author: Justice LANG-MIERS.

text:
    Doyle ANDERTON, d/b/a A-1 Turf, Appellant v. William E. SCHINDLER and Tri-County Sod and Nursery Company, Inc., Appellees.
    No. 05-03-01157-CV.
    Court of Appeals of Texas, Dallas.
    Feb. 7, 2005.

      Arthur F. Selander, Quilling, Selander, Cummiskey & Lownds, P.C., Dallas, for appellant.
    T. Scott Smith, Smith and Smith, Sherman, for appellees.
    Before Justices MOSELEY, BRIDGES, and LANG-MIERS.
   OPINION

Opinion by

Justice LANG-MIERS.

Doyle Anderton d/b/a A-1 Turf (An-derton) appeals a judgment in favor of William Schindler and Tri-County Sod and Nursery Company, Inc. (Schindler) for damages, interest, attorneys fees, and costs. The judgment incorporated a partial summary judgment in favor of Schindler determining that a settlement agreement was enforceable and dismissed Anderton’s claims. On appeal, Anderton argues that the trial court erred by denying his motion for partial summary judgment, by granting Schindler and Tri-County’s motion for partial summary judgment, and by entering judgment in favor of Schindler and TriCounty. We affirm.

BACKGROUND

Anderton leased a sod farm from TriCounty for a period of 40 months. Schindler signed the lease as President of TriCounty. Because Schindler’s wife did not agree with the terms of the lease, and to appease her, Anderton also signed a side agreement with both Schindler and his wife agreeing to pay them $1,000 per month for the 40 months of the lease. The lease and the side agreement were signed on the same day in February of 1998. Disagreements arose about the lease, Schindler locked Anderton out of the farm, and Anderton filed suit in December of 1998 against Schindler and Tri-County for tortious interference, fraud, breach of contract, DTPA violations, and intentional infliction of emotional distress. Anderton also asked for specific performance of the lease. Anderton did not join Schindler’s wife as a party to the lawsuit. Schindler counter-claimed for breach of contract and for damage to the property.

The trial court ordered mediation and the parties reached a mediated settlement agreement on January 4,1999. One of the provisions of that agreement was that Schindler and his attorney would use their best efforts to secure Mrs. Schindler’s signature on a mutual release of claims that included claims regarding the side agreement. After the mediation, Anderton sent Schindler’s lawyer a check for $10,000 made out to both Mr. & Mrs. Schindler and a release with signature lines for both of them. Schindler and his attorney attempted to obtain Mrs. Schindler’s signature. But she was not willing to release her claim against Anderton and would not sign the release or endorse the check. As a result, Schindler’s lawyer returned the check to Anderton’s lawyer and asked him to send a new check payable only to Mr. Schindler and a revised settlement agreement with Mrs. Schindler’s name removed as signatory on the release. Anderton did not send a new check or a revised settlement agreement.

The case continued as if there had been no settlement agreement. Schindler filed a counterclaim based on the lease and conducted extensive discovery on the merits.

In May of 2000, 16 months after the settlement agreement was signed, Schindler filed a counterclaim seeking enforcement of the settlement agreement, and Anderton asserted affirmative defenses to enforcement. The trial court abated the lawsuit until it could determine whether the settlement agreement was enforceable. Both parties filed motions for partial summary judgment on that issue. Anderton contended that Schindler was barred from enforcing the settlement agreement because of his breach of the agreement and because of the doctrines of estoppel and laches. Schindler contended that the agreement was binding and enforceable and that the determination of whether the agreement was breached and, if so, the remedies that should be awarded were separate issues of fact.

The court denied Anderton’s motion for partial summary judgment, granted Schindler’s motion for partial summary judgment, and determined that the settlement agreement was enforceable. It entered a partial summary judgment, finding that there were no genuine issues of material fact as to the enforceability of the mediated settlement agreement but that there were fact issues relating to the compliance with or breach of the mediated settlement agreement. It set for trial the question of whether the parties had breached the settlement agreement and, if so, the remedies for the nonbreaching party or parties.

Schindler’s claim for breach of the settlement agreement was then submitted to the trial court on stipulated facts, exhibits, and testimony. Anderton did not reassert his affirmative defenses of estoppel and laches, did not assert a counterclaim that the settlement agreement was breached, or seek recovery or offset against Schindler based on the terms of the settlement agreement. After the bench trial, the trial court entered a judgment in favor of Schindler for damages, interest, attorney’s fees, and costs, and dismissed all of Ander-ton’s underlying claims relating to the lease. The court also entered findings of fact and conclusions of law.

I. ANDERTON’S MOTION FOR PARTIAL SUMMARY JUDGMENT

In his first issue, Anderton contends that the trial court erred by denying his motion for partial summary judgment. He argues that the summary judgment evidence established, as a matter of law, that Schindler was barred from enforcing the settlement agreement because he breached the agreement by failing to obtain Mrs. Schindler’s signature and because of the doctrines of equitable estoppel and laches. But after his motion for partial summary judgment was denied and Schindler’s motion for pai’tial summary judgment was granted, the case proceeded to trial on the merits. The denial of a motion for summary judgment when followed by a conventional trial on the merits does not finally decide any issue pending before the trial court; the denial of a motion for summary judgment presents nothing for review. Ackermann v. Vordenbaum, 403 S.W.2d 362, 365 (Tex.1966); Johns v. Ram-Forwarding, Inc., 29 S.W.3d 635, 638-39 (Tex.App.-Houston [1st Dist.] 2000, no pet.); Horton v. Horton, 965 S.W.2d 78, 88 (Tex.App.-Fort Worth 1998, no pet.). As a result, the denial of Anderton’s motion for partial summary judgment is not appealable. We overrule appellant’s first issue.

II. SCHINDLER’S MOTION FOR PARTIAL SUMMARY JUDGMENT

A. Summary Judgment Standard of Review

In his second issue, Anderton contends that the trial court erred by granting Schindler’s motion for partial summary judgment.

A partial summary judgment becomes appealable after a judgment is rendered disposing of all the issues in a case. See Newco Drilling Co. v. Weyand, 960 S.W.2d 654, 656 (Tex.1998); Hicks v. S.W. Settlement & Dev. Corp., 181 S.W.2d 982, 983 (Tex.Civ.App.-Eastland 1944, no writ). The issue on appeal is whether the movant met his summary judgment burden by establishing that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. See Tex.R. Civ. P. 166a(c); S.W. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex.2002); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex.1985). The burden of proof is on the movant, and all doubts about the existence of a genuine issue of material fact are resolved against the movant. S.W. Elec. Power, 73 S.W.3d at 215. We must view the evidence and its reasonable inferences in the light most favorable to the non-movant. Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.1965). In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true, every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in its favor. Nixon, 690 S.W.2d at 548. Evidence that favors the movant’s position will not be considered unless it is uncontrovert-ed. Great Am., 391 S.W.2d at 47. When a trial court’s order granting summary judgment does not specify the ground or grounds relied on for the ruling, summary judgment will be affirmed on appeal if any theory advanced is meritorious. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989).

B. Enforcement of Settlement Agreement

The decision of whether a mediated settlement agreement is enforceable is determined in the same manner as any other written contract. Tex. Crv. Prao. & Rem.Code Ann. § 154.071(a) (Vernon 1997); Hardman v. Dault, 2 S.W.3d 378, 380 (Tex.App.-San Antonio 1999, no pet.). An agreement is enforceable if it is “complete within itself in every material detail, and ... contains all of the essential elements of the agreement.” Padilla v. LaFrance, 907 S.W.2d 454, 460 (Tex.1995). The intent of the parties to be bound is an essential element of an enforceable contract, and is generally a question of fact. Farah v. Mafrige & Kormanik, P.C., 927 S.W.2d 663, 678 (Tex.App.-Houston [1st Dist.] 1996, no writ). However, where that intent is clear and unambiguous on the face of the agreement, it may be determined as matter of law. See Hardman, 2 S.W.3d at 380.

“[A] contract must be sufficiently definite in its terms so that a court can understand what the promisor undertook.” T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex.1992). If an alleged agreement is so indefinite as to make it impossible for a court to fix the legal obligations and liabilities of the parties, it cannot constitute an enforceable contract. Engelman Irrigation Dist. v. Shields Bros., 960 S.W.2d 343, 352 (Tex.App.-Corpus Christi 1997), pet denied per curiam, 989 S.W.2d 360 (Tex.1998). In order for a court to enforce a contract, the parties must agree to the material terms of the contract. T.O. Stanley Boot, 847 S.W.2d at 221. To be legally binding, the parties must have a meeting of the minds and must communicate consent to the terms of the agreement. Smith v. Renz, 840 S.W.2d 702, 704 (Tex.App.-Corpus Christi 1992, writ denied).

C. Application to Facts

The only issue that Schindler presented to the court in his motion for partial summary judgment was whether the mediated settlement agreement was binding and enforceable. He contended that there were no issues of fact regarding “whether the settlement agreement exists and is binding. There are factual disputes relating to whether the agreement was satisfied.” He also argued that there were issues of fact precluding summary judgment on Anderton’s affirmative defenses. His motion asked the court to “grant summary judgment that the settlement agreement is enforceable, and deny the summary judgment with respect to whether there has been compliance with the settlement agreement.”

Anderton’s motion for partial summary judgment and response to Schindler’s motion did not challenge Schindler’s argument that the agreement was binding and enforceable. Instead, he contended that Schindler was barred from enforcing it because he breached the agreement and was barred by the doctrines of estoppel and laches.

