text:
    Lloyd DAY, Appellant, v. FAIRBANKS COAL COMPANY; Hon. Donald G. Smith, Administrative Law Judge; and Workers’ Compensation Board, Appellees, and FAIRBANKS COAL COMPANY, Cross-Appellant, Lloyd Day, Jr.; Hon. Donald G. Smith, Administrative Law Judge; and Workers’ Compensation Board, Cross-Appellees.
    No. 2004-SC-0262-WC, 2004-SC-0289-WC.
    Supreme Court of Kentucky.
    April 21, 2005.

      Mark L. Ford, Harlan, Counsel for Lloyd Day, Jr.
    Paul E. Jones, Jones, Walters, Turner & Shelton, PLLC, Pikeville, Counsel for Fairbanks Coal Company.
   OPINION OF THE COURT

An Administrative Law Judge (ALJ) rejected the claimant’s challenge to the consensus reached by three B-readers as well as his argument that the underlying reports were inadmissible under KRS 342.316(3)(b)l. because they identified the x-ray that was interpreted by a letter of the alphabet rather than the date on which it was taken. Relying on the consensus classification, the ALJ dismissed the application for pneumoconiosis benefits. Although the Workers’ Compensation Board (Board) affirmed, the Court of Appeals reversed and remanded the claim. Its rationale was that the B-readers’ reports were based on undated x-rays and that KRS 342.316(3)(b)l. unambiguously required an x-ray to contain the date on which it was taken in order to be admissible as evidence.

It is undisputed that the claimant was exposed to coal dust while working for the defendant-employer and that he quit working on July 11, 1997, due to a back injury. On November 15, 2002, he filed an application for benefits under the July 15, 2002, version of KRS 342.732, alleging that he suffered from coal workers’ pneumoconio-sis. Accompanying the application was a report by Dr. Alexander. The report indicated that Dr. Alexander evaluated a September 12, 2002, x-ray and found abnormalities that were consistent with category 1/1 pneumoconiosis.

On February 6, 2003, the employer submitted a report by Dr. Dahhan, which indicated that he examined the claimant on January 27, 2003. The report also indicated that Dr. Dahhan evaluated a January 27, 2003, x-ray and found no abnormalities that were consistent with pneumoconiosis.

As provided in KRS 342.316(3)(b)4.e., on February 24, 2003, the Commissioner of the Department of Workers’ Claims notified the parties that the reports were not in consensus. The letter stated that the x-rays the parties had filed would be forwarded to three B-readers for interpretation and that the parties would be notified at the conclusion of the process. The x-rays the parties submitted were then forwarded to Drs. Rosenberg, DePonte, and Lockey to select and interpret the highest quality film.

Dr. Rosenberg’s March 5, 2003, report and accompanying letter indicated that he interpreted x-ray “G,” which he graded as quality 2 because it was light. He found no abnormalities that were consistent with pneumoconiosis but did find evidence of old granulomatous disease that was consistent with a past infection such as tuberculosis.

Dr. DePonte’s March 19, 2003, report indicated that she interpreted x-ray “G,” which she graded as quality 1. She found abnormalities that were consistent with category 0/1 pneumoconiosis.

Dr. Lockey’s March 21, 2003, report indicated that he interpreted x-ray “G,” which he graded as quality 1. He found no abnormalities that were consistent with pneumoconiosis and classified the profusion as category 0/0. He stated that the abnormalities he found were consistent with old TB or histoplasmosis.

Among other things, KRS 342.316(3)(b)l. requires that x-rays be indelibly labeled with the date on which they were taken and that reports of x-ray interpretations contain the date of the x-ray in order to be admissible as evidence. The x-rays the parties submitted are not part of the record on appeal, but there is no assertion that they failed to comply with the statute when the parties submitted them. Nonetheless, all of the B-readers’ reports identified the x-ray that was chosen for interpretation with the letter “G,” and none contained the date of the x-ray that was interpreted. An internal form that was used by the Department to record party and panel x-ray readings indicates, however, that the x-ray Drs. Rosenberg, DePonte, and Lockey chose to interpret was the one submitted by the claimant. It also notes the category that each physician reported as well as the existence of a consensus. In a letter dated April 3, 2003, the Commissioner notified the parties that the B-reader reports had been reviewed, that there was a consensus reading, and that the claim would be assigned to an AL J.

The claimant challenged the consensus reading. Among other things, he asserted that it was based on reports that failed to list the date of the x-ray that was interpreted or to indicate that the reader found it to be the highest quality film. The employer proceeded to depose Drs. Dah-han and Lockey. It also filed into evidence the reports from Drs. Rosenberg, Lockey, and DePonte. Objecting, the claimant asserted that the reports were inadmissible because they did not comply with KRS 342.316(3)(b)l. He also maintained that the regulations permitted the parties to file only one medical report, and the employer had already filed a report from Dr. Dahhan.

When the claim came before the ALJ, the contested issues included, among other things, the claimant’s challenge to the consensus reading and his challenge to the admissibility of the panel members’ reports. The ALJ noted that the Commissioner had certified a consensus of category 0/0 to 0/1 and that the certification was consistent with the criteria set forth in KRS 342.316(3)(b)4.f. Although acknowledging that the three reports did not list the date of the x-ray that was interpreted, the ALJ noted that they all identified the x-ray with the letter “G.” Convinced that the letter was equivalent to a date under the circumstances, because it clearly designated which x-ray the B-reader interpreted, the ALJ rejected the argument that the reports were inadmissible as evidence. After determining that there was no clear and convincing evidence the consensus reading was erroneous, the ALJ concluded that a decision must be based on the reading and dismissed the claim. KRS 342.316(13); KRS 342.794(2). Finally, the ALJ stated that Dr. Dahhan would have been found to be the most credible of the physicians had there been no consensus and that the claim would have been dismissed based on his reading of category 0/0.

KRS 342.316 provides, in pertinent part, as follows:

(3) The procedure for filing occupational disease claims shall be as follows:
(a) The application for resolution of claim shall set forth the complete work history of the employee with a concise description of injurious exposure to a specific occupational disease, together with the name and addresses of the employer or employers with the approximate dates of employment. The application shall also include at least one (1) written medical report supporting his claim. This medical report shall be made on the basis of clinical or X-ray examination performed in accordance with accepted medical standards and shall contain full and complete statements of all examinations performed and the results thereof. The report shall be made by a duly-licensed physician. The commissioner shall promulgate administrative regulations which prescribe the format of the medical report required by this section and the manner in which the report shall be completed.
1. For coal-related occupational pneumoconiosis claims, each clinical examination shall include a chest X-ray interpretation by a National Institute of Occupational Safety and Health (NIOSH) certified “B” reader. The chest X-ray upon which the report is made shall be filed with the application as well as spirometric tests when pulmonary dysfunction is alleged.
(b) To be admissible, medical evidence offered in any proceeding under this chapter for determining a claim for occupational pneumoconiosis resulting from exposure to coal dust shall comply with accepted medical standards as follows:
1. Chest X-rays shall be of acceptable quality with respect to exposure and development and shall be indelibly labeled with the date of the X-ray and the name and Social Security number of the claimant. Physicians’ reports of X-ray interpretations shall: identify the claimant by name and Social Security number; include the date of the X-ray and the date of the report; classify the X-ray interpretation using the latest ILO Classification and be accompanied by a completed copy of the latest ILO Classification report. Only interpretations by National Institute of Occupational Safety and Health (NIOSH) certified “B” readers shall be admissible, (emphasis added).
8. The commissioner shall promulgate administrative regulations pursuant to KRS Chapter 13A as necessary to effectuate the purposes of this section. ...
4. The procedure for determination of occupational disease claims shall be as follows:
a. Immediately upon receipt of an application for resolution of claim, the commissioner shall notify the responsible employer and all other interested parties and shall furnish them with a full and complete copy of the application.
b. The commissioner shall assign the claim to an administrative law judge ....
d. Within forty-five (45) days of assignment of a coal workers’ pneu-moconiosis claim to an administrative law judge, the employer shall cause the employee to be examined by a physician of the employer’s choice and shall provide to all other parties and file with the commissioner the X-ray interpretation by a “B” reader.... The commissioner shall determine whether the X-ray interpretations filed by the parties are in consensus.
e. If the readings are not in consensus, the commissioner shall forward both films, masking information identifying the facility where the X-ray was obtained and the referring •physician, consecutively to three (3) “B” readers selected randomly from a list maintained by the commissioner for interpretation. Each “B” reader shall select the highest quality film and report only the interpretation of that film. The commissioner shall determine if two (2) of the X-ray interpretations filed by the three (3) “B” readers selected randomly are in consensus. If consensus is reached, the commissioner shall forward copies of the report to all parties as well as notice of the consensus reading which shall be considered as evidence. If consensus is not reached, the administrative law judge shall decide the claim on the evidence submitted. (emphasis added).
f. “Consensus” is reached between two (2) chest X-ray interpreters when their classifications meet one (1) of the following criteria: each finds either category A, B, or C progressive massive fibrosis; or findings with regard to simple pneumoconiosis are both in the same major category and within one (1) minor category (ILO category twelve (12) point scale) of each other.
g. The administrative law judge shall conduct such proceedings as are necessary to resolve the claim and shall have authority to grant or deny any relief, including interlocutory relief, to order additional proof, to conduct a benefit review conference, or to take such other action as may be appropriate to resolve the claim.
(13) .... The consensus classification shall be presumed to be the correct classification of the employee’s condition unless overcome by clear and convincing evidence. If an administrative law judge finds that the presumption of correctness of the consensus reading has been overcome, the reasons shall be specially stated in the administrative law judge’s order.

