author: Justice LANG.

text:
    EL DORADO MOTORS, INC., Appellant, v. Graham R.E. KOCH and Vial, Hamilton, Koch & Knox, L.L.P., Appellees.
    No. 05-04-00540-CV.
    Court of Appeals of Texas, Dallas.
    July 27, 2005.

      William Thompson, Robert H. Holmes, The Holmes Law Firm, Dallas, for Appellant.
    Jeffrey S. Levinger, James E. Coleman, Jr., Tim Gavin, Carrington, Coleman, Slo-man & Blumenthal, L.L.P., Richard L. Smith, Quilling, Selander, Cummiskey & Lownds, P.C., Dallas, for Appellees.
    Before Justices MORRIS, LANG, and MAZZANT.
   OPINION

Opinion by

Justice LANG.

El Dorado Motors, Inc. appeals a final summary judgment that it take nothing from appellees Graham R.E. Koch and Vial, Hamilton, Koch & Knox, L.L.P. Ap-pellees sought summary judgment on traditional and no-evidence grounds on claims asserted by El Dorado. In its final summary judgment the trial court stated specifically the claims on which summary judgment was granted or denied and that summary judgment on “Plaintiffs claim for actual damages in the nature of lost profits is granted.” In another, subsequent paragraph of the order, the trial court stated, “Plaintiff shall take nothing against Defendants.”

El Dorado brings three issues on appeal. In issue one, El Dorado contends the trial court erred in granting summary judgment on its claim for “actual damages in the nature of lost profits” and then entering a take nothing judgment against it. In issue two, El Dorado contends the trial court abused its discretion in denying El Dorado’s motion for new trial. Then, in issue three, El Dorado contends the trial court abused its discretion in denying its motion for continuance and motion for leave to file supplemental evidence. For the reasons below, we resolve El Dorado’s issues against it and affirm the trial court’s final summary judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

El Dorado’s allegations in this suit are founded upon the actions of Richard Hayden, the accountant for El Dorado. When A1 Graff died, his stock in El Dorado passed to his son, Stan Graff. Hayden was also the executor of A1 Graffs estate. From January to October 2000, Hayden was El Dorado’s president and sole director.

This case began in the 68th Judicial District Court of Dallas County, where El Dorado sued appellees, Hayden, and Harold “Steve” Stevens. El Dorado complained about Hayden’s acts, while director and president, when he terminated Stan Graff as El Dorado’s president and sole director and executed an employment agreement with Stevens as El Dorado’s general manager (the Stevens lawsuit). All claims against appellees, Koch and Vial, Hamilton, were severed from the Stevens lawsuit, assigned a new cause number, and then transferred to the 14th Judicial District Court. The Stevens lawsuit was tried to a jury in the 68th Judicial District Court. El Dorado did not recover any damages for lost profits in that case, but the court awarded El Dorado $350,000 in attorney’s fees.

In its amended original petition filed in this suit, El Dorado asserted claims for breach of fiduciary duty and legal malpractice and, in the alternative, negligent misrepresentation and civil conspiracy. El Dorado alleged that appellees’ acts “were the proximate cause of substantial damages to El Dorado, including lost profits.” El Dorado also claimed exemplary damages.

At the beginning of the hearing on ap-pellees’ summary judgment motion, the trial court stated that the court had previously determined it would “freeze” the summary judgment record. El Dorado argued several previously-filed motions to supplement the record and argued for a continuance to obtain additional summary judgment evidence. The trial court orally denied the motion to supplement at the conclusion of the hearing. The trial court subsequently signed the final summary judgment.

The trial court heard El Dorado’s motion for new trial and denied it by a written order. This appeal timely followed.

II. MOTION FOR SUMMARY JUDGMENT

In its first issue, El Dorado argues the trial court erroneously granted summary judgment as to the claim for actual damages and improperly entered a take nothing judgment against it because: (1) appel-lees did not expressly move for summary judgment as to “actual damages, in the nature of lost profits”; (2) the motion for summary judgment did not address all damages claimed, and thus El Dorado’s claims for out-of-pocket damages survived summary judgment; (3) there is evidence in the record raising a fact issue on lost profits and actual out-of-pocket damages, including $350,000 in attorney’s fees awarded in the Stevens lawsuit, specifically, an 8½ in. by 11 in. spreadsheet, the deposition testimony of an expert witness, Thomas Turner, an accountant who created the spreadsheet, and the judgment in the Stevens case; and (4) summary judgment cannot be supported on grounds of res judicata and collateral estoppel as a matter of law.

A. Standard of Review

To succeed in a motion for summary judgment under rule of civil procedure 166a(c), a movant must establish that there is no genuine issue of material fact so that the movant is entitled to judgment as a matter of law. W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex.2005). In reviewing a summary judgment, we consider the evidence in the light most favorable to the nonmovant and resolve any doubt in the nonmovant’s favor. Id. Under rule of civil procedure 166a(i), a party may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. Tex.R. Civ. P. 166a(i). Unless the respondent produces summary judgment evidence raising a genuine issue of material fact, the court must grant the no-evidence motion. Id.; W. Invs., Inc., 162 S.W.3d at 550. When a trial court’s order granting summary judgment does not specify the ground or grounds relied on for its ruling, summary judgment will be affirmed on appeal if any of the theories presented to the trial court and preserved for appellate review are meritorious. W. Invs., Inc., 162 S.W.3d at 550; Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex.2003); Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989).

A motion for summary judgment must itself expressly present the grounds upon which it is made and must stand or fall on those grounds alone. Batte v. Hendricks, 137 S.W.3d 790, 791 (Tex.App.-Dallas 2004, pet. denied); see Tex.R. Civ. P. 166a(c) (“The motion for summary judgment shall state the specific grounds therefor.”). A summary judgment cannot be affirmed on grounds not expressly set out in the motion or response. Stiles v. Resolution Trust Corp., 867 S.W.2d 24, 26 (Tex.1993). A no-evidence summary judgment motion “must state the elements as to which there is no evidence.” Tex.R. Civ. P. 166a(i).

B. Discussion

In its motion for summary judgment, appellees cited the traditional and no-evidence summary judgment rules and moved the court “to enter summary judgment in their favor on all claims, all issues[,] and all theories of damages asserted” by El Dorado. Appellees asserted that “the essential elements of every claim asserted by El Dorado-causation and damages-are missing.” Appellees also asserted,

[T]he sum and substance of El Dorado’s theories is [sic] nothing more than an effort to hold Hayden’s attorneys liable for any damages caused by Hayden’s decisions. Each theory advanced by El Dorado boils down to an assertion that Texas law required [appellees] to stop Hayden from terminating Stan Graff and entering into the contract with Stevens, and that [appellees] are liable in damages for failing to prevent Hayden from doing what he did.

Appellees asserted two specific grounds regarding damages:

There is no evidence of the following essential element of El Dorado’s claims on which El Dorado would have the burden of proof at trial: that Hayden caused any damages for which he would be legally responsible to El Dorado; [and]
Under principles of res judicata and collateral estoppel, the judgment in [the Stevens lawsuit] precludes El Dorado from asserting in this case that it sustained any damages caused by Hayden terminating Stan Graff and entering into the contract with Stevens.

We conclude that the motion complies with rule of civil procedure 166a(i) by stating the element of the claims asserted — damages — on which there was no evidence. See Tex.R. Civ. P. 166a(i). El Dorado cites no authority that “damages” does not include all specific types of damages, including lost profits and out-of-pocket damages. El Dorado does not argue on appeal that the trial court improperly overruled its objection to a lack of specificity of the motion. Accordingly, we reject El Dora-do’s argument that appellees did not expressly move for summary judgment as to El Dorado’s claim for “actual damages in the nature of lost profits.”

The final summary judgment specifically recites that summary judgment is granted as to lost profits. However, the judgment also states, “Plaintiff shall take nothing against Defendants.” The record of the summary judgment hearing reflects that the trial court had the impression that the sole claim for damages was lost profits. That understanding was not addressed by El Dorado’s counsel. Specifically, the trial court asked El Dorado’s counsel, “Is the nature of damages sought by plaintiff lost profits?” Counsel replied in the affirmative. Subsequently, the trial court stated, “With respect to the portion of the [summary judgment] motion going to damages and with the Court’s understanding the only damages sought are for lost profits, the Court grants the motion.”

Additionally, in the motion for new trial, El Dorado did not identify what specific types of damages were claimed. El Dora-do simply claimed there were damages proved by Turner and another witness whose testimony is not relevant here. The record of the hearing on the motion for new trial reflects that El Dorado argued there were other damages, including $350,000 in attorney’s fees, as evidenced by the final judgment in the Stevens lawsuit which was in the record, even though counsel had not previously called the trial court’s attention to those damages.

The final summary judgment in this case clearly identifies each cause of action. Summary judgment was granted to some claims (negligent misrepresentation and exemplary damages), but not to others (breach of fiduciary duty, malpractice, and conspiracy). Yet, since the motion asked for relief as to all damages, the “take nothing” final summary judgment disposes of all damage claims. We conclude that, regardless of whether the trial court misunderstood El Dorado’s claims, the language of the final summary judgment, while expressly granting summary judgment as to lost profits, also granted summary judgment as to all other claims addressed in the motion for summary judgment, but not specifically identified in the final summary judgment. Accordingly, we reject El Dorado’s argument that the final summary judgment did not grant summary judgment on out-of-pocket damages.

Next, El Dorado argues that, even if appellees had moved for and obtained summary judgment on “actual damages in the nature of lost profits” and “actual, out-of-pocket damages,” there is evidence in the summary judgment record raising a fact issue as to actual damages in the amount of reasonable expenses and attorney’s fees incurred in the Stevens case, as shown by the judgment in that case, and lost profits and other out-of-pocket expenses identified by Turner, El Dorado’s expert witness, in his deposition and the spreadsheet. Accordingly, we review this evidence to determine whether it supports El Dorado’s claim for damages.

