author: MINTON, Judge.

text:
    FLAG DRILLING COMPANY, INC., Appellant, v. ERCO, INC., and Commonwealth of Kentucky, Revenue Cabinet, Appellees.
    Nos. 2003-CA-002244-MR, 2003-CA-002521-MR.
    Court of Appeals of Kentucky.
    Jan. 28, 2005.

      Daniel N. Thomas, Hopkinsville, KY, for Appellant.
    John E. Swain, Jr., Hopkinsville, KY, for Appellee Commonwealth of Kentucky, Revenue Cabinet.
    Before COMBS, Chief Judge; JOHNSON and MINTON, Judges.
   OPINION

MINTON, Judge.

Unpaid property tax bills may be sold by the county sheriff to become certificates of delinquency in the hands of the purchaser. The holder of a certificate of delinquency may, after a one-year period, institute a collection action or a tax lien foreclosure action, or both, against the delinquent taxpayer. Between 1995 and 2000, Erco, Inc. failed to pay property taxes; and its delinquent tax bills were sold. Flag Drilling Company, Inc., one of the owners of Erco’s certificates of delinquency, filed suit in the circuit court to recover the amount of certificates it had purchased and to foreclose the tax liens associated with the certificates. Following a judicial sale of the assessed property, the circuit court awarded Flag Drilling the principal amount of its certificate and interest. But the court declined to award attorney’s fees. Flag Drilling 'appeals, claiming that it is due attorney’s fees under KRS 134.420(1) and KRS 134.490 or, alternatively, under KRS 421.070, the codification of the common fund doctrine and the substantial benefit principle. Because we believe Flag Drilling’s reliance on KRS 134.420(1) is proper and that it should have recovered reasonable attorney’s fees, we reverse, in part, and remand.

In 1990 Erco, a Kentucky corporation, became the owner of 122 acres in Christian County that it used primarily for oil and gas production. The county annually assessed ad valorem property taxes against Erco for state, county, school taxes, and special taxing district assessments based upon the value of the oil and gas production and the real estate. In 1997, the Kentucky Revenue Cabinet filed a state tax lien affecting Erco’s real property for its failure to file state corporate income and state license taxes. About that same time, Erco also fell behind in its property tax payments. As authorized by KRS 134.450, the Christian County Sheriff offered those delinquent property tax claims for sale to the public.

On November 17, 1999, Kelly Williams, the president of Flag Drilling Company, Inc., bought one of the delinquent tax claims. He later assigned his ownership of this certificate to Flag Drilling. Flag Drilling itself bought another delinquent tax claim in its own name on May 16, 2000. The total of the two certificates of delinquency at the time of payoff was $784.97.

On February 11, 2003, Flag Drilling filed suit in circuit court to recover on its certificates of delinquency, with interest, and to enforce the tax hens on the Erco property. The company also requested attorneys fees under KRS 134.420(1). Flag Drilling’s complaint also named other lienholders, Christian County, Kentucky, and the Commonwealth of Kentucky, Revenue Cabinet as defendants.

The Revenue Cabinet filed an answer and cross-claim to Flag Drilling’s complaint asserting its lien rights against Erco’s property. The cross-claim stated that Erco owed the Revenue Cabinet $69,230.36 as of March 8, 2003, plus additional interest thereafter.

After Erco filed its answer, Flag Drilling moved for summary judgment. But before its motion could be heard, Jeffery Major, another private individual owning a certificate of delinquency for Erco’s tax claims, moved to intervene to assert a cross-claim under his own certificate of delinquency. On April 16, 2003, the court allowed Major to intervene to assert his cross-claim.

Three months later, judgment was entered awarding Flag Drilling $784.97 for its certificates of delinquency, along with court costs in the amount of $157.76. The Revenue Cabinet was awarded judgment in the sum of $69,718.58. The court ordered that Erco’s interest in the 122-acre tract be sold at a judicial sale to satisfy the judgments. The parties were directed to file proof of claims and objections prior to the sale.

Thereafter, Flag Drilling filed a claim for reimbursement of its attorney’s fees and Erco objected. Specifically, Erco claimed that Flag Drilling’s reliance on KRS 134.420(1) was misplaced. On September 18, 2003, an order was entered denying Fiag Drilling’s claims to reimbursement and providing judgment for Major in the amount of $1,588.94. The property was ordered to be sold by a special commissioner of the circuit court. Flag Drilling then filed its first Notice of Appeal.

Approximately one month later, the commissioner made his report of sale. The report stated that Kelly Williams had purchased the property for $87,000. After payment of the commissioner’s fee and the costs associated with the sale, the total amount remaining in the hands of the commissioner to satisfy the judgment against Erco was $84,220.84. Since this amount was more than enough to satisfy the judgment debt owed- to Flag Drilling, Major, and the Revenue Cabinet, Erco was to be awarded the surplus.

On November 5, 2003, the court entered an order confirming the commissioner’s report of sale. The commissioner was ordered to execute and deliver a deed to the property to Williams. In response to this order, Flag Drilling filed a second Notice of Appeal. On January 8, 2004, the two appeals were consolidated.

Flag Drilling makes three arguments: first that the trial court erroneously denied its claim for reimbursement of attorney’s fees; second, that the trial court erroneously awarded the Revenue Cabinet $69,230.76 “based only upon annual estimates of taxes due the Cabinet, which were arbitrary and speculative”; and third that the provisions of KRS 426.705 requiring a purchaser of property to pay interest at 12 percent per annum from the date of purchase until the deed is transferred violates sections 2, 3, 27, and 28 of the Kentucky Constitution and'conflicts with CR 53.

■ We acknowledge that Erco, one of the appellees in this consolidated appeal, did not file a brief. Flag Drilling argues that this failure automatically sustains its positions with regard to its first and third arguments; therefore, it claims that “this Court would be proper in reversing either of those portions of the Christian Circuit Court’s Orders and Judgments based upon either § (i)(ii) or (in) of CR 76.12(8)(c).” Those sections state that an appellee that fails to file a brief may be penalized in three distinct ways.

Although Flag Drilling would have us read the penalty provisions of CR 76.12(8)(c) as mandatory, we are confident that “[t]his rule merely provides penalty options which an appellate court may, in its discretion, impose for failure to file a brief.” We do not believe that reversal is warranted based solely upon Erco’s failure to respond in this case; so we will address the merits of each of Flag Drilling’s arguments.

REIMBURSEMENT OF ATTORNEY’S FEES

As its first argument, Flag Drilling claims that it should have been awarded attorney’s fees based on the provisions of KRS 134.420(1) and KRS 134.490 or, alternatively, under the terms of KRS 421.070, the common fund doctrine and the substantial benefit principle.

We note that there is no evidence in the record that the issue of attorney’s fees pursuant to KRS 134.490, KRS 421.070, the common fund doctrine or the special benefits principle were actually presented to the trial court for a ruling. Thus, these arguments are not preserved for appeal. But since we agree that Flag Drilling is owed reasonable attorney’s fees under KRS 134.420(1), Flag Drilling’s failure to preserve its other arguments is harmless error. Therefore, our reversal is based solely on the reimbursement of attorney’s fees under KRS 134.420(1).

When a claim for reimbursement of attorney’s fees is made, our courts adhere to what is referred to as the “American Rule.” This rule provides that “the prevailing litigant is ordinarily not entitled to collect a reasonable attorneys’ fee from the loser.” “Under our law, attorney’s fees are not allowable as costs in absence of statute or contract expressly providing therefore.” Although attorney’s fees may be awarded in equity, these awards are “largely within the discretion of the court” and are dependent upon “the facts and circumstances of each particular case.”

