author: ROBERT G. DOWD, Jr., Judge.

text:
    Horace TINCH and Gerald Clark, Appellants, v. STATE FARM INSURANCE COMPANY, Respondent.
    No. ED 77168.
    Missouri Court of Appeals, Eastern District, Division Two.
    May 2, 2000.

      James E. Lownsdale, St. Louis, for appellant.
    Curtis R. Wilson, Kevin P. Schnurbusch, St. Louis, for respondent.
   ROBERT G. DOWD, Jr., Judge.

Horace Tinch and Gerald Clark (Tinch) appeal from the trial court’s grant of summary judgment in favor of State Farm Insurance Company (State Farm). Tinch argues the trial court erred because (1) there is a genuine issue of material fact as to whether the insurance policy was in effect at the time of the accident, and (2) the driver exclusion clause contained in the insurance policy is against public policy. We affirm.

Tinch’s father purchased an insurance policy from State Farm. The policy contained a “Driver Exclusion Endorsement” which stated:

In consideration of the premium charged for your policy it is agreed we shall not be liable and no liability or obligation of any kind shall attach to us for any bodily injury loss or damage under any of the coverages of the policy while any motor vehicle is operated by Horace A Tinch.

The policy also contained a clause relating to renewal. The clause stated:

Unless within 59 days of the policy effective date, we mail or deliver a notice of cancellation to you, we agree:

a. to continue it in force until the end of the current policy period; and
b. unless we mail to you written notice of our intention not to renew, to renew the policy for the next policy period upon your payment of the renewal premium. It is agreed that the renewal premium will be based upon the rates in effect, the coverages carried, the applicable limits of liability, deductibles and other elements that affect the premium that apply at the time of renewal.

The policy further states its “policy period” as “FEB-22-95 TO JUL-01-95.” The custodian of records at State Farm certified that the policy described above was in effect on the accident date of January 13, 1996.

On January 13, 1996, Tinch was driving a vehicle owned by his father when he was involved in a motor vehicle collision with an uninsured driver. Tinch and his passenger, Gerald Clark, presented a claim to State Farm for medical payments. State Farm denied the claim. Tinch sued to recover medical payment benefits from the accident. The trial court granted State Farm’s motion for summary judgment and dismissed the case with prejudice. This appeal follows.

When considering appeals from summary judgments, we will review the record in the light most favorable to the party against whom judgment was entered. ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo.1993). Facts set forth by affidavit or otherwise in support of a party’s motion are taken as true unless contradicted by the non-moving party’s response to the summary judgment motion. Id. We accord the non-movant the benefit of all reasonable inferences from the record. Id. Because the granting or denial of a motion for summary judgment is purely an issue of law, and because the trial court’s decision is founded on the same record that we are to consider, we need not give the trial court’s judgment any deference. Id. Our review is essentially de novo. Id. The criteria on appeal for testing the propriety of summary judgment are no different from those which should be employed by the trial court to determine the propriety of sustaining inferences from the record. Id.

Summary judgment is designed to permit the trial court to enter judgment, without delay, where the moving party has demonstrated, on the basis of facts as to which there is no genuine dispute, a right to judgment as a matter of law. Id. (citing Rule 74.04). The burden on summary judgment movant is to show a right to judgment flowing from facts about which there is no genuine dispute. Id.

When the movant is a defending party, movant may establish a right to judgment by showing (1) facts that negate any one of the claimant’s elements facts; (2) that the non-movant, after an adequate period of discovery, has not been able to produce, and will not be able to produce, evidence sufficient to allow the trier of fact to find 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 the movant’s properly pleaded affirmative defense. Id. at 381. When, and only when, the movant has made the prima facie showing required by Rule 74.04(c), Rule 74.04(e) places burdens on the non-movant. Id. An adverse party may not rest upon the mere allegations or denials of his pleading; but in his response, by affidavits or as otherwise provided in this Rule 74.04, shall set forth specific facts showing that there is a genuine issue for trial. Id. (citing Rule 74.04(e)).

Thus, once a movant has met the burden imposed by Rule 74.04(c) establishing a right to judgment as a matter of law, the non-movant’s only recourse is to show — by affidavit, depositions, answers to interrogatories, or admissions on file — that one or more of the material facts shown by the movant to be above any genuine dispute is, in fact, genuinely disputed. Id. A “genuine issue” exists where the record contains competent materials that evidence two plausible, but contradictory, accounts of the essential facts. Id. at 382. Arguments by a non-movant that a question of fact exists on the basis of the documents supplied by the movant may be of some help to the court in determining whether the movant has made the prima facie showing required by Rule 74.04(c). Id. at 387. Once the court is satisfied that the prima facie case is made, however, the mandate of Rule 74.04(e) is clear. Id. The non-movant must supplement the record. Id.

In his first point, Tinch argues the trial court erred because there is a genuine issue of material fact as to whether the policy was in effect at the time of the accident. Tinch further argues State Farm did not demonstrate that the insurance contract was the contract in effect, citing specific references to the pleadings, discovery or affidavits. We disagree.

Disputes arising from interpretation and application of insurance contracts are matters of law for the court where there are no underlying facts in dispute. Geisner v. Budget Rent A Car of Missouri, 967 S.W.2d 95, 96 (MoApp. E.D.1998). If the language of the insurance policy is clear and unambiguous, this court does not have the power to rewrite the policy for the parties and must construe the policy as written. Id.

We look to the language of the policy to interpret the insurance contract. The policy clearly states that it will be renewed upon payment of a premium for the next policy period. The contract indicated the policy period was from February 22, 1995 ■to July 1,1995. A renewal payment would have made the policy effective for the following period. We find, based on the findings of the trial court, that the insurance contract with a driver exclusion endorsement signed by Tinch’s father was before the trial court. The evidence shows the “Driver Exclusion Endorsement” was part of the insurance contract. Tinch failed to refute this by supplementing the record as required under Rule 74.04(e). Because Tinch did not properly rebut State Farm’s prima facie case for summary judgment by supplementing the record, the trial court did not err in granting State Farm’s motion for summary judgment. We find there is no genuine issue of material fact, and State Farm is entitled to judgment as a matter of law.

Tinch further argues there is a genuine issue of material fact as to whether the driver exclusion is invalid. Tinch asserts the exclusion was not supported by consideration. We disagree.

The exclusion states that it is “[i]n consideration of the premium charged ....” A recitation of the consideration on which an agreement is based is prima facie evidence that sufficient consideration existed. Hammons v. Ehney, 924 S.W.2d 843, 850 (Mo.1996). Under this theory, a presumption is created that consideration exists, which must be overcome by evidence to the contrary. Id. Tinch presents no evidence of a lack of consideration.

Tinch also argues that State Farm is estopped from asserting the driver exclusion because State Farm had settled a previous claim under Tinch’s father’s policy with Tinch in which Tinch was driving. We disagree.

Equitable estoppel arises from the unfairness of allowing a party to belatedly assert known rights on which the other party has, in good faith, relied thereby and become disadvantaged. Shores v. Express Lending Services, Inc., 998 S.W.2d 122, 127 (Mo.App. E.D.1999). This defense consists of three elements: (1) an admission, statement, or act by the person to be estopped that is inconsistent with the claim that is later asserted and sued upon; (2) an action taken by a second party on the faith of such admission, statement or act; and (3) an injury to the second party which would result if the first party is permitted to contradict or repudiate his admission, statement, or act. Id. The party who asserts equitable estoppel must establish each element by clear and satisfactory evidence and we restrict the application of the doctrine to cases in which each element clearly appears. Id. Estop-pel is not a favorite of the law and will not arise unless justice to the rights of others demands it. Id. The doctrine of estoppel may not be employed to create coverage where it otherwise does not exist. Magru-der v. Shelter Ins. Co., 985 S.W.2d 869, 873 (MoApp. W.D.1998).

Here, there is nothing in the facts to show Tinch relied on State Farm’s coverage of the first accident. Tinch contends that because State Farm paid for claims based on a March 3, 1993 accident, Tinch relied on the fact that claims from later accidents would also be paid. This argument is flawed because a settlement of the March 3, 1993 accident claim did not occur until December 13, 1996 — after Tinch’s January 13, 1996 accident. Tinch could not have relied on the payment because it did not occur until after the accident at issue here. As a matter of law, the elements of equitable estoppel cannot be met. Point denied.

In his second point, Tinch argues the trial court erred because the driver exclusion is against public policy because it violates the Motor Vehicle Financial Responsibility Law (MVFRL). Tinch contends because it violates public policy he should be covered for his medical expenses. We disagree.

The Motor Vehicle Financial Responsibility Law (MVFRL) establishes minimum coverage required for car owners in Missouri. Section 303.190.2, RSMo 1994, states that motor vehicle liability policies must provide:

twenty-five thousand dollars because of bodily injury to or death of one person in any one accident and, subject to said limit for one person, fifty thousand dollars because of bodily injury to or death of two or more persons in any one accident, and ten thousand dollars because of injury to or destruction of property of others in any one accident.

An insurance clause violates public policy and is rendered unenforceable only to the extent it violates the MVFRL. Hatpin v. American Family Mut. Ins. Co., 823 S.W.2d 479, 482-483 (Mo.1992). The purpose served by the MVFRL is to make sure that people who are injured on the highways may collect damage awards, within limits, against negligent motor vehicle operators. Id. at 482. In Mercantile Bank of St. Louis v. Benny, 978 S.W.2d 840 (Mo.App. W.D.1998), the court found a driver exclusion policy did not violate the MVFRL and therefore did not violate public policy. Id. at 845. The Benny court reasoned that the MVFRL did not require collision' coverage so an exclusion clause that denied collision coverage did not violate public policy. Id.

Here, Tinch is requesting coverage for medical expenses. The MVFRL does not require a Missouri driver to carry coverage for medical expenses. The MVFRL requires a Missouri driver to carry liability coverage for bodily injury to make sure that people who are injured on the highways may collect damage awards against negligent motor vehicle operators. Its purpose is not to cover negligent drivers’ own medical expenses. We find, similarly to the Benny court, that since the MVFRL doesn’t require coverage of medical expenses — only liability coverage of bodily injury — that coverage of medical expenses can be excluded through a driver exclusion without violating the MVFRL’s and Missouri’s public policy. Point denied. Judgment affirmed.