It is uncontroverted that the parties signed a settlement agreement and intended to be bound it. Although the parties disagreed about the meaning of some terms and about whether the agreement should be enforced, the terms are sufficiently definite to determine the obligations of the parties. Accepting everything asserted in Anderton’s opposition to Schindler’s motion as true, we conclude that Anderton did not raise a genuine issue of material fact as to whether the agreement was binding and enforceable, as opposed to whether it should be enforced. As a result, we conclude that the trial court did not err in granting Schindler’s motion for partial summary judgment. We overrule appellant’s second issue.

III. TRIAL ON THE MERITS

In his third issue, Anderton contends that if we determine that the court erred in denying his motion for partial summary judgment or in granting Schindler’s motion for partial summary judgment, we should also conclude that the court erred in entering judgment for Schindler. Since we have held that the denial of his motion for partial summary judgment is not ap-pealable and that the granting of Schindler’s motion for summary judgment was not error, we also overrule appellant’s third issue.

CONCLUSION

Finding no error, we affirm the trial court’s judgment.

      . In fact, Anderton argues that he “never moved for summary judgment on the basis that the Settlement Agreement was not enforceable when made; rather, A-l Turf only moved for summary judgment on the basis that the Settlement Agreement subsequently became unenforceable by Schindler as a result of his breach of the provisions of that contract.”


source: Caselaw Access Project

author: DIANE DeVASTO, Justice.

license: Public Domain

text:
    In re EAST TEXAS MEDICAL CENTER ATHENS and East Texas Medical Center Regional Healthcare System, Relator.
    No. 12-04-00328-CV.
    Court of Appeals of Texas, Tyler.
    Feb. 18, 2005.

      John W. McChristian Jr., James M. Stewart, Dick Davis, Sharon E. Callaway and Jacqueline M. Stroh, for East Texas Medical Center Athens.
    James N. Parsons, III, pro se.
    Joel M. Fineberg, R. Dean Gresham, and Rick Thompson, for Sonja Bass.
    Panel consisted of WORTHEN, C.J., GRIFFITH, J. and DeVASTO, J.
   OPINION

DIANE DeVASTO, Justice.

Relators East Texas Medical Center Athens and East Texas Medical Center Regional Healthcare System (collectively “ETMC”) seek a writ of mandamus directing the Honorable James N. Parsons III, Judge of the 3rd Judicial District Court, Henderson County, Texas, to vacate his order denying ETMC’s motion to transfer venue. We deny the petition.

Background

The underlying proceeding is a negligence action filed by real party in interest Sonja Bass, individually and as next friend of David Wayne Cornelius, an incapacitated individual. In its mandamus petition, ETMC alleges that fifteen, eight, seven, five, and two days prior to the commencement of trial, “numerous highly prejudicial publications” occurred in the local media to which the potential jury pool was exposed. Because of these publications, ETMC sought a transfer of venue alleging it could not receive an impartial trial in Henderson County. See Tex.R. Civ. P. 257(c). The trial court denied ETMC’s motion, and this original proceeding followed. ETMC also filed a motion for immediate temporary relief.

Prerequisites to Mandamus

A writ of mandamus will issue only to correct a clear abuse of discretion or violation of a duty imposed by law when there is no adequate remedy by appeal. Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992) (orig.proceeding). The limited availability of mandamus is necessary to preserve “orderly trial proceedings” and to prevent the “constant interruption of the trial process by appellate courts.” Canadian Helicopters Ltd. v. Wittig, 876 S.W.2d 304, 305 (Tex.1994). The relator has the burden of showing an abuse of discretion as well as the inadequacy of appeal as a remedy. Id.

Abuse of Discretion

Any party in a civil cause may move for a change of venue on the ground that an impartial trial cannot be had in the county where the action is pending. Tex.R. Civ. P. 257(c). The motion to transfer venue must be supported by the movant’s affidavit and the affidavit of at least three credible persons, residents of the county in which the suit is pending. Tex.R. Crv. P. 257. A trial court can deny the motion to transfer if the movant does not comply with Rule 257. See Acker v. Denton Pub. Co., 937 S.W.2d 111, 118 (Tex.App.-Fort Worth 1996, no writ) (movant did not file required number of affidavits); Carrasco v. Goatcher, 623 S.W.2d 769, 771 (Tex.App.-El Paso 1981, no writ) (movant did not file any affidavits from county residents). If the motion is challenged as permitted by Texas Rule of Civil Procedure 258, the judge must try the issue. Tex.R. Civ. P. 258; City of Abilene v. Downs, 367 S.W.2d 153, 155 (Tex.1963). If the motion is not challenged in the manner provided by Rule 258, transfer is mandatory. Tex.R. Civ. P. 258; Downs, 367 S.W.2d at 155-56.

The Record

ETMC filed its motion to transfer venue (the “motion”) the day before trial. The motion was supported, in part, by affidavits from seventeen individuals. Each of these affiants opined that a specific news article published in the Athens Daily Review was so prejudicial against ETMC that it could not obtain a fair and impartial trial in Henderson County. However, none of the affidavits included the affiant’s county of residence. See Tex.R. Civ. P. 257.

At a pretrial hearing on the afternoon before trial, the trial court heard arguments on the motion and then took it under advisement. At the conclusion of the hearing, the following discussion occurred between counsel for the parties and the trial court:

[BASS]: Your Honor, there’s one or two housekeeping matters. One has to do with the motion to transfer venue that I know they filed. I appreciate that the Court has taken it under advisement. We just want to make sure that we haven’t waived because we have a procedure on substantive objections to their evidence, and we want to make sure at some point before there’s a ruling on it that we get to [make] our evidentiary objections as a part of the record.
[ETMC]: We can do it now or we can wait till the Court takes it up or considers it further.
THE COURT: Well, when you say you want to make evidentiary objections, you’re saying that — do you have something you filed that you want to present?
[BASS]: Not yet, Your Honor. I’h tell you specifically what we’re dealing with. For example, Rule 257 permits them — and Rule 258 permits them to file affidavits from three residents of the county. None of their affidavits disclose where these people live. They could live in Venezuela.
THE COURT: Okay. Well, why don’t we do it this way: I’ll allow [you to] file anything you want to by tomorrow morning since I’ve got it under advisement.
[BASS]: Can you close their record now so we don’t have to get more stuff in the morning to respond to?
THE COURT: Well, they can always ask for leave to do so.
[ETMC]: I think to the extent that we need to show that any of these folks who read the Athens Daily Review are residents of Henderson County—
THE COURT: You-all file your stuff in the morning. I’ll address it in the morning.

The record reflects that at 8:19 a.m. the following morning, ETMC filed a new affidavit from each of the seventeen affiants. Each affidavit included the affiant’s county of residence. Following jury selection, the trial court, without any further mention of the motion by the trial court or the parties, signed an order denying the motion.

Prerequisite to presentation of complaint

Texas Rule of Appellate Procedure 33.1 provides that as a prerequisite to presenting a complaint for appellate review, the record must show that the complaint was made to the trial court by a timely request, objection, or motion that stated the grounds for the ruling sought with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context. Tex.R.App. P. 33.1(a)(1)(A). This rule is to ensure that the trial court has tile opportunity to rule on matters for which parties later seek review in the appellate court. Dolcefino v. Randolph, 19 S.W.3d 906, 926 (Tex.App.-Houston [14th Dist.] 2000, pet. denied). Moreover, where a trial court has a legal duty to perform a nondiscretionary act, mandamus relief is not available unless the record shows the relator made a demand for performance that the trial court refused. See O’Connor v. First Court of Appeals, 837 S.W.2d 94, 97 (Tex.1992). As one court has recognized in the mandamus context, “it would be hard to conclude, without circumstances that were highly unusual or that made a trial court’s ruling void, that a trial court could abuse its discretion in making a ruling for a reason that was never presented to the court.” In re Bank of America, No. 01-02-00867-CV, 2003 WL 22310800, at *2 (Tex.App.-Houston [1st Dist.] 2003, orig. proceeding).

It is undisputed that ETMC filed the new affidavits before the trial court signed the order denying its motion. ETMC urges that the trial court had a duty to grant the motion once the new affidavits were filed. Thus, its argument continues, the trial court denied the motion in violation of a clear legal duty, which must be corrected by mandamus. The record does not reflect that ETMC reurged its motion after filing the new affidavits or made the trial court aware of the filing. However, ETMC asserted at oral argument in this proceeding and again in its post-submission brief that no such action was necessary.

Presentment Requirement

ETMC first points out that rules 257 and 258 do not include a presentment requirement. Absent a presentment requirement in the controlling procedural rules, ETMC contends, the new affidavits were properly before the trial court once they were filed. In support of its argument, ETMC cites Cecil v. Smith, 804 S.W.2d 509, 510 (Tex.1991). In Cecil, the supreme court concluded, based upon the express language of the predecessor to appellate rule 33.1 (Texas Rule of Appellate Procedure 52(d)), that motions for new trial need not be “presented” to the trial court to preserve a complaint for appellate review. This exception can now be found in appellate rule 33.1(b) and applies only to motions for new trial and motions to modify judgment. Tex.R.App. P. 33.1(b). The opinion in Cecil contains no language suggesting that its holding can be extended beyond the motions to which appellate rule 33.1(b) applies. Therefore, Cecil is inappo-site.

Knowledge of Trial Court

ETMC next argues that “[s]ince the only issue raised and the only thing [ETMC] inquired about was the absence of a residency statement in the affidavits, it was pretty much a given that ETMC would be filing amended affidavits. Moreover, the trial court specifically rejected an attempt to close the evidence to prevent any such amended affidavits.” Additionally, ETMC states that the affidavits were filed “after the trial court expressly gave permission to do so while he held the motion to transfer under advisement.” Therefore, ETMC maintains that the trial court was charged with knowledge that the filing had in fact occurred, which, in turn, fulfilled any requirement that ETMC call the new affidavits to the trial court’s attention.

