author: Justice GARZA.

text:
    RIVER OAKS PLACE COUNCIL OF CO-OWNERS, Appellant, v. Richard D. DALY, Appellee.
    No. 13-03-037-CV.
    Court of Appeals of Texas, Corpus Christi-Edinburg.
    Aug. 31, 2005.

      William S. Chesney, III, Frank, Elmore, Lievens, Chesney & Turet, LLP, Houston, for Appellant.
    Charles L. Cotton, Cotton & Farrell, Houston, for Appellee.
    Before Justices YÁÑEZ, CASTILLO and GARZA.
   OPINION

Opinion by

Justice GARZA.

The controversy underlying this appeal is whether Richard D. Daly can lawfully equip his condominium unit with a satellite dish. Daly’s condominium unit is located in River Oaks Place, a complex comprised of 123 condominium units. Daly’s unit is located in a structure that houses six units under a single roof. All condominiums in River Oaks Place are subject to the Declaration of Covenants, Conditions, and Restrictions of River Oaks Place (“the Declaration”), which is administered by the River Oaks Place Council of Co-Owners (“the Association”). The Declaration specifically prohibits condominium owners from installing television-receiving antennas on “Common Elements” of the structure, which include, among other things, the roofs of the condominium units. After Daly installed a satellite dish on the roof of his unit and refused to remove it, the Association sued him for breach of contract and declaratory and injunctive relief. Daly counterclaimed for breach of contract and declaratory relief, contending that he could install the satellite dish on either his roof, chimney, patio, or a mast on his patio.

The case was tried before a jury, which considered only whether Daly could place the satellite dish on the roof. The trial court did not allow the jury to decide whether Daly could place the satellite dish on his chimney, patio, or a mast on his patio. The jury returned a verdict against Daly. The trial court rendered a judgment against Daly on the Association’s claims, issued a permanent injunction against Daly, and ordered Daly to pay attorney’s fees to the Association in the amount of $29,996.

On appeal to the First Court of Appeals, Daly argued that (1) the evidence was legally insufficient to prove that he was bound by the Declaration, (2) he was entitled to use the satellite dish on his condominium roof as a matter of law because the 1996 version of 47 C.F.R. § 1.4000(a)(1) prohibited the Association from restricting use of the satellite dish, (3) the trial court erred by refusing to submit a jury question regarding his counterclaim for declaratory relief as to placement of the satellite on his patio or a mast on his patio, and (4) the trial court erred by awarding attorney’s fees to the Association because attorney’s fees were prohibited by the 1998 version of 47 C.F.R. § 1.4000(a)(3).

The First Court of Appeals issued an opinion, which it later withdrew on the Association’s motion for rehearing. See Daly v. River Oaks Place Council of Co-Owners, No. 01-00-00894-CV, 2001 WL 893951, 2001 Tex.App. LEXIS 5423 (Houston [1st Dist.] August 9, 2001, no pet.) (substituted opinion on rehearing). The substance of the first opinion is unknown to this Court. The substituted opinion on rehearing overruled Daly’s first, second, and fourth issues. Id. at *2-*19. The court sustained Daly’s third issue and remanded the case to the trial court for further proceedings regarding Daly’s counterclaim for declaratory relief as to placement of the satellite dish on the patio or a mast on the patio. Id. at *18-*19. In overruling Daly’s fourth issue, the court specifically held that the 1998 version of 47 C.F.R. § 1.4000(a)(3) did not apply. Id. at *16. Although it overruled Daly’s fourth issue, the court nevertheless vacated the award of attorney’s fees, noting that Daly may yet prevail in this case. Id. at *18.

Subsequently, Daly filed a motion for rehearing, which the First Court of Appeals granted. Daly v. River Oaks Place Council of Co-Owners, 59 S.W.3d 416, 417 (Tex.App.-Houston [1st Dist.] 2001, no pet.). The court withdrew its substituted opinion and issued a second substituted opinion. Id. In its second substituted opinion, the court changed only its disposition of Daly’s fourth issue, which it had previously overruled. Id. at 422-24. This time, the court ruled in Daly’s favor, holding that the 1998 version of 47 C.F.R. § 1.4000(a)(8) should apply to the case. Id. at 423. It concluded that the provisions of the 1998 version prevented the trial court from awarding attorney’s fees unless the award was made conditional on Daly’s unsuccessful exhaustion of all appellate remedies. Id. at 424. The court further concluded that, if Daly were to lose all appeals, an award of attorney’s fees could be ordered only if Daly refused to comply with the Association’s rules within 21 days of the exhaustion of all appellate remedies. Id. If Daly complied within the 21-day grace period, the Association could receive attorney’s fees only if Daly’s “claim” or position in the proceeding was found to be “frivolous.” Id. The case was remanded for further consideration of Daly’s counterclaim for declaratory relief and the determination of “any award of attorney’s fees that may be appropriate.” Id.

A second jury trial was held on remand, at which time, the jury was presented with evidence and arguments on whether Daly could place a satellite dish on his patio or a mast on his patio. Although Daly maintained in his pleadings that he could place the satellite dish on the chimney of his condominium unit, that question was not submitted to the jury in either trial. In the second trial, the jury was asked (1) whether Daly had exclusive use or control of the air space above his patio, (2) whether the Association’s written request for detailed specifications for a proposed satellite dish on a pole on Daly’s patio was necessary to accomplish a clearly-defined safety objective, and (3) whether Daly’s claim that he was entitled to place a satellite dish on the common element roof was frivolous. In two additional questions, the jury was asked to determine reasonable and necessary attorney’s fees for the Association and Daly.

The jury found that (1) Daly did not have exclusive use or control of the air space above his balcony, (2) the Association’s written request for detailed specifications for a proposed satellite dish on a pole on Daly’s patio was necessary to accomplish a clearly-defined safety objective, and (3) Daly’s claim that he was entitled to place a satellite dish on the common element roof was frivolous. The jury also found specific amounts of reasonable and necessary attorney’s fees for the Association and Daly.

Subsequently, Daly filed a motion to disregard the jury’s findings and for judgment notwithstanding the verdict. The Association opposed Daly’s motion and requested that the trial court take judicial notice of 47 C.F.R. § 1.4000 and a May 2001 fact sheet generated by the Federal Communications Commission. The trial court granted Daly’s motion and disregarded the jury’s findings on the frivolousness of Daly’s roof claim and the amount of reasonable and necessary attorney’s fees for the Association. The trial court denied the Association’s request for judicial notice.

The trial court entered a final judgment under the declaratory judgment act, see Tex. Civ. PRác. & Rem. Code Ann. §§ 37.001-37.011 (Vernon 1997 and Supp.2004-05), reciting the following findings regarding the rights, status, and legal relationship of the Association and Daly:

1. Daly is the owner of 1201 McDuffie # 198, Houston, Texas 77019;
2. Daly has exclusive use or control of the patio adjacent to unit # 198;
3. The airspace above the Patio Area, as defined in the Declaration of Covenants, Conditions and Restrictions of River Oaks Place dated March 19, 1979 (“Declaration”) is not within the exclusive use or control of Daly;
4. The Association’s written request for detailed specifications for a proposed satellite dish on a pole on Daly’s patio was necessary to accomplish a clearly-defined safety objective.

The court did not award attorney’s fees to either party. Both sides now appeal. For the reasons that follow, we affirm.

I. The Association’s Appeal

The Association raises three issues: (1) the trial court erred by refusing to take judicial notice of 47 C.F.R. § 1.4000 and the FCC fact sheet dated May 2001, (2) the trial court erred by disregarding the jury’s answers to questions three and four, and (3) the trial court erred by not awarding attorney’s fees to the Association.

A. Judicial Notice

In its first issue, the Association complains of the trial court’s refusal to take judicial notice of 47 C.F.R. § 1.4000 and a FCC fact sheet dated May 2001, which, according to the Association, resulted in the misapplication of the law to facts of this case. Essentially, the Association argues that the limitations on attorney’s fees specified in 47 C.F.R. 1.4000(a)(3) do not apply if the challenged restriction prohibits activity in a common area of a condominium and not an area within the exclusive use or control of the antenna user. According to the Association, if the trial court had taken judicial notice of the regulation and the FCC fact sheet, it would have ruled that the Association could recover attorney’s fees even in the absence of a finding of frivolousness.

Texas Rule of Evidence 202 provides that “[a] court ... upon the motion of a party shall ... take judicial notice of the regulations ... of every other state, territory, or jurisdiction of the United States.” Tex.R. Evid. 202 (emphasis added). Rule 202 also states, “Judicial notice of such matters may be taken at any stage of the proceeding. The court’s determination shall be subject to review as a ruling on a question of law.” Id. There is no indication in the record that the Association failed to comply with the requirements of rule 202. We therefore hold that the trial court erred by failing to take judicial notice of 47 C.F.R. § 1.4000. We take judicial notice of it now, recognizing that the First Court of Appeals also did so during the first appeal of this case. See Daly, 59 S.W.3d at 422-24.

