author: Justice MORRIS.

text:
    Terri MOORE, Executrix for the Estate of Lawrence Woodland, Jr., Deceased, Appellant, v. FIRST FINANCIAL RESOLUTION ENTERPRISES, INC., Appellee.
    No. 05-04-00580-CV.
    Court of Appeals of Texas, Dallas.
    June 22, 2005.

      Jeffrey Lee Clark, Kelsoe, Anderson, Khoury & Clark, P.C., Dallas, for Appellant.
    James Y. Jay and Thomas M. Michel, Bourland, Kirkman, Seidler, Evans, Jay & Michel, Fort Worth, for Appellee.
    Before Justices MORRIS, WHITTINGTON, and FRANCIS.
   OPINION

Opinion by

Justice MORRIS.

In this appeal, Terri Moore, executrix for the estate of Lawrence Woodland, Jr., deceased, contends the trial court erred in granting summary judgment in favor of First Financial Resolution Enterprises, Inc. First Financial responds that it was entitled to judgment as a matter of law because Moore had no evidence to support Woodland’s claims and those claims were barred both by res judicata and the statute of limitations. Because we conclude the applicable statute of limitations prevents Moore from obtaining the relief she seeks, we affirm the trial court’s judgment.

I.

The controversy in this case arises from a promissory note Lawrence Woodland, Jr. made to NCNB-Texas National Bank. Moore, as Woodland’s executrix, contends Woodland paid the note in full in 1991 and received a release of the lien securing the note from NCNB. Moore submitted as summary judgment evidence a copy of the release of lien dated July 25,1991.

Despite the alleged payment and release of lien, NCNB assigned Woodland’s note to LM Holdings, Inc. for reasons not apparent in the record. LM Holdings later filed suit against Woodland for non-payment of the note. Moore concedes Woodland was served with citation in the suit on December 23, 1994. Upon receiving the citation, Woodland contacted a representative of NationsBank, the successor to NCNB. According to Woodland’s affidavit made before he died, the NationsBank representative he spoke with confirmed the note had been paid and told Woodland that “NationsBank would contact LM Holdings, Inc. and that no further action in the case would be taken and specifically no judgment would be taken against [him].” Woodland did not file an answer in the case, and LM Holdings sought and was granted a default judgment against Woodland on April 5,1995.

Woodland purportedly was unaware that a default judgment had been rendered against him until September 2000, when he was served with a writ of execution. In response, Woodland contacted an attorney who filed a petition for an injunction to restrain LM Holdings from collecting on the judgment. LM Holdings did not file an answer to Woodland’s suit for an injunction, and a default judgment was granted in favor of Woodland against LM Holdings permanently enjoining the company from enforcing the judgment against Woodland. But the controversy did not end there.

After obtaining his injunction against LM Holdings, Woodland learned the judgment against him had been assigned by LM Holdings to First Financial Resolution Enterprises, Inc. before the injunction against LM Holdings had been rendered. Woodland then filed this suit against First Financial seeking a second injunction to stay the execution of the assigned judgment. Woodland’s petition stated he was seeking injunctive relief under section 65.013 of the Texas Civil Practice and Remedies Code. Unfortunately, Woodland died while his suit was pending. Terri Moore continued with the case' as executrix of Woodland’s estate.

First Financial filed an answer to Woodland’s suit and moved for both a traditional and a no evidence summary judgment. First Financial’s motion for a no evidence summary judgment asserted there was no evidence to support Woodland’s equitable entitlement to an injunction. In its motion for a traditional summary judgment, First Financial argued Woodland’s request for an injunction could not succeed because his claims fail under either the doctrine of res judicata or the statute of limitations for stays of execution found in section 65.014 of the Texas Civil Practice and Remedies Code. The trial court granted summary judgment in favor of First Financial without specifying the grounds upon which it relied. Moore brought this appeal.

II.

When a trial court’s order granting summary judgment does not specify the grounds upon which the judgment is based, we must affirm the summary judgment if any of the theories presented to the trial court and preserved for appellate review are meritorious. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex.2003). In this case, First Financial moved for summary judgment on the ground that Woodland’s request for injunc-tive relief under section 65.013 of the Texas Civil Practice and Remedies Code could not be granted because the request was made outside the one-year limitations period. Section 65.014 of the code sets forth the limitations period for a suit seeking to •stay the execution of a judgment. Generally, under section 65.014, an injunction to stay the execution of a valid judgment may not be granted more than one year after the date on which the judgment was rendered unless: (1) the application for the injunction has been delayed because of fraud or false promises of the plaintiff in the judgment practiced or made at the time of or after rendition of the judgment; or (2) an equitable matter or defense arises after the rendition of the judgment. Tex. Civ. PRAC. & Rem.Code Ann. § 65.014 (Vernon 1997). Moore contends the limitations period found in section 65.014 does not apply to Woodland’s request for an injunction. Specifically, she argues Woodland’s unawareness of LM Holdings’s judgment against him for over five years is an “equitable matter” arising after rendition of the judgment that prevents the limitations period from applying. We disagree for the following reasons.

Moore’s argument is essentially that the one-year limitations period does not apply to this suit because Woodland’s application for an injunction was “delayed” by an “equitable matter.” This argument conflates the first and second exceptions to the one-year limitations period. When examined separately, neither of the statute’s exceptions is available to Moore.

The first exception found in section 65.014 requires that any delay in seeking a stay of execution must have been due to fraud or false promises made by the party in favor of whom judgment was rendered. The party that obtained the default judgment against Woodland was LM Holdings. There is no allegation that LM Holdings made a false promise to Woodland. And we note, the only alleged fraud by LM Holdings in this case is Moore’s contention that LM Holdings knowingly sought and obtained the judgment against Woodland despite the fact the company knew the note had been paid. Even if this allegation were trae, such fraud in obtaining the judgment did not prevent or in any way inhibit Woodland from seeking an injunction to stay execution of the judgment once the judgment was rendered. Fraud that is not the cause of the judgment debtor’s delay in attempting to stay the judgment does not prevent the application of the one-year limitations period under section 65.014. See Tex. Civ. PRAC. & Rem.Code Ann. § 65.014.

The second exception found in section 65.014, the “equitable matter or defense” exception, applies only when a judgment debtor can show reasons why the judgment creditor may not be entitled to execute on the judgment because of events occurring after the judgment was rendered. See, e.g., Trammell v. Chamberlain, 60 Tex.Civ.App. 238, 128 S.W. 429, 431 (Tex.Civ.App.1910, writ ref'd) (limitations period did not apply to request for injunction asserting that judgment debtor had acquired set-off rights against judgment creditor after judgment was rendered); Kruegel v. Rawlins, 121 S.W. 216, 218 (Tex.Civ.App.-Dallas 1909), writ ref'd, 103 Tex. 86, 124 S.W. 419 (1910) (limitations period did not apply to request for injunction based on assertion that party seeking to execute on judgment no longer owned judgment). The post-judgment events contemplated by the “equitable matter or defense” exception must affect the judgment creditor’s rights or the judgment debtor’s obligations under the judgment.

According to Moore, the “event” occurring after the default judgment against Woodland was granted was the alleged lack of actual notice to Woodland that a judgment had been rendered. Woodland’s unawareness that the judgment had been rendered is not sufficient, however, to bring this suit within the scope of the second exception to section 65.014. As a party to the suit, Woodland was charged by law with notice of all orders and judgments rendered in the suit. See Ponsart v. Citicorp Vendor Fin., Inc., 89 S.W.3d 285, 289 (Tex.App.-Texarkana 2002, no pet.). His actual knowledge of the judgment was not required for the judgment creditor to have the right to execute upon the judgment against him. Because the alleged lack of actual notice to Woodland that judgment had been rendered did not change any party’s rights or obligations under the judgment, the “equitable matter or defense” exception does not apply here.

After reviewing the summary judgment ■ record, we conclude the trial court correctly granted summary judgment in favor of First Financial on the ground that Woodland’s request for an injunction was not filed within the one-year limitations period. Because we have concluded the judgment is supportable on that ground, it is unnecessary for us to address the remainder of Moore’s arguments.

We affirm the trial court’s judgment.

      . Section 65.013 of the Texas Civil Practice and Remedies Code is entitled “Stay of Judgment or Proceeding” and states that "[a]n injunction may not be granted to stay a judgment or proceeding at law except to stay as much of the recovery or cause of action as the complainant in his petition shows himself equitably entitled to be relieved against and as much as will cover the costs.” Tex. Civ. Prac. & Rem.Code Ann. § 65.013 (Vernon 1997).


source: Caselaw Access Project

author: Justice O’NEILL.

license: Public Domain

text:
    Victor WYLY, Sharon Marsh-Wyly, V. Wyly Construction Co., Inc., and Dallas City Plan Commission, Appellants, v. PRESERVATION DALLAS, Swiss Avenue Historic District Association, Marc and Ann Joseph, Charles and Traci Orr, Warren Beck Kice and Tiffany Kice, Kevin and Susan Whitney Brown, Barry W. Bradshear, and Kathleen M. Sausar, Appellees.
    No. 05-04-00790-CV.
    Court of Appeals of Texas, Dallas.
    June 22, 2005.

      Christopher D. Bowers, Asst. City Atty., Arthur F. Selander, Quilling, Selander, Cummiskey & Lownds, P.C., Dallas, for Appellants.
    John W. Slates, Gardere Wynne Sewell, LLP, Dallas, for Appellees.
    Before Justices MORRIS, WHITTINGTON, and O’NEILL.
   OPINION

Opinion by

Justice O’NEILL.

This case involves proceedings in which the Wyly defendant-appellants sought a certificate to demolish a house in the historic Swiss Avenue district in Dallas. After an initial denial by the Landmark Commission, the Wylys appealed to the Dallas City Plan Commission (CPC), which granted permission to demolish. To prevent imminent demolition, Preservation Dallas obtained a temporary restraining order against the Wylys and also filed for a temporary injunction. Later, Preservation Dallas added the CPC as a defendant, seeking mandamus relief against it based on an alleged lack of required pre-hearing notice. Other plaintiffs joined in the latter action, including the Swiss Avenue Historic District Association (SAHDA). The trial court mandated that the CPC rehear the case after proper notice and temporarily enjoined the Wylys from destroying the structure. We hold that (1) Preservation Dallas and SAHDA have standing to pursue their mandamus action against the CPC, (2) we do not have appellate jurisdiction over the appeal of the mandamus order, and (3) the temporary injunction against the Wylys was in error because there was no evidentiary hearing.

