author: JAMES M. SMART, JR., Judge.

text:
    John DORSEY, Appellant, v. STATE of Missouri, Respondent.
    No. WD 63217.
    Missouri Court of Appeals, Western District.
    March 8, 2005.

      Elizabeth Unger Carlyle, Lee’s Summit, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Deborah Daniels, Asst. Attorney General, Jefferson City, for respondent.
    Before JAMES M. SMART, JR., P.J., JOSEPH M. ELLIS, and LISA WHITE HARDWICK, JJ.
   JAMES M. SMART, JR., Judge.

John Dorsey appeals the motion court’s denial of his Rule 29.15 motion for post-conviction relief following an evidentiary hearing. Because we find that Dorsey’s retained trial counsel rendered constitutionally ineffective assistance, the judgment is reversed.

Factual and Procedural Background

Appellant John Dorsey was originally charged with ten crimes: kidnapping, sexual abuse, attempted forcible rape, forcible sodomy, first degree robbery, and five corresponding counts of armed criminal action. He entered a “not guilty” plea as to all counts. He was tried before a jury, and the following transpired:

The victim testified that on the evening of the crime, she was on her way to her cousin’s house in Kansas City when she ended up on a dead-end street and soon became lost. She stopped to ask for directions from three men on the street. Dorsey approached the driver’s side of the car, pulled a butcher knife out of his pocket, and ordered her to let him in the car. Dorsey walked around the front of the car and got in on the passenger side. He asked the victim for money, and when she stated that she had none, he ordered her to drive to a remote location. He then forced her at knife point to perform oral sex on him. Dorsey then ordered her out of the car, after which he started the car and drove off. The victim then reported to police a car-jacking and the taking of the car. DNA testing established that a semen stain on the victim’s clothing came from Dorsey.

Dorsey was represented by retained counsel. Dorsey testified in his own defense. He testified that the victim actually stopped to ask about getting some drugs, and he told her that he could get her some. He said she voluntarily let him in the car. He said they negotiated about the drugs, and as a part of that the victim voluntarily agreed to a sex act. He said he provided some cocaine in return for the sex act. He acknowledged that he drove off in the car, but said that the victim had “rented” him the car. He acknowledged later selling the car to someone else for crack cocaine. Dorsey denied wielding a knife or any other weapon during the encounter.

Dorsey acknowledged telling the victim during the sex act, when she acted like she might stop, “Damn, you’ve got me f-d up. Go on and do this or you could get f-d up.” He said that he “didn’t do anything to make her do [the sex act], but that [he] probably said something [he] should not have said at the time.”

In closing argument, defense counsel told the jury that he believed they would convict Dorsey of forcible sodomy because “[Dorsey] admitted to doing that, folks.” Counsel then recommended that the jury sentence him to seven years on that charge. He asked that the jury acquit Dorsey of the other charges. He also concluded his argument by literally asking the jury to return a verdict of guilty on the sodomy charge. “I’m going to ask you to return a verdict of guilty on the sodomy count for seven years....” He asked that the jury find Dorsey not guilty of the other charges.

The case was submitted to the jury. During the first day of deliberations, the jurors discussed the matter of the victim getting lost. Apparently, there was some concern about the credibility of the victim’s comments as to how she encountered Dorsey. The next morning, one of the jurors surreptitiously traveled to the crime scene to investigate the victim’s story about getting lost. That juror also got lost in the same area. When he returned to deliberations that day, he informed the other jurors of his trip and of the fact that he, too, got lost. Later that same day, the jury convicted Dorsey of forcible sodomy, robbery, and two armed criminal action counts. He was acquitted of kidnapping, sexual abuse, attempted forcible rape, and three counts of armed criminal action.

Immediately following the verdict, the judge’s law clerk and the assistant prosecutor both learned of the one juror’s trip to the crime scene and discovered that he had informed all the other jurors about it. Both submitted written memos to the court with regard to their knowledge about the alleged juror misconduct. Copies of these memos were provided to counsel and placed in the court’s file. The probation officer who conducted Dorsey’s pre-sen-tence investigation also sent a letter to the prosecutor stating that the same juror had called the victim’s family after the trial and said that he had visited the crime scene and that he “totally believed” the victim’s story.

Trial counsel mentioned the juror misconduct issue, along with other issues, in a motion for new trial. The motion stated simply, “There was jury misconduct when Juror 2, Farquhar, went to view the scene and reported back to the jury that he too had been lost and believed the victim.” The motion was not supported by any documentation except for a letter from the officer conducting the pre-sentence investigation about the phone call from the juror to the victim’s home.

The motion for new trial was filed seven days late. The trial court recited at Dorsey’s sentencing hearing that, despite the untimeliness of the motion, he considered the motion on its merits. Counsel did not offer any evidence or argument with regard to the juror misconduct issue. He informed the court he would stand on the written motion. The trial court denied the motion for new trial both as untimely and as without merit.

In accordance with the jury’s recommendation, the court sentenced Dorsey to twelve years for forcible sodomy, ten years for robbery, and three years for each armed criminal action count. The robbery and armed criminal action sentences are to be served concurrently and are consecutive to the sentence for forcible sodomy.

The only point raised on direct appeal was that the trial court erred in failing to instruct on the lesser-included offense of second-degree robbery. The court’s denial of the juror misconduct claim was not appealed. Dorsey’s convictions were affirmed by this court pursuant to Rule 30.25(b) in State v. Dorsey, 70 S.W.3d 552 (Mo.App.2002).

The Post-Conviction Motion

Dorsey filed a pro se motion for post-conviction relief pursuant to Rule 29.15. Counsel was appointed, and an amended motion was timely filed. The motion raised six claims, including claims of ineffective assistance of trial counsel for (1) failure to file a timely motion for new trial; (2) failure to present evidence of jury misconduct; and (3) arguing before the jury that the defendant was guilty of forcible sodomy.

An evidentiary hearing was held before the motion court judge, who also had been the trial and sentencing judge. Both Dorsey’s trial counsel and appellate counsel testified at the hearing. The juror who traveled to the crime scene and two other jurors also testified. Dorsey presented the testimony of the law clerk and presented the memos from the law clerk and the assistant prosecutor with regard to the juror misconduct issue. The motion court denied relief.

Initially, we consider the significance of the untimeliness of the motion for new trial. A motion for new trial must be filed within fifteen days of the verdict. Rule 29.11(b). The court may grant an extension of the time, for a period not to exceed ten days. Id. In this case, the court had already granted the ten-day extension. The motion was then filed seven days after the conclusion of the extension, or thirty-two days after the verdict.

The trial court had no authority to act on a motion for new trial filed thirty-two days after the verdict. See State v. Jackson, 925 S.W.2d 856, 860 (Mo.App.1996); State v. Gamer, 976 S.W.2d 57, 60 (Mo.App.1998). The court also lacked authority to order a new trial even on its own initiative more than thirty days after the verdict. See Rule 29.13. Thus, the late filing of the motion for new trial in this case was so late as to preclude the court from granting relief even if the court at that point believed there were good grounds to do so.

Trial counsel’s testimony at the post-conviction hearing concerning the juror misconduct issue did not inspire confidence. - Counsel did not offer a strategic reason for faffing to conduct his own investigation of the juror misconduct issue. Counsel offered no testimony that he legally researched the juror misconduct issue, or that he had a strategic reason for failure to present evidence and legal authorities in support of the motion. Appellate counsel testified that she had no knowledge of the memoranda supporting the juror misconduct reference in the motion for new trial because the law clerk memorandum and the assistant prosecutor memorandum were not attached to the motion for new trial. Appellate counsel also testified that if she had known of the existence of these documents, she would have raised the matter of juror misconduct on direct appeal even though (because of the untimeliness of the motion for new trial) it would have been renewable only for plain error under Rule 30.20.

When questioned about his statement urging the jury to find Dorsey guilty of forcible sodomy, defense counsel testified that he believed the evidence supported a finding of guilt on that charge. He stated that his trial strategy was to maintain his credibility with the jury by giving them something to convict Dorsey of in hopes they would acquit on the other charges.

The motion court entered its findings of fact, conclusions of law, and judgment, denying Dorsey’s claims for post-conviction relief. This appeal follows.

Standard of Review

Our review is limited to a determination of whether the motion court’s findings of fact and conclusions of law are clearly erroneous. Rule 29.15(k). Findings and conclusions are clearly erroneous only if, after review of the entire record, the court is left with a definite and firm impression that a mistake has been made. Moss v. State, 10 S.W.3d 508, 511 (Mo. banc 2000). The movant bears the burden of proving his post-conviction claims by a preponderance of the evidence. Rule 29.15®.

Arguments

Dorsey brings five claims of error on appeal: two relate to ineffective assistance of trial counsel, one relates to ineffective assistance of appellate counsel, and two are allegations of post-conviction court error. Because we find that Dorsey’s claims of ineffective assistance of trial counsel warrant a new trial, it is unnecessary to address his other arguments.

Ineffective Assistance

In his first claim, Dorsey argues that the motion court clearly erred in finding that he was not prejudiced by trial counsel’s ineffectiveness in failing to timely file a motion for new trial. In a related argument, Dorsey contends that the motion court clearly erred in failing to rule on his claim that trial counsel was ineffective in failing to present evidence of juror misconduct at the new trial hearing. We will consider these interconnected arguments together.