Flag Drilling argued before the trial court and reasserts on appeal that the language of KRS 134.420(1), entitled “Lien for taxes,” provides a claim for reimbursement of its attorney’s fees. Reliance on this statute stems from KRS 134.490(2)(b), which states that a private owner of a certificate of delinquency may “[[Institute an action to enforce the hen provided in subsection (1) of KRS 134.420.... ” The applicable portion of KRS 134.420(1) reads:

The state and each county, city, or other taxing district shall have a lien on the property assessed for taxes due them respectively for ten (10) years following the date when the taxes become delinquent, and also on any real property owned by a delinquent taxpayer at the date when the sheriff offers the tax claims for sale as provided in KRS 134.430 and 134.440. This lien shall not be defeated by gift, devise, sale, alienation, or any means except by sale to a bona fide purchaser, but no purchase of property made before final settlement for taxes for a particular assessment date has been made by the sheriff shall preclude the lien covering the taxes. The hen shall include all interest, penalties, fees, commissions, charges, costs, reasonable attorney fees, and other expenses incurred by reason of delinquency in payment of the tax bill or certificate of delinquency or in the process of collecting either, and shall have priority over any other obligation or liability for which the property is liable.

We agree with Flag Drilling’s contention that this statute provides for the reimbursement of its attorney’s fees. KRS 134.490(2)(b) states that a private owner of a certificate of delinquency may enforce the hen provided for by KRS 184.420(1). KRS 134.420(1) automatically grants a state, county, city, or taxing district a hen on property when a taxpayer fails to pay taxes. When a private party acquires a certificate of delinquency that party essentially purchases the right to claim the hen that has been imposed by KRS 134.420(1).

We beheve that by giving a private purchaser of a delinquent tax claim a means to enforce the hen, KRS 134.490(2)(b) allows that purchaser to stand in the shoes of the state, county, city, or taxing district in whose name the lien has been imposed. By doing so, the statute gives the private owner of a certificate of delinquency a feasible means of recovering its tax claims.

KRS 134.420(1) states that a hen imposed by the state, county, city, or taxing district shall include “reasonable attorney’s fees.” Because KRS 134.490(2)(b) permits a private purchaser to enforce the hen imposed under KRS 134.420(1), we hold that a purchaser necessarily has the right to collect its reasonably expended attorney’s fees.

Flag Drilling, as a private purchaser of several certificates of delinquency, had the right to enforce the hen that was created when Erco failed to pay its taxes to the Sheriff of Christian County. Based on our analysis, Flag Drilling also had the statutory right to be reimbursed for its reasonable attorney’s fees to collect the certificate of delinquency. Because Flag Drilling had a proper claim to reimbursement under KRS 134.420(1), we must reverse the circuit court’s denial of its request for attorney’s fees and remand the case to the circuit court for it to determine a reasonable attorney’s fee for Flag Drilling.

THE REVENUE CABINETS $69,230.76 JUDGMENT

Flag Drilling’s second argument is that the circuit court erroneously awarded the Revenue Cabinet $69,230.76 without any actual proof of the amount owed by Erco. Specifically, Flag Drilling alleges that the amounts claimed by the Revenue Cabinet were “arbitrary” and “speculative.”

In its original brief before this Court, Flag Drilling erroneously argued “that those monies distributed to the Revenue Cabinet by the Clerk” should “be ordered repaid to the Clerk by the Revenue Cabinet for the purposes of the payment of the Appellant’s attorney’s fees from the ‘common fund’.... ” However, in its reply brief, Flag Drilling retracted this portion of its argument after it was advised that no monies had yet been paid out to the Revenue Cabinet from the Clerk. Thus, alternatively, Flag Drilling argued that its attorney’s fees should be paid from the surplus funds awarded to Erco.

We again note that regardless of the approach taken to this argument, Flag Drilling did not preserve this issue before the trial court. It is well settled that “a question not raised or adjudicated in the court below cannot be considered when raised for the first time in this court.” This Court will only address such issues if they constitute “a palpable error which affects the substantial rights of a party....”

There is no evidence in the record that Flag Drilling ever challenged the alleged “arbitrary and speculative” nature of the Revenue Cabinet’s figures. Although Erco did state in its answer to the Revenue Cabinet’s cross-claim that it believed the amounts lacked specificity, this response had no effect upon Flag Drilling. Nor was there an argument raised before the trial court that Flag Drilling’s fees should be paid out of the surplus amount awarded to Erco. Since Flag Drilling failed to preserve these issues, we may only review for palpable error.

There is no indication that Flag Drilling’s rights were affected by the trial court’s award to the Revenue Cabinet. In fact, we fail to see how Flag Drilling has any standing to argue against the judgment obtained by the Revenue Cabinet. As the United States Supreme Court stated in Warth v. Seldin, “[i]n its constitutional dimension, standing imports justicia-bility: whether the plaintiff has made out a case or controversy between himself and the defendant within the meaning of Article III.” Flag Drilling has not established a “case or controversy” between itself and the Revenue Cabinet. The amount of money recovered by the Revenue Cabinet had absolutely no effect upon the amount of recovery received by Flag Drilling. Flag Drilling received the entirety of the $784.97 it was due, plus additional court costs. The judgment in favor of the Revenue Cabinet did not preclude Flag Drilling from full recovery, nor were its interests negatively affected by the Revenue Cabinet’s receipt of Erco’s delinquent taxes. Therefore, since Flag Drilling lacks standing, we decline to disturb the trial court’s determination of this matter.

With regard to Flag Drilling’s claim that attorney’s fees should be paid solely out of Erco’s surplus funds, we believe this matter is better left for a determination by the trial court on remand. Since it is within the trial court’s discretion to determine how the funds collected from the sale of the property are to be distributed, we decline to address how Flag Drilling’s fees should be disbursed.

CONSTITUTIONALITY OF THE 12 PERCENT PER ANNUM INTEREST

Finally, Flag Drilling asks us to determine whether the provisions of KRS 426.705 that require an individual purchaser of property to pay interest at 12 percent per annum from the date of purchase until the deed is transferred violates sections 2, 3, 27, and 28 of the Kentucky Constitution and conflicts with CR 53.

Once again, Flag Drilling failed to preserve this issue in the trial court. We also question whether' Flag Drilling has standing to challenge this statute. The brief filed on behalf of Flag Drilling does not mention how the company has suffered or will suffer an injury based on the alleged unconstitutional application of KRS 426.705. While the record reflects that Kelly Williams bought the property at the judicial sale, the record does not disclose whether Williams then transferred the property to Flag Drilling. Since Williams, in his individual capacity as the purchaser of the Erco property, is not a party to this action, we fail to see how Flag Drilling, in its corporate capacity, has standing to argue the unconstitutionality of the 12 percent per annum interest.

Because Flag Drilling lacks standing, our discussion of this issue would be tantamount to issuing an advisory opinion; and since this Court does not render purely advisory opinions, we again decline to disturb the trial court’s decision.

DISPOSITION

For the reasons given in this opinion, we reverse the Christian Circuit Court’s order on its refusal to allow a reasonable attorney’s fee to Flag Drilling for the foreclosure of the liens associated with the delinquency certificates it owned. Accordingly, this matter is remanded to the circuit court for it to determine the amount of a fee to be awarded to Flag Drilling for prosecuting its claim on its delinquency certificates. Because the other arguments raised by Flag Drilling were not properly preserved for appellate review, we affirm the trial court in all other respects.