CRANE, P.J., and SULLIVAN, J., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Anthony L. JONES, Appellant.
    No. ED 75783.
    Missouri Court of Appeals, Eastern District, Division Four.
    May 2, 2000.
    Loma C. Huber, Asst. Public Defender, St. Charles, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Breck K. Burgess, Asst. Atty. Gen., Jefferson City, for respondent.
    Before WILLIAM H. CRANDALL, Jr., P.J., MARY K. HOFF, J., and JAMES A. PUDLOWSKI, Sr. J.
   ORDER

PER CURIAM.

Defendant, Anthony L. Jones, appeals from the judgment entered following his conviction for the crime of stalking. He was sentenced to a term of six months in St. Charles County Jail.

We have reviewed the record on appeal and find no error of law. An extended opinion would serve no jurisprudential purpose. We affirm the judgment of conviction pursuant to Rule 30.25(b).


text:
    STATE of Missouri, Respondent, v. Gregory JIMERSON, Appellant.
    No. ED 76420.
    Missouri Court of Appeals, Eastern District, Division One.
    May 9, 2000.
    Amy M. Bartholow, Asst. Public Defender, Columbia, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Karen L. Kramer, Asst. Atty. Gen., Jefferson City, for appellant.
    Before GARY M. GAERTNER, P.J., PAUL J. SIMON, J., and JAMES R. DOWD, J.
   ORDER

PER CURIAM.

Appellant, Gregory Jimerson, (“appellant”), appeals the judgment of the Circuit Court of St. Louis County. Appellant seeks to reverse his convictions and sentences for three counts of statutory rape in the first degree, section 566.032, RSMo 1994, two counts of statutory sodomy in the first degree, section 566.062, and one count of child molestation in the second degree, section 566.068, for which defendant was sentenced as a prior and persistent offender, section 558.016, to a total term of thirty years in prison. We affirm.

We have reviewed the briefs of the parties, the legal file, and the transcripts, and find the judgment is not clearly erroneous. As an extended opinion would serve no jurisprudential purpose, we affirm the judgment pursuant to Rule 30.25(b).

      . All statutory references are to RSMo 1994, unless otherwise indicated.


text:
    Dominic LACASTRO, Appellant, v. STATE of Missouri, Respondent.
    No. ED 76281.
    Missouri Court of Appeals, Eastern District, Division One.
    May 9, 2000.
    Raymund J. Capelovitch, Asst. Public Defender, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Gregory L. Barnes, Asst. Atty. Gen., Jefferson City, for respondent.
    Before GARY M. GAERTNER, P.J., PAUL J. SIMON, J., and JAMES R. DOWD, J.
   ORDER

PER CURIAM.

Appellant, Dominic Lacastro, (“defendant”) appeals from the judgment denying his Rule 29.15 motion for post-conviction relief after an evidentiary hearing. A jury previously convicted defendant of one count of felony driving while intoxicated in violation of section 577.010, RSMo 1994, and one count of misdemeanor driving without an operator’s license in violation of section 302.340, RSMo 1994. These convictions were affirmed in State v. Lacastro, 967 S.W.2d 317 (Mo.App. E.D.1998).

We have reviewed the briefs of the parties and the record on appeal and conclude the trial court’s determination is not clearly erroneous. Rule 29.15(k). An extended opinion would have no precedential value. We have, however, provided 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).


author: PAUL J. SIMON, Judge.

text:
    ANCHOVY PIZZA, L.L.C., Respondent, v. Eric HOFFMAN, Appellant.
    No. ED 76137.
    Missouri Court of Appeals, Eastern District, Division One.
    May 9, 2000.
    David T. Hamilton, Rodney L. Wash-burn, St. Charles, for appellant.
    Joseph J. Porzenski, Eisenstein, Todt, Ryan & Porzenski, LLP, St. Charles, for respondent.
   PAUL J. SIMON, Judge.

Eric Hoffman appellant, appeals the judgment of the trial court awarding Anchovy Pizza, LLC, respondent, $5,700.00 and court costs in the amount of $50.10 on respondent’s claims for Breach of Contract, Fraud, and Unjust Enrichment.

On appeal, appellant contends that the trial court erred in awarding respondent $5,700.00 because the award miscontrued and misapplied the law in that the proper measure of damages in a case alleging failure to complete construction is the reasonable cost of completion and in the present case the reasonable cost of completion of the construction amounts to $1,379.00. Appeal dismissed.

Reviewing a court tried case, we affirm the judgment of the trial court unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976).

Respondent rented retail space in a shopping center located in St. Peters, Missouri and was creating a delivery/carryout facility for gourmet pizza. Appellant and respondent entered into a contract for the demolition and construction of the retail space. Pursuant to the contract, appellant was to complete work within twenty-one days of obtaining the building permit, which was obtained on May 15, 1996, and was to be paid a total of $14,250.00 for the work. At the signing of the contract, respondent paid appellant $7125.00, fifty percent of the total contract price. On July 10, 1996, respondent paid an additional $3,562.50, twenty-five percent of the contract price, upon being notified that seventy-five percent of the work was complete. The remaining $3,562.50, twenty-five percent of the contract price, was to be paid upon completion of the construction.

Subsequently, appellant abandoned the construction site, leaving approximately fifty percent of the construction uncompleted. After appellant abandoned the site, respondent hired TDR Technical Services (TDR) and Spoor Contracting (Spoor), two construction companies, to complete the unfinished work. TDR and Spoor completed the construction in late August 1996 and respondent paid TDR and Spoor a total of $4,942.00. Respondent opened for business on August 25, 1996, however, due to the delay in completing construction, respondent was required to pay rent in the amount of $550.00 per month for July and August 1996, while it was unable to operate its business.

Respondent’s First Amended Petition For Damages contained three counts or claims. In Count I, a claim for breach of contract, respondent alleged that appellant abandoned the contract, ceased work and failed within the time provided by the contract to complete the construction. In Count II, a claim for fraud, respondent realleged the allegations in Count I and further alleged that appellant fraudulently informed respondent that seventy-five percent of the construction had been completed in order to receive additional funds from respondent and respondent sought damages in the amount of $20,000.00, including punitive damages. In Count III, a claim for unjust enrichment, respondent realleged every allegation in Counts I and II and further that appellant received $10,-687.50 for completed work, although respondent had to employ TDR to furnish the necessary materials, work and labor to complete construction. Respondent sought recovery of damages in the amount of $10,687.50 for unjust enrichment.

In his Answer to Respondent’s First Amended Petition For Damages, appellant admitted to being paid $10,687.50, but essentially denied respondent’s allegations as to his failure to complete construction. Appellant asserted that respondent or respondent’s agent prevented him from completing construction and he prayed for dismissal of each count of respondent’s petition. Appellant also set forth a defense as to Count II, alleging that respondent’s petition failed to state a claim upon which relief can be granted for fraud.

The matter was tried before the trial court without a jury. Adam Still, the manager of Anchovy Pizza, LLC, testified that respondent paid TDR and Spoor $4,942.00 to complete the construction. He further testified that had appellant finished construction, he would have been entitled to receive another $3,562.50 in addition to the $10,687.50 he had already received. Respondent paid TDR and Spoor $1,379.50 more than what it would have paid appellant under the contract.

Still also testified that appellant was overpaid $3,563.50, representing twenty-five percent of the contract. He testified that appellant had been paid for seventy-five percent of the contract, although he only completed 50 percent of the construction. He further testified that respondent was damaged because it had to pay rent for July and August in the amount of $1,100.00 due to the delay in construction caused by appellant.

Finally, Still testified that based on the operation of the store after it was opened and the operation of another store managed by the respondent, the respondent had a net profit of approximately fifteen percent of monthly gross sales. According to Still, the average gross sales for September and October 1996 were approximately $28,000.00 per month. Based on these figures, respondent sought to recover lost profits for July and August 1996, in the amount of $4,200.00 per month for a total of $8,400.00.

At the close of all the evidence the trial court took the matter under advisement. On March 4, 1999, the trial court entered the following judgment:

After having taken this matter under advisement, the court rules as follows: Judgment entered in favor of the [respondent], against [appellant] for $6,700.00, along with court costs of $60.10.

An examination of the judgment clearly shows that it fails to identify the claim or claims to which it applies and the disposition of the remaining claim or claims.

Although neither party raises the issue of our jurisdiction, we do so sua sponte. Moss v. Home Depot USA, Inc., 988 S.W.2d 627, 629-30 (Mo.App. E.D. 1999). We have jurisdiction only over final judgments and a final judgment is one that disposes of all claims and parties or certifies that there is no just reason for delay. Rule 74.01; Perniciaro v. McDonald, 974 S.W.2d 620 (Mo.App. E.D.1998).

Here, the trial court entered a general judgment and did not indicate to which claim or claims the judgment applied. Further, the trial court did not indicate to which claim or claims the damages were applicable. As a result, appellant’s appeal is premature and must be dismissed. See Yound v. Raupp, 301 S.W.2d 873, 874 (Mo.App.1957). A judgment should be entered disposing of all claims.

Appeal dismissed.

GARY M. GAERTNER, P.J. and JAMES R. DOWD, J., concur.


text:
    Paul ARMAN, III, Plaintiff/Appellant, v. Carrie CHAMBERLAIN-WEISMILLER, Defendant/Respondent.
    No. ED 75831.
    Missouri Court of Appeals, Eastern District, Division Four.
    May 9, 2000.
    Donald V. Nangle, St. Louis, for appellant.
    Before CRANDALL, P.J. and HOFF, J. and CRIST, S.J.
   ORDER

PER CURIAM.

Paul Arman (Arman) appeals the judgment of the trial court granting Carrie Chamberlain-Weismiller’s motion to dismiss. Arman argues the trial court erred in failing to enter judgment on the theories of: 1) breach of contract, (2) conversion and 3) money had and received. We affirm.

We have reviewed the briefs of the parties, the legal file, and the record on appeal, and find the claims of error to be without merit. No error of law appears. An extended opinion reciting the detailed facts and restating the principles of law would have no precedential value. The judgment is affirmed in accordance with Rule 84.16(b).


text:
    In The Interest of R.A.R.
    No. ED 75879.
    Missouri Court of Appeals, Eastern District, Division One.
    May 9, 2000.
    William P. Grant, Margulis, Grant & Margulis, P.C., St. Louis, for appellant.
    Cynthia Harcourt-Hearring, Family Court of St. Louis County, Clayton, for respondent.
    Before GARY M. GAERTNER, P.J. and PAUL J. SIMON and JAMES R. DOWD, JJ.
   ORDER

PER CURIAM.

