author: SHARON G. LEE, J.,

text:
    Jeff WILLARD v. GOLDEN GALLON-TN, LLC.
    No. E2003-02628-COA-R3-CV.
    Court of Appeals of Tennessee, Eastern Section, at Knoxville.
    June 9, 2004 Session.
    Aug. 10, 2004.

      Anita B. Hardeman and Kent Thomas Jones, Chattanooga, Tennessee, for the Appellant, Jeff Willard.
    Donna J. Gilluly and Rosemarie L. Bryan, Chattanooga, Tennessee, for the Appellee, Golden Gallon-TN, LLC.
   SHARON G. LEE, J.,

delivered the opinion of the court,

in which HERSCHEL P. FRANKS, P.J. and D. MICHAEL SWINEY, J. joined.

OPINION

This is a retaliatory discharge case wherein the Plaintiff/employee alleged that his employment was terminated, inter alia, in violation of the Family and Medical Leave Act and because he obeyed a lawful subpoena. The Trial Court granted the employer’s motion for summary judgment. The employee appealed. We vacate the Trial Court’s grant of summary judgment because we have determined that (1) a claim for retaliatory discharge in violation of Tennessee public policy lies in cases where a substantial factor in an employer’s decision to terminate an employee is the fact that the employee honored a lawful subpoena, (2) a genuine issue of material fact exists as to whether the employee was terminated for honoring a lawful subpoena, and (3) a genuine issue of material fact exists as to whether the employee was terminated in violation of the Family and Medical Leave Act. Accordingly, we vacate the judgment of the Trial Court and remand for further proceedings consistent with this opinion.

I. FACTUAL BACKGROUND

From February 21, 2000, until July 29 or 31, 2001, Jeff Willard was employed by Golden Gallon-TN, LLC (hereinafter “Golden Gallon”) as an hourly employee in its dairy plant in Hamilton County, Tennessee. An evaluation report generated by Golden Gallon in April of 2000 describes Mr. Willard as “very valuable, flexible” and “dependable” and notes that he is a “quick learner” who “needs little supervision”. Later reports and other evidence indicate that Mr. Willard was subsequently tardy and absent from work on multiple occasions.

Although the facts are somewhat in dispute, Mr. Willard and Golden Gallon present various reasons for his failure to appear for work during the course of his employment. In February of 2001, Mr. Willard injured his knee on the job and missed a full day of work. He also missed six to eight partial days for follow-up medical treatment of this injury. Mr. Willard left work on at least six occasions for reasons he said were related to his minor son’s attention deficit hyperactivity disorder and bipolar disorder. On several occasions, Mr. Willard missed work to go to his son Thomas’ school to prevent his son from being expelled. Mr. Willard missed work one day in June of 2001 after being arrested on child abuse charges which were later dismissed. In late June, 2001, Mr. Willard initiated charges in juvenile court against his twelve year old son, Thomas, alleging that Thomas had sexually molested Mr. Willard’s younger son. Mr. Willard was absent from his job because he was required to appear in court several times in connection with the molestation case. Mr. Willard missed at least one day of work to attend the wedding of his mother-in-law, one day for his own wedding, and he missed further time from work when he sought medical attention for shoulder pain. Golden Gallon alleges that Mr. Willard was also absent from work on occasions other than those described- herein.

Golden Gallon’s employee handbook, a copy of which was furnished to Mr. Willard, provides that excessive absenteeism may lead to termination of employment. The record shows that Mr. Willard was counseled about excessive absenteeism by his supervisor, Gail Smith, in January of 2001 and again on June 4, 2001. On July 23, 2001, Ms. Smith advised Mr. Willard that he had used all of his available vacation time and that she would not give him permission for any additional absences.