ALL CONCUR.

      . Kentucky Revised Statutes.

      . Kentucky Rules of Civil Procedure.

      . Kupper v. Kentucky Board of Pharmacy, 666 S.W.2d 729, 730 (Ky.1983) (emphasis added).

      . Alyeska Pipeline Service Company v. The Wilderness Society, 421 U.S. 240, 247, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975); see also, Dulworth & Burress Tobacco Warehouse Company v. Burress, 369 S.W.2d 129, 130 (Ky.1963).

      . Kentucky State Bank v. Ag Services, Inc., 663 S.W.2d 754, 755 (Ky.App.1984).

      . Dorman v. Baumlisberger, 271 Ky. 806, 113 S.W.2d 432, 433 (1938).

      . Combs v. Knott County Fiscal Court, 283 Ky. 456, 141 S.W.2d 859, 860 (1940). ’

      . CR 61.02.

      . 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975).

      . Kentucky High School Athletic Ass'n v. Davis, 77 S.W.3d 596, 599 (Ky.App.2002).


source: Caselaw Access Project

author: COMBS, Chief Judge.

license: Public Domain

text:
    Richard NEW and Lake Cumberland Funeral Home, Appellants/Cross-Appellees, v. COMMONWEALTH of Kentucky, Kentucky Board of Embalmers; Commonwealth of Kentucky, Funeral Directors, Appellee/Cross-Appellant.
    Nos. 2003-CA-001732-MR, 2003-CA-001826-MR.
    Court of Appeals of Kentucky.
    Feb. 4, 2005.

      Doreena A. Fox Forsythe, Louisville, KY, for appellants/cross-appellees.
    Gregory D. Stumbo, Attorney General of Kentucky, James J. Grawe, Assistant Attorney General, Frankfort, KY, for appel-lee/cross-appellant.
    Before COMBS, Chief Judge; GUIDUGLI and SCHRODER, Judges.
   OPINION

COMBS, Chief Judge.

Lake Cumberland Funeral Home (Lake Cumberland), and its funeral director, Richard New, appeal from that portion of a judgment of the Franklin Circuit Court of July 29, 2003, which affirmed a final order of the Kentucky Board of Embalmers and Funeral Directors (the Board). The court upheld the Board’s decision to sanction the appellants for permitting unlicensed individuals to perform embalming services in violation of KRS 316.030(1). The appellants argue that the Board’s decision is arbitrary and that its findings of fact are unsupported by substantial evidence.

The Board has cross-appealed, arguing that the court erred as a matter of law in reversing the Board’s conclusion that New violated KRS 213.076(1), a statute relating to the filing of death certificates. The Board challenges the court’s interpretation of the statute as permitting an employee or agent of a funeral home to sign a provisional death certificate. After a careful review of the record, we affirm both as to the appeal and the cross-appeal.

In July 2001, the Board received a written complaint from Linda Sturgeon, a funeral director and licensed embalmer. Sturgeon alleged that Lake Cumberland had allowed unlicensed persons “to pick up bodies, embalm bodies, direct funerals, and direct graveside services.” In her complaint, she named Oren Barnhill, Randy Wiles, and Gary Williams as persons who had performed embalming services at Lake Cumberland without being licensed to do so.

Following an investigation, the Board filed a formal complaint in November 2001 against Lake Cumberland and New for violating KRS 316.030(1). New was also charged with violating KRS 213.076(1) for allowing Roy Garner, an apprentice/employee, to sign New’s name to a provisional death certificate.

An extensive hearing on the charges was conducted over the course of three days during June and July of 2002. New categorically denied that any unlicensed person engaged in embalming at Lake Cumberland. Williams and Wiles testified that they were never involved in the embalming process while employed at Lake Cumberland. The appellants argued that the charges against them were falsely made in retaliation by Barnhill, a politically motivated troublemaker who had been unsuccessful at extorting money from the funeral home, and by Sandra Denny, a part-time beautician for the funeral home, who owned stock in the business that she sought to sell back at an inflated price.

In its final order of September 9, 2002, the Board concluded that the funeral home and its director were guilty of all the charges against them. For employing unlicensed personnel to embalm bodies, Lake Cumberland was fined $5,000; New was fined $2,500. New was fined an additional $1,000 for allowing an employee to sign a provisional death certificate on his behalf.

In finding the appellants guilty of violating certain provisions of KRS Chapter 316 relating to the care of bodies of deceased persons, the Board relied primarily on the testimony of Barnhill and Denny. Barnhill had provided the information contained in Sturgeon’s initial complaint. He testified that he began working at Lake Cumberland as a painter/janitor while it was under construction in 1998. After several months of performing odd jobs, he testified that New taught him various embalming procedures, which he then performed alone on numerous occasions. Barnhill testified that Wiles and Williams, unlicensed employees of the mortuary, also embalmed bodies. Denny, a beautician who frequently styled the hair of the deceased at Lake Cumberland, testified that she had seen Barnhill and others embalming corpses in the “prep” room of the funeral home.

In its findings, the Board explained its reliance on these witnesses as follows:

14. Denny’s testimony was credible. She was thoughtful before answering and appeared to not respond until she was sure of the accuracy of her answers.
15. Barnhill’s reputation in the community was not as solid [as Denny’s]. He was known as a drinker and an avid talker which could cause him trouble....
16. Barnhill was specific and generally accurate in his descriptions of the procedures used in performing embalming services. He did not attempt to cover up for his misdeeds such as embalming without a license. Barnhill’s testimony was credible. It was found by the Board that Barnhill’s statements in regard to Williams’[s] and Wiles’[s] roles in performing embalming services was more credible than was Williams[s] or Wiles’[s] testimony at the Hearing.
17. Barnhill’s and Denny’s testimony corroborated each other’s. There was no evidence that those two individuals were close friends or co-conspirators.

(Findings of Fact, Conclusions of Law and Final Order, p. 6.)

In its review, the Franklin Circuit Court agreed that the Board’s decision was sufficiently supported by the evidence:

Here, the Board’s findings were based in large part on the credibility of the witnesses. The Board made its findings against the Funeral Home and Mr. New. They have not been able to prove to this court that the evidence was so overwhelming as to have compelled a different finding. The findings of fact are supported by substantial evidence. Thus, the Board’s decision with respect to Count I and Count II are affirmed.

(Opinion and Order, pp. 4-5.)

In the appeal brought by Lake Cumberland and New, our standard of review is the same as that employed by the Franklin Circuit Court — one of deference to the determination of an administrative agency if its findings are supported by substantial evidence and if its procedure is not tainted by arbitrariness.

Judicial review of the acts of an administrative agency is concerned with the question of arbitrariness. The findings of fact of an administrative agency which are supported by substantial evidence of probative value must be accepted as binding by the reviewing court. The court may not substitute its opinion as to the weight of the evidence given by the Commission. Upon determining that the Commission’s findings were supported by substantial evidence, the court’s review is then limited to determining whether the Commission applied the correct rule of law.

Burch v. Taylor Drug Store, Inc., 965 S.W.2d 830, 834-35 (Ky.App.1998) (citations omitted).

The appellants argue that the Board’s decision is not supported by substantial evidence. The essence of their claim is that the witnesses upon whom the Board relied were neither credible nor convincing — particularly when compared to appellants’ witnesses.