To prevail on a claim of ineffective assistance of counsel, the movant must show: (1) that counsel failed to exercise the customary skill and diligence of a reasonably competent attorney under similar circumstances, and (2) his defense was thereby prejudiced. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). With respect to the first prong, the movant must establish that counsel’s performance fell below an objective standard of reasonableness. Id. at 688-89, 104 S.Ct. 2052. There is a strong presumption that counsel provided competent assistance. Deck v. State, 68 S.W.3d 418, 425 (Mo. banc 2002). To satisfy the second prong, the movant must show that there is a “reasonable probability” that but for counsel’s deficient performance, the result of the proceeding would have been different. Id. at 426. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052).

The motion court found that counsel’s failure to timely file the motion for new trial fell below the “objective standard of reasonableness” but concluded that there was “no proof of prejudice.” The motion court reasoned: “If the Motion for New Trial had been timely filed and a record made at the motion for new trial hearing like the one made in this case, I would have denied relief.” Although neither party addresses the issue of whether the trial court could have ordered a new trial thirty-two days after the verdict, it appears to us that, under Rule 29.13, as already noted, that the court was without such authority. See State v. Magee, 911 S.W.2d 307, 311-12 (Mo.App.1995). Thus, even though the trial court believes it would not have granted relief, it also is apparently true that the court could not have granted relief.

At the post-conviction hearing, Dorsey presented the following evidence. Juror Farquhar testified that before returning to court for the last day of deliberations, he went to the scene of the incident. He too got lost. On arrival at the courthouse after his trip to the scene, he informed the other jurors about his trip and about getting lost. Over objection, he testified that he did not think this experience influenced him or the other jurors. He also stated that he was unaware that he should not have gone to the scene when he made his visit. The jury foreman testified that when he heard Juror Farquhar’s statement, he immediately told the other jurors that the visit was improper and they should not consider it.

Another juror testified that she remembered Juror Farquhar telling them about his visit, but she did not recall the jury foreman telling the jury not to consider it. Dorsey presented the law clerk’s testimony, and Dorsey introduced the law clerk’s memo to the trial judge concerning the incident. Movant Dorsey also offered the letter from the assistant prosecutor (describing her conversation with Juror Far-quhar) and the probation officer’s letter concerning the telephone call from Juror Farquhar.

The juror’s misconduct in this case is strikingly similar to that in Travis v. Stone, a wrongful death civil case, in which a juror traveled to the scene of the accident. 66 S.W.3d 1, 3 (Mo. banc 2002). Here, as in Travis, the evidence presented to the trial court clearly established that jury misconduct had occurred. Once jury misconduct is established, prejudice is presumed, and the burden shifts to the respondent to demonstrate that the misconduct was not prejudicial. Id, at 4 (citing Middleton v. Kansas City Pub. Serv. Co., 348 Mo. 107, 152 S.W.2d 154 (1941)). The Travis Court noted:

This is not a case in which a juror just happened to drive by an accident scene, without making specific observations, where the scene was on the juror’s normal route. This is a case in which the juror specifically had in mind the purpose of making observations ... in order to utilize those observations in deciding the case.Despite her assertion that they made no difference, she admitted that they helped her to understand the testimony, which necessarily involved reconciling the testimony of the two competing experts.

Id. at 6. Even though the juror in Travis had not communicated the results of her visit to the scene to her fellow jurors, a new trial was granted because the visit would likely have had a subtle effect on her deliberations. Id. The Court stated: “In such a case ... the presumption of prejudice is so strong that it can rarely be overcome by statements of the juror tending to minimize the effect of this conduct.” Id. Although Travis v. Stone had not been decided at the time of Dorsey’s trial, it was consistent with precedent and relied on precedent which had been decided before Dorsey’s trial. See, e.g., Middleton, 348 Mo. 107, 152 S.W.2d 154. Here, where all of the jurors heard about the juror’s experience, it is even less likely than in Travis that the misconduct had no effect.

According to the State, Travis is distinguishable because the evidence gathered there “pertained to a critical issue in the case.” 66 S.W.3d at 6. The State argues that whether or not the victim was actually lost when she encountered Dorsey was not critical to determining his guilt. Here, the juror testified that he visited the scene only out of curiosity and that he had already determined that it was easy to get lost in that neighborhood. Another juror testified that she and other jurors did not believe that the victim was actually lost on the night of the crime, but still voted to convict. Thus, the State argues, Dorsey was not prejudiced by the juror’s misconduct.

We disagree. When juror misconduct involves the gathering of extraneous evidence by a juror, the presumption of prejudice is not easily overcome. In disproving prejudice, jurors’ statements that the misconduct did not affect their deliberations “ha[ve] ‘little probative value’ because of the common tendency of jurors to minimize the effect of misconduct.” Travis, 66 S.W.3d at 5 (citing Middleton, 152 S.W.2d at 158). In this case, Juror Farquhar testified at the post-conviction hearing that he did not believe his investigation influenced him as a juror; but this testimony must be considered in fight of the fact that it came from the only person who called the victim’s home to say he “could not continue with his fife” until he told the victim that he “totally believed her.”

As explained in Travis, the State must rebut the presumption that the misconduct affected the jury’s decision. The jurors’ own protestations in this regard are given little weight, for reasons that are obvious. Here, the State introduced no evidence to rebut the presumption of prejudice, and although three of the jurors testified that they were unaware of any effect from the visit, the other nine jurors did not testify. Juror Farquhar’s own testimony can easily be seen as an attempt to minimize the effect of his own misconduct.

The issue of whether the victim was actually lost at the time she encountered Dorsey was important because the victim’s credibility was clearly at issue. Had the victim not actually been lost, it would have undermined her credibility and supported Dorsey’s version of events, which is that she stopped her car in order to buy drugs. The victim’s reason for encountering Dorsey was critical to supporting her version of the events. Juror Farquhar’s statement to the other jurors that he also got lost at the same location had the effect of supporting the victim’s version of events, endorsing her testimony, and impeaching Dorsey’s testimony.

In sum, we agree with Dorsey’s post-conviction claim that there is a reasonable probability that if the juror misconduct claim had been properly investigated and presented in a timely filed motion for new trial, a new trial would have resulted.

The ineffectiveness here was based on more than failure to preserve an issue for appeal, although it is true that counsel did not preserve the issue of juror misconduct. Relying on State v. Lay, 896 S.W.2d 693 (Mo.App.1995), and State v. Thompson, 955 S.W.2d 828 (Mo.App.1997), the motion court stated: “The conviction cannot be set aside for failure to properly preserve the issue of juror misconduct for appeal. Rule 29.15 deals with prejudicial errors denying Movant a fair trial.” The State, too, contends that Dorsey’s claims are nothing more than claims of ineffective assistance of trial counsel for failure to preserve issues for appellate review. The State argues that Dorsey’s arguments should not be considered by this court because such claims “are not cognizable in a Rule 29.15 proceeding,” citing State v. Link, 965 S.W.2d 906, 912 (Mo.App.1998) (failure to preserve Batson claim), and State v. Brown, 950 S.W.2d 930, 938 (Mo.App.1997) (failure to preserve claim by objecting to jury instruction). This is so, according to the State, because review of an ineffective assistance claim is limited to considering whether the alleged errors deprived the defendant of a fair trial. See Link, 965 S.W.2d at 912 (citing Strickland, 466 U.S. at 687, 104 S.Ct. 2052); Lay, 896 S.W.2d at 702. The State points out that Dorsey is not actually claiming that trial counsel’s deficiencies affected his right to a fair trial.

Dorsey contends that the court’s finding is wrong because the cases the court relies on, Thompson and Lay, were decided under the pre-1996 version of Rule 29.15 before the rule was changed to specifically provide for “claims of ineffective assistance of ... appellate counsel.” He reasons that because claims relating to the effectiveness of appellate counsel now must be brought in a post-conviction motion, the standard for prejudice now must also include whether there is a “reasonable probability” that but for counsel’s deficient performance, the result of the appellate process would have been different. Dorsey’s argument here, therefore, is that his trial counsel’s deficient performance in handling the juror misconduct issue resulted in prejudice by affecting the outcome of his appeal.

We need not decide that precise issue. The claim of juror misconduct and Dorsey’s right to seek a new trial had legal merit, whether considered by a trial judge in a post-trial motion or whether considered on appeal. We are not bound by the motion court’s belief that it would not have awarded a new trial on the juror misconduct issue even if the issue had been timely and thoroughly presented. The test is not whether that particular trial judge would have granted relief. The test of merit is not whether the trial judge would have reversed his earlier ruling but rather whether, in the light of applicable law, the contention was a valid one. Cf. Adams v. State, 677 S.W.2d 408, 412 (Mo.App.1984).

Despite what the motion court said, we conclude, for the reasons stated above, that there is a reasonable probability that the law would have required the trial court to grant a new trial if the issue had been properly before it. Indeed, when it comes to juror misconduct issues involving extraneous evidence, reviewing courts do not always defer to the trial court’s assessment as to whether a new trial should be ordered. See, e.g., McBride v. Farley, 154 S.W.3d 404 (Mo.App. S.D., 2004); Stotts v. Meyer, 822 S.W.2d 887 (Mo.App.1991). We see no reason to defer in this case, in which there is reason to believe that the juror misconduct played a role in the verdict.