The regulation states that it applies to “any restriction ... on property within the exclusive use or control of the antenna user where the user has a direct or indirect ownership or leasehold interest in the property that impairs the installation, maintenance, or use of [certain specified antennas]....” 47 C.F.R. § 1.4000(a)(1). The scope of the regulation is thus limited to restrictions affecting “property within the exclusive use or control of the antenna user.” Id.

Although the regulation does not apply to restrictions affecting property outside the exclusive use or control of the antenna user, such as the roof of Daly’s condominium, the regulation’s limitation on the availability of attorney’s fees is not necessarily inapplicable. See Daly, 59 S.W.3d at 422-24. The regulation states

No attorney’s fees shall be collected or assessed and no fine or other penalties shall accrue against an antenna user while a proceeding is pending to determine the validity of any restriction. If a ruling is issued adverse to a user, the user shall be granted at least a 21-day grace period in which to comply with the adverse ruling; and neither a fine nor a penalty may be collected from the user if the user complies with the adverse ruling during this grace period, unless the proponent of the restriction demonstrates, in the same proceeding which resulted in the adverse ruling, that the user’s claim in the proceeding was frivolous.

47 C.F.R. § 1.4000(a)(3). As the First Court of Appeals explained, the regulation “limits the assessment and collection of attorney’s fees in a proceeding to determine the validity of a restriction, ... even if the restriction is valid.... ” Daly, 59 S.W.3d at 424. Thus, even though the Association’s restriction on roof antennas was not invalidated, the regulation’s limitation on the availability of attorney’s fees still applies. See id. We therefore cannot conclude that the trial court’s failure to take judicial notice of the regulation probably led to the rendition of an improper judgment. See Tex.R.App. P. 44.1(a).

In our estimation, the judgment would also be no different if the trial court had taken judicial notice of the FCC fact sheet dated May 2001. Although we are uncertain that the fact sheet should have been given judicial notice under either rule 201 or rule 202, there is no indication in the fact sheet that the FCC intended for the regulation’s limitation on the availability of attorney’s fees to apply only when a restriction is held invalid. See Tex.R. Evid. 201, 202. The fact sheet does not discuss the attorney’s fees provision in any respect. We therefore have no basis to conclude that the trial court’s error, if any, in refusing to take judicial notice of the fact sheet probably led to the rendition of an improper judgment. See Tex.R.App. P. 44.1(a).

For the foregoing reasons, we overrule the Association’s first issue on appeal.

B. Motion to Disregard

In its second issue, the Association contends that the trial court erred by granting Daly’s motion to disregard the jury’s answers to questions three and four. A trial court may disregard a jury’s answer to a question in the charge only when the answer has no support in evidence or the question is immaterial. Zapalac v. Cain, 39 S.W.3d 414, 417 (Tex.App.-Houston [1st Dist.] 2001, no pet.). In determining whether “the answer has no support in evidence,” the record is reviewed in the light most favorable to the finding, considering only the evidence and inferences that support the finding and rejecting the evidence and inferences contrary to the finding. Tex. Animal Health Comm’n v. Garza, 27 S.W.3d 54, 62 (Tex.App.-San Antonio 2000, pet. denied). If there is more than a scintilla of competent evidence to support the jury’s finding, then the trial court’s decision is reversed and the finding is reinstated. See id. A question is immaterial when it should not have been submitted, or when it was properly submitted but has been rendered immaterial by other findings. Spencer v. Eagle Star Ins. Co. of Am., 876 S.W.2d 154, 157 (Tex.1994).

1. Question Three: Frivolousness of Claim

Question three of the jury charge asked the jury whether “Daly’s claim that he was entitled to place a DSS Satellite Dish on the Common Element roof was frivolous.” The charge explained that “[f|rivolous means both groundless and brought in bad faith. Groundless means having no basis in law and not warranted by good faith argument.” The charge did not define bad faith. The jury returned a finding against Daly on question three. Subsequently, Daly filed a motion to disregard the finding, arguing that his claim was not frivolous because the issue was “novel” and his claim merely sought to extend the FCC’s opinion in In re Lourie, 13 F.C.C.R. 16,-760, 1998 WL 317863 (F.C.C. June 16, 1998). Daly also argued that question three was improper because the issue of frivolousness had been finally decided by the court of appeals’ decision following the first appeal of this case.

As a preliminary matter, Daly is incorrect in his assertion that the issue of frivolousness was finally decided by the court of appeals in the first appeal of this case. See Daly, 59 S.W.3d at 416. In that opinion, the court specifically remanded the matter to allow the trial court to conduct proceedings regarding the frivolousness of Daly’s claim that he could place the satellite dish on his roof. Id. at 424. Nowhere in the decision did the court express any opinion on the merits of the issue or purport to rule on it with finality. Therefore, we conclude that the trial court did not err by submitting the question.

Nevertheless, we are compelled to overrule the Association’s issue as it pertains to question three because the Association has wholly failed to identify any evidence regarding Daly’s bad faith. As defined by the jury charge, “[f]rivolous means both groundless and brought in bad faith.” In both its appellate brief and its response to Daly’s motion to disregard the jury’s findings, the Association discussed evidence and made arguments to establish the groundlessness of Daly’s claim. Even if we were to agree that Daly’s claim was groundless, that conclusion would not necessarily mean that Daly acted in bad faith. Groundlessness and bad faith are not synonymous under Texas law. Groundlessness turns on the legal merits of a claim, whereas bad faith turns on a party’s motives for asserting a claim. See Donwerth v. Preston II Chrysler-Dodge, Inc., 775 S.W.2d 634, 637 (Tex.1989) (defining “groundlessness”); Falk & Mayfield L.L.P. v. Molzan, 974 S.W.2d 821, 828 (Tex.App.-Houston [14th Dist.] 1998, pet. denied) (defining “bad faith”). Admittedly, this Court is unaware of any reported case from any jurisdiction discussing the meaning of “frivolous” as the term is used in 47 C.F.R. § 1.4000(a)(1). The parties have not cited any such cases. In other contexts, courts of this state have held that “bad faith” exists if a party consciously commits a wrong for “dishonest, discriminatory, or malicious purposes.” Campos v. Ysleta Gen. Hosp., 879 S.W.2d 67, 71 (Tex.App.-El Paso 1994, writ denied); Elbaor v. Sanderson, 817 S.W.2d 826, 829 (Tex.App.Fort Worth 1991, no writ). Claims are considered groundless if they have “[n]o basis in law or fact and [are] not warranted by good faith argument for the extension, modification, or reversal of existing law.” Donwerth, 775 S.W.2d at 637. Neither party to this appeal has taken issue with the meaning of “frivolous” as it is defined in question three. The definition suggests that groundlessness and bad faith are different, as it requires both ground-lessness and bad faith to establish frivolousness. Because neither party contends that this Court should apply a definition of bad faith that is different than the meaning given to the term by Texas courts, we apply the definition of bad faith used by Texas courts. See Campos, 879 S.W.2d at 71. We conclude that there is no evidence in the record that Daly asserted his claim for dishonest, discriminatory, or malicious purposes. Accordingly, the trial court did not err by disregarding the jury’s answer to question three.

2. Question Four: Amount of Reasonable and Necessary Attorney’s Fees

The Association also complains that the trial court erroneously disregarded the jury’s answer to question four, which asked about the Association’s reasonable and necessary attorney’s fees for “this case.” We have already determined that the trial court properly disregarded question three on frivolousness. Because Daly’s claim that he could put a satellite dish on his roof was not found to be frivolous, the Association could not recover attorney’s fees related to that claim. See Daly, 59 S.W.3d at 424.

Question four appears to ask the jury only about the Association’s reasonable and necessary attorney’s fees for the second jury trial, as it uses the language for “this case.” As discussed above, the issues tried in the second jury trial were limited to (1) whether Daly could place a satellite dish on his patio or a mast on his patio and (2) whether Daly’s claim in the previous trial that he could place a satellite dish on his roof was frivolous. The jury was never asked to determine whether Daly’s claim in the second trial (i.e., that he could place a satellite dish on his patio or a mast on his patio) was frivolous. There is no indication in the record or the briefs that the Association requested such a jury question or that it ever objected to the absence of such a question. On appeal, the Association has not argued any error related to the absence of the question.

In the first appeal of this case, the First Court of Appeals held that 47 C.F.R. § 1.4000(a)(3) barred any award of attorney’s fees against Daly unless the award was made conditional on Daly’s unsuccessful exhaustion of all appellate remedies. See Daly, 59 S.W.3d at 424. The court further concluded that, if Daly were to lose all appeals, an award of attorney’s fees could be ordered only if Daly refused to comply with the Association’s rules within 21 days of the exhaustion of all appellate remedies. Id. If Daly complied within the 21-day grace period, the Association could receive attorney’s fees only if Daly’s “claim” or position in the proceeding was found to be “frivolous.” Id.