On July 31, 2001, a juvenile court hearing was scheduled in the molestation case against Mr. Willard’s son. Mr. Willard attests that he advised his son’s mother that he “was given a hard time about getting off work and told that if [he] left work [he] would be fired” whereupon she contacted the district attorney who indicated that he would fix the problem by issuing a subpoena for Mr. Willard, thereby leaving him with no choice but to go to court. Mr. Willard was served with the subpoena in the presence of his supervisor, Gail Smith, apparently one to two weeks before the scheduled hearing date. Mr. Willard stated that Gail Smith indicated to him that she did not wish to look at the subpoena and informed him that he “was not to leave work for the court appearance on July 31, 2001, regardless of what the subpoena said.” According to Mr. Willard, his employment was terminated by Gail Smith on July 31, 2001, as he was leaving for court with the subpoena in his hand.

On June 5, 2002, Mr. Willard filed a complaint against Golden Gallon in the Circuit Court for Hamilton County alleging that Golden Gallon violated the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2612 and the Tennessee Human Rights Act (THRA), Tenn.Code. Ann. § 4-21-101, et seq. by discharging him. On August 20, 2002, Mr. Willard filed a motion to amend his complaint to include a third cause of action against Golden Gallon, asserting that his employment “was terminated for obeying a valid subpoena from a court of law, in violation of the public policy of the state of Tennessee.” On March 6, 2003, Golden Gallon filed a motion for summary judgment accompanied by a statement of material facts. The Plaintiff filed a response agreeing as to some of the facts and disagreeing as to others.

After hearing argument of the parties and reviewing the record, the Trial Court entered an order on September 22, 2003, granting Golden Gallon’s motion for summary judgment and dismissing all of Mr. Willard’s claims. Thereafter, Mr. Willard filed the appeal now before us.

II.ISSUES FOR REVIEW

We review two issues in this appeal:

1. Did the Trial Court err by granting summary judgment and dismissing Mr. Willard’s claim of retaliatory discharge in violation of Tennessee public policy?

2. Did the Trial Court err by granting summary judgment and dismissing Mr. Willard’s claim of retaliatory discharge in violation of the Family and Medical Leave Act?

III.STANDARD OF REVIEW

Summary judgment proceedings are efficient and effective vehicles for concluding cases that can and should be decided on legal issues alone. However, these proceedings should not serve as a substitute for a trial of genuine and material factual matters. Byrd v. Hall, 847 S.W.2d 208, 210-211 (Tenn.1993); Bellamy v. Federal Express Corp., 749 S.W.2d 31, 33 (Tenn.1988). Summary judgments should be awarded only when the moving party has demonstrated that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Tenn. R.Civ.P. 56.04; Bain v. Wells, 936 S.W.2d 618, 622 (Tenn.1997); Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn.1995).

No presumption of correctness attaches to the lower court’s judgment and our task is confined to reviewing the record to determine whether the requirements of Tenn. R. Civ. P. 56 have been met. We must view the evidence in the light most favorable to the nonmoving party, which in this case is the Plaintiff, and we must draw all reasonable inferences in favor of the nonmoving party. Staples v. CBL & Associates, Inc., 15 S.W.3d 83, 89 (Tenn.2000).

IV.TERMINATION IN VIOLATION OF PUBLIC POLICY

Applying this standard we now address the issue as to whether the Trial Court erred by granting summary judgment and dismissing the employee’s claim that the termination of his employment by Golden Gallon violated Tennessee public policy. Specifically, Mr. Willard contends that Golden Gallon violated public policy because it fired him when he left work to honor the subpoena served upon him in the juvenile court proceeding against his son.

In Tennessee, the general rule is that an at-will employee may be fired for good cause, bad cause or no cause. Payne v. Western & Atlantic Railroad Company, 81 Tenn. 507, 519-520 (1884); Forrester v. Stockstill, 869 S.W.2d 328, 330 (Tenn.1994). However, the employer’s right to terminate the employment relationship is not without limitation and the termination of such relationship may, under certain circumstances, give rise to a claim for retaliatory discharge. Both statutory and case law have placed restrictions upon an employer’s freedom to discharge an employee, usually for reasons of clear public policy. Chism v. Mid-South Milling Company, Inc., 762 S.W.2d 552, 555 (Tenn.1988).