KRS 342.794(1) directs the Commissioner to maintain a list of qualified B-readers who are hired by the Department to interpret chest x-rays when the readings submitted by the parties are not in consensus. Parties commonly refer to the three randomly-selected B-readers who consider the x-rays in a given claim as a consensus panel. KRS 342.316(3)(b)4.f. defines a consensus, and KRS 342.316(3)(b)4.e. provides that “the consensus reading shall be considered as evidence.” Consistent with the Department’s authority to regulate the practices and procedures for processing claims, the Commissioner also promulgated 803 KAR 25:009, § 3(3), which provides that the three B-readers’ reports “shall be admitted into evidence without the necessity of a notice of filing by any party.”

The adverb “indelibly” means “irre-movably,” “inerasably,” or “inexpungibly.” See Webster’s New International Dictionary 1262 (2nd ed.1956). The verb “mask” means to “cover” or “conceal.” See Webster’s New International Dictionary 1509 (2nd ed.1956). There is no dispute that when submitted to the Department the parties’ x-rays of the claimant’s chest complied with KRS 342.316(3)(b)l. and were indelibly labeled with his name, his social security number, and the date on which they were taken. It appears from the record that before the Department forwarded the x-rays to the consensus panel, it masked not only the names of the facility where they were taken and the referring physician but also masked the date, substituting a letter of the alphabet and recording the letter assigned to each x-ray. We say this because all of the panel members identified the x-ray they chose to interpret with the claimant’s name and social security number but with the letter “G” rather than a date, and the Department’s internal form indicated that each had interpreted the x-ray the claimant submitted. At issue is whether the ALJ erred by failing to determine that Department’s action had the effect of rendering the panel members’ reports and/or their consensus inadmissible as evidence.

KRS 342.316(3)(b)l. is clear and unambiguous regarding the information that must be provided in order for x-rays and x-ray reports to be admissible as evidence. Nonetheless, although this Court has a duty to accord the words of a statute their literal meaning, it is not required to do so if the result would be absurd or wholly unreasonable. See Bailey v. Reeves, 662 S.W.2d 832, 834 (Ky.1984); Overnite Transportation Co. v. Gaddis, 793 S.W.2d 129 (Ky.App.1990). Furthermore, KRS 446.080(1) provides:

All statutes of this state shall be liberally construed with a view to promote their objects and carry out the intent of the legislature, and the rule that statutes in derogation of the common law are to be strictly construed shall not apply to the statutes of this state.

It is undisputed that KRS 342.316(3)(b)l. requires the x-ray reports the parties submit as evidence to be prepared by B-readers. It also requires x-rays and x-ray reports to be identified with the name and social security number of the claimant as well as the date of the x-ray in order to be admissible as evidence. With respect to the x-rays and reports that the parties submit, the apparent purpose of requiring those particular items of identification is to assure not only that the x-ray pertains to the correct individual but also that the x-ray report relates to both the same individual and the same x-ray. The date serves the additional purposes of distinguishing multiple x-rays of the same individual and assuring that the x-ray and report that the employer submits are produced within the period set forth in KRS 342.316(3)(b)4.d.

Additional considerations are present at the second level of the consensus process. As is apparent from KRS 342.794(1) and KRS 342.316(3)(b)4.e., the purpose of the second level is to provide evidence from additional B-readers who are hired by the Department and, therefore, are neutral. The masking requirement furthers the purpose of KRS 342.794(1) and KRS 342.316(3)(b)4.e. by preventing bias against certain physicians and medical facilities from being a factor in consensus panel interpretations. We note, however, that nothing in Chapter 342 or the regulations prohibits B-readers who interpret x-rays for the Department in a given claim from also interpreting x-rays for plaintiffs or defendants. It is for that reason that 803 KAR 25:009, § 4(3)(b) requires the Department to be certain that no member of a consensus panel provided the initial reading for the plaintiff or defendant.

Neither KRS 342.316(3)(b)l. nor a regulation provides for the date of an x-ray to be masked. Nonetheless, it would be obvious to members of a consensus panel that the x-ray bearing the earlier date was submitted by the plaintiff and the other by the defendant, giving rise to the potential for bias. Hence, to apply KRS 342.316(3)(b)l. literally and require consensus panel reports to identify the x-ray being interpreted by its date (rather than by a letter of the alphabet that represents the date) would undermine the very purpose of obtaining the reports.

A consensus panel’s charge under KRS 342.316(3)(b)4.e. is to review the x-rays the parties have submitted and to interpret the highest quality x-ray, a task for which the date of an x-ray or the identity of the party that submitted it is immaterial. The sole function of the date at that stage of the process is to distinguish one x-ray of the worker from another for the purpose of stating which was interpreted. Masking the date of each x-ray and substituting a letter of the alphabet as the Department has done not only preserves the anonymity of the party that submitted it but enables the x-rays being reviewed to be distinguished. Hence, it furthers the purposes of KRS 342.316(3)(b)4.e. and KRS 342.794(1) as well as the purposes of KRS 342.316(3)(b)l. We conclude, therefore, that reports by the three B-readers hired by the Department may identify the x-ray being interpreted with a letter of the alphabet assigned by the Department rather than the date on which it was taken.

The decision of the Court of Appeals is reversed, and the decision of the ALJ is reinstated.

All concur.

      . The employer conceded that because the claimant’s last exposure occurred between December 12, 1996, and July 15, 2002, KRS 342.792 applied. As enacted effective July 15, 2002, KRS 342.792(3) permitted claims in which the last exposure occurred within the requisite period to be filed before December 12, 2003, or the period set forth in KRS 342.316(4)(a), whichever was longer. KRS 342.792(1) provided that such claims were to be decided as though the July 15, 2002, version of KRS 342.732 were in effect on the date of last exposure.


source: Caselaw Access Project

author: LAMBERT, Chief Justice.

license: Public Domain

text:
    COMMONWEALTH OF KENTUCKY, Appellant, v. Ronnie MOBLEY, Appellee.
    No. 2003-SC-000807-DG.
    Supreme Court of Kentucky.
    April 21, 2005.
    As Modified April 28, 2005.

      Gregory D. Stumbo, Attorney General of Kentucky, Carlton S. Shier, Assistant Attorney General, Criminal Appellate Division, Office of the Attorney General, Frankfort, Counsel for Appellant.
    V. Gene Lewter, Lexington, Counsel for Appellee.
   LAMBERT, Chief Justice.

KRS 431.005 authorizes a police office to arrest a person, inter alia, “without a warrant when a misdemeanor, as defined in KRS 431.060, has been committed in his presence.” In the course of a routine weapons search of three men sitting in a parked truck, a police officer saw a crack pipe in plain view in the passenger side floor near where Appellee, Ronnie Mobley, was sitting. The officer arrested the driver and the two passengers of the truck. A later search of the truck and its occupants revealed crack cocaine and more drug paraphernalia. The question we must answer is whether discovery by a police officer of a crack pipe in plain view constitutes the commission of a misdemeanor in the police officer’s presence authorizing the arrest of a passenger in close proximity to the drug paraphernalia. The Supreme Court of the United States has recently spoken to this issue in Maryland v. Pringle and held that the Fourth Amendment of the United States Constitution is not violated by an arrest in such circumstances. As this Court has held Section 10 of the Kentucky Constitution to be consonant with the Fourth Amendment, Maryland v. Pringle is proper authority for our conclusion.

On July 22, 2001, while conducting a routine patrol late in the evening, Lexington Police Officer Mike Abbondanza observed a truck parked in the lot of the Martin Luther King, Jr. Park with its lights off. The officer stopped to investigate. He discovered three men, including Appellee Ronnie Mobley, sitting in the vehicle. Since the park was closed, the officer approached the truck and asked the three men what they were doing parked there. Driver Floyd Robinson told the officer that the three men were at the park to discard the brush stowed in the bed of the truck gathered earlier that evening, and that they were looking for a place to dump it. The officer thought that this story did not seem to be true because the brush appeared to be more than one day old. Officer Abbondanza asked to see Robinson’s identification, and Robinson stated that he was taking someone home. Officer Abbondanza then verified that no one lived near that area. Robinson finally responded that his truck had overheated. After contacting another officer for support, Officer Abbondanza examined the truck and determined that it was neither hot nor leaking fluid.

After receiving what Officer Abbondan-za believed to be three factually inconsistent answers from the driver, the officer asked if he could search the vehicle. The driver originally granted permission, but quickly withdrew that permission. Officer Abbondanza ordered the men out of the truck to conduct a weapons search. While the three men exited the truck, Officer Abbondanza saw a three-inch glass crack pipe on the floor board of the truck near the passenger side. He offered to allow any of the three men to claim ownership of the pipe, but no one came forward. Officer Abbondanza arrested the driver and the two passengers for possession of drug paraphernalia. A search of the truck yielded three push rods (devices used to insert crack cocaine into the pipe), and a rock of crack cocaine weighing .2 grams. No one claimed ownership of the crack cocaine. During an inventory and weapons search conducted at the police station, .36 grams of crack cocaine was discovered on Appellee Mobley.

Mobley was indicted for possession of a controlled substance in the first degree (KRS 218A.1415), promoting contraband in the first degree (KRS 520.050), and possession of drug paraphernalia (KRS 218A.500). During a pretrial suppression hearing on May 16, 2002, Officer Abbon-danza recounted the events of July 22, 2001 as detailed above. At this hearing, Mobley claimed that there was insufficient probable cause to arrest him, but he admitted that there was probable cause to arrest the driver since there was no proof as to who actually owned the crack pipe. The trial court overruled the motion to suppress and ruled that since the pipe was found in plain view there was probable cause to arrest all three occupants of the truck.

On May 24, 2002, Mobley entered a conditional guilty plea to possession of a controlled substance in the first degree and promoting contraband in the first degree, both relating to the discovery of cocaine on his person. He was sentenced to a term of one year on concurrent counts.