El Dorado contends that the evidence of the award for $350,000 in attorney’s fees in the Stevens case is sufficient to raise a fact issue as to damages. We disagree. That sum was based on a stipulation, approved by the trial court as reasonable and necessary attorney’s fees for prosecuting the separate claim against Stevens. This Court has long held that attorney’s fees incurred in another action are not evidence of damages in an action of the type now before us. See Peterson v. Dean Witter Reynolds, Inc., 805 S.W.2d 541, 549 (Tex.App.-Dallas 1991, no writ) (“In Texas, attorneys’ fees expended in prior litigation with third parties are not recoverable as damages: attorneys’ fees are only recoverable when provided for by contract or by agreement between the parties.”). Accordingly, the judgment in the Stevens lawsuit does not raise a fact issue as to damages in this lawsuit.

Next, we consider whether the spreadsheet and Turner’s expert deposition testimony “constitute evidence of probative force.” Dallas Ry. & Terminal Co. v. Gossett, 156 Tex. 252, 256, 294 S.W.2d 377, 380 (1956). “[Although expert opinion testimony often provides valuable evidence in a case, ‘it is the basis of the witness’s opinion, and not the witness’s qualifications or his bare opinions alone, that can settle an issue as a matter of law; a claim will not stand or fall on the mere ipse dixit of a credentialed witness.’ ” Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 232 (Tex.2004) (quoting Burrow v. Arce, 997 S.W.2d 229, 235 (Tex.1999)). “Opinion testimony that is conclusory or speculative is not relevant evidence, because it does not tend to make the existence of a material fact ‘more probable or less probable.’ ” Id. (quoting Tex.R. Evro. 401). Such evidence is “incompetent evidence” which will not support a judgment. Id. (citing Cas. Underwriters v. Rhone, 134 Tex. 50, 53-54, 132 S.W.2d 97, 99 (1939) (“bare conclusions” are incompetent and do not “amount to any evidence at all”)).

Recovery for lost profits does not require that the loss be susceptible of exact calculation. Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 84 (Tex.1992). However, the injured party must do more than show that it suffered some lost profits. The amount of the loss must be shown by competent evidence with reasonable certainty. Id. What constitutes reasonably certain evidence of lost profits is a fact intensive determination. At a minimum, opinions or estimates of lost profits must be based on objective facts, figures, or data from which the amount of lost profits can be ascertained. Id.

If the business for which lost profits are sought is shown to be an ongoing business, then evidence that the business was established and making a profit at the time when the tort was committed is admissible to show lost profits. Turner v. PV Int’l Corp., 765 S.W.2d 455, 465 (Tex. App.-Dallas 1988) (citing White v. Sw. Bell Tel. Co., 651 S.W.2d 260, 262 (Tex.1983)), writ denied, 778 S.W.2d 865 (Tex.1989) (per curiam). Proof of an operation of a business at a loss, without more, fails to meet the test of showing lost profits with reasonable certainty. Id. (citing First Tex. Sav. Ass’n v. Dicker Ctr., Inc., 631 S.W.2d 179, 187 (Tex.App.-Tyler 1982, no writ)).

Out-of-pocket damages measure the difference between the value the buyer has paid and the value of what he has received. Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 817 (Tex.1997); Leyendecker & Assocs., Inc. v. Wechter, 683 S.W.2d 369, 373 (Tex.1984).

The spreadsheet lists eight categories that El Dorado argues are out-of-pocket expenses: (i) two that relate to the Stevens lawsuit (legal and expert witness fees and employee time), and (ii) six that relate to dealership expenses. In addition, the spreadsheet lists two categories El Dorado argues relate to lost profits: lost momentum and enhanced productivity. The spreadsheet shows, for each category: (i) a date in 2000 or 2001; (ii) “minimum” and “maximum” amounts; and (iii) “minimum” and “maximum” “estimated amounts” after applying a “return of investment” factor. The total amount of the loss estimated was over $9 million.

Referring specifically to the spreadsheet, Turner testified to dealership expenses incurred due to decisions made by Hayden. Further, Turner testified, “Also, in the damage model numbers, when we get into the operational side of the dealership, there was momentum that was being gained during the tenure that Mr. Graff had involvement in moving the dealership into profitability. And that trend was broken when he was fired [by Hayden].” Turner was asked to explain “momentum broken.” He replied, “[W]hat we looked at was the profitability that was-the trend that was occurring in '98 and '99.” According to Turner, had the dealership, which was “profitable in '98 and '99,” “stayed on that path at the rate we were improving, that we would have made more money.” Turner also testified that the amount of loss was based on “internal issues” and “sales trends.” Then, Turner was asked, “So it’s your testimony that despite the fact that Mr. Hayden was the president, all of these damages were caused by Mr. Stevens.” Turner replied, “Well, I guess looking back at that and thinking about it, I mean, Mr. Hayden was in charge.... And he had that decision of whether to either keep Mr. Stevens or let Mr. Stevens go.” Turner was then asked, “The buck stops at the president of the company, correct?” Turner replied, ‘Tes.”

Tuner’s deposition refers to “profitability” and “sales trends,” but fails to establish how any loss of profitability was calculated. The spreadsheet does not show that the business was established and making a profit at the time of Hayden’s actions. See Turner, 765 S.W.2d at 465. Thus, neither the spreadsheet nor Turner’s deposition gives the basis for Turner’s opinions and conclusion as to lost profits damages, that is, “objective facts, figures, or data from which the amount of lost profits can be ascertained.” See Holt Atherton Indus., Inc., 835 S.W.2d at 84. Moreover, Turner explained the dealership expenses in terms of “excessive” expenses. However, because Turner makes no comparison to any lower amount that should have been paid and the “minimum” and “maximum” amounts for these categories are the same, the bare amount of expenses is no evidence of out-of-pocket damages. See Arthur Andersen & Co., 945 S.W.2d at 817. We conclude the spreadsheet and the deposition testimony do not “amount to any evidence at all” as to “actual damages in the nature of lost profits” or “actual, out-of-pocket damages” because there is no evidence as to the basis of Turner’s opinions and conclusions. See Cas. Underwriters, 134 Tex. at 54, 132 S.W.2d at 99. Accordingly, we cannot agree with El Do-rado’s argument that there is summary judgment evidence raising a fact issue as to these damages.

We conclude that appellees moved for, and the trial court properly granted, summary judgment on grounds that there is no evidence of damages, and the trial court properly rendered a take nothing judgment. Therefore, we need not address El Dorado’s arguments as to res judicata and collateral estoppel. El Dorado’s first issue is decided against it.

III. MOTION FOR NEW TRIAL

In its second issue, El Dorado contends the trial court abused its discretion in denying El Dorado’s motion for new trial.

A. Standard of Review

We review a trial court’s denial of a motion for new trial under an abuse of discretion standard. Jackson v. Van Winkle, 660 S.W.2d 807, 809 (Tex.1983), overruled on other grounds by Moritz v. Preiss, 121 S.W.3d 715, 721 (Tex.2003); Henry v. Halliburton Energy Servs., Inc., 100 S.W.3d 505, 510 (Tex.App.-Dallas 2003, pet. denied). Under this standard, we may not overrule the trial court’s decision unless the trial court acted unreasonably or in an arbitrary manner, without reference to guiding rules or principles. Beaumont Bank, N.A. v. BuUer, 806 S.W.2d 223, 226 (Tex.1991).' Every reasonable presumption will be made on review in favor of the trial court’s refusal of a new trial. Jackson, 660 S.W.2d at 809-10. Review of a trial court’s action under the abuse of discretion standard is a question of law. See id. at 810.

B. Discussion

El Dorado argues that the trial court’s granting summary judgment “as to damages in the nature of lost profits” and entering a take nothing judgment resulted in part from the trial court’s “erroneous understanding that the only damages sought are for lost profits.” El Dorado argues that granting summary judgment “when the summary judgment record clearly reflects evidence of actual damages is an abuse of discretion.”

El Dorado’s arguments on this point address the merits of the granting of the motion for summary judgment as to damages. We have already resolved the summary judgment issue against El Dorado. Consequently, we conclude El Dorado does not show an abuse of discretion in denying its motion for new trial. See Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 688 (Tex.2002) (concluding no abuse of discretion in denying motion for new trial when movant offered only “bare assertions” without explanation of good cause standard); see County of Dallas v. Wiland, 124 S.W.3d 390, 401 (Tex.App.-Dallas 2003, pet. granted) (“Because we have concluded there was no error in the trial court’s judgment on all issues concerning liability, we conclude the trial court did not abuse its discretion in denying the County’s motion for new trial.”). El Dorado’s second issue is resolved against it.

IV. MOTION FOR CONTINUANCE AND MOTION FOR LEAVE TO SUPPLEMENT

In its third issue, El Dorado contends the trial court abused its discretion in denying El Dorado’s motion for continuance of the summary judgment hearing to amend summary judgment proof and the December 3, 2003 motion for leave to supplement the summary judgment evidence. On appeal, El Dorado argues that it was prevented from presenting evidence as to actual damages that included deposition testimony of damages expert Gregg Hud-dleston, additional deposition testimony of Turner, and an affidavit of Hayden.

A. Motion for Continuance

A denial of a motion for continuance is subject to review for abuse of discretion. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 800 (Tex.2002). When a party contends that it has not had an adequate opportunity for discovery before a summary judgment hearing, it must file either an affidavit explaining the need for further discovery or a verified motion for continuance. Tenneco, Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 647 (Tex.1996) (citing Tex.R. Civ. P. 166a(g), 251, 252).

El Dorado did not file an affidavit or a verified motion for continuance. Consequently, the record shows El Dorado’s motion for continuance failed to comply with the rules of civil procedure.

Moreover, the record shows that El Dorado indicated at the beginning of the hearing that it would file a motion for continuance to amend its summary judgment evidence depending on the court’s ruling on the motion to supplement. However, after some argument, the trial court stated that “if either side needs to make any motion, make it, because we need to proceed.” El Dorado stated, “[L]et’s proceed.” After hearing argument, the trial court orally sustained appellees’ objections to “conclusory statements.” El Dorado then stated, “Okay. Then I need to file a motion for continuance to allow El Dorado to correct the record as to damages. Ask the Court to consider it.” At that point, the motion was file stamped. To present a complaint for appellate review, the record must show a complaint was communicated to the trial court by a timely motion, request, or objection complying with the requirements of the rules of civil procedure. Tex.R.App. P. 33.1(a). We cannot conclude that El Dorado’s motion for continuance, filed at the end of the hearing, was timely. On this record, we conclude El Dorado has failed to show an abuse of discretion in denying its motion for continuance.