T.R., mother, appeals the judgment of the trial court terminating her parental rights as to R.A.R., Jr., her minor child. On appeal, mother contends that the trial court erred in its judgment because its decision was against the weight of the evidence and contrary to existing law in that insufficient evidence was presented to support a finding by clear, cogent and convincing evidence that grounds for termination existed under either section 211.447.2(1) (all further references shall be to RSMo 1994, unless otherwise noted), or 211.447.4(2) and (3).

We have reviewed the briefs of the parties and the record on appeal and find no error of law. An extended opinion reciting detailed facts and restating principles of law would have no precedential value. We affirm the judgment pursuant to Rule 84.16(b).


text:
    Sherrod GREENLAW, Movant/Appellant, v. STATE of Missouri, Respondent.
    No. ED 76677.
    Missouri Court of Appeals, Eastern District, Division Two.
    May 9, 2000.
    S. Paige Canfield, Asst. Public Defender, St. Louis, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Krista D. Boston, Asst. Atty. Gen., Jefferson City, for respondent.
    Before KATHIANNE KNAUP CRANE, P.J., and ROBERT G. DOWD, Jr., and SHERRI B. SULLIVAN, JJ.
   ORDER

PER CURIAM.

Sherrod Greenlaw (Movant) appeals the judgment denying on the merits without a hearing his motion for post-conviction relief under Rule 24.035. We have reviewed the briefs of the parties and the record on appeal and conclude the trial court’s determination is not clearly erroneous. Rule 24.035(k). An extended opinion would have no precedential value. We have, however, provided 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:
    Tracy BURAGE, Appellant, v. STATE of Missouri, Respondent.
    No. ED 76559.
    Missouri Court of Appeals, Eastern District, Division One.
    May 9, 2000.
    Jennifer S. Walsh, Asst. Public Defender, St. Louis, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Gregory L. Barnes, Asst. Atty. Gen., Jefferson City, for respondent.
    Before: GARY M. GAERTNER, P.J., PAUL J. SIMON, J., and JAMES R. DOWD, J.
   ORDER

PER CURIAM.

This is an appeal from a judgment denying a Rule 29.15 motion without an eviden-tiary hearing. We have reviewed the briefs of the parties and the record on appeal and conclude the motion court’s judgment is based on findings of fact and conclusions of law that are not clearly erroneous. An opinion reciting the detailed facts and restating the principles of law would have no precedential value.

The judgment is affirmed pursuant to Rule 84.16(b).


text:
    STATE of Missouri, Plaintiff/Respondent, v. James A. FUHRMEISTER, Defendant/Appellant.
    No. ED 76680.
    Missouri Court of Appeals, Eastern District, Division Four.
    May 9, 2000.
    Joseph Howlett, Clayton, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Adriane D. Crouse, Asst, Atty. Gen., Jefferson City, for respondent.
    Before CRANDALL, P.J. and HOFF, J. and CRIST, S.J.
   ORDER

PER CURIAM.

James A. Fuhrmeister (Defendant) appeals from the trial court’s judgment entered upon his conviction by a jury of felony possession of a controlled substance, methamphetamine, Section 195.202 RSMo 1994 (Count I), misdemeanor possession of a controlled substance, marijuana, Section 195.202 (Count II), misdemeanor driving while intoxicated, Section 577.010 (Count III), and possession of drug paraphernalia, Section 195.238 (Count IV). The trial court sentenced Defendant to seven years imprisonment in the Missouri Department of Corrections on Count I plus terms of one year in jail on Counts II and IV, and six months in jail on Count III. The trial court imposed the sentences on Counts II, III, and IV concurrent with each other and consecutive to the sentence in Count I. Additionally the trial court imposed fines of $5,000 on Count I, $1,000 on Count II, $500 on Count III, and $1,000 on Count IV.

Defendant alleges the trial court erred in: 1) sustaining the State’s motion to strike Venireman Cunningham for cause, and 2) failing to grant Defendant’s motion for new trial because a juror allegedly heard Defendant and his family discuss the case at lunch during the noon recess. We affirm.

We have reviewed the briefs of the parties, the legal file, and the record on appeal and find the claims of error to be without merit. No error of law appears. An extended opinion reciting the detailed facts and restating the principles of law would have no jurisprudential value. We affirm the judgment pursuant to Rule 30.25(b).

      . All subsequent citations are to RSMo 1994 unless otherwise noted.


text:
    Tamara Amalia CARL, Respondent, v. Claude Alvin CARL, Appellant.
    No. ED 76495.
    Missouri Court of Appeals, Eastern District, Southern Division.
    May 9, 2000.
    Clyde C. Farris, Jr. Steven C. Hiotis, Copeland, Thompson & Farris, P.C., Clayton, for appellant.
    Eric C. Harris, Park Hills, for respondent.
    Before RICHARD B. TEITELMAN, P.J., LAWRENCE E. MOONEY, J., and SHERRI B. SULLIVAN, J.
   ORDER

PER CURIAM.

Claude Alvin Carl (Husband) appeals from the trial court’s Judgment Pendente Lite entered in favor of Tamara Amalia Carl (Wife) in the parties’ underlying dissolution action. Husband argues the court erred in imputing monthly income to him of $4,838.00, and in requiring him to pay temporary child support of $565.29 per month for the parties’ only child based on that level of income.

We have reviewed the briefs of the parties and record on appeal. The trial court’s judgment is supported by substantial evidence and is not against the weight of evidence. No error of law appears. An opinion would have no precedential value. We have, however, provided a memorandum for the use of the parties only, explaining the reasons for this order. The judgment is affirmed pursuant to Rule 84.16(b).


text:
    FN PROJECTS, INC. and Granite Savings Bank, Plaintiffs/Appellants, v. Leslie A. KERN and Brenda S. Kern, Defendants/Respondents.
    No. ED 76889.
    Missouri Court of Appeals, Eastern District, Division Four.
    May 9, 2000.

      Llynn K. White, Michael A. Campbell, Campbell & Coyne, P.C., St. Louis, for appellant.
    Jennifer K. Suits, Rollings & Associates, P.C., St. Charles, for respondent.
    Before CRANDALL, P.J. and HOFF, J. and CRIST, S.J.
   ORDER

PER CURIAM.

FN Projects, Inc. and Granite Savings Bank appeal the judgment of the trial court granting summary judgment in favor of Leslie A. Kern and Brenda S. Kern regarding escrowed funds stemming from a real estate transaction.

We have reviewed the briefs of the parties, the legal file, and the record on appeal, and find the claims of error to be without merit. Upon de novo review, we find no genuine issue of material fact or error of law. An extended opinion reciting the detailed facts and restating the principles of law would have no precedential value. Judgment affirmed in accordance with Rule 84.16(b).


text:
    Milton SMITH, Appellant, v. STATE of Missouri, Respondent.
    No. ED 76648.
    Missouri Court of Appeals, Eastern District, Division One.
    May 9, 2000.
    Jennifer S. Walsh, Asst. Public Defender, St. Louis, for appellant.
    Jeremiah W. (Jay) Nixon, Atty, Gen., Linda Lemke, Asst. Atty. Gen., Jefferson City, for respondent.
    Before: GARY M. GAERTNER, P.J., PAUL J. SIMON, J., and JAMES R. DOWD, J.
   ORDER

PER CURIAM.

This is an appeal from a judgment denying a Rule 29.15 motion without an eviden-tiary hearing. We have reviewed the briefs of the parties and the record on appeal and conclude the motion court’s judgment is based on findings of fact and conclusions of law that are not clearly erroneous. An opinion reciting the detailed facts and restating the principles of law would have no precedential value.

The judgment is affirmed pursuant to Rule 84.16(b).


text:
    Sue KASTEN, Appellant/Employee, v. HAIRTOPIA, Respondent/Employer, State Farm Fire & Casualty Co., Respondent/Insurer.
    No. ED 76752.
    Missouri Court of Appeals, Eastern District, Division Three.
    May 9, 2000.
    Dan Chatfield, St. Louis, for appellant.

      Karen M. Speiser, Brinker & Doyen, Clayton, for respondent
    Before RICHARD B. TEITELMAN, P.J., CLIFFORD H. AHRENS, J., and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

Claimant, Sue Kasten, appeals from a final award of the Labor and Industrial Relations Commission denying her claim for workers’ compensation benefits.

We have reviewed the briefs of the parties and the record on appeal and find no error of law. No jurisprudential purpose would be served by a written opinion. However, the parties have been furnished with a memorandum opinion for their information only, setting forth the facts and reasons for this order.

The judgment of the trial court is affirmed in accordance with Rule 84.16(b).


text:
    John E. MARTIN and Eileen Martin, Plantiffs-Appellants, v. Dorothy CROW, Eugene Johnson, and Geneva Johnson, Defendants-Respondents.
    No. ED 75726.
    Missouri Court of Appeals, Eastern District, Southern Division.
    May 9, 2000.
    Clinton B. Roberts, Tom R. Burcham, III, Farmington, for appellant.
    Dennis E. McIntosh, Farmington, for respondent.
    Before MARY RHODES RUSSELL, C.J., RICHARD B. TEITELMAN and LAWRENCE E. MOONEY, JJ
   ORDER

PER CURIAM.

John and Eileen Martin appeal the trial court’s judgment in favor of Defendants Dorothy Crow and Eugene and Geneva Johnson in this action to quiet title to two tracts of land that the Martins claimed they adversely possessed from Defendants. We find the judgment is supported by substantial evidence, is not against the weight of the evidence, and does not erroneously declare or apply the law. Murphy v. Carrón, 536 S.W.2d 30 (Mo. banc 1976).

An opinion reciting the detailed facts and restating the principles of law would have no precedential value. However, the parties have been furnished with a memorandum for their information only, setting forth the reasons for this order.

We affirm the judgment pursuant to Rule 84.16(b)(1) and deny Plaintiffs Motion to Strike Defendants’ Brief or Statement of Facts.


author: BIRCH, J.,

text:
    STATE of Tennessee v. Don Edward CARTER.
    Supreme Court of Tennessee, at Jackson.
    April 17, 2000.

      C. Michael Robbins, Memphis, Tennessee, Gary F. Antrican, District Public Defender, Somerville, Tennessee, and Jeanie Kaess, Assistant Public Defender, Somer-ville, Tennessee, for the appellant, Don Edward Carter.
    Michael E. Moore, Solicitor General, Marvin E. Clements, Jr., Assistant Attorney General, and Elizabeth T. Rice, District Attorney General, for the appellee, State of Tennessee.
   OPINION

BIRCH, J.,

delivered the opinion of the court, in which

ANDERSON, C.J., and DROWOTA, HOLDER, and BARKER, JJ., joined.