The Facts

The Wylys own a house located at 6015 Bryan Parkway, which is situated within the Swiss Avenue Historic District, an historic overlay district within the city of Dallas. They applied for a certificate of demolition, which is required under the Dallas Development Code before such structures can be destroyed. The Landmark Commission denied the application. The Wylys appealed that decision to the CPC, which held a hearing on a Thursday evening. Reversing the Landmark Commission, the CPC granted the Wyly’s application. The following Saturday morning, a demolition crew arrived to tear down the house.

Preservation Dallas, a non-profit organization, obtained a temporary restraining order, which prevented demolition of the house. The next Monday, Preservation Dallas filed a petition for a temporary injunction against the Wylys, alleging numerous defects in the CPC hearing. Subsequently, Preservation Dallas added a mandamus action against the CPC, seeking an order requiring the CPC to rehear the Wyly’s application. They asserted that, contrary to the city code requirement, no notice was posted before the CPC hearing took place. Additional plaintiffs joined in the mandamus action, including SAHDA and individuals who reside on Bryan Parkway.

The CPC filed a plea to the jurisdiction, asserting that Preservation Dallas and SAHDA lacked standing to pursue the mandamus action. At the hearing set on the matter of the temporary injunction, the district court addressed the jurisdictional issue first. The CPC called an adverse ■witness (the executive director of Preservation Dallas) and the parties argued the jurisdiction issues. When asked by the trial judge, the parties indicated they wished to proceed with evidence on the temporary injunction matter. But before the first witness gave any testimony, the trial court halted the hearing. The judge noted that it would be inefficient to proceed with evidence on the temporary injunction before resolving jurisdiction issues, which he took under advisement.

Subsequently, without reconvening the hearing, the trial court (1) denied the jurisdictional challenges, concluding that plaintiffs have standing; (2) granted a temporary injunction enjoining the Wylys from destroying the house; and (3) granted mandamus relief, directing the CPC to rehear the Wyly’s application upon proper notice. The CPC appeals the denial of its challenge that Preservation Dallas and SAHDA lack standing to seek mandamus relief and appeals the trial court’s mandamus order directing it, after proper notice, to rehear the Wyly’s request for permission to demolish. The Wylys appeal the granting of the temporary injunction restraining them from destroying the structure.

I. Standing

The CPC asserts that Preservation Dallas and SAHDA do not have standing to pursue the mandamus action because they have no vested property right or a constitutional right in the property.

Legal Principles

Section 51.014(a)(8) of the civil practice and remedies code permits an interlocutory appeal of a district court’s grant or denial of a plea to the jurisdiction by a governmental unit such as CPC. Tex. Civ. PRAC. & Rem.Code Ann. § 51.014(a)(8) (Vernon Supp.2004-05). Because the question of standing is a legal question, we review de novo a trial court’s ruling on a plea to the jurisdiction. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998). Standing is a component of a court’s subject-matter jurisdiction. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993). The plaintiff has the burden of alleging facts that affirmatively demonstrate a court’s jurisdiction to hear a cause. Id. A plea to the jurisdiction challenges a trial court’s authority to hear a case by alleging that the factual allegations in the plaintiffs pleadings, when taken as true, fail to invoke the trial court’s jurisdiction. El Paso Cnty. Partners v. B & G/Sunrise Joint Venture, 24 S.W.3d 620, 623 (Tex.App.-Austin 2000, no pet.) (citing Bybee v. Fireman’s Fund Ins. Co., 160 Tex. 429, 331 S.W.2d 910, 917 (1960)).

We construe the pleadings in favor of the plaintiff and look to the pleader’s intent. Tex. Ass’n of Bus., 852 S.W.2d at 446. A court deciding a plea to the jurisdiction is not required to look solely to the pleadings but may consider evidence and must do so when necessary to resolve the jurisdictional issues raised. Bland Indep. School Dist. v. Blue, 34 S.W.3d 547, 555 (Tex.2000).

An association may sue on behalf of its members if it meets the three-prong test for “associational standing,” adopted in Tex. Ass’n of Bus., 852 S.W.2d at 447 (adopting test as articulated in Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977)). An organization has standing to pursue an action when (1) its members have standing to sue in their own right, (2) the interests the organization seeks to protect are germane to its purpose, and (3) neither the claim nor the relief requested requires that individual members participate in the lawsuit. Id.

To satisfy the first prong, the association must allege that some number of its members are suffering immediate or threatened injury as a result of the challenged action of the kind that would make a justiciable case if the members had brought suit in their own right. Texas Workers’ Comp. Comm’n v. Garcia, 862 S.W.2d 61, 71 (Tex.App.-San Antonio 1993), rev’d on other grounds, 893 S.W.2d 504, 518-19 (Tex.1995) (labor union had standing to challenge workers’ compensation law, where a majority of members were covered by that law). Generally, to establish standing, a plaintiff must establish that he has an individual interest in a conflict that is distinct from the interest of the general public, such that the defendant’s actions have caused the plaintiff particular injury. Hunt v. Bass, 664 S.W.2d 323, 324 (Tex.1984). The First Court of Appeals addressed the requirement of particularized harm in the context of a protected historical district in Galveston Historical Foundation v. Zoning Bd. of Adjustment of City of Galveston, 17 S.W.3d 414, 418 (Tex.App.-Houston [1st Dist.] 2000, pet. denied). Developers had received approval to erect stone monuments to mount business signs within an historic district. The Galveston Historical Foundation (GHF) appealed the decision as “aggrieved persons” under the applicable ordinance. The GHF, a non-profit organization, leased an historic mansion nearby. The court held that “persons who reside or operate a business in the restricted zone are persons who have ‘an interest peculiar to themselves and distinguishable from the public generally.’ ” Id. at 418 (citing Hunt v. Bass, 664 S.W.2d at 324). Thus, the GHF’s allegation that it operated a business within the overlay zone was sufficient to establish it as an aggrieved party with standing to appeal, as provided under the ordinance. Id.

Application

Concerning the first prong of the associational-standing test, the pleadings and any jurisdictional evidence must support a finding that Preservation Dallas and SAHDA have members with standing to sue in their own right. The affidavit of the executive director of Preservation Dallas states that “Preservation Dallas has numerous members who reside in the Swiss Avenue Historic District.” SAHDA’s name, the Swiss Avenue Historical District Association, implies its members reside or own homes in the district. In Galveston Historical Foundation such residents had standing to pursue the procedural right to appeal provided under the city ordinance. We conclude that in today’s case, residents of the historic district have standing to pursue the asserted procedural right to notice, as provided under the city code. Accordingly, both Preservation Dallas and SAHDA satisfy the first prong of the test.

The second prong requires that the interest the organization seeks to protect is germane to the organization’s purpose. The pleadings, as well as affidavit testimony, indicate that one purpose of Preservation Dallas is to “preserve and rehabilitate areas of historic and/or architectural significance.” SAHDA’s stated purpose is “the preservation of the historic and architectural identity and integrity of the Swiss Avenue Historic District and the properties comprising the same.” Both organizations meet the second prong of the test. Concerning the third prong, although individual members are named as plaintiffs, nothing suggests that their presence in the lawsuit is necessary for the court to award the mandamus relief requested. We con-elude that both Preservation Dallas and SAHDA have standing to seek mandamus relief, and thus the district court has subject-matter jurisdiction to determine the mandamus action.

II. Temporary Injunction

The trial court granted Preservation Dallas a temporary injunction preventing the Wylys from destroying the house. The Wylys assert this was error because, among other things, the trial court did not hold an evidentiary hearing to establish the requisite facts for granting a temporary injunction.

Section 51.014(a)(4) of the civil practice and remedies code permits an interlocutory appeal of a district court’s grant or denial of a temporary injunction. Tex. Civ. PRac. & Rem.Code Ann. § 51.014(a)(4) (Vernon Supp.2004-05). We will not reverse a trial court’s decision granting a temporary injunction absent a clear abuse of discretion. Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex.1993). If no evidence is presented, absent an agreement of the parties, a writ of injunction is improper. Millwrights Local Union No. 24.84 v. Rust Eng’g Co., 433 S.W.2d 683, 686 (Tex.1968). The party applying for the injunction has the burden of production, and evidence must be adduced under standard rules of evidence; testimony by affidavit does not suffice. Id. at 687. “The applicant has, and in equity and good conscience ought to have, the burden of offering some evidence which, under applicable rules of law, establishes a probable right of recovery.... If he cannot or does not discharge his burden he is not entitled to extraordinary relief.” Id.

Preservation Dallas urges it is undisputed that no notice was given preceding the CPC hearing and that the defendants argued only, as a legal matter, no notice was required under the statute. Preservation Dallas also argues that the trial court has discretion to limit the presentation of evidence.

The Millwrights opinion makes clear that the burden of proof is on Preservation Dallas, the applicant for the writ of injunction, and that granting this extraordinary relief absent evidence is improper. Preservation Dallas points us to no evidence in the record, and we find none, that would establish their right to a temporary injunction. See Walling, 863 S.W.2d at 57 (probable right of success at final trial; irreparable injury absent injunction). Accordingly, the trial court’s grant of a temporary injunction enjoining the Wylys from demolishing the structure was in error.

III. Writ of Mandamus

The CPC also appeals the trial court’s granting of mandamus relief ordering the CPC to rehear the appeal of the Landmark Commission’s decision. The CPC relies solely on section 51.014 of the civil practice and remedies code as the basis for our having interlocutory appellate jurisdiction over this issue. Tex. Civ. PRac. & Rem.Code Ann. § 51.014.

The statute CPC relies on sets forth particular interlocutory matters over which we have appellate jurisdiction. It does not grant us interlocutory appellate jurisdiction over a trial court’s mandamus orders. Accordingly, we do not have jurisdiction over the trial court’s order mandating the CPC to rehear the issue concerning a demolition certificate in this interlocutory appeal.

