author: Opinion by Justice WRIGHT.

text:
    FIDELITY AND DEPOSIT INSURANCE as Subrogee of Optimum Re Insurance Company and Optimum Re Insurance Company, Appellants, v. SWAN ROOFING, L.L.C., Appellee.
    No. 05-04-00434-CV.
    Court of Appeals of Texas, Dallas.
    July 15, 2005.

      James Paul Acosta, and N. Scott Carpenter, The Carpenter Law Firm, P.C., Plano, for Appellant.
    Daniel G. Altman, Shrull & Altman, Fort Worth, for Appellee.
    Before Justices WRIGHT, RICHTER, and MAZZANT.
   OPINION

Opinion by Justice WRIGHT.

Fidelity and Deposit Insurance, as sub-rogee, and Optimum Re Insurance Company appeal the take-nothing summary judgment granted in favor of Swan Roofing, L.L.C. Appellants sued Swan for negligence, breach of contract, and breach of express and implied warranties regarding a roof repair to a commercial building. In a single issue, appellants maintain certain fact issues regarding proximate cause preclude summary judgment. We overrule appellants’ sole issue and affirm the trial court’s judgment.

Background

In July 2001, Swan and a plumbing company were hired to install and reseal five roof drains to alleviate water collection on the roof of the Optimum building. Swan cut holes into the roof and clamped the drains in place, then resealed the area around the drain.

Robert Thomas, an Optimum employee who discovered significant flooding in the Optimum building, testified regarding his observations that the water was coming from the women’s restroom on the second floor. Thomas entered the restroom and saw a soaked ceiling tile clogging the sink drain, allowing running water to overflow. It appeared the tile had fallen from the ceiling directly into the sink, “kicking” the faucet on, and causing extensive water damage throughout the office building.

Appellants sued for negligence, breach of contract, and breach of warranty, contending that Swan’s acts or omissions were the proximate cause of damages to the Optimum building. Thereafter, Swan filed both a traditional and no-evidence motion for summary judgment asserting the damages were so remotely connected there was no evidence to constitute causation, an element common to all three claims. The trial court granted Swan’s motion for summary judgment and ordered appellants take nothing. This appeal followed.

Discussion

Swan’s motion for summary judgment rested on both traditional and no-evidence grounds. A traditional motion for summary judgment requires Swan to show that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985). A no-evidence summary judgment requires that appellants present sufficient evidence to raise a genuine issue of fact on each challenged element of three claims. Tex.R. Crv. P. 166a(i); see Gen. Mills Rest. v. Tex. Wings, Inc., 12 S.W.3d 827, 832-33 (Tex.App.-Dallas 2000, no pet.); Espalin v. Children’s Med. Ctr. of Dallas, 21 S.W.3d 675, 682-83 (Tex.App.-Dallas 2000, no pet.). Because the trial court granted the motion for summary judgment without specifying whether it was granting the no-evidence or the traditional motion, appellants must establish that each of the grounds asserted in the motion is insufficient to support the judgment. Jones v. Hyman, 107 S.W.3d 830, 832 (Tex.App.-Dallas 2003, no pet.).

Appellants’ brief does not appear to address the traditional summary judgment portion of Swan’s summary judgment motion. Appellants have set forth no issue, argument, or discussion challenging the traditional portion of the summary judgment motion; thus, they have not met their appellate burden to establish the trial court’s judgment was erroneous. Because summary judgment may have been granted on the unchallenged traditional portion of Swan’s motion, we must affirm the trial court’s judgment. See Holloway v. Starnes, 840 S.W.2d 14, 23 (Tex.App.-Dallas 1992, writ denied); King v. Tex. Employers’ Ins. Ass’n, 716 S.W.2d 181, 182-83 (Tex.App.-Fort Worth 1986, no writ); Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex.1970).

Moreover, even assuming we broadly construe appellants’ argument as attacking the traditional portion of the motion, we have reviewed the summary judgment record and reach the same conclusion. Swan moved for summary judgment on grounds that causation was negated as a matter of law. Swan relied on, among other things, Serge Goulet’s and Thomas’s testimony, to show causation was negated. In his deposition, Goulet testified that a “ceding tile in the ladies’ restroom on the second floor got soaked with water, fell down, hit the mirror at an angle, and then fell down on the faucet, turned on the faucet for the hot water and—then stayed in the sink, clogged the sink.” According to Goulet, when he looked to where the ceiling tile had been, he could see the roof drain. Thomas, the employee who discovered the flood, described the chain of events in a similar fashion. Thomas concluded that when the ceiling tile became soaked, it got heavy and fell into the sink. It fell directly on the faucet, a “pretty unusual circumstance” and turned the water on. A small piece of the ceiling tile broke off and clogged the drain. This evidence merely shows that Swan may have contributed to a condition by improperly installing the drains, but it does not show Swan’s failure to properly reseal the roof was the cause of extensive flooding in the building. Rather, the evidence shows the unlikely chain of events where the wet ceiling tile hit the mirror at an angle, turned on the faucet and clogged the drain, and the running faucet flooded the building. These particular circumstances are too remotely connected with Swan’s conduct in installing the drain to constitute legal cause. See IHS Cedars Treatment Ctr. v. Mason, 143 S.W.3d 794, 803 (Tex.2004); Union Pump Co. v. Allbritton, 898 S.W.2d 773, 776 (Tex.1995); Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 472 (Tex.1991). Thus, we conclude the trial court properly granted Swan’s motion for summary judgment. We overrule appellants’ sole issue.

Accordingly, we affirm the trial court’s judgment.

      . Appellants sued Swan and the plumbing company. After the plumbing company set-tied, it was dismissed from the case and is not a party to this appeal.


source: Caselaw Access Project

author: Opinion By Justice LANG-MIERS.

license: Public Domain

text:
    In the Interest of W.R.E., K.N.E., and B.A.C., Children.
    No. 05-04-00457-CV.
    Court of Appeals of Texas, Dallas.
    July 18, 2005.

      Timothy Ray Haney, Attorney At Law, and Joe Neal Smith, Sherman, TX, for Appellant.
    Stephan Love, Grayson County Attorney’s Office, Rainey Lynn McClung Webb, Sherman, TX, for Appellee.
    Joseph David Brown, County Attorney, Sherman, TX, for State.
    Before Justices WHITTINGTON, MOSELEY, and LANG-MIERS.
   OPINION

Opinion By Justice LANG-MIERS.

William Raymond Elrod II appeals the trial court’s judgment, following a jury trial, terminating his parental rights to his children W.R.E., K.N.E., and B.A.C. In four issues, he contends the evidence was legally and factually insufficient to support the trial court’s judgment. We affirm.

BACKGROUND

Elrod lived with Nancy Cruz for five years, and they had a son, W.R.E., and a daughter, K.N.E., together. Cruz had another daughter, I.C., whom Elrod treated as his own.

On October 2, 2002, Misty Wade Pryor, a Child Protective Services (“CPS”) employee, went to the parents’ home on a referral of physical neglect. Because she feared that the children had been left alone in the house when no one answered the door, she called a family services investigator with the police department. Before the investigator reached the home, Cruz came to the door and allowed Pryor inside. In the house, Pryor saw two-year-old W.R.E. lying in a crib with flies covering his mouth and could not tell whether he was breathing. Four-year-old I.C. was sitting in a toddler bed with a soiled blanket. One-year-old K.N.E. was also lying in a toddler bed. All three children were covered in fleas, lice, and scabies and were wearing soaked and soiled diapers. I.C.’s scalp was bleeding and raw, and she had blood under her fingernails.

Pryor and the investigator observed dirty sheets on some beds, and dirty clothes and a bowl of spilled cat food on the floor. They testified that the children’s room smelled strongly of cat feces. Pryor described the general condition of the house as “deplorable.” The investigator stated that the house was one of the five dirtiest he had seen in his twenty-seven years in law enforcement and that, due to the amount of animal feces present, he considered the condition of the house to be a danger to the physical health of the children. Pryor and the investigator testified that the children were nonresponsive and seemed unemotional.

Elrod was not present and it appeared that Cruz, who was pregnant at the time, was in charge of the children. However, Cruz referred Pryor to Elrod regarding questions about income and the children’s shot records.

Pryor removed the children from the home and took them to an emergency room for medical care. There, the children were given juice and cookies. W.R.E. ate quickly, became ill, and vomited juice and cat food.

Home Visits

About fourteen days after the children were removed, a court appointed special advocate went to the parents’ home. At that time, the house did not look as bad as it had in pictures she had seen from the day the children were removed, but was not clean. There was a strong urine odor in the house, cat feces on the carpet, and mouse droppings in the cabinet. A litter box and cat food were on the floor in the children’s room. The bathroom in the children’s room was dirty, and a roach was floating in the toilet. She later visited the parents at a different house and observed dirty dishes in the sink.

Melody Wheeler, an ongoing case worker for CPS, visited the parents in April of 2003 at a different house than the one from which the children were removed. She observed piles of trash everywhere in the house. She also testified that the house’s odor was so strong she could smell it from outside and had to take periodic breaks to breathe during her visit. She did not see signs of cats during this visit.

Children’s Development

Wheeler met with the children after they were removed from the home. When she first met them, they were all behind developmental^. W.R.E. could not stand, and I.C. was not potty trained, would not stand up for a diaper change, and had no facial expressions. Within a few months, she observed notable improvement in the children’s development.

A psychologist and development consultant testified that the children had significant developmental and behavioral delays and that they might be set back developmentally if sent back to an environment where they had been neglected. She also testified that the children’s pediatricians diagnosed I.C., W.R.E., and K.N.E. with failure to thrive.

I.C.’s foster mother testified that I.C. was nearly four years old and still wearing diapers when she came to live with her. She was like a zombie and did not show emotions, could not speak, and did not know how to drink from a cup or straw or to use utensils. She had scabies, lice and fleas in her hair, and a bleeding scalp, and was behind on her vaccinations.