Merely filing a document with the district clerk does not impute the clerk’s knowledge of the filing to the trial court. See, e.g., In re Hearn, 137 S.W.3d 681, 685 (Tex.App.-San Antonio 2004, orig. proceeding); In re Chavez, 62 S.W.3d 225, 229 (Tex.App.-Amarillo 2001, orig. proceeding). Therefore, the filing of a document with the court clerk does not in and of itself bring the matter to the attention of the court. See In re Davidson, 153 S.W.3d 490, (Tex.App.-Amarillo 2004, orig. proceeding). The new affidavits were not in existence at the time the trial court gave ETMC permission to “file [their] stuff in the morning.” Thus, ETMC had the burden to secure new affidavits from at least three of the affiants and file them the next morning. Although ETMC argues that their filing the new affidavits was “a given,” the likelihood of the filing is not relevant here. If an actual filing is insufficient to bring a filed document to the court’s attention, it logically follows that knowledge of a potential, (or even a likely,) filing is also insufficient. Therefore, the trial court was not charged with notice of the actual filing. ETMC’s argument is without merit.

Conclusion

To show its entitlement to mandamus relief, ETMC was required to demonstrate that (1) the trial court had a legal duty to act, (2) ETMC requested performance, and (3) the trial court refused to perform. Based upon our review of the record, we conclude that ETMC did not establish a request for performance based upon the new affidavits. Despite its arguments to the contrary, we cannot agree that ETMC was excused from this requirement. Because it did not make the necessary request, ETMC has been unable to establish the trial court’s refusal to act on such a request. Therefore, ETMC has not shown any abuse of discretion by the trial court. Because ETMC has not shown the trial court abused its discretion, we need not address the adequacy of appeal as a remedy. Accordingly, the writ of mandamus is denied. ETMC’s motion for immediate temporary relief is overruled as moot.

      . At oral argument, one of the attorneys representing ETMC stated that he had shown the new affidavits to the trial judge after they were filed. However, his conversation with the judge does not appear in the record. Consequently, we may not consider this infer-mation. See In re Cortez, 143 S.W.3d 265, 268 n. 6 (Tex.App.-San Antonio 2004, orig. proceeding) (appellate court may consider material outside the record only to the extent necessary to determine its jurisdiction).


author: /s/ Joseph E. Lambert Chief Justice

text:
    KENTUCKY BAR ASSOCIATION, Movant, v. Edward H. ADAIR, KBA Member No. 81221, Respondent.
    No. 2004-SC-1011-KB.
    Supreme Court of Kentucky.
    Jan. 20, 2005.
    As Modified Feb. 8, 2005.

      Bruce K. Davis, Executive Director, Jay R. Garrett, Deputy Bar Counsel, Kentucky Bar Association, Frankfort, Counsel for Movant.
    Edward H. Adair, Oak Ridge, TN, Counsel for Respondent.
   OPINION AND ORDER

The Board of Governors of the Kentucky Bar Association (Board) moves the Court to adopt its Findings of Fact, Conclusions of Law, and Recommendation to suspend Respondent, Edward H. Adair, from the practice of law for 181 days for violations of SCR 3.130-1.16(d), SCR 3.130-1.15(b), and SCR 3.130-1.4(b). Respondent was charged on May 6, 2004, by the Inquiry Commission of the Kentucky Bar Association with three counts of professional misconduct. Although he was personally served, Respondent never responded. Count I alleges a violation of SCR 3.130-1.16(d), for failing to inform his clients that he had been suspended from the practice of law in February 2000, and failing to refund to his client an unearned fee. Count II alleges that Respondent violated SCR 3.130-1.15(b) when he failed to return to his client the unearned fee and the fee did not meet the requirements of a nonrefundable retainer. Count III alleges a violation of SCR 3.130-1.4(b) for failing to explain the matter to the clients to the extent reasonably necessary to permit the clients to make an informed decision regarding his representation. Included in Count III are the allegations that Respondent failed to communicate to his clients that he had been suspended from the practice of law by order of the Kentucky Supreme Court in February 2000; that the civil complaint that he had agreed to file had not been filed; and that he could no longer represent them in the matter because of his suspension.

The underlying facts contained in the record show that Respondent agreed to represent Clients A and B (the “Clients”) in a property dispute in Perry County, Kentucky. Respondent met with the Clients approximately four times in August of 1999. Respondent recommended that they hire a licensed surveyor, Clyde Baker, to survey the property in question to help in his preparation for the dispute. Client A had used Mr. Baker in earlier matters. Respondent also met with Mr. Baker concerning the property to help in his preparation.

On approximately August 10, 1999, Respondent and his office staff met with the Clients and other property owners concerning the disputed property. The meeting occurred at the home of the Clients. At that time, the Clients paid Respondent $1,020 toward the total fee of $1,250. Respondent provided a receipt and stated the fee was for a property dispute case and the money paid was a “nonrefundable retainer.”

After that meeting, the Clients tried to contact Respondent for six weeks to find out some information concerning the status of the case. They were unable to contact Respondent. When the Clients finally were able to speak with Respondent, he stated that he needed to meet with them to discuss the case. That meeting never occurred. The Clients continued to attempt to speak with Respondent but were unable to make contact. In June of 2000, the Clients learned from the Perry Circuit Clerk that Respondent had been suspended from the practice of law. After learning of Respondent’s suspension, the Clients traveled to Respondent’s law office. Respondent informed the Clients that he had been suspended from the practice of law, and that he would notify them by mail about the status of their case. Respondent, however, did not comply with his promise. He neither contacted the Clients as promised nor took any legal action on their behalf. The Clients requested that Respondent refund their money, but Respondent made no response.

On September 80, 2003, Respondent was served with a copy of the complaint. Respondent filed a response on October 9, 2003, and admitted that there was a “breakdown in communication” with his clients. Respondent admitted to them that he had been suspended from the practice of law in Kentucky for noncompliance with continuing legal education (CLE) requirements. Previously, he had been suspended for noncompliance with the CLE requirements on February 28, 2000 and for nonpayment of bar dues on April 21, 2000. Respondent also informed the Clients that he was incarcerated for four months, but the record is devoid of any explanation for his incarceration. It is clear that Respondent was incarcerated during some of the period of his representation of the Clients.

The Board of Governors of the Kentucky Bar Association, after full discussion and deliberation of the facts of this matter, voted that Respondent was guilty of all three counts of professional misconduct. Finally, the Board voted unanimously to impose upon Respondent a 181 day suspension from the practice of law.

Based upon Respondent’s failure to communicate with his clients, his failure to return the unearned fee, his failure to take any action on behalf of his clients or to inform them that he was suspended from the practice of law, and his failure to fully explain the nonrefundability of the retainer fee either orally or in writing as set out in E-380, we adopt the recommendation of the Board of Governors to impose a 181 day suspension from the practice of law.

Upon the Movant’s Findings of Fact, Conclusions of Law, and Recommendation, and the Respondent standing in default, it is ordered that:

1. Respondent, Edward H. Adair, is hereby suspended for a period of 181 day for violations of SCR 3.130-1.16(d), SCR 3.130 — 1.15(b), and SCR 3.130-1.4(b) to begin upon the date of the entry of this Opinion and Order.

2. In accordance with SCR 3.166(4) and 3.390, Respondent shall, within ten days from the entry of this Opinion and Order, notify in writing all courts in which he may have matters pending and all clients, of his inability to provide further legal services, and furnish the Director of the Kentucky Bar Association with a copy of all such letters. Respondent shall also make arrangements to return all active files to the clients or to new counsel, and shall return all unearned attorney fees and client property to the client and shall advise the KBA Director of such arrangements within the same ten day period.

3. In accordance with SCR 3.450, Adair is directed to pay all costs associated with these disciplinary proceedings in the amount of $122.35, for which execution may issue from this Court upon finality of this Opinion and Order.

All concur.

ENTERED: January 20, 2005.

/s/ Joseph E. Lambert

Chief Justice

      . On September 30, 2003, Respondent was served with a copy of the complaint. Respondent filed a response on October 9, 2003.

      . Kentucky Bar Ass’n v. Bazzell, 936 S.W.2d 769 (Ky.1997) (holding ninety-day suspension was warranted for attorney who abandoned law practice without notifying client before final divorce hearing); Kentucky Bar Ass'n v. Berkebile, 971 S.W.2d 292 (K.y.1998); Kentucky Bar Ass’n v. Cartee, 53 S.W.3d 69 (Ky.2000).


text:
    INQUIRY COMMISSION, Movant, v. Barry Sloan SMITH, Respondent.
    No. 2004-SC-001014-KB.
    Supreme Court of Kentucky.
    Feb. 17, 2005.
    Gardner L. Turner, Sturgill, Turner, Barker & Moloney, Lexington, Jay R. Garrett, Kentucky Bar Association, Frankfort, Counsel for Movant.
    Barry S. Smith, Albany, for Respondent.
   OPINION AND ORDER

The Inquiry Commission requests that Respondent, Barry Sloan Smith, KBA Member No. 83508, and whose last known address is 114 South Washington Street, Albany, Kentucky 42602, be temporarily suspended from the practice of law in the Commonwealth of Kentucky for preparing fraudulent court orders, forging a United States District Judge’s signature on the orders, failing to take action on his clients’ behalf, and misrepresenting important facts to his clients about their cases. The Inquiry Commission states that “probable cause exists to believe that ... [Respondent’s] conduct poses a substantial threat of harm to his clients or the public[,]” thus warranting the Respondent’s temporary suspension under SCR 8.165(l)(b).