In Clanton v. Cain-Sloan Co., 677 S.W.2d 441, 445 (Tenn.1984), our Supreme Court first recognized a cause of action for retaliatory discharge of an at-will employee who had been fired for filing a worker’s compensation claim. This cause of action was extended to other matters involving public policy in Chism wherein the Tennessee Supreme Court ruled that a claim for retaliatory discharge lies in cases where a violation of a clear public policy is a substantial factor in the termination of an at-will employee.

The Tennessee Supreme Court in Chism cited as one example of a clearly defined public policy which warrants the protection provided by a retaliatory discharge action the case of an employee who was discharged because she insisted upon obeying a lawful subpoena. Chism, 762 S.W.2d at 556 (citing Ludwick v. This Minute of Carolina, Inc., 287 S.C. 219, 337 S.E.2d 213 (1985)). This exception was also cited with approval by the Tennessee Supreme Court in the subsequent case of Reynolds v. Ozark Motor Lines, Inc., 887 S.W.2d 822, 824 (Tenn.1994), by the Court of Appeals, Middle Section, in Sloan v. TriCounty Electric Membership Corp., No. M2000-01794-COA-R3-CV, 2002 WL 192571, at *2 (Tenn.Ct.App. Feb.7, 2002), no appl. perm. app., and by the United States District Court for the Middle District of Tennessee in Jeffreys v. My Friend’s Place, Inc., 719 F.Supp. 639 (1989). In an unreported opinion of this Court, Hackney v. DRD Management, Inc., No. E1999-02107-COA-R3-CV, 1999 WL 1577977, at *6 2000 Tenn.App. LEXIS 205, at *6 (Tenn.Ct.App. March 31, 2000) appl. perm. appeal denied Dec. 4, 2000, we cited Chism in support of the following statement:

Examples of public policy for which an employee-at-will may not be discharged are filing a worker’s compensation claim, refusing an employer’s demand to commit perjury, obeying a lawful subpoena, participating in jury duty and refusing to falsify records. (Emphasis added.)

Other jurisdictions have recognized a retaliatory discharge cause of action for an employee’s discharge due to the honoring of a subpoena. In Ludwick, cited by the Chism Court, the Supreme Court of South Carolina recognized a cause of action for retaliatory discharge for an employee who had been terminated for honoring a subpoena. Likewise in Ressler v. Humane Society of Grand Forks, 480 N.W.2d 429 (N.D.1992), the Supreme Court of North Dakota ruled that a public policy exception to the at-will doctrine precludes an employer from discharging an at-will employee for honoring a subpoena and testifying truthfully in a judicial proceeding. See also Wiggins v. Southern Management Corporation, 629 So.2d 1022 (Fla.1993); Kistler v. Life Care Centers of America, Inc., 620 F.Supp. 1268 (1985); Shearson Lehman Brothers, Inc., v. Hedrich, 266 Ill.App.3d 24, 203 Ill.Dec. 189, 639 N.E.2d 228 (1994); Anderson v. Village of Oswego, 109 F.Supp.2d 930 (2000); Williams v. The Hillhaven Corporation, 91 N.C.App. 35, 370 S.E.2d 423 (1988).

We observe, however, that in neither Chism, Reynolds, Sloan, nor Hackney did the issues on appeal specifically concern the termination of an employment relationship by reason of the fact that the employee honored a subpoena and, therefore, we are compelled to agree with Golden Gallon’s assertion that the above referenced language from those cases in that regard is dicta and, as such, does not constitute binding authority. Metropolitan Government of Nashville and Davidson County v. Reynolds, 512 S.W.2d 6, 10 (Tenn.1974). We are not otherwise aware of Tennessee case law which specifically addresses the issue of whether an employer who terminates an employment relationship because the employee chooses to honor a valid subpoena is thereby in violation of public policy. However, in addressing this issue in the case sub judice, we are compelled to conclude that a termination of employment under such circumstances is a violation of public policy based on references in previous decisions of our Supreme Court, authority from other states and clear statutory provisions.