W.R.E. and KN.E.’s first foster mother testified that the children were covered in body and head lice when they were placed with her. K.N.E. was fourteen months old and could not sit up on her own. Three-year-old W.R.E. could barely walk and talk. Neither child smiled. Their second foster mother stated that W.R.E. was like a zombie when he was placed with her, that he could not run well, and that he ate every meal as if it would be his last. She stated that both children had progressed significantly after being placed with her.

W.R.E.’s teacher testified that although he was delayed in speech, gross motor, and fine motor skills, he had progressed well since starting school.

Parents’ Progress

Wheeler met with the parents at a hearing held within two weeks of when the children were removed and again later to discuss their CPS service plan. At the hearing, both parents appeared lice-infested and had extremely strong and offensive body odor. Elrod told Wheeler that he believed he was a good parent and did not see the need for CPS to be involved. The parents’ hygiene was still a problem when they met to discuss the service plan. The parents were not granted visitation with the children because of the lice and body odor, which posed a risk to the children. Elrod obtained a report from the health department, stating that he was lice-free. When she met with Elrod for a third time, he was no longer living with Cruz, but still had extreme body odor.

The parents’ counselor testified that she did not see much progress in the parents. They did not follow through with her suggestions on housekeeping, life management; nutrition, and hygiene. She did not think it would be proper to send the children home with either parent.

The social worker who taught the parenting classes thought the children would be endangered if they were sent back to the home.

According to Wheeler, although the original plan was family reunification, CPS eventually decided to seek termination of both parents’ parental rights based on the results of the psychological evaluations, the counselor’s recommendation, and the lack of the parents’ participation in the parenting classes.

Elrod’s Testimony

Elrod testified that he had been at home on the morning the children were taken, but was at work when Pryor was there. He attempted to keep the house clean, but became discouraged because Cruz would not cooperate with his efforts. Although he did not know about the fleas, he attempted to treat the children’s lice, but could not get it under control. He admitted that he had problems with his hygiene and with housekeeping, but stated that he cleaned the house soon after the children were removed. He took primary responsibility for the children, and admitted he had not left the children in a clean environment. He testified that I.C. and W.R.E. could both walk and that K.N.E. could sit up on her own at the time they were removed from the home.

He separated from Cruz in order to get his children back. He testified that although she never physically harmed the children, he felt it necessary to separate from her because she did not clean the house. He also testified that he hired another counselor to assist him in preparing his home for the return of his children.

Testimony from Elrod’s Church

Elrod testified that he took his children to church four times a week. His pastor testified that Elrod brought the children to his church for the past four years and that the children seemed happy and well-adjusted. He said the children came to church clean. He and his wife were aware that the children had lice at one time and had attempted to help Cruz treat them. Nursery workers from the church testified that the children came to church clean and well-dressed and that they had no knowledge of a problem with lice.

B.A.C.

At the time the other children were removed from the home, Cruz was pregnant with B.A.C. The court appointed special advocate assigned to the parents testified that they obtained prenatal care while Cruz was pregnant. On February 4, 2003, B.A.C. was born at a hospital in Oklahoma. CPS took him directly from the hospital and brought him to Texas.

CASE PROCEDURE

The jury considered the parent-child relationship between Elrod and W.R.E., K.N.E., and B.A.C. It found by clear and convincing evidence that Elrod (1) knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endanger the physical or emotional well-being of the children; (2) engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangers the physical or emotional well-being of the children; (3) failed to support the children in accordance with his ability during a period of one year ending within six months of the date of the filing of the petition; and (4) failed to comply with the provisions of a court order necessary for Elrod to obtain the return of the children who have been in the permanent or temporary managing conservatorship of the Department of Protective and Regulatory Services for not less than nine months as a result of the children’s removal from the parent under Chapter 262 for the abuse or neglect of the children. Elrod contends that the evidence is legally and factually insufficient to support termination on any of these four grounds. The jury also found by clear and convincing evidence that the termination of the parent-child relationship between Elrod and the children was in the children’s best interest, but Elrod does not appeal this finding.

STANDARD OF REVIEW

Termination of parental rights is a drastic remedy and is of such weight and gravity that due process requires the petitioner to justify termination by clear and convincing evidence. Tex. Fam.Code Ann. § 161.206(a) (Vernon 2002); In re J.F.C., 96 S.W.3d 256, 263-64 (Tex.2002). The clear and convincing standard creates a higher burden to fulfill because of the severity and permanency of terminating the parent-child relationship. In re J.W., 152 S.W.3d 200, 204 (Tex.App.-Dallas, pet.denied). Accordingly, an appellate court must also have a higher standard when reviewing the legal and factual sufficiency of the evidence. In re J.F.C., 96 S.W.3d at 264-65; In re C.H., 89 S.W.3d 17, 26 (Tex.2002).

In reviewing the legal sufficiency of the evidence to support a termination finding, this court looks at all the evidence, in the light most favorable to the finding, to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true. In re J.F.C., 96 S.W.3d at 266. In doing so, we presume that the factfinder settled disputed facts in favor of the finding if a reasonable factfinder could do so. Id. As a corollary, we disregard all evidence that a reasonable factfinder could have disbelieved or found incredible. Id.

When reviewing the factual sufficiency of the evidence supporting a termination finding, we inquire as to whether all the evidence, both in support of and contrary to the trial court’s finding, is such that a factfinder could reasonably form a firm belief or conviction about the truth of the petitioner’s allegations. In re C.H., 89 S.W.3d at 27-29. Further, we consider whether the disputed evidence is such that a reasonable factfinder could not have reconciled that disputed evidence in favor of its finding. In re J.F.C., 96 S.W.3d at 266. If the disputed evidence is so significant that a factfinder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient. Id.

TERMINATION OF PARENTAL RIGHTS

Section 161.001 of the family code permits a court to order termination of parental rights if two elements are established by clear and convincing evidence. Tex. Fam.Code Ann. § 161.001 (Vernon 2002). First, the parent must have engaged in any one of the acts or omissions itemized in the first subsection of the statute. Id. § 161.001(1); In re J.W., 152 S.W.3d at 204-05. Second, termination of the parent-child relationship must be in the best interest of the child. § 161.001(2); In re J.W., 152 S.W.3d at 204-05.

In Elrod’s second issue, he contends that the evidence was legally and factually insufficient to support the allegation that he engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangered the physical or emotional well-being of the children. Under subsection 161.001(1)(E) of the family code, the court may terminate the parent-child relationship if it finds, by clear and convincing evidence, that the parent has engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child. § 161.001(1)(E).

“Endanger” means to expose to loss or injury; to jeopardize. In re M.C., 917 S.W.2d 268, 269 (Tex.1996). Although “endanger” means more than a threat of metaphysical injury or the possible ill effects of a less-than-ideal family environment, it is not necessary that the conduct be directed at the child or that the child actually suffers injury. Id. at 269. Rather, it is sufficient that the child is exposed to loss or injury. Texas Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex.1987).

Subsection (E) refers to the parent’s conduct, as evidenced not only by the parent’s acts, but also by the parent’s omissions or failures to act. In re J.W., 152 S.W.3d at 204. Texas courts look to what the parent did both before and after the child’s birth to determine whether a course of conduct endangering the child exists. Dupree v. Texas Dep’t of Protective and Regulatory Servs., 907 S.W.2d 81, 83-84 (Tex.App.-Dallas 1995, no writ). If the evidence shows a course of conduct which has the effect of endangering the emotional well-being of the child, a finding under subsection (E) is supportable. In re C.J.F., 134 S.W.3d 343, 352 (Tex.App.Amarillo 2003, no pet.).

ANALYSIS

Legal Sufficiency

After reviewing the evidence in the light most favorable to the finding, we conclude that a reasonable trier of fact could have formed a firm belief or conviction that Elrod engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangered the physical or emotional well-being of the children.

The jury heard evidence that Elrod allowed the children to live in extremely unsanitary conditions. Elrod testified that he had the primary responsibility for the children’s care. He left I.C., W.R.E., and K.N.E. with Cruz although he was aware of her unwillingness or inability to keep the house sanitary. When the children were removed, they were all covered with lice, scabies, and fleas, and one child was covered with flies. They were wearing soaked or soiled diapers. Later, at the emergency room, W.R.E. threw up cat food. The children were nonresponsive, developmentally and behaviorally delayed, and diagnosed with failure to thrive. El-rod himself admitted that the children should not have been living in such a condition. Even after the children were removed, Elrod continued to live in filthy conditions and to have poor personal hygiene.

By allowing W.R.E. and K.N.E. to live in such unsanitary conditions, Elrod endangered their health and physical well-being. See In re M.C., 917 S.W.2d at 270; see In re K.M.B., 91 S.W.3d 18, 24 (Tex.App.-Fort Worth 2002, no pet.). The evidence of Elrod’s continued neglect to provide a clean and safe home environment for W.R.E. and K.N.E. and of his poor hygiene and unsanitary living conditions even after B.A.C. was born and removed from the hospital support a finding he also engaged in conduct endangering B.A.C.’s physical and emotional well-being. See In re C.J.F., 134 S.W.3d at 348(stating that if a parent abuses or neglects the other parent or children, that conduct can be used to support a finding of endangerment even against a child who was not yet born at the time of the conduct); Navarrette v. Texas Dep’t of Human Res., 669 S.W.2d 849, 852 (Tex.App.-El Paso 1984, no writ) (allowing termination of parent-child relationship between mother and baby where mother lived in and allowed other children to live in unsanitary conditions while she was pregnant). Therefore, we conclude the evidence was legally sufficient under subsection (E) to support the termination of El-rod’s parental rights toward W.R.E., K.N.E., and B.A.C.

