed the crime charged.’ ” Martinez, 24 S.W.Sd at 20.

The false information requirement and the probable cause requirement, when combined, “necessarily imply and mean that a petitioner ... has the burden to affirmatively demonstrate at a hearing, by a preponderance of the evidence ... his actual innocence of the offense for which he was arrested.” Martinez, 24 S.W.3d at 20. The fact that Dyer pled guilty and received a probation sentence seems to indicate that he was not actually innocent of the stealing and forgery, unless the court is willing to believe that Dyer falsely or mistakenly pleaded guilty in 1991.

Even if this Court accepts the trial court’s finding that Dyer’s arrest was “based on false information,” the statute bars expungement where there is a suspended imposition of sentence. Sec. 610.122(4). Dyer received a suspended imposition of sentence for two of the charges on which he was arrested. To permit ex-pungement of his arrest record would violate the language of the statute.

Dyer attempts to avoid this result by arguing that “[pjetitioner did not receive a suspended imposition for the offense for which the arrest was made or for any offense related to the arrest at any time subsequent to the passage of House Bill 135 in 1995.” The trial court accepted the argument and held that Dyer satisfied the requirements of the current version of sec. 610.122. In so holding, the trial court added language to the statute instituting a time frame that does not exist in the express language of sec. 610.122. The court considered the statute to be an unconstitutional ex post facto law in the absence of a time frame limiting the statute to criminal proceedings occurring after the 1995 enactment.

But this statute is not ex post facto in that it deals only with arrest records currently maintained. The statute does not affect conduct previously committed; it merely directs a court when it may tell an administrative agency to destroy a particular record it has in its possession. The statute is civil and not criminal. Dyer has never had a substantive or vested right in expungement of his arrest record as is required for a statute to be ex post facto. See Arie v. Intertherm, Inc., 648 S.W.2d 142, 159 (Mo.App.1983); Doe v. Roman Catholic Diocese, 862 S.W.2d 338 (Mo. banc 1993). Section 610.122 did not need to be construed as limited to post-enactment proceedings because it is not ex post facto.

Because of the suspended imposition of sentence on charges relating to his arrest, Dyer’s arrest record cannot be expunged under the current version of sec. 610.122.

2. The current version of sec. 610.122 is not unconstitutional.

Dyer’s constitutional claims contain three arguments. The first is that House Bill 135 from 1995, the bill enacting the current version of sec. 610.122, is an invalid ex post facto law. This argument, as stated above, fails. The second argument is that House Bill 135 violates the one subject matter rule and that the subject is not clearly expressed in the bill’s title. Third, Dyer argues that the General Assembly could not single out petitioners receiving a suspended imposition of sentence and categorically deny them expungement because doing so violates equal protection and due process guarantees of the 14th Amendment to the United States Constitution and art. I, secs. 2 and 10 of the Missouri Constitution.

House Bill 135 does not violate the constitutionally prescribed procedural requirements for legislative enactments. “The use of ... procedural limitations to attack the constitutionality of statutes is not favored.” Stroh Brewery Co. v. State, 954 S.W.2d 323, 326 (Mo. banc 1997). House Bill 135 enacted two provisions: (1) that a translator for a speech or hearing impaired person not disclose a conversation between the translator and the impaired person unless the impaired person consents; and (2) that Missouri’s criminal records repository not disclose the contents of arrest records. These two provisions deal with one subject matter-—confidentiality. Section 610.122’s procedure for expunging an arrest record is part and parcel of the statutory scheme governing disclosure of arrest records. The subject matter of House Bill 135 was clearly stated in the title which proclaimed that the bill “relat[ed] to the confidentiality of certain information.” House Bill 135 complies with the one subject matter rule and the title rule.

As to Dyer’s equal protection and due process argument, the General Assembly may categorically exempt from expungement the record of an arrest leading to a suspended imposition of sentence.

First, as to due process, there is no plausible argument that Dyer has been deprived of procedural rights protected by the due process clause. Mo. Const. art. I, sec. 10. Boersig v. Missouri Department of Corrections, 959 S.W.2d 454 (Mo. banc 1997)

Second, as to equal protection, the question is whether the legislative distinction has a rational basis. See Mahoney v. Doerhoff Surgical Services, 807 S.W.2d 503, 512 (Mo. banc 1991).