It is noted in Chism at page 556 that public policy is usually “evidenced by an unambiguous constitutional, statutory or regulatory provision.” Tennessee contempt statutes manifest a clear public policy that a lawfully issued subpoena be honored. Tenn.Code Ann. § 29-9-102 provides in pertinent part as follows:

The power of the several courts to issue attachments, and inflict punishments for contempts of court, shall not be construed to extend to any except the following cases:
(3) The willful disobedience or resistance of any officer of such courts, party, juror, witness, or any other person, to any lawful writ, process, order, rule, decree, or command of such courts;
(4) Abuse of, or unlawful interference with, the process or proceedings of the court;

Tenn.Code Ann. § 29-9-103(a) further provides that “[t]he punishment for contempt may be by fine or by imprisonment, or both.” Tennessee case law has long held that a witness who willfully fails to appear in court after being issued a subpoena to testify is guilty of contempt, State v. Rinehart, 92 Tenn. 270, 21 S.W. 524 (1893). Tennessee case law further provides that those who prevent one summoned to court from appearing are engaged in the “[ajbuse of, or unlawful interference with, the process or proceedings of the court” and are, therefore, subject to sanctions for contempt. McCarthy v. State, 89 Tenn. 543, 15 S.W. 736 (1890).

In addition to the above contempt statutes, we also note Tenn.Code Ann. § 39-16-507 which provides in pertinent part as follows:

(a) A person commits an offense who by means of coercion, influence or attempts to influence a witness or prospective witness in an official proceeding with intent to influence the witness to:
(3) Elude legal process summoning the witness to testify or supply evidence, or to be absent from an official proceeding to which the witness has been legally summoned.

Tenn.Code Ann. § 29-9-102(3) and (4), § 29-9-103(a), and Tenn.Code Ann. § 39-16-507 evidence a clear public policy, as expressed by the Legislature of our state, that a lawfully issued subpoena shall be honored both by the person against whom it is issued and others. Such a policy is in accord with society’s self-evident goal of maintaining the integrity of its judicial system by insuring access to evidence necessary to the administration of justice.

Accordingly, we hold that a claim for retaliatory discharge in violation of public policy lies in cases where a substantial factor in an employer’s decision to terminate an employee is the fact that the employee honored a lawful subpoena.

Golden Gallon asserts that its decision to terminate Mr. Willard’s employment “was made in light of all of Willard’s absences, not just his last absence, which happened to involve a subpoena to go to court.” Golden Gallon indicates that “the at-will employment doctrine should not be circumvented for this situation.”

In Chism at page 556, the Court acknowledged that before an at-will employer will be liable for retaliatory discharge for violating a public policy “the violation must be a substantial factor” in the termination of employment. In Thomason v. Better-Bilt Aluminum Products, Inc., 831 S.W.2d 291, 293 (Tenn.Ct.App.1992) we found that, in order to reach the jury on the substantial factor issue, the plaintiff must either offer “direct evidence” or “compelling circumstantial evidence” that the retaliatory reason was a substantial factor in the termination. In this case, we discern “compelling circumstantial evidence” which could support a finding that Mr. Willard would not have lost his job had he not left work to honor the subpoena.

In his affidavit filed in this cause, Mr. Willard states that Gail Smith “informed me that I was not to leave work for the court appearance on July 31, 2001, regardless of what the subpoena stated” and that Gail Smith “personally terminated me on July 31, 2001 on the way out the door with the subpoena in my hand.” Furthermore, Gail Smith’s own deposition testimony indicates that Mr. Willard’s employment was terminated for leaving work to honor the subpoena and that, until he did so, she had not made a decision in that regard:

Q Why didn’t it make a difference to you that he was under subpoena when he took a day off to go to court in obedience to the subpoena?
A Well, he was counseled long before this of termination for absenteeism if he were out again.
Q When did you decide Mr. Willard needed to be terminated?
A He was terminated — -he terminated himself technically because he was out after — after the counseling.
Q And he was out for what reason?
A I’m not sure. He said he was going to court.
Q Did the subpoena say that he was going to court?
AI didn’t read the subpoena.
Q Until that time had you formed an opinion in your mind that Mr. Willard should be terminated?
A No.