Respondent represented Ruth Thrasher, who claims that a staple became lodged in her throat while she consumed a can of Mountain Dew. On July 12, 2002, Respondent filed a complaint against Pepsi-Cola Company in Clinton Circuit Court, which Pepsi had removed to the United States District Court for the Western District of Kentucky in Bowling Green. When Respondent failed to comply with federally required discovery disclosures, Pepsi petitioned the Court for a dismissal of the case, which Judge Thomas Russell granted on March 24, 2003. After Ms. Thrasher’s case was dismissed and no appeal was taken, Respondent deceived Ms. Thrasher in the following manner:

(1) Respondent claimed that Pepsi was willing to settle Ms. Thrasher’s case for two million dollars and reviewed a settlement agreement with her;

(2) Respondent furnished Ms. Thrasher with a copy of a fraudulent scheduling order on which he forged Judge Thomas Russell’s signature;

(3) Respondent provided Ms. Thrasher with a copy of an order setting her case for trial on which he forged Judge Thomas Russell’s signature;

(4) Respondent gave Ms. Thrasher a copy of an amended complaint he allegedly filed in her case;

(5) Respondent furnished Ms. Thrasher with a copy of a response to a notice of appeal allegedly filed by Pepsi; and

(6)Respondent pretended to have a telephone conversation about her case with Judge Thomas Russell in Ms. Thrasher’s presence.

Respondent apparently maintained this charade for ten months. However, in following up on Respondent telling her that Pepsi was to obtain new counsel, Ms. Thrasher discovered from Pepsi’s attorney that her case had been dismissed. Ms. Thrasher immediately notified Judge Russell and provided him with copies of the documents that Respondent had manufactured.

After several attempts to have Respondent appear for a hearing on the matter, Judge Russell denied Respondent’s request to postpone the matter and issued an order for Respondent to appear and show cause for his absence. Respondent also failed to appear at the show cause hearing, thus Judge Russell found him in contempt and fined him $5,000.00.

Respondent also agreed to represent Ronnie Byers and claimed to have initiated an action on his behalf. However, after Byers contacted another attorney, Paul H. Riley, Jr., to investigate the situation, he discovered that the case had never been filed and that the orders purportedly signed by Judge Thomas Russell were forgeries and the order signed by the “Chief Regional Judge for the Eastern District of Kentucky, L.B. Harper,” was a fabrication.

Respondent has failed to file a response to the Inquiry Commission’s petition, and finding probable cause exists, we hereby grant the petition for temporary suspension in accordance with SCR 3.165(l)(b).

ACCORDINGLY, IT IS HEREBY ORDERED:

(1) Respondent is temporarily suspended from the practice of law in the Commonwealth of Kentucky pending further orders from this Court.

(2) Within twenty (20) days from the date of the entry of this Opinion and Order, Respondent shall notify in writing all clients of his inability to provide further legal services and furnish the Director of the Kentucky Bar Association with copies of all such letters.

All concur.

Entered: February 17, 2005.

/s/ Joseph E. Lambert

Chief Justice

      . SCR 3.165(l)(b).

      . Judge Thomas Russell’s affidavit is attached to the Petition for Temporary Suspension Pursuant to SCR 3.165(l)(b).

      .Paul H. Riley, Jr.’s affidavit is attached to the Petition for Temporary Suspension Pursuant to SCR 3.165(l)(b).


text:
    KENTUCKY BAR ASSOCIATION, Movant, v. David P. CHINN (KBA Member No. 11865), Respondent.
    No. 2004-SC-1010-KB.
    Supreme Court of Kentucky.
    Feb. 17, 2005.
   OPINION AND ORDER

The Kentucky Bar Association (KBA) brought this action against Respondent, David P. Chinn, for violations of SCR 3.130-1.3 (lack of diligence); SCR 3.130-1.4(a) (lack of adequate communication with a client); SCR 3.130-8.3(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation); and SCR 3.130-8.1(b) (failure to respond in a disciplinary action).

The foregoing ethical violations arose in connection with Respondent’s representation of Ricky and Sonya Campbell in bankruptcy and foreclosure proceedings. Respondent informed the Campbells in May 2002 that he had successfully negotiated a repayment plan with their mortgage company and instructed the Campbells to resume making payments. Relying on Respondent’s advice, the Campbells made payments to the mortgage company. The mortgage company subsequently returned a payment in August 2002 informing the Campbells that their case was in foreclosure and their house would be sold in September.

The Campbells attempted to contact Respondent on numerous occasions with no response. Respondent did not return their telephone calls. Respondent repeatedly assured the Campbells from July 2002 through September 2002 that there was no problem with the mortgage on their residence, that the foreclosure sale was being cancelled because Respondent knew the Master Commissioner personally, and that the sale date had been scheduled by mistake. The Campbells later hired additional counsel but were unsuccessful in preventing the foreclosure sale. They thereafter learned that Respondent had failed to attend two noticed court hearings in the foreclosure case.

Respondent was served with a bar complaint on April 28, 2008. He failed to respond. The Office of Bar Counsel sent a warning letter dated August 18, 2003, but it was returned as undeliverable. Thereafter, the Sheriff was unable to locate Respondent to serve him with the reminder letter.

The Inquiry Commission then issued a charge against Respondent on April 13, 2004. Respondent was served with a copy of the charge at his bar roster address, but he failed to file an answer or other responsive pleading. He has failed to communicate with the Kentucky Bar Association concerning the charge.

Respondent was previously suspended from the practice of law by Order of this Court for two years with the period of suspension commencing on September 26, 2002. Ky. Bar Ass’n. v. Chinn, 84 S.W.3d 458 (Ky.2002). Respondent has not been reinstated to the practice of law. Accordingly, IT IS HEREBY ORDERED that:

1. Respondent, David P. Chinn, is hereby suspended from the practice of law for three years to run consecutively with the current suspension now pending against him.

2. In accordance with SCR 3.450, Respondent is directed to pay all costs associated with these disciplinary proceedings against him, said sum being $244.68, and for which execution may issue from this Court upon finality of this Opinion and Order.

3. If he has not already done so, in accordance with SCR 3.390, Respondent shall, within ten (10) days from the entry of this Opinion and Order: (a) to the extent possible, cancel and cease any advertising activities in which he is engaged; and (b) notify, in writing, all courts in which he may have matters pending, and all clients for whom he is actively involved, of his inability to provide further legal services, and furnish the Director of the Kentucky Bar Association with a copy of all such letters.

All concur.

ENTERED: February 17, 2005.

/s/ Joseph E. Lambert

Chief Justice


author: MARY R. RUSSELL, Judge.

text:
    AMERISTAR JET CHARTER, INC., and Sierra American Corporation, Appellant-Respondent, v. DODSON INTERNATIONAL PARTS, INC., Respondent-Appellant, Houston Casualty Company, Respondent, Howe Associates, Inc., Defendant.
    No. SC 85889.
    Supreme Court of Missouri, En Banc.
    Jan. 25, 2005.
    Rehearing Denied March 1, 2005.

      Christopher S. Shank, David L. Heine-mann, Yvonne M. Warlen, Kansas City, Richard A. Ulmer, Dallas, TX, for Appellant-Respondent.
    Donald G. Scott, Kansas City, for Respondent-Appellant.
    Martin M. Montemore, Patrick J. Kaine, Kansas City, Mark Cohen, Houston, TX, for Respondent.
   MARY R. RUSSELL, Judge.

Ameristar Jet Charter, Inc. and Sierra American Corporation (collectively “Owner”) brought a negligence suit against Dodson International Parts, Inc. (“Hauler”) for its mishandling of Owner’s airplane that was damaged after an emergency landing. The jury found in favor of Owner, and Hauler appeals the trial court’s entry of judgment in accordance with the jury verdict. After opinion by the Court of Appeals, Western District, this Court granted transfer. Mo. Const, art. V, sec. 10.

Hauler raises eight issues on appeal, including that Owner presented insufficient evidence of lost profits damages. This Court reverses the trial court’s judgment as to the calculation of lost profits damages. The trial court’s judgment with respect to Hauler’s remaining issues is affirmed. Owner also appeals, alleging that the trial court incorrectly calculated Owner’s award against Hauler. This Court reverses the trial court’s judgment as to the damages award calculation. The case is remanded for a new trial on the issue of damages or other relief consistent with this opinion.

Owner also asserted claims against its insurance carrier, Houston Casualty Corporation (“Insurer”), for negligent misrepresentation, negligence, and bad faith. The trial court granted Insurer’s motion for summary judgment. Owner appeals, alleging that the trial court improperly granted judgment for Insurer based on a release contained in the proof of loss signed by Owner. This Court affirms the trial court’s judgment in favor of Insurer.

I. Facts

Ameristar and Sierra are in the air charter business. Sierra owns several jet airplanes, including the airplane that is the subject of this suit. Sierra leases these airplanes to Ameristar, which uses them to deliver parts for automobile manufacturers.

One of Owner’s planes, a Falcon 20 Jet, made an emergency landing in April 1998 on a levee near the Kansas City Downtown Airport. Insurer’s claims adjuster, Howe Associates, Inc. (“Adjuster”), hired Hauler to transport the airplane from the levee to the Kansas City Downtown Airport. In order to transport the airplane, Hauler removed the wings from the airplane and hauled the airplane’s fuselage on a flat-bed trailer.