This appeal arises from the incarceration of an individual for over 72 hours without his having been brought before a magistrate and without probable cause having been judicially determined. Don Edward Carter, the defendant, was arrested without a warrant and held for more than 72 hours. At no time during this period was he taken before a magistrate. He confessed while in custody. Following his indictment upon two counts of first degree murder (premeditated), Carter moved to suppress the confession on constitutional grounds and on the ground that Tenn. R.Crim. P. 5(a) had been violated. The trial court refused to suppress the confession, and it was admitted into evidence. The jury convicted Carter of both counts, and he was sentenced to concurrent terms of life imprisonment. On appeal, the Court of Criminal Appeals affirmed the trial court’s ruling admitting the confession into evidence, the convictions, and the sentences. The issue before this Court is the admissibility of Carter’s confession. Although we conclude that Carter’s rights under the Fourth Amendment to the United States Constitution and Tenn. R.Crim. P. 5(a) were violated, we have determined that his confession was properly admitted into evidence. Accordingly, the judgment of the trial court and the Court of Criminal Appeals is affirmed.

I

Don Edward Carter, the defendant, was arrested without a warrant and held for more than 72 hours. At no time during this period was he taken before a magistrate. He confessed while in custody. Thus, the issue we decide today is the admissibility of his confession obtained under those circumstances. Although we have concluded that Carter’s rights under the Fourth Amendment to the United States Constitution and Tenn. R.Crim. P. 5(a) were violated, we have, for the reasons stated below, determined that his confession was properly admitted into evidence. Accordingly, the judgment of the trial court and the Court of Criminal Appeals is affirmed.

Because Carter does not challenge the sufficiency of the convicting evidence, we will recite only the facts developed at the suppression hearing we deem necessary in the resolution of the issue before us.

II

Carter was incarcerated without a warrant on Sunday, March 24, 1996, at approximately 2:45 p.m. The next day, warrants charging him with first degree murder were issued. On Wednesday, March 27, 1996, while still incarcerated, Carter confessed.

Following his indictment upon two counts of first degree murder (premeditated), Carter moved to suppress the confession on constitutional grounds and on the ground that Tenn. R.Crim. P. 5(a) had been violated. The trial court refused to suppress the confession, and it was admitted into evidence during the trial of the cause. The jury convicted Carter of both counts, and he was sentenced to concurrent terms of life imprisonment. On direct appeal, the Court of Criminal Appeals affirmed the trial court’s ruling admitting the confession into evidence, the convictions, and the sentences.

Carter chiefly contends that he was held in custody for more than 72 hours without an appropriate determination of probable cause. His insistence, therefore, is that his Fourth Amendment rights were violated by the extended incarceration without a judicial determination of probable cause and that the extended incarceration produced the confession. He urges that the confession, obtained under these circumstances, be suppressed from evidence.

III

When reviewing a trial court’s ruling on a motion to suppress, “[q]uestions of credibility of the witnesses, the weight and value of the evidence, and resolution of conflicts in the evidence are matters entrusted to the trial judge as the trier of fact.” State v. Odom, 928 S.W.2d 18, 23 (Tenn.1996). The prevailing party in the trial court is afforded the “strongest legitimate view of the evidence and all reasonable and legitimate inferences that may be drawn from that evidence.” State v. Keith, 978 S.W.2d 861, 864 (Tenn.1998) (citing Odom, 928 S.W.2d at 23). The findings of a trial court in a suppression hearing are upheld unless the evidence preponderates against those findings. Id. (citation omitted). “The application of the law to the facts found by the trial court, however, is a question of law which this Court reviews de novo.” State v. Yeargan, 958 S.W.2d 626, 629 (Tenn.1997).

IV

A

The Fourth Amendment requires a prompt judicial determination of probable cause as a prerequisite to the extended detention of an individual after a warrant-less arrest. Gerstein v. Pugh, 420 U.S. 103, 114, 125, 95 S.Ct. 854, 863, 869, 43 L.Ed.2d 54, 65, 72 (1975). Absent a bona fide emergency or extraordinary circumstance, a judicial determination of probable cause is “prompt” if it occurs within 48 hours. Riverside v. McLaughlin, 500 U.S. 44, 56-7, 111 S.Ct. 1661, 1670, 114 L.Ed.2d 49, 63 (1991). In making a judicial determination of probable cause, a full, adversarial proceeding is unnecessary. Ger-stein, 420 U.S. at 118-22, 95 S.Ct. at 865-67, 43 L.Ed.2d at 68-70. This is so because the standard for probable cause for prolonged detention is the same as the standard for determining probable cause for arrest — a standard “traditionally decided ... by a magistrate in a nonadversary proceeding on hearsay and written testimony. ...” Gerstein, 420 U.S. at 120, 95 S.Ct. at 866, 43 L.Ed.2d at 69.

The United States Supreme Court has determined that the issuance of a valid arrest warrant satisfies the requirement that there must be a judicial determination of probable cause for extended detention. Baker v. McCollan, 443 U.S. 137, 143, 99 S.Ct. 2689, 2694, 61 L.Ed.2d 433, 441 (1979). As the United States Supreme Court reasoned in Baker:

[sjince an adversary hearing is not required, and since the probable-cause standard for pretrial detention is the same as that for arrest, a person arrested pursuant to a warrant issued by a magistrate on a showing of probable cause is not constitutionally entitled to a separate judicial determination that there is probable cause to detain him pending trial.

443 U.S. at 143, 99 S.Ct. at 2694, 61 L.Ed.2d. at 441.

In this case, arrest warrants were issued approximately 24 hours after Carter had been taken into custody. As noted, a valid warrant satisfies the requirement of a judicial determination of probable cause. Here, however, the State concedes that the affidavit portion of the warrants did not establish probable cause. Thus, Carter’s detention for over 48 hours without a valid probable cause determination was in violation of the Fourth Amendment.

We must now determine whether, under the circumstances, Carter’s confession should have been suppressed. In State v. Huddleston, this Court determined that when a person confesses after having been detained for more than 48 hours following an arrest without a warrant and without a judicial determination of probable cause, the confession should be excluded unless the prosecution establishes that the confession “ ‘was sufficiently an act of free will to purge the primary taint of the unlawful invasion.’ ” 924 S.W.2d 666 (Tenn.1996) (quoting Brown v. Illinois, 422 U.S. 590, 599, 95 S.Ct. 2254, 2261, 45 L.Ed.2d 416, 424 (1975)). Four factors guide the issue of admissibility: “(1) the presence or absence of Miranda warnings; (2) the temporal proximity of the arrest and the confession; (3) the presence of intervening circumstances; and finally, of particular significance, (4) the purpose and flagrancy of the official misconduct.” Huddleston, 924 S.W.2d at 674-75 (citing Brown, 422 U.S. at 603-04, 95 S.Ct. at 2261-62, 45 L.Ed.2d at 427). The burden is on the State to prove by a preponderance of the evidence the admissibility of a confession obtained under the circumstances here presented. Id. at 675.

Here, Carter was given Miranda warnings when he was arrested. He was also informed of his Miranda rights prior to his confession. This factor, though not conclusive, weighs in favor of admission.

Next, we consider the temporal proximity of the arrest to Carter’s confession. This inquiry focuses on the point at which the statement was given relative to the detention. Id. If a confession is made during a period of lawful detention, the confession is not a product of any illegality and is not suppressed. Id. However, “[o]nce the detention becomes unlawful, the pressure to confess likely increases with each moment of continuing illegal detention.” Id. Here, Carter confessed after 72 hours of detention without a valid judicial determination of probable cause. This factor, then, weighs in favor of suppression.

Whether the presence of intervening circumstances purged the taint of Carter’s illegal detention is the next consideration. An intervening circumstance, sufficient to purge the taint of an illegal detention, may involve the detainee’s “consultation with an attorney, relative, friend, or priést prior to the time a statement is given.” Id. Here, Carter met privately at the jail with his mother and other relatives on more than one occasion. These visits occurred outside established visiting hours. Moreover, Carter was given the opportunity to make telephone calls that were unrestricted as to the person called or number of calls made. He used this opportunity to speak with his brother at least twice. In our view, Carter’s visits and telephone calls constitute intervening circumstances sufficient to purge the taint of his detention. This factor, therefore, weighs against suppression.

Finally, we consider the purpose and flagrancy of the official misconduct. The question is whether the illegality, in this case unlawful detention, was purposeful or flagrant. Id. at 676. Considering this question, this Court in Huddleston, as well as the United States Supreme Court in McLaughlin, focused on the reason for the continued detention of the arrestee; that is, whether the individual was being held without probable cause “for the purpose of gathering additional evidence to justify the arrest_” McLaughlin, 500 U.S. at 56, 111 S.Ct. at 1670, 114 L.Ed.2d at 68; Hud-dleston, 924 S.W.2d at 676. In Huddle- ston, we determined that the arresting officer did not have probable cause to arrest the defendant and that the defendant “was detained so that the police ‘could continue the investigation and develop additional evidence.’ ” Huddleston, 924 S.W.2d at 676; see Brown, 422 U.S. at 605, 95 S.Ct. at 2262, 45 L.Ed.2d at 428 (where the Court noted that the arrest of the defendant was ‘“for investigation’ or for ‘questioning’ ” and therefore “[t]he arrest, both in design and in execution, was investigatory.”).

Here, Carter concedes that probable cause existed for the initial warrantless arrest. Moreover, there is no evidence that Carter was held for the purpose of gathering additional evidence or for other investigatory purposes. Finally, the officer having obtained an arrest warrant (albeit invalid) one day after Carter’s war-rantless arrest, suggests the absence of purposeful misconduct. Indeed, Carter concedes the lack of evidence of purposeful misconduct. Thus, this factor weighs against suppression.

This concession notwithstanding, Carter insists that he. was detained under “harsh” conditions and that he was purposely subjected to these conditions so that he would be coerced to confess. For example, he says that he was locked in a single-person cell with the light always on, he was denied toilet paper, and, despite the officer’s knowledge of his mental history, he was denied his prescribed medications. This evidence, however, does not bear on whether the officers had ulterior reasons for the unlawful detention. In other words, their treatment of Carter while he was detained is irrelevant in determining if their conduct falls within the Huddleston definition.

Accordingly, after considering the above factors, we conclude that Carter’s confession, although made while Carter was held in violation of the Fourth Amendment, was not the product of the unlawful detention.