B. Motion to Supplement

The denial of a motion for leave to file a late summary judgment response is likewise reviewed for abuse of discretion. Carpenter, 98 S.W.3d at 685-86; Crooks v. Moses, 138 S.W.3d 629, 634 (Tex.App.-Dallas 2004, no pet.). A motion for leave to file a late summary judgment response should be granted when the nonmovant establishes good cause by showing that the failure to timely respond (1) was not intentional or the result of conscious indifference, but the result of accident or mistake, and (2) that allowing the late response will occasion no undue delay or otherwise injure the party seeking summary judgment. Carpenter, 98 S.W.3d at 688.

The judge of the 68th Judicial District Court heard the motion for summary judgment, orally granted appellees’ motion for summary judgment, but did not sign a written order. El Dorado then moved to recuse the judge. The case was transferred to 14th Judicial District Court, where a status conference was held. Approximately six weeks before the hearing on the motion for summary judgment, El Dorado filed a motion for leave to file supplemental evidence in response to the summary judgment motion, requesting leave to file the above-mentioned damages evidence. In the motion, El Dorado stated that it “mistakenly failed to attach” the Turner and Huddleston evidence to its response and that “its failure to attach such evidence was not intentional or the result of conscious indifference.” These statements are eonclusory and do not give the facts as to “accident or mistake.” See Holt Atherton Indus., Inc., 835 S.W.2d at 82 (“eonclusory allegations are insufficient”).

At the hearing, El Dorado argued that the Huddleston and Turner evidence was “substantive” and “foundation evidence” for its damages. As to the Hayden affidavit, El Dorado argued that Hayden refused to give an affidavit until Hayden secured a new lawyer to replace the lawyer he earlier dismissed. Appellees countered that appellees had deposed Hayden “on all the issues” and the testimony in the affidavit was not new, but was available at the time Hayden was deposed. We conclude that the record does not show “accident or mistake” for the failure to timely respond as to this evidence. See Carpenter, 98 S.W.3d at 688. Accordingly, because the record does not show El Dorado established good cause for continuance or leave to file additional evidence, we conclude El Dorado has failed to show an abuse of discretion in the denial of these motions. We resolve El Dorado’s third issue against it.

V. CONCLUSION

Having resolved El Dorado’s three issues against it, we affirm the trial court’s final summary judgment.

      . The six categories are: excessive tax return fees paid to Hayden; franchise tax penalty paid September 21, 2000; higher insurance costs due to losing GMAC floor plan; unnecessary rent paid to outside third party; bonus and insurance payments to Stevens; used vehicle gross profit; and accounting fees to "clean up books.”


source: Caselaw Access Project

author: Justice MORRIS.

license: Public Domain

text:
    Betty D. BROOKS, Appellant, v. CITY OF DALLAS, Appellee.
    No. 05-04-01467-CV.
    Court of Appeals of Texas, Dallas.
    July 27, 2005.

      Betty D. Brooks, Dallas, pro se.
    Kenneth R. Bennett, Asst. City Atty., Dallas, for Appellee.
    Before Justices MORRIS, LANG, and MAZZANT.
   OPINION

Opinion by

Justice MORRIS.

In this appeal following a dismissal for want of jurisdiction, Betty D. Brooks contends the trial court erred in dismissing her claims against the City of Dallas because the City’s sovereign immunity was waived under the Texas Tort Claims Act. The City responds that Brooks failed to preserve any error with respect to the trial court’s ruling because she does not provide any legal authority, substantive analysis, or cites to the record in support of her complaints on appeal. The City further argues dismissal of Brooks’s claims was proper because her claims were barred by governmental immunity. We affirm the trial court’s judgment.

I.

On May 5, 2004, Betty D. Brooks filed suit against the City of Dallas alleging the City neglected to investigate her citizen’s complaints about “over use of sirens, horns, and helicopter fly overs done by the City’s protection units.” Brooks further alleged the City’s negligence “allowed the noise, taunting, and harassment to continue.” Brooks claimed she suffered damages as a result of the City’s negligence including loss of sleep, sudden fear, fear for her life and health, and loss of mental stability. Brooks specified the amount of her damages as $2,500,000.

The City of Dallas responded to Brooks’s claims by filing a general denial and asserting the affirmative defense of governmental immunity. The City later filed a plea to the jurisdiction contending the Texas Tort Claims Act did not waive the City’s governmental immunity from Brooks’s claims and, therefore, Brooks failed to invoke the jurisdiction of the trial court. After a hearing on the plea, the trial court signed an order dismissing Brooks’s claims for want of jurisdiction. Brooks then brought this appeal challenging the trial court’s dismissal.

II.

We first note that, in her brief on appeal, Brooks presents no substantive analysis of the trial court’s dismissal and fails to cite any authority to support her broad contentions of error. Bare assertions of error without argument or citations to authority and the record present nothing for us to review. See Thedford v. Union Oil Co., 3 S.W.3d 609, 615 (Tex. App.-Dallas 1999, pet. denied); Bowles v. Clipp, 920 S.W.2d 752, 761 (Tex.App.-Dallas 1996, writ denied). Because Brooks failed to adequately support her challenges to the trial court’s order, she has failed to present any error for our review.

Even assuming Brooks properly presented error for our review, we conclude the trial court correctly dismissed her claims for want of jurisdiction. Brooks generally argues the trial court erred in dismissing her claims because the Texas Tort Claims Act waives the City’s sovereign immunity. In making this argument, Brooks, who is representing herself pro se, appears to believe the waiver of immunity found in the Tort Claims Act is absolute and applies to all claims against the government. The waiver provision, however, is much more limited in scope. It states:

A governmental unit in the state is liable for:
(1) property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if:
(A) the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and
(B) the employee would be personally liable to the claimant according to Texas law; and
(2) personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.

Tex. Civ. Prac. & Rem. Code Ann. § 101.021 (West 2005). Mere reference to the Tort Claims Act in a petition does not establish the state’s consent to be sued and thus is not enough to confer jurisdiction on the trial court. Tex. Dept. of Criminal Justice v. Miller 51 S.W.3d 583, 587 (Tex.2001). The Tort Claims Act allows suits to be brought against governmental units only in certain, narrowly defined circumstances. See id. In determining whether a plaintiff has invoked jurisdiction, we must consider the terms of the Act and the particular facts of the case to determine whether a plaintiffs claim comes within the scope of the waiver of immunity.

We have examined carefully the facts Brooks alleged to support her claims against the City. We conclude she failed to assert any claim that falls within the Tort Claims Act waiver of sovereign immunity. Accordingly, the trial court properly dismissed her claims for want of jurisdiction.

Brooks also asserts the trial court “obstructed justice and denied due process of law by granting a dismissal.” The record reveals that Brooks received notice of all proceedings in the case and was given an opportunity to be heard. There is no indication the trial court acted in an arbitrary or unreasonable manner at any point. As discussed above, the trial court’s dismissal of Brooks’s claims for want of jurisdiction was proper. We conclude, therefore, that Brooks’s assertions of obstruction of justice and denial of due process is without merit.

We affirm the trial court’s order of dismissal.


author: Justice MAZZANT.

text:
    DALLAS COUNTY, Appellant, v. Rodney WADLEY and Gilbert Strickland, Appellees.
    No. 05-04-00207-CV.
    Court of Appeals of Texas, Dallas.
    Aug. 1, 2005.

      Jana Marie Prigmore, District Attorney’s Office-Civil Div., Dallas, for Appellant.
    Terry Carnes, Law Offices of Terry Carnes, Dallas, for Appellee.
    Before Justices MORRIS, LANG, and MAZZANT.
   OPINION

Opinion by

Justice MAZZANT.

In this case, we must decide whether an overloaded elevator in a Dallas County jail constitutes a premises defect waiving Dallas County’s immunity from suit. See Tex. Civ. PRAC. & Rem.Code Ann. §§ 101.021(2), .022(a) (Vernon 2005). The trial court denied the County’s plea to the jurisdiction, and the County brings this interlocutory appeal. See Tex. Civ. PRAC. & Rem.Code Ann. § 51.014(a)(8) (Vernon Supp.2004-05). The County brings five issues asserting the trial court erred in denying (1-3) the County’s plea to the jurisdiction that asserted the County is immune from suit in this case, (4) the County’s first amended motion to dismiss the suit, and (5) the County’s no-evidence motion for summary judgment. We dismiss the appeal of the denial of the County’s first amended motion to dismiss the suit and the denial of the County’s no-evidence motion for summary judgment, and we affirm the denial of the County’s plea to the jurisdiction.

FACTUAL BACKGROUND

On June 13, 2000, appellees were inmates in Decker Detention Center, one of the County’s jails. A guard put them and fifteen other inmates in an elevator car to move them from the fifth floor to the third floor to use the jail’s recreational facilities. Including the guard, the car contained eighteen men. The elevator had maximum weight capacity of 3000 pounds. Instead of stopping at the third floor, the car fell to the basement, and it took a couple of hours to extricate the men from the elevator car. Appellees alleged they suffered physical injuries in the incident.

Appellees sued the County. Their allegations included that the County’s employees ordered them to ride in an overloaded elevator, failed to warn them that the elevator was overloaded, failed to properly maintain the elevators, and failed to inspect the elevators to determine the load capacity. Included in appellees’ allegations was the following: “In addition, the condition of the elevators created an unreasonable risk of harm to the Plaintiffs], and the Defendant knew of the condition or should have known of the condition. Further pleading, the Plaintiffs] at all times [were] unaware of the dangerous condition.”

APPELLATE JURISDICTION OVER INTERLOCUTORY APPEAL

Before considering the merits of the appeal, we first determine the extent of our jurisdiction over the rulings the County appeals. Appellate courts have jurisdiction to consider appeals of interlocutory orders only if a statute explicitly provides appellate jurisdiction. Stary v. DeBord, 967 S.W.2d 352, 352-53 (Tex.1998). We strictly construe statutes giv ing us jurisdiction over interlocutory appeals. Potter County Attorney’s Office v. Stars & Stripes Sweepstakes, L.L.C., 121 S.W.3d 460, 464 (Tex.App.-Amarillo 2003, no pet.); Am. Online, Inc. v. Williams, 958 S.W.2d 268, 271 (Tex.App.-Houston [14th Dist.] 1997, no writ).