The evidence adduced at trial shows that Daly never installed the satellite dish on his patio or a pole on his patio and was thus never in violation of any restriction on placing a satellite dish in those locations. Under these facts and the First Court of Appeals’ prior decision in this case, the Association could recover attorney’s fees only if Daly’s claim was found to be frivolous. See id.; Kahn v. Seely, 37 S.W.3d 86, 88 (Tex.App.-Austin 2000, no pet.) (explaining that under the law of the case doctrine, “questions of law decided on appeal ... will govern the case throughout its subsequent stages.”). Because that question was never submitted to the jury and because the trial court made no findings on the issue, no basis was established for awarding the Association attorney’s fees on Daly’s claims in the second trial.

In sum, the Association was completely barred from recovering attorney’s fees because none of Daly’s claims were found to be frivolous. Therefore, the trial court did not err by disregarding the jury’s answer to question four, which asked the jury to determine the Association’s reasonable and necessary attorney’s fees.

Accordingly, the Association’s second issue is overruled.

C. Award of Attorney’s Fees

In its third issue, the Association argues that the trial court erred by faffing to award it reasonable and necessary attorney’s fees in the second trial. The Association points out that Daly was actually the plaintiff in the second trial, a consideration, which, according to the Association, renders inapposite the First Court of Appeals’ decision in the first appeal of this case. Although we agree that the second trial covered claims asserted by Daly as cross-plaintiff, we do not agree that the First Court of Appeals’ decision is therefore inapplicable. Under the First Court of Appeals’ decision, it does not matter which party challenges a restriction under 47 C.F.R. § 1.4000(a)(3). See Daly, 59 S.W.3d at 424; Kahn, 37 S.W.3d at 88 (regarding law of the case doctrine). Accordingly, the Association still had the burden of establishing that Daly’s claims were frivolous. No such finding was made during the second trial. The trial court therefore did not err by refusing to award attorney’s fees. The Association’s third issue is overruled.

II. Daly’s Appeal

Daly raises three issues: (1) the trial court abused its discretion by submitting jury question one because it was outside the mandate of the appellate court, (2) the trial court abused its discretion by submitting jury question two because it was incomplete, and (3) the trial court erred by refusing to award attorney’s fees in favor of Daly.

A. Question One: Exclusive Use or Control of the Air Space above the Patio

Question one asked the jury whether Daly had exclusive use or control of the air space above his patio. On appeal, Daly argues that the trial court erred by submitting question one because it fell outside the mandate of the First Court of Appeals, which remanded the cause “for further proceedings only on appellant Richard D. Daly’s counterclaim for declaratory relief ... and, if appropriate, for further proceedings on attorney’s fees.... ” Daly argues that the only issue raised by his counterclaim was whether he had exclusive use or control of the patio. Thus, according to Daly, the trial court abused its discretion by submitting question one regarding the air space above the patio, as that issue fell outside the mandate of the First Court of Appeals. See Kahn, 37 S.W.3d at 88 (“When a case is remanded to the district court with instructions, that court’s authority is limited to trying only those issues specified in the appellate court mandate.”). We disagree.

Daly’s counterclaim for declaratory relief asserted that he could place a satellite dish not only on the patio but also on a mast on the patio. Question one related to the portion of Daly’s counterclaim regarding placement of a satellite dish on a mast on the patio. On appeal following the first trial of this case, the First Court of Appeals explained that the federal regulation did not prevent the Association from restricting Daly’s placement of a satellite dish in areas outside Daly’s exclusive use or control. See Daly, 59 S.W.3d at 420. Thus, if Daly did not have exclusive use or control of the air space above his patio, the federal regulation would not prevent the Association from restricting Daly’s placement of a satellite dish on a mast on his patio. See id. Question one did not exceed the mandate of the court of appeals, as it was necessary to determine whether Daly could be prevented from placing a satellite dish on a mast on his patio.

Daly also contends that, even if question one did not exceed the scope of the mandate, the trial court nevertheless erred by submitting it because the federal regulation specifically prohibits restrictions on placing satellites on masts located on property within an antenna user’s exclusive use or control. According to Daly, the Association could not restrict his placement of a satellite on a mast on his patio because his patio was within his exclusive use or control. We disagree.

The applicable federal regulation prohibits restrictions on the placement of antennas in areas within the exclusive use or control of the antenna user. See 47 C.F.R. § 1.4000. If Daly did not have exclusive use or control of the air space above the patio, the federal regulation would not prevent the Association from prohibiting Daly’s installation of a satellite on a mast on his patio. See Daly, 59 S.W.3d at 420 (explaining that the regulation does not apply to common areas). We therefore conclude that the trial court did not err in submitting question one. Daly’s first issue is overruled.

B. Question Two: A Clearly-Defined Safety Objective

Daly also complains of the trial court’s submission of question two, which asked whether the Association’s written request for detailed specifications for a proposed satellite dish on a pole on Daly’s patio was necessary to accomplish a clearly-defined safety objective. As the First Court of Appeals explained in its opinion following the first appeal of this case, question two would be relevant only if the Association did not prevail on the issue of exclusive use or control versus common area. See id. at 421-22. Because the Association prevailed on that issue with regard to the air space above the patio, the inclusion of question two did not affect the judgment in this case. Daly lost his patio-mast claim based on the jury’s answer to question one. Question two would have become relevant only if Daly had prevailed on question one, which he did not. See id. Accordingly, we cannot conclude that the inclusion of question two, even if erroneous, probably led to the rendition of an improper judgment. See Tex.R.App. P. 44.1(a). Daly’s second issue is overruled.

C. Attorney’s Fees

In his third issue, Daly argues that he was the prevailing party in the second trial and that the trial court therefore erred by failing to award attorney’s fees in his favor. We disagree. The declaratory judgment act does not require an award of attorney fees to the prevailing party. Bocquet v. Herring, 972 S.W.2d 19, 20 (Tex.1998). Rather, it provides that the court “may” award attorney fees. Id. (quoting Tex. Civ. Prac. & Rem.Code Ann. § 37.009 (Vernon 1997)). The statute thus affords the trial court a measure of discretion in deciding whether to award attorney fees. Id. Daly has not recognized this discretion or established how the trial court’s refusal was an abuse of discretion. Accordingly, we cannot conclude that the trial court abused its discretion under the declaratory judgment act.

Daly also contends that he was entitled to attorney’s fees as the prevailing party under the Texas Condominium Act. See Tex. Prop.Code Ann. § 82.161(b) (Vernon 1995). In relevant part, the condominium act provides, “The prevailing party in an action to enforce the declaration, bylaws, or rules is entitled to reasonable attorney’s fees and costs of litigation from the nonprevailing party.” Id. Again, we disagree with Daly’s contention.

Daly was not a prevailing party under the condominium act. His action for declaratory relief did not seek to enforce the Declaration; it sought to invalidate the portion of the Declaration prohibiting him from installing a satellite dish. Daly’s counterclaim for declaratory relief asserted that he could place a satellite dish on his patio or on a mast on his patio. The only portion of the counterclaim that Daly arguably prevailed on is placement of a satellite dish on his patio. Even with this claim, though, the final judgment of the trial court does not state that Daly can place a satellite dish on his patio. The judgment merely states that the patio is within Daly’s exclusive use or control, which is not the relief requested in Daly’s counterclaim. Daly specifically asked for “a judicial declaration that Richard D. Daly is entitled to install a satellite dish ... on the patio or on a mast on the patio.... ” Based on the trial court’s finding that the patio was within Daly’s exclusive use or control, a court could conclude that the federal regulation applies to any restriction applicable to the patio, but the trial court did not make that conclusion. In fact, the trial court did not make any conclusions of law in its final judgment. The trial court simply stated that the patio was within Daly’s exclusive use or control and that the air space above the patio was not. The trial court’s final judgment did not invalidate any portion of the Declaration, nor did it give Daly a judgment stating that he could place the satellite in any location, including the patio. Accordingly, Daly is not a prevailing party under the condominium act and the trial court did not err by refusing to award attorney’s fees to Daly. Daly’s third issue is overruled.

III. Conclusion

For the foregoing reasons, all issues raised on appeal are overruled and the judgment of the trial court is affirmed.

      . Throughout the remainder of this opinion, we apply and refer to only the current version of 47 C.F.R. § 1.4000 (effective May 25, 2001), which the First Court of Appeals applied after explaining that it is “substantially the same” as the 1996 version. See Daly v. River Oaks Place Council of Co-Owners, 59 S.W.3d 416, 422 n. 10 (Tex.App.-Houston [1st Dist.] 2001, no pet.).

      . The FCC fact sheet provides "general answers to questions that might arise about the implementation of the rule,” also known as the “over-the-air reception devices rule,” which is created by 47 C.F.R. § 1.4000. The fact sheet "is not the rule itself.”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Douglas ARNOLD, Appellant, v. The STATE of Texas, Appellee.
    No. 07-04-0045-CR.
    Court of Appeals of Texas, Amarillo.
    Sept. 6, 2005.

      Joseph W. Kline, Lubbock, TX, for Appellant.
    Wade Jackson, Asst. Criminal District Atty., Lubbock, TX, for Appellee.
    Before QUINN, C.J., and REAVIS, and CAMPBELL, JJ.
   Opinion

PER CURIAM.