Mobley appealed to the Court of Appeals claiming that his initial arrest was not in compliance with KRS 481.005(1) because he did not commit a misdemeanor in the presence of a police officer. The Court of Appeals agreed holding that there was not sufficient evidence to establish Mob-ley’s constructive possession of the crack pipe. It also held that no misdemeanor had been committed in the presence of the officer rendering the arrest and the evidence obtained as a result of the arrest invalid. Relying on Mash v. Commonwealth, the Court reasoned that there was no probable cause to arrest unless the arresting officer actually witnessed Mobley holding the drug paraphernalia. The Court of Appeals held that only the driver can be deemed to be in constructive possession of contraband concealed in an automobile and there was no indication that the pipe belonged to Mobley. In conclusion, the Court held that there was no direct or circumstantial evidence to prove constructive possession of paraphernalia. “Since Mobley’s physical proximity to the crack pipe was his only connection to the pipe in the present casé, there was not sufficient evidence that Mobley committed the misdemeanor offense of possession of drug paraphernalia in the presence of the police.” Upon the Commonwealth’s motion, we granted discretionary review to determine whether the Court of Appeals properly reversed the trial court’s denial of Mobley’s motion to suppress.

There is no doubt that a police officer may make a warrantless arrest “when a misdemeanor, as defined in KRS 431.060, has been committed in his presence.” Possession of drug paraphernalia such as a crack pipe is a Class A misdemeanor for the first offense. Thus, the question is whether Mobley possessed the crack pipe, solely or jointly with the other occupants of the car, in the presence of the officer. If a police officer may reasonably infer from the circumstances that the occupants of an automobile have knowledge of, or exercise dominion and control over contraband, an arrest for a misdemeanor offense committed in his presence is proper.

In Maryland v. Pringle, the United States Supreme Court unanimously reversed the highest court of Maryland holding that the Fourth Amendment was not violated by an arrest of a passenger in an automobile where the officer could reasonably infer from the circumstances that the occupants had knowledge of, and exercised dominion and control over the contraband. After a routine passenger stop for a speeding violation, $763 fell from the glove compartment of the automobile as the driver attempted to get his license. The officer obtained permission to search the automobile, and confiscated the cash from the glove compartment and five glassine baggies of cocaine from between the back-seat armrest and the back seat. All occupants of the vehicle denied ownership of the cocaine and the money, and all three were arrested, including Pringle who was seated in the front passenger seat of the ear. Pringle subsequently confessed that the cocaine was his and that he intended to distribute it at a party. Pringle contested his arrest on the grounds that the officer did not have probable cause to arrest him because he was simply a passenger in the car, and on those grounds he sought to suppress his subsequent confession.

To determine whether an officer had probable cause to arrest an individual, ■ we examine the events leading up to the arrest, and then decide “whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to” probable cause.

The Court concluded that a reasonable officer could reasonably believe that there was sufficient probable cause to believe that Pringle committed either solely or jointly the crime of possession of cocaine. There was sufficient evidence to believe that Pringle was engaged in a common enterprise with the driver, and had the same interest in concealing the fruits or the evidence of their wrongdoing.

Pringle differs slightly from Burnett v. Commonwealth in which this Court held that a passenger could only be in constructive possession of objects under his immediate control. But Burnett did not limit constructive possession to the driver of the automobile. Proof that another passenger was in control rather than the driver would permit a finding that the passenger-defendant was in constructive possession of the contraband.

Although the present case deals with a misdemeanor rather than a felony, Pñngle is analogous and persuasive. The appropriate analysis to determine a lawful misdemeanor arrest is whether a reasonable officer could conclude from all facts that a misdemeanor is being committed in his presence.

In this case, it was reasonable for Officer Abbondanza to believe that Mobley was in constructive possession of drug paraphernalia, and was therefore committing a Class A misdemeanor in the officer’s presence. Supporting this determination is the fact that the three men were sitting on a bench style seat with a crack pipe on the floor board of the passenger side. The truck was small enough that the crack pipe was accessible to all three occupants of the car, including Mobley. Moreover, Officer Abbondanza actually saw the crack pipe in plain view near Mobley’s feet, an area within his immediate control. As in Prin-gle, Officer Abbondanza made a reasonable inference that the three occupants of the truck were in a common enterprise and had knowledge of the crack pipe on the floorboard of the truck. Therefore, the misdemeanor was committed in the presence of Officer Abbondanza and the arrest was proper.

We are not unmindful of our decision in Mash v. Commonwealth where we noted the distinction between a warrantless arrest for a felony and a misdemeanor. We overrule Mash to the extent that it is inconsistent with our holding today.

Accordingly, we reverse the decision of the Court of Appeals and reinstate the judgment of the trial court.

COOPER, GRAVES, JOHNSTONE, KELLER, SCOTT, and WINTERSHEIMER, JJ., concur.

      . 540 U.S. 366, 372, 124 S.Ct. 795, 800-01, 157 L.Ed.2d 769 (2003).

      . See LaFollette v. Commonwealth, 915 S.W.2d 747, 748 (Ky.1996).

      . The Commonwealth agreed not to pursue bail jumping charges for a failure to appear in court and agreed to dismiss the paraphernalia count. As part of his conditional plea, he reserved the right to appeal the trial court’s suppression hearing ruling.

      . 769 S.W.2d 42 (Ky.1989).

      . KRS 431.005(l)(d).

      . KRS 218A.500(2), (3), and (5).

      . Maryland v. Pringle, 540 U.S. at 372, 124 S.Ct. at 800-01, 157 L.Ed.2d 769; Burnett v. Commonwealth, 31 S.W.3d 878 (Ky.2000).

      . 540 U.S. at 371, 124 S.Ct. at 800, 157 L.Ed.2d 769.

      . Id. (citations omitted).

      . Id. at 372 and 124 S.Ct. at 801.

      . Maryland v. Pringle, 540 U.S. at 372, 124 S.Ct. at 801, citing Wyoming v. Houghton 526 U.S. 295, 304-05, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999).

      . 31 S.W.3d at 880-81 (reversing on the grounds that defendant was denied unanimous verdict).

      . Id.

      . 769 S.W.2d 42.


author: /s/ Joseph E. Lambert Chief Justice

text:
    Arthur W. PULLIAM, Movant, v. KENTUCKY BAR ASSOCIATION, Respondent.
    No. 2002-SC-0595-KB.
    Supreme Court of Kentucky.
    April 21, 2005.
   OPINION AND ORDER

Arthur Woodson Pulliam, whose last known bar roster address is 300 West Main Street, Munfordville, Kentucky 42765, was admitted to the practice of law in this Commonwealth on October 21, 1994. By Opinion and Order of this Court entered September 22, 2002, Pulliam was suspended for sixty-one (61) days, probated for a period of two years. Pulliam v. Kentucky Bar Association, 84 S.W.3d 455 (Ky.2002). The suspension was the result of the Inquiry Commission charging Pul-liam with violations of: (1) SCR 3.130-1.7(b), by (a) filing a lawsuit and attempting to execute judgment of such lawsuit against a client, and (b) continuing to represent that same client after initiating and participating in the criminal prosecution of that client; (2) SCR 3.130 — 3.4(f), by presenting and participating in the criminal prosecution of his client for the sole purpose of collecting an unenforceable debt; and (3) SCR 3.130-8.3(b), for a conviction of a second DUI offense. As part of his probation, Pulliam agreed to numerous conditions, the first being “Movant shall abstain from the consumption of alcoholic beverages.”

Pulliam’s two-year probation would have expired on September 26, 2004. However, on August 18, 2004, Pulliam was arrested in Hart County for driving under the influence and recMess driving. The Uniform Citation indicates that the arresting officer detected the odor of alcohol on Pulliam’s breath and that he failed three field sobriety tests. Although the citation notes that blood and urine samples were taken, a breathalyzer was apparently not administered.

The Kentucky Bar Association (KBA) subsequently moved this Court for an order requiring Pulliam to show cause why the sixty-one (61) day suspension should not be imposed for violation of his probation agreement. An order was entered by this Court on December 16, 2004, granting Pulliam thirty (30) days to show cause why he should not be suspended from the practice of law. Pulliam failed to respond.

Accordingly, we now grant the KBA’s motion to commence Pulliam’s sixty-one (61) day suspension. Therefore, IT IS HEREBY ORDERED THAT:

(1) Arthur W. Pulliam is suspended from the practice of law in the Commonwealth of Kentucky for a period of sixty-one (61) days. The period of suspension shall commence on the date of entry of this order.

(2) Pursuant to SCR 3.390, Pulliam shall, within ten (10) days from the entry of this Opinion and Order, notify all clients in writing of his inability to represent them, notify all courts in which he has matters pending of his suspension from the practice of law, and furnish copies of said letters of notice to the Director of the KBA.

(3) In accordance with SCR 3.450, Pul-liam is directed to pay all costs associated with these disciplinary proceedings against him, for which execution may issue from this Court upon finality of this Opinion and Order.

All concur.

ENTERED: April 21, 2005.

/s/ Joseph E. Lambert

Chief Justice

      . The KBA points out that Pulliam was arrested and pled guilty in July 2003 for possession of marijuana and attempted possession of a controlled substance (Valium). The Uniform Citation from that arrest is attached to the KBA’s motion and indicates that Pulliam was also arrested for DUI. The KBA explains that it did not seek to revoke Pulliam’s probation at that time since the charges did not involve alcohol consumption.


text:
    Taylor STRASSER, Movant, v. CHARACTER AND FITNESS COMMITTEE OF THE KENTUCKY OFFICE OF BAR ADMISSIONS, Respondent.
    No. 2004-SC-1088-KB.
    Supreme Court of Kentucky.
    April 21, 2005.
    Stephen W. Owens, Pikeville, Counsel for Movant.
    Bonnie C. Kittinger, Director and General Counsel, Character and Fitness Committee, Kentucky Office of Bar Admissions, Lexington, Counsel for Respondent.
   OPINION AND ORDER

This is an original action for review of a decision of the Character and Fitness Committee (Committee) of the Kentucky Board of Bar Examiners denying an application for admission to the practice of law in Kentucky. Ms. Strasser requests that she either be admitted to the practice of law in Kentucky or be granted a conditional admittance.