[Lake Cumberland and New] put on witnesses from the Somerset community who had upstanding reputations such as Coroner-elect New, Sheriff-elect Wood, Detective Whitaker, Funeral Director Garner, Pastor Wiles, Minister McCoy, Choir Minister Williams and attorney Bruce Orwin. All the above individuals, not only had a reputation within the Somerset community, but would not perjure themselves at the cost of their profession and/or reputation. On the other hand, the Board put on witnesses such as Ms. Sturgeon, a former Funeral Director, who only had second-hand knowledge, Mr. Barnhill, known as an occasional painter and town drunk, who did not want to report his income, and Ms. Denny, a part-time beautician who wanted to sell her Lake Cumberland Funeral Home stock back to the company for an unreasonable price and was known as “a person that really wanted her way.” Neither of the Board’s witnesses had any considerable record of upstanding reputation in the community or risked losing stature within them professional communities. Yet the Board opted to believe the testimony of its own witnesses over consistent testimony from reputable individuals within the Somerset community[.]

(Appellants’ brief, pp. 6-7.)

It is a settled principle that the fact-finder in an administrative proceeding (in this case, the Board) rather than the reviewing court has the sole discretion “to determine the quality, character and substance of the evidence^]” Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418, 419 (Ky.1985). The fact-finder “has the sole authority to judge the weight, credibility and inferences to be drawn from the record.” Miller v. East Kentucky Beverage/Pepsico, Inc., 951 S.W.2d 329, 331 (Ky.1997). The five members of the Board, four of whom are experienced, practicing, licensed funeral directors (KRS 316.170) were in the best position to observe the witnesses and to assess their credibility. The Board members not only observed the proceedings, but they actively participated by asking many questions of the witnesses themselves.

“Substantial evidence” has been consistently defined in this jurisdiction as “evidence of substance and relevant consequence having the fitness to induce conviction in the minds of reasonable men.” Smyzer v. B.F. Goodrich Chemical Co., 474 S:W.2d 367, 369 (Ky.1971). Barnhill testified that New taught him embalming procedures and described the specific acts that he had performed. Denny testified as to what she had observed in the embalming room of the funeral home. They have both provided testimony that constitutes substantial evidence. Thus, although we may very likely have been more persuaded by appellants’ witnesses, we cannot substitute our judgment as to witness credibility for that of the Board. The conclusion of the Board was supported by substantial (but surely not compelling) evidence. We are constrained to affirm as to the appeal based on our limited standard of review.

In its cross appeal, the Board argues that the circuit court erred in reversing its determination that New violated KRS 213.076(1) and in vacating the fine of $1,000 assessed against him for permitting his apprentice to complete and to sign a provisional death certificate.

The facts as to this issue are not in dispute. New, accompanied by his licensed apprentice, Roy Garner, was called to the home of Teque Sears, who had just died. While New discussed the funeral arrangements with bereaved family members of the decedent, Garner completed the provisional certificate of death and signed New’s name on the form. The Board concluded that New’s failure to complete and to sign the form himself violated KRS 213.076(1). This statute provides in relevant part as follows:

A certificate of death or a provisional certificate of death for each death which occurs in the Commonwealth shall be filed with the cabinet or as otherwise directed by the state registrar prior to final disposition, and it shall be registered if it has been completed and filed in accordance with this section. The funeral director, or person acting as such, who first takes custody of a dead body shall be responsible for filing the certificate of death. The funeral director, or person acting as such, shall obtain the required personal and statistical particulars from the person best qualified to supply them over the signature and address of the informant. The funeral director, or person acting as such, shall within five (5) days of the death, present the certificate to the attending physician, if any, or to the health officer or coroner as directed by the state registrar, for the medical certificate of the cause of death and other particulars necessary to complete the record as required by this chapter. (Emphasis added.)

The circuit court concluded that the phrase, “or person acting as such,” revealed a legislative intent that persons other than funeral directors may perform the clerical work associated with the provisional report of death!

Our review of a question of law is de novo as contrasted with the deferential standard to which we are held as to questions of fact. Faust v. Commonwealth of Kentucky, Tourism Development Cabinet, Department of Parks, 142 S.W.3d 89, 96 (Ky.2004). The Board contends that the provisional report of death must be signed by a funeral director “or a non-funeral director who has some close relationship with the deceased, ie. a family relative or religious type of relationship as with the Amish community.” (Appellee’s brief, p. 18.) A plain reading of the statute reveals no such intent. While the statute places the responsibility for filing the report on a licensed funeral director, it does not forbid him from delegating the task of completing the documents to his agents or employees — especially a licensed apprentice.

The judgment of the Franklin Circuit Court is affirmed both as to the appeal and the cross-appeal.

ALL CONCUR.

      . Kentucky Revised Statutes.


author: STEPHEN N. LIMBAUGH, JR., Judge.

text:
    STATE of Missouri, Respondent, v. Christy L. JACO, Appellant.
    No. SC 85594.
    Supreme Court of Missouri, En Banc.
    Jan. 11, 2005.
    As Modified on Denial of Rehearing March 1, 2005.

      Terry J. Flanagan, John W. Peel, St. Louis, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. General, Breck K. Burgess, Assistant Atty. General, Jefferson City, for respondent.
   STEPHEN N. LIMBAUGH, JR., Judge.

A jury convicted Christy L. Jaco of abuse of a child for causing the death of her thirteen-month-old child in violation of section 568.060, RSMo 2000. Pursuant to section 557.036, RSMo Supp.2003, the court bifurcated Jaco’s trial. After the jury was unable to agree on the appropriate sentence during the penalty phase, the trial court sentenced Jaco to twenty years in prison. Because Jaco challenges the validity of section 557.036, this Court has exclusive appellate jurisdiction. Mo. Const, art. V, sec. 3. The judgment is affirmed.

I. Facts

The facts, which this Court reviews in the light most favorable to the verdict, State v. Christeson, 50 S.W.3d 251, 257 (Mo. banc 2001), are as follows:

The victim was born on October 1, 2000, to Jaco and Jeremy Brooks. Shortly after the child was born, Jaco’s friends and acquaintances began noticing that the child suffered from numerous bruises. They observed that her child continued to incur bruises even after Jaco discontinued her relationship with Brooks and moved into an apartment with her new boyfriend, Matthew Eckhoff, and his two children in July of 2001. They also testified that Jaco “slapped” and “shook” her child when she became upset with him.

The acts that led to the child’s death occurred on November 21, 2001. About 9:50 p.m., Eckhoff was cleaning the kitchen of the apartment, Jaco was getting ready for work, and the child, who was on the couch in the living room and had been suffering from bronchitis, became fussy and started crying. Eckhoff looked into the living room area from the kitchen and saw Jaco standing between the couch and the coffee table. He saw her lift up the child by placing her hands under his armpits and shake the child so violently that “his head rocked back about five or six times.” Jaco then took the child to his bedroom, and Eckhoff heard “three pounds” against the bedroom wall. She then came out of the bedroom, closed the door nearly all the way, and told Eckhoff that the child was finally asleep. At that point, Eckhoff heard no other sounds coming from the child’s room.

Around 10:15 or 10:20 p.m., Jaco left for work, and Eckhoff, who thought that the child was sleeping, laid down on the couch and began reading. Sometime between 11:30 p.m. and 12:30 a.m., Eckhoff heard the child coughing and got up to check on him. Upon discovering that the child was not breathing, Eckhoff performed mouth-to-mouth resuscitation and then called Jaco and 911. An ambulance soon arrived and transported the child to a local hospital, but he was later transferred to Cardinal Glennon Children’s Hospital in St. Louis.