Appellant Douglas Arnold was convicted of possessing a controlled substance, namely methadone. He challenges the conviction by contending the trial court erred in 1) failing to grant his motion to suppress, 2) failing to charge the jury with the law applicable to illegally seized evidence, 3) failing to charge the jury with respect to extraneous offenses, and 4) denying his request for a continuance for time to obtain the appearance of a material witness. We affirm the judgment of the trial court.

Background

On July 8, 2002, a female went to the Federal Express office in Lubbock to send an overnight letter. The customer service agent, Bridget White, smelled the odor of marijuana on the letter. After accepting the package, she notified her supervisor, Tammy Mapp. Another supervisor was summoned and, pursuant to Federal Express policy, the package was opened by the two supervisors. The letter contained a black tar substance within other packaging. The police were contacted, and Investigator Manuel Reyna took possession of the package after determining that he believed it to contain heroin.

Several days later, the person to whom the package was addressed, later identified as appellant, arrived at the office seeking to claim the package. Reyna was contacted, and at his direction, a “dummy” package was prepared and given to appellant. As appellant was leaving the Federal Express office, he was stopped and questioned by Reyna and Officer Michelle Fletcher. Appellant admitted that the sender of the package was a prostitute and that he was a heroin user. He also gave consent for a search of his vehicle (a commercial 18 wheeler). Hypodermic needles and an aspirin bottle containing a small bottle of liquid were found inside. The bottle was later determined to contain 11.96 grams of methadone for which appellant did not have a prescription.

Issues 1 & 2 — Motion to Suppress and Charge Error

Appellant argues in his first issue that the trial court erred in failing to suppress evidence obtained as a result of the search of the envelope and the vehicle and the questioning of him by police. We overrule the issue.

Search of the Envelope

We review the trial court’s ruling on a motion to suppress under the standard announced in Johnson v. State, 68 S.W.3d 644 (Tex.Crim.App.2002) and Guzman v. State, 955 S.W.2d 85 (Tex.Crim.App.1997). In doing so, we give almost total deference to the trial court’s findings of historical fact and review de novo the application of the law to the facts. Johnson v. State, 68 S.W.3d at 652-53.

The air bill used by Federal Express provides that the company retains the right “to open and inspect ... packages .... ” The company also retains the right to reject a shipment when, among other things, the shipment is prohibited by law. When persons choose to use Federal Express, they are on notice of those rights. United States v. Young, 350 F.3d 1302, 1307-1309 (11th Cir.2003). When a private overnight shipper such as Federal Express inspects a package to assure it is not being used as a means to deliver contraband, the search is a private one and does not offend Fourth Amendment rights. United States v, Jacobsen, 466 U.S. 109, 115, 104 S.Ct. 1652, 1657, 80 L.Ed.2d 85 (1984); United States v. Young, 350 F.3d at 1309; United States v. Barry, 673 F.2d 912, 914-15 (6th Cir.1982).

However, appellant argues that the act of the Federal Express employees in opening a package addressed to him violates § 1702 of Title 18 of the United States Code. That section provides:

Whoever takes any letter, postal card, or package out of any post office or any authorized depository for mail matter, or from any letter or mail carrier, or which has been in any post office or authorized depository, or in the custody of any letter or mail carrier, before it has been delivered to the person to whom it was directed, with design to obstruct the correspondence, or to pry into the business or secrets of another, or opens, secretes, embezzles, or destroys the same, shall be fined under this title or imprisoned not more than five years, or both.

18 U.S.C.A. § 1702 (2000). Appellant bases his argument on the fact that two employees of Federal Express answered affirmatively to his question whether Federal Express was an “authorized depository for mail matter” although they also testified that Federal Express was not associated with the United States Postal Service.

Initially, we note that this statute falls within Chapter 83 of Title 18, which is entitled “Postal Service.” Further, it has been stated that an “authorized depository” of the mail is one that is a part of the United States Postal Service’s nationwide system for the delivery and receipt of mail. United States Postal Service v. Council of Greenburgh Civic Associations, 453 U.S. 114, 128, 101 S.Ct. 2676, 2684, 69 L.Ed.2d 517 (1981). It has also been decided that a letter within the contemplation of the statute is one that is sent and received through the Post Office Department. United States v. Maxwell, 137 F.Supp. 298, 303 (W.D. Missouri 1955), aff'd, 235 F.2d 930 (8th Cir.1956). We have further found authority holding that § 1702 is applicable to mail within the control and responsibility of the United States Postal Service. United States v. Ashford, 530 F.2d 792, 795 (8th Cir.1976) (holding that the statute applies to mail that is the responsibility of the United States Postal Service); United States v. Bradford, 493 F.2d 1282, 1284 (7th Cir.1974) (stating that § 1702 applies to anything transferred by the postal service); Giraud v. United States, 348 F.2d 820, 822 (9th Cir.1965) (holding that it is incumbent to establish as one of the elements of the offense that the check taken had been in the United States mail); United States v. Lorenzen, 6 C.M.A. 512, 515 (1955) (holding that the federal act clearly requires the object to be mail matter in the custody of the United States Postal Service). Appellant cites to no authority and we have found none holding that the statute applies to private freight and mail carriers such as Federal Express. Based on these authorities, the search of the envelope by the Federal Express employees was not illegal and did not warrant the suppression of its contents nor did it serve as a basis to find the detention and questioning of appellant and the search of his vehicle illegal.

Custodial Interrogation and Consent to Search

Appellant also claims that the statements he made in response to police questioning should be suppressed because the police officers failed to comply with article 38.22 § 3(a) of the Code of Criminal Procedure which requires an oral recording. However, the statute applies only to custodial interrogations. Tex.Code CRiM. PROc. Ann. art. 38.22 § 3(a) (Vernon 2005). Appellant contends he was in custody because a reasonable person would have believed he was not free to leave due to the fact he was the only person on whom the attention of the police was focused, the number of police officers present (two), the nature of the questioning, and the fact he was told he was being detained for questioning. Further, he argues, his continued detention after the purpose for which he had been detained (the identification of the person who sent him the package) and the request to search his vehicle violated his constitutional and statutory rights.

A police officer may temporarily detain a person if he has reasonable suspicion that criminal activity is afoot and the person is involved in it. See Garcia v. State, 43 S.W.3d 527, 530 (Tex.Crim.App.2001) (defining reasonable suspicion as specific articulable facts when combined with rational inferences from those facts which would lead an officer to reasonably suspect that a particular person has engaged or is or soon will be engaging in criminal activity). The officers knew that appellant had been mailed an overnight letter containing what was believed to be heroin and that appellant had claimed what he believed to be that package when it was undeliverable. In the absence of other evidence, possession of an unopened package received by mail or common carrier and containing drugs does not warrant an inference beyond a reasonable doubt that the accused knowingly possessed drugs. Barber v. State, 757 S.W.2d 83, 86 (Tex.App.-Houston [14th Dist.]1988, pet. ref'd). However, evidence demonstrating knowledge of the contents can be shown by claiming a box addressed to the accused and known by law enforcement agents to contain drugs. Barber v. State, 757 S.W.2d at 86. At the very least, the officers had reasonable suspicion on the facts known to them to detain appellant for questioning.

Furthermore, even assuming the officers did not have probable cause to search the vehicle after appellant confessed to being a heroin user and displayed traits of one, under both federal and state law, an officer may seek voluntary consent to search. State v. Perez, 85 S.W.3d 817, 819 (Tex.Crim.App.2002); James v. State, 102 S.W.3d 162, 173 (Tex.App.-Fort Worth 2003, pet. ref'd). He need not have reasonable suspicion or probable cause to do so as long as the officer does not indicate that compliance is required. Hunter v. State, 955 S.W.2d 102, 104 (Tex.Crim.App.1997); Middleton v. State, 9 S.W.3d 428, 431 (Tex.App.-Houston [14th Dist.] 1999, no pet.).

Reyna testified that he identified himself to appellant, asked for appellant’s identification, read him his Miranda warnings, and told him he was not under arrest but was just being detained for questioning. The basis for that questioning, according to Reyna, was the fact that he believed the overnight letter appellant was to receive contained heroin. While Reyna was questioning appellant as to the identity of the person who had sent the letter and whether appellant knew what was in the letter, he noticed that appellant was nervous, shaking, and claimed to be cold even though the officer knew the temperature was in the upper eighties. Reyna identified the symptoms as those of drug users. Reyna told appellant what was in the package and then asked him if he was a heroin user and if he was surprised that someone was sending him heroin. Appellant responded “yes” to the first question and did not respond to the second. During this time, appellant was not in handcuffs or sitting in the patrol car. Reyna then asked if he could search the vehicle after explaining to appellant that he had the right to refuse. Appellant gave his consent. After the search, appellant was released pending the filing of charges. Under these facts, the trial court could have concluded that appellant was not in custody but was only temporarily detained for investigation.