We find prejudicial ineffective assistance in this case because, with a timely filed motion and a minimally appropriate presentation of law and evidence in connection with the juror misconduct issue, it is reasonably likely that Dorsey would have demonstrated to the trial court that he was entitled to a new trial.

Ineffectiveness in Urging Jurg to Convict of Forcible Sodomy

Dorsey also raises, inter alia, an allegation of ineffective assistance of trial counsel in arguing his case to the jury. We consider this allegation only in regard to our consideration of counsel’s overall performance. In viewing the overall quality of counsel’s performance, as is required under Strickland, 466 U.S. at 690, 104 S.Ct. 2052, we consider whether counsel’s overall performance was less than effective. See Gardner v. State, 96 S.W.3d 120, 132 (Mo.App.2003).

At trial, Dorsey denied having a knife or other weapon and stated that the sexual encounter was consensual, as part of the negotiations with the victim. Dorsey did admit in his testimony that, when it appeared to him that the victim was going to cease the sex act before Dorsey was ready to stop, he said that the victim “could get f-d up.” Dorsey thus admitted, in essence, a threat to the victim that she had better continue participating or else he might hurt her.

At the post-conviction hearing, trial counsel testified that he made the argument he did because he believed that the trial testimony, including Dorsey’s own testimony, supported a finding by the jury that Dorsey had committed forcible sodomy. Ordinarily, we would expect counsel to argue the evidence in a way favorable to the client. While perhaps a jury could reasonably convict of simple forcible sodomy on admissions similar to Dorsey’s, counsel faded to explain how Dorsey’s admissions should necessarily be viewed as an admission of the charge of forcible sodomy aggravated by displaying a dangerous instrument in a threatening manner. Because the jury instruction required a finding that defendant displayed a dangerous instrument to threaten the victim, in this case a concession that Dorsey was guilty of forcible sodomy was actually conceding that Dorsey wielded a weapon, something Dorsey had not admitted.

When a defense attorney argues that his client has admitted guilt without supporting evidence, it can constitute ineffective assistance of counsel. See, e.g., Francis v. Spraggins, 720 F.2d 1190, 1193, 1194 (11th Cir.1983) (finding ineffective assistance where a defendant, by his testimony and his plea, sought a verdict of not guilty, but counsel, faced with strong evidence against his client, conceded the issue of guilt); Wiley v. Sowders, 647 F.2d 642, 649 (6th Cir.1981) (holding that counsel’s argument that the defendant was “guilty as charged,” made without defendant’s consent, was ineffective assistance because counsel “may not stipulate to facts which amount to the ‘functional equivalent’ of a guilty plea”).

Because there was' obvious concern about the victim’s credibility, it seems less than astute for counsel to concede that his client was guilty of wielding a weapon to force the sex act, when the most admitted by Dorsey was a verbal threat.

We need not decide whether the argument by itself was constitutionally ineffective in view of the fact that we have already concluded that trial counsel was constitutionally ineffective in neglecting to file Dorsey’s motion for new trial in a timely manner and failing to make an appropriate presentation with regard to the juror misconduct matter. Counsel’s strategy of urging the jury to convict Dorsey of forcible sodomy simply adds to the impression that trial counsel’s overall performance was constitutionally ineffective.

We do not mean to suggest that retained trial counsel did not do some things right. After all, Dorsey was acquitted on six of the ten counts against him. Counsel did attempt to undermine the victim’s credibility. For instance, counsel did point out to the jury that when the police report was initially made, the only crime mentioned was the car-jacking and the taking of the car, with no allegation of sexual assault made at that point.

The “benchmark” for judging whether counsel is ineffective, however, is “whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Deck, 68 S.W.3d at 425 (citing Strickland, 466 U.S. at 686, 104 S.Ct. 2052). Because of the seriousness of the failure to pursue the juror misconduct issue so as to obtain a new trial, combined with the inappropriate concession that his client wielded a weapon at the time of the sex act, we conclude that the overall performance of counsel undermines our confidence in the verdict. Relief is appropriate. See Gardner, 96 S.W.3d at 132.

Even though there was a verdict of acquittal on many of the charges, we cannot say that there was not a reasonable likelihood of even more acquittals, at least as to charges requiring belief in the use of a weapon. Because we know so little about the dynamics of the jury deliberations and the true effect of the juror misconduct in this case, we have very little basis to say that, had counsel secured a new trial, Dorsey would have done no better in a second trial. Thus, we feel constrained to say that defense counsel’s errors and overall performance were such that we cannot be confident in the trial having achieved a just result. See Id. at 133. Because we have a definite and firm impression that a mistake was made in ruling on the post-conviction motion, we reverse the motion court’s decision.

Conclusion

Based on the foregoing, the judgment denying the post-conviction motion is reversed. The cause is remanded to the motion court to vacate the convictions and the sentences and to order a new trial.

ELLIS and HARDWICK, JJ., concur.

      . Dorsey was charged with forcible sodomy, aggravated by use of a dangerous instrument, which calls for a minimum sentence of 10 years. The State, however, had incorrectly drawn the instruction to allow for sentence of less than 10 years.

      . According to that letter, a jury member contacted the victim's mother after the trial and stated that "he could not continue on with his life until he let her know that he understood how she felt.” The juror said he went to the scene of the offense and “tried to follow the streets that [the victim] followed.” He said he "wanted [the victim] to know that he totally believed her.”

      . The State also argues that most of the evidence presented at the PCR hearing with regard to juror misconduct would have been inadmissible at the new trial hearing on hearsay grounds. This argument is without merit. Although some segments of the evidence may have constituted inadmissible hearsay, the majority of the evidence did not.

      . The two cases cited by the State evidently were also decided under the older version of the rule, since both are consolidated direct and post-conviction appeals, which was no longer allowed after the 1996 amendments.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Barry and Sheri HOMAN, d/b/a Alpine Park and Gardens, Appellant, v. BOONE COUNTY, Missouri, A First Class County, and Boone County Board of Adjustment, Linda Roots, Tom Trabue, Cindy Bowne, Lay Clementz, and Larry Bossaller, in their Official Capacities as Members of the Boone County Board of Adjustment, Respondents.
    No. WD 63974.
    Missouri Court of Appeals, Western District.
    March 8, 2005.
    Kent Lynn Brown, Jefferson City, MO, for Appellant.
    John Lindsey Patton, Columbia, MO, for Respondents.
    Before EDWIN H. SMITH, C.J., ELLIS and HOWARD, JJ.
   ORDER

PER CURIAM.

Appellants Barry and Sheri Homan (“the Homans”) appeal from the Circuit Court of Boone County’s judgment affirm-mg the decision of the Boone County Board of Adjustment (“the Board”), which affirmed the finding of the Boone County Department of Planning and Building Inspection (“the Department”) that the Ho-man’s use of their property for staging and promoting social events for compensation violated the Boone County Zoning Ordinance. The Homans argue three points on appeal. In Point I, the Homans argue that the Board erred in concluding that the Homans’ use of their private park for weddings and other social gatherings was not a common usage of a park and forest preserve and that it violated existing zoning ordinances. In Point II, the Homans argue that the Board erred in concluding the Homans violated local zoning ordinances by renting their conforming park and forest preserve to the public to be used for weddings and other social gatherings, because weddings and social gatherings are common uses of parks. In Point III, the Homans argue the Board erred in concluding the Homans’ concession activity in conjunction with their renting of their park and forest preserve for weddings and other social gatherings was in violation of local zoning regulations, because section 64.341 RSMo 2000, gives counties the authority to grant concession rights to provide refreshments to the public on public parks, playgrounds, and other recreational sites.

We have reviewed the parties’ briefs and the record on appeal. No error of law appears. A written opinion would serve no jurisprudential purpose. We have, however, prepared a memorandum for the use of the parties only, setting forth the reasons for our decision.

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


text:
    STATE of Missouri, Respondent, v. Michael J. NICHOLS, Appellant.
    No. WD 63565.
    Missouri Court of Appeals, Western District.
    March 8, 2005.
    Amy M. Bartholow, Columbia, MO, for appellant.
    Deborah Daniels, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before HOWARD, P.J., ULRICH and BRECKENRIDGE, JJ.
   ORDER

PER CURIAM.

Michael J. Nichols was convicted, following a jury trial, of committing violence against an offender in the Missouri Department of Corrections, under section 217.385, RSMo 2000. Because a published opinion would have no precedential value, a memorandum has been provided to the parties.

The judgment is affirmed. Rule 30.25(b).


author: RONALD R. HOLLIGER, Presiding Judge.

text:
    Lori A. SVEJDA, Respondent, v. David B. SVEJDA, Appellant.
    No. WD 64076.
    Missouri Court of Appeals, Western District.
    March 8, 2005.

      John K. Allinder, Independence, for appellant.
    Dennis Bernard Bosch, Independence, for respondent.
   RONALD R. HOLLIGER, Presiding Judge.

David Svejda ("Husband”) appeals a judgment of dissolution of marriage from Lori Svejda (“Wife”) contending that the evidence did not support the division of property and that the evidence did not support the amount of child support awarded. Wife filed a motion to dismiss his appeal contending that it was untimely because Husband’s handwritten response to her petition did not constitute an “answer,” that Husband was, therefore, in default, and that the time for filing his notice of appeal was not extended by his filing of a post-trial motion. We reverse.