B

To determine whether Carter’s confession was obtained in violation of Tenn. R.Crim. P. 5(a) and, if so, the effect upon admissibility, we must again resort to the Huddleston analysis. Tennessee Rules of Criminal Procedure 5(a) provides that:

Any person arrested except upon a ca-pias pursuant to an indictment or presentment shall be taken without unnecessary delay before the nearest appropriate magistrate of the county from which the warrant for arrest issued, or the county in which the alleged offense occurred if the arrest was made without a warrant unless a citation is issued pursuant to Rule 3.5.

Tenn. R.Crim. P. 5(a) (emphasis added). This Court has held that if an individual is not brought before a magistrate within 72 hours, there has been “unnecessary delay.” See Huddleston, 924 S.W.2d at 670. Therefore, because Carter was held without having been taken before a magistrate within 72 hours, there was unnecessary delay within the definition of Tenn. R.Crim. P. 5(a).

Having found “unnecessary delay,” we must next determine its effect upon the admissibility of the confession. A confession is not necessarily excluded from evidence simply because it was obtained during a period of “unnecessary delay.” Id. Rather, a confession is excluded “only if an examination of the totality of the circumstances reveals that the ... [confession] was not voluntarily given.” Id. In determining if a confession was voluntary, courts are to consider the following:

the age of the accused; his lack of education or his intelligence level; the extent of his previous experience with the police; the repeated and prolonged nature of the questioning; the length of the detention of the accused before he gave the statement in question; the lack of any advice to the accused of his constitutional rights; whether there was an unnecessary delay in bringing him before a magistrate before he gave the confession; whether the accused was injured[,] intoxicated or drugged, or in ill health when he gave the statement; whether the accused was deprived of food, sleep or medical attention; whether the accused was physically abused; and whether the suspect was threatened with abuse.

Id. at 671 (citing State v. Readus, 764 S.W.2d 770, 774 (Tenn.Crim.App.1988)). Thus, “the focus on unnecessary delay should not be solely on the length of the delay, but rather on the circumstances of the delay and their effect on the accused.” Huddleston 924 S.W.2d at 671.

Applying the above factors to this case, the Court of Criminal Appeals noted that:

at the time of ... [Carter’s] confession ... [he] was 28 years of age and had a high school education. He had no prior involvement with the police. Although ... [Carter] had declined to make [a] statement ... prior to his confession, his confession was not the result of repeated and prolonged interrogation. [Carter] ... requested to speak with the sheriff at approximately 8:00 p.m. [Carter] signed a written waiver at 9:19 p.m. and signed his sworn statement at 9:38 p.m. In addition to receiving ... [his] Miranda rights just prior to the confession, ... [Carter] had been given the Miranda rights on prior occasions. There is no showing that [Carter] did not understand these rights. The period of time between the issuance of the arrest warrant and the confession consisted of approximately three (3) days. [Carter] ... was not intoxicated at the time of the confession, nor was he under the influence of any drugs.

Moreover, the Court of Criminal Appeals found that although Carter had taken medication for depression prior to his arrest, he had not taken any medication during the period of detention prior to confessing. There is, however, no proof that Carter’s medication was purposefully withheld, and there was no showing that Carter was incompetent. Additionally, Carter presented no evidence that he had been deprived of food, sleep, or medical attention. Finally, Carter was neither physically abused nor threatened with such abuse. Thus, the Court of Criminal Appeals found Carter’s confession was not a product of unnecessary delay.

On the other hand, there are factors in this case which weigh in favor of suppression. For example, Carter’s age and experience with law enforcement and, if true, his placement in solitary confinement with a light constantly on and with no toilet paper constitute such factors. We agree, nonetheless, with the Court of Criminal Appeals that given the totality of the circumstances, Carter knowingly and voluntarily waived his rights and confessed. Thus, we conclude that Carter’s confession was not a product of the unnecessary delay in bringing him before a magistrate. Therefore, his confession was properly admitted at trial.

V

For the reasons articulated above, Carter’s confession was properly admitted at trial. We, therefore, affirm the decision of the Court of Criminal Appeals.

Costs of this appeal are assessed to the State of Tennessee.

      . Oral argument was heard in this case on November 17, 1999, in Memphis, Shelby County, Tennessee, as part of this Court’s S.C.A.L.E.S. (Supreme Court Advancing Legal Education for Students) project.

      . Carter concedes that this arrest, albeit without a warrant, was based on the existence of probable cause.

      . Carter was charged with killing Audie Carter and Nellie Carter.

      . In Gerstein, the United States Supreme Court noted that:
      [t]he use of an informal procedure is justified not only by the lesser consequences of a probable cause determination but also by the nature of the determination itself. It does not require the fine resolution of conflicting evidence that a reasonable-doubt or even preponderance standard demands, and credibility determinations are seldom crucial in deciding whether the evidence supports a reasonable belief in guilt.
      420 U.S. at 121, 95 S.Ct. at 867, 43 L.Ed.2d at 69.

      . The affidavits to the arrest warrants read, "Don Carter AKA ‘PeeWee’ did kill Nellie Carter. This was a premeditated and intentional act and a violation of TCA 39 13 202” and "Don Carter AKA 'PeeWee' did kill Audie Carter. This was a premeditated and intentional act in violation of TCA 39 13 202.” The State concedes in its brief that the "affidavit[s] admittedly on ... [their] face ... [do] not establish probable cause....” Given the State’s concession, there is no need to further examine the sufficiency of the warrants.

      . Huddleston, 924 S.W.2d at 675 ("Although that factor is not determinative, it indicates that the defendant was aware of his Fifth Amendment rights against self-incrimination which is a threshold factor weighing, to some extent, in favor of attenuation.”).

      . There is conflicting testimony over the number of times Carter met with his mother and with whom he additionally met. Paul Ervin, the Sheriff for McNaiiy County, testified that Carter met with his mother and other relatives on more than one occasion. Ervin later testified that Carter met with his mother, other relatives, and friends. On the other hand, Carter testified that he met with his mother more than once, but he was uncertain if he had met with anyone else. There is also conflicting testimony concerning Carter’s ability to successfully make telephone calls. Carter testified that when he tried to call Rhonda Carter, his cousin, or Robert Stacey, a family friend, he discovered their telephones were "blocked.” Rhonda Carter testified that she did not authorize a block to be put on her telephone. Stacey also testified that he had not authorized a telephone block. Ervin testified, on the other hand, that Rhonda Carter did not want to talk to Don Carter, and he thus informed her that her telephone could be blocked. Therefore, the telephone was blocked at her request. Ervin also testified that he did not remember discussing a telephone block with Stacey, but if one was put on his telephone it was at Stacey’s request. Regardless, Carter testified that he was able to call his brother and spoke to him on at least two occasions. Despite this conflicting testimony, we believe that Carter’s visits with at least his mother and his calls to his brother are sufficient intervening circumstances to purge the taint of his illegal detainment. Additionally, the trial court, which was in the best position to weigh the evidence and assess the credibility of the witnesses ruled against suppression. This conclusion suggests that the court fully accredited the evidence offered by the State and is entitled to great deference. See State v. Crutcher, 989 S.W.2d 295, 299 (Tenn. 1999) (citation omitted).

      . The State urges this Court to find that Carter’s confession was properly admitted under the "good faith” exception to the exclusionary rule established in the United States Supreme Court decision of United States v. Leon. 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). Although Carter’s claims are based solely on the United States Constitution, there is no reason to address the applicability of the good faith exception bec.ause we have found that Carter’s confession was properly admitted at trial under Fourth Amendment jurisprudence. Moreover, this Court has yet to adopt the exception, and we decline to address its validity under the Tennessee Constitution until the issue is squarely presented.

      . In its brief the State concedes a violation of Tenn. R.Crim. P. 5(a) noting that "[n]othing in the record in this case shows that the delay of three full business days in taking Carter before a magistrate following his warrantless arrest, as required by Tenn. R.Crim. P. 5(a), was necessary based on any articulated reason.”


author: SWTNEY, J.

text:
    Ronald Bradford WALLER, Plaintiff/Appellant, v. Melinda BRYAN and William H. Cox, III, Defendants/Appellees.
    Court of Appeals of Tennessee, Eastern Section, at Knoxville.
    Oct. 18, 1999.
    Certiorari Denied by Supreme Court April 17, 2000.

      Ronald Bradford Waller, pro se.
    Phillilp A. Noblett, Lawrence W. Kelly, Chattanooga, for Appellee Melinda Bryan.
   OPINION

SWTNEY, J.

This appeal results from an attempt by Ronald Bradford Waller [Appellant], a Tennessee prison inmate, to secure copies of photographs taken during the investigation of his criminal case which are in the possession of the Chattanooga Police Department. Appellant filed his petition in the Chancery Court of Hamilton County under the Tennessee Public Records Act while his post-conviction proceeding was pending before the Tennessee Court of Criminal Appeals. The Chancellor dismissed the case, finding that Appellant’s discovery rights in the criminal case are governed by T.C.A. § 40-3-209 and Supreme Court Rule 28, which do not provide for a petition in Chancery Court. We affirm.

While the Appellant and the Appellees each state the issues presented for review somewhat differently, they are in agreement as to what the real heart of these issues presented for review is. The first issue is whether Appellant can obtain through the Tennessee Public Records Act copies of documents maintained in the Ap-pellees’ files while his post conviction proceeding is pending, or whether both his right to obtain these documents and the procedure to be followed to obtain these documents are controlled instead by T.C.A. § 40-3-209 and Supreme Court Rule 28. The second issue is whether or not the Appellant’s inability to show up in person at the Chattanooga Police Department “for inspection” of the records prohibits him from obtaining copies of identified records.

BACKGROUND

Ronald Bradford Waller is an inmate at a Tennessee prison since his conviction in April 1992 on two counts of first degree murder, one count of especially aggravated robbery, and one count of theft of property over one thousand dollars.

On May 10, 1996, Appellant filed a petition for post-conviction relief, which was denied by the Trial Court on March 17, 1997. He filed a notice of appeal of the Trial Court’s ruling, and on October 15, 1998, the Court of Criminal Appeals filed an Opinion in that appeal, holding that:

Without reaching the merits of the appellant’s petition, we find it necessary to remand this cause to the trial court as the posture of this case, the lack of adequate findings of fact and conclusions of law by the trial court, and the State’s failure to respond to the supplemental brief prevent us from completing any kind of meaningful review.
For these reasons, this cause is remanded solely for the purpose of permitting the trial court to enter its findings of fact and conclusions of law as to each ground alleged in the appellant’s petition. No further filings or supplemental pleadings by either party shall be permitted at the post-conviction ■ level. Once the trial court enters its order, the appellant may be appointed counsel for purposes of appeal, if he so desires. Irrespective of his position regarding counsel, only one brief to this court will be permitted. The briefs previously filed by the parties in this appeal will not be considered.