Because there is no evidence that the evidence was illegally seized in violation of a statute, see Tex.Code CRiM. PROC. Ann. art. 38.23(a) (Vernon 2005) (stating that in any case where the legal evidence raises an issue whether the evidence was obtained in violation of the laws of the state or the United States, the jury shall be instructed that if it has reasonable doubt that the evidence was obtained in violation thereof, the jury shall disregard any evidence so obtained), the trial court did not err in failing to charge the jury on the same.

Issue 3—Charge on Extraneous Offenses

Next, appellant contends that the trial court erred in failing to charge the jury that extraneous offenses may be considered only for limited purposes. We overrule the issue.

There was evidence that appellant was a heroin user and had drug paraphernalia in his vehicle thereby indicating he may have possessed controlled substances. Also, there was evidence that appellant associated with a prostitute. Appellant objected to the trial court’s jury charge because it did not contain an instruction with respect to extraneous offenses. However, a request for a limiting instruction with respect to extraneous offenses must be made at the time the evidence is admitted or else the evidence is admitted for all purposes. Hammock v. State, 46 S.W.3d 889, 895 (Tex.Crim.App.2001); Reyes v. State, 69 S.W.3d 725, 741 (Tex.App.-Corpus Christi 2002, pet. ref'd). Because appellant failed to request a limiting instruction at the earliest opportunity, the trial court did not err in excluding the instruction from its jury charge. Hammock v. State, 46 S.W.3d at 895.

Issue 4—Motion for Continuance

In his last issue, appellant complains of the trial court’s failure to grant his motion for continuance. Appellant moved for the continuance after the State had rested its case. We overrule the issue.

The denial of a motion for continuance is reviewed under the standard of abused discretion. Wright v. State, 28 S.W.3d 526, 532 (Tex.Crim.App.2000). A continuance may be granted on the motion of the defendant after the trial has begun “when it is made to appear to the satisfaction of the court that by some unexpected occurrence since the trial began, which no reasonable diligence could have anticipated, the applicant is so taken by surprise that a fair trial cannot be had.” Tex.Code CRiM. PROC. Ann. art. 29.13 (Vernon 1989).

Before the commencement of trial, appellant informed the court that he had learned the name of a witness, spoken to her, and issued a subpoena for her attendance at trial; however, he had “a strong suspicion” that she would attempt to avoid service. Nevertheless, appellant felt he could obtain service within the necessary time. After the State rested, appellant informed the court that 1) the witness had told him she had placed the methadone in appellant’s vehicle, 2) she did not want to testify, and 3) he had been unable to serve a subpoena on her at the address where he believed she resided. On that basis, appellant sought a continuance. The court found that appellant had made adequate attempts to locate the witness and compel her attendance and that further attempts would be unsuccessful. Therefore, the motion was denied.

Appellant was aware prior to the commencement of trial that the witness was unwilling to appear at trial and that she would attempt to avoid service of process. The motion for continuance makes no showing of any unexpected occurrence which no reasonable diligence could have anticipated. See Martinez v. State, 867 S.W.2d 30, 40 (Tex.Crim.App.1993) (holding that the defendant was aware of the potential that the State would call an expert witness during the punishment phase which he might need to rebut so there was no unexpected occurrence). Furthermore, appellant (through his attorney) informed the court that he suspected she would invoke her Fifth Amendment privilege against self-incrimination even if service was obtained on her. This coupled with the prior representation that the witness may avoid service of the subpoena is also some indication that she may not have been available to testify. Rodriguez v. State, 21 S.W.3d 562, 565-66 (Tex.App.Houston [14th Dist.] 2000, pet. ref'd) (stating that a continuance may be denied when the evidence fails to indicate a probability that the witness can be secured by a postponement). Under these circumstances, we find no abuse of discretion on the part of the trial court in denying the motion.

Accordingly, the judgment of the trial court is affirmed.

      . The letter was addressed to appellant at a truck stop and was therefore undeliverable.

      . There was no affidavit or testimony to this effect.


author: Justice COOPER.

text:
    Thomas C. BOWLING, Appellant, v. LEXINGTON-FAYETTE URBAN COUNTY GOVERNMENT, Appellee, and Honorable Gregory D. STUMBO, Attorney General, Commonwealth of Kentucky Intervening Appellee
    No. 2004-SC-0907-MR.
    Supreme Court of Kentucky.
    June 16, 2005.
    Rehearing Denied Oct. 20, 2005.

      Susan Jackson Balliet, Assistant Public Advocate, Department of Public Advocacy, Frankfort, Elizabeth Stovall, Louisville, Counsel for Appellant.
    Glenda D. Humphrey, Lexington-Fay-ette Urban County Government, Department of Law, Lexington, Counsel for Ap-pellee Lexington-Fayette Urban County Government.
    David A. Smith, Assistant Attorney General, Office of Attorney General, Criminal Appellate Division, Frankfort, Counsel for Intervening Appellee Honorable Gregory D. Stumbo, Attorney General, Commonwealth of Kentucky.
   Opinion of the Court by

Justice COOPER.

This appeal stems from the dismissal of an action filed in the Fayette Circuit Court by Appellant, Thomas C. Bowling, pursuant to the Open Records Act, KRS 61.870 to KRS 61.884. Appellant’s complaint alleged that the Lexington-Fayette Urban County Government (LFUCG) wrongfully withheld records after he made a series of open records requests. On appeal, he claims that the trial court erred by 1) canceling an evidentiary hearing and quashing the subpoenas issued for representatives of the Fayette County Commonwealth’s Attorney’s office and the Kentucky Attorney General’s office; and 2) finding that the LFUCG had not willfully violated the Open Records Act.

In 1990, a Fayette Circuit Court jury convicted Appellant of two counts of murder and one count of assault in the fourth degree and sentenced him to death for the murders of Edward Lee and Ernestine Lynn Earley. His convictions and sentences were affirmed on direct appeal. Bowling v. Commonwealth, 873 S.W.2d 175 (Ky.1998), cert. denied, Bowling v. Kentucky, 513 U.S. 862, 115 S.Ct. 176, 130 L.Ed.2d 112 (1994). His Criminal Rule (RCr) 11.42 motion was overruled and that decision was affirmed on appeal. Bowling v. Commonwealth, 981 S.W.2d 545 (Ky. 1998), cert. denied, Bowling v. Kentucky, 527 U.S. 1026, 119 S.Ct. 2375, 144 L.Ed.2d 778 (1999). Appellant’s final normal avenue of appeal from his conviction was exhausted when the United States Supreme Court denied his petition for certiorari seeking review of the denial of his writ of habeas corpus. Bowling v. Parker, 138 F.Supp.2d 821 (E.D.Ky.2001), aff'd, Bowling v. Parker, 344 F.3d 487 (6th Cir.2003), cert. denied sub nom., Bowling v. Haeberlin, — U.S. -, 125 S.Ct. 281, 160 L.Ed.2d 68 (2004). The Governor of Kentucky signed a death warrant scheduling Appellant’s execution for November 30, 2004. KRS 431.240(4). Appellant subsequently filed various motions and separate actions challenging his sentence of death. E.g., Bowling v. Commonwealth, 163 S.W.3d 361, 364 (2005). Both this Court and the Franklin Circuit Court issued orders staying Appellant’s execution pending the resolution of these matters.

Appellant theorizes that either Donald or John Ed Adams, alleged members of the “Adams family” that Appellant characterizes as a Lexington-based drug and theft cartel, killed the Earleys in retaliation for Edward Earley’s having informed the police about the family’s criminal activities. He also theorizes that a member of the Adams family was having an affair with Ernestine Earley. According to Appellant, members of the Adams family “framed” him by arranging for him to purchase the murder weapon the week before the crime, getting him drunk, and— without his knowledge — borrowing his car, his jacket, and his hat, and then murdering the Earleys with his pistol while driving his car and wearing his clothes. Nothing in the record of Appellant’s criminal convictions supports these theories; thus, he seeks such support in the records of the Lexington Police Department (LPD), an agency of the LFUCG.

On October 14, 1999, Appellant sent an open records request seeking all files within the custody of the Lexington Police Department pertaining to the Earley homicide investigation, any investigation of Appellant, himself, whether pertaining to the Earley homicides or not, and any investigation resulting from information provided to the police by Edward Earley. On October 19, 1999, the LFUCG temporarily denied Appellant’s request, based on its interpretation of Skaggs v. Redford, 844 S.W.2d 389 (Ky.1992), that police investigation files relating to a criminal defendant were exempt from public inspection until after the defendant served his sentence. The LFUCG noted that the denial was temporary, however, pending its decision on whether to appeal two Attorney General opinions in separate cases that held its rebanee on Skaggs for this proposition to be misplaced.