After Insurer ultimately concluded that the fuselage was bent and the repair cost would be prohibitively high, Insurer submitted a proof of loss to Owner, which proposed to treat the airplane as a constructive total loss and obligated Insurer to pay the policy limits of $1.5 million. Although Owner contends that Insurer gave it no choice in the matter, Owner signed the proof of loss and accepted payment of the policy limits.

The airplane was later sold at a salvage auction, in which Hauler outbid Owner and purchased the airplane from Insurer. It was discovered that Insurer was incorrect in its determination that the airplane’s fuselage was permanently bent because the fuselage “popped” back into place after being removed from the flat-bed trailer. Hauler repaired the airplane for approximately $100,000, and offered to sell it to Owner for $1.5 million. Owner refused and purchased a replacement airplane for approximately $2.1 million.

Owner asserted a negligence claim against Hauler for its mishandling of the airplane. The trial court submitted this claim to the jury on comparative fault instructions. The jury found in favor of Owner, assigning 70% of the fault to Hauler and 30% of the fault to Owner. The jury also found Owner’s actual damages to be $2.1 million. Based upon the jury’s findings, the trial court entered judgment in favor of Owner for $1,435,000.

II. Hauler’s Claims

A. Owner Presented Insufficient Evidence of Lost Profits.

Hauler argues that Owner did not provide sufficient evidence of lost profits in that Owner failed in calculating its net profit to deduct a variety of fixed and variable expenses, including salaries, benefits, insurance, depreciation, rent, interest, and other costs attributable to generating revenue with this aircraft.'

Owner’s primary evidence regarding its claimed lost profits damages was a chart summarizing the revenue and expenses of its business. Owner’s president testified as to the methodology used to produce the calculations in the summary chart. The chart contained estimated lost profits from after the incident in April 1998 to August 1999. Based on the average revenue of all of the airplanes in its fleet, Owner calculated an estimate of the lost gross revenue for the damaged airplane.

Owner determined what the variable expenses were and subtracted this figure from the gross revenue to obtain profit. The variable expenses that Owner deducted were expenses for fuel and maintenance of its fleet. Owner’s estimate of its lost profits damages for this airplane from April 1998 to August 1999 was $2,562,088.94. .The jury returned a verdict finding Owner’s total damages to be $2.1 million. After deducting the settlement amounts and the comparative fault allocated to Owner, the trial court found the total amount of Owner’s damages to be $1,435,000.

1. General Principles

The goal of awarding damages is to compensate a party for a legally recognized loss. De Salme v. Union Elec. Light & Power Co., 232 Mo.App. 245, 102 S.W.2d 779, 782 (1937); see also Sampson v. Mo. Pac. R. Co., 560 S.W.2d 573, 588 (Mo. banc 1978) (stating that the ultimate test for damages is whether the award will fairly and reasonably compensate the party for its injuries); Dan B. Dobbs, Law of Remedies § 3.1, at 210 (2d ed.1993). A party should be fully compensated for its loss, but not recover a windfall. Weeks-Maxwell Constr. Co. v. Belger Cartage Serv., Inc., 409 S.W.2d 792, 796 (Mo.App.1966); Dobbs, § 3.1, at 210. In many contract and tort cases involving damage to persons, property or businesses, a party requests damages for loss of business profits. “In evaluating the sufficiency of evidence to sustain awards of damages for loss of business profits the appellate courts of this state have made stringent requirements, refusing to permit speculation as to probable or expected profits, and requiring a substantial basis for such awards.” Coonis v. Rogers, 429 S.W.2d 709, 713-14 (Mo.1968).

For an award of lost profits damages, a party must produce evidence that provides an adequate basis for estimating the lost profits with reasonable certainty. Meridian Enters. Corp. v. KCBS, Inc., 910 S.W.2d 329, 331 (Mo.App.1995). “Loss of profits refers to the amount of net profits a plaintiff would have realized if its clients had not been lost as a result of a defendant’s actions.” Id. While an estimate of prospective or anticipated profits must rest upon more than mere speculation, “[u]ncertainty as to the amount of profits that would have been made does not prevent a recovery.” Gasser v. John Knox Village, 761 S.W.2d 728, 734 (Mo.App.1988). The claimant must establish the fact of damages with reasonable certainty, but it is not always possible to establish the amount of damages with the same degree of certainty.

In some cases, the evidence weighed in common experience demonstrates that a substantial pecuniary loss has occurred, but at the same time it is apparent that the loss is of a character which defies exact proof. In that situation, it is reasonable to require a lesser degree of certainty as to the amount of loss, leaving a greater degree of discretion to the court or jury. This principle is applicable in the case of proof of lost profits.

Ranch Hand Foods, Inc. v. Polar Pak Foods, Inc., 690 S.W.2d 437, 444-45 (Mo.App.1985) (internal citations omitted).

2. Fixed and Variable Expenses

Hauler argues that Owner failed to deduct certain fixed and variable expenses in calculating its lost profits damages.

Missouri courts agree that lost profits are recoverable in a variety of breach of contract, tort, and business interruption cases. See Coonis, 429 S.W.2d at 714; Meridian, 910 S.W.2d at 332. In general, in calculating lost profits damages, lost revenue is estimated, and overhead expenses tied to the production of that income are deducted from the estimated lost revenue. Id. Overhead expenses include both fixed and variable expenses. Universal Power Sys., Inc. v. Godfather’s Pizza, Inc., 818 F.2d 667, 673 (8th Cir.1987) (applying Missouri law). Fixed expenses are the continuous expenses of the business that are incurred regardless of the loss of a portion of the business, for example rent, taxes, and administrative salaries. I dr, H. Kent Munson, Fixed Overhead Expenses: Gr-emlins of Lost Profits Damages, 56 J. Mo. B. 104 (Mareh-April 2000). Variable expenses, also called direct expenses, are costs directly linked to the volume of business. Universal Power Sys., 818 F.2d at 673.

The Missouri appellate cases are split on whether fixed expenses should be deducted from estimated lost revenues in the calculation of lost profits damages. This Court granted transfer of this case to resolve this conflict.

The Meridian case illustrates one approach. In Meridian, a travel agency claimed lost profits damages because the defendant wrongfully deprived it of the business of handling a 1990 trip to Hawaii. Meridian, 910 S.W.2d at 330-31. The court affirmed the trial court’s grant of a directed verdict in favor of the defendants because the plaintiff failed to present evidence regarding its overhead expenses to support its claim for lost profits damages. Id. at 329. The court required the plaintiff to deduct both fixed and variable expenses in calculating lost profits. Id. at 332. In explaining its holding, the court stated that “[t]he cost and expense of operation is a considerable item and in an action for loss of profits is an essential item in the proof of damages.” Id. (citing Coonis, 429 S.W.2d at 714). The court further explained that “[although ‘it is not necessary to show the income and expenses of the entire business where only a portion thereof has been lost, it is still necessary to offset the expenses attributable to that portion from the revenues derived from such portion in order to reach a net profit amount which can be recovered in damages.’ ” Id. (quoting All Star Amusement, Inc. v. Jones, 727 S.W.2d 930, 932 (Mo.App.1987)).

In another case, Skinner v. Thomas, 982 S.W.2d 698 (Mo.App.1998), the court required evidence of all overhead expenses. In Skinner, the plaintiff restaurant owners brought a breach of contract action against the defendant co-owner for failing to share business profits. Id. at 698-99. The court held that “a plaintiff fails to make a sub-missible case of damages if plaintiff does not introduce evidence of overhead expenses such as mortgage or rent, utilities, and salaries attributable to the business producing the income [and that] plaintiffs failure to produce evidence of overhead expenses prevents them from making a submissible case.” Id. at 700.

Other Missouri appellate cases have held that fixed expenses should not be deducted in the calculation of lost profits damages. In Forney, the plaintiff subcontractor sought lost profits damages in a breach of contract suit against the defendant contractor after the contractor prevented it from performing its work under the construction contract. Forney v. Mo. Bridge & Concrete, Inc., 112 S.W.3d 471, 473 (Mo.App.2003). The court held that only variable expenses, those expenses associated directly with the contract at issue and actually incurred, should be deducted from estimated lost revenues to determine lost profits damages. Id. at 474-45. The court explained that “[ojverhead expenses are included in the contractor’s total cost saved by nonperformance and, thus, deducted from the contract price only where the owner/defendant proves that such expenses were actually saved by the breach.” Id. at 474.

In MFA Coop. Ass’n No. 86 v. Stone, 971 S.W.2d 885, 886-87 (Mo.App.1998), the defendant milk producers alleged that certain ingredients found in the feed they purchased from the plaintiff farm supply dealer caused their cattle to produce less milk, which resulted in decreased milk sales. The court discussed the deduction of overhead expenses and affirmed a jury verdict for lost profits damages without evidence of the deduction of any overhead expenses. Id. at 889-93. In its attempt to distinguish MFA from Coonis and Meridian, the court stated:

‘Nothing in the record suggests Defendants’ operating costs diming the period in dispute would have been higher had the ■ herd produced the customary amount of milk. Said another way, there was no evidence that it would have cost Defendants any more to produce the “lost milk” plus the actual milk than it did to produce the actual milk alone. Consequently, the jurors could have reasonably concluded that the profits Defendants lost could be readily ascertained from the evidence adduced at trial.

Id. at 890.

This Court holds that in tort actions, variable expenses, not fixed expenses, should be deducted from estimated lost revenues in the calculation of lost profits damages. These variable expenses are expenses that are tied directly to the unit of business or property damaged as a result of the defendant’s actions. These variable expenses may include expenses for fuel, maintenance, depreciation, interest, insurance, salaries and benefits for particular employees and rental of storage space so long as the party claiming lost profits damages can produce evidence of the estimated lost revenue of the unit of business or property damaged and all ascertainable variable expenses directly tied to it.