Section 51.014 of the civil practice and remedies code provides, “A person may appeal from an interlocutory order of a district court, county court at law, or county court that: ... (8) grants or denies a plea to the jurisdiction by a governmental unit_” Tex. Civ. PRac. & RemlCode Ann. § 51.014(a)(8). Clearly, we have jurisdiction over the denial of the County’s plea to the jurisdiction. The County asserts we also have jurisdiction under section 51.014(a)(8) to review the denial of its no-evidence summary judgment motion and its first amended motion to dismiss. The County argues we should look beyond the style of the documents to their substance in determining whether they are pleas to the jurisdiction. Having reviewed the substance of those documents, we conclude they are not pleas to the jurisdiction. Although they contain some of the same arguments that appellees’ premises liability claim lacks merit, they contain no assertions or arguments that the trial court lacked subject matter jurisdiction over the cause. Freeman v. Wirecut E.D.M., Inc., 159 S.W.3d 721, 725 (Tex.App.-Dallas 2005, no pet.) (describing plea to jurisdiction as challenge to trial court’s authority to determine subject matter of suit). Accordingly, we conclude we lack jurisdiction to reach the County’s issues concerning these rulings. We dismiss the County’s fourth and fifth issues for want of jurisdiction.

SOVEREIGN IMMUNITY

In Texas, sovereign immunity deprives a trial court of subject matter jurisdiction for lawsuits against the State or other governmental units unless the State consents to suit. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex.2004). The Texas Tort Claims Act provides a limited waiver of sovereign immunity, including immunity to suit. Id.; see Tex. Civ. PRAC. & Rem.Code Ann. § 101.025(a) (Vernon 2005) (“Sovereign immunity to suit is waived and abolished to the extent of liability created by this chapter.”). Thus, the County is immune from suit unless the Tort Claims Act expressly waives immunity. The Tort Claims Act expressly waives sovereign immunity in three areas: property damage and personal injury caused by the use of publicly owned automobiles (section 101.021(1)), personal injury caused by a condition or use of tangible personal or real property (section 101.021(2)), and claims arising out of premises defects (section 101.022). Miranda, 133 S.W.3d at 225. “If a claim arises from a premise defect, the governmental unit owes to the claimant only the duty that a private person owes to a licensee on private property, unless the claimant pays for the use of the premises.” Tex. Civ. Prac. & Rem.Code Ann. § 101.022(a) (Vernon 2005).

PLEA TO THE JURISDICTION

In its first issue, the County generally asserts the trial court erred in denying its plea to the jurisdiction. Whether a court has subject matter jurisdiction is a question of law. Miranda, 133 S.W.3d at 226; Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex.2002). When a plea to the jurisdiction challenges the pleadings, we determine if the pleader has alleged facts that affirmatively demonstrate the court’s jurisdiction to hear the cause. If a plea to the jurisdiction challenges the existence of jurisdictional facts, we consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues raised. Miranda, 133 S.W.3d at 227. If the evidence creates a fact question regarding the jurisdictional issue, then the plea to the jurisdiction must be denied. Id. at 227-28. If the evidence is undisputed or fails to raise a fact question on the jurisdictional issue, then the trial court rules on the plea to the jurisdiction as a matter of law. Id. at 228. This procedure generally mirrors that of a summary judgment under rule of civil procedure 166a(c), and the burden is on the government to meet the summary judgment standard of proof. Id. This standard “protects] the plaintiffs from having to ‘put on their case simply to establish jurisdiction.’ ” Id. (quoting Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000)).

The parties agree that a problem with an elevator could constitute a premises defect. See Univ. of Tex. Medical Branch v. Davidson, 882 S.W.2d 83, 86 (Tex.App.Houston [14th Dist.] 1994, no writ) (citing Triangle Motors v. Richmond, 152 Tex. 354, 258 S.W.2d 60 (1953)). As such, the duty the County owed appellees was that of a landowner to licensees. Tex. Civ. PRAC. & Rem.Code Ann. § 101.022(a).

It is well settled in this State that if the person injured was on the premises as a licensee, the duty that the proprietor or licensor owed him was not to injure him by willful, wanton or gross negligence .... An exception to the general rule is that when the licensor has knowledge of a dangerous condition, and the licensee does not, a duty is owed on the part of the licensor to either warn the licensee or to make the condition reasonably safe.

Wal-Mart Stores, Inc. v. Miller, 102 S.W.3d 706, 709 (Tex.2003) (quoting State v. Tennison, 509 S.W.2d 560, 562 (Tex.1974)).

Appellees alleged the elevator “had a maximum weight capacity of 3,000 pounds,” “[t]he elevator was severely overloaded,” “suddenly and without warning the elevator fell at least four stories to the basement level where it crashed,” and ap-pellees suffered severe back injuries proximately caused by the County’s acts and omissions. Appellees also alleged “the condition of the elevators created an unreasonable risk of harm” to appellees, “the [County] knew of the condition,” and ap-pellees “at all times [were] unaware of the dangerous condition.”

In the second issue, the County asserts the trial court erred in denying the plea to the jurisdiction because an overloaded elevator is not “a dangerous condition” that invokes the County’s duty to appellees as licensees. In support of this argument the County relies on two cases: City of San Antonio v. Rodriguez, 934 S.W.2d 699 (Tex.App.-San Antonio 1995) (Rodriguez I), rev’d per curiam 931 S.W.2d 535 (Tex.1996) (Rodriguez II), and Entex v. Gonzalez, 94 S.W.3d 1 (Tex.App.-Houston [14th Dist.] 2002, pet. denied). In Rodriguez, a community recreation center had a leaking roof, and water accumulated on the gym floor. Rodriguez was playing basketball in the gym when he slipped in a puddle, injuring his knee. Rodriguez I, 934 S.W.2d at 701-02. The court of appeals ruled the jurors could reasonably conclude that the leaking roof was a dangerous condition. Rodriguez I, 934 S.W.2d at 702. The supreme court, however, did not agree. “The leaky roof was not itself a dangerous condition; it could only cause a dangerous condition. The City ... was required only to prevent the water that leaked through the roof from causing a dangerous condition.” Rodriguez II, 931 S.W.2d at 536. Because the case was reversed and remanded for new trial due to other jury charge error, the supreme court stated, “On retrial, the jury should be instructed that the allegedly dangerous condition was the water Rodriguez claims was on the floor.” Id. at 536-37. In Entex, the Gonzalez family had a gas-fired water heater that was not elevated off the floor of the utility room. The Gonzalezes stored gasoline in the utility room. One day, the pilot light of the water heater ignited gasoline fumes, started a fire, and injured the four-year-old daughter. The Gonzalezes sued the gas utility, Entex. Entex, 94 S.W.3d at 4. The court of appeals stated there was “no evidence that an unelevated water heater is itself a dangerous condition, but only that a dangerous condition can be created if flammables are placed near it.” Id. at 7 n. 10.

After setting out the facts and holdings of these cases, the County forgoes further analysis and concludes without explanation, “Thus, an allegedly overloaded elevator is not itself a dangerous condition. It can merely cause a dangerous condition.” We disagree. Like the puddle on the floor of a gymnasium used for basketball with the obvious risk of a participant slipping and thus injuring himself, or the presence of flammable vapors around a flame with the obvious risk of a fire or explosion, an elevator so severely overloaded that it crashes into the basement is, obviously, a “dangerous condition.”

The County also argues the overloaded elevator cannot constitute a premises defect because the elevator was not defective, and the court of appeals in Davidson stated, “the alleged defect in the elevator was a premises defect.” Davidson, 882 S.W.2d at 86. The County asserts no court has held a nondefective or overloaded elevator can constitute a premises defect. The issue, however, is not whether the elevator was defective, but whether the circumstances constituted a dangerous condition. In Rodriguez, the floor was not defective, yet it was a dangerous condition constituting a premises defect because of a circumstance, the presence of water, that made it a dangerous condition. Likewise, in this case, even if the elevator is not defective, the circumstance of overloading the elevator allegedly created a dangerous condition. We overrule the County’s second issue.

We conclude appellees’ petition pleaded a cause of action for premises liability sufficient to invoke the waiver of the County’s immunity from suit under section 101.022 of the Texas Tort Claims Act. We next consider the County’s challenge to the existence of a jurisdictional fact.

In its third issue, the County argues it proved it did not have actual knowledge of the dangerous condition. In support of its plea to the jurisdiction, the County submitted the maintenance records for the County’s elevators. The County asserts the records show the County had no knowledge that elevator number 3 in Decker Detention Center was malfunctioning or that it could drop during transit with a guard and inmates inside. Inherent in this argument is the presumption that the records would show if the elevator had previously dropped during transit with a guard and inmates inside. See Tex.R. Evid. 803(7) (evidence of absence of entry in record to prove nonoccurence of matter if matter would have been recorded). However, that presumption was rebutted by the fact that the records do not show the elevator dropped during transit on June 13, 2000. The records contain no entry for that date. The maintenance log for the next day, June 14, 2000, records only this complaint about Decker Detention Center’s elevator number 3: “elev. stuck in bsmt.” The County does not deny knowledge of the elevator falling to the basement, yet its maintenance logs would not have put it on. notice of the June 13 occurrence. Accordingly; we conclude the maintenance logs do not conclusively establish the County’s lack of knowledge of the potential for the elevator to drop when “severely overloaded.”

The County also argues appellees presented no evidence the County had actual knowledge of the dangerous condition. Appellees, however, had no burden to present evidence of the County’s knowledge until the County had established its lack of knowledge. See Miranda, 133 S.W.3d at 228. As discussed above, the County failed to meet this burden. We overrule the County’s third issue.

We conclude the trial court did not err in denying the County’s plea to the jurisdiction, and we overrule the County’s first issue.