On October 26, 1998, Appellant filed a Petition to Rehear the Post-Conviction case, which was denied by the Court of Criminal Appeals on November 3, 1998. On February 23, 1999, the record was withdrawn by Hon. Douglas Meyer for consideration and further action as required by the Opinion of the Court of Criminal Appeals of October 15, 1998. On June 10, 1999, the record was returned to the Clerk of the Court of Criminal Appeals.

The Court of Criminal Appeals, on August 10, 1999, ordered Appellant’s criminal conviction record and Post-Conviction Procedure Act record combined and established a docket number in the Court of Criminal Appeals “for future references and filings.” Appellant filed a pro se brief in that case on August 26, 1999, and the record was sent to the office of the Attorney General on that date for preparation of their brief, which as shown in the record before us has not been received by the Court of Criminal Appeals. Clearly, the Appellant’s Post-Conviction case is still pending.

On September 9, 1998, Appellant mailed a “Public Records Act Request” to Lt. Melinda Bryan, records custodian of the Chattanooga Police Department, requesting copies of photographs taken in the investigation of his murder/robbery case. He acknowledged that his post-conviction case was pending: “Unfortunately they [the photos] will be of no benefit, as my appeal is already filed. In fact, the Court of Criminal Appeals will hear my case on September 30, 1998. I do wish to obtain copies of these records to assist in the preparation of, and presentation of issues, in a Federal Habeas Corpus.” The request was denied by the Chattanooga Police Department on November 13, 1998, because Appellant’s post-conviction appeal was pending.

On December 10, 1998, Appellant filed his “Verified Petition” in the Chancery Court for Hamilton County, asking that court to order the Appellees to furnish him the requested photographs, and stating, “[t]here are no pending criminal proceedings relating to the public records identified in Exhibit-A. The records identified in ExhibiU-A relate to an investigation that has been closed and a prosecution that has ended, in State v. Waller, Cases Nos. 186377, 78, 79, and 80, Hamilton County.”

Appellant’s “Verified Petition” was heard by the Chancellor on February 1, 1999, upon the Appellee Bryan’s motion to dismiss under Rule 12.02(6), T.R.C.P., for failure to state a claim upon which relief can be granted, and/or motion for judgment on the pleadings pursuant to Rule 12.03, T.R.C.P. The Chancellor also considered Appellant’s “Declaration of Ronald Bradford Waller,” and his Response in Opposition to Defendant’s Motion, as well as Memoranda of Law submitted by the parties. The matter was taken under advisement, and on February 18, 1999, the Chancellor filed a Memorandum Opinion and Order denying Appellant’s “Verified Petition,” finding that:

Thus, it appears that Supreme Court Rule 28, which was adopted first on November 17, 1995 and amended twice in 1996, and T.C.A. § 40-3-209 control discovery in post-conviction procedures. Both of these authorities are state laws. Both are subsequent to the cited court decisions [in the parties’ Memoranda of Law] allowing discovery of police records in post-conviction proceedings. This court agrees that any discovery should be through the trial or appellate courts considering the post-conviction petition. Ronald Bradford Waller has filed his request with the wrong court. Therefore, his petition is denied and shall be dismissed.

DISCUSSION

Our standard of review of a trial court’s decision on a motion to dismiss under Rules 12.02(6) and 12.03, T.R.C.P. is well-settled. We are to construe the complaint liberally in favor of the plaintiff, taking all allegations of fact as true, and deny the motion unless it appears that the plaintiff can prove no set of facts in support of the claim that would entitle him to relief. Our review of the lower court’s legal conclusions is de novo with no presumption of correctness. Stein v. Davidson Hotel Co., 945 S.W.2d 714, 716 (Tenn. 1997).

We first address the issue raised by the Appellees, i.e. whether or not Appellant’s inability to present himself in person to inspect and request copies of the documents prohibits him from obtaining those copies if he is otherwise entitled to receive them under the Public Records Act.

It is this Court’s duty to apply rather than construe the language of the Public Records Act, since the intent of the Legislature is represented by clear and unambiguous language. See Cammuse v. Davidson Co. District Attorney, No. 01A01-9709-CH-00503, 1999 WL 159691 (Tenn.App., filed March 24, 1999 [no appl. perm. app.]). While Appellees do not have an obligation to review and search their records pursuant to a Public Records Act request, they do have the clear obligation to produce those records for inspection, unless otherwise provided by state law, and to provide a copy or copies of any such record requested by such citizen, upon the payment of a reasonable charge or fee therefor. See Tennessean v. Electric Power Board of Nashville, 979 S.W.2d 297, 303 (Tenn.1998). If the citizen requesting inspection and copying of the documents can sufficiently identify those documents so that Appellees know which documents to copy, a requirement that the citizen must appear in person to request a copy of those documents would place form over substance and not be consistent with the clear intent of the Legislature. The adoption of the Appellees’ position would mean that any citizen who was unable to personally appear before the records custodian would be unable to obtain copies of the documents pursuant to the Public Records Act. This restriction would prohibit all Tennessee citizens who are unable, because of health reasons or other physical limitations, to appear before the records custodian from obtaining copies of public documents pursuant to the Public Records Act. Such a result is not consistent with the clear intent of the Legislature, and this Court will not interpret this statute in such a way as to prohibit those citizens, or those citizens incarcerated, from the rights provided by the Public Records Act. Ap-pellees can fix a charge or fee per copy so as to recover the actual cost of producing and delivering the copies. Id.

If a citizen can sufficiently identify the documents which he wishes to obtain copies of so as to enable the custodian of the records to know which documents are to be copied, the citizen’s personal presence before the record custodian is not required. However, the records custodian is not required under the Public Records Act to make the inspection for the citizen requesting the documents. The citizen, to be able to obtain copies of those documents without making a personal inspection, must sufficiently identify those documents so that the records custodian can produce and copy those documents without the requirement of a search by the records custodian. The records custodian can require a charge or fee per copy that will cover both the costs of producing the copies and delivering the copies. It is the opinion of this Court that such was the intent of the Legislature.

We now turn to the issue of whether Appellant can obtain, through the Tennessee Public Records Act, copies of documents maintained in the Appellees’ files while his post-conviction proceeding is pending. Appellant’s Petition admits that his Post-Conviction case was pending before the Court of Criminal Appeals at the time his Petition was filed in the Chancery Court, but argues that “the mere pendency of the appeal from collateral proceedings, and the intent to file a Federal Habeas Corpus, does not make the file one relevant to any pending or contemplated criminal action ... Capital Case Resource Center v. Woodall, C.C.A. [sic-Tenn.App.] No. 01-A-01-9104-CH-00150, 1992 WL 12217, Opinion Filed January 29, 1992 [no appl. perm, app.].” Appellant argues the requested copies of photographs must be provided under the Public Records Act, even though they would not have to be provided if the criminal action were “pending.”

This Court in Woodall stated, “[t]he principal issue in this appeal is whether a prosecution file is exempt from public inspection under the Public Records Act where the person convicted of the crime, after exhausting all avenues of direct appeal, has filed a post-conviction relief proceeding, specifically a petition for the writ of habeas corpus in federal court.” The Court then restated the issue as whether the pendency of a federal habeas corpus proceeding, i.e., a collateral attack on the conviction has the effect of re-opening the case in the sense that a Public Records Act request to inspect documents in the possession of the district attorney general should be regarded as the equivalent of a pre-trial discovery request subject to the provisions of Rule 16(a)(2), Tenn.R.Crim.P. The court held that “on these facts, Rule 16(a)(2) of the Tennessee Rules of Criminal Procedure does not exempt the file from public inspection pursuant to the Public Records Act.”

Unfortunately for the Appellant, the Legislature, after this Court’s opinion in Woodall, adopted the Post Conviction Procedure Act codified at T.C.A. § 40-3-201, et seq. in 1995. Additionally, Tennessee Supreme Court Rule 28 was first adopted on November 17, 1995, and later amended in 1996. Application of T.C.A. § 40-3-201 et seq. and Tennessee Supreme Court Rule 28 are dispositive of the appeal.

Appellees contend that the Public Records Act provides that a custodian of government records shall not refuse a citizen the right to inspect such records, “... unless otherwise provided by state law.” T.C.A. § 10-7-503(a). Appellees argue that because Appellant’s post conviction appeal was pending at the time of Appellant’s document request, his access to the records of the Chattanooga Police Department relating to the investigation of criminal cases brought against him is otherwise provided by state law; i.e., T.C.A. § 40-30-209 and Supreme Court . Rule 28. Therefore, Appellees contend that any dis-eovery of police records by Mr. Waller should be through the trial or appellate courts which are contemporaneously considering his post-conviction petition, rather than under the Public Records Act. As to Capital Case Resource Center v. Woodall, supra, Appellees argue, and the Chancellor held:

The real question in this case is whether the Legislature’s adoption of the Post-Conviction Procedure Act, T.C.A § 40-80-201 et seq., which was passed in 1995 and became effective on May 10, 1995, and the Supreme Court’s adoption of its Rule 28, Tennessee Rules of Post-Conviction procedure, change the result dictated by the Freeman, Jackson and Woodall decisions.

Finding that the Post-Conviction Act and Rule 28 had both been enacted subsequent to the cited court decisions, the Chancellor then held that any discovery should be through the trial or appellate courts considering the post-conviction petition. “Ronald Bradford Waller has filed his request with the wrong court.”

T.C.A. § 10-7-503(a) provides:

(a) All state, county and municipal records and all records maintained by the Tennessee performing arts center management corporation, except any public documents authorized to be destroyed by the county public records commission in accordance with § 10-7-404, shall at all times, during business hours, be open for personal inspection by any citizen of Tennessee, and those in charge of such records shall not refuse such right of inspection to any citizen, unless otherwise provided by state law (emphasis added).

T.C.A. § 10-7-507 provides:

Records of convictions of traffic and other violations — Availability.
Any public official having charge or custody of or control over any public records of convictions of traffic violations or any other state, county or municipal public offenses shall make available to any citizen, upon request, during regular office hours, a copy or copies of any such record requested by such citizen, upon the payment of a reasonable charge or fee therefor. Such official is authorized to fix a charge or fee per copy that would reasonably defray the copy of producing and delivering such copy or copies.

Appellees contend that Appellant’s request does not fall within the ambit of the above-cited Public Records Act because the records he requested are covered by the provision “otherwise provided by state law,” TCA § 10-7-503(a). Appellees contend that the state law which is “otherwise provided” is the Post-Conviction Procedure Act, T.C.A. § 40-30-209(b) and Tennessee Supreme Court Rule 28.