Concluding that Preservation Dallas and SAHDA have standing to pursue the mandamus action, we AFFIRM the trial court’s order insofar as it concludes that the trial court has jurisdiction over that action. We VACATE the trial court’s order enjoining the Wylys from demolishing the property. We take no action on the trial court’s order that the CPC rehear the appeal of the Landmark Commission’s decision.


author: McANULTY, Judge.

text:
    Leon B. PARKER, Appellant, v. HENRY A. PETTER SUPPLY CO.; Hannan Supply Company; and Mine Equipment & Mill Supply Co., Appellees.
    No. 2004-CA-000259-MR.
    Court of Appeals of Kentucky.
    April 1, 2005.
    As Modified on Grant of Modification June 3, 2005.

      Joseph D. Satterley, Paul J. Kelley, Kenneth Sales, Sales, Tillman, Wallbaum, Catlett & Satterley, Louisville, KY, for appellant.
    Stephen E. Smith, Jr., McMurry & Livingston, PLLC, Paducah, KY, for appellee Henry A. Petter Supply Company.
    Richard C. Roberts, Whitlow, Roberts, Houston & Straub, PLLC, Paducah, KY, for appellee Hannan Supply Company.
    Ridley M. Sandidge, Jr., Reed, Weit-kamp, Schell, & Vice, PLLC, Louisville, KY, for appellee Mine Equipment & Mill Supply Company.
    Before JOHNSON and McANULTY, Judges; HUDDLESTON, Senior Judge.

      . Senior Judge Joseph R. Huddleston sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.

   OPINION

McANULTY, Judge.

Leon B. Parker brought an action based on products liability in the Marshall Circuit Court against a number of companies he alleged supplied asbestos products to his employer, SKW Metals & Alloys (formerly known as Pittsburgh Metallurgical) (SKW). Parker alleged they were strictly liable for his injuries after he developed lung cancer, which he alleges was a result of exposure to asbestos. This appeal concerns three of those defendants. The Marshall Circuit Court granted motions for summary judgment in favor of defendants Henry A. Petter Supply Company (Petter Supply) and Hannan Supply Company (Hannan Supply). The court granted the motion of Mine Equipment & Mill Supply Company to dismiss it as a party as an improperly joined defendant. Parker appeals those orders. We have reviewed the record below and we vacate as to Petter Supply and Hannan Supply, and affirm as to Mine Equipment & Mill Supply-

Hannan Supply filed a motion for summary judgment which Petter Supply joined in and reiterated the arguments of, and so we consider their position together. The standard of review on appeal of a summary judgment is whether the trial court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law. CR 56.03. “The record must be viewed in a light most favorable to the party opposing the motion for summary judgment and all doubts are to be resolved in his favor.” Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky.1991). Summary judgment is only proper where the movant shows that the adverse party could not prevail under any circumstances. IcL, citing Paintsville Hospital Co. v. Rose, 683 S.W.2d 255 (Ky.1985). Thus, summary judgment should be granted only where it appears impossible for the nonmoving party to produce evidence at trial warranting judgment in his favor. Id. at 482.

Hannan Supply and Petter Supply asserted in their motion that they were wholesale distributors, not manufacturers, of asbestos products. They consequently argued for application of the “middleman statute” of the Kentucky Products Liability Act, KRS 411.340. In addition, Hannan Supply asserted that the time period in which Parker handled asbestos materials was before Hannan Supply was founded. Petter Supply additionally asserted that Parker could not establish that he was exposed to asbestos from a product sold by Petter Supply, nor establish that any products sold by Petter Supply were a substantial contributing factor in causing Parker’s injuries. The court below granted the motion for summary judgment without furnishing the basis therefore.

On appeal, Parker argues that the prerequisites of the middleman statute were not met, and Petter Supply and Han-nan Supply are subject to strict liability under the Kentucky Products Liability Act for selling a defective product. We recognize that if the middleman statute applies, the motions for summary judgment were properly granted. KRS 411.340, the middleman statute, states:

In any product liability action, if the manufacturer is identified and subject to the jurisdiction of the court, a wholesaler, distributor, or retailer who distributes or sells a product, upon his showing by a preponderance of the evidence that said product was sold by him in its original manufactured condition or package, or in the same condition such product was in when received by said wholesaler, distributor or retailer, shall not be liable to the plaintiff for damages arising solely from the distribution or sale of such product, unless such wholesaler, distributor or retailer, breached an express warranty or knew or should have known at the time of distribution or sale of such product that the product was in a defective condition, unreasonably dangerous to the user or consumer.

Parker argues that the statute is inapplicable in two respects — first, not all of the manufacturers of the products were identified or subject to jurisdiction of the court; and second, he provided evidence that Pet-ter Supply and Hannan Supply knew or should have known that the product was defective and unreasonably dangerous at the time of Parker’s exposure.

Parker worked at SKW beginning in 1955 and his exposure to asbestos products occurred in the early years of his employment there. Parker acknowledged in his deposition that he could not recall all of the manufacturers of asbestos products to which he may have been exposed. However, he asserted that his employer purchased asbestos cloth and asbestos furnace door hose from Hannan Supply, and identified Goodrich and possibly Goodyear as manufacturers of the hose and Johns-Manville as a manufacturer of the cloth. Hannan denied supplying these items.

He claimed Petter Supply supplied asbestos-containing cloth, tape, furnace door hose, blankets and gloves to his employer. Parker named Goodyear and Goodrich as manufacturers of furnace door hose, and Garloek as manufacturer of gaskets or packing material. Petter Supply admitted in interrogatories having sold gaskets and packing material made from asbestos but asserted it had no information after reasonable inquiry about other products sold to Parker’s employer. Petter Supply named Garloek and Raybestos-Manhattan as manufacturers of the gaskets it sold, and Southern Asbestos as a possible manufacturer of asbestos cloth.

Parker claims the manufacturers of the defective products were not identified as required by KRS 411.340 because there may have been other manufacturers of the products as yet unnamed. Parker asserts that the wholesale suppliers were responsible for identifying the manufacturers in order to avail themselves of the middleman statute.

However, we agree with the appel-lees in this case that since manufacturers of the defective products have been identified, the middleman statute was applicable. It is of no consequence that there are other possible suppliers who were not identified by the parties. It would defeat the middleman statute’s purpose — to protect those who merely sell the products— to hold that it cannot be used in the event of a simple claim that there exist other manufacturers. Moreover, we cannot agree with appellant’s claim that the burden of identification has shifted to the defendants. While Petter Supply admitted it supplied products, it does not have knowledge of Parker’s exposure to any products. This information is within Parker’s knowledge based on his work experience. There is no showing that Petter Supply or Hannan Supply tried to conceal any product records. Thus, Petter Supply’s and Hannan Supply’s recollection of what they sold at the time of the exposure suffices to bring them within the middleman statute.

Parker further alleges that the manufacturers who may have been identified but are bankrupt are not subject to the jurisdiction of the court under the requirements of the middleman statute. Johns-Manville is one such manufacturer which has filed for bankruptcy. That status does not affect the jurisdiction of the court. While the filing of a bankruptcy petition operates as a stay of claims against the bankrupt debtor, the courts retain jurisdiction. We believe Parker’s interpretation of the statute would supply terms that are not present in the statute. The legislature did not choose to require solvency of a manufacturer before sellers are relieved of liability. Moreover, Petter Supply points out that the Johns-Manville bankruptcy case actually established a mechanism for first-party and third-party claims to be asserted — which was used in this case to allow Petter Supply to join the Johns-Manville Personal Injury Trust Fund.

Parker next argues that the trial court erroneously determined under the middleman statute that there was no evidence Petter Supply and Hannan Supply knew or should have known the product was defective. Parker claims the dangers of asbestos were known in the scientific and medical community at the time he was exposed to asbestos, and this created a question of fact which precluded summary judgment. Whether this is a fact issue to be resolved by a jury depends on whether the plaintiff alleged the existence of any fact from which such knowledge could be inferred. Funk v. Wagner Machinery, Inc., 710 S.W.2d 860, 862 (Ky.App.1986). A litigant need not be required to try his case on a motion for summary judgment, but he has the burden of showing that a fact issue exists. Id.

Parker showed that the medical and scientific community was aware of defects as early as the time that Parker was exposed to asbestos products. Parker’s expert, Dr. Pohl, testified in his deposition that if asked about it at trial he would testify about when the medical and scientific community knew or should have known of the dangers of asbestos. He stated that he had testified in other cases that the medical community has known about asbestosis as of 1930, about lung cancer and asbestos exposure as of 1943, and the link between asbestos and mesothelioma sometime between 1953 and 1960. He stated that he would testify, if asked, about when manufacturers and distributors knew or should have known of the dangers of asbestos in terms of “state of the art,” or scientific knowledge at different points in time, which would be a reflection of what they would, could or should have known.

As to when manufacturers and distributors acquired knowledge, Dr. Pohl testified that scientific knowledge was available to anyone through medical libraries or publications as well as through lay publications in the 1940s and 1950s, and he could testify to-that. He stated that he was aware of some manufacturers and distributors and their knowledge about asbestos, although he did not have specific awareness of Pet-ter Supply’s knowledge. He stated that instead he would testify as to what was known in the medical literature as well as what was being published in the lay literature that was available to anybody, even suppliers.

The standard is whether Petter Supply or Hannan Supply knew or -should have known. We conclude that the grant of summary judgment was premature. Parker’s evidence presented at least an issue of fact that Parker should have been allowed to develop in continued discovery. As stated above, all doubts are to be resolved in favor of the party opposing the motion for summary judgment. Steelvest, 807 S.W.2d at 480. Thus, we vacate the trial court’s grant of summary judgment.

As to Mine Equipment & Mill Supply, Parker argues that it should not have been dismissed as a defendant because it is the legal successor to Mine and Mill Supply which supplied asbestos products to Parker’s employer. The trial court found in its order dismissing that Mine Equipment & Mill Supply was incorporated four years after Parker retired from his job at SKW. It found that Mine Equipment & Mill Supply had no liability in that it had only purchased assets from IRECO, which had purchased same or similar from Mine and Mill Supply, and the ownership, management and business differed substantially from that of IRECO. Thus, the court concluded Mine Equipment & Mill Supply did not succeed to Mine and Mill Supply’s liability and that Parker could have pursued IRECO as a defendant.