We affirm the trial court’s denial of the County’s plea to the jurisdiction.

      . Paragraph (b) of section 101.022 provides that the limitation does not apply to the duty to warn of special defects. Tex. Civ. Prac. & Rem.Code Ann. § 101.022(b) (Vernon 2005). Appellees did not plead dr argue that the overloaded elevator constituted a special defect.


text:
    HUNTER EXCAVATING, Appellant, v. Gordon BARTRUM; Hon. Irene Steen, Administrative Law Judge; and Workers’ Compensation Board, Appellees.
    No. 2004-SC-0485-WC.
    Supreme Court of Kentucky.
    May 19, 2005.
    Rehearing Denied Aug. 25, 2005.

      Paul E. Jones, Terri Smith Walters, Jones, Walters, Turner & Shelton, PLLC, Pikeville, Counsel for Appellant.
    Thomas W. Moak, Stumbo, Moak & Nunnery, Prestonsburg, Counsel for Ap-pellee.
   OPINION OF THE COURT

As amended effective July 15, 2002, KRS 342.316(3) sets forth a two-step “consensus” procedure for evaluating x-ray evidence of coal workers’ pneumoconiosis. KRS 342.316(13) creates a presumption that a consensus x-ray classification is correct absent clear and convincing evidence to the contrary. Appealing an order that denied his application for benefits, the claimant asserted that KRS 342.316(3) and the accompanying regulations deprived him of a meaningful opportunity to rebut the consensus, thereby violating his right to due process under the constitutions of the United States and Kentucky.

Considering the appeal en banc, a majority of the Court of Appeals determined that the limit the statute and regulations place on the number of x-rays and x-ray reports that may be submitted to rebut a consensus denies the parties’ constitutional right to a fair hearing. A minority was of the opinion that the statute is constitutional but that 803 KAR 25:009, § 3(1) exceeds its statutory authority by prohibiting additional x-rays and reports from being submitted to rebut a consensus. We conclude that KRS 342.316(3) is constitutional but that 803 KAR 25:009, § 3(1) and (2) conflict with KRS 342.316(13) to the extent that they prohibit additional reports of the x-rays that were considered in the consensus process. To that extent, they are void.

The claimant’s last exposure to coal dust was on August 29, 1997. On August 5, 2002, he applied for benefits under the newly-enacted KRS 342.792. He filed with his application an April 8, 2002, x-ray and Dr. Wicker’s report that the x-ray was quality 1 and showed category 1/0 pneumo-coniosis. The employer then had him examined by Dr. Broudy and filed an October 23, 2002, x-ray as well as a report that it was quality 1 and negative. Dr. Brou-dy’s narrative report stated that there was no evidence of pneumoconiosis or chronic lung disease due to inhaling coal dust.

The Commissioner of the Department of Workers’ Claims determined that the reports were not in consensus. The parties’ x-rays were then forwarded to three other “B” readers who were hired by the Department of Workers’ Claims. Dr. Schul-thesis reported that x-ray “L,” taken on October 23, 2002, was negative, and Dr. Coburn reported that x-ray “C,” taken on April 18, 2002, was negative for pneumoco-niosis but revealed osteophytes in the thoracic spine. Dr. Vuskovich interpreted x-ray “L” and classified it as category 1/0. All rated the x-ray they read as being quality grade 1.

The Commissioner certified that there was a consensus. Shortly thereafter, the claimant filed a report from Dr. Patel, a “B” reader who interpreted a June 7, 2001, chest x-ray as being quality 2 and revealing category 1/0 pneumoconiosis. He also filed a July 16, 2001, report of a clinical evaluation by Dr. Rasmussen who appears to have ordered the chest x-ray. Dr. Rasmussen agreed with the diagnosis and reported that there was no evidence of significant lung impairment. The employer deposed Drs. Coburn and Broudy who confirmed their previous findings.

When summarizing the claimant’s evidence, the ALJ stated that the reports from Drs. Rasmussen and Patel were not considered because “the statute does not allow the filing of more than one x-ray by either party.” Noting that the consensus classification was negative and that no party had challenged it within 30 days after the Commissioner’s notice as permitted by 803 KAR 25:009, § 2(7), the ALJ determined that the consensus was presumed to be correct and dismissed the claim.

KRS 342.316 provides, in pertinent part, as follows:

(3) The procedure for filing occupational disease claims shall be as follows:
(a) The application for resolution of claim shall set forth the complete work history of the employee with a concise description of injurious exposure to a specific occupational disease, together with the name and addresses of the employer or employers with the approximate dates of employment. The application shall also include at least one (1) written medical report supporting his claim. This medical report shall be made on the basis of clinical or X-ray examination performed in accordance with accepted medical standards and shall contain full and complete statements of all examinations performed and the results thereof. The report shall be made by a duly-licensed physician. The commissioner shall promulgate administrative regulations which prescribe the format of the medical report required by this section and the manner in which the report shall be completed.
1. For coal-related occupational pneumoconiosis claims, each clinical examination shall include a chest X-ray interpretation by a National Institute of Occupational Safety and Health (NIOSH) certified “B” reader. The chest X-ray upon which the report is made shall be filed with the application as well as spirometric tests when pulmonary dysfunction is alleged.
(b) To be admissible, medical evidence offered in any proceeding under this chapter for determining a claim for occupational pneumoconiosis resulting from exposure to coal dust shall comply with accepted medical standards as follows:
1. Chest X-rays shall be of acceptable quality with respect to exposure and development and shall be indelibly labeled with the date of the X-ray and the name and Social Security number of the claimant. Physicians’ reports of X-ray interpretations shall: identify the claimant by name and Social Security number; include the date of the X-ray and the date of the report; classify the X-ray interpretation using the latest ILO Classification and be accompanied by a completed copy of the latest ILO Classification report. Only Interpretations by National Institute of Occupational Safety and Health (NIOSH) certified “B” readers shall be admissible.
3. The commissioner shall promulgate administrative regulations pursuant to KRS Chapter 13A as necessary to effectuate the purposes of this section ....
4. The procedure for determination of occupational disease claims shall be as follows:
a. Immediately upon receipt of an application for resolution of claim, the commissioner shall notify the responsible employer and all other interested parties and shall furnish them with a full and complete copy of the application.
b. The commissioner shall assign the claim to an administrative law judge....
d. Within forty-five (45) days of assignment of a coal workers’ pneu-moconiosis claim to an administrative law judge, the employer shall cause the employee to be examined by a physician of the employer’s choice and shall provide to all other parties and file with the commissioner the X-ray interpretation by a “B” reader.... The commissioner shall determine whether the X-ray interpretations filed by the parties are in consensus.
e. If the readings are not in consensus, the commissioner shall forward both films, masking information identifying the facility where the X-ray was obtained and the referring physician, consecutively to three (3) “B” readers selected randomly from a list maintained by the commissioner for interpretation. Each “B” reader shall select the highest quality film and report only the interpretation of that film. The commissioner shall determine if two (2) of the X-ray interpretations filed by the three (3) “B” readers selected randomly are in consensus. If consensus is reached, the commissioner shall forward copies of the report to all parties as well as notice of the consensus reading which shall be considered as evidence. If consensus is not reached, the administrative law judge shall decide the claim on the evidence submitted. (emphasis added).
f. “Consensus” is reached between two (2) chest X-ray interpreters when their classifications meet one (1) of the following criteria: each finds either category A, B, or C progressive massive fibrosis; or findings with regard to simple pneumoconiosis are both in the same major category and within one (1) minor category (ILO category twelve (12) point scale) of each other.
g. The administrative law judge shall conduct such proceedings as are necessary to resolve the claim and shall have authority to grant or deny any relief, including interlocutory relief, to order additional proof, to conduct a benefit review conference, or to take such other action as may be appropriate to resolve the claim, (emphasis added).
(13) .... The consensus classification shall be presumed to be the correct classification of the employee’s condition unless overcome by clear and convincing evidence. If an administrative law judge finds that the presumption of correctness of the consensus reading has been overcome, the reasons shall be specially stated in the administrative law judge’s order.

X-rays and x-ray reports must comply with KRS 342.316(3)(b)l. in order to be admissible as evidence. Furthermore, KRS 342.316(3)(a)l. and KRS 342.316(3)(b)4.d. require that parties’ x-ray interpretations be performed by a “B” reader, a term that is defined in KRS 342.794(3). KRS 342.794(1) provides for a list of qualified “B” readers who agree to be hired by the Department under KRS 342.816(3)(b)4.e. to interpret chest x-rays when the parties’ reports are not in consensus. Parties commonly refer to the three randomly-selected “B” readers who consider the x-rays in a given claim as a consensus panel.

Relying on its statutory authority to regulate the practices and procedures for processing workers’ compensation claims, the Department promulgated 803 KAR 25:009 on December 18, 2002. 803 KAR 25:009, § 4(5) provides that if a party challenges a consensus, the ALJ “may allow timely cross-examination of a medical evaluator that participated in the consensus process at the expense of the participating party.” This appeal concerns the validity of 803 KAR 25:009, § 3(1), which prohibits the parties from submitting any x-ray readings in addition to those submitted with the initial application and response, and 803 KAR 25:009, § 3(2), which prohibits an ALJ from considering any x-ray readings but those initially submitted by the parties and the readings of the three neutral experts.

Like the university evaluator procedure that was at issue in Magic Coal Co. v. Fox, 19 S.W.3d 88 (Ky.2000), the apparent purpose of KRS 342.794(1) and the second level of the consensus procedure set forth in KRS 342.316(3)(b)4.e. is to provide the ALJ with additional evidence from three “B” readers who are unbiased. Like KRS 342.315(2), KRS 342.316(13) provides a rebuttable presumption that the unbiased medical opinion is correct, but it adopts the more stringent “clear and convincing evidence” standard for rebuttal. Due process requires a meaningful opportunity to present such evidence. Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976); Jenkins v. McKeithen, 395 U.S. 411, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969); Harlan Bell Coal Co. v. Lemar, 904 F.2d 1042 (6th Cir.1990); Commonwealth v. Raines, 847 S.W.2d 724 (Ky.1993), overruled on other grounds in Commonwealth v. Howard, 969 S.W.2d 700 (Ky.1998). It does not require the opportunity to be unlimited. Eviden-tiary restrictions may be imposed if they are reasonably calculated to advance a legitimate interest of the tribunal and do not unduly burden the interests of the parties. Mathews v. Eldridge, supra; Jenkins v. McKeithen, supra. Consistent with its statutory authority, the Department of Workers’ Claims has a legitimate interest in the orderly and efficient processing of claims and in limiting the introduction of evidence that is no more than cumulative.