In February of 2001, Ms. Strasser filed her application to take the July Kentucky Bar Examination. On that application she disclosed a misdemeanor citation issued in 1997, but it was brought to the attention of the Committee that she had not disclosed that citation on her law school applications or on an application for an intern position. The Committee requested additional information on the citation, but Ms. Strasser did not provide all additional documentation requested by the ■ Committee. The Committee therefore denied her permission to sit for the July bar exam. However, two weeks before the July bar exam, the Committee reconsidered its position and allowed Ms. Strasser to take the exam upon her written waiver providing that her scores would not be released until she successfully proved her character and fitness to practice law in Kentucky.

On December 6, 2001 and again on May 23, 2002, the Committee held formal hearings on Ms. Strasser’s character and fitness to practice law in Kentucky. On July 30, 2002, Ms. Strasser’s application for admission was denied for failure to prove the requisite character and fitness. An appeal was taken pursuant to SCR 2.060 to this Court on October 9, 2002. In March of 2002 in an unrelated matter, four-felony charges were filed against her former boyfriend, Mr. Kelly Ward, with Ms. Strasser as the complaining witness.

On March 20, 2002, this Court issued an Opinion and Order mandating that Ms. Strasser’s application be deemed granted and her bar exam grade be unsealed. This Court determined that Ms. Strasser “has taken appropriate steps to deal with the residue of her early life ... has demonstrated insight - into the problems she faces and maturity in the manner in which she is dealing with them.” The Committee filed a motion for reconsideration of our order, but released her bar exam results. The Court issued a subsequent order stating that Ms. Strasser must file a new application for admission by examination, pursuant to SCR 2.024. Unfortunately, she did not pass the July bar exam and the Committee withdrew the motion for reconsideration.

The Committee also discovered new information relating to Ms. Strasser’s character and fitness to practice law stemming from instances of domestic violence with her former boyfriend, Mr. Kelly Ward. The new information was provided in a letter sent by Kelly Ward’s Sister, Ms. Kim Tharp-Barrie. The information showed inconsistencies in the recounting of events to police and in a subsequent civil complaint against a homeowner’s insurance company. The Committee hired an investigator to look into the validity of Ms. Tharp-Barrie’s allegations. Ms. Tharp-Barrie also hired an investigator to assist the Committee.

On May 9, 2003, Ms. Strasser reapplied to take the July 2003 bar exam. The Committee allowed Ms. Strasser to the take the exam under the same written waiver. She only sat for the July 2003 multi-state portion of the exam since she had previously passed the written portion. In October 2003, per the Committee’s request, Ms. Strasser participated in interviews with three psychologists and was given the Minnesota Multiphasic Personality Inventory (MMPI) test at Seven Counties in Louisville, Kentucky. The psychologist asked whether she had anger management issues or whether she had abused alcohol. According to Ms. Stras-ser, the three panel psychologists found that she could practice law concurrently with attending counseling. In addition, Ms. Strasser paid for all the costs associated with the Committee’s investigation, but on November 17, 2004 the Committee issued an opinion denying her application for admission to the Kentucky Bar by a vote of 2-1. Chairman Grant Helman dissented without a separate opinion “on the basis that Ms. Strasser has rehabilitated herself and currently meets the requirements of good moral character and mental fitness to practice law in Kentucky.”

Ms. Strasser now seeks review under SCR 2.060 and claims that the Character and Fitness Committee was collaterally es-topped from reviewing any evidence pertaining to her character and fitness except that contained in her reapplication of May 200B. The Committee argues that per our Order they conducted a “de novo” review of all issues upon Ms. Strasser’s reapplication, which included consideration of previous applications and behavior in addition to any new revelations.

I. Fitness

As to Ms. Strasser’s fitness, the Committee claims that she failed to prove the present mental and emotional fitness to practice law. The Committee’s conclusion is based on Seven Counties’ recommendation that she join Alcoholics Anonymous. Moreover, the Committee highlights that its decision was based on several incidents of domestic violence between herself and Mr. Ward, some of which she may have instigated. It is important to note that Ms. Strasser ended her relationship with Mr. Ward in March of 2003.

The purpose of requiring an applicant’s fitness is to exclude from the practice of law any person having a mental or emotional illness or condition, which would be likely to prevent the person from carrying out duties to clients, courts or the profession. Although Ms. Strasser sought and was treated for alcohol and relationship problems by counselor Tome-ca Runyon, it does not mean that she is unfit to practice law. Moreover, Ms. Strasser is in counseling. There is nothing to suggest that her past problems with alcohol and domestic violence interfere with her present ability to practice law. The substantial fact that she has sought treatment and lack of any incidents to this date show a strong attempt to demonstrate that she is fit to practice law. Additionally, Ms. Strasser has presented evidence in the form of letters from employers and others in the legal community that she has conducted herself in a professional and competent manner.

II. Character

The Committee offers that Ms. Strasser provided false statements to the police regarding an April 1999 incident of falling or being pushed from some steps; or that she gave false testimony in a deposition in two civil cases in April 2002 and in June 2003. In her motion, Ms. Strasser explains that she was unsure or unclear of the events that took place about which she filed a complaint against a former boyfriend with the Indiana Police and with an Indiana court in a civil lawsuit. Ms. Strasser was treated for a miscarriage at Baptist Hospital East the day after the fall. In a subsequent civil claim against the homeowner’s insurance company, she stated that her boyfriend did not push her, but stated in a different deposition in relation to a civil case that he did push her down the steps. Ms. Strasser also testified before the Committee that her former boyfriend had pushed her and attempted to clear up any discrepancies. During the hearing before the Committee, she admitted her former lapses in veracity to the committee:

I had stated in the deposition that I had lied to the police officer about being pushed. And I didn’t think that was an accurate statement because I didn’t lie to the police officer about being pushed. But then I wasn’t completely correct in not explaining to him that I had also fallen off the stairs. So I don’t think it still gave an accurate version of what took place. That’s why I didn’t sign it and that’s why I dismissed the case because I didn’t feel comfortable proceeding with a case that I really wasn’t sure what took place.
I didn’t sign the deposition because at the time that the police were called out, I told the police the truth, as I knew it at the time, that Bryan pushed me. Subsequent to that happening, Bryan and I had spoken to each other. He had told me that he didn’t want to get in trouble. He had told me that he didn’t think that he had pushed me, that he thought that I had fallen both times ... And that is when I said to him, ‘Well, that means I wasn’t completely accurate with the police.... ’ Then when I went and gave this deposition and went by, you know partially what Mr. Kessinger told me what happened which would mean that I didn’t tell the police that I had also fallen on the steps... I ... just decided because Bryan’s not clear what happened ... I am not clear what happened ... I immediately dismissed the case with prejudice.

On November 19, 2004, the Committee denied Ms. Strasser’s application in part on this inconsistency.

We agree with the Committee that there is a discrepancy, but viewed in light of Ms. Strasser’s explanation, it is not clear that she was intentionally deceptive. The deposition showing the discrepancy was taken three years after the event, and Ms. Strasser had been embroiled in domestic disputes with her former boyfriend. As she stated in the deposition, she was unclear of the events because she relied on others to obtain the full picture of what had transpired. In any event, in the end her story was clear that she had been pushed and these discrepancies do not indicate any clear wrongdoing or deceit on the part of Ms. Strasser. As Ms. Strasser has demonstrated a sincere effort to improve her life, we order that she be conditionally admitted pursuant to SCR 2.042 to the practice of law in Kentucky. It is hereby ordered that

1. Ms. Strasser shall provide the Committee with a formal monitoring plan. In this formal monitoring plan, Ms. Strasser shall submit the names of a mentor group of three or more attorneys that would oversee Ms. Strasser’s legal work and supervise her behavior. As part of that mentor group, Ms. Strasser shall also submit the name of a counselor, psychologist, or psychiatrist who will supervise her behavior and meet with her on a regular basis to monitor alcohol abuse and relationship issues. Ms. Strasser’s admission would only be conditional on her working at the level required by the team of mentor attorneys and her attendance of counseling on a regular basis. The mentor group shall report any questionable behavior to the Kentucky Bar Association. This plan shall be submitted within thirty days after this Order.

2. Ms. Strasser shall attend counseling for a duration necessary, as determined by the licensed counselor, psychologist, psychiatrist, or the Kentucky Lawyers Assistance Program (KYLAP), but in no event shall that period result in a counseling of Ms. Strasser for less than two years after this Order;

3. Ms. Strasser shall provide the Committee with proof of compliance with such plan in accordance with its terms for a period of time not to exceed one year from the enactment of the plan. At the completion the term, Ms. Strasser may apply to this Court for unconditional admission to the practice of law in Kentucky.

LAMBERT, C.J., and JOHNSTONE, KELLER, and SCOTT, JJ., concur.

WINTERSHEIMER, J., dissents by separate opinion in which COOPER and GRAVES, JJ., join.

ENTERED: April 21, 2005.

/s/ Joseph E. Lambert

Chief Justice

WINTERSHEIMER, Justice,

dissenting.

I must respectfully dissent from the majority opinion that conditionally admits the movant to the practice of law in Kentucky because the Character and Fitness Committee has thoroughly considered all the evidence in this matter and correctly concluded that she has not met her burden of proof to establish fitness to practice law.