Factual Sufficiency

We also conclude that all the evidence, both in support of and contrary to the jury’s finding is such that a factfinder could reasonably form a firm belief or conviction about the truth of the petitioner’s allegations. Elrod argues that he was not home when the children were removed and that it appeared to Pryor that Cruz was the primary caretaker of the children. However, Elrod testified to his own responsibility for the children’s well-being. Elrod testified that he tried to keep the house clean before the children were removed, but that he gave up when Cruz would not cooperate in his efforts. Elrod testified that he cleaned the house soon after the children were removed, but the court appointed special advocate stated that the house was still filthy when she visited about fourteen days after the children were removed. Elrod obtained prenatal care for B.A.C., but did not remedy his unsanitary living conditions. His counselor testified that he and Cruz did not follow through with her suggestions on housekeeping, life management, and hygiene. Nursery workers from Elrod’s church testified that they did not know the children had problems with lice, but the CPS workers and the children’s foster parents testified that the children were covered with lice, fleas, and scabies when they were removed. Elrod testified that I.C. and W.R.E. could stand and that K.N.E. could sit up on her own when they were living with him, but the CPS workers and the children’s foster parents testified that they could not. Elrod obtained a certificate from the health department that he was lice-free, but there was also testimony that his personal hygiene did not improve.

Although there were some conflicts in the testimony, we will not substitute our judgment for that of the jury’s. Golden Eagle Archery, Inc., v. Jackson, 116 S.W.3d 757, 761 (Tex.2003) (“[T]he jury is the sole judge of the credibility of witnesses and the weight to be given their testimony.”). Viewing all the evidence in a neutral light, both in favor of and contrary to the trial court’s judgment, we conclude that there is factually sufficient evidence to support the. jury’s finding that Elrod engaged in a course of conduct endangering the physical or emotional well-being of W.R.E., K.N.E., and B.A.C. Therefore, we overrule Elrod’s second issue.

Because we conclude that the evidence is both legally and factually sufficient to support the jury’s findings under subsection (E), and a finding as to any one of the acts or omissions enumerated in section 161.001(1) is sufficient to support termination, we need not address Elrod’s other issues. See In re J.W., 152 S.W.3d at 207.

CONCLUSION

We conclude that the evidence is legally and factually sufficient to support the jury’s finding that Elrod engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangers the physical or emotional well-being of the children. Having resolved this issue against Elrod, we need not address his other three issues. We affirm the trial court’s judgment.

      . I.C. is not a subject of this appeal.


author: Opinion by Justice MORRIS.

text:
    Mitchell B. JOHNSON, Sunde Enterprises, Ltd., Rylor Management, Inc., and Lewisville Restaurant Partners, Ltd., Appellants, v. LEGACY BANK OF TEXAS, Appellee.
    No. 05-04-01044-CV.
    Court of Appeals of Texas, Dallas.
    July 19, 2005.

      Jeffery D. Gooch, The Law Firm of Jeffery D. Gooch, Fort Worth, TX, for Appellant.
    Jennifer L. Owen, Higier, Lautin, Fox-man & McKinney, P.C., Addison, TX, for Appellee.
    Before Justices MORRIS, FRANCIS and LANG-MIERS.
   OPINION

Opinion by Justice MORRIS.

In this appeal following a summary judgment, Mitchell B. Johnson, Sunde Enterprises, Ltd., Rylor Management, Inc., and Lewisville Restaurant Partners, Ltd. contend the trial court erred in failing to grant their motion for new trial and not ordering Legacy Bank of Texas to disclose the terms of its settlement agreement with the other defendants in this suit. We conclude appellants have not shown the trial court abused its discretion in denying their motion for new trial. We further conclude appellants did not preserve error with respect to disclosure of the settlement agreement. We affirm the trial court’s judgment.

I.

Legacy Bank of Texas filed suit for nonpayment of a commercial real estate loan against various defendants including appellants Mitchell B. Johnson, Sunde Enterprises, Ltd., Rylor Management, Inc., and Lewisville Restaurant Partners, Ltd. Approximately nine months after filing suit, Legacy settled with all the defendants except appellants pursuant to a confidential settlement agreement. Legacy then filed a motion for summary judgment contending the undisputed facts showed appellants were in default and that Legacy was entitled to recover the just amounts owed under the note as a matter of law. In support of its motion, Legacy filed an affidavit by Myron Butler, senior vice president of the bank, stating that “[a]s of January 26, 2004, after all offsets, payments, and credits, there was due and owing on the Note the sum of $1,087,795.97 with interest continuing to accrue from that date until the date of judgment at the rate of $173.75 per diem.”

In response to the motion for summary judgment, appellants argued the motion was premature because they had not had adequate time to complete discovery. Specifically, appellants argued they had not had sufficient time to obtain discovery on the settlement agreement between Legacy and the other defendants. According to appellants, the settlement agreement was relevant to whether any of the causes of action against them had been rendered moot and whether the proceeds from the settlement had been properly applied to offset any amounts appellants allegedly owed under the note. Appellants did not request a continuance of the hearing on the motion for summary judgment to allow time for further discovery, nor did they move to compel Legacy to disclose the terms of the settlement agreement. Following a hearing on Legacy’s motion, the trial court granted summary judgment against appellants.

Appellants timely filed a motion for new trial requesting that a new trial be granted on the basis of newly discovered evidence. Appellants argued they had recently learned that the property that was the subject of the note had been subleased to a new tenant by one of the settling defendants. In their affidavit filed in support of the motion, appellants conceded they had no knowledge of the terms of the new lease. But appellants contended that if Legacy were “allowed to accept the proceeds from the lease and payment for the judgment against [appellants] they will essentially be receiving payment twice resulting in unjust enrichment.” Appellants also reiterated that, without disclosure of the terms of the settlement agreement, they were unable to determine if they had been given all the offsets to which they may have been entitled.

Legacy responded to the motion for new trial arguing that most of the “newly discovered” facts upon which appellants based their motion were known to appellants before Legacy filed its motion for summary judgment. Legacy further argued that the allegedly new sublease on the property had no bearing on the note, was of no benefit to the bank, and could not result in any credit or offset to appellants’ obligations under the note. Butler testified at the hearing on the motion that nothing done to the property would generate any income to the bank and that all possible offsets or credits that were created by the settlement agreement had already been applied when he testified to the amount due under note in support of the motion for summary judgment. Appellants presented no evidence at the hearing to contradict Butler’s testimony. The trial court denied appellants’ motion for new trial and appellants brought this appeal.

II.

Appellants first argue the trial court erred in denying their motion for new trial. Appellants’ motion for new trial was made solely on the basis of alleged newly discovered evidence. A party seeking a new trial on the ground of newly discovered evidence must show the trial court that: (1) the evidence has come to his knowledge since the trial; (2) it was not owing to the want of due diligence that it did not come sooner; (3) it is not cumulative; and (4) it is so material that it would probably produce a different result if a new trial were granted. See Dallas Indep. Sch. Dist. v. Finlan, 27 S.W.3d 220, 240 (Tex.App.-Dallas 2000, pet. denied). Whether to grant a motion for new trial is within the sound discretion of the trial court and, absent abuse of such discretion, the trial court’s decision will not be disturbed on appeal. See id.

The only alleged newly discovered evidence appellants raised in their motion for new trial was the sublease agreement concerning the property that was the subject of the note. In response to appellants’ motion, Legacy provided testimony that the new lease had no effect on any of the matters resolved by the summary judgment. Appellants conceded in their motion that they had no knowledge of the terms of the lease and they presented no evidence to contradict Legacy’s testimony. Because appellants failed to demonstrate their newly discovered evidence was so material that it would probably produce a different result if a new trial were granted, we conclude the trial court did not abuse its discretion in denying appellants’ motion for new trial.

Appellants also argue the trial court erred in failing to order Legacy and the other defendants to disclose the terms of their settlement agreement. Appellants do not point to anywhere in the record, however, where they requested the court to compel disclosure of the agreement. Absent such a request, appellants have waived their right to complain on appeal that the trial court failed to order disclosure. See Tex.R.App. P. 33.1(a).

Based on the foregoing, we conclude appellants’ arguments are without merit. We affirm the trial court’s judgment.


text:
    Kenneth Ray BROWN, Appellant, v. The STATE of Texas, Appellee.
    No. 05-04-00515-CR.
    Court of Appeals of Texas, Dallas.
    July 20, 2005.
    Jan E. Hemphill, Attorney At Law, Dallas, TX, for Appellant.

      Christina O’Neil, District Attorney Office, Dallas, TX, for State.
    Before Justices WRIGHT, BRIDGES, and FITZGERALD.
   OPINION

Opinion by Justice WRIGHT.

Kenneth Ray Brown waived a jury trial, entered a negotiated guilty plea to possession of cocaine in an amount less than one gram, and pleaded true to one enhancement paragraph. See Tex. Health & Safety Code Ann. § 481.115(a), (b) (Vernon 2003). Pursuant to the plea bargain agreement, the trial court assessed punishment at six years’ confinement, probated for six years, and a $750 fine. The State later moved to revoke appellant’s probation, alleging appellant committed several new offenses. Appellant pleaded not true to the allegations at a hearing on the motion. The trial court found the allegations true, revoked appellant’s probation, and assessed punishment at six years’ confinement and a $700 fine. In his first appeal, appellant argued that the trial court erred in assessing punishment at six years’ confinement for a state-jail felony offense. We sustained appellant’s point of error, reversed the trial court’s judgment, and remanded for a new punishment hearing. See Brown v. State, No. 05-99-01853-CR, 2003 WL 22020805 (Tex.App.-Dallas Aug.28, 2003, no pet.) (not designated for publication). At the new hearing, the trial court assessed punishment at one year’s confinement in a state jail facility. The unprobated fine assessed when appellant was placed on community supervision was also included in the judgment.