Appellant responded on October 27, 1999, clarifying and renewing his request with respect to the files to which the LFUCG’s interpretation of Skaggs did not apply. Appellant additionally requested any files pertaining to Donald R. Adams, indicating that Adams might also be known as Donald L. Adams. On November 3, 1999, the LFUCG informed Appellant that it had decided not to appeal the Attorney General opinions and that it would provide some of the files that were the subject of the open records request. Specifically, the LFUCG agreed to provide Appellant’s homicide investigation file but, because of its voluminous nature and the fact that the file had previously been made available to Appellant in 1995, requested that Appellant furnish a list of the materials from the file that were already in his possession. The LFUCG also agreed to provide all other files pertaining to Appellant and the files specifically pertaining to Edward Earley as an informant, and undertook to begin the location and review of those records. Finally, the LFUCG agreed to provide investigative files pertaining to Adams, but claimed that such records generated after April 9, 1990, the date the Earleys were killed, were exempt from Appellant’s disclosure request as part of an ongoing investigation, pursuant to KRS 61.878(l)(h) and KRS 17.150(2).

After sending an investigator to view the documents provided by the LFUCG, Appellant issued another open records request on November 15, 1999, seeking all LPD investigative files pertaining to Donald Ray Adams, Edward Earley, Ernestine Earley and Lynwood Clay Brackett. On November 17, 1999, the LFUCG granted Appellant access to the entire investigative file relating to Edward and Ernestine Ear-ley with the exception of information for which it claimed a statutory exemption from disclosure. KRS 61.880(1); 61.878(4). Accordingly, Appellant’s investigator examined and copied files pertaining to the Earley homicide investigation on December 17, 1999. Appellant continued to correspond with the LFUCG over the next several months regarding the remaining subjects of his November 15, 1999, open records request, ie., files pertaining to Donald Ray Adams, Lynwood Clay Brackett, and drug intelligence information provided to the police by Edward Earley. During this time, according to the LFUCG’s letter to Appellant of June 23, 2000, the files were inadvertently sent back to the LPD, where they were misfiled for a period of time. In June 2000, Appellant issued another open records request, seeking narcotics and investigation files from 1988-1991 pertaining to David Adams, Donald L. Adams, Donald R. Adams, Edward and Ernestine Earley, and George King, as well as the case file on the October 13, 1989, arrest of Donald Adams.

After receiving the June 2000 request, corporate counsel for the LFUCG contacted the Fayette County Commonwealth’s Attorney’s office and the Kentucky Attorney General’s office. Based on this discussion, the LFUCG notified Appellant on June 23, 2000, that because of his pending action in federal court for a writ of habeas corpus, all police documents were exempt from inspection, pursuant to KRS 61.878(l)(h). Further, the LFUCG denied each of Appellant’s remaining requests because they mirrored discovery requests that the United States District Court for the Eastern District of Kentucky had denied on May 19, 2000. Appellant responded on June 28, 2000, pointing out the lack of legal authority for the proposition that the denial of a request for a discovery order affects the propriety of an open records request, and pointing out that KRS 61.878(l)(h) exempted only those files directly related to the prosecution of Appellant for the Earley homicides. After considering Appellant’s arguments, the LFUCG determined that the federal discovery order did not apply to the open records requests and granted Appellant’s requests with regard to all records that were not otherwise exempt from public inspection.

On July 26, 2000, the LFUCG made files available in response to Appellant’s June 2000 request for receipt of information (ROI) records relating to David Adams, Donald L. Adams, Donald R. Adams, the Earleys, and George King, as well as the file concerning Donald Adams’s 1989 arrest. It informed Appellant that the LPD had located ROI records for David Adams, Donald R. Adams, Jr., and George King, but was unable to find any ROI files for the other individuals. The LFUCG also noted that ROI reports were routinely purged after five years pursuant to LPD policy, unless they had become part of an active police investigation. On July 28, 2000, Appellant confirmed the receipt of the located ROI records and the arrest file. Appellant also requested copies of an additional police file and of audio and videotapes of an interview with Donnie Adams.

On August 21, 2000, the LFUCG again wrote Appellant, stating that copies of the documents in Appellant’s police investigation file would be available for pickup and identifying the portions of the file that were being withheld and the statutory bases for their exemption. The LFUCG also responded to Appellant’s request for a videotape and audiotapes that were recorded during the Earley homicide investigation. Appellant was informed that the LPD had located seven of seventeen audiotapes, that the remaining ten audiotapes were in the possession of the Commonwealth’s Attorney’s office, and that the LPD was unable to locate the videotape. The LFUCG advised Appellant that it would review the seven audiotapes before making them available to Appellant to ensure they contained no information that was exempt from disclosure.

Three months later, Appellant still had not received a response regarding the audiotapes, and the LFUCG continued to claim the ongoing investigation exemption, KRS 61.878(l)(h), for files pertaining to Donald Adams generated after the Earley homicides. Accordingly, on November 22, 2000, Appellant filed this action in the Fayette Circuit Court, alleging violations of the Open Records Act. KRS 61.882. Appellant also sought an evidentiary hearing, pursuant to KRS 61.882(4). It appears that the LFUCG received a courtesy copy of Appellant’s complaint before it was filed. In response, on November 20, 2000, the LFUCG granted Appellant access to the seven audiotapes in its possession.

Appellant’s attorney met with Lexington Police Chief Larry Walsh on March 8, 2001. During this meeting, Walsh stated that he had written two internal police memoranda regarding Donald R. Adams, Sr., and Edward Earley concerning Adams’s drug dealing activities and the possibility of Adams being a suspect in the Earley homicide investigation. Because these two documents were not contained in the Earley homicide investigation file when it was forwarded to the LFUCG Department of Law in response to Appellant’s 1995 and 1999 open records requests, Appellant filed an open records request for these memoranda on March 21, 2001. Based on Walsh’s estimates of when he prepared the memoranda, the LFUCG Department of Law obtained two computer disks containing documents Walsh dictated between January and November 1990. A search of these disks did not reveal the documents Appellant sought, and the LFUCG found only one memorandum mentioning Donald Adams, which it produced to Appellant on May 4, 2001. On March 22, 2001, Appellant issued another open records request for all records pertaining to Donald Ray Adams, Donald Leroy Adams, Edward Earley, and David Paul Adams.

On May 11, 2001, the Fayette Circuit Court ordered the LFUCG to provide Appellant with “all Lexington Police Department records pertaining to anyone named Donald Adams (regardless of middle name or other identifying information) that were generated during the period of time on or before April 10, 1991, to April 10, 1996.” The court also ordered the LFUCG to produce the Donald Adams records generated after April 10, 1996, for in camera inspection. The court set an evidentiary hearing on Appellant’s claims for June 4, 2001. On May 18, 2001, the LFUCG released its files regarding Donald Adams to Appellant, listed the statutory bases for eight withheld files, and noted that the withheld files would be given to the Fay-ette Circuit Court for in camera review. After concluding its in camera review, the court ordered the LFUCG to release five of the eight withheld files to Appellant.

Appellant sought to utilize the hearing scheduled for June 4, 2001, to establish the existence of additional records that had not been furnished to him by the LFUCG. Before Appellant began calling witnesses, however, the trial court determined that an evidentiary hearing was premature and directed Appellant to take affidavits from each of the witnesses he planned to call. Appellant also sought to establish whether and when the ten remaining audiotapes and the videotape in question came into the possession of the Fayette County Commonwealth’s Attorney’s office. To this end, he subpoenaed two members of the Commonwealth’s Attorney’s office and one member of the Kentucky Attorney General’s office to testify about the “missing” tapes. The trial court quashed the subpoenas and cancelled the hearing.

On July 8, 2002, Appellant filed a motion to reconsider the court’s rulings, attaching several affidavits from current and former LPD employees, numerous police reports, and newspaper articles, in an attempt to establish the existence of further, undisclosed records. The trial court overruled this motion. Finally, on September 23, 2004, the court found that the LFUCG had not violated the Open Records Act and dismissed Appellant’s action.

Based on these events, Appellant claims that the trial court erred in canceling the evidentiary hearing. He argues the hearing could have proven the existence of numerous records that the LFUCG continues to withhold from him. He requests that this Court order the LFUCG to release all such documents, or alternatively, that his case be remanded for an evidentia-ry hearing, at which he will continue to attempt to prove the existence of such records. Appellant also requests this Court to order the LFUCG to obtain the tapes in the possession of the Fayette County Commonwealth’s Attorney’s office and release copies to him. Finally, Appellant requests that this Court hold that the trial court erred in finding that the LFUCG did not willfully violate the Open Records Act.

I. DENIAL OF HEARING.

The basic premise of the Open Records Act is that:

Ml public records shall be open for inspection by any person, except as otherwise provided by KRS 61.870 to 61.884, and suitable facilities shall be made available by each public agency for the exercise of this right.

KRS 61.872(1).

Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall ... notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld.

KRS 61.880(1). The enforcement mechanism for the Act provides that the requester may forward the agency’s denial to the Attorney General for further review. The requester also has the option of immediately filing an enforcement action in Circuit Court. KRS 61.882(1), (2). Clearly, the Act contemplates that the court may hold a hearing, if necessary. KRS 61.882(4) (“[PJroceedings arising under this section ... shall be assigned for hearing and trial at the earliest practicable date.”). The parties may also request the court to review any withheld records in camera, and the burden of proof for establishing that a withheld record is exempt lies with the public agency. KRS 61.882(3).