This Court has plenary and exclusive authority to regulate the practice of law in the Commonwealth of Kentucky. This power brings the responsibility of safeguarding the public interest from admitting lawyers to the practice of law that possess insufficient character and fitness. Furthermore, “[d]ue to the vital social interests at stake, any doubts as to a petitioner’s fitness to practice [law] should be resolved in favor of the public and the court.” In re Olkon, 605 F.Supp. 784 (D.Minn.1985), citing, In re Issennan, 345 U.S. 286, 289, 73 S.Ct. 676, 677, 97 L.Ed. 1013 (1953); In re G.L.S., 586 F.Supp. 375, 379 (D.Md.), affd, 745 F.2d 856 (4th Cir. 1984). A majority of the Character and Fitness Committee has expressed serious doubts as to the fitness of the movant to practice law at this time.

The purpose of Character and Fitness screening is to protect the public trust and safeguard the administration of justice. SCR 2.011(1) states in pertinent part, “The purpose of requiring an applicant to possess good moral character is to exclude from the practice of law those persons possessing character traits that are likely to result in injury to future clients, in the obstruction of the administration of justice, or in a violation of the Code of Professional Responsibility.” SCR 2.011(2) states in pertinent part, “Fitness is the assessment of mental and emotional health as it affects the competence of a prospective lawyer. The purpose of requiring an applicant to possess this fitness is to exclude from the practice of law any person having a mental or emotional illness or condition which would be likely to prevent the person from carrying out duties to clients, Courts or the profession.”

Our requirements are not unique among the other states. See, e.g., In re Singer, 819 So.2d 1017 (La.2002) (“The primary purpose of character and fitness screening is to assure the protection of the public and to safeguard the administration of justice.”); In re Silva, 266 Neb. 419, 665 N.W.2d 592 (2003) (“The primary purposes of character and fitness screening before admission to the bar of Nebraska are to assure the protection of the public and to safeguard the justice system [... ] The public interest requires that the public be secure in its expectation that those who are admitted to the bar are worthy of the trust and confidence clients may reasonably place in their attorneys.”); In re Litt-lejohn, 261 Wis.2d 183, 661 N.W.2d 42 (2003); In re Dortch, 199 W.Va. 571, 486 S.E.2d 311 (1997); In re Lane, 249 Neb. 499, 544 N.W.2d 367 (1996); In re Prager, 422 Mass. 86, 661 N.E.2d 84 (1996); Clark v. Virginia Bd. of Bar Examiners, 880 F.Supp. 430, 63 USLW 2546 (E.D.Va. 1995). This list is only representative.

This Court is therefore charged with responsibility to the public for those who we allow to be their counselors and advocates before the Court. This responsibility extends primarily to our own citizens, but a weakness here ripples out into society and affects the view of the general public of the legal profession.

This is the second time that this Court and the Character and Fitness Committee have reviewed the eligibility of the movant-to be admitted as a lawyer in Kentucky. As the process continues, new adverse information keeps appearing about the mov-ant which reflects a lack of candor with the Committee and the Court. Moreover, some of the adverse information led a majority of the Character and Fitness Committee to conclude that she has failed to demonstrate that she benefited from counseling to address problems of both her remote and recent past.

Initially, the movant appealed an adverse determination by the Character and Fitness Committee.. At that time, the Committee had based its decision on evidence regarding movant’s participation in an escort service and her lack of candor in disclosing this information to law schools and to the Committee. By a 5 to 1 vote, this Court rejected the recommendation of the Committee and ordered that her application to the Kentucky Bar Association be granted and that her examination grades be released. She failed the multi-state portion of the examination and was thus denied admission on that ground.

The movant reapplied for admission on May 13, 2003, and in July 2003, successfully passed the multi-state examination under written waiver that specified that her score would not be released until she was certified as to character and fitness. The Committee conducted additional investigations into her background since March 20, 2003, as well as one additional hearing. Its recommendation to deny admission was made only after very careful consideration of all the evidence presented during the initial investigation and the evidence obtained subsequently during the second investigation.

This second investigation revealed new adverse evidence that showed movant had been untruthful a number of times during the period from 1999 to 2003 regarding an incident of falling or being pushed down the steps of a house trailer.

On the night of the fall, the movant had called Indiana police and filed a complaint stating that her boyfriend pushed her down the stairs. However, her description of the event changed when she sought insurance recovery.

In her deposition filed in an Indiana civil case seeking recovery from a homeowner’s insurance company, the movant alleged her damages were caused by falling from the steps as she walked to her vehicle. Upon questioning, she described in great detail that she traveled to the mobile home shared by her boyfriend and another man in order to tell her boyfriend that she was pregnant. She testified that she turned to leave and fell down the rickety steps. She had called police to report the incident, but testified in the civil case, “I lied and told them that Bryan pushed me.” She testified that she lied because she was upset and angry.

Among the other problems presented by the evidence are a failure to make complete disclosure in a timely manner, and a pattern of omitting various significant details from her applications to law schools and to be admitted to the bar. Her first law school application admitted having been charged with a DUI in 1996, but she disavowed any other violations. Later, she filed an amendment to her application stating that she had been arrested for failure to appear for a traffic court violation. Subsequently, she applied for admission to another law school in 1999 and acknowledged a DUI charge and again affirmatively stated that she had not been charged with any other violations. In yet another application to be a legal intern, she disclosed the DUI charge and stated that in 1990 she was arrested for being a runaway. Finally, in her application for admission to the Kentucky Bar, she again disclosed the 1996 DUI and also that she had been arrested and cited for a misdemeanor charge of prostitution that was dismissed without prejudice after her admission that probable cause existed for the arrest. While she consistently disclosed the DUI charge, no application mentioned above contains a full disclosure of facts.

On two separate occasions, the Committee requested further information about the prostitution charge but she refused to provide an explanation other than to say the record was being expunged. Later, she admitted that she had been involved in an escort service.

On her bar application, she stated that she had not been a party to any civil proceeding. Two months later, she filed the civil lawsuit mentioned above against her former boyfriend and others for damages from the fall. Although she became a plaintiff against the insurance company, she did not amend her application to include this information.

In her reapplication, she disclosed information regarding a criminal complaint made against her by a former boyfriend, as well as information regarding a civil complaint in Jefferson Circuit Court. This reapplication did not disclose any information about the civil lawsuit in Indiana.

There was also testimony from the mov-ant regarding her consumption of large amounts of alcohol.

Based on all this evidence, the Committee concluded that she continued to engage in dishonest conduct and that she was not truthful in answering the questions on her reapplication. The Committee noted that her lack of candor was not limited to her answers on her reapplication, but that she did not disclose the civil litigation in her prior character and fitness determination as required. She was also not truthful in her deposition in her civil and criminal cases. It also noted that the failure to be truthful continued as a pattern when she failed to disclose her full record of legal problems relating to the escort service and her activities therein on her law school applications.

The Committee concluded that she did not meet the burden of proof to establish that she possesses the good moral character necessary to be admitted to the Kentucky Bar. The evidence presented here shows that doubts persist as to her present character and fitness to practice law. These doubts should be construed in favor of the public and the courts and her application denied. Isserman, supra.

The admission system in Kentucky has been more than accommodating regarding those applicants who are challenged by physical, mental, medical, emotional, and ethical disabilities. The major responsibility of the applicant is to be forthcoming and truthful in providing answers to the Committee’s requests. It is our responsibility to maintain the public trust in the legal profession by closely guarding admission from those exhibiting serious doubts as to their candor with the courts.

Our Commonwealth enjoys comity and reciprocity with members of the legal profession of other states. Among these states, members of their bar associations may enter the practice of law in Kentucky without examination and vice versa. See, e.g., SCR 2.110. Admission to the practice of law must be kept to a standard of character and fitness lest we become suspect as to reciprocity with other states or in the eyes of the public, which relies on us to safeguard the legal profession. What follows are some of the cases other states have decided on similar facts.

Omissions on applications tend to reflect poorly on character and fitness. “Evidence of false statements, including material omissions, and lack of candor in the admissions process reflect poorly on an applicant’s present character, fitness, and moral qualifications.” In re Bagne, 102 Ohio St.3d 182, 808 N.E.2d 372 (2004) citing In re Panepinto, 84 Ohio St.3d 397, 704 N.E.2d 564 (1999); In re Cvammen, 102 Ohio St.3d 13, 806 N.E.2d 498 (2004). Even one incomplete answer can lead to the disapproval of an admission application if the applicant does not fully and honestly explain when the opportunity arises. See, e.g., In re Irelandr-Phillips, 71 Ohio St.3d 609, 646 N.E.2d 453 (1995).

In Bagne, supra, the applicant failed to disclose fully the details of an incident between himself and a jogger 11 years prior to bar application where the jogger had been injured. The Board determined he had committed a crime and that he had provided incomplete facts and false statements to law enforcement and the Michigan Bar previously. It accordingly denied his application; noting that the Michigan Bar had done so previously. It did allow him to reapply on recommendation of the Character and Fitness committee.

In Cvammen, supra, the Ohio Supreme Court held that false and incomplete answers in a bar application and an interview to take the bar examination, and continued attempts to avoid truth, established lack of integrity for admission to practice law on a permanent basis. That applicant had not fully and truthfully answered questions about the circumstances surrounding his forced resignation from employment with a real estate company. It held that “A hearing to determine character and fitness should be more of a mutual inquiry for the purpose of acquainting this court with the applicant’s innermost feelings and personal views on those aspects of morality, attention to duty, forthrightness and self-restraint which are usually associated with the accepted definition of ‘good moral character.’ ” 806 N.E.2d at 501 citing In re Davis, 38 Ohio St.2d 273, 67 0.0.2d 344, 313 N.E.2d 363 (1974). Cvammen was effectively permanently disbarred prior to ever being admitted to sit for the bar exam.