The general rule regarding liability of a corporate successor in Kentucky is that a purchasing corporation does not assume liability for the debts and liabilities of the selling corporation. Pearson ex rel. Trent v. National Feeding Systems, Inc., 90 S.W.3d 46 (Ky.2002); American Railway Express Co. v. Commonwealth, 190 Ky. 636, 228 S.W. 433 (1920). When the sale of a corporation is a bona fide transaction, and the selling corporation receives money to pay its debts or property that may be subjected to the payment of its debts and liabilities, the purchasing corporation will not, in the absence of a contract obligation or fraud, be held responsible for the debts or liabilities of the selling corporation. Pearson at 49.

There are four exceptions to the general rule:

(1) where the purchaser expressly or impliedly agrees to assume such debts or other liabilities;
(2) where the transaction amounts to a consolidation or merger of the seller and purchaser;
(3) where the purchasing corporation is merely a continuation of the selling corporation; or
(4) where the transaction is entered into fraudulently in order to escape liability for such debts.

Id. at 49, citing American Railway, 228 S.W. at 437-41.

While IRECO assumed the debts of its predecessor, Mine Equipment & Mill Supply did not agree to accept debts and liabilities other than those contained on a schedule titled Trial Balance. Parker alleges, nevertheless, that Mine Equipment & Mill Supply is merely a continuation of its predecessor corporations and is subject to successor liability. He argues that this continuation is shown by the assets purchased by the corporation and the intention to continue the same business as the selling corporation.

In Kentucky, a determination of the continuity of a corporation after a sale depends on examining the sale agreement to determine continuity of shareholders or management. Pearson, 90 S.W.3d at 51. Even where an adequate consideration was paid for the assets, a successor company which continues with the same business, by the same officers and personnel, in the same location with only a slight change in name will be considered liable for the debts and liabilities of the selling company. Payne-Baber Coal Company of Kentucky v. Butler, 276 Ky. 211, 123 S.W.2d 273, 275 (1938). The trial court compared the shareholders and management of the purchasing company, Mine Equipment & Mill Supply, with its predecessors, which was the correct analysis under Kentucky law.

The facts of the transactions at issue show: In 1987, a company named Mine and Mill Supply Company, Inc., sold the bulk of its assets to IRECO, Inc. IRECO purchased the assets, including certain real estate, and in addition purchased “all debts, liabilities, obligations, contracts, and commitments” from Mine and Mill Supply. Approximately a month later, in May 1988, IRECO sold approximately the same assets to Mine Equipment & Mill Supply Company. Mine Equipment & Mill Supply was incorporated in Delaware on May 20, 1998. Mine Equipment & Mill Supply was a wholly owned subsidiary of Midland Powder which was owned 50% by David L. Childs and 50% by Dyno Nobel.

Mr. Childs became president of Mine Equipment & Mill Supply at the time it acquired from IRECO most of the assets previously owned by Mine and Mill Supply. He had not been a shareholder or officer or director of Mine and Mill Supply or of IRECO. He testified by deposition that Mine Equipment & Mill Supply proceeded with completely different management than Mine and Mill Supply had. The owner of Mine and Mill Supply retired. Furthermore, IRECO and Mine Equipment & Mill Supply continue as separate businesses today. Mr. Childs also testified to the ways in which the business conducted by Mine Equipment & Mill Supply differed from its predecessor, Mine and Mill Supply.

Therefore, we cannot agree with Parker that under the factors which determine continuation, Mine Equipment & Mill Supply merely continues the businesses that went before it. We agree that appellant has not presented any facts which convince us that Mine Equipment & Mill Supply is a continuation of either Mine and Mill Supply or IRE CO. Thus, we affirm the trial court’s conclusion that Mine Equipment & Mill Supply could be dismissed because it was incorporated after Parker’s employment and had no liability for its selling corporation’s debts.

For the foregoing reasons, we affirm the orders of the Marshall Circuit Court as it relates to Mine Equipment & Mill Supply and vacate the summary judgment granted in favor of Petter Supply and Hannan Supply and remand for further proceedings.

ALL CONCUR.


text:
    T.D., A Child, Appellant, v. COMMONWEALTH of Kentucky, Appellee. and D.B., A Child, Appellant, v. Commonwealth of Kentucky, Appellee.
    Nos. 2003-CA-002087-DG, 2003-CA-002088-DG.
    Court of Appeals of Kentucky.
    May 27, 2005.

      Suzanne A. Hopf, Frankfort, KY, for appellant.
    Craig Cox, Campbellsville, ICY, for ap-pellees.
    Before GUIDUGLI, McANULTY, and MINTON, Judges.
   OPINION

McANULTY, Judge.

We granted discretionary review in these cases to consider the adjudications of the juveniles T.D. and D.B. as habitual truants in the Taylor District Court. The cases were tried separately. Both cases were initiated by the filing of a complaint by the Campbellsville Public School Director of Pupil Personnel, Mi'. Paul Montgomery, alleging that the children had missed school on particular dates and were habitual truants.

In the case of T.D., the complaint alleged that he had missed thirteen days of school. At T.D.’s hearing, Mr. Montgomery stated in response to questioning that he could not remember whether he had visited T.D.’s home. He had no documentation of home visits. T.D.’s parents stated that there had never been any home visit by Mr. Montgomery. The court adjudged T.D. to be a habitual truant. It placed him on probation of the court until age 18 with the condition that he would serve one day in jail for every unexcused absence or tardy. T.D.’s case was affirmed on appeal, and he asked for discretionary review of this decision.

A second complaint alleged that D.B. had missed seven days of school. At D.B.’s hearing, Mr. Montgomery also stated that he had not documented home visits for D.B. However, he testified that he had been to D.B.’s home “many times,” and the mother had never been there at the time. D.B.’s mother acknowledged talking to Mr. Montgomery on the phone, and recalled having received a card at her door stating that Mr. Montgomery had been there to meet with her. D.B. was also adjudged truant and placed on probation. However, the Taylor Circuit Court reversed that finding on appeal on the ground that cumulative error in the hearing mandated reversal. D.B. asked for discretionary review for the purpose of obtaining guidance from this Court on the proper evidence and procedure for the district court to observe on remand.

T.D.’s and D.B.’s main contention on appeal is that the court designated worker should not have received the complaints because the Director of Pupil Personnel had not fulfilled the statutory prerequisites for bringing them. T.D. and D.B. cite KRS 630.060(2) for the particular duties that the Director must fulfill. That provision provides:

No complaint shall be received by the court designated worker alleging habitual truancy unless an adequate assessment of the child has been performed pursuant to KRS 159.140(l)(c), (d), and (f), unless it can be shown that the assessment could not be performed due to the child’s failure to participate.

The sections of KRS 159.140 referred to in that statute state as follows:

(1) The director of pupil personnel shall:
(c) Acquaint the school with the home conditions of the student, and the home with the work and advantages of the school;
(d) Ascertain the causes of irregular attendance and truancy, and seek the elimination of these causes;
(f) Visit the homes of students who are absent from school or who are reported to be in need of books, clothing, or parental care;

T.D. and D.B. call attention to the Director’s failure to ascertain causes of truancy, become acquainted with home conditions, and make home visits in their cases.

The Commonwealth responds that the statutory language above does not mandate that each duty has to be performed and documented in each and every case before the Director of Pupil Personnel can bring it before the courts. The Commonwealth argues that the duties of the Director of Pupil Personnel in KRS 159.140 are couched in terms of generalized goals. While we agree that the Director’s duties in KRS 159.140 are stated in broad language, the legislature’s later enactment of KRS 630.060 shows its intent to require the Director to perform those goals in a particular case before bringing a child before the court as a habitual truant. Furthermore, we believe because the language of the statute requires compliance before a, complaint may be received, the legislature intended to make these requirements a matter of subject matter jurisdiction.

The Commonwealth further argues that the statute cannot require compliance with KRS 630.060 in every case due to the difficulty of the Director of Pupil Personnel to perform these duties in each and every case that goes to court. However, we only conclude from the statutes that it was the intention of the legislature to make it more rigorous to bring a juvenile into the court system. Of course, the Director of Pupil Personnel may not be able to complete home visits or ascertain the causes of truancy in some cases despite best efforts to do so. In such a case, it would become the duty of the court designated worker to review the complaint to determine whether “an adequate assessment,” in the language of the statute, has been- performed. Additionally, the legislature has provided that where that difficulty is due to the child’s failure to participate, the assessment may be abandoned once that is shown.

In T.D.’s case, we conclude from the evidence, including admissions from Mr. Montgomery, that the requirements of KRS 630.060(2) were not met prior to submission of the complaint to the court designated worker. Thus, the complaint should have been dismissed for lack of jurisdiction due to no home assessment having been conducted. D.B.’s case has already been remanded for a hearing pursuant to the direction of the Taylor Circuit Court at which the court should review whether the statutory requirements were met.

Next, T.D. and D.B. make a number of assertions of due process violations. We address these to the extent they may arise again in the district court adjudications. First, T.D. complains because he was not permitted to make a closing statement in the hearing. The district court informed T.D.’s counsel that there was no jury and it was not the court’s practice to allow a closing argument in truancy cases or any other juvenile proceeding. We agree this was error.

Proceedings in juvenile courts are not criminal in nature. Locke v. Commonwealth, 503 S.W.2d 729, 731 (Ky.1973). Moreover, a juvenile who has been a habitual truant from school is considered a status offender under Chapter 630, and such behavior shall not be considered criminal or delinquent pursuant to KRS 600.020(58). A “Status offense action” is any action brought in the interest of a child who is accused of committing acts, which if committed by an adult, would not be a crime. KRS 600.020(58).

Despite the non-criminal nature of juvenile proceedings, however, the United States Supreme Court has held that:

A proceeding where the issue is whether the child will be found to be “delinquent” and subjected to the loss of his liberty for years is comparable in seriousness to a felony prosecution. The juvenile needs the assistance of counsel to cope with problems of law, to make skilled inquiry into the facts, to insist upon regularity of the proceedings, and to ascertain whether he has a defense and to prepare and submit it. The child “requires the guiding hand of counsel at every step in the proceedings against him.”

In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), citing Powell v. State of Alabama, 287 U.S. 45, 69, 53 S.Ct. 55, 64, 77 L.Ed. 158 (1932). The Gault case reflects that where the fault of the child is at issue and penalties, including loss of liberty, may attach, criminal protections provided by the constitution apply. Id., 387 U.S. at 49, 56-57, 18 L.Ed.2d at 558, 562.