The relevant portion of T.C.A. § 40-30-209(b) is as follows:

(b) Discovery is not available in a proceeding under this section except as provided under Rule 16 of the Tennessee Rules of Criminal Procedure.
Rule 16, Tennessee Rules of Criminal Procedure provides:
(a)(1)(C) Documents and Tangible Objects. Upon request of the defendant, the state shall permit the defendant to inspect and copy or photograph books, papers, documents, photographs, tangible objects, buildings or places, or copies or portions thereof, which are within the possession, custody or control of the state, and which are material to the preparation of the defendant’s defense or are intended for use by the state as evidence in chief at the trial, or were obtained from or belong to the defendant.
(a)(2) Information Not Subject to Disclosure. Except as provided in paragraphs (A), (B), and (D) of subdivision (a)(1), this rule does not authorize the discovery or inspection of reports, mem-oranda, or other internal state documents made by the district attorney general or other state agents or law-enforcement officers in connection with the investigation or prosecution of the case, or of statements made by state witnesses or prospective state witnesses.

Supreme Court Rule 28, the Tennessee Rules of Post-Conviction Procedure, provides, as pertinent:

§ 6. Procedure After Petition Filed.
(B) Court Obligations—
(3) In the event a colorable claim is stated, the judge shall enter a preliminary order which:
(c) directs disclosure by the state of all that is required to be disclosed under Rule 16 of the Tennessee Rules of Criminal Procedure, to the extent relevant to the grounds alleged in the petition, and any other disclosure required by the state or federal constitution;
(C) Petitioner’s and State’s Obligations—
(7) Upon receiving the court’s preliminary order, the state shall provide to petitioner discovery of all those items deemed discoverable under Rule 16, Tennessee Rules of Criminal Procedure, if relevant to the issues raised in the post-conviction petition, and shall provide any other disclosure required by the state or federal constitution.
§ 7. Discovery & Production of Evidence.
(A) Discovery — The state shall provide discovery in accordance with Section 6(C)(7).
(B) Production of Documents — The court may require any clerk of any Tennessee court to furnish copies of documents, orders, or records to petitioner or to file the documents in the clerk’s office at the state’s expense.

The Tennessee Post-Conviction Procedure Act, T.C.A. § 40-30-201 et seq., enacted in 1995, specifically provides that Rule 16 is applicable to discovery in Tennessee post-conviction cases. If the Legislature had wanted the Public Records Act to control discovery in Tennessee post-conviction proceedings, it could have so provided. The Legislature instead made Rule 16 applicable to Tennessee post-conviction proceedings. Additionally, Supreme Court Rule 28, first adopted on November 17, 1995, specifically provides that Rule 16, along with other disclosures required by the state or federal constitution; will control the discovery in Tennessee post conviction proceedings. Rule 28 also details the procedure to be followed in post-conviction discovery.

T.C.A. § 40-30-209 and Supreme Court Rule 28 are part of the “state law” of Tennessee. Together they provide both what is discoverable and how it is discoverable in a Tennessee post-conviction proceeding. These procedures, rights, and restrictions on post-conviction proceedings discovery fit Appellant’s document request directly in the “unless otherwise provided by state law” category.

If this Court were to adopt Appellant’s argument, we would by judicial action amend T.C.A. § 40-30-209(b) so as to delete that provision of the Post Conviction Act that “discovery is not available in a proceeding under this section except as provided under Rule 16 of the Tennessee Rules of Criminal Procedure.” If this amendment is to be made, it should be made by the Legislature and not this Court.

Adoption of the Appellant’s position would also require us to ignore the controlling provisions of Supreme Court Rule 28 which dictate the procedure for the Court, the petitioner, and the state to follow concerning discovery under Rule 16 of the Tennessee Rules of Criminal Procedure in a post-conviction proceeding. While, from time to time, we might wish it were so, the Tennessee Supreme Court has not delegated to this Court the authority to amend the rules of the Tennessee Supreme Court. If such changes are to be made, they must be made by the Legislature and the Tennessee Supreme Court rather than by this Court.

CONCLUSION

The judgment of the Trial Court is affirmed and this cause is remanded to the Trial Court for such further proceedings, if any, as may be required, consistent with this Opinion, and for collection of the costs below. The costs on appeal are assessed against the Appellant.

GODDARD, P.J., and FRANKS, J., concur.

      . This document was merely a verbatim restatement of the facts alleged in the initial petition and contained no additional information.

      . Freeman v. Jeffcoat, Tenn.Ct.App., No. 01A01-9103-CV-00086, filed August 30, 1991, 1991 WL 165802, held that "the Tennessee Public Records Law requires full and open disclosure of police records except those which must be regarded as protected by a clear declaration of public policy. The clearly declared public policy protects records of an investigation while the investigation is in progress and during the pendency of any prosecution arising out of the investigation. The pendency of an application for post judgment relief does not ipso facto create an exception to the requirement of disclosure. However, final conclusion of a prosecution does not conclusively require access to the record of an investigation which is being actively pursued for bona fide legitimate reasons disclosed in camera to the adjudicating court. In the present case, there is no claim of any reason for secrecy of the files to be examined except the possibility of the necessity of a new trial if the application for post judgment relief should be successful. As stated, this claim is not sufficient to defeat the rights of the public (including plaintiff and her client) under the Public Records Act.”

        Jackson v. Hackett, Tenn.Ct.App., No. 37, filed October 3, 1990, 1990 WL 143238, held that a Petition for Judicial Review in the Chancery Court by a prisoner seeking access to public records concerning the investigation of the crime for which he was convicted could not be dismissed without a hearing as required by T.C.A. § 10-7-505.


author: W. FRANK CRAWFORD, Judge.

text:
    ALLSTATE INSURANCE COMPANY, Plaintiff-Appellee, v. Ross JORDAN, Susan Jordan, Sean Jordan, Adolph C. Lavin, and Jean Lavin, surviving parents of Troy James Lavin, deceased, and Adolph C. Lavin, in his capacity as administrator of the Estate of Troy James Lavin, Defendants-Appellants.
    Court of Appeals of Tennessee, Middle Section, at Nashville.
    Oct. 28, 1999.
    Application for Permission to Appeal Denied by Supreme Court March 13, 1999.

      Alan M. Sowell, Gracey, Ruth, Howard, Tate & Sowell, Nashville, for Appellee.
    Floyd N. Price, Williams and Dinkins, Nashville, for Appellants, Jordan.
    Jeffery S. Frensley, Charles R. Ray, Vincent E. Wehby, Nashville, for Appellants, Lavin.
   W. FRANK CRAWFORD, Judge.

This is a declaratory judgment suit brought by the plaintiff, Allstate Insurance Company, seeking a declaration that it is not obligated to furnish a defense nor to provide liability coverage to the defendants-insureds, Ross and Susan Jordan. Defendants appeal the trial court’s order granting Allstate summary judgment.

The facts are undisputed. This case arises out of the shooting death of Troy James Lavin. Prior to the shooting, in early June of 1995, Mrs. Frances Garrison, told Sean Jordan’s parents, Ross and Susan Jordan, that she believed Sean had burglarized her home. Mrs. Garrison reported that among the items stolen from her home were shotguns and rifles. Ross Jordan testified at his deposition that he questioned Sean about the burglary and that Sean denied it.

On June 29, 1995, Sean Jordan ordered a pizza from the Pizza Hut on Clarksville Highway, Nashville, Tennessee, and requested that it be delivered to 4213 Hallmark Drive, the Jordan home. Troy James Lavin, an employee of Pizza Hut, delivered the pizza to this address. Sean Jordan shot Troy Lavin multiple times and killed him with a weapon stolen from Francis Garrison’s residence. Sean Jordan ultimately pled guilty to the murder of Troy James Lavin.

On April 18, 1996, Adolph Lavin and Jean Lavin, the surviving parents of Troy Lavin, filed suit against Sean Jordan and his parents, Ross and Susan Jordan for two million dollars. The complaint alleged, inter alia, that Ross and Susan Jordan negligently supervised their son, Sean, and that the Jordans negligently allowed a weapon in their home when they knew or should have known that Sean possessed a dangerous weapon.

Ross Jordan notified Allstate of the lawsuit on May 14, 1996, which was Allstate’s first notice of the shooting. Allstate began defending the Jordans. However, on July 3, 1996, Allstate filed the instant suit against defendants, Adolph and Jean La-vin, Ross, Susan, and Sean Jordan, for a declaration that it was not obligated to furnish a defense nor to provide coverage to Ross Jordan, Susan Jordan or Sean Jordan pursuant to the terms and provisions of the insurance policy. Sean Jordan failed to answer the complaint and a default judgment was entered as to him. Allstate moved for summary judgment, and the trial court granted the motion, holding that Allstate had no further duty to defend the lawsuit against the Jordans and that there was no coverage for the Jordans.

Adolph Lavin, Jean Lavin, Ross Jordan and Susan Jordan have appealed, and the only issue for review is whether the trial court erred in holding that there is no coverage for Ross Jordan and Susan Jordan under the Allstate policy for the shooting death of Troy James Lavin.

Questions involving an insurance policy’s coverage and an insurer’s duty to defend require the interpretation of the insurance policy in light of claims asserted against the insured. Standard Fire Ins. Co. v. Chester O’Donley & Assoc., 972 S.W.2d 1 (Tenn.Ct.App.1998). The issues relating to the scope of coverage and an insurer’s duty to defend present questions of law which “can be resolved using a summary judgment when the relevant facts are not in dispute.” Id. at 6-6. Summary judgment may be granted only when there are no genuine material factual disputes with regard to the claim or the defense asserted in the motion, and when the moving party is entitled to a judgment as a matter of law. Tenn.R.Civ.P. 56.03; Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993).

In construing contracts, the words expressing the parties’ intention should be given the usual, natural and ordinary meaning. Ballard v. North American Life & Cas. Co., 667 S.W.2d 79 (Tenn.Ct.App.1983). Where there is no ambiguity, it is the duty of the court to apply to the words used their ordinary meaning and neither party is to be favored in their construction. Id. at 83. In Ballard, the Court, quoting from Guardian Life Ins. Co. of America v. Richardson, 23 Tenn.App. 194, 129 S.W.2d 1107 (1939), said:

Contracts of insurance, like other contracts, are to be construed according to the sense and meaning of the terms which the parties have used, and if they are clear and unambiguous, their terms are to be taken and understood in their plain, ordinary, and popular sense. The rule of strict construction does not authorize a perversion of language, or the exercise of inventive powers for the purpose of creating an ambiguity where none exists, nor does it authorize the court to make a new contract for the parties or disregard the evidence (intention) as expressed, or to refine away terms of a contract expressed with sufficient clearness to convey the plain meaning of the parties and embodying requirements, ...