A. Quashing of Subpoenas.

Appellant claims that the trial court erred in quashing the subpoenas issued to representatives of the Fayette County Commonwealth’s Attorney’s Office and the Kentucky Attorney General’s Office, arguing that quashing these subpoenas denied him the opportunity to bring the ten audiotapes within the possession of the Commonwealth’s Attorney’s Office before the court for its review to determine whether the records were properly withheld. Because Appellant was clearly not entitled to such records under the Open Records Act, we hold that the trial court properly quashed the subpoenas.

[R]ecords or information compiled and maintained by county attorneys or Commonwealth’s attorneys pertaining to criminal investigations or criminal litigation shall be exempted from the provisions of KRS 61.870 to 61.884 and shall remain exempted after enforcement action, including litigation, is completed or a decision is made to take no action.

KRS 61.878(l)(h) (emphasis added). We interpreted this Open Records Act exemption in Skaggs v. Redford, 844 S.W.2d 389 (Ky.1992):

[T]he exemptions in the Open Records Act should be construed in a manner sufficiently broad to protect a legitimate state interest, and ... the state’s interest in prosecuting the appellant is not terminated until his sentence has been carried out. The Office of the Commonwealth of [sic] Attorney and the Office of Attorney General, together, represent the state’s prosecutorial function in this case.... We agree with the appellee that the records fall within the provisions of [then] KRS 61.878(l)(g), and as such they are “public records exempted under this provision [until] after enforcement action is completed.”

Id. at 390. These principles apply equally to all records in the litigation files of the Commonwealth’s Attorney, regardless of origin. A criminal defendant has ample opportunity to examine the Commonwealth’s litigation files before trial. RCr 7.24(2). Appellant cannot use the provisions of the Open Records Act to subvert these rules of discovery. See KRS 447.154. As we stated in Skaggs, “we disagree that [this result] represents a fundamental unfairness, because the judicial rules of practice and procedure that apply to this case ... require the Commonwealth to make discovery of all information to which the defendant is legitimately entitled during the prosecution of the action.” Skaggs, 844 S.W.2d at 391. Accordingly, a subpoena requiring representatives from the Attorney General’s Office and the Commonwealth’s Attorney’s Office to appear at an Open Records Act hearing and produce records in the possession of the Commonwealth’s Attorney contravened KRS 61.878(l)(h) and Skaggs.

Appellant claims that the subpoenas would have served a second purpose at the hearing by allowing him to introduce evidence that: 1) the subpoenaed individuals had wrongfully interfered with Appellant’s open records requests; and 2) that the ten audiotapes in the Commonwealth’s Attorney’s possession had been wrongfully transferred from the LFUCG to the Commonwealth’s Attorney for the purpose of placing them under the Skaggs exemption. As stated above, the LFUCG contacted the Attorney General’s office and the Commonwealth’s Attorney’s office after receiving Appellant’s June 2000 request. Individuals from those offices advised the LFUCG to deny the request. Appellant claims that this incident constituted wrongful interference with his requests.

This allegation is not at all relevant to Appellant’s primary claims for relief, i.e., that additional records exist that he has not received, and that the LFUCG willfully violated the Open Records Act. In light of the LFUCG’s July 14, 2000, reconsideration of its denial of Appellant’s request, Appellant suffered no harm from these contacts. Further, there is nothing facially improper about representatives of public agencies communicating with one another about open records requests. We decline Appellant’s invitation to infer bad faith on the part of these public agencies.

Finally, there is no merit to Appellant’s notion that he could have presented evidence to show that ten audiotapes were wrongfully transferred from the LFUCG’s possession to the Commonwealth’s Attorney’s office. Appellant claims that the audiotapes were placed in the custody of the Commonwealth’s Attorney only after he began making requests for Earley homicide investigation records. Yet, by Appellant’s counsel’s own admission, the Commonwealth’s Attorney’s office provided Appellant with open file discovery at his 1991 trial and furnished him with an inventory of the records in its possession, which included the audiotapes in question. This unrefuted evidence belies Appellant’s claim that the LFUCG placed the tapes in the Commonwealth’s Attorney’s possession to protect them from disclosure under the Open Records Act. Because Appellant’s remaining contentions are meritless, the trial court correctly quashed the subpoenas.

B. Existence of Additional, Undisclosed Records.

Appellant also contends that the cancellation of the evidentiary hearing denied him an opportunity to present evidence of the existence of additional records which he had not received and which were in the LFUCG’s possession. The Open Records Act is silent as to the procedure to be followed when a requester seeks to enforce the Act over a public agency’s denial of the record’s existence. The Act contemplates that an agency will deny an open records request when it believes that the requested records are exempt, but it does not envision a situation, as here, where the agency claims that the records do not exist. See KRS 61.880(1) (“An agency response denying ... inspection of any record shall include a statement of the specific exemption authorizing the withholding of the record .... ”). Similarly, the Act’s enforcement provisions assume that the parties will be litigating the viability of a claimed exemption over existing records, not the very existence of the records. See KRS 61.882(3) (“The court ... may view the records in controversy in camera before reaching a decision.”).

In construing this legislative enactment, we must view it as a whole, looking to the letter and spirit of the statute. Combs v. Hubb Coal Corp., 934 S.W.2d 250, 252 (Ky.1996). The duty of this Court is “to give effect to the intent of the legislature as contained in the statutory language, considering the evil the law was intended to remedy.” Hearn v. Commonwealth, 80 S.W.3d 432, 434 (Ky.2002). The General Assembly has expressly declared the “basic policy” of the Open Records Act to be “that free and open examination of records is in the public interest .... ” KRS 61.871. When faced with the present situation, the best way to uphold this policy is to ensure that the complaining party has an opportunity to disprove a public agency’s denial of the existence of records. The allowance of an opportunity for such a hearing is also in accord with the Act’s interrelation with the various statutes governing orderly maintenance and management of public records. KRS 61.8715. To hold otherwise could remove accountability from the open records process, allowing public agencies to avoid judicial review by denying a record’s existence altogether rather than claiming a statutory exemption. Statutes must not be construed in a way that they become meaningless or ineffectual. Commonwealth v. Phon, 17 S.W.3d 106, 108 (Ky.2000); Allen v. McClendon, 967 S.W.2d 1, 3 (Ky.1998).

At the same time, the General Assembly has also evidenced a concern that public agencies not be unreasonably burdened and that essential functions not be disrupted by open records requests. KRS 61.872(6). The unfettered possibility of fishing expeditions for hoped-for but nonexistent records would place an undue burden on public agencies. In order to refute a complaining party’s claims to a nonexistent record, the agency would essentially have to prove a negative, presumably by presenting evidence of its standards and practices regarding document production and retention, as well as its methods of searching its archives. Therefore, we hold that before a complaining party is entitled to such a healing, he or she must make a prima facie showing that such records do exist.

On July 8, 2002, Appellant filed a motion to reconsider the cancellation of the evidentiary hearing, supported by affidavits, police reports, and newspaper articles. He claims these documents are sufficient to establish the existence of records generated by the LPD, which, despite his requests for all records pertaining to Donald Adams, he never received. According to Appellant, these undisclosed records would contain additional information about the criminal record of Donald Adams and would reveal that Edward Earley had given the LPD information about Adams’s past criminal activities.

First, Appellant cites numerous articles from the Lexington Hemldr-Leader newspaper discussing a burglary that purportedly occurred on June 6, 1989, and naming Donald Adams as the victim. Appellant claims that he received no police records regarding the burglary. Because the articles constitute inadmissible hearsay, KRE 802; 1101(b), (d), they are insufficient to establish that the burglary occurred or that records regarding it exist.

Second, Appellant claims he never received any records regarding the suspected drug-dealing activities of Donald Adams prior to Adams’s arrest on October 13, 1989, despite his request for all records pertaining to Adams. To prove the existence of such records, Appellant submitted the affidavits of several current and former members of the LPD stating that the Department had received ROIs about Adams’s activities before his 1989 arrest, and that this intelligence likely generated ROI files on Adams and his businesses. Nevertheless, these affidavits pertaining to the pre-1989 creation of ROI files are insufficient to establish their present existence. According to the LFUCG’s letter to Appellant of July 26, 2000, LPD policy is to routinely purge all ROI files after five years, unless they become part of an active police investigation. Any ROI file that led to Adams’s 1989 arrest would have merged with the arrest file, which Appellant received. The affidavits were insufficient to prove the existence of additional unfurnished ROI files on Adams and his businesses.

Third, Appellant claims that records identifying the confidential informant who provided the LPD with information that led to Donald Adams’s arrest on October 13,1989, exist and that he has not received them. In support of this contention, he submitted the affidavit of Harold Winings, the lead officer in the investigation of Adams that led to this arrest. However, in his affidavit, Winings expressed his belief that records concerning informants were not kept in 1989. The affidavit of James Cox, LPD Property and Evidence Section Supervisor, also stated that records concerning informants were not kept at that time. Accordingly, this affidavit is insufficient to establish the existence of records regarding the identity of the confidential informant.