Hauler argues that the following overhead costs should be deducted from lost profits damages: salaries and benefits and training for the pilot and co-pilot to fly the airplane; hangar rental for parking of the airplane; advertising; telephone; salaries and benefits for filing, accounting, clerical and administrative staff involved in scheduling cargo shipments and billing and collecting related revenue; the expense of office space, furniture and equipment used in generating revenues; and depreciation of such capital assets used in generating revenues and interest expense. Owner’s president testified that these costs were fixed expenses and should not have been deducted from its estimated lost revenue to determine its lost profits damages. Owner’s evidence was that it would have incurred these expenses in the operation of its business, regardless of its loss of the use of this airplane in its fleet. Although this Court finds these expenses to be fixed under the facts of this case, under different factual scenarios these overhead costs could be variable expenses that should be deducted from estimated lost revenues to determine lost profits damages.

Hauler also argues that Owner failed to produce evidence or failed to deduct all variable expenses associated with the loss of operation of the damaged airplane. The only variable expenses Owner deducted from its estimate of lost revenue were the expenses for fuel and maintenance of the airplane. Specific variable expenses of which Owner should have produced evidence and deducted from its estimated lost revenue are those expenses that are ascertainable and directly related to the operation of this airplane. Hauler specifically complains about the following expenses: depreciation on the airplane; debt service or interest on financing the airplane; and premiums for hull insurance and liability insurance on the airplane. Although Owner’s president provided limited testimony about these expenses, the record is insufficient for this Court to determine what these expenses were and if they are fixed expenses that are not to be deducted, or are variable expenses that should be deducted from estimated lost revenues in the calculation of lost profits damages.

Therefore, this Court reverses the judgment in part and remands the case for a new trial on the issue of damages or other relief consistent with this opinion.

B. Hauler Cannot Challenge Owner’s Standing to Maintain its Claims Against Hauler.

Hauler argues that Owner lacked standing to maintain claims against it because Owner signed a proof of loss assigning the entire cause of action to Insurer. The assignment clause in the proof of loss stated:

Now, therefore, in consideration of aforesaid payment, I/we hereby assign, transfer and subrogate to the said Insurance Company, all right, interest, or things in action against any person or corporation, who may be liable or hereafter adjudged liable for this loss, and I/we empower the said Insurance Company to sue, compromise or settle in my/our name(s), to the extent of the money aforesaid.

Because Insurer, not Hauler, would have received the benefit of any assignment of the cause of action, Insurer is the aggrieved party for purposes of this issue. In general, a party seeking appeal must be aggrieved by the judgment. Section 512.020, RSMo 2000. A party is aggrieved “when the judgment operates prejudicially and directly on his personal or property rights or interests and such effect is immediate and not merely a possible remote consequence.” Shelter Mut. Ins. Co. v. Briggs, 793 S.W.2d 862, 863 (Mo. banc 1990).

Here, Hauler’s rights and interests were not affected by the trial court’s ruling. Insurer, as the aggrieved party, has not asserted any right of setoff, subrogation or otherwise, or attempted to bring an inter-pleader action as to whatever Owner may recover from Hauler at trial or on appeal. Hauler’s claim is without merit.

C. Hauler’s Remaining Claims

As to the remaining claims raised by Hauler, this Court affirms the trial court’s judgment pursuant to Rule 84.16. Having examined these claims thoroughly and finding no error of law, an extended opinion on these claims would have no prece-dential value.

III. Owner’s Claims

A. The Trial Court Properly Granted Insurer’s Motion for Summary Judgment Based on a Release Contained in the Proof of Loss Owner Signed.

1. Governing Law

Owner and Insurer agree that the trial court correctly found that Texas substantive law governs whether the trial court properly granted Insurer’s motion for summary judgment based on a release contained in the proof of loss Owner signed. In substantive matters, Missouri follows the “most significant relationship” test of the Restatement (Second) of Conflict of Laws, section 188, in determining what law applies. Dillard v. Shaughnessy, Fickel & Scott Architects, Inc., 943 S.W.2d 711, 718 (Mo.App.1997). As to procedural matters, such as summary judgment standards, this Court applies Missouri procedural law. Id.

2. Summary Judgment Standards

Appeals from summary judgment are essentially reviewed de novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). Summary judgment is only proper if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Rule 74.04. The moving party’s right to summary judgment differs depending on whether the moving party is a “claimant” or a “defending party.” ITT, 854 S.W.2d at 381. A “claimant” is one who seeks “to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment.” Rule 74.04(a). A “defending party” is one “against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought.” Rule 74.04(b).

Insurer’s motion for summary judgment addressed only claims Owner asserted against it. Therefore, for purpose of summary judgment, Insurer was a “defending party.” A “defending party” may establish a right to summary judgment by showing; (1) facts negating any one of the claimant’s elements; (2) that the party opposing the motion has presented insufficient evidence to allow the finding of the existence of any one of the claimant’s elements; or (3) that there is no genuine dispute as to the existence of each of the facts necessary to support a properly pleaded affirmative defense. ITT, 854 S.W.2d at 381.

3. The Release Does “Mention” Owner’s Claims Against Insurer as Required by Texas Law.

Insurer relies on a release contained in the proof of loss Owner signed as an affirmative defense. The release stated:

In consideration of such payment said Company is hereby discharged and forever released from any and all further claim, demand or liability whatsoever for said loss and damage, under the Policy herein referred to, repairs and/or replacements having been made to my entire satisfaction.

Under Texas law, “to release a claim, the releasing document must ‘mention’ it.” Memorial Medical Center of East Tex. v. Keszler, 943 S.W.2d 433, 434 (Tex.1997). In Keszler, a doctor signed a release in settlement of his suit against a hospital for disciplinary action taken against him. Id. In the release, the doctor and the hospital agreed that the doctor would release all claims “related to [the doctor’s] relationship with [the hospital].” Id. at 435. The Texas Supreme Court held that this release barred the doctor’s later suit for fraud and negligence based on exposure to a toxic sterilizing agent the hospital used during his employment because those claims were related to his relationship with the hospital, and, therefore, “mentioned” in the release. Id.

In this case, the release signed by Owner stated that Insurer is “discharged and forever released from any and all further claim, demand or liability whatsoever for said loss and damage, under the Policy herein referred to, repairs and/or replacements having been made to my satisfaction.” (Emphasis added). In light of the trial court’s grant of summary judgment finding no material facts in issue, the “said loss and damage” language in the release appears to refer to the loss of the airplane. All of Owner’s claims related to the incident that damaged its airplane and were, therefore, “mentioned” in the release contained in the proof of loss signed by Owner. By executing the release and accepting the $1.5 million in settlement funds, Owner relinquished any claims against Insurer arising out of, related to, or involving the incident that damaged Owner’s airplane, including the claims of negligence, negligent misrepresentation, and bad faith.

Owner argues that the release contained in the proof of loss signed by Owner was similar to the release in a Texas federal district court case, Vaughan v. Hartford Casualty Ins. Co., 277 F.Supp.2d 682 (N.D.Tex.2003), in which the court held the release was not broad enough to cover the claims asserted. Regardless of the Texas federal district court’s decision in Vaughan, the Texas Supreme Court is the ultimate authority on the interpretation and application of Texas law. See Tex. Const, art. V, sec. 3. This Court must follow the Texas Supreme Court’s holding in Keszler in finding that Owner’s claims were “mentioned” in the release. Owner voluntarily released these claims against Insurer, and Insurer is entitled to judgment as a matter of law.

B. The Trial Court Incorrectly Calculated Owner’s Award Against Hauler.

Owner also argues that the trial court incorrectly applied a $50,000 credit, the settlement from Adjuster, when it calculated the damages due from Hauler. The trial court subtracted the Adjuster’s settlement from the total jury award after apportioning the damages between Owner and Hauler according to the jury verdict.

The proper method for calculating damages is first to deduct from the total damages the amount the plaintiff received from settling defendants and then to apportion the remaining damages between the plaintiff and non-settling defendants according to their respective percentages of fault. Jensen v. ARA Servs., Inc., 736 S.W.2d 374 (Mo. banc 1987). In this case, the trial court erred in subtracting the Adjuster’s settlement from the total jury award after apportioning the damages. As a result, Owner’s recovery was reduced by $15,000. The judgment of the trial court finding Owner’s award to be $1,435,000 is reversed, and the ease is remanded.

IV. Conclusion

The trial court’s judgment is affirmed in part, and reversed and remanded in part for a new trial on the issue of damages or other relief consistent with this opinion.

WHITE, C.J., WOLFF, PRICE, TEITELMAN and LIMBAUGH, JJ., and BLACKMAR, Sr.J., concur.

STITH, J., not participating.

      . Parts of this opinion are taken without further attribution from the court of appeals opinion authored by the Honorable Thomas H. Newton.

      . There is nothing in the record that reflects how much of the damages award is for lost profits damages. Hauler argues that no more than $210,000 of the judgment could represent claimed lost market value of the airplane and that the remaining amount represents lost profits damages.