Integrity, truthfulness, candor and sobriety should be the hallmarks of the legal profession. This Court, in reviewing the report of the Committee, should not substitute its own conclusions for those of the Committee except where they are clearly erroneous. That is not the case in this situation.

Certainly, it would be hoped that a candidate for admission to the bar with a troubled background can be rehabilitated over time. It is only common sense that recovery from a long history of ethical, alcohol or other problems is rarely quick or easy. The potential for relapses is always present. It is difficult to see how effective rehabilitation could occur simultaneously with the establishment of a law practice that involves direct contact with clients for legal services.

Under all the circumstances, I must agree with the decision of the Committee that the movant has not established the necessary burden of proof. Thus, admission should be denied at this time.

COOPER and GRAVES, JJ., join this dissenting opinion.

      . SCR 2.060.

      . Under the conditional admittance, Ms. Strasser proposes to arrange to have her work and behavior supervised by a group of mentor attorneys. In addition, her fitness to practice law would be monitored by counselors who would see her on a regular basis concerning relationship and alcohol issues. Any violations would be reported to the KBA.

      . Ms. Strasser claims that by this Court’s Opinion and Order dated March 20, 2002, the Committee should be collaterally estopped from revisiting her participation in the escort business and her lack of candor on two law school applications. The basis of this request is because we stated in our opinion that Ms. Strasser had reformed her life and should be admitted to practice law.

      . SCR 2.011(2).

      . Her claim against the homeowner’s insurance company (Mr. Kessinger) alleged that she was injured as a result of faulty stairs and the failure of the homeowner to exercise due care.

      . She claims that at some time after filing the civil suit on April 9, 2001 against Mr. Kes-singer, her boyfriend had stated that he had pushed Ms. Strasser. Three years later Ms. Strasser was deposed on the issue. Although it is not clear, the Kessinger deposition must have shown to Ms. Strasser that she lied to' Washington County Police concerning who had pushed her. She claims that after she read the deposition (presumably of Mr. Kes-singer) she did not feel comfortable signing her deposition and decided to dismiss the lawsuit.


author: RUSSELL, J.

text:
    STATE of Missouri, Respondent, v. Brandy BURRELL, Appellant.
    No. SC86306.
    Supreme Court of Missouri, En Banc.
    April 26, 2005.

      T. Jefferson Stephens, Office of Public Defender, Maryville, Amy M. Bartholow, Office of Public Defender, Columbia, Mo., for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. General, Linda S. Lemke, Adriane D. Crouse, Asst. Attorneys General, Jefferson City, Mo., for respondent.
   RUSSELL, J.

Brandy Burrell (“Mother”) was convicted of one count of endangering the welfare of a child in the first degree in violation of section 568.045, RSMo 2000, and one count of murder in the second degree in violation of section 565.021. She appeals, arguing that there was insufficient evidence from which the trial court could have found her guilty of first-degree child endangerment and second-degree murder. After an opinion by the Court of Appeals, Western District, this Court granted transfer. Mo. Const, art. V, sec. 10. The judgment of the trial court is affirmed.

I. Pacts

Mother, her boyfriend, Isaiah Washington, Sr. (“Father”), and their two-year-old son, Isaiah Washington, Jr. (“Child”), drove in October 2001 from Mother’s home in Cameron, Missouri, to St. Joseph to visit Father’s mother (“Grandmother”). When they arrived at Grandmother’s house, Father began screaming and yelling at Child for saying a curse word. As they were going up the stairs, Father kicked Child hard enough to send him flying to the top of the stairway and into the dining room, landing on his stomach. He then kicked Child hard in the torso while he was lying on the ground. When Child attempted to rise, Father picked him up and slammed his face into the floor. He also put his foot on Child’s face. Mother watched all of this and said nothing.

Father’s brother (“Brother”) witnessed the events and asked Mother if she was going to intervene. After she did not respond, Brother confronted Father and told him to stop hitting Child. Father and Brother got into a fistfight, and Grandmother told them she was calling the police because she did not want her home damaged by the fight. Father immediately stopped the fight and told Mother to pick up Child so they could leave.

Mother, Father, and Child went to the house of Father’s aunt (“Aunt”). Aunt asked Mother about the large knot that had formed on Child’s forehead, and Mother responded that Child fell. Aunt told Mother that she should take Child to the hospital. Mother said that they would take him to the hospital when they arrived back in Cameron. They stayed at Aunt’s house for about twenty minutes and then returned to Mother’s house in Cameron.

After returning home, Mother tried to feed Child, but he would not eat. He drank some milk and went to sleep. A couple hours later, Father tried to wake Child. Child was unable to stand on his own, and his eyes rolled back. Father put Child down in the hall and slapped his face and kicked him in an attempt to wake him. After they were unable to revive him, Mother and Father took him to the emergency room. By then, his body was limp, and he had no pulse and was not breathing. Hospital personnel were unable to resuscitate him, and he was pronounced dead shortly after midnight. Mother and Father both told hospital personnel that Child had tripped and hit his head on a coffee table earlier in the day. Because Child had numerous new and old bruises on his body and injuries inconsistent with Mother’s story, hospital personnel contacted the police and medical examiner.

Mother told the police that Child had fallen around 3 p.m. at her home and hit his head on a coffee table. She stated that because she was concerned he might have a concussion, she had kept him awake until 8 or 9 p.m. The police received information that Brother informed the police that Father assaulted Child earlier that day at Grandmother’s house. When Mother was told about Brother’s statement, she did not reply and put her' head down on the table. She indicated that she would like an attorney present, and the interview ceased.

An autopsy of Child’s body revealed several injuries that were less than twenty-four hours old. The medical examiner noted external injuries to his forehead, left temple, right eyebrow, jaw, chin, lip, cheek, neck, chest, back, arms, left thigh, left ankle, groin, and an extensive portion of his right abdominal region. Internally, the medical examiner found bruises and blood on both of his lungs, fresh blood in his diaphragm and throughout his organs, hemorrhaging from the superior and inferior vena cava, hemorrhaging from his spleen, a tear in his colon, and injuries to his small bowel and tongue. The medical examiner also detected two bruises in the soft tissue under his scalp and blood underneath his skull. X-rays revealed several rib fractures, five of which had occurred within twenty-four hours. In addition, there were multiple tears in his liver, some several inches deep. At trial, the medical examiner testified that the cluster of injuries to his ribs, liver, and diaphragm were consistent with him being kicked. She determined that the cause of his death was internal bleeding from his injuries.

The medical examiner also found older, healing injuries to Child’s upper and lower back, upper arms, elbows, knees, thighs, ankles, ribs, and buttocks. She noted several of his external scars were inconsistent with ordinary childhood injuries or falls. The medical examiner also discovered internal scar tissue indicating previous liver injuries, including a healing hematoma on the right side of his liver and several older, healing rib fractures.

After Father was arrested in conjunction with Child’s death, Mother spoke with the police. She waived her Miranda rights and told a detective that Father had kicked Child “lightly in the butt” after he said a curse word and then placed him in the corner. She stated that Brother started a fight with Father, having taken offense to his discipline of Child. Mother claimed that after they returned to her house in Cameron, Child tripped over a piece of loose carpet and hit his head on a coffee table. When confronted with the fact that witnesses had reported seeing the bump on Child’s head earlier that day in St. Joseph and that the preliminary autopsy revealed that he died from internal injuries and not the head injury, Mother was unable to provide an explanation for the internal injuries.

Mother was subsequently arrested and gave a written statement in which she described Father’s attack on Child at Grandmother’s house. Mother indicated that Father had started hitting and choking her while she was pregnant with Child. She stated that she and Father had separated while she was in jail and undergoing drug treatment for possession of marijuana, but that she starting seeing him again after she was released a year later. She said that shortly thereafter Father started hitting her and “beating on [Child].” He would “whoop [Child] hard on his butt” and that “it got to where [he] would punch and kick [Child].” Mother claimed that she tried to stop Father from beating Child a few times, but he would beat her when she did. She indicated that she and Child lived with Father until he was arrested for possession of narcotics. After Father’s arrest, Mother’s probation officer told her that she could not continue to live with him. She stated that she continued seeing him after he moved out.

Mother was charged with one count of child endangerment in the first degree and one count of murder in the second degree. After waiving her right to a jury trial, her case was tried to the court, and she was found guilty of both charges. She was sentenced to concurrent terms of seven years imprisonment on the child endangerment count and life imprisonment on the murder count. She now appeals.

II. Standard of Review

Where a criminal defendant challenges the sufficiency of the evidence to support her conviction, this Court’s review is limited to determining whether sufficient evidence was admitted at trial from which a reasonable trier of fact could have found each element of the offense to have been established beyond a reasonable doubt. State v. Clay, 975 S.W.2d 121, 139 (Mo. banc 1998). This Court accepts as true all evidence favorable to the verdict and disregards all evidence and inferences to the contrary. State v. Grim, 854 S.W.2d 403, 405 (Mo. banc 1993).

III. Child Endangerment

Mother argues that there was insufficient evidence from which the trial court could have found her guilty of first-degree child endangerment. She asserts that the State failed to prove beyond a reasonable doubt that placing Child in contact with Father would result in an “actual” risk to his life, body, or health, or that she “knowingly” created that risk.

“A person commits the crime of endangering the welfare of a child in the first degree if ... [t]he person knowingly acts in a manner that creates a substantial risk to the life, body, or health of a child less than seventeen years old.” Sec. 568.045.

A person “acts knowingly”, or with knowledge,

(1) With respect to his conduct or to attendant circumstances when he is aware of the nature of his conduct or that those circumstances exist; or
(2) With respect to a result of his conduct when he is aware that his conduct is practically certain to cause that result.