In a single issue, appellant argues the trial court’s judgment revoking probation should be modified to delete a fine that was not orally pronounced when the trial court resentenced appellant. The State agrees that the fine should be deleted because it was not orally pronounced at the resentencing. We disagree.

The State relies upon Taylor v. State, 131 S.W.3d 497 (Tex.Crim.App.2004). Taylor is distinguishable on procedural grounds because it involved deferred adjudication. Because the order deferring adjudication of guilt is set aside once guilt is adjudicated, there is no longer a fine imposed on the defendant. See id. at 502. The entire punishment range is available to the court, and any new fine must be orally pronounced at sentencing. See id. That was not the situation before the trial court in this case.

On original appeal, appellant complained only about the six-year sentence imposed. See Brown, No. 05-99-01853-CR. He neither complained about the fine nor was there any problem with the fine, which was within the range for a state jail felony. See Tex. Pen.Code Ann. § 12.35 (Vernon 2003). We determined that the term of years imposed after revocation was outside the punishment range and remanded for new sentencing pursuant to article 44.29. See Brown, No. 05-99-01853-CR Therefore, the scope of the remand for new punishment was limited to the terms of appellant’s complaint — a sentence to a term within the state jail felony range. On remand, the trial court acted within the scope of the remand. The judge sentenced appellant to a term of one year’s confinement in a state jail facility. The trial judge did not have to repronounce the fíne because there was never an issue regarding the fine. Pursuant to Coffey v. State, 979 S.W.2d 326, 329 (Tex.Crim.App.1998), the unprobated fine was properly included in the new judgment revoking probation entered following the resentenc-ing. Thus, appellant is not entitled to have the fine deleted from the judgment revoking probation. See id. We resolve appellant’s sole issue against him.

We affirm the trial court’s judgment.

      . Article 44.29(b) provides that reversible error made during the punishment stage of the trial warrants a new punishment hearing only, rather than an entirely new trial, by commencing the new hearing as if a finding of guilt had been returned and proceeding to the punishment stage of the trial. See Tex. Code Crim. Proc. Ann. art. 44.29(b) (Vernon Supp.2004-05).


author: MINTON, Judge.

text:
    Rob CAMPBELL, Appellant, v. Fred CRAGER and Lucinda Crager, Appellees.
    No. 2003-CA-002372-DG.
    Court of Appeals of Kentucky.
    March 25, 2005.
    Rehearing Denied June 30, 2005.
    Ronald L. Rigg, Washington, KY, for appellant.
    Fred Crager, and Lucinda Crager, Clearfield, KY, pro se.
    Before COMBS, Chief Judge; MINTON, Judge; and MILLER, Senior Judge.

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

   OPINION

MINTON, Judge.

Fred and Lucinda Crager sued Rob Campbell in small claims court for defective installation of floor tile. Despite notice, Campbell failed to appear on the day and time appointed for the hearing on the merits. Instead, Campbell’s attorney appeared and orally moved to remove the case from the small claims division to the district court’s regular civil docket for a jury trial. The trial judge denied the motion and entered judgment by default against Campbell. On appeal, the circuit court affirmed the trial judge, holding that Campbell’s failure to comply with the statutory requirements for removal and his failure to appear personally at the hearing warranted entry of judgment against him by default. We agree with the circuit court and affirm.

In their small claims complaint, filed November 15, 2002, the Cragers alleged that Campbell had breached his contract with them “by not performing professional tile installation as per contract with agreed amount $2,087.96 [sic]. Damage sustained due to improper tile installation as per Congoleum Durostone specifications.” The Cragers demanded $1,450.00 in damages. The record shows that Campbell was served by the sheriff with the small claims summons on December 2, 2002, giving notice of the time and place for the hearing along with a copy of the complaint. Although the Cragers were present for the hearing, Campbell did not show up. Rather, his retained counsel, Ronald L. Rigg, appeared on his behalf. Rigg moved the court to change the date of the hearing or remove the case to district court. But because of Campbell’s absence and the judge’s determination that counsel’s motion was untimely, the court entered default judgment.

Campbell appealed to the Rowan Circuit Court. The circuit court agreed with the district court’s decision, stating:

This Court [cannot] say that the decision of the District Court Judge to overrule an oral motion to remove to District Court when statute mandates that a written motion to remove to District Court must be filed within seven (7) days of the hearing was clearly erroneous. Therefore, the decision of the Rowan District Court is affirmed.

We granted Campbell’s motion for discretionary review of the circuit court’s decision.

The purpose of the Kentucky Small Claims Act is to:

improve the administration of justice in small noncriminal cases, and. make the judicial system more available and comprehensible to the public; to simplify practice and procedure in the commencement, handling, and trial of such cases in order that plaintiffs may bring actions in their own behalf, and defendants may participate actively in the proceedings rather than default; to provide an efficient and inexpensive forum with the objective of dispensing justice in a speedy manner; and generally to promote the confidence of the public in the overall judicial system by providing a forum for small claims.

The obvious intent behind small claims court is to provide an informal and economical forum for dispute resolution. The procedural rules are minimal. Parties may file a claim or defend themselves without the help of- counsel, but a party may retain a lawyer. KRS 24A.240(1) states that “[t]he appearance of an attorney-at-law on behalf of any party is permitted but not required.” If a party wants a jury trial, a motion must be made to remove the case to district court. The motion must be in writing and must be filed at least seven days before the time set for hearing..

In his brief, Campbell asserts that default judgment, was erroneously entered. Specifically, he claims that because he was represented by counsel at the hearing, he properly made an “appearance”; therefore, he argues that his constitutional rights were violated by the court’s refusal to provide him with a “fair trial.” He further asserts that although the Kentucky Small Claims Act “provides limitations on a party’s rights to jury trial by requiring prior written demand of same, the act does not in any way limit or restrict an individual’s right to a fundamentally fair trial, particularly when he enters an appearance in the action.”

The hearing before the small claims court was brief. The entirety of the transcript reads as follows:

JUDGE COX: Fred and Lucinda Crag-er vs. Rob Campbell. Shows service in this case.
RONALD L. RIGG: Mr. Campbell called me Tuesday I think Judge and asked me to try to work this problem out with these.
JUDGE COX: Do you represent him?
RONALD L. RIGG: Yes. He hired me Tuésday.
JUDGE COX: Pardon?
RONALD L. RIGG: Yes sir.
JUDGE COX: Is he here?
RONALD L. RIGG: No sir.
JUDGE COX: Would you please flip these in the file so I can read them. These forms have got everything on the back.
RONALD L. RIGG: Judge what I was hoping was since he retained me late was to, if you would consider one of two options either setting it back to the next February date so I can talk to these people and him and maybe mediate and resolve it or remove it to District Court.
JUDGE COX: No. I’m going to grant the Default Judgment $1,450 plus court costs. He’s failed to appear and he was served to be here.
RONALD L. RIGG: He was only paid $1,000.00 and he’s offered to give that back.
JUDGE COX: He’s not here. He was served to be in this Court.
RONALD L. RIGG: I understand that. Can we remove the case to District Court?
JUDGE COX: You haven’t filed a Motion with the rules to do that.
RONALD L. RIGG: Judge it was within seven days he didn’t hire me within seven days.
JUDGE COX: Your client is in Default and he has a Judgment against him now and you all will receive it. Thank you. We don’t conduct Court like that here.
RONALD L. RIGG: Judge the rules
JUDGE COX: Don’t argue with me. You are excused.
RONALD L. RIGG: I wasn’t arguing.

At first glance, the actions of the district judge do appear harsh. Although Campbell was not physically present at the hearing, he was represented by counsel. And, as previously stated, KRS 24A.240(1) clearly permits a party to be represented in small claims court by an attorney at law.

But we do not believe the judge abused his discretion when he granted default judgment. As acknowledged by the Supreme Judicial Court of Massachusetts in McLaughlin v. Municipal Court of Roxbury Dist. of City of Boston:

The question for determination is not whether in a trial under ordinary procedure, in a case such as was being heard, the action of the judge would have deprived the defendant of any legal right, but, rather, whether the defendant was deprived of any right that he had at a hearing under the small claims procedure as provided by statute and rules made thereunder.
The statute relating to small claims procedure ... was intended ... to provide a form of hearing in which assistance of parties by counsel would not be required, since it was contemplated that in many, if not most, cases the parties would not be so assisted.... The defendant could not, by being represented by counsel, change the essential nature of the hearing to which he had assented.

We realize that the holding in McLaughlin does not control in this Court; nonetheless, we find its rationale to be persuasive. Like the situation in McLaughlin, the issue before us is not “whether in a trial under ordinary procedure ... the action of the judge would have deprived [Campbell] of any legal right”; rather, the question is whether Campbell “was deprived of any right that he had at a hearing under the small claims procedure.... ”

As established, the “rules” that must be followed in small claims court are minimal. The procedural requirements are relaxed in order to provide parties a simple forum in which to litigate their claims.

The statute in issue here, KRS 24A.320, unequivocally states that a motion to remove a case to district court must be in writing, and must be filed at least seven days prior to the time set for hearing. Yet, Campbell failed to file a removal motion, opting instead to wait until a few days before his scheduled hearing to retain counsel. Counsel then made an oral motion before the court to either reschedule the hearing or to remove the case to district court.

Campbell was not, as he argues, denied a “fair trial.” Rather, he plainly failed to follow the simple requirements of the Kentucky Small Claims Act. Campbell was given every right afforded to parties before the small claims court. And he should not be allowed to “change the essential nature” of his small claims hearing simply by having counsel present.