By that time, he was in a coma. A CAT scan revealed that the child had sustained serious brain injuries, which were consistent with being severely shaken. Other injuries included: blood in the back of his neck, which was consistent with a whiplash injury; two large bruises to his scalp; a bruise to his left cheek; marks, scrapes, and abrasions to the back of his head; a brown bruise under his left eye; a bruise to his left jaw; two parallel red lines on the back of his head; a red abrasion on his scalp; a mark with a circular pattern of little dots around the outside of it on his forehead; bruises on his thighs; an old injury to his penis; a fractured left clavicle, which was “between one week [and] one month old” and was also consistent with being severely shaken; a fractured right tibia, which was “between two weeks and two months old” and was consistent with an injury caused by twisting the child’s ankle; and a red mark on the palm of his left hand. On November 23, 2001, the child was declared legally dead. An autopsy revealed that he died of a closed head injury.

II. Photograph Exhibit

Jaco first alleges that the trial court erred in refusing to admit a photograph, which she claims was the only photograph tendered by either party that accurately demonstrated Eckhoffs vantage point from the kitchen while he watched the shaking incident in the living room.

At trial, the state presented several photographs of the apartment, taken shortly after the offense, purporting to show that Eckhoff would have had a clear view of Jaco shaking the child from Eckhoff s location in the kitchen. Thereafter, during the testimony of Jaco’s father, Jaco offered into evidence Defense Exhibit J, the photograph in question, which was taken in the living room after Jaco and Eckhoff had vacated the premises and about a year and a half after the offense. The prosecutor objected to the photograph on the grounds that it was not an accurate representation of the apartment at the time of the offense and that the apartment now had different furniture that made the photograph confusing. In a conference out of the hearing of the jury, Jaco’s counsel admitted that the furniture in the apartment had been changed by a different tenant, but argued that the photograph was still admissible because the walls and layout of the apartment had not changed. The trial court sustained the objection, finding the photograph inadmissible because the different furnishings threw everything “out of kilter” so that the photograph was “misleading.”

Photographs are admissible if they accurately and fairly represent what they purport to depict and tend to prove or disprove any elements of the charged offense. State v. Middleton, 995 S.W.2d 443, 462 (Mo. banc 1999). They must show relevant facts that will aid the jury. State v. Stephens, 708 S.W.2d 345, 350 (Mo.App.1986); State v. Shipman, 568 S.W.2d 947, 954 (Mo.App.1978). In general, differences in the conditions of the subject depicted between those conditions existing at the time of the crime and those at the time the photograph was taken go to the weight of the evidence, not admissibility. Id. However, photographs in which the different conditions are confusing or misleading should be rejected. See, e.g., Jordan v. Abernathy, 845 S.W.2d 86, 88 (Mo.App.1993); Bellistri v. City of St. Louis, 671 S.W.2d 405, 407 (Mo.App.1984). Ultimately, the determination of the admissibility of photographs lies in the sound discretion of the trial court. State v. Ervin, 979 S.W.2d 149,161 (Mo. banc 1998).

On the record before us, it cannot be said that the trial court abused its discretion in refusing to admit Defense Exhibit J. It is difficult to determine from the photograph where Jaco was standing when she shook the child, and that difficulty is due in large part to the fact that the furniture used by Eckhoff to describe where Jaco was standing is not shown. As a result, the photograph would have provided neither the judge nor the jury a frame of reference from which they could have determined whether the photograph fairly and accurately demonstrated the line of sight between the kitchen and the precise point in the living room where the incident occurred. Even though changes in the condition of the scene depicted generally go to the weight of the evidence rather than admissibility, the trial court was well within its discretion in determining that the changes or discrepancies here would confuse and mislead the jury rather than aid the jury. The point is denied.

III. Profile Evidence

Jaco next alleges that the trial court abused its discretion by refusing to allow her counsel to cross-examine Dr. Martin Keller, a doctor who treated the victim, and Dr. Jane Turner, a doctor who conducted the autopsy, about profile evidence — scientific studies and statistics concerning the propensities of different types of persons to abuse children.

According to Jaco’s offer of proof, Dr. Turner, drawing on her experience and review of certain studies published in authoritative treatises, journals and periodicals, would have testified:

a) That children living in households with one or more male adults not related to them are at an increased risk for maltreatment, injury or death. Moreover, that these same children were subjected to abuse or even death as a result of shaking or blunt trauma.
b) That scientific studies demonstrate that children living in households with adult men unrelated to them are eight (8) times more likely to die of abuse than children living with one or both biological parents.
c) That most perpetrators of shaking and/or blunt trauma to children are unrelated males.
d) That [a] risk factor for infant children being abused is where the child is living with a stepfather or the mother’s boyfriend.
e) That scientific studies have established that a common accidental injury explanation/defense offered by perpetrators is that the baby was in some form of distress, choking or not breathing and the perpetrator mildly shook the baby in a vain error to revive the baby.

Expert testimony relating to profile evidence is admissible in the discretion of the trial court to describe behaviors and characteristics commonly observed in victims, e.g., State v. Silvey, 894 S.W.2d 662, 671 (Mo. banc 1995) (expert testified that he had observed several behavioral indicators in victim that were consistent with sexual abuse), or to determine the cause of an injury to a victim, e.g., State v. Candela, 929 S.W.2d 852, 865-66 (Mo.App.1996) (expert testified that victim suffered from shaken baby syndrome). However, profile evidence is not admissible to show a defendant’s responsibility for injury to a victim. See id. at 866. This victim/defendant distinction is necessary to accommodate the general rule that while an expert may express an opinion regarding an ultimate issue in a case, the expert may not express an opinion on the guilt or innocence of the defendant. State v. Taylor, 663 S.W.2d 235, 239 (Mo. banc 1984). To do so, of course, would be to invade the province of the jury. Id.

In acknowledgement of this rule, Jaco claims that the profile evidence here “would not result or include any question that constituted an opinion of [her] guilt or innocence [and that] the evidence offered did not involve expert testimony involving any claim that [she] or Mr. Eckhoff was responsible for the injuries in question or not responsible.” However, the evidence does just that. The clear inference is that an unrelated male who lived with the child, such as Eckhoff, was statistically more likely to have been responsible for the child’s injuries than a related female, such as Jaco. This is indeed a comment that Eckhoff is more likely to be guilty and, conversely, that Jaco is more likely to be innocent. As such, the evidence was inadmissible.

TV. Constitutionality of Section 557.036

The next claim is that the trial court erred in refusing to declare section 557.036 facially unconstitutional and proceeding with a bifurcated trial. Section 557.036.3, as amended in 2003, provides:

If the jury at the first stage of a - trial finds the defendant guilty of the submitted offense, the second stage of the trial shall proceed. The issue at the second stage of the trial shall be the punishment to be assessed and declared. Evidence supporting or mitigating punishment may be presented. Such evidence may include, within the discretion of the court, evidence concerning the impact of the crime upon the victim, the victim’s family and others, the nature and circumstances of the offense, and the history and character of the defendant. Rebuttal and surrebuttal evidence may be presented. The state shall be the first to proceed. The court shall instruct the jury as to. the range of punishment authorized by statute for each submitted offense. The attorneys may argue the issue of punishment to the jury, and the state shall have the right to open and close the argument. The jury shall assess and declare the punishment as authorized by statute.