The Svejda’s were married fifteen years before Wife filed for divorce on October 29, 2003. The couple has one child, David Daniel Svejda, born on February 14, 1991. Husband was served with the Petition for Dissolution on November 11, 2003. On December 10, 2003, Husband filed a handwritten statement with the court stating: “I agree to start this divorce, and to split everything we have acquired together equally, and to take our own belongings with us, also the joint custody of David Daniel Svejda.” Husband filed no other documents.

Husband appeared at a case management conference and was notified of the trial date of March 5, 2004. At that time he did not appear. After hearing evidence the trial court found him in default and entered a Judgment and Decree of Dissolution of Marriage awarding marital property to Wife in the amount of $106,330, and to Husband in the amount of $72,750. Husband’s property award included a retirement plan found by the court to have value of $50,000 and 401(k) valued by the court at $4,550. Orders regarding custody of the children were entered that are not contested and the trial court entered a child support order of $739 per month based on Wife’s Form 14 which set Husband’s income at $5,339.

Husband contends on appeal that there was no evidence presented that he owned a pension worth $50,000 or 401(k) at the value of $4,550, and no evidence to support a monthly income for him of $5,339. Wife essentially concedes these points on the merits arguing only that her Asset Statement filed with the court contained clerical errors regarding the retirement accounts and that she had mistakenly based his Form 14 income on ten months of work rather than twelve during the previous year. She acknowledges that neither of these explanations or clarifications appears in the record before the trial court. Rather, she argues that Husband’s appeal should be dismissed as untimely.

Husband filed a motion under Rule 75.01 within thirty days of judgment attacking the judgment on the merits. The trial court overruled it on April 8, 2004. Husband’s notice of appeal was filed on April 19. Wife argues two rationales for her assertion that the judgment became final on April 5 and the notice of appeal was therefore due ten days later under Supreme Court Rule 81.04(a).

Wife first argues that Husband was in default because he did not file a legally sufficient answer to her petition. She argues that since Husband’s post-trial motion was denominated as being under Supreme Court Rule 75.01 it was, therefore, not a proper motion under Rule 74.05(d) to set aside a default judgment. We note even more importantly, that if Husband was in default he cannot appeal on the merits of the judgment as he has done, but only from the denial of the motion to set aside default judgment. See Comstock v. Comstock, 91 S.W.3d 174, 175 (Mo.App.2002).

We do not agree that Husband was in default. If Husband’s pro se filing constituted a valid answer then his case is not a true default judgment (i.e., when a party fails to file responsive pleadings). A judgment taken after a defendant has filed pleadings but fails to appear at trial is not a default judgment but a judgment on the merits. Moore Enters., Inc. v. Franklin Newspapers, Inc., 716 S.W.2d 907, 908 (Mo.App.1986). Wife contends that Husband’s pro se pleading is not sufficient to constitute an answer. However, even a “crude, nonprofessional,” pro se pleading can qualify as an answer. Taylor v. Taylor, 742 S.W.2d 630, 631 (Mo.App.1988). Husband’s pro se, handwritten pleading responded to the issues of property division and child custody raised in Wife’s petition for dissolution. We construe it to be a valid answer and, therefore, Husband was not in default. Moore Enters., 716 S.W.2d at 908.

Because Husband was not in default, he could appeal on the merits from the judgment and the finality of the judgment could be delayed by a timely authorized post-trial motion filed by Husband. Wife argues, however, that Husband’s post-trial motion, although timely, was not a proper motion to extend the trial court’s jurisdiction beyond the thirty days provided by Rule 81.05. If Wife is correct, then Husband’s notice of appeal was untimely because his motion did not extend the trial court’s jurisdiction and we must dismiss.

Wife argues that Husband’s motion does not qualify as an authorized post-trial motion necessarily extending the trial court’s jurisdiction because it improperly invokes Rule 75.01. We disagree. Generally, a motion brought pursuant to Rule 75.01 will not qualify as an authorized post-trial motion. Anderson v. Shelter Mut. Ins. Co., 127 S.W.3d 698, 702 (Mo.App.2004). However, if a Rule 75.01 motion is directed toward errors of fact or law in the trial, it can be treated as a motion for new trial, thus extending the trial court’s jurisdiction over the judgment to ninety days. Stelts v. Stelts, 126 S.W.3d 499, 502 (Mo.App.2004). Husband’s motion challenged the trial court’s judgment and alleged errors in the division of property and the calculation of child support and is properly treated as a motion for a new trial. As such, Husband’s motion extended the trial court’s jurisdiction and, necessarily, his time to file his appeal. Rule 81.05. Husband had ten days from the April 8 ruling on his motion to file for an appeal. Husband’s appeal was timely.

Wife’s motion to dismiss is denied.

Turning to the merits of Husband’s appeal, husband first disputes the property division on the basis that there is no evidence in the record indicating that he owns the retirement assets assigned to him. Wife concedes that there was no evidence presented to the trial court to support the award to Husband of a pension with the value of $50,000 and that the only evidence presented of Husband’s 401(k) indicates its value at only $550, not $4,550.

A trial court, in dividing marital property at divorce, is prohibited from assigning value to property when that value is not supported by any evidence at trial. Jarvis v. Jarvis, 131 S.W.3d 894, 899 (Mo.App.2004); In re Marriage of Below, 8 S.W.3d 233, 236 (Mo.App.1999). Although the trial court is not expressly required to assign specific values to marital property in its judgment, evidence from which the value of the marital property can be determined must appear in the record. Below, 8 S.W.3d at 236. In the absence of such evidence, there can be no meaningful appellate review to determine if, in fact, the division of property was fair and equitable. Wright v. Wright, 1 S.W.3d 52, 59 (Mo.App.1999). Husband challenges the overall fairness of the property division award. The retirement accounts in question represent approximately 75 percent of the award to Husband and have no evidentiary support in the record.

Husband’s first point is granted.

Wife likewise concedes Husband’s second point that the evidence did not support the income figure used on her Form 14 for Husband. She offers an explanation on appeal as to how the figure could be correct but such evidence was not before the trial court. In the alternative, she requests that we exercise our discretion under Rule 84.14 to recalculate the child support based on the evidence that was introduced to the trial court. Although we could do so, Burkhart v. Burkhart, 876 S.W.2d 675, 680 (Mo.App.1994), we decline because the matter must be reversed in any event and remand will permit the court to explore Wife’s assertion on appeal that Husband’s income is higher than shown at trial.

This cause is reversed and remanded for the court to hear evidence concerning the value of Husband’s pension plan and to, if necessary, reconsider the property division. The court shall also hear additional evidence to determine the proper amount of child support.

JOSEPH M. ELLIS, Judge, and PATRICIA BRECKENRIDGE, Judge, concur.

      . The 18th was a Sunday.

      . He said he agreed to the "divorce” and to split everything equally, and to take their respective belongings. He also asked for joint custody of their child.


author: HERSCHEL PICKENS FRANKS, P.J.,

text:
    In re ESTATE OF Kathleen Lee MEADE, Deceased, L. Grady Lee, v. Helen Jo Gilliam.
    Court of Appeals of Tennessee, Eastern Section, at Knoxville.
    June 8, 2004 Session.
    Aug. 30, 2004.
    Permission to Appeal Denied by Supreme Court Feb. 28, 2005.

      Mark D. Harris, Kingsport, Tennessee, for Appellant.
    Kerry A. Musick, Blountville, Tennessee, for Appellee.
   OPINION

HERSCHEL PICKENS FRANKS, P.J.,

delivered the opinion of the court,

in which CHARLES D. SUSANO, JR., J., WILLIAM H. INMAN, Sr. J., joined.

A typewritten document and a handwritten document prepared later in time were offered for probate. The Trial Court rejected the handwritten document and admitted the typewritten document to probate as the Last Will and Testament of Deceased. On appeal, we reverse.

In this action, the issue before the Trial Court, as well as this Court, is which of two Wills was the last Will of the Testatrix, Kathleen Lee Meade, (“decedent”). Decedent was a widow with no children, who died on May 4, 2002, at age 79.

The petitioner Grady Lee, presented for probate a typewritten Will prepared by an attorney and executed on March 15, 2001. Lee, the brother of the decedent, was named as executor in the Will. Respondent, Jo Gilliam, niece of the testatrix, offered for probate a handwritten Will that she propounds as the decedent’s last Will, executed subsequent to the typewritten Will.