Based on Campbell’s failure to comply with the statutory removal procedures, we do not believe the district court’s actions can be considered “clearly erroneous,” nor do we believe the judge abused his discretion. Therefore, we agree with the decision of the Rowan Circuit Court to affirm the judgment of the Rowan District Court.

ALL CONCUR.

      . Kentucky Revised Statutes (KRS) 24A.200.

      . KRS 24A.310(2), 24A.320(2).

      . KRS 24A.320(2).

      . 308 Mass. 397, 32 N.E.2d 266 (Mass.1941).

      . Id. at 268-269.

        . Id. at 271.


author: JOHNSON, Judge.

text:
    AK STEEL CORPORATION, Appellant, v. Carl E. CHILDERS; Hon J. Landon Overfield, Administrative Law Judge; and Workers’ Compensation Board, Appellees.
    No. 2002-CA-002511-WC.
    Court of Appeals of Kentucky.
    June 24, 2005.

      Christopher A. Dawson, Ashland, KY, for Appellant.
    Robert G. Miller, Jr., Paintsville, KY, for Appellee.
    Before JOHNSON and McANULTY, Judges; HUDDLESTON, Senior Judge.

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

   OPINION

JOHNSON, Judge.

AK Steel Corporation has appealed from an opinion of the Workers’ Compensation Board entered on November 6, 2002, affirming the Administrative Law Judge’s award of permanent partial disability benefits to Carl E. Childers. Having concluded that the Board erred in affirming the ALJ’s award of the 2 multiplier as found in KRS 342.730(l)(c)2 to enhance Childers’s disability benefits, we reverse and remand.

Childers, who was born on September 6, 1940, has a high school diploma and has completed two years of college. He began his employment with AK Steel in 1963 and remained employed there until his retirement on June 27, 2001. Childers testified that for the last 15 years of his employment with AK Steel, he worked as a maintenance clerk in an office handling personnel matters.

Childers began noticing problems with his hearing in 1993. He claimed that every workday for approximately one to two horn's he was exposed to loud noise from the plant when he walked between the parking lot and his office, when he was on the plant floor searching for someone, and when the door to his office was opened. Childers’s office was in the center of the plant and did not have sound-proof walls; however, there was no loud noise within the confines of his office.

When Childers noticed a loss of hearing in 1993, he underwent a routine hearing test offered by AK Steel and was informed that he should follow up with his physician. That same year Childers saw Dr. Joseph B. Touma, who diagnosed his hearing loss as hereditary and fitted him with hearing aids. Childers testified that he was first informed that his hearing loss was work-related on January 24, 2002, following a medical examination by Dr. Charles Hieronymus. Dr. Hieronymus noted in his records that Childers had a 16% permanent impairment rating under the AMA Guides to the Evaluation of Permanent Impairment. As a result of this information, on January 28, 2002, Childers filed his Application for Resolution of Hearing Loss Claim with the Department of Workers’ Claims pursuant to KRS 342.7305.

Pursuant to KRS 342.315, Childers was ordered to undergo an independent hearing loss evaluation by Dr. Ian Windmill, an audiologist at the University of Louisville. Dr. Windmill diagnosed Childers as suffering a bilateral hearing loss of a sensory type, due to work-related noise exposure. Based upon the AMA Guides, Dr. Windmill assigned Childers an 18% permanent impairment rating to the body as a-whole and recommended no limitations, but he recommended that Childers use hearing protection devices whenever exposed to loud noise and that Childers wear hearing aids.

At Childers’s request, Dr. Touma also performed an independent medical examination on April 30, 2002. Dr. Touma diagnosed Childers with a sensorineural hearing loss, bilaterally, and assigned him an 8% permanent impairment under the AMA Guides. He recommended Childers be fitted for bilateral hearing aids and that he wear protection when exposed to noise, both industrial and nonindustrial. Dr. Alan J. Nissen, an otolaryngologist of Universal Surgical Associates, PSC, also examined Childers and his conclusions were similar to the conclusions of the other doctors.

Following a hearing on June 25, 2002, the ALJ relied upon the opinions of Dr. Windmill and Dr. Nissen and determined that Childers had an 18% permanent impairment rating under the AMA Guides. In calculating Childers’s benefits, the ALJ applied KRS 342.730(l)(b) and the 2 multiplier contained in KRS 342.730(l)(c)2, despite finding that Childers had not returned to the type of work he was performing at the time of his injury. The ALJ-stated in his opinion that “[Childers] has retired and has not returned to the work he was performing for [AK Steel] and pursuant to KRS 342.730(l)(c)2., his permanent partial disability benefits shall be two times the amount otherwise payable under subparagraph b of that subsection.” Childers was awarded $143.12 per week for permanent partial disability benefits for 425 weeks.

AK Steel filed a petition for reconsideration, which the ALJ denied on September 3, 2002. AK Steel then appealed the ALJ’s award of benefits to the Board, which affirmed on November 6, 2002. This petition for review followed.

It is well-established that the function of this Court in reviewing the Board “is to correct the Board only where the [ ] Court perceives the Board has overlooked or misconstrued controlling statutes or precedent, or committed an error in assessing the evidence so flagrant as to cause gross injustice.” Since AK Steel’s appeal is not premised on any factual dispute, our review is limited to construing the applicable statute. “The interpretation to be given a statute is a matter of law, and we are not required to give deference to the decision of the Board” [citations omitted].

AK Steel argues that because Childers retired and never returned to work at the same wage or a wage greater than his wage at the time of injury, the ALJ erred by applying the 2 multiplier contained in KRS 342.730(l)(c)2. KRS 342.730(l)(c)2 provides as follows:

If an employee returns to work at a weekly wage equal to or greater than the average weekly wage at the time of injury, the weekly benefit for permanent partial disability shall be determined under paragraph (b) of this subsection for each week during which that employment is sustained. During any period of cessation of that employment, temporary or permanent, for any reason, with or without cause, payment of weekly benefits for permanent partial disability during the period of cessation shall be two (2) times the amount otherwise payable under paragraph (b) of this subsection. This provision shall not be construed so as to extend the duration of payments.

AK Steel contends that “KRS 342.730(l)(c)2 is simply not triggered unless ‘an employee returns to work at a weekly wage equal to or greater than the average weekly wage at the time of injury!,]’ ” and only then is the employee entitled to the 2 multiplier. AK Steel argues that the term “that employment” in the second sentence of KRS 342.730(l)(c)2 refers to “that employment” as referenced in the first sentence of the subsection, i.e., employment to which the employee has returned at the same or greater wage.

A statute is subject to judicial construction only when it contains ambiguous language. While a workers’ compensation statute is liberally construed to effectuate an beneficent purpose, a statute that is clear and unambiguous must be followed as written. We conclude that the language in KRS 342.730(l)(c)2 is clear and unambiguous, and the statute requires a claimant to return to work to qualify for the 2 multiplier benefit. Hence, Childers’s retirement from employment and his failure to return to work removed him from eligibility for the 2 multiplier.

When the General Assembly amended the workers’ compensation statute in 2000, the method for awarding permanent partial disability benefits was amended to its current language, including the provision for a 2 multiplier enhancement. KRS 342.710(1) states that one of the primary purposes of Chapter 342 is to encourage an injured employee to return to work, preferably with the same employer and to the same or similar employment. The statute’s provisions encourage an employer to return an injured employee to work at the same or greater wages, since an employee who cannot return to work because he is not physically able receives benefits enhanced by the 3 multiplier under KRS 342.730(l)(e)l. However, an injured employee who is physically able but fails to return to work is limited to the unenhanced benefit under KRS 342.730(l)(b). Thus, the statute provides an incentive for an injured employee who is able to return to his previous employment and able to earn the same wage or a greater wage than he earned when injured to do so. Such an employee is assured a double benefit during any period that he is not employed for whatever reason, and thus, he is compensated at an enhanced rate for having attempted to perform his previous work even if the attempt later proved to be unsuccessful.

After reviewing the testimony and medical evidence, the ALJ determined that Childers retained the physical capacity to return to his previous work. However, due to his retirement Childers made no attempt to return to work at AK Steel, or to any other work in any capacity. Under those circumstances, the plain meaning of the statute only entitles Childers to receive the basic income benefit as provided in KRS 342.730(l)(b). Thus, application of the 2 multiplier was improper.

Accordingly, the opinion of the Board is reversed, and this matter is remanded to the ALJ for the entry of an award of income benefits which excludes the 2 multiplier contained in KRS 342.730(l)(c)2.

ALL CONCUR.

      . At the time of his retirement, Childers had worked for AK Steel for 39 years and 11 months.

      . Childers testified that for the last ten years of his employment he wore hearing protection when he went into regulated areas of the plant.

      . Approximately seven months after he had retired from AK Steel.

      . In his application, Childers stated that the hearing loss occurred by "listening to steam leaks, bells, sirens, hot steel popping, and unloading railroad cars with shakers around the clock.”

      . Dr. Windmill stated “approximately 10% of Mr. Childers' hearing loss can be explained based on the natural aging process.”

      . The Board relied on this Court’s unpublished decision in Laurel Cookie Factory v. Forman, 2002-CA-000608-WC, rendered on September 20, 2002, where this Court held that an injured employee was eligible to receive benefits based on the 2 multiplier, even though the employee did not return to work following her work-related injury. Our Supreme Court declined to follow this Court's interpretation of KRS 342.730(l)(c)2, and reversed Laurel Cookie Factory in an unpublished Opinion, which became final on January 22, 2004. Because it is unpublished, the Supreme Court’s Opinion cannot be cited as legal authority and this Court is not bound by its holding. Kentucky Rules of Civil Procedure 76.28(4)(c). However, we agree with our Supreme Court’s analysis and similarly resolve the issue in this case.