KRS 342.316 and KRS 342.732 require the presence of coal workers’ pneumoconi-osis to be proven with x-ray evidence. At the first level of the consensus process, each party submits evidence of the worker’s condition in the form of a chest x-ray and a report stating what it reveals. Only the x-rays submitted at the first level of the process are considered by the panel at the second level. A consensus panel’s charge under KRS 342.316(3)(b)4.e. is to review the x-rays in evidence, to choose the highest quality x-ray, and to interpret it. Stated otherwise, the question before the panel is: “What does the highest quality x-ray in evidence show?” For that reason, additional reports addressing the x-rays the panel considered could rebut a consensus classification if sufficiently persuasive, but reports of additional x-rays the panel did not consider could not.

We are aware of nothing in KRS 342.316(3) that prevents a party from introducing the type of evidence that will rebut a consensus classification. In fact, KRS 342.316(3)(b)4.g. gives an ALJ broad discretion “to order additional proof ... or to take such other action as may be appropriate to resolve [a] claim.” We conclude, therefore, that KRS 342.316(3) does not deny parties a meaningful opportunity to rebut a consensus and that it is constitutional. In contrast. 803 KAR 25:009, § 3(1) and (2) defeat the purpose of KRS 342.316(13) and KRS 342.316(3)(b)4.g. by prohibiting a party from submitting additional reports of the x-rays the panel evaluated and prohibiting an ALJ from considering such reports. Therefore, they exceed the Department’s authority to promulgate regulations and are invalid. United Sign, Ltd. v. Commonwealth, Transportation Cabinet, Dept. of Highways, 44 S.W.3d 794, 798 (Ky.App.2000); Kentucky Alcoholic Beverage Control Board v. Anheuser-Busch, Inc., 574 S.W.2d 344, 345 (Ky.App.1978).

The decision of the Court of Appeals is affirmed in part and reversed in part, and the claim is hereby remanded to an ALJ for further proceedings that are consistent with this opinion.

All concur.

      . The Court of Appeals' majority was concerned that because KRS 342.316(3)(a) states "at least one” medical report, it might imply that a worker could submit more than one x-ray report but that the employer was limited by KRS 342.316(3)(b)4.d. to one such report. A more reasonable interpretation is that at least an x-ray report is required but that the report of a clinical evaluation with spirometry may also be submitted if pulmonary impairment is alleged. See KRS 342.316(3)(a)l., which permits spirometric tests to be filed when pulmonary impairment is alleged; see also KRS 342.316(3)(b)4.d., which directs the employer to include spirometry in its examination if pulmonary impairment is alleged. The two types of evaluations commonly are performed by different physicians and reported separately.


author: EMBERTON, Chief Judge.

text:
    AMERICAN COMMERCE INSURANCE COMPANY, Appellant, v. Paula BROWN, as Personal Representative of the Estate of Jeremy Brown; William Brown; Robert Belflowers; Justin Brown and Paula Brown, Appellees.
    No. 2003-CA-000547-MR.
    Court of Appeals of Kentucky.
    May 14, 2004.
    Rehearing Denied Nov. 3, 2004.
    Discretionary Review Denied by Supreme Court Aug. 17, 2005.

      Douglas W. Becker, Clarence A. Wilbon, Wyatt, Tarrant & Combs, LLP, Louisville, KY, for appellant.
    Keith A. Sparks, McCoy & Sparks, Bardstown, KY, for appellees.
    Before EMBERTON, Chief Judge; BUCKINGHAM and VANMETER, Judges.
   OPINION

EMBERTON, Chief Judge.

This case involves the interpretation of the tern “domestic employee,” as used in a homeowners’ insurance policy issued by American Commerce Insurance Company to Robert and Elaine Belflowers. Jeremy Brown, a neighbor to the Belflowerses, was killed after volunteering to help them move a piano. The circuit court held that Brown was a domestic employee, and therefore, covered under the policy. We are unable to agree with the court’s interpretation of the term domestic employee, and therefore reverse.

The Belflowerses and their neighbors, William and Paula Brown, had a close relationship and often helped each other with domestic chores. In early 2000, the Belflowerses were in the process of remodeling their home, and in preparation it became necessary to move a piano out of the house and into a backyard shed.

Robert asked for Jeremy Brown’s help in moving the piano. While it was being loaded onto Robert’s pickup truck, Paula, Jeremy’s mother, arrived and began assisting with the loading, after which it was transported to the shed. Paula suggested that she get William and Justin, another son, to help with the unloading. Upon William’s arrival, he and Robert discussed the unloading and decided it better to unload the piano onto the front porch of the shed. Justin testified that William instructed him to drive the truck to the front of the shed. Jeremy then got into the bed of the truck with the piano. As Justin was driving the truck the piano shifted and Jeremy either jumped from the truck or was pushed out by the piano. In either event, he fell to the ground and immediately the piano fell on him resulting in his death.

The Belflowerses’ homeowners’ insurance policy provides that there is no coverage for injuries arising out of the use of a motor vehicle except for injuries to domestic employees. Specifically, the policy states that it does not apply to:

“bodily injury” or “property damage” which results from the ownership, operation, maintenance, use, occupancy, renting, loaning, entrusting, supervision, loading or unloading of “motorized vehicles,” trailers or watercraft owned or operated by or rented or loaned to an “insured.” However, “we” do pay:
1) for “bodily injury” to a person in the course of performing duties as a “domestic employee.”

Domestic employee is defined as:

“Domestic employee” means a person employed by an “insured” to perform duties that relate to the use and care of the “insured premises.” This includes a person who performs duties of a similar nature elsewhere for an insured. This does not include a person while performing duties in connection with the “business” of an “insured.”

The circuit court held that the policy was ambiguous. However, in construing its provisions favorably to the insured, Jeremy was held to be a domestic employee at the time of his fatal injury.

The standard of review of a summary judgment is “whether the trial court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law.” The law applicable to interpretation of an insurance contract is concisely stated that:

As a general rule, interpretation of an insurance contract is a matter of law for the court. While ambiguous terms are to be construed against the drafter and in favor of the insured, we must also give the policy a reasonable interpretation, and there is no requirement that every doubt be resolved against the insurer. Finally, the terms should be interpreted in light of the usage and understanding of the average person (Citations omitted.) (Emphasis ours.)

We do not find anything ambiguous about the term domestic employee. In common everyday usage, “employee” denotes that there is a master servant relationship. Although whether a person received compensation for his service is not necessarily determinative of the existence of the relationship, it is a proper element to be considered. In Pennsylvania Casualty Co., supra, applying Kentucky law, the court explained the applicable test:

The test as to the existence of the relationship is whether there is an understanding between the parties that one is to render personal service to or for the benefit of the other, and recognition by them of the right of one, the employer or master, to order and control the other, the employee or servant, in the performance of the work and to direct the manner and method of its performance.

There is no one fact or circumstance that is conclusive as to whether the master servant relationship exists; however, the right to direct what work shall be done and the manner it shall be done and the power to discharge the alleged employee from service are the most prominent factors.

The facts reveal that the families were neighborly with one another, often helping each other with the daily tasks of family life. The tragic day of Jeremy’s death was no different. It was a joint effort to move the piano, and although the Belflowerses directed the destination of the piano, they had no right to control Jeremy’s actions nor could they discharge him. The neighborly offer of help by the Browns had a tragic ending; Jeremy, however, was no more an employee of the Belflowerses than any neighbor or friend would be who assisted another in carrying in groceries, opening a door, walking the family pet, or performing other gratuitous acts.

The summary judgment is reversed and this case is remanded for entry of a judgment consistent with this opinion.

ALL CONCUR.

      . Scifres v. Kraft, Ky.App., 916 S.W.2d 779, 781 (1996).

        . Stone v. Kentucky Farm Bureau Mutual Insurance Company, Ky.App., 34 S.W.3d 809, 810-11 (2000).

      . See Pennsylvania Casualty Co. v. Elkins, 70 F.Supp. 155 (D.C.Ky.(1947)).

      . W.H. Neill Co. v. Rumpf, 148 Ky. 810, 147 S.W. 910 (1912).

      . Pennsylvania Casualty, at 158.

      . Mahan v. Litton, Ky., 321 S.W.2d 243, 245 (1959).


author: COMBS, Chief Judge.

text:
    Charles CLEPHAS and Barbara Clephas, Appellants, v. GARLOCK, INC., Appellee.
    No. 2003-CA-001276-MR.
    Court of Appeals of Kentucky.
    July 30, 2004.
    Rehearing Denied Sept. 20, 2004.
    Discretionary Review Denied by Supreme Court Aug. 17, 2005.

      Kenneth L. Sales, Joseph D. Satterley, Louisville, KY, for appellants.
    John K. Gordinier, Berlin Tsai, Louisville, KY, for appellee.
    Before COMBS, Chief Judge; DYCHE, Judge; and EMBERTON, Senior Judge.

      . Senior Judge Thomas Emberton sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.

   OPINION

COMBS, Chief Judge.

Charles Clephas and his wife, Barbara Clephas, appeal the judgment of the Jefferson Circuit Court based on a jury verdict in favor of the appellee, Garlock, Inc., a manufacturer of asbestos products. The Clephases challenge the ruling of the trial court not to exclude the opinion testimony offered by Garlock’s two expert witnesses, Dr. Robert Sawyer and Donna Ringo.