The legislative distinction—denying ex-pungement where the arrest results in a suspended imposition of sentence—is rational. The availability of probation upon a suspended imposition of sentence, authorized by sec. 557.011.2(3), is an act of legislative leniency. When a probationer, such as Dyer, successfully completes the conditions and terms of his probation, his record is free of a criminal conviction, despite his guilty plea. The offender is adjudicated to be guilty of a felony, but there is no conviction. It is rational for the General Assembly, however, to deny expungement in such circumstances. For instance, felony findings of guilt can be cited, even without a resulting conviction, if in a subsequent prosecution the defendant meets the criteria for being charged as a prior or persistent offender. See sec. 558.016. The state has an interest in maintaining “complete and accurate criminal history record information,” as provided in sec. 48.503, for a variety of legitimate purposes.

It is unfortunate that Dyer cannot, under the law, be relieved of the consequences of his arrest. The legislative judgment that such records not be expunged is not irrational. The harm Dyer suffered from this 15-year-old arrest record is caused by the policies of the federal Department of Homeland Security on security clearances, and this Court is not in a position to determine whether such policies are rational or irrational. The state’s maintenance of Dyer’s arrest record has collateral consequences, but it is not an additional punishment.

3. The Court Does Not Have the Power to Issue an Equitable Expungement.

The courts of this state, under their equitable powers, previously offered a remedy for expunging arrest records in certain situations. That equitable power, however, has been eliminated by sec. 610.126 which provides that, except as set forth in the statutes, “the courts of this state shall have no legal equitable authority to close or expunge any arrest record.” See Kuenzle, 865 S.W.2d at 669. The General Assembly has the power, by statute, to change the substantive rules upon which courts at law and equity base their decisions. Adams v. Children’s Mercy Hospital, 832 S.W.2d 898, 907 (Mo. banc 1992). The power to change substantive rules as to the keeping of criminal records in this instance does not infringe on any inherent power of the judiciary and, thus, does not violate the separation-of-powers provision of the Missouri Constitution, art. II, sec. 1.

Conclusion

Regardless of the law that is applied to Dyer’s petition — the equitable doctrine, or its 1993 or 1995 replacements in chap. 610 — Dyer would not be eligible for ex-pungement of his arrest record that resulted in a suspended imposition of sentence. Section 610.122, which limits expunge-ments to situations that do not include Dyer’s, is constitutional.

The judgment of the circuit court is reversed.

All concur.

      . All statutory citations are to RSMo 2000, unless otherwise indicated.

      . There is an argument that the law to be applied to Dyer’s petition is the law in existence at the time he completed his sentence. The 1993 version of sec. 610.122, if applied here, also would make him ineligible for an expungement. The 1993 version of sec. 610.122 had a three-year statute of limitations, which has expired.

      . The legislative curtailment of the expungement remedy does not leave Dyer without recourse. Dyer may seek relief under the governor's power to pardon. Missouri Constitution, art. IV, sec. 7. As with the expungement remedy, there is no assurance on the record of this case that such relief would satisfy the standards of the federal Department of Homeland Security.

      . It is doubtful that Dyer would have qualified even under the equitable doctrine that existed prior to 1993. "Missouri courts [had] equitable powerfs] to expunge arrest records only where there [was] an illegal prosecution, acquittal, or extraordinary circumstances.” Kuenzle v. Missouri State Highway Patrol, 865 S.W.2d 667, 669 (Mo. banc 1993) (citing Buckler v. Johnson County Sheriff’s Department, 798 S.W.2d at 155 (Mo.App.1989)). Moreover, State ex rel. Peach v. Tillman, 615 S.W.2d 514, 519 (Mo.App.1981) held that "those cases in which a person has been granted a suspension of imposition of sentence will not present the extraordinary circumstances that would warrant an order expunging the criminal records surrounding that case.” There is no evidence that Dyer’s prosecution was illegal, and since he obviously was not acquitted, he would not be entitled to an equitable expungement in any event.