A proceeding against a child for the status offense of habitual truancy under Chapter 630 relates to the fault of the child and can result in severe consequences to that child. The consequences are probation and detention for failure to meet the attendance terms. As a result, we believe counsel for the child must be permitted to present a closing argument as part of the due process requirements in these cases. Since no Kentucky cases dealt with this issue, we also looked at cases we found from other states examining the issue of the right to make a closing statement in juvenile cases. They hold that due process and the right to effective assistance of counsel require that a juvenile be permitted to make a summation of the child’s position. See E.V.R. v. State, 342 So.2d 93 (Fla.App.1977); In re William F., 11 Cal.3d 249, 113 Cal.Rptr. 170, 520 P.2d 986 (Cal.1974); Shawn M. v. State, 105 Nev. 346, 775 P.2d 700, 701 (1989).

Next, D.B. complains that she was not given adequate notice of all the absences which would be offered as proof of habitual truancy at the hearing. She objects that in addition to a number of absences alleged in the complaint, the Director of Pupil Personnel at the hearing added more dates of absences or tardies allegedly incurred since the time of the complaint.

We comment only that due process requires that notice be given sufficiently in advance of scheduled court proceedings that reasonable opportunity to prepare is afforded. In re Gault, 387 U.S. at 33, 87 S.Ct. 1428, 18 L.Ed.2d at 549. In Gault, the Court observed that due process required that the child and its parents be notified, in writing, of the specific charge or factual allegations to be considered at the hearing and that such written notice be given at the earliest practicable time, and in any event sufficiently in advance of the hearing to permit preparation. Id. Under the rules of evidence in Kentucky, the complaint may be amended when additional information comes to light after the initial complaint to provide more thorough notice.

For the foregoing reasons, we vacate the order adjudging T.D. a habitual truant. D.B.’s case is remanded for another hearing pursuant to the order of the Taylor Circuit Court. We remand these cases for further proceedings consistent with this opinion.

ALL CONCUR.


text:
    CLARENDON NATIONAL INSURANCE COMPANY, Appellant, v. James VETOR; John T. Lunsford; and Kentucky Farm Bureau Mutual Insurance Company, Appellees.
    No. 2004-CA-000043-MR.
    Court of Appeals of Kentucky.
    May 27, 2005.

      Edwin H. Clark, Clark Law Office, Lexington, KY, for Appellant.
    Roy G. Collins, Morgan, Madden, Brash-ear & Collins, PLLC, Manchester, KY, for Appellee James Vetor.
    Deborah R. Lewis, Engle & Lewis, LLP, Hazard, KY, for Appellee Kentucky Farm Bureau Mutual Insurance Company.
    David Howard, London, KY, for appel-lee John T. Lunsford.
    Before BUCKINGHAM, McANULTY, and VANMETER, Judges.
   OPINION

McANULTY, Judge.

On Monday, August 19, 2002, James Vetor (Vetor) sustained injuries when the car in which he was a passenger was involved in a motor vehicle accident with John T. Lunsford’s vehicle. At the time, Vetor was an employee of Windshields & More, Inc., and the accident occurred during the workday. As a result of his injuries, Vetor was unable to return to work for a few months. Clarendon National Insurance Company (Clarendon), the workers’ compensation insurer for Windshields & More, Inc., paid Vetor benefits totaling $10,458.84. Less than two months after the accident, Vetor filed a civil lawsuit against John T. Lunsford (Lunsford). Under KRS 342.700, Clarendon intervened in Vetor’s civil action to recover the workers’ compensation benefits it paid to Vetor to prevent him from obtaining a double recovery. The trial court allowed Clarendon to intervene but eventually dismissed its claim on the basis that it lacked subject matter jurisdiction. In this case, we are asked to decide if a workers’ compensation claimant may recover from both the workers’ compensation insurer and the tortfea-sor for those elements of the recovery that duplicate the elements covered by workers’ compensation when it was ultimately decided that the injury for which the claimant sought benefits was not work-related. Because Kentucky law prohibits such a double recovery and the circuit courts have jurisdiction to hear subrogation actions of this kind, we reverse and remand. However, because the claimant has yet to recover under his civil action against the tortfeasor and the insurer has intervened in the underlying action, we affirm the trial court’s dismissal of Clarendon’s indemnification claim against Vetor.

The Workers’ Compensation Proceedings

Clarendon voluntarily paid temporary total disability benefits and medical benefits immediately following the accident, but it ceased making such payments after four months. After Clarendon stopped making payments, Vetor filed a workers’ compensation claim.

An administrative law judge (ALJ) conducted a benefit review conference on July 23, 2003. At issue in the conference was whether Vetor was entitled to temporary total disability from December 16, 2002, to January 23, 2003 (the time between when Clarendon stopped paying benefits and the day Vetor returned to work at Windshields & More) and whether Vetor’s injury was work-related. At the conclusion of the hearing, the ALJ found that Vetor was running a personal errand at the time of the accident. The ALJ determined that the injury was not work-related and dismissed Vetor’s claim. And the ALJ noted that all other issues were rendered moot by this finding. Neither party appealed the ALJ’s decision.

Vetor’s Civil Lawsuit Against Lunsford

Less than two months after Vetor was injured in the accident, he filed a lawsuit against Lunsford seeking damages including his lost wages and past medical expenses. Later, the trial court permitted Vetor to amend his complaint to add Kentucky Farm Bureau Insurance Company (Kentucky Farm Bureau), his underin-sured motorist provider, as a defendant.

Four months after Vetor filed his lawsuit, Clarendon made a motion to intervene in the action under KRS 342.700. The trial court granted Clarendon’s motion to intervene. After being allowed to intervene, Clarendon filed its complaint asserting its right of subrogation and demanding judgment against Lunsford — and Kentucky Farm Bureau when they were named as defendants — for the amount of workers’ compensation payments that it made to Vetor. Later, the trial court permitted Clarendon to amend its complaint to seek indemnification from Vetor under City of Louisville v. Burch, 611 S.W.2d 532 (Ky.App.1981) (allowing an employer’s indemnity action to proceed against its employee to recover workers’ compensation payments made to the employee after the employee successfully brought a personal injury lawsuit against the third-party tort-feasor). Vetor, Lunsford, and Kentucky Farm Bureau opposed Clarendon’s claims.

During the course of the proceedings, Clarendon filed a motion for summary judgment. And Kentucky Farm Bureau, Lunsford, and Vetor filed motions to dismiss Clarendon’s amended intervening complaint.

In response to the various motions before the trial court, it entered three separate orders on December 16, 2008. In one order, the trial court granted Kentucky Farm Bureau’s motion to dismiss Clarendon’s amended intervening complaint against it on the basis that it did not have subject matter jurisdiction over the causes of action alleged. In a second order, the trial court granted Lunsford’s motion to dismiss Clarendon’s amended intervening complaint against him. In this order, however, the trial court gave no basis for its dismissal. In a third order, the trial court denied Clarendon’s motion for summary judgment against Lunsford on the basis that it appeared to the court that KRS 342.700 did not support Clarendon’s claim against Lunsford and in light of the court’s ruling dismissing Clarendon’s claim against Lunsford. In addition to the three orders entered December 16, 2003, the trial court entered a fourth order on December 22, 2003, dismissing Clarendon’s complaint against Vetor on the basis that the trial court did not have subject matter jurisdiction. Clarendon appeals from these four orders.

Consistent with its arguments in the lower court, on appeal, Clarendon relies on KRS 342.700 and Burch for its argument that a workers’ compensation claimant may not recover from both a workers’ compensation insurer and a third-party tortfeasor for the same elements of the same injury. Allowing a claimant to do so violates the provision against double recovery of KRS 342.700(1). Clarendon further argues that circuit courts have subject matter jurisdiction to hear indemnification and subrogation actions under KRS 342.700. Finally, Clarendon contends that it is entitled to summary judgment against Vetor.

In response to Clarendon’s arguments on appeal, Vetor contends that the trial court properly determined that it did not have subject matter jurisdiction over Clarendon’s claims because the workers’ compensation board is the only forum for determination of benefits due under the Workers’ Compensation Act. In the alternative, Vetor argues that this Court should summarily dismiss Clarendon’s claim for its failure to state a claim. Contrary to Clarendon’s assertion, under these facts KRS 342.700 does not provide an insurer with an indemnity action against the employee.

Lunsford argues that KRS 342.700 does not allow a workers’ compensation carrier that has voluntarily paid benefits to its insured who was not entitled to those benefits to recover those benefits from a third party in a personal injury lawsuit filed by the insured against the third party. And Lunsford argues that Clarendon’s appeal from the trial court’s denial of summary judgment was not from a final and appeal-able order since it did not constitute a final determination of the parties. Finally, Lunsford asserts that the trial court was correct in denying Clarendon’s motion for summary judgment because genuine issues of material fact remained that precluded summary judgment.

Kentucky Farm Bureau joins in Vetor’s argument that the exclusive forum for workers’ compensation benefits is the workers’ compensation board. And Kentucky Farm Bureau argues that the trial court was correct in granting its motion to dismiss because the injury was not work-related. Thus, Clarendon was not obligated to make any payments on behalf of

Yetor. Finally, Kentucky Farm Bureau joins in Lunsford’s argument that the trial court’s order denying summary judgment was not final and appealable. In the alternative, Kentucky Farm Bureau asserts that Clarendon is not entitled to summary judgment.

We begin our analysis with the main issue on appeal: Did the Clay Circuit Court have jurisdiction to hear Clarendon’s subrogation and indemnity claims under KRS 342.700? The answer to this question involves a couple of sub-issues. And we will first address the subrogation claim. Considering the facts of this case and the language and purpose of KRS 342.700(1), we conclude that the circuit court did have jurisdiction to hear this claim. Thus, we conclude the dismissal of the subrogation claim was improper.

KRS 342.700(1) is as follows:

Whenever an injury for which compensation is payable under this chapter has been sustained under circumstances creating in some other person than the employer a legal liability to pay damages, the injured employee may either claim compensation or proceed at law by civil action against the other person to recover damages, or proceed both against the employer for compensation and the other person to recover damages, but he shall not collect from both. If the injured employee elects to proceed at law by civil action against the other person to recover damages, he shall give due' and timely notice to the employer and the special fund of the filing of the action. If compensation is awarded under this chapter, the employer, his insurance carrier, the special fund, and the uninsured employer’s fund, or any of them, having paid the compensation or having become liable therefor, may recover in his or its own name or that of the injured employee from the other person in whom legal liability for damages exists, not to exceed the indemnity paid and payable to -the injured employee, less the-employee’s legal fees and expense. The notice of civil action shall conform in all respects to the requirements of KRS 411.188(2).