Based upon the testimony of Mr. Willard and Ms. Smith, it could reasonably be inferred by a finder of fact that Mr. Willard’s decision to honor the subpoena, which decision necessitated his absence from work, was a substantial factor in Golden Gallon’s termination of his employment.

Golden Gallon apparently also contends that Mr. Willard’s claim of retaliatory discharge in violation of public policy is not properly before this Court, arguing that the claim was raised only in a motion to amend and not in an amended complaint.

Golden Gallon submits no supporting authority for this argument and under State v. Brown, 795 S.W.2d 689, 698 (Tenn.Cr.App.1990) it appears that this argument is waived. Notwithstanding this waiver, it is our determination that Mr. Willard’s failure to file an amended complaint and the Trial Court’s failure to enter an order addressing his motion in that regard was harmless error in view of. the fact that Golden Gallon fails to demonstrate that it suffered any prejudice in consequence of these oversights. Golden Gallon addressed Mr. Willard’s “claim for violation of ‘public policy’ ” in its motion for summary judgment and supporting memorandum of law, making the same arguments it presents in this appeal — that Tennessee does not recognize an action for violation of public policy for discharging an employee who honors a valid subpoena and that Golden Gallon’s decision was merely a business decision to terminate an employee because of frequent absenteeism. Golden Gallon does not maintain that its defense would have been any different had the amended complaint and order been filed. Nor does Golden Gallon assert that Mr. Willard’s public policy claim was not considered by the Trial Court when the Court granted the motion for summary judgment and the Court includes Mr. Willard’s “claim for an alleged violation of Tennessee Public Policy” as one of the claims dismissed in its order granting that motion.

Y. TERMINATION IN VIOLATION OF FMLA

The remaining issue we address in this appeal is whether the' Trial Court erred in dismissing Mr. Willard’s cause of action under the Family and Medical Leave Act (FMLA), codified at 29 U.S.C. § 2601, et seq.

The FMLA requires that a covered employer provide an eligible employee with twelve weeks of leave during any twelve month period for various reasons which are set forth at 29 U.S.C. § 2612(a)(1), including the following:

(C) In order to care for the spouse, or a son, daughter, or parent of the employee, if such spouse, son, daughter, or parent has a serious health condition;
(D) Because of a serious health condition that makes the employee unable to perform the functions of the position of such employee.

It does not appear to be disputed that Golden Gallon is an employer covered by the FMLA or that Mr. Willard is an eligible employee under the FMLA. However, Golden Gallon argues that, because Mr. Willard was not absent to care for a “serious health condition” and did not provide the required notice that would have triggered the obligation to provide FMLA leave, summary judgment dismissal of his claim is appropriate.

With respect to its argument that Mr. Willard was not absent to care for a serious health condition, Golden Gallon notes that under 29 U.S.C. § 2611(11) a serious health condition is defined as “an illness, injury, impairment, or physical or mental condition that involves”,

(A) inpatient care in a hospital, hospice, or residential medical care facility, or
(B) continuing treatment by a health care provider.

Citing Marchisheck v. San Mateo County, 199 F.3d 1068 (9th Cir.1999), Golden Gallon further maintains that an employee is not entitled to leave under the FMLA for absences to “care for” a family member absent proof that the employee was involved in some level of participation in ongoing treatment of the condition suffered.

Golden Gallon contends that “[Mr.] Willard’s absence to attend court to determine how to deal with his son’s alleged abuse of a sibling does not fall under the auspices of the FMLA” in that Mr. Willard “was not participating in ongoing treatment with a health care provider when he was attending court and no health care provider was even involved in his attendance at court.” Golden Gallon further contends that Mr. Willard was not entitled to leave under the FMLA to attend physical therapy for his knee injury because he testified in his deposition that he never attended physical therapy for that injury.