      . This appeal was placed in abeyance on January 8, 2003, pending the rendition of an Opinion in Laurel Cookie Factory v. Forman, 2002-SC-000867. On Januaiy 22, 2004, our Supreme Court’s Laurel Cookie Factory unpublished Opinion became final. By order entered on February 26, 2004, this case was returned to the active docket.

      . Western Baptist Hospital v. Kelly, Ky., 827 S.W.2d 685, 687-88 (1992).

      . Wilson v. SKW Alloys, Inc., 893 S.W.2d 800, 801-02 (Ky.App.1995).

      . Childers did not return to any type of work at AK Steel because he retired on June 27, 2001, and, in fact, did not return to any type of employment whatsoever.

      . Overnite Transportation Co. v. Gaddis, 793 S.W.2d 129, 131 (Ky.App.1990).

      . Wilson, 893 S.W.2d at 802.

      . See generally Adkins v. Pike County Board of Education, 141 S.W.3d 387 (Ky.App.2004).


author: TAYLOR, Judge.

text:
    BARREN RIVER STATE BOAT DOCK, INC. d/b/a Barren River State Park Marina, Appellant, v. K & R MANUFACTURING COMPANY, Appellee.
    No. 2004-CA-001102-MR.
    Court of Appeals of Kentucky.
    July 1, 2005.

      S.Frank Smith, Jr., Bowling Green, KY, for appellant.
    Stephanie L. McGehee-Shacklette, Harned, Bachert & Denton, LLP, Bowling Green, KY, for appellee.
    Before GUIDUGLI and TAYLOR, Judges; EMBERTON, Senior Judge.

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

   OPINION

TAYLOR, Judge.

Barren River State Boat Dock, Inc., d/b/a Barren River State Park Marina (Barren River Dock) brings this appeal from an April 15, 2004, summary judgment of the Barren Circuit Court holding that K & R Manufacturing Company (K & R) asserted an enforceable mechanic’s lien against a marina owned by Barren River Dock. We reverse and remand.

Barren River Dock operates a marina at the Barren River State Resort Park. As found by the circuit court, “[t]he marina facilities consist of series of docks with an area for the sale of fuel, walkways, and many slips for the storage of boats. The marina sits on floats and is attached to the banks of Barren River Lake by steel cables.” The property to which the marina is attached and floats over is owned by the United States Army Corps of Engineers. The United States Army Corps of Engineers leases the land to the Commonwealth of Kentucky. The Commonwealth entered into what has been described as a “License Agreement” with Barren River Dock to operate the marina.

In 2002, Barren River Dock entered into a contract with North American Liquidations, Inc., f/k/a North American Marine Industries, Ltd. (North American) to expand the marina. To facilitate the expansion, North American, in turn, entered into a contract with K & R to supply floats. In accordance with the terms of the contact, K & R provided the floats, which were subsequently fitted onto the marina. It appears the original contract price for the floats was $40,859.48. North American failed to pay K & R the contract price for the floats.

Consequently, K & R filed a mechanic’s lien under Kentucky Revised Statutes (KRS) 376.010 against the marina. K & R also filed a complaint in the Barren Circuit Court against Barren River Dock and North American alleging a breach of contract claim against North American and seeking enforcement of the lien asserted against the marina. On October 13, 2003, the circuit court entered summary judgment in favor of K & R upon its breach of contract claim against North American. On April 15, 2004, the circuit court entered summary judgment in favor of K & R against Barren River Dock. Therein, the circuit court concluded the mechanic’s lien asserted against the marina was a valid and enforceable lien under KRS 376.010. This appeal follows.

Barren River Dock contends the circuit court committed error by entering summary judgment in favor of K & R. Summary judgment is proper where there exist no material issues of fact and movant is entitled to judgment as a matter of law. Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476 (Ky.1991). Barren River Dock specifically asserts the circuit court erroneously concluded that K & R held an enforceable mechanic’s lien against the marina. Resolution of this appeal revolves around a question of law- — whether the marina constitutes an “other structure” under the mechanic’s lien statute (KRS 376.010(1)).

KRS 376.010(1) sets forth the prerequisites for a valid mechanic’s lien:

Any person who performs labor or furnishes materials, for the erection, altering, or repairing of a house or other structure or for any fixture or machinery therein, for the excavation of cellars, cisterns, vaults, wells or for the improvement in any manner of real property ... shall have a lien thereon, and upon the land upon which the improvements were made or on any interest the owner has therein, to secure the amount thereof with interest as provided in KRS 360.040 and costs (emphasis added).

The circuit court interpreted the term “other structure” in KRS 376.010(1) broadly to include the marina at Barren River. Barren River Dock contends that such an interpretation is overbroad and not in accordance with legislative intent. We are inclined to agree with Barren River Dock.

The interpretation of a statute is a matter of law for the court and should be interpreted so as to effectuate legislative intent. City of Worthington Hills v. Worthington Fire Protection District, 140 S.W.3d 584 (Ky.App.2004). To properly interpret the term “other structure” as found in KRS 376.010(1), we are guided by the rule of statutory interpretation called ejusdem generis:

The rule of ejusdem generis (of the same kind) is that where, in a statute, general words follow or precede a designation of particular subjects or classes of persons, the meaning of the general words ordinarily will be presumed to be restricted by the particular designation, and to include only things or persons of the same kind, class, or nature as those specifically enumerated, unless there is a clear manifestation of a contrary purpose.

Steinfeld v. Jefferson County Fiscal Court, 312 Ky. 614, 229 S.W.2d 319, 320 (Ky.1950) (citations omitted).

Applying the rule of ejusdem gen-eris to KRS 376.010(1), we observe the term “other structure” is preceded by a designation of a particular structure — “a house.” As such, we do not believe other structure should be interpreted to its “widest extent” but rather should be narrowly interpreted as implicating only those “things of the same general kind or class as” a house. Robinson v. Ehrler, 691 S.W.2d 200, 204 (Ky.1985). Stated differently, we view a proper interpretation of other structure as including a building of the same kind or class as a house; such would not necessarily be restricted to a dwelling but would be restricted to a budding permanently situated and erected upon the land.

The record indicates the marina was merely affixed to the land by steel cables. Moreover, the marina was capable of being moved and was, in fact, moved on numerous occasions. From these facts alone, we conclude the marina is not permanently situated or erected upon the land and is not an “other structure” within the meaning of KRS 376.010(1). As the marina is not an “other structure” under KRS 376.010(1), we are of the opinion K & R cannot assert an enforceable mechanic’s lien upon the marina as a matter of law.

We view Barren River Dock’s remaining contentions of error as moot.

Accordingly, we hold the circuit court committed error by entering summary judgment in favor of K & R.

For the foregoing reasons the summary judgment of the Barren Circuit Court is reversed and this cause remanded for proceedings not inconsistent with this opinion.

ALL CONCUR.

      . The October 13, 2003, summary judgment against North American Liquidations, Inc., hk/a North American Marine Industries, LTD., is not subject to the instant appeal.

      . In this Commonwealth, a mechanic’s lien is purely a statutory creature. Unless the facts bring the claimant clearly within the terms of the statute, no lien exists. In this appeal, we also do not believe a mechanic’s lien was created under the statute since the alleged improvements did not become a part of the realty. See KRS 376.010(1).


author: LAURA DENVIR STITH, Judge.

text:
    Eric HUMPHREY, Respondent, v. Charles GLENN and Dale Glenn, d/b/a C & D Glenn Farms, Appellants.
    No. SC 86035.
    Supreme Court of Missouri, En Banc.
    July 12, 2005.

      Albert C. Lowes, Cape Girardeau, MO, for Appellants.
    Fred H. Thornton, III, Sikeston, MO, for Respondent.
   LAURA DENVIR STITH, Judge.

Plaintiff Eric Humphrey, a trespasser, was severely injured when he drove his four-wheeler into an unmarked cable that defendants, the Glenns, had strung across their private road in an effort to keep trespassing vehicles off of their leased farm, Greenfield. The trial court recognized the traditional rule that a possessor of land, such as the Glenns, owes no duty to trespassers. But, it held, Missouri would adopt the exception to this rule set out in Restatement (Second) of Torts section 335 (1965). That section imposes on the land’s possessor a duty to use reasonable care to warn trespassers of the existence of and risk posed by a potentially dangerous artificial condition on the possessor’s land if he or she is aware that trespassers constantly intrude on the limited area where the dangerous condition is located and would not be likely to discover it.

The court permitted Humphrey to submit this theory against the Glenns. The jury found for Humphrey, found Humphrey and the Glenns each to be 50 percent at fault, and awarded total damages of $100,000. The Glenns appealed. Following an opinion by the Court of Appeals, Southern District, this Court ordered transfer. Mo. Const, art. V, sec. 10. This Court holds that Missouri permits recovery under the theory set out in Restatement (Second) of Torts section 335, but the judgment is reversed and the case is remanded for a new trial due to instructional error.

I. FACTUAL BACKGROUND

Charles and Dale Glenn are farmers in Mississippi County, Missouri, doing business as C & D Glenn Farms. Since 1994, the Glenns have leased Greenfield, a Mississippi County farm owned by Burke Dodson. Greenfield has two entrances, one referred to as the north entrance and the other as the south entrance, which are approximately one and one-half miles apart. They are located just off a road that runs along the top of a levee.

Since they first leased Greenfield, the Glenns have had problems with trespassers entering the property from the levee road and have been particularly concerned with trucks entering and making ruts in the fields. As soon as they began farming, they put a purple slash of paint on trees on either side of each entrance to warn trespassers to stay off the farm roads, in accordance with section 569.145, RSMo 2000. People continued to trespass. In an effort to further dissuade trespassers, the Glenns installed and maintained a 3/8-inch thick wire cable across each field road. The wire cable blocking the north entrance was anchored to a railroad iron painted purple on one side of the road and connected to a tree on the other side in a fairly open area not far inside the north entrance. Because the trees grew close to the road near the south entrance, the Glenns strung the wire cable blocking the south entrance to Greenfield between two trees located approximately 140 to 145 yards down the road from the south entrance. They anchored down the cable in the middle by a two-foot chain attached to a steel pipe buried into the road. The cable could not be seen from the levee road. Although the Glenns had initially put signs on the cable to mark it, trespassers often removed the signs, leaving the bare cable unmarked.