Under KRS 342.700, Clarendon is subrogated to the payments the injured employee has received from the alleged tortfeasor on those elements of the recovery that duplicate the elements covered by workers’ compensation. Mastin v. Liberal Markets, 674 S.W.2d 7, 11 (Ky.1984); Old Republic Ins. Co. v. Ashley, 722 S.W.2d 55, 59 (Ky.App.1986). Once an insurance carrier — like Clarendon — receives notice of the employee’s lawsuit, it may assert its claim for subrogation by intervening in the lawsuit. See Hillman v. American Mut. Liability Ins. Co., 631 S.W.2d 848 (Ky. 1982).

The policy behind KRS 342.700 (formerly KRS 342.055) is that an injured employee should not recover from both the workers’ compensation carrier and a third-party tortfeasor. See Old Republic, 722 S.W.2d at 59. Allowing a workers’ compensation carrier to intervene in an action filed by an employee injured through the negligence of a third person is fair because:

the employer who was without fault comes out even, the third party who caused the injury pays exactly the damages it would normally pay, and the employee usually get [sic] a larger sum for his or her injury than he or she would by proceeduing [sic] under the Workmen’s Compensation Act alone.

Aetna Cas. & Sur. Co. v. Snyder, 291 S.W.2d 14, 16 (Ky.1956) (overruled in part on other grounds in Charles Seligman Distributing Co. v. Brown, 360 S.W.2d 509, 511 (Ky.1962)).

In opposing jurisdiction, Lunsford relies on a phrase in the first sentence of KRS 342.700(1), which provides “[w]henever an injury for which compensation is payable under this chapter.” He argues that the ALJ determined that compensation was not payable under workers’ compensation because Vetor’s injury was not work-related. So Clarendon cannot use KRS 342.700 to maintain a subrogation claim against Lunsford. We disagree.

Reading KRS 342.700 as a whole and considering its purpose, it is our opinion that a workers’ compensation insurer that voluntarily paid benefits based on an employee’s representation — albeit misrepresentation — that his injuries were work-related should not be precluded from asserting its subrogation right in a subsequent lawsuit. There is no dispute that those benefits paid by Clarendon to Vetor were workers’ compensation benefits. As such, Clarendon is entitled to recoup those benefits if Vetor recovers in his lawsuit against Lunsford.

We find further support for the above conclusion in the general principle behind common law subrogation:

Subrogation is purely an equitable doctrine .... It may or may not arise from contract and the right to the relief it affords depends on the facts and circumstances in each particular case. The doctrine is one of benevolence to prevent unjust enrichment and it attempts to do complete justice between the parties. It is no fixed or inflexible rule and its object is to prevent injustice. It does not ordinarily apply to volunteers, but it may be invoked in favor of one who voluntarily pays a debt of another where the payor has some interest to protect.

Evans’ Adm’r v. Evans, 304 Ky. 28, 199 S.W.2d 734, 737 (1947) (internal citations omitted).

In this case, Clarendon was not a volunteer when it paid Vetor temporary total disability benefits and medical benefits, but was complying with its duties under Chapter 342 to provide income and medical benefits for what it believed at the time was a work-related injury. As to the dismissal of Clarendon’s subrogation claims against Lunsford and Kentucky Farm Bureau, we reverse and remand.

In reversing and remanding the judgment as to the subrogation claim, we acknowledge the case cited by Vetor and Kentucky Farm Bureau — Com., Dept, of Trans., Bureau of Highways v. Combs, 587 S.W.2d 261 (Ky.App.1979) — but do not rely on this case because it has nothing to do with subrogation actions brought under KRS 342.700. We do believe, however, that this case is relevant as to the indemnification action brought against Vetor as we will discuss below.

We move to the propriety of the trial court’s dismissal of the indemnification claim under KRS 342.700 against Vetor. In bringing this claim, Clarendon relied on Burch, 611 S.W.2d 532. In that case, an employer that had paid workers’ compensation benefits was permitted to bring an indemnification action against its employee, Burch, to recover those payments after Burch recovered in civil lawsuits against the third-party tortfeasor and Burch’s insurance carrier. In allowing the employer to proceed against its employee, the Burch court held that KRS 342.700 impliedly gave a right of recovery based on a claim for “money had and received” by the employee for use of the employer’s workers’ compensation fund. Burch at 534 (relying on Aetna Cas. & Sur. Co., 291 S.W.2d at 16).

On this claim, we believe that Burch and Aetna Cas. & Sur. Co. are distinguishable because in those cases the employee had recovered from the third-party tortfeasor, and the workers’ compensation carrier had not intervened in the underlying action. That is not the case here. Vetor may or may not be successful in his claim against Lunsford. But if he is successful, Clarendon has asserted its right of subrogation on all elements of the recovery for which Vetor has received workers’ compensation. On remand, Clarendon will recover under that right.

Returning to the language of KRS 342.700, we do not believe that it evinces an intent to allow an indemnity action against the employee who received workers’ compensation benefits but may or may not recover from a third party in a civil lawsuit. KRS 342.700 provides the workers’ compensation carrier with subrogation rights, which subrogation claim depends entirely on the plaintiffs claims against the defendants. See Stewart v. General Motors Corp., 222 F.Supp.2d 845, 847 fn. 1 (W.D.Ky.2002). As such, the indemnification claim against Vetor was improper. Clarendon’s remedy — -if it still has one given the route it has chosen to take — should Vetor not recover in his civil lawsuit is in the exclusive jurisdiction of the workers’ compensation board. See KRS 342.335; KRS 342.310; Combs, 587 S.W.2d at 261 (proper forum for proceedings against employee for benefits improperly claimed is the workers’ compensation board). As to the dismissal of the indemnification claim against Vetor, we affirm.

Given the trial court’s dismissal of all of Clarendon’s claims, the trial court’s order denying Clarendon’s motion for summary judgment was superfluous. We will not consider the merits of Clarendon’s motion for summary judgment.

For the foregoing reasons, the judgment of the Clay Circuit Court is affirmed in part and reversed and remanded in part for proceedings consistent with this opinion.

ALL CONCUR.


author: COMBS, Chief Judge.

text:
    William WEBB, Appellant, v. CARTER COUNTY FISCAL COURT and Alice Joy Binion, County Judge Executive, Appellees.
    No. 2004-CA-000486-MR.
    Court of Appeals of Kentucky.
    May 27, 2005.

      W. Jeffrey Scott, Grayson, KY, for appellant.
    Michael B. Fox, Grayson, KY, for appel-lees.
    Before COMBS, Chief Judge; MINTON, Judge; MILLER, Senior Judge.

      . Senior Judge John D. Miller sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.

   OPINION

COMBS, Chief Judge.

William Webb appeals from a judgment of the Carter Circuit Court that found a conflict of interest in his elected position as county magistrate and his simultaneous employment with the county road department. It determined the conflict of interest to be of sufficient magnitude and character to prevent his continued service as a county employee. We affirm.

Webb was employed by Carter County from April 15, 1972, until January 1999. During this period of time, he worked as a heavy equipment operator, a truck driver, and an assistant foreman of the county road department. In November 1998, he was elected county magistrate and took office in January 1999.

On January 4, 1999, the fiscal court held its first meeting with its newly elected members. At this meeting, the Carter County Judge/Executive, Alice Joy Binion, presented a list of nominees to be considered for county personnel positions. Webb was not nominated for continued employment with the county road department. The fiscal court approved Binion’s decision not to renew Webb’s employment.

On March 2,1999, Webb filed this action against Binion and the fiscal court. He contended that he had been deprived of due process; that he had been denied his freedom of expression; and that his termination from county employment was otherwise illegal. Webb sought reinstatement as a county employee, backpay, and attorney’s fees. The Carter Circuit Court ruled in favor of Binion and the fiscal court. Judgment accordingly was entered on February 4, 2004. This appeal followed.

Webb argues that the trial court erred by concluding that his duties as assistant road foreman are incompatible with his duties as a magistrate. As Webb correctly notes, there are no statutory or constitutional provisions specifically prohibiting his concurrent employment as assistant county road foreman and county office-holder. However, the holding of more than one public office at a time has consistently been disfavored and suspect as a matter of public policy as expressed in the common law doctrine of incompatibility. Knuckles v. Bd. of Ed. of Bell County, 272 Ky. 431, 114 S.W.2d 511 (1938).

Section 165 of the Constitution of Kentucky recognizes the inherent conflict of holding two offices or forms of public sector employment at the same time. It provides as follows:

No person shall, at the same time, be a State officer or a deputy officer or member of the General Assembly, and an officer of any county, city, town, or other municipality, or an employee thereof; and no person shall, at the same time, fill two municipal offices, either in the same or different municipalities, except as may be otherwise provided in this Constitution; but a Notary Public, or an officer of the militia, shall not be ineligible to hold any other office mentioned in this section.

A long series of annotations follows examining numerous possible conflicts — accepting some but rejecting numerous others. The critical test is a practical consideration of the possibility of a conflict of interest in the performance of the two functions to be applied on a case-by-case basis.

Multiple public offices are traditionally considered incompatible with one another under common-law principles where the duties of the positions appear inherently inconsistent or repugnant or when the holding of the two positions by the same person may be detrimental to the public interest.

Functional incompatibility depends on the character and relation of the offices and not on the matter of physical inability to discharge the duties of both of them. The question is whether one office is subordinated to the other, or whether the functions of the two are inherently inconsistent or repugnant, or whether the occupancy of both offices is detrimental to the public interest.

LaGrange City Council v. Hall Brothers Co. of Oldham County, Inc., 3 S.W.3d 765, 769-770 (Ky.App.1999), citing Polley v. Fortenberry, 268 Ky. 369, 106 S.W.2d 143 (1937); Barkley v. Stockdell, 252 Ky. 1, 66 S.W.2d 43 (1933).

The doctrine of incompatibility bars an individual from holding both public office and public employment where one position is subordinate to the other or is subject to the audit or review of the other.

Two (2) offices or positions are incompatible whenever one has the power of appointment to or removal from the other and whenever there are any potential conflicts of interest between the two (2), such as salary negotiations, supervision and control of duties, and obligations to the public to exercise independent judgment.