Following an evidentiary hearing, the Trial Court concluded the typewritten Will was the Last Will and Testament of decedent, and in his Opinion said:

I think every witness testified the truth as they believed it at time ... There’s no doubt in my mind that what’s been filed as Exhibit # 2, the so-called “handwritten will,” was written by Decedent after the execution of Exhibit # 1, which was executed on the 5th day of March, 2001. No doubt in my mind at all. But that’s not sufficient to answer the problem here. The document written in the Decedent’s handwriting, there must be an intent that it be a will. And I find that it was not her intent for Exhibit # 2 to be here will. I find that her brother was not available due to his wife’s illness at the time, to come at her beck and call like previously. That her niece here was at her beck and call and Jo Gilliam was the primary care giver in the last months of her life. And I have no doubt that she told Ms. Gilliam that she was going to leave things to her. And unconsciously she did a very cruel act here, I think, in hoping to keep someone taking care of her. Exhibit # 2 is found in Exhibit # 6 in a tablet in the kitchen drawer. The proof is that the Decedent, Ms. Meade, was very meticulous, a good business woman, very meticulous in everything she did ... [s]he formed in her mind ahead of time what she wanted in the will before she went to the lawyer’s office. She knew that she needed a good, valid will prepared, and she had prepared, was Exhibit #1. I hold the Exhibit #2 is something she used to show her niece to make sure her niece continued to take care of her but she never reached the point of adopting it as her will. Very strong circumstantial evidence of this, she would attempt, if she had intended for that to be a will to couch it in terms more like the attorney-prepared will. It was a thought she had but it never reached fruitation[sic] here, and for that reason I find that the Exhibit # 1 is the will controlling her estate and that Exhibit # 2 is not her will. Exhibit # 2, as found by the Trial Court, is in the handwriting and signed by deceased.

It reads:

Wih
Jo and Ron Gilliam, my (niece) <& her husband said they would take care of me, and not put me in a rest home. They have said if they had to they would move in my home and take care of me.
Grady Lee (brother) $20.00 and my car. Jo Gilliam (niece) & (Ron) husband the rest of my house & furniture except a few items.
Cecil Lee (brother) the rest of my life ins. After burial is pd.
Bertha Mae Cox (niece) mama’s old sewing machine, pink wash bowl and pitcher (Xmas dishes), to Jo red ruby ring & diamond necklas[spelling?] ear rings.
Jo Gilliam (niece) all my gold chains, lg. Diamond ring & holder.
Kimberly Dalton (niece) white luggage, sewing machine, pink iron, glasses, stone dishes, & pink crystal. Paul Revere stainless ware, punch bowl, & lg. dimon[spelling?] ring & band.
David Lee (nephew) rocking chair, luggage, camester [spelling?] & grand ma Lee’s quilt. Leslie Tinter (great niece) blue safire [spelling] rg.
Gary Vicars (gardner) $500.00.
I’ll divide the rest of my clothes & jewelry. I want my house to keep in the family & don’t change the way it’s brick. Just keep it up.
Kathleen (Lee) Meade.

The construction of wills is a question of law for the court. Presley v. Hanks, 782 S.W.2d 482, 487 (Tenn.Ct.App.1989). The validity of a will is a question of fact, as determined from all the evidence, intrinsic or extrinsic, as to whether the testatrix intended the writing to operate as a will. Tenn.Code Ann. § 32-4-107(a); In re Estate of Cook, 2002 WL 1034016 at *2 (Tenn.Ct.App.2002), citing, Scott v. Atkins, 44 Tenn.App. 353, 314 S.W.2d 52, 56-56 (1957).

The authenticity of the document offered here is not in dispute. The question before the Court is whether the decedent did, in fact, intend the holograph to be a final expression of her wishes that resulted in the revocation of the earlier typewritten will. (Prior will may be revoked expressly “or by inconsistency”. Tenn.Code Ann. § 32-1-201(1)), or, as concluded by the Trial Court, whether it was mere notes and memoranda of an intent to make a formal will in the future.

At the outset of our analysis, we note that it is immaterial whether a testatrix necessarily understands that by executing a particular document she is making a will, so long as the document demonstrates it was her clear intention to dispose of her property after her death, and the statutory formalities are satisfied. Smith v. Smith, 33 Tenn.App. 507, 232 S.W.2d 338, 341 (1949); Carver v. Anthony, 35 Tenn.App. 306, 245 S.W.2d 422, 424 (1951).

A holographic will need not be dated or name an executor to be valid. Nicley v. Nicley, 38 Tenn.App. 472, 276 S.W.2d 497, 500 (1954); Pulley, 137 S.W.2d at 340. The statutory requirements for a holographic will are that the document’s provisions be entirely in the testator’s handwriting, and authenticated by 2 witnesses. Tenn.Code Ann. § 32-1-105. In this case, the parties have stipulated that the handwritten document is the decedent’s handwriting and that the requirements of the statute are met.

When the statutory requirements are met, a holographic will is of the same dignity as a will attested by subscribing witnesses. Campbell v. Henley, 172 Tenn. 135, 110 S.W.2d 329 (1937), and a properly proven holographic will super-cede a formal will. See, First Christian Church of Guthrie, Kentucky v. Moneypenny, 59 Tenn.App. 229, 439 S.W.2d 620, 623 (1968). Testamentary intent “must be determined from what he has written and not from what it is supposed he intended.” Presley, 782 S.W.2d at 488, citing, Burdick v. Gilpin, 205 Tenn. 94, 325 S.W.2d 547, 551 (1959); First American Nat'l Bank v. Dewitt, 511 S.W.2d 698, 706 (Tenn.1972).

If the words of the will are plain and unambiguous the Court cannot, under the rules of construction, adopt a theory of some secret or reserved intention upon the part of the testator.
It is true the intention of the testator is to prevail, as in all cases of the construction of will. But this intention can only be learned from the words used in the will. Indeed, it may appear morally certain that the testator may have in his mind intended a certain thing; but, unless he has expressed that intention either by writing it into his will in express terms or by necessary implication and construction, it can not prevail. The question is not what the testator intended in his mind, but what is the meaning of his words and his intention, as shown by them?
The intention of the testator to be ascertained is not that which by inference may be presumed to have existed in his mind, but that which, by the words used in the will he has expressed.

City of Memphis v. Union Planters Nat’l Bank & Trust Co., 30 Tenn.App. 554, 208 S.W.2d 758, 764 (1947). Also see, Richberg v. Robbins, 33 Tenn.App. 66, 228 S.W.2d 1019, 1022 (1950).

In this case, the Trial Court imputed a secret intention to the mind of the testatrix which was not expressed in the Will itself. He characterized the holograph as a deception to coax the Respondent to care for her. The Trial Court erred when it delved into the “unconscious” design of the testatrix, which is nowhere expressed in any of the testamentary instruments. Moreover, there was nothing in the record to support the inference. The image of the testatrix that arises from the testimony portrays a gentle, generous aunt and sister, who was beloved by family. The proof is uncontroverted that respondent was raised with her aunt all of her life and they were very close, much like sisters. Nothing in the record suggests she took care of decedent grudgingly or needed to be bribed.

Even if the Trial Court’s analysis were appropriate, such intent ascribed to the testatrix would not destroy the Will’s validity:

The law justly regards with peculiar tenderness the wills of the aged. The power to dispose of their property by will is often the only means which they possess of securing that attention and care for which they appeal in vain to human and natural affection. It then becomes the sole remaining staff of their declining years.

Pritchard on Wills and Administration of Estates, 5th ed., § 121, citing, Van Huss v. Rainbolt, 42 Tenn. 139 (Tenn.1865).

The Trial Court’s reference to the testatrix’s prior Will prepared by an attorney in evaluating the holographic Will, was inappropriate. Whether a document meets the criteria for a testamentary instrument is derived from the document itself. The Trial Court cited as “very strong circumstantial evidence” that the decedent would have couched the language in more attorney-like terms, because she was a meticulous “business type” person, and in this context appellee argues that the decedent was a “business person” and “meticulous” and quite scrupulous in her affairs, and she would not have written a holograph but would have engaged legal counsel.

The evidence establishes the testatrix was a factory worker at Tennessee Eastman for 45 years and had an 8th grade education, and she did draft the document at issue without the benefit of counsel. Her concern about it’s validity was exhibited by her asking her great niece more than once if she thought the handwritten Will would be ok, and her great niece assured her that it was fine. While the holograph does not explicitly revoke the prior Will, decedent took several concrete actions that demonstrate revocation of the first Will. She wrote the second will and signed it and titled it a Will. She changed her life insurance beneficiary consistent with the second Will. She showed other persons where the Will was located, an act that would be unlikely if it were merely a draft or notes of future plans without present testamentary intent. She gave away some items consistent with the document’s provisions before she died. There is no evidence that she stated she intended to make a will in the future or was just thinking about it. The evidence clearly preponderates that the handwritten will embodies the decedent’s final wishes.

Finally, the widely disparate versions presented in evidence are reconcilable by noting that Petitioner’s witnesses in large part testified to conversations with testatrix prior to or around the execution of the first Will. The record reveals that relatively little evidence more proximate to the testatrix’ death supports the typewritten Will. Respondent’s witnesses testified to testatrix’ declarations that were uttered much closer to her death. In other words, the Trial Court’s finding that all the witnesses were credible can be justified because the differing versions presented by the parties are not mutually exclusive, i.e., decedent did, at one time, have a typewritten will favoring the petitioner. Noting the sequencing of the conversations as related by the witnesses it can be seen that as time went on and testatrix became more ill, she changed her mind and took definite steps to implement that change. Of significance, Arlene Bear, who had no knowledge of the Will, was the only witness with no interest in the estate, and testified that a week before testatrix died, she told Bear that she wanted Gilliam to have her property, if she wasn’t put in a nursing home.

For the foregoing reasons, we conclude that the handwritten Will was the Last Will and Testament of deceased, reverse the Judgment of the Trial Court, and remand, with the cost of the appeal assessed to the Estate of Kathleen Lee Meade.