Sec. 562.016.3.

Here, the charge for first-degree child endangerment filed by the State stated as follows:

[O]n or about ... October 26, 2001, in the County of Buchanan, State of Missouri, [Mother] knowingly acted in a manner that created a substantial risk to the life and body and health of [Child], a child less than seventeen years of age, by placing [Child] in direct contact with [Father] who [Mother] has previously seen physically abuse [Child] and by so doing [Mother] allowed [Child] to be assaulted by [Father].

Under section 568.045, there must be an actual, as opposed to a potential risk, to the life, body, or health of the child. State v. Hunter, 939 S.W.2d 542, 545 (Mo.App.1997); State v. Wilson, 920 S.W.2d 177, 180-81 (Mo.App.1996). This is a fact specific determination and requires an analysis of the facts in each case. See, e.g., State v. Riggs, 2 S.W.3d 867 (Mo.App.1999); Hunter, 939 S.W.2d 542; Wilson, 920 S.W.2d 177.

This Court finds that the State produced sufficient evidence from which a reasonable trier of fact could conclude that Mother’s act of placing Child in contact with Father on October 26 resulted in a substantial risk of harm to Child. Approximately a year before Child’s death, Father began physically abusing Child. At first, he would slap Child hard on his butt, but later it escalated to his punching and kicking Child. Mother tried to stop this abuse a few times, but Father would beat her when she did. The Division of Family Services (“DFS”) had been called three times regarding the abuse; however, there were never any charges brought against Father because the injuries of Child healed before two of the DFS visits.

Further, there was a risk to Child’s life, body, or health after Father severely abused Child while . at Grandmother’s house. Mother witnessed the entire incident and did not stop it or take steps to remove Child from Father. Mother’s actions in allowing Father to stay with them after this severe beating put Child in a situation where there was an actual risk of harm to him. That night, Father continued the abuse by slapping and kicking Child when he would not wake.

Mother also argues that the State failed to provide sufficient evidence that she “knowingly” created a substantial risk to the life, body, or health of Child by placing him in direct contact with Father. “There is no bright line test to determine whether or not a person’s actions knowingly create a substantial risk to the health of a child.” Hunter, 939 S.W,2d .at 545. In making this determination, this Court looks to the totality of the circumstances. Id. The State may prove a defendant’s knowledge by direct evidence and reasonable inferences drawn from the circumstances surrounding the incident. Riggs, 2 S.W.3d at 873.

This Court holds that there was sufficient evidence that Mother acted knowingly. Mother acted “knowingly” if she was “aware of the nature of [her] conduct or that [the attendant] circumstances exist[ed]” that created- a substantial risk to the life, body, or health of Child. See Sec. 562.016.3(2); Sec. 568.045. In her statement to the police, she admitted that Father’s abuse of Child had escalated to the point where he hit and kicked Child, and that when Father did this, Mother was unable to stop him on several occasions because he would then hit her. In addition, the medical examiner testified not only about Child’s injuries from that day, but also about Child’s older, healing injuries that were inconsistent with ordinary childhood injuries. Because Mother was Child’s primary care giver, it can be reasonably inferred that Mother knew that Child had pain in his stomach and chest when these older injuries occurred. Even Grandmother saw bruises on Child’s mouth, cheek, forehead, and lower back that concerned her. Mother told Grandmother that these injuries were attributable to normal childhood injuries. Further, Father’s abuse of Child was so severe that there were three investigations by DFS.

There was sufficient evidence to find Mother guilty of first-degree child endangerment.

IV. Second-Degree Murder

In her second point, Mother argues that there was insufficient evidence from which the trial court could have found her guilty of second-degree murder because the actions of Father were an independent, intervening cause of Child’s death. She further argues that Child’s death was not a direct, natural, or reasonably foreseeable consequence of her actions in allowing him to have contact with Father.

A person is guilty of second-degree murder if she commits any felony and, in the perpetration of that felony, another person is killed as a result of the perpetration of that felony. Sec. 565.021.1(2). Under Missouri law, a defendant is responsible for any deaths that are the natural and proximate result of the commission of the felony. State v. Black, 50 S.W.3d 778, 785 (Mo. banc 2001); State v. Blunt, 863 S.W.2d 370, 371 (Mo.App. 1993). An independent, intervening cause, however, can relieve a defendant from criminal responsibility for the death. State v. Baker, 607 S.W.2d 153, 156 (Mo. banc 1980).

There was sufficient evidence to find that Mother committed the class D felony of first-degree child endangerment, and in perpetrating that felony Child was killed as a result of the perpetration of that felony. As previously noted, Mother placed Child in contact with Father on October 26. After witnessing Father’s abuse of Child at Grandmother’s house, Mother allowed Father to stay with her and Child for the rest of that day. Mother did not seek medical attention for Child although urged to do so. Father continued to abuse Child after they returned to Mother’s house.

The evidence establishes the continuing abuse to Child and the clear causal relation between Mother’s conduct in placing Child in contact with Father, refusing to seek timely medical attention, and the death of Child. Father’s actions in abusing Child were not an independent, intervening cause of Child’s death that would relieve Mother of criminal responsibility. Child’s death was the foreseeable result of Mother’s actions. Under these circumstances, there was sufficient evidence to find Mother guilty of second-degree murder.

V. Conclusion

The judgment of the trial court is affirmed.

All concur.

      . All references are to RSMo 2000 unless otherwise indicated.


author: PATRICIA BRECKENRIDGE, Judge.

text:
    SHIRLEY’S REALTY, INC., Plaintiff, v. Adrian HUNT and Cynthia Hunt, Appellants, Richard Riley, Respondent, Dale Owens, Individually, and A+ Realty, Inc., Defendants.
    No. WD 63583.
    Missouri Court of Appeals, Western District.
    April 26, 2005.

      Martin M. Bauman, St. Joseph, MO, for appellants.
    Beverly Jones, Tarkio, W. Douglas Thomson, Maryville, Brian M. Bartalos, Kansas City, MO, for respondents.
    Before HOLLIGER, P.J., BRECKENRIDGE and ELLIS, JJ.
   PATRICIA BRECKENRIDGE, Judge.

Adrian Hunt and Cynthia Hunt appeal the trial court’s grant of summary judgment in favor of Richard Riley on the Hunts’ petition for breach of contract. On appeal, the Hunts argue that the trial court incorrectly measured damages in determining that they suffered no damages. The Hunts further argue that the trial court erred in failing to find that they suffered special damages. Additionally, Mr. Riley requests attorney’s fees on appeal. This court finds that, although the undisputed evidence establishes that the Hunts are not entitled to actual damages, a genuine issue of material fact remains as to whether they are entitled to nominal damages. Therefore, summary judgment in favor of Mr. Riley is reversed, and the cause is remanded. Additionally, because Mr. Riley has failed to demonstrate that he is entitled to attorney’s fees under the contract, his motion for attorney’s fees on appeal is denied.

Factual and Procedural Background

When reviewing summary judgments, this court reviews the record, and any reasonable inferences from the record, “in the light most favorable to the party against whom judgment was entered.” ITT Commercial Fin. Corp. v. Mid-Am. Mamie Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). On June 6, 2000, the Hunts contracted with Mr. Riley to sell their business real estate property to him. Under the terms of the contract, Mr. Riley agreed to pay $125,000 for the property. Mr. Riley delivered $5000 in earnest money to Shirley’s Realty, who was the Hunts’ real estate agent. The contract required that the sale was to close on or before July 1, 2000, at which time the Hunts would receive the remaining $120,000, less real estate closing costs and adjustments.

Mr. Riley did not close on the real property on or before July 1, 2000. The Hunts attempted to find another buyer for the property after Mr. Riley failed to perform, but their mortgage holder foreclosed on the property before the Hunts could find another buyer. The property was sold at a foreclosure sale on August 2, 2000, for $84,000.

On July 28, 2000, Shirley’s Realty filed a petition for interpleader, in which it sought disposition of the $5000 in earnest money Mr. Riley had deposited. The trial court subsequently discharged Shirley Realty from any liability with respect to the $5000 in earnest money. The Hunts and Mr. Riley were enjoined from proceeding any further against Shirley’s Realty in connection with the real estate transaction.

On January 9, 2001, the Hunts filed a first amended cross-petition for breach of contract against Mr. Riley. In the cross-petition, the Hunts alleged that Mr. Riley failed to perform under the contract, and his non-performance caused them to suffer damages in the amount of $42,000. In turn, Mr. Riley filed a third-party petition against Dale Owens and A+ Realty, alleging claims of breach of contract, negligence, and breach of fiduciary duty. Dale Owens and A+ Realty filed a motion for partial summary judgment on the basis that the Hunts had no valid breach of contract claim against Mr. Riley and, therefore, Mr. Riley had no valid claim against Dale Owens and A+ Realty. On October 3, 2002, the trial court granted Dale Owens and A+ Realty’s motion for partial summary judgment.

On October 15, 2002, Mr. Riley filed a motion for summary judgment on the Hunts’ breach of contract claim against him. In his motion, he alleged that he was entitled to judgment as a matter of law because, in an action for breach of a real estate contract, the seller’s measure of damages is the difference between the contract price and the market value of the property on the date the contract was to be performed. In his statement of undisputed facts, Mr. Riley alleged that the Hunts admitted that the $42,000 damages they were seeking represented the equity they had in the property, not the difference in the contract price and the fair market value on the date the contract was to be performed. Additionally, Mr. Riley alleged that the Hunts admitted that the fair market value of the property on the date the contract was to be performed was $125,000, which was the same as the contract price. Thus, since the evidence conclusively showed that the fair market value on the date the contract was to be performed was the same as the contract price, Mr. Riley contended that the Hunts had suffered no damages.