Jaco first contends that section 557.036 is invalid because it does not identify a standard of proof for the jury to use in reviewing evidence presented in the penalty phase; rather, it merely requires jurors simply to agree on the punishment they assess. Jaco explains that any fact that warrants a punishment other than the lowest available in the range of punishment must be found beyond a reasonable doubt, citing Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). However, neither of these cases held that a

jury is required to find facts beyond a reasonable doubt to impose a sentence that is within the unenhanced range of punishment for an offense. Ring and Apprendi merely held that facts that are the functional equivalent of elements of offenses, such as a statutory aggravating circumstance that is required for eligibility for the death penalty, must be found beyond a reasonable doubt by a jury. Ring, 536 U.S. at 602, 122 S.Ct. 2428; Apprendi, 530 U.S. at 482-83, 120 S.Ct. 2348. In the present case, Jaco’s 20-year sentence was within the original, unenhanced range of punishment, which was 10 to 30 years or life imprisonment. Therefore, any facts that would have tended to assess her punishment within this range were not required to be found beyond a reasonable doubt by a jury.

Jaco also argues that section 557.036 is unconstitutional because it fails to require the state to give notice to the defense of penalty phase evidence and witnesses. However, in criminal cases, there is no general right of discovery, and the only disclosure that must be provided to a criminal defendant is that which is required under Rule 25 pertaining to discovery in criminal cases. State v. Wood, 719 S.W.2d 756, 759 (Mo. banc 1986). Furthermore, contrary to Jaco’s assertion, the Due Process Clause does not mandate disclosure of penalty phase evidence or witnesses. The Due Process Clause merely requires that defendants not be compelled to give disclosure if they are not given reciprocal discovery rights, Wardius v. Oregon, 412 U.S. 470, 474-76, 93 S.Ct. 2208, 37 L.Ed.2d 82 (1973), and that the state is required to disclose exculpatory evidence that might be material to the outcome of a case, Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Finally, even if there was a due process penalty phase disclosure requirement, in this case, Jaco was not prejudiced because several months before trial the state did in fact endorse as witnesses the four persons who testified in penalty phase.

Next, Jaco maintains that section 557.036 unconstitutionally permits the introduction of character evidence where the defendant has not otherwise injected his or her character into the case during trial. However, Jaco does not explain just how or why that evidence is unconstitutional in a penalty phase setting. In any event, this Court has repeatedly held that both the state and the defendant may introduce any evidence pertaining to the defendant’s character in order to help the jury assess punishment in a penalty phase setting, e.g., State v. Winfield, 5 S.W.3d 505, 515 (Mo. banc 1999), even where that evidence constitutes unadjudicated bad acts, e.g., State v. Ferguson, 20 S.W.3d 485, 500 (Mo. banc 2000).

Jaco’s next claim is that the legislature violated the separation of powers doctrine in enacting section 557.036, which Jaco characterizes as a procedural change in the law, because those matters are preempted by this Court’s rules involving the same procedures. When a conflict exists between this Court’s rules and a statute, “the rule always prevails if it addresses practice, procedure or pleadings.” State ex rel. Union Elec. Co. v. Barnes, 893 S.W.2d 804, 805 (Mo. banc 1995). Although this Court has promulgated numerous rules pertaining to the conduct of trials in criminal cases, see Rules 27.01-27.09, none of those rules address whether a two-phase trial is permitted in a non-death penalty case. Therefore, section 557.036 is not inconsistent with any of those rules.

Alternatively, and inconsistently, Jaco argues that section 557.036 is not a procedural law but a substantive law that could not be applied retroactively in that her crime occurred before the amendment of section 557.036. “Procedural law prescribes a method of enforcing rights or obtaining redress for their invasion; substantive law creates, defines and regulates rights.” Wilkes v. Mo. Highway and Transp. Comm’n, 762 S.W.2d 27, 28 (Mo. banc 1988). The distinction is that “substantive law relates to the rights and duties giving rise to the cause of action, while procedural law is the machinery used for carrying on the suit.” Id. Section 557.036 is clearly a procedural law. Application of this statute was proper.

V. Jaco’s Proffered Instruction

Finally, Jaco alleges that the trial court erred in refusing to submit her non-MAI Instruction “A,” which would have required the jury, among other things, to “find beyond a reasonable doubt that aggravating circumstances exists [sic], taken as a whole, to impose punishment in excess .of ten (10) years in the Department of Corrections.” Having already rejected her argument that the jury had to find aggravating circumstances beyond a reasonable doubt in order for her to receive more than the minimum sentence, this Court holds that the trial court did not err in refusing to submit this instruction. A decision of a trial court not to submit an incorrect instruction cannot be error. State v. Parkhurst, 845 S.W.2d 31, 36-37 (Mo. banc 1992).

VI. Conclusion

For the foregoing reasons, the judgment is affirmed.

WHITE, C.J., STITH, PRICE, TEITELMAN and RUSSELL, JJ„ and BLACKMAR, Sr. J., concur.

WOLFF, J., not participating.


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

text:
    James H. CODY, Appellant, v. OLD REPUBLIC TITLE CO., Respondent.
    No. ED 84309.
    Missouri Court of Appeals, Eastern District, Division One.
    Dec. 7, 2004.
    Rehearing Denied Feb. 9, 2005.

      D.B. Amon, St. Louis, MO, for appellant.
    Warren W. Davis, Nancy L. Cardinale, Sandberg, Phoenix & von Gontard, P.C., St. Louis, MO, for respondent.
   GARY M. GAERTNER, SR., Presiding Judge.

Appellant, James Cody (“Cody”), appeals from the judgment of the Circuit Court of the City of St. Louis granting Respondent’s, Old Republic Title Co. (“Old Republic”), motion to dismiss. We affirm.

In his initial suit (“the 1999 suit”), Cody obtained a default judgment for $1,500,000 against Old Republic for the alleged wrongful taking of Cody’s property. Thereafter, Old Republic filed a motion to set aside the default judgment alleging lack of service and improper service in that the Missouri Division of Insurance was not the proper agency for service of Old Republic. On September 5, 2000, the default judgment was dismissed, and the 1999 suit was restored to the docket for further proceedings. On December 26, 2000, Judge Dierker dismissed the 1999 suit in its entirety with prejudice. In this suit, filed with the court on Oct. 1, 2003, Cody alleges that the court’s dismissal of the default judgment in the 1999 suit was procured by fraud in that it was based on allegedly false information contained in affidavits considered by the court. In particular, Cody claims Old Republic denied it was an insurance company, when they in fact were an insurance company, and thus service of the petition for the 1999 suit on the Missouri Division of Insurance was proper service. On January 23, 2004, Old Republic filed a motion to dismiss this suit with the court, and sent a notice of hearing (which set the hearing for February 25, 2004) along with a copy of the motion to dismiss. Cody did not appear at the hearing for the motion to dismiss conducted on February 25, 2004. The court granted Old Republic’s motion to dismiss with prejudice. The court did not specify the grounds relied on for dismissing the action. This appeal followed.

In his first point on appeal, Cody claims the trial court erred in granting Old Republic’s motion to dismiss.

A final judgment may be set aside for intrinsic or extrinsic fraud, if a motion is filed within one year of the date the judgment was entered. Rule 74.06(b-c); Pope v. State, 819 S.W.2d 397, 399 (Mo.App. E.D.1991). After one year from the date of the judgment, the judgment is subject to attack only by an independent action in equity upon a demonstration of extrinsic fraud when the basis of relief is fraud. Id. “Extrinsic” fraud means “fraud that induced a party to default or to consent to judgment against him,” and “Intrinsic” fraud means “knowing use of perjured testimony or otherwise fabricated evidence.” Id., quoting May Dept. Stores Co. v. Adworks, Inc., 740 S.W.2d 383, 385 (Mo.App. E.D.1987).