      . Two other handwritten documents of similar intent, entitled Will, were found in Deceased’s papers.


text:
    Daniel Wayne GILL, Sr., Individually, and for the use and benefit of Daniel Wayne Gill, Jr., deceased v. CITY OF CHURCH HILL and Rodney E. Miller, Jr., and Roddy E. Miller, Jr., (one and the same person).
    Court of Appeals of Tennessee, Eastern Section, at Knoxville.
    Aug. 12, 2004 Session.
    Aug. 30, 2004.
    Permission to Appeal Denied by Supreme Court Feb. 28, 2005.

      Timothy R. Wilkerson, Kingsport, Tennessee, for Appellant.
    K. Erickson Herrin, Johnson City, Tennessee, for Appellees, City of Church Hill and Rodney E. Miller, Jr.
    Paul G. Summers, Attorney General and Reporter, and P. Robin Dixon, Jr., Assistant, Attorney General, Nashville, Tennessee.
   OPINION

HERSCHEL PICKENS FRANKS, P.J.,

delivered the opinion of the court,

in which D. MICHAEL SWINEY, J„ and SHARON LEE, J., joined.

Defendant engaged in so-called high speed chase of plaintiffs intestate, which resulted in death of decedent. The Trial Court dismissed on Motion on the basis of TenmCode Ann. § 55-8-108(e). On appeal, we affirm.

In this action, the Trial Court responding to a Motion to Dismiss filed by defendants, dismissed the action and plaintiff has appealed.

The Complaint alleged that the plaintiff brought an action against the defendants for the wrongful death of his son who died on December 16, 2001. As pertinent to this appeal, the Complaint alleges:

On December 16, 2001, at approximately 2:30 a.m. the plaintiffs intestate was operating a 1987 GMC automobile in an easterly direction on West Stone Drive in Hawkins County, Tennessee, approaching the city limits of Kingsport, Sullivan County, Tennessee and at said time and place the defendant, Rodney E. Miller Jr., was operating a police cruiser owned by the City of Church Hill and without probable cause, commenced to pursue plaintiffs intestate and as a result of this pursuit, the plaintiffs intestate accelerated his vehicle to evade the pursuer.
The defendant, Rodney E. Miller Jr., negligently, recklessly and with willful, wanton disregard for the rights and safety of the plaintiffs intestate, Daniel Wayne Gill Jr., operated the defendant’s, City of Church Hill, police cruiser in an excessive speed in pursuit of the plaintiffs intestate in Hawkins County, Tennessee, and outside the city limits of Church Hill, Tennessee, causing the plaintiffs intestate to loose [sic] control of his vehicle. The plaintiff, upon information and belief, further avers that the defendant, Rodney E. Miller, Jr., had independent knowledge that the vehicle he was pursuing was being driven by a juvenile, that said juvenile had been described and identified as an extremely young male of tender years and the plaintiff avers the defendant, Rodney Miller, Jr., knew or should have know, based on his experience and training as a police officer, that his actions in pursuing this vehicle would more likely than not cause the young, inexperienced driver to lose control of the vehicle which he was operating.

Defendants in their Motion to Dismiss, rely upon Tenn.Code Ann. § 55-8-108(e) as the basis for dismissal. This Section of the statute reads:

(e) Notwithstanding the requirement of this section that drivers of authorized emergency vehicles exercise due regard for the safety of all persons, no municipality or county nor the state or any of its political subdivisions, nor their officers or employees, shall be liable for any injury proximately or indirectly caused to an actual or suspected violator of a law or ordinance who is fleeing pursuit by law enforcement personnel. The fact that law enforcement personnel pursue an actual or suspected violator of a law or ordinance who flees from such pursuit shall not render the law enforcement personnel, or the employers of such personnel, liable for injuries to a third party proximately caused by the fleeing party unless the conduct of the law enforcement personnel was negligent and such negligence was a proximate cause of the injuries to the third party.

A Motion to Dismiss pursuant to Tenn. R. Civ. P. 12.02(06) tests the legal sufficiency of the Complaint. Dobbs v. Guenther, 846 S.W.2d 270 (Tenn.Ct.App.1992). When reviewing the Complaint in context of this motion, we must take all of the well pleaded material factual allegations as true, not conclusionary allegations, and construe the Complaint liberally in the plaintiff’s favor. Dobbs.

The plaintiff insists that the Trial Court erred in dismissing the action, because it cannot be established from the Complaint that deceased was an “actual or suspected violator of the law” for purposes of the statute, because the Complaint demonstrates that defendant Miller was aware he was pursuing a juvenile, and “knew” because of decedent’s age, he did not have the capacity to commit a crime. Plaintiff cites Juvenile Court of Shelby County v. State, 139 Tenn. 549, 556, 201 S.W. 771 (1918) to the effect that a child between the ages of seven and fourteen years of age is presumed prima facie of being incapable of committing a crime, and the burden is upon the State to show that the person was of such maturity of mind and of such discretion so as to be able to distinguish right from wrong.

The material facts in the Complaint allege that Miller commenced pursuit of plaintiffs intestate, and as a result of the pursuit, the plaintiffs intestate “accelerated his vehicle to evade the pursuer”. Further, that Miller had “independent knowledge” that the pursued vehicle was being driven by a “juvenile” and that the juvenile’s vehicle had been identified and he was described as “an extremely young male of tender years”. The Complaint does not allege the age of the decedent, other than that the decedent was a juvenile, and “an extremely young male of tender years”. However, we do not believe the issue of whether or not decedent “had the capacity to have committed a crime” is the determinative issue on this appeal. The scope of TenmCode Ann. § 55-8-108(e) is very broad and applies to both criminal and civil violations, e.g., the violation of an ordinance is generally characterized as a civil violation. See Mullins v. State, 380 S.W.2d 201, 214 Tenn. 366, (Tenn.1964); City of Nashville v. Baker, 73 S.W.2d 169, 167 Tenn. 661 (Tenn.1934). Moreover, a minor engaged in the operation of a motor vehicle upon public ways of this State, is held to the same standard of care as an adult. See Powell v. Hartford Accident & Indemnity Co., 217 Tenn. 503, 398 S.W.2d 727 (1966).

The Complaint alleged that the officer had been given a description of the vehicle and the driver which he pursued past 2:30 a.m. in the morning. In the context of the allegations, decedent was a “suspected violator of a law or ordinance”. We hold that the material facts of the Complaint fall within the ambit of the statute and defendants are not liable for injuries proximately or indirectly caused to the decedent who fled from such pursuit.

Finally, plaintiff argues in effect that Tenn.Code Ann. § 55-8-108(e) is unconstitutional under the federal and state constitutions. The State’s Attorney General has filed a brief defending the constitutionality of the statute, apparently m response to being served with a copy of plaintiffs appellate brief. A review of the record reveals that this issue is not properly before the Court. The Trial Court did not rule on this issue, and the requirements of Tenn. R. Civ. P. 24.04 were not complied with in the Trial Court.

For the foregoing reasons, we affirm the Judgment of the Trial Court and remand <x> in m CL) m in c3 o o CO v* c+g o m r* cd ⅜ CD CD & g p

      . As a matter of fact, a minor can violate a law or ordinance. How the law subsequently deals with the violation depends on the facts and circumstances and is another matter.


author: RICHARD BARAJAS, Chief Justice.

text:
    The STATE of Texas, Appellant, v. Jose ORDONEZ, Appellee.
    No. 08-03-00368-CR.
    Court of Appeals of Texas, El Paso.
    Jan. 13, 2005.
    Jaime E. Esparza, Dist. Atty., El Paso, for State.
    Mark Rosales, El Paso, for Appellee.
    Before Panel No. 2 BARAJAS, C.J., McCLURE, and CHEW, JJ.
   OPINION

RICHARD BARAJAS, Chief Justice.

This is a State’s appeal from the order of the trial court granting appellee’s motion for new trial. We reverse the order of the trial court.

I. SUMMARY OF THE EVIDENCE

Appellee, Jose Ordonez, was convicted by a jury of aggregated theft of $20,000 or more but less than $100,000. The court assessed punishment at six years’ community supervision. Appellee filed a motion for new trial alleging, among other things, that juror Maria Ochoa committed jury-misconduct by considering appellee’s failure to testify at trial. The State filed a written reply contending that Tex.R. Evid. 606(b) precluded admission of any evidence which served to impeach her verdict. After a hearing, the court granted the motion for new trial.

At the hearing on his motion for new trial, appellee called one of his trial attorneys, Enrique Chavez. The State lodged an objection to this testimony under Rules 606(b) and 802 and the court overruled the objection. The trial judge noted that at the end of the case, he in the company of the attorneys for the parties went to converse with the jurors. Based on that fact, the court overruled the objection.

Attorney Chavez testified that at the meeting with the jurors, one juror, Maria Ochoa, stated, “[I]f the Defendant were innocent, he would have testified.” The State again objected to his testimony on the prior grounds. The objection was overruled. After more discussion regarding this matter, the court orally ruled:

The Court cannot see how the Defendant’s 5th Amendment rights were not violated beyond a reasonable doubt based on the juror’s statement, and based on that, the Court is going to grant the Defendant’s motion for a new trial in the interest of justice.

The court entered a written order granting the motion for new trial stating the defendant was not afforded his right to remain silent as guaranteed by the 5th and 14th Amendments.