Fourth, Appellant argues that he has not received the full extent of the records detailing the LPD’s investigation into the possibility of Adams’s involvement in the Earley homicides. In response to his open records requests, Appellant received the written summary of an interview of Adams that was conducted as part of the Earley homicide investigation. It appears from the affidavit of William Henderson, the lead investigator in the Earley homicide investigation, that this was the extent of the investigation into Adams’s possible involvement. Under Appellant’s questioning, no officer involved in the Earley homicide investigation recalled ever receiving any information indicating that Edward Earley was the confidential informant who provided the tip that led to Adams’s 1989 arrest. While it is understandable that Appellant would second-guess an investigation that led to his arrest and conviction, his bare assertion that the LPD “should” have further investigated Adams’s possible involvement in the homicides does not establish the existence of records that he has not already received.

Finally, Appellant claims that records relating to the investigation of an alleged probation violation by Adams exist and were never produced. Appellant submitted a memorandum written to Lexington Police Chief Walsh detailing a confidential informant’s allegations that Adams was trafficking in drugs from an automobile repair shop and committing other probation violations. On July 1, 1990, Walsh responded by directing Assistant Chief K.B. Watson to “have this matter investigated and respond with the results.” Appellant also submitted affidavits from three former Lexington police officers, each of whom remembered executing a search warrant at the automobile repair shop. It appears from the record of this case that no investigative or enforcement action was taken against Adams after the execution of this search warrant. Thus, it is most likely that any ROI files generated at the time of this incident were purged after five years in accordance with LPD policy.

Appellant obtained extensive sworn testimony from numerous current and former LPD officials concerning information received by the LPD regarding Donald Adams, the extent to which the Earley homicide investigation focused on Adams, and the LPD’s document creation and retention policies. Appellant has presented no credible evidence that the LFUCG has failed to comply with the trial court’s May 11 and June 19, 2001, orders requiring it to release all non-exempt records “pertaining to anyone named Donald Adams (regardless of middle name or other identifying information)” to Appellant. These orders and the opportunity to submit affidavits taken from Appellant’s witnesses provided adequate relief to Appellant; thus, the trial court did not err in denying Appellant an evidentiary hearing to prove the existence of claimed additional unfurnished records.

II. WILLFUL VIOLATION.

On September 23, 2004, the Fay-ette Circuit Court concluded that the LFUCG did not violate the Open Records Act. The Act provides, in pertinent part:

Any person who prevails against any agency in any action in the courts regarding a violation of KRS 61.870 to 61.884 may, upon a finding that the records were willfully withheld in violation of KRS 61.870 to 61.884, be awarded costs, including reasonable attorney’s fees, incurred in connection with the legal action.... In addition, it shall be within the discretion of the court to award the person an amount not to exceed twenty-five dollars ($25) for each day that he was denied the right to inspect or copy said public record.

KRS 61.882(5). A public agency’s mere refusal to furnish records based on a good faith claim of a statutory exemption, which is later determined to be incorrect, is insufficient to establish a willful violation of the Act. See Blair v. Hendricks, 30 S.W.3d 802, 807 (Ky.App.2000), overruled on other grounds by Lang v. Sapp, 71 S.W.3d 133, 135-36 (Ky.App.2002). In other words, a technical violation of the Act is not enough; the existence of bad faith is required. The trial court’s decision on the issue of willfulness is a finding of fact and, as such, -will not be disturbed unless clearly erroneous. CR 52.01; Weiand v. Bd. of Tr. of Ky. Ret Sys., 25 S.W.3d 88, 92 (Ky.2000); Lawson v. Loid, 896 S.W.2d 1, 3 (Ky.1995).

Appellant’s claim of willful violation is based on the LFUCG’s denials of his requests for records related to Donald Adams before the trial court ordered the disclosure of such records. On November 3, 1999, the LFUCG agreed to release Donald Adams’s records to Appellant, but withheld records generated after April 9, 1990, claiming that such records were part of an ongoing investigation. Appellant continued to make requests for records pertaining to Adams, and his action in the Fayette Circuit Court followed when the LFUCG continued to claim the ongoing-investigation exemption. On May 11, 2001, the Fayette Circuit Court ordered the LFUCG to provide Appellant with all LPD records pertaining to Donald Adams generated between April 10, 1991, and April 10, 1996, and to provide the court with all records generated after April 10, 1996, for in camera inspection. After the entry of this order, the LFUCG discontinued its claim to the ongoing-investigation exemption for the records generated after April 10, 1996, and provided Appellant with all records in its possession relating to Adams, with the exception of eight files, which it provided to the court for in camera review of its claim of exemption.

Appellant argues that the LFUCG’s abandonment of its claim to the ongoing-investigation exemption after the trial court ordered it to produce for in camera inspection all records generated after April 10, 1996, reveals that the LFUCG’s reliance on this exemption was a sham. We disagree.

The following public records are excluded from the application of KRS 61.870 to KRS 61.884 and shall be subject to inspection only upon order of a court of competent jurisdiction ...
(h) Records of law enforcement agencies ... that were compiled in the process of detecting and investigating statutory or regulatory violations if the disclosure of the information would harm the agency ... by premature release of information to be used in a prospective law enforcement action .... Unless exempted by other provisions of KRS 61.870 to KRS 61.884, public records exempted under this provision shall be open after enforcement action is completed or a decision is made to take no action ....

KRS 61.878(1). We also note that the Open Records Act contemplates exemptions “otherwise provided by law,” KRS 61.878, including the following:

Intelligence and investigative reports maintained by criminal justice agencies are subject to public inspection if prosecution is completed or a determination not to prosecute has been made. However, portions of the records may be withheld from inspection if the inspection would disclose:
(d) Information contained in the records to be used in a prospective law enforcement action.

KRS 17.150(2). The LFUCG’s initial denials of Appellant’s request were based on a memorandum issued by the LPD, which concluded after a review of the LPD’s intelligence files that release of the requested information would impair an ongoing investigation. The LFUCG relied on this memorandum to claim the exemption provided in KRS 17.150(2)(d) and 61.878(l)(h). The LFUCG abandoned its claim to the exemption only after receiving a second memorandum, over a year and a half after the first, which stated that after engaging in a preliminary investigation of Adams, the LPD had decided not to commence a formal investigation due to a lack of credible information. Given the passage of time between the two memoranda, this statement is plausible. Thus, even if the trial court concluded that the LFUCG’s claim to the ongoing investigation was incorrect, there was no evidence whatsoever to indicate that the claim was in bad faith. We hold that the trial court’s finding that the LFUCG did not willfully violate the Open Records Act was not clearly erroneous.

Accordingly, the decision of the Fayette Circuit Court is AFFIRMED.

LAMBERT, C.J.; GRAVES, JOHNSTONE, SCOTT, and WINTERSHEIMER, JJ., sitting.

All concur.

      . This claim was based upon a memorandum issued on November 2, 1999, by Captain John Jacobs of the LPD, who conducted a review of Appellant’s request and the LPD's crime intelligence files and concluded that the information dated after the Earley homicides was "sensitive and would impair current investigations if released.”

      . From the correspondence between the LFUCG and Appellant’s attorneys, it appears that at this time, the LFUCG also released files relating to Adams and generated after April 10, 1996. The LFUCG’s action was based upon a May 11, 2001 memorandum issued by Captain John Jacobs. According to Jacobs, the LPD had previously engaged in a preliminary investigation, but a formal investigation never commenced due to a lack of credible information.

      . Appellant also claims that our case law prohibits a trial court from quashing a subpoena that has the sole purpose of causing a witness to attend and testify at a hearing. This contention is meritless, as a trial court at all times retains the authority to call and excuse subpoenaed witnesses. See Anderson v. Commonwealth, 63 S.W.3d 135, 142 (Ky.2001) ("We believe that once subpoenaed, the witness is answerable to the court and can only be excused by the court.”); Otis v. Meade, 483 S.W.2d 161, 162 (Ky.1972) ("|T|he subpoena created a continuing obligation on his part to be available as a witness until the case was concluded or until he was dismissed by the court.”); RCr 7.02(1) ("A subpoena shall be issued by the clerk.”).

      . However, evidence of habit and routine practice is presently inadmissible in Kentucky. See Burchett v. Commonwealth, 98 S.W.3d 492 (Ky.2003).

      . KRS 61.882(3), which places the burden of proof in a judicial enforcement action upon the public agency, is inapposite. As stated above, KRS 61.882 contemplates enforcement litigation only over the validity of a public agency’s claim of statutory exemption, not over the actual existence of a public record. Where enforcement litigation addresses the latter type of issue, the competing policies articulated by the General Assembly are best served by placing the burden of production on the complaining party.

      . As discussed above, the record in this case contains an affidavit from Lexington Police Chief Walsh, which describes two memoran-da, written in 1989 and 1990, concerning information that led to Adams’s 1989 arrest and the possibility of Adams being a suspect in the Earley homicides. An affidavit of a computer technician, submitted by the LFUCG, indicates that a thorough search of Walsh's contemporaneous computer files did not produce the documents in question.