The appellants contend that they did not receive a fair trial because the court denied their motion to exclude from evidence the opinions of Dr. Sawyer, which were not provided in Garlock’s pre-trial disclosures pursuant to CR 26.02(4). They argue that Ringo’s testimony should have been excluded for failing to meet the requisite criteria for reliability set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and adopted in Mitchell v. Commonwealth, Ky., 908 S.W.2d 100 (1995), overruled in part on other grounds by Fugate v. Commonwealth, Ky., 993 S.W.2d 931 (1999). After a careful review of the record, we agree that the trial court erred in allowing Dr. Sawyer to testify as to his medical opinions regarding Charles’s physical condition that were not made available to appellants prior to trial as mandated by the rules of discovery. Therefore, we vacate and remand.

In 1993, the Clephases filed a complaint alleging that Charles, a pipefitter, had contracted asbestos-related diseases as a result of his occupational exposure to gaskets manufactured by Garlock. On August 8, 2000, the trial court entered a Master Order which provided as follows:

3. Expert Witnesses. Parties shall designate in writing any expert witnesses and provide copies of any report(s) made by such witnesses.
a. Disclosure deadline.
Plaintiffs shall disclose their expert witnesses and provide any reports no later than 150 days before trial. Defendants shall complete any independent medical examinations of the plaintiff, disclose their expert witnesses, and provide any reports no later than 105 days before trial. (Emphasis in original.)

The depilases’ ease was scheduled for trial on April 8, 2003. On February 13, 2003 — well after the 105-day deadline— Garlock filed its response to the Clephas-es’ interrogatories seeking the identity of the experts Garlock intended to call and them expected testimony. The disclosure contained the following information concerning Dr. Sawyer, a medical doctor and consultant in occupational medicine, and Ringo, an industrial hygienist.

ROBERT SAWYER, M.D.
Dr. Sawyer may testify, in general, concerning asbestos-related disease and the effects of exposure to asbestos upon persons in occupational settings, including the epidemiology of asbestos-related diseases and the criteria for diagnosis of an asbestos-related disease.
He may also testify regarding the existence or non-existence of any asbestos-related disease in the plaintiffs, including, but not limited to pleural changes, asbestosis, lung cancer, mesothelioma, laryngeal cancer, esophageal cancer and stomach cancer.
He may also testify on whether any asbestos-related disease allegedly suffered by plaintiffs was medically or proximately caused by exposure to asbestos-containing gasket and packing products. He may also testify on the existence of a dose response relationship between exposure and asbestos-related disease.
He may also testify on increased risk of cancer issues and whether a particular plaintiff has a reasonable fear of cancer due to exposure to asbestos. He may also testify on the health consequences of smoking.
With respect to particular plaintiffs, he may testify as to review and interpretation of x-ray films, review and interpretation of pulmonary function testing, the nature and extent of any impairment or disability, whether the condition is progressive and whether other disease or conditions are present in plaintiffs.
Dr. Sawyer’s testimony will be based on his training, experience, education and review of the medical literature concerning asbestos-related disease.
DONNA M. RINGO, C.I.H.
Ms. Ringo is a Certified Industrial Hygienist. She may give testimony regarding the level of fiber release, if any, from gasket and packing products in the occupational setting. She may testify regarding threshold limit values and permissible exposure levels as promulgated by private organizations and government agencies. She may testify as to work practices regarding various types of occupations using products that contained asbestos. She may testify as to the applicability of the OSHA and EPA’s guidelines as they relate to various types of products including gaskets and packings. She may testify as to the exposure that may result from the use of other types of asbestos products
She may complete asbestos exposure assessments on individual plaintiffs.

After receiving this information, the Cle-phases requested that Garlock disclose the experts’ opinions that specifically addressed Charles’s medical condition and/or his working environment. They also sought times and dates to depose the experts. Garlock failed to provide any further information; the Clephases were required to file a motion to compel Garlock to produce its expert witnesses for deposition. On March 4, 2003, with trial a month away, the court ordered Garlock to produce its expert witnesses for deposition within twenty days. Following the entry of that order, the Clephases were able to take Ringo’s deposition; however, Dr. Sawyer was never made available for deposition.

At trial, the appellants moved for the exclusion of Dr. Sawyer’s opinions that had not been previously disclosed to them. They argued that the exclusion of the expert’s opinions was warranted because: (1) Garlock’s CR 26.02(4)(a)(i) disclosure was vague and lacked any substantive opinions directly regarding Charles and (2) they were denied the opportunity to learn of his opinions by deposition in violation of the court’s order compelling such discovery.

The trial judge (different from the judge who had presided over the discovery phase) denied the motion and permitted Dr. Sawyer to testify without restriction. Dr. Sawyer’s opinions included his diagnosis of Charles’s physical condition as well as his opinion on causation. Although none of this material had ever been disclosed to the Clephases, Dr. Sawyer nonetheless was permitted to relate his expert opinions to the jury. Contrary to the medical opinions expressed by Charles’s treating physician, Dr. Sawyer testified that in his opinion, Charles did not suffer from asbestosis. He further testified that after reviewing the results of pulmonary functions tests, he believed that Charles had some “mild” obstructive disease due to asthma and smoking cigarettes but that he had no condition caused by exposure to asbestos.

On cross-examination, Dr. Sawyer testified that his review of x-rays formed the basis of his opinion that Charles had no asbestos-related disease. He admitted that he had seen those x-rays for the first time the previous evening and that he had not formed an opinion with respect to his medical diagnosis until the very morning on which he testified.

The Clephases also asked the trial court to exclude the testimony of Donna Ringo in its entirety, arguing that her opinions were neither relevant nor reliable. Following a Daubert hearing, the trial court initially agreed with the Clephases and ruled her testimony inadmissible. However, after listening to her avowal testimony, the court changed its ruling and permitted the jury to hear her opinions. Ringo testified that the amount of fibers released when removing gaskets containing asbestos from pipes was no greater than that found in the air in general.

The jury returned its verdict absolving Garlock of any liability to the Clephases. After a final judgment was entered, the Clephases moved for a new trial. The motion was overruled on June 11, 2003. This appeal followed.

The Clephases argue that the trial court abused its discretion in allowing Dr. Sawyer to testify to opinions not disclosed to them prior to trial. They object to the fact that the information contained in Gar-lock’s CR 26.02(4)(a) disclosure was wholly generic in nature; that it failed to mention Charles directly or his condition with any specificity; and that it failed to satisfy the requirements of the discovery rule. They contend that exclusion of the expert’s opinions was required because of Garlock’s failure to produce Dr. Sawyer for deposition in clear violation of the order of the trial court. The overall impact of the court’s refusal to exclude the evidence “resulted in an inherently unfair ‘trial by surprise’.” (Appellants’ reply brief, p. 3).

In response, Garlock disputes as untrue the Clephases’ complaint that they were unable to depose Dr. Sawyer. Garlock claims that it did provide the Clephases with two dates during the week prior to trial (April 1 and April 3) on which to take a telephonic deposition of Dr. Sawyer. It also contends that the Clephases’ attorney was “very familiar with Dr. Sawyer’s testimony” and that he had “deposed and cross-examined Dr. Sawyer on numerous occasions before.” (Appellee’s brief, p. 9.) Garlock does not cite to the record in making these assertions. Furthermore, our review of the record reveals no eviden-tiary support for these representations. In their reply brief, the Clephases’ attorney denied that Dr. Sawyer was ever made available for deposition at any time before trial (telephonieally or otherwise); he added that he had never deposed the doctor.

Our standard of review of a trial court’s ruling as to admitting or excluding evidence is limited to determining whether the trial court abused its discretion. Goodyear Tire and Rubber Co. v. Thompson, Ky., 11 S.W.3d 575, 577 (2000).

The test for abuse of discretion is whether the trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.

Id., at 581, citing Commonwealth v. English, Ky., 993 S.W.2d 941, 945 (1999). Under the circumstances presented in this case, we conclude that the court’s admission of Dr. Sawyer’s previously unrevealed opinions did indeed result in an unfair proceeding and that, therefore, it constituted an abuse of discretion.

Our civil rules provide for a liberal discovery process. Case law has repeatedly reinforced the policy underlying pretrial discovery, holding that it:

simplifies and clarifies the issues in a case; eliminates or significantly reduces the element of surprise; helps to achieve a balanced search for the truth, which in turn helps to ensure that trials are fair; and encourages the settlement of cases.

LaFleur v. Shoney’s, Inc., Ky., 83 S.W.3d 474, 478 (2002); see also, Commonwealth, Dept. of Highways v. Frank Fehr Brewing Company, Ky., 376 S.W.2d 541 (1964).

CR 26.02(4), the rule governing disclosure of expert witnesses, provides as follows:

Trial Preparation: Experts. Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of paragraph (1) of this rule and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows:
(a)(i) A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.

It is apparent that Garlock’s disclosure relating to Dr. Sawyer did not comply with either the letter or the spirit of our discovery rules. Dr. Sawyer acknowledged that he had no opinions about Charles Cle-phas’s medical condition at the time Gar-lock made its CR 26.02(4)(a) disclosure identifying him as an expert witness in this case. After Garlock revealed his identity, Dr. Sawyer did not receive any information to review about Charles until the middle of March 2003. It was not until the evening before his trial appearance that he first examined the x-rays of Charles’s lungs. Dr. Sawyer acknowledged that he did not formulate a medical opinion relating to Charles’s physical condition and/or its causation until a few hours before his trial testimony.

A generalized statement outlining a broad subject matter about which an expert may testify does not sufficiently apprise the other party of the information needed to prepare for trial as contemplated and mandated by the notice requirements of CR 26.02(4)(a). The discovery of the substance of an expert witness’s expected testimony is essential to trial preparation. In this case, Garlock’s persistent pattern of noncompliance with discovery orders undoubtedly resulted in prejudice to the Clephases. Garlock failed to produce its expert for deposition although ordered to do so; additionally, Garlock waited until the trial had commenced before providing its expert with the materials necessary for him to evaluate in order to form an opinion. Shoddy trial tactics cannot be tolerated in blatant violation of the “rules of the game.” See, Charash v. Johnson, Ky.App., 43 S.W.3d 274 (2000); and Jefferson v. Davis, 131 F.R.D. 522, 524, (N.D.Ill.1990), in which the court observed that inadequate discovery (similar to that involved in the case before us) “produces in acute form the very evils that discovery has been created to prevent.” We conclude that the trial court erred in admitting Dr. Sawyer’s undisclosed opinions.