On October 7, 2000, Eric Humphrey was riding a four-wheeler with a passenger. His brother was also operating a four-wheeler with a passenger. The group had been four-wheeling for several hours, and by sometime after 5 p.m. they noticed that their four-wheelers were running low on gas. While looking for a short cut to get to a gas station they believed was nearby, they turned off the levee road into the north entrance of Greenfield. They turned around when they came upon the wire cable across the road not far from the entrance. They continued down the levee road and soon saw the south entrance.

Taking the evidence in the light most favorable to the verdict, they did not see the six-year-old purple slash marks on the trees at the entrance, and thinking it was also a public road, Humphrey turned into it in the hope of finding a shortcut to the main road and gas station. He was operating his four-wheeler at approximately 20-25 mph and was 15 feet in front of the four-wheeler operated by his brother. There were no signs or flags or warnings of any type on the wire cable that day, and for reasons not clear from the record, the cable was not merely two feet off the ground, but was stretched across the road at close to head height for a person riding a four-wheeler.

None of those on the four-wheelers initially saw the cable. At some point, the passenger on the other four-wheeler saw the cable and yelled at Humphrey to watch out. The passenger on Humphrey’s four-wheeler saw the cable when it was approximately two feet in front of the four-wheeler and yelled at Humphrey. Humphrey had not yet seen the cable, and as he turned to see why his friends were yelling at him, he drove the four-wheeler right into the cable. The wire cable was high enough above the ground that it hit him in the face and neck rather than hitting the four-wheeler — what the witnesses referred to as being clotheslined — resulting in serious physical injuries.

Humphrey filed suit against the Glenns, pleading negligence based on the theory set out in section 335 of the Restatement (Second) of Torts. The trial court ruled that Missouri would permit recovery under section 335, and the case proceeded to trial. Humphrey submitted Instruction No. 8, the verdict directing instruction, as follows:

Your verdict must be for Plaintiff if you believe:
First, Defendants knew or should have known that trespassers frequently intruded upon the south entrance to Greenfield, and
Second, Defendants installed, placed, and/or maintained a wire cable across the road to the south entrance to Greenfield, and
Third, Defendants knew or should have known that the wire cable was likely to cause serious bodily harm to trespassers, and
Fourth, Defendants knew or should have known the wire cable was of such nature and location that Plaintiff would not discover it, and
Fifth, Defendant failed to use ordinary-care to warn Plaintiff of the wire cable, and
Sixth, as a direct result of said failure, Plaintiff sustained damage.

The Glenns objected that Instruction No. 8 submitted that the trespass was frequent rather than constant and, thus, was erroneous even were Missouri to recognize section 335. The court overruled the objection. The jury returned a verdict for Humphrey, awarding him $100,000 in damages but assessing 50 percent of the fault to him. The Glenns appeal.

II. ADOPTION OF RESTATEMENT (SECOND) OF TORTS SECTION SS5

“Under Missouri law, it is the status of one going on the land of another which establishes the legal framework by which the court determines the duty of care owed by the possessor.” Seward v. Terminal Railroad Ass’n of St. Louis, 854 S.W.2d 426, 428 (Mo. banc 1993). Here, Mr. Humphrey concededly was a trespasser. “The general rule is that a possessor of land is not liable for harm caused to a trespasser by failure to put land in a reasonably safe condition.” Id. See also Carter v. Kinney, 896 S.W.2d 926, 928 (Mo. banc 1995).

But, as Seward noted, Missouri has adopted other Restatement exceptions to the general “no duty” rule as to trespassers. For example, where the trespasser’s presence becomes known, a duty of reasonable care is owed under Restatement (Second) of Torts sections 336, 337 (1965). See Seward, 854 S.W.2d at 428-29. Similarly, Salanski v. Enright, 452 S.W.2d 143, 144-46 & n. 1 (Mo.1970), held that a possessor of land owes a duty of care to child trespassers for a dangerous artificial condition he or she maintains at a place on the land that children are likely to trespass, as set out in Restatement (Second) of Torts section 339 (1965). In Winegardner v. City of St. Louis, 346 S.W.2d 219 (Mo. banc 1961), this Court reaffirmed its recognition of section 369 of the Restatement, the “hard-by rule,” under which a landowner is held liable if he or she creates an artificial condition so close to the highway that it involves an unreasonable risk to ... children because of their tendency to deviate from the highway. Id. at 220-21.

In Seward, this Court similarly was asked to adopt Restatement (Second) of Torts section 335, which recognizes a duty of a possessor of land to warn even adult trespassers where the possessor of the land knows that persons constantly trespass on a limited area of land on which the possessor maintains a dangerous artificial condition, if certain other specifically enumerated requirements are met. Seward did not reject the theory out of hand. Rather, after noting that section 335 had neither been adopted nor rejected in Missouri, the Court held that Seward was not the case in which to adopt it, because plaintiff had faded to show that defendant knew or should have known of constant trespassing in the area where the condition existed. Id. at 429-30.

Until the instant case, this Court has not had the occasion to address whether to adopt section 335 since Seward. The question has been presented to the court of appeals on a number of occasions over the last 10 years, but, as in Seward, because plaintiff had failed to make out a case under section 335, the issue was not reached in those cases. The Glenns argue that in declining to reach the issue whether section 385 should be adopted, Seward and the cases cited sub silencio rejected the theory, for these cases could have adopted the theory if they had wanted to do so, even if they then found it inapplicable to the case before it. While those cases might have taken such an approach, the courts certainly were not required to do so. In the usual case, this Court does not determine whether to adopt a new theory or principle in a vacuum, but rather does so when it will have some real effect in the case before it. Seward and its progeny simply left the issue of adoption of section 335 to another, more factually appropriate case.

This is such a case. As discussed in section III below, the evidence presented was sufficient to make a submissible case on each element of section 335. The question is squarely presented whether Missouri should adopt that section, which states:

A possessor of land who knows, or from facts within his knowledge should know, that trespassers constantly intrude upon a limited area of land, is subject to liability for bodily harm caused to them by an artificial condition on the land, if (a) the condition
(i) is one which the possessor has created or maintains and
(ii) is, to his knowledge, likely to cause death or serious bodily harm to such trespassers and
(iii) is of such a nature that he has reason to believe that such trespassers will not discover it, and
(b) the possessor has failed to exercise reasonable care to warn such trespassers of the condition and the risk involved.

Restatement (Second) of Torts section 335.

The principles set out in section 335 are consistent with Missouri law. While Missouri follows a general rule of no liability to trespassers, that rule “is based not on the wrongful nature of the trespasser’s conduct, but on the landowner’s inability to foresee the trespasser’s presence and guard against injury.” Seward, 854 S.W.2d at 428. For this reason, exceptions generally have been recognized in Missouri and elsewhere when “based on the existence of facts indicating that harm to trespassers should reasonably be anticipated by the landowner.” Id. See, e.g., Restatement (Second) of Torts sections 336, 337, and 339 (1965).

The reasons Missouri has adopted those exceptions to no-trespasser liability apply equally to the type of liability set out in section 335. It, too, is dependent on a showing that the possessor of the land should reasonably have anticipated that harm to trespassers was likely to result. This Court hereby adopts the exception to the no-duty rule set out in section 335 of the Restatement (Second) of Torts.

In adopting section 335, this Court does not hold that a possessor of land owes the same level of duty to trespassers that is owed to licensees or invitees. The duty is a limited one. The possessor of land cannot be found liable unless he or she created or maintained an artificial condition on land that was potentially dangerous to trespassers. Even then, liability will result only upon proof that: (1) the possessor knew or should have known of constant trespass in the limited area where the condition existed; (2) the possessor of the land knew the condition was likely to cause death or serious bodily harm to the trespasser; and (3) the condition was of such a nature that the possessor had reason to believe the trespasser would not discover the hazard. Even when these facts are shown, the possessor of land is not required to eliminate the condition, but is required to use reasonable care to warn the trespasser of the condition and the risk. Restatement (Second) of Torts section 335.

This limited exception to the “no duty” rule for a trespasser is consistent with Missouri’s previously adopted exceptions to the rule. The majority of other states, when faced with a case to which section 335 would apply, have similarly adopted it, finding that public policy supports imposition of this limited duty to warn. For the reasons just stated, this Court so determines also.

III. APPLICATION OF SECTION 335

The Glenns argue that, even were Missouri to follow section 335, Humphrey failed to make a submissible case on many of the elements of that theory. They admit that they are possessors of the land and that they maintained the cable, an artificial condition. They also knew that there were trespassers on the land. In fact, they acknowledge that knowledge of trespassers is what led them to place and maintain the cable across the road, a cable they admit could cause serious injury if a person were “clotheslined” by it. But, they state, there was no evidence that they knew trespassers constantly intruded on this limited area. They further allege that their repeated placements of a warning sign on the cable and their 1994 placement of purple paint on nearby trees was sufficient to meet their duty to warn, that they should not be found to be at fault just because the signs were taken down and the cable was stretched so high across the road, and that the injury was caused by Mr. Humphrey’s failure to keep a careful lookout, not by their failure to warn.

While the jurors could have accepted the Glenns’ version of the facts, they were not required to do so. Viewing the facts in the light most favorable to the verdict, as this Court is required to do, State v. Strong, 142 S.W.3d 702, 710 (Mo. banc 2004), the evidence was sufficient to make a submis-sible ease that the Glenns knew or should have known that trespassers constantly intruded on the south entrance, that trespassers would not discover the cable and that they had not taken reasonable care to warn trespassers of the danger.