Cody argues that the court should have considered his claim an independent action in equity under Rule 74.06(d). Cody claims in his petition that the court’s dismissal of the default judgment in the 1999 suit was procured by fraud because it was supported by Old Republic’s allegedly false affidavits. Clearly, Cody’s claim constitutes a claim of intrinsic fraud, which would be untimely if not filed within a year of the entry of the court’s judgment. This claim, filed on October 1, 2003, was filed well beyond a year after the court’s judgment was entered. Therefore, the trial court did not err in dismissing Cody’s fraud claim with prejudice. Point denied.

In his second point on appeal, Cody claims that the court erred in hearing and granting Old Republic’s motion to dismiss without notice of the hearing to Cody in violation of Rule 44.01(d). Cody asserts that had he appeared in court, he could have requested leave to amend his claim.

Rule 44.01(d) requires that a written motion and notice of the hearing be served not later than five days before the time specified for the hearing, unless a different period is fixed by law or court rule or by order of the court. Due process requires that a party be informed of any proceeding which is to be accorded finality either by actual notice or by “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Greene v. Lindsey, 456 U.S. 444, 449-50, 102 S.Ct. 1874, 72 L.Ed.2d 249 (1982), quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950). Notice sufficient to put an ordinarily prudent person on inquiry constitutes notice to him or her of such facts as would be revealed by reasonable pursuit and proper inquiry. Walkenhorst-Newman v. Montgomery Elevator, 37 S.W.3d 283, 286 (Mo.App. E.D.2000).

Cody does not contest that he timely received a notice of hearing along with a copy of Old Republic’s motion to dismiss. The notice of hearing incorrectly stated that Old Republic’s “Motion to Compel” would be called for hearing on February 25, 2004. Old Republic had not filed a motion to compel. Nonetheless, the timely notice of a hearing received by Cody with an attached motion to dismiss was sufficient to put him on inquiry as to whether there was a clerical error in the notice of hearing. Any reasonable inquiry directed towards Old Republic’s counsel would have erased any confusion and made Cody aware that a motion to dismiss would be heard in front of the court on February 25, 2004. Furthermore, a check of court records would have revealed that the motion to dismiss was the only motion filed by Old Republic in this case. Therefore, considering the facts of this case, Cody received adequate notice of the hearing. Point denied.

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

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


author: PER CURIAM.

text:
    Doris J. RHINEHART, Respondent, v. Kay BARNEY, D.O., Appellant.
    No. WD 63804.
    Missouri Court of Appeals, Western District.
    Feb. 1, 2005.
    Rehearing Denied March 29, 2005.
    Charles Henry Stitt, Gregory P. Forney, Kansas City, MO, for appellant.
    Douglas Ronald Horn, Laura Louise Del Percio, Independence, MO, for respondent.
    Before PATRICIA BRECKENRIDGE, P.J., PAUL M. SPINDEN, and JAMES M. SMART, JR., JJ.
   Order

PER CURIAM.

Doris J. Rhinehart was awarded a verdict in her medical malpractice action against Kay Barney, D.O. Dr. Barney appeals, contending that Ms. Rhinehart failed to make a submissible case.

Having carefully considered the contentions on appeal, we find no grounds for reversing the decision. Publication of a formal opinion would not serve juris prudential purposes or add to understanding of existing law. The judgment is affirmed. Rule 84.16(b).


text:
    Jason R. STANFORD, Appellant, v. STATE of Missouri, Respondent.
    No. WD 63226.
    Missouri Court of Appeals, Western District.
    Feb. 8, 2005.
    Rehearing Denied March 29, 2005.
    Patrick J. Berrigan, Kansas City, MO, for appellant.
    Deborah Daniels, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before HOWARD, P.J., BRECKENRIDGE and ULRICH, JJ.
   ORDER

PER CURIAM.

Jason R. Stanford appeals the denial, without an evidentiary hearing, of his Rule 29.15 motion for post-conviction relief. Because a published opinion would have no precedential value, a memorandum has been provided to the parties.

The motion court’s judgment is affirmed. Rule 84.16(b).


author: HAROLD L. LOWENSTEIN, Judge.

text:
    Theodore R. NORRIS, Respondent, v. DIRECTOR OF REVENUE FOR the STATE of Missouri, Appellant.
    No. WD 63933.
    Missouri Court of Appeals, Western District.
    Feb. 8, 2005.
    Rehearing Denied March 29, 2005.

      Brian Barnhill, Jefferson City, MO, for Appellant.
    Jeffrey S. Eastman, Gladstone, MO, for Respondent.
    Before LOWENSTEIN, P.J., BRECKENRIDGE and SMART, JJ.
   HAROLD L. LOWENSTEIN, Judge.

The Director of Revenue (Director) appeals from the order of the circuit court reinstating Theodore Norris’ driver’s license. Norris’ license had been revoked for refusing to submit to a chemical test, pursuant to Section 577.041. The judgment is reversed.

Facts

In October 2003, Corporal Eric Hurst of the Missouri Highway Patrol was responding to a call notifying him of a car accident. En route, Hurst encountered Norris’ vehicle traveling down the left-hand passing lane of the road. Despite the emergency lights and sirens being activated, Norris failed to yield to allow Hurst to pass. At that point, Hurst was notified that he was not needed at the scene of the accident. Hurst subsequently pulled in front of Norris’ vehicle and signaled for Norris to pull over.

After stopping the vehicle, Hurst asked Norris to gather his license and proof of insurance and come to the patrol car. As Norris walked to the patrol car, Hurst observed that Norris had difficulty keeping his balance and was swaying as he walked. Once Norris was inside the patrol car, Hurst noticed a strong odor of intoxicants from Norris’ breath, that Norris’ eyes were bloodshot and watery, and that Norris’ speech was slow and slurred.

Hurst then administered three field sobriety tests — the horizontal gaze nys-tagmus (HGN) test, an alphabet test requiring Norris to recite the letters of the alphabet, and a counting test. However, the HGN test was performed in a modified manner and the other two tests are non-standardized tests. Norris was subsequently arrested for suspicion of driving while intoxicated. Afterwards, Norris refused to submit to a chemical test, which led to the revocation of his license.

Analysis

In order to revoke a driver’s license pursuant to Section 577.041, the Director must establish that: (1) the person was arrested; (2) the arresting officer had reasonable grounds to believe the person was driving while intoxicated; and (3) the person refused to submit to the chemical test. Rosa v. Dir. of Revenue, 948 S.W.2d 727, 728 (Mo.App.1997). If the trial court finds that any of these criteria have not been satisfied, then the person’s driver’s license must be reinstated. Id.

Here, there is no dispute as to the first and third element. Therefore, the only issue on appeal is whether Corporal Hurst had reasonable grounds to believe that Norris was driving while intoxicated. “ ‘Reasonable grounds’ is virtually synonymous with probable cause.” Stewart v. Dir. of Revenue, 75 S.W.3d 900, 902 (Mo.App.2002). “[A] vast gulf exists between the quantum of information necessary to establish probable cause and the quantum of evidence required to prove guilt beyond a reasonable doubt.” Wilcox v. Dir. of Revenue, 842 S.W.2d 240, 243 (Mo.App.1992). In determining whether reasonable grounds exist, a court must evaluate the situation from the viewpoint of a cautious, trained, and prudent police officer at the time of arrest. Terry v. Dir. of Revenue, 14 S.W.3d 722, 724 (Mo.App.2000).