LaGrange City Council, supra. See also 63C Am.Jur.2d Public Officers and Employees § 63 (1997). The policy behind the doctrine recognizes that it is the duty of a public officer or servant to discharge his or her duties uninfluenced by the duties and obligations of another office or position.

In the case before us, the issue is whether Webb’s renewed employment with the county road department is inherently incompatible with his position as magistrate. As a member of the fiscal court, Webb is authorized and called upon to consider matters involving salary, tenure, and promotion of county employees. KRS 67.710. Under the reasoning of LaGrange City Council, supra, this close interrelationship between the positions clearly renders Magistrate Webb’s concurrent employment with the county road department incompatible with his elected office. In addition, the Carter County Fiscal Court is directly responsible for the implementation of the county road program. It has the authority to open, to establish, or to alter the location of any public roads as well as to appropriate county funds for roadwork. KRS 178.115. The Carter County Fiscal Court has authority over the county road supervisor and is responsible for approving his proposed policies. If a magistrate were to be employed as assistant county road foreman, he would be subordinate to the county road supervisor while having the capacity to exert control over his supervisor in his role as a member of the fiscal court. Magistrate Webb’s concurrent public employment and occupancy of this public office are, therefore, functionally incompatible.

Magistrate Webb has abandoned any argument that his right to procedural due process was violated. However, he argues that the application of the incompatibility doctrine has resulted in an unconstitutional infringement of his First Amendment rights of free speech and free association. Those rights — while sacrosanct — are nonetheless subject to reasonable restriction. See Associated Industries of Kentucky v. Commonwealth, 912 S.W.2d 947 (1995). As applied in this case, the incompatibility doctrine did not unduly burden free speech or free association. Webb’s rights to take an active role in a political campaign or to make public statements concerning political issues were not restrained. Webb was free to have his name placed on the ballot, to campaign, and to be elected to office. It is unfortunate that he was then forced to make an unpleasant choice between holding office and keeping his job. However, the facts of this case dictate the propriety of applying the doctrine of incompatibility to protect the public interests that are in potential conflict with one another. Any incidental restriction on personal rights was justified.

Accordingly, we affirm the judgment of the Carter Circuit Court.

ALL CONCUR.

      . The fiscal court’s executive powers include employing personnel to perform public functions such as those relating to county roads, police, and fire protection. Kentucky Revised Statutes (KRS) 67.083(3). The authority of a county judge/executive "to appoint, supervise, suspend, and remove county personnel” is subject to fiscal court approval. KRS 67.710(7).


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

text:
    Jonathan Roy STAFFORD, Appellant, v. DRURY INNS, INC., Respondent.
    No. ED 84555.
    Missouri Court of Appeals, Eastern District, Division Two.
    Feb. 15, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 30, 2005.
    Naren Chaganti, Town and Country, MO, for Appellant.
    Robbye Hill Toft, St. Louis, MO, for Respondent.
   ROBERT G. DOWD, JR., Judge.

Jonathan Roy Stafford (Stafford) appeals from the trial court’s grant of summary judgment in favor of Drury Inns, Inc. (Drury) on Stafford’s petition for negligence and premises liability. Stafford contends the trial court erred in granting summary judgment in favor of Drury. Because we find as a matter of law Drury was not entitled to summary judgment, we reverse and remand.

Stafford was a guest at Drury Inn— Convention Center, located in the City of St. Louis’s downtown area. The hotel is owned by Drury. Stafford was in his hotel room alone when there was a knock at the door. Stafford opened the door and two men came into the room, hit Stafford in the head with a bottle leaving him unconscious, stabbed Stafford several times, and robbed Stafford of money and possessions. A member of Drury’s housekeeping staff found Stafford and immediately sought medical assistance for Stafford.

Stafford filed a petition against Drury alleging negligence by an innkeeper. Stafford stated that, at the time of the incident, Stafford had a special relationship with Drury as an innkeeper and should have, in the exercise of ordinary care, prevented harm to Stafford’s person and property. Stafford alleged Drury was negligent in ensuring the safety of its guests on the premises. Stafford asserted Drury failed to warn him of danger, failed to install appropriate security devices, failed to ensure that security devices were functional and operational, and recklessly disregarded the safety of its guests.

Drury filed a motion for summary judgment stating there were no issues of material fact, and Drury was entitled to judgment as a matter of law. In its motion, Drury asserted that it had no “duty to rescue” a guest within a hotel room until it became aware of a situation requiring immediate action in order to prevent injury. Drury attached a statement of uncontro-verted facts citing Stafford’s deposition testimony that he voluntarily admitted the two assailants into his room, he knew the assailants, that he did not remember a peephole in the door, but stated he probably would not have looked through a peephole, and that he talked to the two assailants for five to ten minutes before the attack.

Stafford opposed Drury’s motion for summary judgment on the grounds that the “duty to rescue” did not apply to his situation. Stafford also alleged Drury failed to provide a safe place and did not have the proper security devices or that such devices were not functioning, including the key-card system in the elevator and security cameras. Stafford further asserted that under the special circumstances test, Drury owed him a duty because the neighborhood was dangerous and therefore, criminal acts by third persons were foreseeable. Stafford also attached his affidavit re-stating his account of the facts. Subsequently, Stafford filed a cross-motion for partial summary judgment on the issue of liability.

Thereafter, the trial court granted Dru-ry’s motion and entered summary judgment in Drury’s favor finding Drury did not have a duty to rescue Stafford under the special relationship test. Stafford now appeals.

Appellate review of a trial court’s grant of summary judgment is essentially de novo. ITT Commercial Finance Corp. v. Mid-America Mamie Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). We will review the record in the light most favorable to the party against whom judgment was entered. 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 the motion initially. Id. The propriety of summary judgment is purely an issue of law. Id. The key to summary judgment is the undisputed right to judgment as a matter of law; not simply the absence of a fact question. Id. at 380.

A defending party may establish a right to judgment as a matter of law by showing any one of the following: (1) undisputed facts that negate any one of the elements of the claimant’s cause of action; (2) the non-movant, after an adequate period of discovery, has not produced and would 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) 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.

We address Stafford’s second point because it is dispositive. In his second point, Stafford contends the trial court erred in granting summary judgment in favor of Drury by finding no “duty to rescue.” Stafford maintains the duty of an innkeeper is broader than a “duty to rescue.” We agree and find that the duty of an innkeeper is broader than a duty to rescue and Drury, in its motion for summary judgment, failed to negate the duty element of Stafford’s negligence claim.

To show negligence, the plaintiff must prove the following elements: (1) a duty by the defendant to protect the plaintiff from injury; (2) the failure of the defendant to execute that duty; and (3) the defendant’s failure to execute that duty resulted in an injury to the plaintiff. Groce v. Kansas City Spirit, Inc., 925 S.W.2d 880, 884 (Mo.App. W.D.1996) (overruled on other grounds by Richardson v. QuikTrip Corp., 81 S.W.3d 54, 63 (Mo.App. W.D.2002)).

Businesses, generally, do not owe a duty to protect their invitees from criminal activity. Groce, 925 S.W.2d at 884. However, there are two exceptions to this rule: the “special relationship” test and the “special circumstances” test. Id. While the special circumstances exception deals with the foreseeability of crimes based on past incidents to create a duty of care, the special relationship exception creates a duty based solely on the positions of the parties. Id. The law imposes liability when a special relationship between the business and the invitee exists such that the plaintiff entrusts him or herself to the protection of the defendant and relies upon the defendant to provide a place of safety. Id. The relationship between an innkeeper and its guests imposes affirmative duties upon the innkeeper in the protection of persons and property. Virginia D. v. Madesco Inv, Corp., 648 S.W.2d 881,. 885 (Mo. banc 1983).

Here, both parties agree there was a special relationship, that of an innkeeper and guest. Therefore, during the period of time in which Stafford was a guest at the hotel, a special relationship was created and Drury had a duty to Stafford. This duty is one of reasonable care under the circumstances and is imposed as a matter of law. Id. at 887.

In its motion for summary judgment, Drury argued it was entitled to summary judgment because Drury had no duty to rescue a guest within a hotel room until such time that the innkeeper’s personnel become aware of a situation that requires immediate action in order to prevent injury. To support its argument, Drury cited M.C. v. Yeargin, 11 S.W.3d 604 (Mo.App. E.D.1999).

In Yeargin, the plaintiff, a guest of the hotel, was attempting to leave her room when the assailant pushed her back into her room where he raped her. Id. at 609-10. The plaintiff struggled with her attacker, causing a commotion, which prompted a guest in the room next door to call hotel security. Id. at 609. The security officers approached the door of the plaintiffs room and heard threatening comments and decided not to intervene. Id. The security officers instead called for police assistance. Id. The security officers observed the assailant exit the plaintiffs room, enter the elevator, and casually walk out of the hotel while holding a washcloth to his bleeding face. Id.

In Yeargin, the court found that the duty to take immediate action to rescue did not apply where no hotel employee saw the assailant push the plaintiff into her room. Id. at 613. The court stated:

If hotel staff observe a person enter a hotel room, there is no need for them to act without a corresponding observation of a criminal activity. However, just because we find [the hotel] did not have the duty to rescue as a matter of law, this finding does not absolve it for its underlying duty as an innkeeper. When the circumstances became apparent to the security guards there was some sort of activity from which Plaintiff needed [the hotel’s] assistance, at that point [the hotel] was required to take immediate action.

Id.

In relying on Yeargin, Drury’s argument stops there. However, the Yeargin court went further and analyzed the plaintiffs negligence claim under the underlying duty as an innkeeper and found that the jury could properly determine whether the hotel breached its general duty and whether that breach resulted in the plaintiffs damages. Id. at 613-14.