II. DISCUSSION

The trial court’s decision to grant a new trial in the interest of justice is measured by an abuse of discretion standard. State v. Gonzalez, 855 S.W.2d 692, 696 (Tex.Crim.App.1993). The reviewing court should examine the record to determine if the trial court granted a new trial in an arbitrary manner without reference to any guiding rules or principles. Jimenez v. State, 67 S.W.3d 493, 509 (Tex.App.-Corpus Christi 2002, pet. ref d). The decision to grant a new trial will be reversed if the trial court’s decision was so clearly wrong as to he outside that zone within which reasonable persons might disagree. Id.

In two issues, the State maintains that the court erred in admitting testimony and evidence concerning the statement of juror Ochoa that she considered appellee’s failure to testify and the court abused its discretion in granting a new trial based on her statement.

Appellee responds that the State waived error in the first instance by fading to properly object to the testimony of Attorney Chavez.

To preserve a complaint for our review, a party must have presented to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling if they are not apparent from the context of the request, objection, or motion. Tex.R.App. P. 33.1(a)(1); Mosley v. State, 983 S.W.2d 249, 265 (Tex.Crim.App.1998) (op. on reh’g), cert. denied, 526 U.S. 1070, 119 S.Ct. 1466, 143 L.Ed.2d 550 (1999). Further, the trial court must have ruled on the request, objection, or motion, expressly or implicitly, or refused to rule, and the complaining party objected to the refusal. Tex.R.App. P. 33.1(a)(2); see also Taylor v. State, 939 S.W.2d 148, 155 (Tex.Crim.App.1996). An objection preserves only the specific ground cited. Tex.R.App. P. 33.1(a)(1)(A); Mosley, 983 S.W.2d at 265.

In the instance case it appears that the State objected on two applicable evidentia-ry rules and obtained a ruling from the court. The issue has been preserved on appeal.

Rule 606(b) provides: (b) Inquiry into Validity of Verdict or Indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the jury’s deliberations, or to the effect of anything on any juror’s mind or emotions or mental processes, as influencing any juror’s assent to or dissent from the verdict or indictment. Nor may a juror’s affidavit or any statement by a juror concerning any matter about which the jury would be precluded from testifying be admitted in evidence for any of these purposes. However, a juror may testify: (1) whether any outside influence was improperly brought to bear upon any juror; or (2) to rebut a claim that the juror was not qualified to serve. Tex.R. Evid. 606(b).

Under this rule, jurors are no longer competent to testify that they decided the verdict by lot, that they decided the case based on another juror’s incorrect statement of the law, or that they discussed the defendant’s failure to testify and used that failure as a basis for convicting him. Hines v. State, 3 S.W.3d 618, 621 (Tex.App.-Texarkana 1999, pet. ref'd).

Citing State v. Gonzalez, 855 S.W.2d 692, 694 (Tex.Crim.App.1993), appellee maintains that the court was entitled to grant a new trial in the interest of justice. However, it is clear that this ruling was predicated upon evidence that was not competent under Rule 606(b). Accordingly, we grant Issue Nos. One and Two and we reverse the trial court’s order granting appellee’s motion for new trial and we order the reinstatement of the conviction.


text:
    The STATE of Texas, Appellant, v. Juan Antonio MURO, Appellee.
    No. 08-03-00473-CR.
    Court of Appeals of Texas, El Paso.
    Jan. 13, 2005.
    Jaime E. Esparza, Dist. Atty., El Paso, for State.
    Carlos Spector, El Paso, for Appellee.
    Before Panel No. 2 BARAJAS, C.J., McCLURE, and CHEW, JJ.
   OPINION

RICHARD BARAJAS, Chief Justice.

This is an appeal from the court’s order granting a writ of habeas corpus and granting Appellee a new trial. We reverse the order of the trial court.

I. SUMMARY OF THE EVIDENCE

On September 23, 2003, Juan Antonio Muro, Appellee, filed a writ of habeas corpus pursuant to Article V, § 8 of the Texas Constitution challenging his deferred-adjudication proceedings. He alleged that he never received the immigration consequences admonishment which resulted in his ultimate deportation from the United States. The State answered by stating that the trial court lacked jurisdiction as the case had long since been dismissed pursuant to the deferred adjudication statute, and, secondly, if the court had jurisdiction, the records showed that Appellee was duly admonished of the consequences of his guilty plea. Therefore the presumption of the regularity of the records controlled to preclude any finding that he was not admonished of the immigration consequences of his plea.

On October 8, 2003, a hearing was conducted. The State stipulated that Appel-lee would testify that he did not receive the immigration admonishment at the time of the plea. The State did not stipulate that no such admonishment occurred. No transcript was available from the court reporter and there is nothing else in the appellate record that aids in the disposition of this case.

The State entered two exhibits into evidence: (1) a certified copy of the indictment, deferred-adjudication order, and the terms of deferred probation; and (2) a certified copy of the report of the probation officer, dated April 1998, showing Ap-pellee’s successful completion of deferred probation and the order dismissing the proceedings against Appellee. At the close of the hearing, the trial court granted Appellee’s writ and issued a written order stating that Appellee be, “released from custody and or every manner of restraint in his personal liberty as a consequence of [the] plea of guilty.”

II. DISCUSSION

In Issue No. One, Appellant asserts that the court had no jurisdiction to reinstate the case as all proceedings had been previously dismissed, the dismissal having occurred some years prior. In Issue No. Two, Appellant asserts that the trial court erred and abused its discretion in holding that Appellee met his burden to show he was not given his immigration warnings as there was no competent evidence rebutting the presumption of regularity of the records in the case which recited that Appel-lee was duly admonished by the trial court of the consequences of his guilty plea.

In Issue No. One, the State asserts that the court did not have jurisdiction to entertain Appellee’s writ because the case was dismissed some years before pursuant to the deferred adjudication statute. We agree. In Garcia v. Dial, 596 S.W.2d 524, 528 (Tex.Crim.App.1980), the Court of Criminal Appeals held when a trial court empowered with jurisdiction of a criminal case sustains a motion to dismiss a criminal case, the person accused thereunder is, in law, wholly discharged from the accusation against him. As there is no case pending against the accused, jurisdiction does not remain in the dismissing court. Id.

In Garcia, the trial court dismissed the indictment against the accused pursuant to the then existing Texas Speedy Trial Act. The trial court later attempted to reinstate the indictment upon the State’s motion for reconsideration. The Garcia court held that once the indictment was dismissed against an accused, the trial court was without jurisdiction to take any further action. Id. Accordingly, we grant Issue No. One and reverse the trial court’s order granting writ relief.

Having granted Issue No. One on review, we find we need not address Issue No. Two.


author: STEVE McKEITHEN, Chief Justice.

text:
    David LAAS, Appellant, v. Betty WILLIAMSON, Appellee.
    No. 09-04-141 CV.
    Court of Appeals of Texas, Beaumont.
    Submitted Jan. 25, 2005.
    Delivered Feb. 17, 2005.

      Craig R. Lively, Harris, Lively, Duesler & Hatfield, LLP, Beaumont, for appellant.
    Keith Ellis, Vidor, Richard J. Clarkson, Beaumont, for appellee.
    Before McKEITHEN, C.J., GAULTNEY and KREGER, JJ.
   OPINION

STEVE McKEITHEN, Chief Justice.

This is a restricted appeal in a personal injury case arising out of an automobile accident. The appellant, David Laas, seeks to set aside a $1,090,795.74 default judgment based on defective service of process. We hold the return of citation filed of record is defective and cannot support a default judgment. Accordingly, we reverse and remand.

The accident occurred June 25, 2000, when Laas was sixteen years of age. Williamson filed suit on June 25, 2002. Citation issued the following day. The return of citation recites that the citation was served on Laas on August 21, 2002, by Ronald C. Guanere. The citation was filed on September 4, 2002, but it is unverified. Williamson took a default judgment on October 7, 2003. The judgment awards $4,798.37 in past medical expenses, with the remainder of the damages arising from future medical expenses, past and future pain and suffering, past and future physical impairment, past and future mental anguish, and exemplary damages. The notice of judgment issued October 8, 2003, but was returned undelivered on October 15, 2003. On November 25, 2003, Laas filed a motion to extend the post-judgment deadlines. See Tex.R. Civ. P. 306a(4). That motion alleged Laas did not receive actual notice of the judgment within twenty days. In an affidavit attached to his Rule 306a(4) motion, Laas averred that he received actual notice of the default judgment on November 21, 2003. Also attached to the motion is a letter from Williamson’s counsel to Laas’s insurer. The letter is dated November 10, 2003, notifies the insurance company that a default judgment has been taken in the case, and is copied to Laas’s attorney.

The trial court conducted an evidentiary hearing on the Rule 306a(4) motion. Williamson claimed that Laas had actual notice of the judgment. She produced Laas’s signature, dated October 8, 2003, on a notary page from Williamson’s lawyer’s office. The láwyer’s claims manager, Charles Heider, testified that he telephoned Laas on October 7 or October 8 and asked Laas to come to the lawyer’s office. Laas came into the office on October 8. Heider testified he learned that Laas had forwarded the served petition to his insurance company and prepared a statement for Laas to sign. The statement is undated, and states the following: “I, David Lass, [sic] was served on the 20th day of August, 2000, for an auto collision I caused on June 25, 2000. I forward [sic] the Original Petition and Citation of Service to my agent the following day.” The claims manager did not recall having told Laas there was a judgment taken against him, and did not inform Laas that he had a right to consult with a lawyer; however, Williamson’s counsel testified that he also spoke with Laas on October 8, and that he told Laas about the default judgment and suggested he see his insurance company. Heider and another witness, Jerry Gallier, testified that Laas returned to Williamson’s counsel’s office a second time. Gallier testified he refused to speak with Laas because Laas was holding a letter from a defense attorney.