Norris maintains that Corporal Hurst did not have reasonable grounds for believing that he was driving while intoxicated because the three field sobriety tests conducted were either improperly done or were non-standardized tests. However, field sobriety tests are not mandatory. Chancellor v. Lohman, 984 S.W.2d 857, 858 (Mo.App.1998). Field sobriety tests merely aid an officer’s attempt to determine whether there is probable cause to arrest. Id. Therefore, the absence of a properly performed field sobriety test will not by itself preclude a finding that there were reasonable grounds to believe that an individual was driving while intoxicated. See id.; Terry, 14 S.W.3d at 725.

In this case, Corporal Hurst testified to several factors that are sufficient Xa form a reasonable belief that Norris was driving while intoxicated. Hurst testified that he observed Norris having difficulty maintaining his balance and that Norris swayed as he walked towards the patrol car. Hurst also noticed that when he spoke to him, Norris’ speech was slow and slurred. Additionally, Hurst indicated that he smelled a strong odor of intoxicants on Norris’ breath. None of this evidence was contradicted at trial. Similar facts in other cases have been found to provide an officer with reasonable grounds for believing that an individual had been driving while intoxicated. See Rain v. Dir. of Revenue, 46 S.W.3d 584, 588-89 (Mo.App.2001) (finding that driver’s glassy and bloodshot eyes, unsteadiness on his feet, slurred speech, and difficulty concentrating, were sufficient indicia of intoxication to provide reasonable grounds for the officer to believe that the driver was driving while intoxicated).

Consequently, this court finds that the trial court erred in setting aside the revocation. Accordingly, the judgment is reversed and remanded with instructions for the trial court to enter judgment affirming the Director’s revocation of Norris’ license.

All concur.

      . All statutory references are to RSMo. (2000) unless otherwise stated.

      . " ‘[W]hen the evidence supporting revocation is uncontroverted and the trial court has not specifically found the director's witness incredible, appellate courts will not presume that the trial judge found a lack of credibility and will not affirm on that basis.’ ” Brown v. Director of Revenue, 85 S.W.3d 1, 7 (Mo. banc 2002) (quoting Mathews v. Director of Revenue, 8 S.W.3d 237, 238 (Mo.App.1999)). Consequently, [I]f the evidence is uncontro-verted or admitted so that the real issue is a legal one as to the legal effect of the evidence, then there is no need to defer to the trial court’s judgment. Hinnah v. Director of Revenue, 77 S.W.3d 616, 620 (Mo. banc 2002).


author: PAUL M. SPINDEN, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Davy Joe MASSEY, Appellant.
    No. WD 63762.
    Missouri Court of Appeals, Western District.
    Feb. 22, 2005.
    Rehearing Denied March 29, 2005.
    James F. Crews, Tipton, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Deborah Daniels, Shaun J. Makelprang, Office of Attorney General, Jefferson City, for Respondent.
   PAUL M. SPINDEN, Presiding Judge.

Davy Joe Massey appeals the circuit court’s judgment convicting him of possession of a controlled substance, possession of drug paraphernalia, and manufacture of a controlled substance. Because of his briefs woeful inadequacies that prevent us from determining what his complaint is, we dismiss his appeal. His brief so flagrantly and repeatedly violates Rule 84.04’s briefing requirements that, were we to attempt a review of his case, we would in effect become his advocate. (We look to Rule 84.04 because Rule 30.06 that governs briefing requirements for criminal appeals requires appellants to follow Rule 84.04.) We decline this role as improper.

We would be acting improperly to review this case because Massey’s brief is so inadequate that we must guess what his points are and would have to sift through the case record trying to find support for the perceived points. We would, in effect, be assuming the role of appellant’s advocate, an improper role for this court. Green v. Lutheran Chanties Association, 746 S.W.2d 154, 156 (Mo.App.1988). We, therefore, dismiss the appeal. State v. Strobel, 126 S.W.3d 456, 457 (Mo.App.2004). We do so reluctantly, preferring instead to decide cases on the merits. But we feel compelled to dismiss because Massey’s brief is so flagrantly deficient that we are not able to understand his points, much less conduct a review of his case.

The most egregious of Massey’s shortcomings was his extremely truncated arguments in support of his five purported points. They were void of citations to the record, and only one — the last one — had a citation to any precedent or other authority. His longest argument was six sentences long, not counting a long, “block quotation.” His fourth argument said in its entirety, “The possession of P2P was not charged in the information its presence was irealavant [sic] to any charge contained in the information.” These arguments are so inadequate that we can only speculate as to what Massey’s claims are. We deem points not developed in the argument section to be abandoned. State v. Oswald, 14 S.W.3d 678, 680 (Mo.App.2000).

Almost as egregious was Massey’s failure to cite any authority in support of four of his five arguments. In the one argument in which he cited support, he cited only one case. When an appellant fails to cite relevant law and explain how it applies to the applicable facts, review of his case would put us in the improper position of formulating his legal theories for him. State v. Jones, 786 S.W.2d 926, 928 (Mo.App.1990). We, therefore, deem Massey to have abandoned the points. State v. Isa, 850 S.W.2d 876, 900-01 (Mo. banc 1993).

Massey’s points relied on were of little aid in helping us’ to understand his complaint. The points relied on violated Rule 84.04(d)(l)’s requirement that they “identify the trial court ruling or action that the appellant challenges; ... state concisely the legal reasons for the appellant’s claim of reversible error; and ... explain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error.” Massey’s five points relied on said:

The court erred in admitting items taken from the defendant, in that the officer could not postivitly [sic] identify State’s Exhibit 38, 39 and 42 as items that he removed form [sic] the person of the defendant.
The court erred in giving instruction number 10(ten) in that, there was no evidence, Direct or cireumstanional [sic] that the defendant participate [sic] in the manufacture of methamphetamine.
The court erred in submittly [sic] a modified instruction as instruction number 10(ten), in that, the instruction as modified did not require action or acting with intent to do an alleged act, as modified the instruction allowed a finding of guilt on behalf of the defendant if he knew others were acting illegally.
The court erred in addicting [sic] evidence as to phenyl acetone or P2P, in that, P2P is a Schedule II controlled substance and was not charged as being possessed with criminal intent and it was shown as a sole and separate crime, in that, it was not shown to be a precursor or a by-product of methamphetamine cook.
The court erred in admittingly [sic] P2P since it was not disclosed during discovery that this schedule II controlled substance was present, and it was irrelevant to the charge in the information.

These points relied on are woefully inadequate. Few state the legal reasons for his claim of error, and none explains why those legal reasons support his claims of reversible error. None substantially follows the form required by Rule 84.04(d)(1). “A point relied on written contrary to the mandatory requirements of Rule 84.04(d), which cannot be comprehended without resorting to other portions of the brief, preserves nothing for appellate review.” State v. Dodd, 10 S.W.3d 546, 556 (Mo.App.1999).

Moreover, Massey’s statement of fact did not comply with Rule 84.04(c), which requires “a fair and concise statement of the facts relevant to the questions presented for determination.” Massey’s statement did not set out any procedural history and consisted mainly of paraphrased testimony. For example, it said, “Karen Schulte[,] a state highway patrol criminalist!,] was called. She testified. That she tested a syringe and it was negative for controlled substance. That Exhibit 41 was marijuana.” Merely paraphrasing witnesses’ testimony is insufficient and fails to help us understand the facts relevant to appeal. State v. Jackson, 141 S.W.3d 391, 393 (Mo.App.2004).

Massey’s brief violated Rule 84.04 in numerous other ways. We decline to list all of the violations. We dismiss the appeal.

VICTOR C. HOWARD, Judge, and THOMAS H. NEWTON, Judge, concur.