      . The remaining issues raised by Hauler are: Owner's failure to produce evidence of income and expenses of its business for a reasonable prigfcperiod; Owner’s failure to introduce th|Best evidence available of lost profits damáj^s; error in refusing a contributory negligence instruction; error in deviation from MAI 32.29 in mitigation of damages instruction; no substantial evidence that Hauler damaged the aircraft, reduced its market value or caused Owner's claimed loss of profit; error in exclusion of Exhibit 85 and refusal to take judicial notice of FAA regulation’s definition of maintenance; plain error in Owner's repeated argument improperly urging the jury to put themselves in Owner’s position; and grossly excessive verdict indicates bias, passion or prejudice and remittitur is warranted because amount awarded for lost profits is without substantial evidence to support it.


author: RONNIE L. WHITE, Chief Justice.

text:
    Brian SPEER, Appellant, v. Neysa COLON, f/k/a Neysa Rosario, Respondent.
    No. SC 86321.
    Supreme Court of Missouri, En Banc.
    Feb. 15, 2005.
    Sarah L. Reeder, Joplin, for appellant.
    Aaron W. Farber, Neosho, for respondent.
   RONNIE L. WHITE, Chief Justice.

I.

Brian Speer appeals from the circuit court’s order modifying child custody and support for his only child, J.A.S. This Court has jurisdiction, Mo. Const, art. V, sec. 10. The judgment is reversed, and the cause is remanded.

II.

In 1996, Speer and Neysa Colon dissolved their marriage, and the trial court awarded the couple joint legal and joint physical custody of J.A.S. The order also granted “primary care and custody” to Colon with liberal visitation rights for Speer.

In 2001, Speer sought primary physical custody and termination of his support payments alleging that Colon physically abused J.A.S. Speer also filed for a contempt citation, alleging that Colon had refused him visitation on J.A.S.’s birthday and had failed to produce J.A.S. for a court-ordered psychological evaluation.

On May 7, 2003, the trial court entered a modification judgment awarding joint legal custody to Speer and Colon, with Colon having “primary physical custody” of J.A.S. and with Speer having “liberal and specific visitation.” The trial court also overruled Speer’s contempt motion.

III.

Speer raises three points on appeal. The first two challenge the sufficiency of the trial court’s findings with regard to child custody and support as required by sections 452.375, 452.400 and 452.370. Speer’s third point asserts that the trial court failed to rule on his contempt motion as required under section 509.370.

On review of a custody modification case, the appellate court will affirm if the judgment is supported by substantial evidence, is not against the weight of the evidence, and does not erroneously declare or apply the law. In the context of this custody action, which predicates the determination of support, while the trial court’s determination is afforded greater deference than other types of cases, there must still be credible evidence to support the custody award. “[Bjecause the parties had not agreed to [the] custodial arrangement, the trial court was required to include in its judgment a written finding based on the public policy in section 452.375.4 and the factors listed in section 452.375.2(1) to (8) detailing the specific relevant factors that made the chosen arrangement in the best interest of the [child].” The trial court’s judgment is not in compliance with section 452.375.6, because it failed to make the required written findings detailing the specific relevant factors that supported its judgment. Section 452.375.6 does not mandate the need for a written finding on all of the factors listed, but the relevant factors must be detailed.

IV.

The judgment is reversed, and the cause is remanded. On remand the trial court shall make the required written findings in compliance with section 452.375.6, and take whatever other action is appropriate. The court shall also enter its custody finding in conformity with section 452.375.1 because Missouri’s statutory scheme does not allow for an order granting “primary physical custody.”

All concur.

      . The original order was modified in 1999 increasing Speer’s support obligation, and although it maintained the award of joint physical and legal custody, it also designated Colon as being the primary physical custodian.

      . The juvenile office of Jasper County dismissed its separate action pending on the abuse charges based on a psychologist’s recommendation that J.A.S. be returned to Colon.

      . "Joint physical custody” was deleted, and Speer's previous option of having the child during Mother’s working hours was omitted. Additionally, Speer’s child support obligation was increased.

      . All statutory references are to RSMo 2000 unless otherwise noted.

      . Kubley v. Brooks, 141 S.W.3d 21, 25 (Mo. banc 2004); Lueckenotte v. Lueckenotte, 34 S.W.3d 387, 397 (Mo. banc 2001).

      . Spradling v. Spradling, 959 S.W.2d 908, 911 (Mo.App.1998).

      . Cunningham v. Cunningham, 143 S.W.3d 647, 650 (Mo.App.2004); section 452.357.6. Had this action been brought by a person who was solely seeking visitation rights, or seeking modification of visitation rights, as opposed to an action seeking to modify custody, then the applicable statute would be section 452.400 and the trial court would only be required to make a finding as to why the ordered visitation would serve the best interests of the child.

      . Id..; Gross v. Helm, 98 S.W.3d 85, 88 (Mo.App.2003); Morse v. Morse, 80 S.W.3d 898, 903-904 (Mo.App.2002); Sleater v. Sleater, 42 S.W.3d 821, 823-24 (Mo.App.2001).

      . It should be noted that a change in Rule 78.07(c), effective January 1, 2005, requires that, "In all cases, allegations of error relating to the form or language of the judgment, including the failure to make statutorily required findings, must be raised in a motion to amend the judgment in order to be preserved for appellate review.”

      . On remand the parties will have the opportunity to revisit the motion for the contempt order, and; consequently, this Court need not reach that issue at this time.

      . Section 452.375.1. As used in this chapter, unless the context clearly indicates otherwise; (1) “Custody”, means joint legal custody, sole legal custody, joint physical custody or sole physical custody or any combination ■ thereof.


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

text:
    STATE ex rel. Lonnie MATTHEWS, Relator, v. The Honorable Michael MALONEY, Respondent.
    No. SC 86072.
    Supreme Court of Missouri, En Banc.
    Feb. 15, 2005.

      Michael J. Gunter, Kansas City, for relator.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Deborah Daniels, Andrew W. Hassell, Assistant Attorneys General, Jefferson City, Donald T. Norris, Clay County Prosecuting Attorney, Liberty, for respondent.
   ORIGINAL PROCEEDING IN MANDAMUS

STEPHEN N. LIMBAUGH, JR., Judge.

This is an original proceeding in mandamus in which relator seeks an order directing respondent to request a report from the department of corrections and then to consider relator for release from custody under section 558.016.8, RSMo Supp.2003. The specific question presented is whether the conviction for which relator is incarcerated — the class D felony of attempted assault in the second degree, a crime based on relator’s criminal negligence in causing injury to another person while operating a motor vehicle in an intoxicated condition— qualifies as a “nonviolent” class D felony to trigger the provisions of section 558.016.8. This Court issued its alternative writ, which is now made peremptory.

Relator, the defendant in the underlying criminal case, pleaded guilty to the charge, admitting the essential elements as set out in sections 565.060(4) and 564.011, to wit:

[that he] attempted to operate a motor vehicle while under the influence of alcohol and acted with criminal negligence in that [he] was driving northbound in the southbound lanes of U.S. Highway 169 and caused physical injury to Candace Crawford by colliding with a vehicle in which she was an occupant, and such conduct was a substantial step toward the commission of the crime of assault in the second degree, and was done for the purpose of committing such assault in the second degree.

On the basis of the plea, relator was sentenced to a term of five years in the department of corrections.

As noted, while incarcerated, relator filed a “petition for release” pursuant to section 558.016.8, which states in pertinent part:

An offender convicted of a nonviolent class C or class D felony with no prior prison commitments, after serving one hundred twenty days of his or her sentence, may, in writing, petition the court to serve the remainder of his or her sentence on probation, parole, or other court-approved alternative sentence. No hearing shall be conducted unless the court deems it necessary. Upon the offender petitioning the court, the department of corrections shall submit a report to the sentencing court which evaluates the conduct of the offender while in custody, alternative custodial methods available to the offender, and shall recommend whether the offender be released or remain in custody. If the report issued by the department is favorable and recommends probation, parole, or other alternative sentence, the court shall follow the recommendations of the department if the court deems it appropriate....

In his petition, relator alleged that he was eligible for release and that respondent was required to request a report regarding relator’s conduct from the department of corrections in that he had been convicted of a nonviolent class C or class D felony, he had no prior prison commitments, and he had served more than 120 days of his sentence. Respondent, however, determined that the conviction for attempted assault in the second degree was a violent felony, so that relator was not eligible for release and a request for a report from the department of corrections was not warranted.

Resolution of this case turns simply on the application of another statute, section 217.010, RSMo 2000, that defines the terms used in chapter 217 (pertaining to the department of corrections) and chapter 558 (pertaining to imprisonment). In pertinent part, section 217.010 states:

As used in this chapter and chapter 558, RSMo, unless the context clearly indicates otherwise, the following terms shall mean:
(11) “Nonviolent offender”, any offender who is convicted of a crime other than murder in the first or second degree, involuntary manslaughter, kidnapping, forcible rape, forcible sodomy, robbery in the first degree or assault in the first degree.

Under this section, a nonviolent offender is necessarily one who has committed a nonviolent offense, and it follows that a nonviolent offense is any offense not specifically listed in section 217.010(11). In other words, in defining the term “nonviolent offender,” the statute necessarily defines the universe of nonviolent offenses. Therefore, a “nonviolent class C or class D felony,” as those words are used in section 558.016.8, is any class C or class D felony that is not specifically listed in section 217.010. In this case, because attempted assault in the second degree is not specifically listed in section 217.010, it is a nonviolent offense.

To the contrary, the state maintains that section 217.010(11) does not control the definition of “nonviolent” as used in section 558.016.8. The contention is that in the context of the respective statutes, the definition of “nonviolent offender” in section 217.010 refers only to “the classification of offenders for the purposes of eligibility and placement in Department of Corrections in-prison programs,” not to “the classification of offenses for the purpose of determining the proper sentence for an offender.” That distinction is untenable, however, given the fact that the section 217.010 definition of “nonviolent offender” applies without limitation to all uses of the term in both chapter 217 and chapter 558.