During the Rule 306a(4) hearing, Laas testified that he was contacted by telephone in early October 2003 and was told that he needed to sign some papers “for this lady to sue the insurance company and not me.” Laas admitted he came to the lawyer’s office, but claimed no one informed him of the default judgment. Laas claimed Williamson’s lawyer told him that “if I [Laas] signed these papers that this lady has to go after the insurance company and not me.” Laas also claimed Williamson’s lawyer told him that he did not need an attorney. Laas testified, “He said it was a default judgment, but he also said that it was for the lady to sue the insurance company and not me.... ” Laas also testified that he thought he was not supposed to get a lawyer and was not supposed to discuss the matter with anyone, and if he signed the document, he would be protected from the lawsuit. According to Laas, he first saw the judgment when defense counsel mailed it to him.

On December 3, 200, Williamson filed a motion for leave to file an amended return of citation. In her brief, Williamson claims an amended return was filed on December 3, 2003, although an amended return is not included in the appellate record. There is no indication in the record that the trial court acted on Williamson’s motion for leave.

Williamson argues restricted appeal is not available to Laas because he discovered the default judgment in time to take a regular appeal. The cases on which she relies, Thacker v. Thacker, 496 S.W.2d 201, 204-05 (Tex.Civ.App.-Amarillo 1973, writ dism’d), and Hammond v. Hammond, 688 S.W.2d 690, 691-92 (Tex.App.-Beaumont 1985, writ dism’d), are writ of error cases in which the appellant participated at trial. An appellant filing a restricted appeal must appeal within six months after the judgment was signed, must be a party to the suit, and must not have participated in the hearing that resulted in the judgment. See Tex.R.App. P. 26.1(c), 30. On appeal, he must demonstrate that error appears on the face of the record. Quaestor Invs., Inc. v. State of Chiapas, 997 S.W.2d 226, 227 (Tex.1999). Laas filed no documents and attended no hearings before Williamson took her default judgment, and he filed notice of appeal five months and sixteen days after the judgment was signed. Thus, Laas may pursue a restricted appeal pursuant to Rule 30. The issue is whether error appears on the face of the record.

In his first issue, Laas contends the service of citation is defective and that the defect in service is error on the face of the record. Laas contends the evidence before the trial court at the time of the default judgment reflects that the return of citation was unverified, and that defective proof of service constitutes error apparent on the face of the record. “[S]trict compliance with the rules for service of citation [must] affirmatively appear on the record in order for a default judgment to withstand direct attack.” Primate Const., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex.1994). “There are no presumptions in favor of valid issuance, service, and return of citation in the face of a writ of error attack on a default judgment.” Id. The rules of civil procedure allow for liberal amendment of the return of service to show the true facts of service, but “the one requesting service must amend the return prior to judgment.” Id. at 153; see Tex.R. Civ. P. 118.

Williamson argues there is no error on the face of the record because she corrected the return of service. The corrected return is included in the appendix to her brief but is not contained in the clerk’s record. Even if it were, it cannot be considered on appeal because it was on file with the trial 'court no earlier than December 3, 2003. Review by restricted appeal affords an appellant the same scope of review as an ordinary appeal, that is, a review of the entire case. Norman Communications v. Texas Eastman Co., 955 S.W.2d 269, 270 (Tex.1997) (writ of error appeal). Evidence not before the trial court prior to final judgment is beyond the scope of review and may not be considered. See General Elec. Co. v. Falcon Ridge Apartments, 811 S.W.2d 942, 944 (Tex.1991) (writ of error appeal). Thus, in a restricted appeal the “face of the record” consists of all documents on file with the trial court at the time of judgment. Armendariz v. Barragan, 143 S.W.3d 853, 854 (Tex.App.-El Paso 2004, no pet.). While the face of the record includes the reporter’s record of the default hearing, it does not include documents placed in the record after judgment. Stankiewicz v. Oca, 991 S.W.2d 308, 311-12 (Tex.App.-Fort Worth 1999, no pet.) (return label affixed to envelope returned to trial court after judgment); Laidlaw Waste Sys., Inc. v. Wallace, 944 S.W.2d 72, 73 (Tex.App.-Waco 1997, writ denied) (affidavit explaining usual procedures for service of process). Williamson did not amend the return of service before judgment; therefore, the purported amendment did not cure the alleged defect.

Williamson relies upon Dawson v. Briggs, 107 S.W.3d 739, 744-45 (Tex.App.Fort Worth 2003, no pet.). Dawson rejected as dicta the statement that the citation must be amended prior to judgment. Id. at 746-47. Dawson reasoned the statement in Primate conflicts with Higginbotham v. General Life & Accident Ins. Co., 796 S.W.2d 695, 697 (Tex.1990), which held that the trial court effectively granted a Rule 118 motion to amend the return in the course of considering a timely filed motion for new trial. Higginbotham distinguished regular appeals from what is now a restricted appeal, as follows:

Most of these opinions addressing the requirement that the record show strict compliance are writ of error attacks on default judgments. In such cases there is no record of service other than the citation return, and its recitations, taken as true, must show strict compliance with service requirements. We are not to be understood as holding that the citation return alone in this case would have been sufficient to show valid service. Our holding in this case is restricted to situations in which there is a record (such as the evidence at the hearing on motion for new trial) showing strict compliance with a valid method of service and an order expressly amending the return or that is tantamount to an order amending the return of citation.

Higginbotham, 796 S.W.2d at 697.

The Higginbotham rationale is inappo-site where no order expressly granting leave to amend the return appears in the record. Seib v. Bekker, 964 S.W.2d 25, 28-29 (Tex.App.-Tyler 1997, no writ). Ours is not a situation where the trial court granted leave to amend the return of citation while it retained plenary power of the October 7, 2003, judgment. First, the trial court never granted leave to amend the return. Second, Williamson filed her motion to amend the return after Laas filed his Rule 306a(4) motion, but she contested the Rule 306a(4) motion and the trial court did not correct the date of judgment pursuant to Rule 306a(5). Thus, Primate controls, not Higginbotham.

Citation may be served by any sheriff or constable or other person authorized by law, or by any person of at least eighteen years of age authorized by law or by written court order. Tex.R. Civ. P.103. The return of service must be endorsed; if the return is by an authorized person, it must be verified. Tex.R. Civ. P. 107. In this case, the return is not signed by Guanere in any official capacity; therefore, it appears service was performed by a private process server. Case law holds that Rule 107 requires an acknowledgment of the instrument before a notary public. Frazier v. Dikovitsky, 144 S.W.3d 146, 149 (Tex.App.-Texarkana 2004, no pet.); Carmona v. Bunzl Distribution, 76 S.W.3d 566, 569 (Tex.App.-Corpus Christi 2002, no pet.); Bautista v. Bautista, 9 S.W.3d 250, 251 (Tex.App.-San Antonio 1999, no pet.); Seib, 964 S.W.2d at 28; Garza v. Zavala, 905 S.W.2d 312, 313 (Tex.App.-El Paso 1995, no writ); McGraw-Hill, Inc. v. Futrell, 823 S.W.2d 414, 416 (Tex.App.-Houston [1st Dist.] 1992, writ denied). The return of citation in the clerk’s record is unverified and bears no acknowledgment. Because the record does not affirmatively show a verification of the return in strict compliance with Rule 107, there is error apparent on the face of the record. Issue one is sustained. Because our holding on the first issue is dispositive of this appeal, we do not need to address Laas’s remaining issues. The judgment of the trial court is reversed and the cause is remanded to the trial court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

      . The notice of restricted appeal identifies the appellant as David Laas, Jr.

      . Documents filed after judgment may be considered in a bill of review proceeding and on appeal from the denial of a bill of review, but not in a restricted appeal. See Gold v. Gold, 145 S.W.3d 212, 214 (Tex.2004). For this reason, this Court held the clerk’s failure to mail notice of judgment and to note its notice on the docket could not have been raised as error in a writ of error appeal because the error occurred after judgment was entered. Jordan v. Jordan, 36 S.W.3d 259, 264 (Tex.App.-Beaumont 2001, pet. denied). The Supreme Court also recognized this distinction between the scope of review in a restricted appeal and a bill of review appeal, when it noted that in the latter procedure “all facts may be considered, not just those appearing on the face of the record.” Gold, 145 S.W.3d at 214. Gold compared Caldwell v. Barnes, 975 S.W.2d 535, 537 (Tex.1998), a bill of review in which the court considered a process server’s post-judgment affidavit, with Stankiewicz, 991 S.W.2d at 312, a restricted appeal in which the court refused to consider post-judgment proof of an incorrect address for service. This limitation on the scope of review in a restricted appeal was also recognized in Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848-49 (Tex.2004), which noted "if extrinsic evidence is necessary, it should be presented in a motion for new trial or a bill of review....”