The Clephases also argue that the trial court erred in admitting Ringo’s testimony. As an industrial hygienist, Ringo monitors the levels of hazardous substances in workplace environments to insure compliance with the standards set by OSHA and other government agencies. Her work has also included conducting surveys to determine the amount of asbestos fibers released under controlled conditions.

The Clephases argue that Ringo’s studies were not relevant because they were not performed under conditions substantially similar to those which resulted in Charles’s exposure to asbestos during his long career as a pipefitter. They also contend that her surveys were not reliable pursuant to the criteria set out in Daubert, supra; ie., the studies on which she based her opinions were not published, and they had not been subject to peer review. Additionally, Ringo could point to no published articles in the scientific community recognizing or indicating acceptance of her methodology: wetting the asbestos material before testing the amount of fibers released.

This issue also is reviewed under the standard of abuse of discretion. Toyota Motor Corporation v. Gregory, Ky., 136 S.W.3d 35 (2004). The issue of reliability of the evidence was not a clear matter and really was a rather close call. It is evident from the trial court’s conflicting rulings that it labored in performing its gate-keeping function. After conducting a Daubert hearing, the court initially ruled to exclude Ringo’s testimony because her studies had not been conducted under conditions that were substantively similar to those experienced by Charles. It then reversed itself and permitted Ringo to testify. Although they were not performed under conditions which simulated those experienced by Charles, Ringo’s surveys and studies were relevant to Garlock’s defense that its product was not hazardous. The trial court reasoned that any difference between Charles’s particular work environment and the milieu where Ringo’s studies were conducted properly pertained to the weight to be given to her testimony rather than its admissibility. Because many of the criteria set forth in Daubert were absent, the court would have been well within its discretion even if it had adhered to its initial ruling excluding Ringo’s testimony. Nevertheless, the criteria are neither indispensable nor exhaustive. Id. Rather, “the test for reliability is flexible.” Johnson v. Commonwealth, Ky., 12 S.W.3d 258, 264 (1999). Thus, we are not persuaded that the trial court abused its discretion in its ultimate decision to admit Ringo’s testimony.

In summary, we hold that the trial court abused its discretion only in its admission of the undisclosed medical and causation opinions of Dr. Sawyer. Because his opinions seriously undermined the opinions expressed by the Clephases’ expert, we hold that the error was sufficiently prejudicial to entitle them to a new trial. On remand, the trial court will retain the discretion to decide once again the issue of whether to admit or to exclude Ringo’s testimony.

The judgment of the Jefferson Circuit Court is vacated, and this matter is remanded for further proceedings consistent with this opinion.

ALL CONCUR.

      . Kentucky Rules of Civil Procedure.


author: MINTON, Judge.

text:
    Glendon PHELPS and Joyce Phelps, Appellants, v. WEHR CONSTRUCTORS, INC.; Jewish Hospital Healthcare Services, Inc.; Realm, Inc.; Geoghegan Corp.; R.B. Banta Co., Inc.; and Klarer Construction Co., Appellees.
    No. 2003-CA-001262-MR.
    Court of Appeals of Kentucky.
    Oct. 22, 2004.
    Rehearing Denied Dec. 21, 2004.
    Discretionary Review Denied by Supreme Court Aug. 17, 2005.
    Kenneth L. Sales, Paul J. Kelley, Louisville, KY, for appellant.

      John A. Sheffer, Christopher T. Coburn, Louisville, KY, for appellee.
    Before MINTON, SCHRODER, and TAYLOR, Judges.
   OPINION

MINTON, Judge.

If a plaintiff satisfies certain conditions, Kentucky’s relation back rule preserves an amended complaint from a defendant’s statute of limitations defense by treating the amendment as if it had been filed at the time of the original pleading. One of the prerequisites is that a defendant added after the statute of limitations has run must have known or had reason to know that, but for a mistake concerning the identity of the proper parties, the action would have been brought originally against him. Glendon and Joyce Phelps invoked the mistake provision when they amended their complaint to make a personal injury claim against Wehr Constructors well after the limitations period had expired. Responding to Wehr’s statute of limitations defense, the Phelpses asserted that although they notified Wehr by letter of a potential claim, their mistake was that they did not name Wehr in the original complaint because it was through discovery that they had enough facts to sue Wehr. We must decide whether a plaintiffs lack of knowledge of the new defendant’s potential liability is the sort of mistake correctable by the relation back rule. We hold that it is not, and we affirm the trial court’s summary judgment.

Glendon Phelps developed a harmful infection following exposure to infectious As-pergillus fungus which he claims happened while he was hospitalized in September 1995. Wehr was doing remodeling work at the same hospital at that time. On August 22,1996, the Phelpses sued the hospital for negligence. On September 5, 1996, the Phelpses’ lawyer wrote a letter to Wehr’s president stating

[W]hile we do not believe that you are [an] appropriate defendant at this time, we have some information to indicate that in the future you may be an appropriate defendant in this case and therefore, we are providing you with a copy of the [c]omplaint to place you on notice of the pendency of the action so that you may protect your interest should we desire to add you as a party at a later date.

Fourteen months after filing suit against the hospital, the Phelpses amended their complaint adding Wehr as a defendant. They alleged that between September 16, 1995, and December 1995, Glendon Phelps was exposed to a fungus made airborne along with dirt and other contaminates by Wehr’s work at the hospital. The trial court found, and no one disputes, that the amended complaint named Wehr more than two years after the alleged date of injury. Unless saved by CR 15.03 relating the amendment back to the date of the filing of the original complaint, the claim against Wehr was untimely and barred by the one-year statute of limitations. The Phelpses argued that when they filed the original complaint against the hospital, they did not have enough facts to state a claim against Wehr. In deciding that the amended complaint did not relate back, the circuit court stated:

The court does acknowledge that the amended complaint against Wehr meets the first two prongs of CR 15.03, but does not meet the “mistake” section of CR 15.03(2)(b). The amended complaint certainly relates back to the basic claim set forth against [the hospital] since the facts arise out of the same transaction or occurrence that the Phelps’ [sic] are alleging against [the hospital]. Moreover, Wehr was put on notice within the statute of limitations period that it could be named as a potential party to the action. ... Further, it is relevant to note that the [c]ourt does not believe that Wehr would be prejudiced in maintaining a defense against the Plaintiffs [sic] in this action as it had been named in numerous other complaints with similarly situated Plaintiffs [sic]. However, the problem arises under CR 15.03(2)(b).

On appeal, there is no genuine issue of material fact in dispute. This court’s review of a summary judgment is de novo And the precise legal question before us is whether the mistake provision contained in CR 15.03(2)(b) saves the Phelpses’ claim against Wehr.

CR 15.03, Relation Back of Amendments, provides in pertinent part as follows:

(1) Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading.
(2) An amendment changing the party against whom a claim is asserted relates back if the condition of paragraph (1) is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by amendment (a) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (b) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.

This rule reflects the tension between the plaintiffs interest in relation back to preserve the plaintiffs claim and the defendant’s interest in a limitations defense-timely notice and repose. In order to maintain a proper balance between these competing interests, if a new party is to be added after the limitations period has run, then all three requirements of CR 15.03 must be strictly construed.

The trial court concluded that the Phelpses had satisfied CR 15.03(1) and (2)(a). Neither side contests this on appeal. Since the letter of September 5, 1996, undeniably alerted Wehr not only to the pendency of the action, but also to the possibility that Wehr could find itself drawn into the action at some point, the Phelpses argue that for policy reasons, the section (2)(a) notice should overshadow the remaining requirement of the rule. Admittedly, there is some support for the policy underneath the Phelpses’ notice argument as seen in a series of cases from different panels of this court dealing with imputed notice. But the additional notice requirement in section (2)(b) cannot be read out of the rule. “The condition that an added defendant not only must have known about the suit within the normal period for service of process, but also must have had reason to know that he escaped suit only because of a mistake, minimizes the possibility that the application of the Rule will disturb any truly legitimate sense of repose.

The Phelpses do acknowledge that the mistake provision in section (2)(b) must also be satisfied, but they urge us to define mistake to include “[mistake] as to a proper party against which to file a suit.” But the purpose of the rule was not to allow for correction of this type of mistake. “The requirement that a new defendant ‘knew1 he was not named due to a mistake concerning identity presupposes that in fact the reason for his not being named was a mistake in identity.” Certainly,

Nothing in the Rule or in the [Advisory Committee] Notes indicates that the provision applies to a plaintiff who was fully aware of the potential defendant’s identity but not of its responsibility for the harm alleged. In fact, the Notes speak of a defendant that may properly be added under Rule 15(c) as an ‘intended defendant,’ and of an amendment pursuant to the Rule as ‘a name-correcting amendment.’

The Phelpses’ failure to include Wehr occurred because of a lack of knowledge of Wehr’s potential liability, not because of a misnomer or misidentification. We do not read the word “mistake” in CR 15.03(2)(b) to include a lack of knowledge. For purposes of CR 15.03(2)(b), ignorance does not equate to misnomer or misidenti-fication.

Accordingly, we affirm the trial court’s ruling refusing relation back and granting summary judgment.

ALL CONCUR.

      . Kentucky Rules of Civil Procedure.

      . Kentucky Revised Statutes (KRS) 413.140(l)(a).

      . Steelvest, Inc. v. Scansteel Service Ctr., Inc., Ky., 807 S.W.2d 476 (1991).

      . See Reese v. General American Door Company, Ky.App., 6 S.W.3d 380, 383 (1998).

      . Id. at 382.

      . 19 Wright, Miller & Cooper, Federal Practice & Procedure § 4509, at 274 (2d ed.1996)[discussing the interplay between the Federal Rules of Civil Procedure and state substantive rights as seen in the application of Fed.R.Civ.P. 15(c), which is substantially the same as Kentucky's CR 15.03].

      . Appellant’s Brief, p. 6.

      . Cornwell v. Robinson, 23 F.3d 694, 705 (2nd Cir.1994).

      . Rendall-Speranza v. Nassim, 107 F.3d 913, 918 (D.C.Cir.1997).

      . See Wayne v. Jarvis, 197 F.3d 1098, 1102-04 (11th Cir.1999).