In addition, the state argues that “it strains reason to believe that the list of offenses in the statute is an exclusive list of violent offenses” because the list does not include a number of obviously violent offenses such as domestic assault in the first and second degrees, sections 565.072 and 565.073, RSMo 2000, assault on a law enforcement officer in the first and second degrees, sections 565.081 and 565.082, RSMo 2000, robbery in the second degree, sec. 569.030, RSMo 2000, and several others. This argument, though, overlooks the express qualification in section 217.010 that the terms defined, which include the term “nonviolent offender,” shall apply “unless the context clearly indicates otherwise.” In theory, at least, this qualification suggests that there are indeed other offenses that, if the context of the statute defining the offense is clear, can and should be classified as violent and that the specified list of violent crimes in the statute (or rather the list of non-nonviolent crimes) is not exclusive. Whatever application that qualification may have to other offenses, it surely does not apply to the offense here of attempted assault in the second degree. This is an offense that is committed merely by criminal negligence as opposed to an offense that is committed with the purpose or knowledge that harm will be inflicted. That fact alone precludes a finding that “the context clearly indicates otherwise,” that is, that the context of the statutes defining the offense clearly indicates that the offense should be classified as violent even though it is not among the offenses listed in section 217.010(11).

In sum, this Court holds that the offense of attempted assault in the second degree as charged against relator is a nonviolent offense for purposes of section 558.016.8. Accordingly, relator is eligible to seek release from custody under the statute, and respondent shall request from the department of corrections a report evaluating relator’s conduct while in custody. The alternative writ of mandamus is made peremptory.

All concur.


author: WILLIAM RAY PRICE, JR., Judge.

text:
    In the Matter of John J. BOLAND, Sr., Deceased.
    No. SC 85902.
    Supreme Court of Missouri, En Banc.
    Feb. 15, 2005.

      James E. Hullverson, Jr., St. Louis, for appellant.
    Michael E. Doyel, Edward C. Vancil, St. Louis, for respondent.
   WILLIAM RAY PRICE, JR., Judge.

I.

Mary Frances Halliday and John J. Bo-land, Sr., were divorced in 1981. The decree of dissolution required Mr. Boland to “keep in full force and effect life insurance” on himself for an amount no less than $50,000 and to designate Ms. Halliday irrevocably as the beneficiary during her lifetime. After Mr. Boland died, Ms. Hal-liday demanded the insurance proceeds but did not receive payment. She filed a claim against Mr. Boland’s estate. The court denied the claim and Ms. Halliday appealed. The judgment is reversed and remanded.

II.

Mr. Boland and Ms. Halliday were married on April 22, 1975, and were divorced on July 9, 1981. Two days prior to their divorce they signed a separation agreement that was incorporated into them dissolution decree. Under the heading “Maintenance,” the separation agreement provided in pertinent part:

Additionally, Husband shall keep in full force and effect life insurance covering his life in the principal sum of not less than $50,000, upon which Wife is irrevocably designated as the beneficiary during her lifetime. Such life insurance shall not be payable to Wife in the event of her remarriage, prior to Husband’s death. Husband shall exhibit to Wife, upon her reasonable request, at reasonable intervals, evidence that she continues to be designated irrevocably as the beneficiary on such policy of insurance.

Mr. Boland later unsuccessfully tried to modify the dissolution decree. Halliday v. Boland, 813 S.W.2d 34 (Mo.App.1991). He paid maintenance to Ms. Halliday until his death.

Mr. Boland died on February 15, 2003, and Ms. Halliday, who had not remarried, demanded the $50,000 insurance proceeds in accordance with the dissolution decree. The estate responded that, “due to the fact that the 1981 Divorce Decree has not been revived in accordance with Section 516.350, the provisions of the decree referencing the life insurance [are] not enforceable.” Ms. Halliday prematurely filed a claim against Mr. Boland’s estate in August 2003 for $50,000 plus interest, costs, and attorneys fees. His estate had not yet been opened, so her claim was refiled on September 25, 2003.

The estate argued that Ms. Halliday’s exclusive remedy was through enforcement of the judgment. It claimed that the judgment was not timely revived pursuant to section 516.350, RSMo Cum.Supp.2003, which establishes a rebuttable presumption that judgments are paid, in certain circumstances, after 10 years from them date of entry.

The court denied her claim against Mr. Boland’s estate and Ms. Halliday appealed. She raised a constitutional challenge by alleging that the trial court retroactively applied section 516.350. Mo. Const, art. V, sec. 3. Her claim is otherwise resolved, and the constitutional question is not reached. See Rodriguez v. Suzuki Motor Corp., 996 S.W.2d 47, 53 (Mo. banc 1999).

III.

Ms. HaUiday’s claim can be resolved by focusing on the language of section 516.350 and construing it in accordance with the principles of statutory interpretation. The primary rule of statutory interpretation is to ascertain the intent of the legislature from the language used, to give effect to that intent if possible, and to consider the words in their plain and ordinary meaning. Land-man v. Ice Cream Specialties, Inc., 107 S.W.3d 240, 251 (Mo. banc 2003). Statutory construction should not be hyper technical but instead should be reasonable, logical, and should give meaning to the statutes. Id.

In its first subsection, section 516.350 creates a presumption of payment of judgments, with certain exceptions:

1.Every judgment, order or decree of any court of record ..., except for any judgment, order, or decree awarding child support or maintenance or dividing pension, retirement, life insurance, or other employee benefits in connection with a dissolution of mamage, legal separation or annulment which mandates the making of payments over a period of time or payments in the future, shall be presumed to be paid and satisfied after the expiration of ten years from the date of the original rendition thereof, or if the same has been revived upon personal service duly had upon the defendant or defendants therein, then after ten years from and after such revival, or in case a payment has been made on such judgment, order or decree, and duly entered upon the record thereof, after the expiration of ten years from the last payment so made, and after the expiration of ten years from the date of the original rendition or revival upon personal service, or from the date of the last payment, such judgment shall be conclusively presumed to be paid....

(emphasis added). The next two subsections of 516.350 attempt to complete the scheme by providing the presumptions of payment applicable for the exceptions created in subsection 516.350.1:

2. In any judgment, order, or decree awarding child support or maintenance, each periodic payment shall be presumed paid and satisfied after the expiration of ten years from the date that periodic payment is due, unless the judgment has been otherwise revived as set out in subsection 1 of this section. This subsection shall take effect as to all such judgments, orders, or decrees which have not been presumed paid pursuant to subsection 1 of this section as of August 31,1982.
3. In any judgment, order, or decree dividing pension, retirement, life insurance, or other employee benefits in connection with a dissolution of marriage, legal separation or annulment, each periodic payment shall be presumed paid and satisfied after the expiration of ten years from the date that periodic payment is due, unless the judgment has been otherwise revived as set out in subsection 1 of this section. This subsection shall take effect as to all such judgments, orders, or decrees which have not been presumed paid pursuant to subsection 1 of this section as of August 28, 2001.

(emphasis added).

IV.

The decree at issue was rendered in connection with a dissolution of marriage, awarded maintenance, and “mandate[d] the making of payments over a period of time or payments in the future.” Sec. 516.350.1. Mr. Boland’s obligation to “keep in full force and effect life insurance covering his life in the principal sum of not less than $50,000” was listed by the parties under the heading “Maintenance” in their separation agreement and in the decree. Accordingly, the explicit exception of section 516.350.1 applies.

Subsection 1 excepts “any judgment, order, or decree awarding child support or maintenance ... in connection with a dissolution of marriage, ... which mandates the making of payments over a period of time or payments in-the future” from the presumptive 10-year satisfaction period. In contrast, subsection 2 only applies to periodic payments, and it creates a new 10-year satisfaction period for “each periodic payment.” Neither subsection 1 nor 2 provides a presumption for future child support or maintenance payments that are not periodic.

y.

The requirement in the decree that Mr. Boland “shall keep in full force and effect life insurance covering his life” is clearly a continuing future obligation. Mr. Boland’s failure to comply with the agreement or the decree at any time from the date of the agreement until his death is irrelevant to determining the applicable presumption of payment. What is relevant is that, on the date of his death, he had no insurance policy and was noncompliant. His last opportunity to bring himself into compliance would have been the date of his death.

If this is treated as the failure to make a single payment due on that date, subsection 1 exempts such a payment from the 10-year presumption, subsection 2 does not create a substitute presumption, and the claim is not barred. Alternatively, if this is treated as the failure to make the last of a series of periodic payments, subsection 2 applies, 10 years has not run from the due date, and the claim is not barred.

VI.

The judgment is reversed, and the case is remanded.

All concur.

      . For a full discussion of issues related to this type of dispute, see Kelvin H. Dickinson, Divorce and Life Insurance: Post Mortem Remedies for Breach of a Duty to Maintain a Policy for a Designated Beneficiary, 61 Mo. L.Rev. 533 (1996).

      . All further references to section 516.350 refer to RSMo Cum.Supp.2003.

      . For purposes of statutory interpretation:
      1. Whenever, in any statute, words importing the plural number are used in describing or referring to any matter, parties or persons, any single matter, party or person is included, although distributive words are not used.
      2. When any subject matter, party or person is described or referred to by words importing the singular number or the masculine gender, several matters and persons, and females as well as males, and bodies corporate as well as individuals, are included.
      Sec. 1.030, RSMo 2000. Thus, section 516.350.1 applies to “payment” or “payments” over a period of time or in the future.

      . Because subsections 2 and 3 include an identical presumption of payment, it is unnecessary to determine whether the obligation falls within subsection 3 of section 516.350, which applies to “any judgment, order, or decree dividing pension, retirement, life insurance, or other employee benefits in connection with a dissolution of marriage.”