In regard to the frequency of trespass, Robert Dale Glenn specifically testified that the Glenns had “constant problems” with trespassers on the Greenfield property and that he had been having “problems in this particular area before with trespassers,” stating:

Q I think I heard you refer to it as constant problems; is that correct?
A Yes, sir.
Q When we say that, we are talking about specifically Greenfield?
A Yes, sir.
Q You have had problems in this particular area before with trespassers?
A Yes, sir.
Q You know trespassers were using this area?
A Yes, sir.
Q You knew people were using the land or would come on this land to ride four-wheelers and three-wheelers [when you put in the cable]?
A We knew that.

Dale Glenn’s brother and co-owner of C & D Glenn Farms, Charles Glenn, confirmed:

Q Mr. Glenn, you have had problem with people trespassing on this property quite a while; is that right?
A Yes, sir.
Q Ever since you started farming it?
A Yes, sir.

Further, Dale and his cousin, Scott Glenn, testified that they knew trespassers intruded on the road since the time that Scott, a welder, had first chained the cable down to the ground. They put the cable across the road to keep out trucks but knew that four-wheelers would still trespass. They also knew that people who could not get through the cable would shoot up the signs or remove them and that when this occurred it would be difficult to see the cable. Dale testified:

Q How successful do you think the cable has been to keep people off the [property?]
A It is not going to keep people with four-wheelers out. We don’t mind somebody riding four-wheelers, if we do have somebody in a four-wheeler. We just don’t want them to drive trucks across a bean field.

He also stated:

Q Now was there any sign originally put on that cable?
A Yes.
Q Why would you put the warnings on the cable, signs and such?
A So people could identify the cable, yes.
Q Would you agree that without any warnings on the cable it would be difficult or even impossible to see at times?
A It would be hard to see.

Scott testified:

Q You helped put up signs, haven’t you?
A Yes.
Q Tell us, tell the jury what happened on one or more occasions to the signs?
A They shot them off the trees and off of a post with a shotgun.
Q Both north and south?
A Just the south end.

Charles similarly testified that they were “always hanging something” off the cable because people were constantly pulling the old signs down. Dale further expressly stated that he was aware that a person might not see the cable if there was no sign or other marking on it and could be “clotheslined” as a result:

Q Did it ever occur to you somebody was going to get clotheslined by the wire cable?
A Yes, we put signs on it. We don’t want people to run in it and damage their vehicle or themselves.

And later Charles testified:

Q All right. Now, you boys are being beat up on the fact there were no flags or nothing they claim is down there where this kid ran where he shouldn’t have been and got himself clotheslined. What efforts do you and your brother and your help for that matter try to take to ensure somebody sees the cable, even though they are trespassing?
A We always was hanging something there. There are boys, young, in their twenties that deer hunt. They will ride down and try to put something on it. You can look at the picture right there and there is a three-eights [sic] chain on it, with a three-eights cable I believe.

The Glenns knew that they needed to replace the destroyed or removed signs to avoid injury to those who might not see the naked cable, but if it got busy they might go weeks or months without checking to see if the signs were still up:

Q Mr. Glenn, you knew that people were riding four-wheelers around here whether with permission or without. You knew that cable'was hard to see if there were no warning on it. You knew that people are taking off those warnings off [sic] and removed them from the cable and yet you still allowed that cable to remain in place where it was; is that right?
A We check it fairly often to keep the signs on it.
Q During the off season, during this September, October period, how often would you boys get down to either of those locations?
A During the farming season we could be away from there quite a while with business elsewhere. You know, a week or two at [sic] time, or a month at a time. We are busy. We have got to be in the field every day, you know.

They also expressly stated that they knew the cable was dangerous and put signs on it to keep people from running into it:

Q You knew this wire cable was across the road and was a dangerous condition without any warnings on it; is that right?
A Yes.
Q Why did you put warnings on the cable?
A Well, number one, to keep people from running up on it.

There was also evidence that, while the Glenns believed that the purple paint slashes they had placed on trees near the entrance to the south road should have warned trespassers they were on private land, they had not repainted the slashes since 1994.

This evidence made a submissible case on the issues whether there were constant trespassers in the limited area of the trespass, whether the Glenns were aware the cable was likely to cause death or serious injury if someone ran into it, whether they knew or should have known that the signs might have been taken down or fallen down and that, if so, a trespasser might not discover the cable, and that they failed to exercise reasonable care in checking the signs and replacing them or otherwise providing adequate warning of the condition and the risk involved to trespassers. The trial court did not err in allowing the case to be submitted under the theory set out in section 335.

IV. INSTRUCTIONAL ERROR

The Glenns are correct that the verdict directing instruction failed to correctly submit section 335, however. Rather than hypothesize that the Glenns knew that trespassers “constantly” intruded on their land, the verdict director required the jury to find only that trespassers “frequently” intruded on the south entrance of Greenfield. This was a contested issue, for while there was evidence that trespassers did constantly so intrude, there was also evidence from which the jury could have found that the intrusions along the south entrance, the area specified in the instruction, were merely frequent rather than constant. Defendants raised this deviation from section 335 at the instruction conference and preserved it in their motion for new trial and on appeal. Accordingly, the case must be remanded for a new trial at which the element of “constant” trespass will be properly submitted.

V. CONCLUSION

For the reasons set out above, this Court adopts section 335 of the Restatement (Second) of Torts, but reverses the judgment and remands the case.

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

RUSSELL, J. not participating.

      . Defendants Charles and Dale Glenn, doing business as C & D Glenn Farms, will be referred to collectively as “the Glenns.”

      . See, e.g., Hogate v. Am. Golf Corp., 97 S.W.3d 44, 48-49 (Mo.App. E.D.2002) ("regardless of the adoption of” section 335, the evidence failed to meet its requirements); City of Kansas City v. N.Y.-Kan. Bldg. Assoc. L.P., 96 S.W.3d 846, 861 (Mo.App. W.D.2002) (citing section 335 as an exception but finding it inapplicable); Mothershead v. Greenbriar

        Country Club, Inc., 994 S.W.2d 80, 87-88 (Mo.App. E.D.1999) ("[t]his section of the Restatement has been considered on numerous occasions and the respective fact pattern failed to fulfill all of the requirements of the section,” and holding it failed in that case also); Cochran v. Burger King Corp., 937 S.W.2d 358, 365 (Mo.App. W.D.1996) (citing Seward and noting the exception provided in section 335, inter alia, did not apply). Politte v. Union Elec. Co., 899 S.W.2d 590, 593 (Mo.App. E.D.1995) (finding the provision was not applicable to the case).

      . See Maffucci v. Royal Park Ltd. P’ship, 243 Conn. 552, 707 A.2d 15, 20-21 & n. 9 (1998) (stating, "[w]e agree with [section] 335 that liability in negligence for a dangerous condition on land will attach only if the possessor has actual or constructive knowledge that ‘trespassers constantly intrude[d] upon a limited area of the land’ " and "[w]e note that the recognition by this court of [section] 334 supports our conclusion that the materially identical language employed in [section] 335 should also be adopted” (citations omitted)); Lindquist v. Albertsons, Inc., 113 Idaho 830, 748 P.2d 414, 416 (Ct.App.1987) (quoting section 335 and using it as the basis for holding that no duty was breached because all of the provision's requirements were not met); Martin v. Spirit Mountain Recreation Area Auth., 566 N.W.2d 719, 721-23 (Minn.1997) (stating, “[f]or purposes of determining liability under section 466.03, Minnesota has adopted the standard of care owed to a trespasser found in the Restatement (Second) of Torts [section] 335 (1965)”); Franc v. Penn. R.R., 424 Pa. 99, 225 A.2d 528, 529 (1967) ("[t]he duty of the railroad company in situations such as the one [in the case at bar] is spelled out in the Restatement of Torts [section] 335”); State ex rel. Tex. Dep't of Parks & Wildlife v. Shumake, 131 S.W.3d 66, 77, 80 (Tex.App.2003) (quoting section 335 for “the 'known trespasser’ standard,” and stating "[w]e rely on the second Restatement of Torts ... to impose on landowners a higher duty of care to known trespassers injured by artificial conditions that pose a risk of serious bodily harm of which the landowner knows or should know”); Craighead v. Norfolk & W. Ry. Co., 197 W.Va. 271, 475 S.E.2d 363, 368 (1996) (noting the exception to the general rule of no duty to trespassers set forth section 335 was followed in West Virginia). See also, Bennett v. Pub. Serv. Co. of N.H., 542 F.2d 92, 95 n. 1 (1st Cir.1976) (because New Hampshire law is consistent with section 335, “we think it permissible in determining how a New Hampshire court would decide this case to take supplementary notice of the Restatement”). But see Pippin v. Atallah, 245 Mich.App. 136, 626 N.W.2d 911, 915-16 (2001) ("the rationale of ... Restatement sections [335 and 337] has never been adopted in Michigan”); Graham v. Sky Haven Coal, Inc., 386 Pa.Super. 598, 563 A.2d 891, 896 n. 8 (1989) ("[n]ot only has Section 335 not been adopted by this Court but it is contrary to the long[-]recognized rule in this Commonwealth,” distinguishing Franc).

      . The Glenns also argue that the fact that the jury found plaintiff partially at fault means that the jurors believed he failed to keep a careful lookout, and that the injuries thus were caused by his failure to look for a condition he could have discovered. The facts shown permitted a finding of fault on the part of both parties. Whether plaintiff maintained a careful look out or was otherwise partially at fault was an issue for the jury to determine, and it did so by finding plaintiff 50 percent at fault. This was not inconsistent with also finding defendants 50 percent at fault.