Here, we agree that under Yeargin Drury may not have had a duty to rescue Stafford within his hotel when no employee saw the two assailants enter his room and Stafford did not yell for help. However, even though Drury may not have had a duty to rescue, that does not absolve Dru-ry of its underlying duty of care as an innkeeper to make the premises safe. Drury has not alleged any undisputed facts that negate Stafford’s claim that Drury had a general duty as an innkeeper to provide a place of safety. In his petition, Stafford alleged Drury failed to provide a safe place and did not provide the proper security measures or ensure that security devices within the hotel were functional and operational. The facts alleged in support of Drury’s motion, that Stafford voluntarily let the assailants into his room, recognized the assailants from an encounter earlier in the day, and talked for five or ten minutes before the assault, do not negate Drury’s duty to provide a safe place and resolve whether Drury was negligent in failing to provide the proper security measures within the hotel. The facts put forth by Drury seem to go to the issue of proximate cause, which is generally a question for a jury. Yeargin, 11 S.W.3d at 613. Although Yeargin suggests that a court may decide the question of proximate cause when the evidence reveals the existence of an intervening cause that eclipses the role the defendant’s conduct played in the plaintiffs injury, Id., Drury’s motion for summary judgment did not seek relief on the ground of an intervening cause. Drury failed to negate an essential element of Stafford’s negligence claim. Thus, Drury was not entitled to judgment as a matter of law, and the trial court’s grant of summary judgment must be reversed.

We need not address Stafford’s remaining points. The trial court’s grant of summary judgment is reversed and the case is remanded for further proceedings.

PATRICIA L. COHEN, P.J. and KATHIANNE KNAUP CRANE, J., concur.

      . This motion and the materials filed in support of and in opposition to it are not before us.


author: PER CURIAM.

text:
    STATE of Missouri, Respondent, v. Robert FISHER, Appellant.
    No. ED 84678.
    Missouri Court of Appeals, Eastern District, Division Three.
    April 19, 2005.
    Rehearing Denied June 30, 2005.
    Rosalynn Koch, Columbia, MO, for appellant.
    Deborah Daniels, Leslie McNamara (co-counsel), Jefferson City, MO, for respondent.
    Before CLIFFORD H. AHRENS, P.J., GLENN A. NORTON, J. and NANNETTE A. BAKER, J.
   OPINION

PER CURIAM.

This appeal arises from Robert Fisher’s conviction for second degree statutory sodomy after a bench trial. After a sentencing hearing, the trial court issued a “memorandum,” in which Fisher was ordered to serve 120-days shock time in the county jail with work release. This order does not meet the requirements of Rule 29.07(c). The trial court’s docket sheet indicates that a “judgment” was entered, but no such document appears in the record on appeal. Recognizing that there was no final appealable judgment in this case, the parties jointly sought to stay the appeal pending execution of a final judgment. We ordered Fisher to show cause why the appeal should not be dismissed for lack of a final judgment, concluding that there was no authority for the parties’ request for a stay and no authority for acceptance of a premature notice of appeal in a criminal case. But see Ride 81.05(b) (regarding premature appeals in civil cases). Nothing has been filed in response to the order to show cause, and the appeal is, therefore, dismissed for lack of a final judgment.


text:
    STATE of Missouri, Respondent, v. Emile HENRY, Appellant.
    No. ED 84803.
    Missouri Court of Appeals, Eastern District, Division Three.
    April 26, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 30, 2005.
    Stephen Reynolds, Clayton, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Leslie E. McNamara, Jefferson City, MO, for respondent.

      Before CLIFFORD H. AHRENS, P.J., GLENN A. NORTON, J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Emile Henry (“defendant”) appeals the judgment on his conviction of two counts of robbery in the first degree. Defendant claims that the trial court erred in allowing certain closing argument by the prosecutor, and in allowing evidence of defendant’s uncharged misconduct.

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 30.25(b).


author: GEORGE W. DRAPER III, Chief Judge.

text:
    Hartley GOODMAN, Appellant, v. Valerie GOODMAN, Respondent.
    No. ED 83259.
    Missouri Court of Appeals, Eastern District, Division Five.
    April 26, 2005.

      Bruce F. Hilton, Kirkwood, MO, for appellant.
    Christopher Karlen, St. Louis, MO, for respondent.
   GEORGE W. DRAPER III, Chief Judge.

Hartley Goodman (hereinafter, “Husband”) appeals the dismissal and, in the alternative, denial of his motion to modify his monthly maintenance requirement. Husband raises four allegations of error on appeal, including that a portion of the transcript necessary'for meaningful appellate review is missing. We reverse and remand.

On May 21, 1996, the trial court dissolved the marriage of Husband and Valerie Goodman (hereinafter, “Wife”). Husband brought this motion to modify his spousal maintenance payments on October 19, 2001. Husband claimed there was a change in circumstances since the time of their dissolution which rendered the maintenance payments unreasonable.

Wife moved to dismiss Husband’s motion to modify, stating he was in arrears in his maintenance payments and flouting the authority of the court’s order by not meeting his monthly obligation. The trial court reserved the right to rule on Wife’s motion until after all of the evidence was presented.

After hearing all of the evidence, the trial court granted Wife’s motion to dismiss on April 21, 2003, based upon Husband’s failure to pay the court-ordered maintenance from August 2002 through February 2003, and, in the alternative, the trial court stated Husband failed to present sufficient evidence justifying a change in circumstances which proved he could no longer afford to pay maintenance. Husband paid his arrears and filed this appeal.

A maintenance obligation may be modified only when there is a showing of changed circumstances that are so substantial and continuing that the terms of the original award become unreasonable. Section 452.370.1 RSMo (2000); Laffey v. Laffey, 72 S.W.3d 143, 147 (Mo.App. W.D. 2002). The moving party has the burden to demonstrate, by presenting detailed evidence, there are changed circumstances warranting modification. Clark v. Clark, 101 S.W.3d 323, 330 (Mo.App. E.D.2003). “This statutory standard is intended to be strict in order to discourage recurrent and insubstantial motions for modification.” Clark, 101 S.W.3d at 330 (citing Ramsey v. Ramsey, 965 S.W.2d 365, 371 (Mo.App. E.D.1998)).

Husband raises four points on appeal. His first point on appeal claims the trial court erred in dismissing his case because the trial court wrongfully applied the rationale set forth in Staples v. Staples, 895 S.W.2d 265 (Mo.App. E.D. 1995). Husband believes his case is more analogous to Nelson v. Nelson, 14 S.W.3d 645 (Mo.App. E.D.2000).

A defendant may seek to have a civil action involuntarily dismissed for failure of the plaintiff to comply with “any order of the court.” Rule 67.03. Dismissal of a motion to modify maintenance is not proper solely on the basis that an arrear-age in payments exists. Laffey, 72 S.W.3d at 150. There must be evidence presented, demonstrating “the party making the motion to modify had the ability to comply with the maintenance order.” Id.

The trial court properly reserved ruling on Wife’s motion to dismiss until after it received evidence regarding Husband’s ability to pay the court-ordered maintenance. In its judgment, the trial court found Husband had the present means and capability within which to continue paying the court-ordered maintenance and that there was no showing of changed circumstances so substantial and continuing that the terms of the original award became unreasonable.

However, this Court is unable to review the entire record of the proceedings below because a portion of the transcript is missing. Husband states, in his fourth point on appeal, one of the transcript tapes is missing and that this tape contained the majority of his testimony. Husband further claims his missing testimony supports his motion to modify and he should be granted a new trial because the loss of the transcript portions was not attributable to either party.

“The record on appeal shall contain all of the record, proceedings and evidence necessary to the determination of all questions to be presented....” Rule 81.12(a). It is the responsibility of the appellant to prepare the legal file, including the transcript. Rule 81.12(c).

Wife argues this Court should reject Husband’s claim on appeal because he did not exercise due diligence in correcting the record’s deficiencies. Wife believes Husband could have made the record complete by, inter alia, using the admitted exhibits or using the trial court’s findings of fact and conclusion of law. Wife’s suggestion that we look to the trial court’s judgment to both supplement the record and to review it for error is specious.

Husband compiled and submitted an incomplete transcript. While recognizing it is Husband’s duty to compile a complete record for this appeal, “we are unable to discern whether the above shortcomings result from [Husband’s] failure to present everything the trial court had before it, or, whether the above shortcomings result from a trial court decision based on inadequate evidence.” Paull v. Paull, 819 S.W.2d 68, 73 (Mo.App. E.D.1991). This Court will not enter a judgment based upon mere speculation. The appropriate remedy when “the record on appeal is inadequate through no fault of the parties” is to reverse and remand the case to the trial court. Oyler v. Director or Revenue, 10 S.W.3d 226, 228 (Mo.App.W.D.2000); see also, Lynn v. Plumb, 808 S.W.2d 439, 440 (Mo.App.S.D.1991).

This point on appeal is dispositive. The judgment of the trial court is reversed and remanded.

CLIFFORD H. AHRENS, J., and GLENN A. NORTON, J., concur.

      . Husband's ability to appeal in the alternative results from the trial court’s joint hearing on Husband's current ability to pay his maintenance obligation, the basis of Wife's motion to dismiss, and also the assertion of the existence of substantially changed circumstances which would lead to a modification of maintenance, the basis of Husband's motion. These circumstances may not be present in other cases where both motions have been filed as a trial court is not required to hold these hearings jointly.

      . We remind attorneys to review both the Supreme Court Rules and our Local Rules of appellate practice before submitting documents to this Court. Points on appeal must follow the dictates of Rule 84.04(d), which are explained by Thummel v. King, 570 S.W.2d 679 (Mo. banc 1978). Failure to comply with these mandates can result in dismissal of an appeal. See M.C. v. Yeargin, 11 S.W.3d 604 (Mo-App. E.D.1999).


text:
    STATE of Missouri, Plaintiff/Respondent, v. Herman L. STAPLES, Defendant/Appellant.
    No. ED 84688.
    Missouri Court of Appeals, Eastern District, Division Two.
    May 3, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 30, 2005.
    Sidney L. Siegfried, St. Louis, MO, for appellant.
    Deborah Daniels, Shaun J. Maekelprang, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before PATRICIA L. COHEN, P.J., KATHIANNE KNAUP CRANE, J., and ROBERT G. DOWD, JR., J.
   ORDER

PER CURIAM.

Defendant, Herman L. Staples, appeals from judgment entered on a jury verdict finding him guilty of unlawful use of a weapon, in violation of section 571.030.1(1) RSMo (2000), and driving while license was suspended, in violation of section 302.321 RSMo (2000). The trial court sentenced defendant to four years imprisonment for the unlawful use of a weapon and one year for driving while license suspended, to be served concurrently.

No error of law appears and no jurisprudential purpose would be served by a written opinion. However, the parties have been furnished with a memorandum for their information only, setting forth the reasons for this order.

The judgment is affirmed in accordance with Rule 30.25(b).