667 S.W.2d at 82.

The pertinent parts of Allstate’s insurance policy issued to the Jordans are:

Definitions Used in This Policy
1. “You” or “Your” means the person named on the Policy Declarations as the insured and that person’s resident spouse.
2. “Allstate”, “we”, “us”, or “our” means the company named on the Policy Declarations.
3. “Insured person(s)” means you and, if a resident of your household:
a) any relative; and
b) and any dependent person in your care.
Insuring Agreement
The terms of this policy impose joint obligations on persons defined as an insured person. This means that the responsibilities, acts and failures to act of a person defined as an insured person will be binding upon another person defined as an insured person.
Losses We Do Not Cover Under Coverage X:
1. We do not cover any bodily injury or property damage intended by, or which may reasonably be expected to result from the intentional or criminal acts or omissions of, any insured person. (Emphasis in Original).

Allstate asserts that the intentional act of Sean Jordan, precludes coverage for the negligence claims brought against the insureds, Ross and Susan Jordan. Appellants argue that the intentional act exclusion language of the Allstate policy is specific only to Sean Jordan and has no bearing upon the liability of Ross and Susan Jordan because the claims against them are for negligence, rather than intentional misconduct, and because the terms and conditions of the insurance contract are ambiguous.

The Appellants argue that the acts of one co-insured do not exclude coverage for an innocent co-insured. Tennessee adopted the innocent co-insured doctrine in Ryan v. MFA Mwt. Ins. Co., 610 S.W.2d 428 (Tenn.Ct.App.1980). In Ryan, the insurance company issued its policy to husband and wife. After a fire in the dwelling, husband filed suit to recover the value of contents belonging to him. The co-insured wife was guilty of setting the house on fire and the policy provided that the company would not be liable for a loss occurring “while the hazard is increased by any means within the control or knowledge of the insured.” The Ryan Court was called upon to construe the policy to determine whether the innocent husband was barred from recovery because of his wife’s misconduct in setting fire to the house. The Court held that the husband was entitled to recover because of the particular provisions of the insurance policy in question. The Court said:

We find that a reasonable person, reading the provisions in the policy at issue here which refer to fraud of “the insured,” and neglect of “the insured,” etc. would conclude that if an insured was guilty of fraud or neglect or increasing of hazard to property, then he or she may not recover under the policy. If the company wanted to assure its position, i.e. that misconduct of any insured would bar recovery by any other insured, it might have made it clear and unambiguous in the policy and it might have informed the prospective applicants for insurance of this position from the start. It did not do so in this case and it is bound by the language it unilaterally drafted into the “contract” of insurance between the parties. (Emphasis in original.)

610 S.W.2d at 437.

The Appellants reliance on the innocent co-insured doctrine is misplaced. The policy in Ryan concerned an exclusion for acts of “the insured” as opposed to acts of “any insureds” or “an insured.” The use of “the insured” created the ambiguity upon which the court felt it was bound.

Appellants also attempt to analogize this case with Allstate Ins. Co. v. Watts, 811 S.W.2d 883 (Tenn.1991). In Watts the court was concerned with a homeowner’s policy which contained an exclusion for “bodily injury or property damage arising out of the ownership, maintenance, use, occupancy, loading or unloading of any motorized land vehicle or trailer.” Under the facts of the case the insured and his friend were working on a truck when a flammable liquid caught fire under the truck and the plaintiff who was working on the vehicle sustained serious burns. The plaintiff sued the homeowner alleging that homeowner was negligent in failing to warn him of the presence of the flammable substance and in picking up the flaming pan containing the liquid and then dropping it so as to burn plaintiff. Allstate denied coverage on the ground that the injuries arose out of the maintenance of an automobile. The Supreme Court concluded that the injury was caused in part by an excludable risk, maintenance of a vehicle, but that it was also caused in part by nonexcludable risks, negligence in failing to warn, and spilling flaming liquid.

Appellant argues that Watts is controlling because the negligence of Ross and Susan Jordan and the intentional act of Sean Jordan are concurrent causes. However, we believe that Watts and the case before us are distinguishable and that we must again look to the policy language. In Watts, the Court stated, “It appears that the complaint is not predicated upon a cause of action or risk which would be excluded by the policy, but rather negligence.” Id. at 888.

In the instant case, we are dealing with an express provision of the policy that makes the act of one insured the act of all insureds. This provision is materially different from the policy provision in Watts.

In Spence v. Allstate Ins. Co., 888 S.W.2d 586 (Tenn.1994), our Supreme Court dealt with a claim by an “innocent co-insured” for property damage under the personal property protection provision of the Alstate policy. Allstate argued that the Ryan doctrine was not applicable to this case because the policy provisions “dealing with the rights of an innocent co-insured are clear and unambiguous from the perspective of the reasonable purchaser of homeowners insurance.” The joint obligation provision of the Allstate policy is identical to the joint obligation policy provision in the instant case, as set out above. Allstate is relying upon the policy provision declaring the policy void if an insured conceals or misrepresents any material fact. The Court said:

Allstate contends that because the INSURING AGREEMENT provides that acts of any “insured person” are imputed to every other “insured person,” and because the “CONCEALMENT OF FRAUD” section provides that misconduct by “you,” which is included within the definition of “insured person,” serves to void the policy, the policy unambiguously sets forth Allstate’s intention to prevent an innocent co-insured from recovering for losses caused by the wrongdoing of an insured. The Court of Appeals agreed with this argument and based its holding thereon.
Although we would be inclined to agree if these were the only provisions applicable to this case, other relevant provisions introduce a substantial amount of ambiguity into the status of an innocent co-insured under the policy....

888 S.W.2d at 591.

The Court then pointed out additional provisions of the policy not material to the issues before us, which created ambiguity in the policy concerning coverage for property damage loss by an innocent co-insured. Nothing in the policy in the instant case creates a similar ambiguity. The case illustrates that barring other policy provisions that create an ambiguity, the joint obligation clause of the Allstate policy satisfies the requirement of Ryan that the insured purchaser of the policy would be adequately informed “that misconduct of any insured would bar recovery of any other insured.” Ryan, 610 S.W.2d at 439.

Several courts in other jurisdictions have examined situations involving intentional acts by one insured and allegations of negligence by another insured and have concluded that the determination of whether the policy precludes coverage for the action brought against the insureds turns on whether the policy imposes a joint obligation between insureds and the insurer or whether the policy was several, creating a separate contract with each insured. Allstate Insurance Co. v. McCranie, 716 F.Supp. 1440 (S.D.Fla.1989). Whether there is a joint obligation or a several obligation depends on the contract language. Id.

In McCranie, the district court sought to determine whether an insurer was obligated to defend or indemnify its insureds who were being sued in connection with a personal injury lawsuit based on the sexual battery on a minor. One insured, Richard McCranie, was being sued based on his own acts against the child, and the other insured, Virginia McCranie, was sued for her negligence in the supervision of the minor, since she was aware of the propensities of her brother-in-law, Richard McCranie. The issue relevant to the matter was whether the intentional acts of Richard McCranie, precluded coverage for claims brought against the insured, Virginia McCranie. The policy apparently did not have a joint obligation clause as in the instant case, but the exclusion in the policy at issue in McCranie excluded coverage for “any bodily injury or property damage which may reasonably be expected to result from the intentional or criminal acts of an insured person ...” Id. at 1442 (emphasis added). The McCranie court determined that the use of “an insured” in the exclusion language as opposed to “the insured” resulted in a denial of coverage for the negligent acts of one insured if the co-insured committed an intentional act. Id. at 1448.

McCranie relied on Allstate Insurance Co. v. Roelfs, 698 F.Supp. 815 (D.Alaska 1987). In Roelfs, Raymond Roelfs, a teenager, sexually molested two minor girls who were guests at his parents home. Id. at 816. The parents of the minor girls brought a civil .assault claim against Raymond and a negligence claim against the parents. Id. at 817. In explaining Roelfs, the McCranie court stated:

Allstate brought a declaratory action to determine whether its homeowners policy excluded coverage for the negligence claim against the insured parents for the injuries resulting from the acts of another insured, Raymond. The policy at issue in Roelfs excludes from coverage “bodily injury ... intentionally caused by an insured” ... as opposed to intentional acts of “the insured,” it applies to all claims which arise from the intentional acts of any one insured, even though claims are stated against another insured party in a somewhat different form. Id. The court concluded that “if the claims arise from bodily injury intentionally caused by any one insured, all claims are excluded, regardless of whether they are stated against a different insured for unintentional conduct.” Id at 822.

716 F.Supp. at 1448.

In contrast, where coverage and exclusions are defined in terms of “the insured,” the insurance contract between the insurer and the several insureds is considered to be separable rather than joint. Unigard Mutual Ins. Co. v. Argonaut Ins. Co., 20 Wash.App. 261, 579 P.2d 1015 (1978). In Unigard, a school district sued the parents of a boy who intentionally set fire to trash in a wastebasket in the school building. The only claim against the parents was for negligence. The policy excluded coverage for bodily injury or property damage “expected or intended from the standpoint of the insured.” Id. at 1017. The court found that “where coverage and exclusion is defined in terms of ‘the insured,’ the courts have uniformly considered the contract between the insurer and several insureds to be separable, rather than joint ...” Id. at 1019. Accordingly, the court held that the excluded intentional act of the son did not bar coverage for the negligence of the other insureds. Id.

The policy language in the instant case specifically excluded coverage for intentional criminal acts of any insured person. Not only is this language quite explicit, but also under the joint obligation clause it is clear that there can be no coverage for any insured when one of the insureds commits an intentional act for which coverage is sought. This clause provides that the acts of an insured person are binding on any other insured person. We find no ambiguity in the language of the policy that would lead an insured to believe that the insurance company would provide coverage for any insured resulting from the intentional acts of any other insured. Sean Jordan’s intentional act in shooting Troy James La-vin is binding upon the other insureds under the policy, Ross and Susan Jordan.

Accordingly, the order of the trial court granting summary judgment to Allstate is affirmed. The case is remanded to the trial court for such further proceedings as are necessary. Costs of the appeal are assessed one-half against Jordan appellants and one-half against Lavin appellants. The issue presented by Allstate is pretermitted.

CANTRELL, P.J., M.S., COTTRELL, J., concur.