In their response to Mr. Riley’s motion for summary judgment, the Hunts admitted all of Mr. Riley’s undisputed facts. In addition, the Hunts offered Ms. Hunt’s affidavit. In her affidavit, Ms. Hunt alleged that she and her husband had performed all of their obligations under the contract, but Mr. Riley did not perform his obligations. After Mr. Riley failed to perform, the Hunts did not have the opportunity to market the property to obtain a price different than that obtained at the foreclosure sale. Ms. Hunt alleged that, because of Mr. Riley’s nonperformance of the contract, the property was sold at the foreclosure sale for $84,000. According to Ms. Hunt, Mr. Riley’s nonperformance caused the Hunts to suffer damages in the amount of $39,104.39, less the funds held by the court. The $39,104.39 represents the difference between the contract price of $125,000 and the total amount, including the purchase price and a distribution after expenses, the Hunts received at the foreclosure sale, which was $85,895.61.

On November 19, 2002, the trial court granted Mr. Riley’s motion for summary judgment against the Hunts. The Hunts filed this appeal.

Standard of Review

Appellate review of a summary judgment is de novo. ITT, 854 S.W.2d at 376. This court’s criteria for ascertaining the propriety of summary judgment are the same as those that a trial court uses initially. Id. This court does not defer to the trial court’s order granting summary judgment because the trial court’s initial judgment is based on the record submitted and amounts to a decision on a question of law. Id. Summary judgment is appropriate where the moving party establishes that no genuine issue of material fact exists and the party has a right to judgment as a matter of law. Id. at 378.

For movants who are the defending parties in a lawsuit, the prima facie showing required by Rule 74.04 is “necessarily different.” Id. at 381. A defending party may establish a right to judgment, as a matter of law, by showing:

(1) facts that negate any one of the claimant’s elements facts, (2) that the non-movant, after an adequate period of discovery, has not been able to produce, and will not be able to produce, evidence sufficient to allow the trier of fact to find the existence of any one of the claimant’s elements, or (3) that there is no genuine dispute as to the existence of each of the facts necessary to support the movant’s properly-pleaded affirmative defense.

Id.

Genuine Issue of Material Fact Remains

In their first point, the Hunts argue that the trial court incorrectly measured damages and, therefore, erred in determining that they would not be able to prove damages on their breach of contract claim. “To make a claim for breach of contract, ‘the plaintiff must show the existence of a contract or agreement and the terms of that agreement, that the plaintiff performed or tendered performance, that the defendant did not perform, and that the plaintiff was thereby damaged.’ ” Western Sur. Co. v. Intrust Bank, N.A., 20 S.W.3d 566, 571 (Mo.App.2000) (citation omitted). Where, as in this case, “the seller of real estate brings suit for breach of contract against the buyer, the appropriate measure of damages is the difference between the contract price and the market value of the property on the date the sale should have been completed.” Gilmartin Bros., Inc. v. Kern, 916 S.W.2d 324, 332 (Mo.App.1995).

The parties agree that the contract price of the property was $125,000. And, the Hunts admit that the fair market value of the property on July 1, 2000, the date the sale should have been completed, was at least $125,000. Nevertheless, the Hunts argue that, in determining the “true measure of damages,” the trial court should have considered that the property was sold at a foreclosure sale one month later. The Hunts contend that the trial court should have found that the fair market value of the land was either $84,000, which was the amount of the winning bid at the foreclosure sale, or $85,895.61, which was the amount of the net proceeds of the foreclosure sale.

The conditions of a foreclosure sale are not conducive to achieving a price that reflects the fair market value of property. See Smith v. Snodgrass, 747 S.W.2d 743, 747 (Mo.App.1988). This is because “[flair market Value is the price at which the property could be sold by a willing seller to a buyer who is under no compulsion to buy.” Wasson v. Schubert, 964 S.W.2d 520, 526 (Mo.App.1998). “It is well known that property, when sold at a forced sale, usually does not bring its full value. Such sales have the potential of bringing only a fraction of the fair market value.” Snodgrass, 747 S.W.2d at 747 (citation omitted). The Hunts were not willing sellers at the foreclosure sale. Indeed, in their response to the motion for summary judgment, the Hunts state that they were “forced into a foreclosure sale.” Because the price obtained at the foreclosure sale was not persuasive evidence of the property’s fair market value, the trial court did not err in failing to rely on it in determining actual damages.

The only evidence of the property’s fair market value at the time the contract was to be performed was the Hunts’ admission that the fair market value on July 1, 2000, was $125,000. Since there is no difference between this price and the contract price, the Hunts’ actual damages are zero. See Gilmartin Bros., 916 S.W.2d at 332. That the Hunts may be unable to prove actual damages, however, does not constitute a negation of the element of damages on their breach of contract claim. See Hanna v. Darr, 154 S.W.3d 2, 5 (Mo.App.2004). In Missouri, “[n]ominal damages are available where a contract and its breach are established.” Dierkes v. Blue Cross & Blue Shield of Mo., 991 S.W.2d 662, 669 (Mo. banc 1999) (citing Wasson, 964 S.W.2d at 526). Nominal damages are available upon proof of the contract and its breach, regardless of whether actual damages have been proven. Hanna, 154 S.W.3d at 5 n. 2. See also Wasson, 964 S.W.2d at 526.

Although the record on summary judgment indicates that the parties agree that a contract was formed, the parties do not agree on which party breached the contract. The record indicates that Mr. Riley asserted a claim that the Hunts breached the contract. The evidence in the summary judgment record, viewed in the light most favorable to the Hunts, however, shows that Mr. Riley breached the contract. Thus, a genuine issue of material fact remains as to the element of contract breach — an element which, if the Hunts proved, would permit them to recover at least nominal damages. Mr. Riley has failed to establish that he is entitled to judgment as a matter of law on the Hunts’ breach of contract claim. Summary judgment in favor of Mr. Riley is reversed, and the cause is remanded.

In the Hunts’ second point, they claim that the trial court erred in failing to consider special damages in determining whether they suffered damages. “Special damages are ‘the natural but not necessary result of the wrongful act.’ ” Brown v. Mercantile Bank of Poplar Bluff, 820 S.W.2d 327, 338 (Mo.App.1991) (citing Parsons Constr. Co. v. Mo. Pub. Serv. Co., 425 S.W.2d 166, 173 (Mo.1968)). Special damages “ ‘result from the act by reason of the special circumstances of the case.’ ” Id. (citation omitted).

The Hunts claim that the loss they incurred by selling their property at a foreclosure sale is an item of special damages they should be entitled to recover. Because of this court’s disposition of the Hunts’ first point, this court need not decide whether the Hunts are entitled to claim the foreclosure sale loss as an item of special damages. This court does note, however, that the Hunts did not specifically plead this as an item of special damages in their first amended cross-petition. Rule 55.19 requires that items claimed as special damages be specifically pled. A plaintiff in a breach of contract case can recover special damages “if those special damages have been pleaded and made known to the person who breaches the contract.” Allen v. Foster, 668 S.W.2d 277, 280 (Mo.App.1984). This is an issue that can be addressed on remand.

No Basis to Award Attorney’s Fees on Appeal

Mr. Riley requests an award of his attorney’s fees on appeal pursuant to Western District Special Rule XXIX. Special Rule XXIX provides, in pertinent part, that “[a]ny party claiming an amount due for attorney’s fees on appeal pursuant to contract, statute or otherwise and which this Court has jurisdiction to consider, must file a separate written motion before submission of the cause.” In his written motion to this court, filed before the case was submitted, Mr. Riley asserts that he is entitled to attorney’s fees on appeal under Article 18 of the contract, which is titled, “Default and Remedies.” The specific provision on which Mr. Riley relies reads, in pertinent part:

If this Contract does not incorporate mandatory and binding arbitration or if a binding agreement for arbitration of disputes addendum is not subsequently entered into by the parties, and, as a result of default under this Contract, either Seller or Buyer employs an attorney to enforce its rights, the defaulting party shall, unless prohibited by law, reimburse the nondefaulting party for any expenses in connection with this transaction and for reasonable attorney’s fees, court costs, and legal expenses incurred by the nondefaulting party in connection with this transaction and the default.

A prerequisite to awarding legal fees to Mr. Riley under this provision is a determination that the party from whom the attorney’s fees are sought, the Hunts, defaulted on the contract. As this court has already found, a genuine issue of material fact remains as to which party breached the contract. Without a determination that the Hunts defaulted by breaching the contract, this court has no basis on which to award Mr. Riley attorney’s fees. Therefore, his request for attorney’s fees on appeal is denied.

The summary judgment is reversed, and the cause is remanded to the trial court for further proceedings consistent with this opinion.

All concur.

      . The record indicates that, in his answer to the Hunts’ first amended petition for breach of contract, Mr. Riley included a cross-petition against the Hunts for breach of contract. This cross-petition was not made part of the record on appeal. After the court granted Mr. Riley’s summary judgment motion on the Hunts’ breach of contract claim against him, Mr. Riley moved to dismiss, without prejudice, his breach of contract claim against the Hunts. The court granted the motion.

      . Although the trial court did not state its reason for granting summary judgment in favor of Mr. Riley, this court will presume it was on the basis stated in Mr. Riley’s motion. Cent. Mo. Elec. Coop. v. Balks, 119 S.W.3d 627, 635 (Mo.App.2003). The sole basis for summary judgment asserted in Mr. Riley’s motion was that the evidence conclusively established that the Hunts had suffered no damages.

      . In addition to admitting this fact in their brief on appeal, the Hunts admitted it in their response to Mr. Riley’s motion for summary judgment. The Hunts also admitted it by failing to respond to Dale Owens and A + Realty’s request for admissions, in which the Hunts were asked to admit or deny that the fair market value of the property on July 1, 2000, was at least $125,000. Rule 59.01(a).