We do not necessarily disagree with Golden Gallon’s argument that Mr. Willard was not engaged in the care of Thomas, in the sense of participating in the ongoing treatment of Thomas’ alleged psychological condition, when he attended the referenced court hearing. However, evidence is presented that Mr. Willard’s court appearance was not the only occasion he was absent from work as a result of Thomas’s medical condition. In his affidavit Mr. Willard asserts that “on at least six occasions [he] was forced to leave work due to Thomas’ medical condition” and that he “always brought doctor’s excuses to Gail Smith.” Viewed in a light most favorable to Mr. Willard, we are compelled to find that this testimony constitutes proof which creates a genuine issue of fact as to whether Mr. Willard was at times absent from work because he was caring for Thomas by participating in his ongoing treatment.

We are further compelled to disagree with Golden Gallon’s assertion that Mr. Willard “clearly stated in his deposition that he never attended physical therapy for his own knee injury.” The following portion of Mr. Willard’s testimony is referenced in support of this assertion:

Q: And did you have to have any physical therapy for this injury?
A: I wasn’t given a prescription for physical therapy. Anything that was done was done at the doctor’s office.

We disagree that this testimony amounts to an unequivocal statement by Mr. Willard that he did not undergo physical therapy for his injury. We believe that a reasonable construction of this testimony is that whatever treatment Mr. Willard received for his injury, whether such treatment consisted of physical therapy, or not, was received at that doctor’s office. In any event, Mr. Willard’s affidavit otherwise creates a genuine issue of material fact as to whether he received “continuing treatment by a health care provider” with respect to his knee injury and whether his absence from work because of those treatments contributed to the termination of his employment:

9. As a result of this injury, I had to make arrangements with my doctor to go to the doctor’s office for follow-up appointments approximately once per week for 6-8 weeks. The doctor’s office closed at 5:00, and I had to leave Golden Gallon at 4:30 to get there on time. Gail Smith informed me what days I could take off early for these appointments, then she later reprimanded me verbally for taking this time off.
10. I presented appropriate medical excuses for each of these doctor’s visits, and Gail Smith had a ledger which reflected these excuses.
11. I was paid for these doctor’s visits, however they were counted against me as a full day’s absence each time. I was informed of this fact by Gail Smith.

Golden Gallon additionally argues that summary judgment was appropriate in this case because Mr. Willard did not present proof that he provided notice indicating that his absences were covered as leave under the FMLA.

As Golden Gallon acknowledges in its brief, citing Spangler v. Federal Home Loan Bank of Des Moines, 278 F.3d 847, 852(8th Cir.2002), “[ujnder the FMLA, an employer’s duties are triggered when the employee provides enough information to put the employer on notice that the employee may be in need of FMLA leave.” However, the Court in Spangler further recognized that “ ‘[a]n employee need not invoke the FMLA by name in order to put an employer on notice that the Act may have relevance to the employee’s absence from work’ ” (Citing Browning v. Liberty Mut. Ins. Co., 178 F.3d. 1043, 1049 (8th Cir.1999)). This latter statement was reiterated by the Sixth Circuit Court of Appeals in Hammon v. DHL Airways, Inc., 165 F.3d 441, 450 (6th Cir.1999) as follows:

An employee does not have to expressly assert his right to take leave as a right under the FMLA. See Manuel v. Westlake Polymers Corp., 66 F.3d 758, 761 (5th Cir.1995) (citing Brannon v. OshKosh B’Gosh, Inc., 897 F.Supp. 1028, 1038 (M.D.Tenn.1995)). Once an employer is given notice that an employee is requesting leave for a FMLA-qualify-ing reason, the employer bears the obligation to collect any additional information necessary to make the leave comply with the requirements of the FMLA.

We have referenced attestations in Mr. Willard’s affidavit to the effect that he left work several times due to his son’s medical condition and that he brought doctor’s excuses to his supervisor in that regard. We have also referenced Mr. Willard’s attestations that he was absent from work on multiple occasions to receive medical treatment for his knee injury and that he apprised his supervisor that was the reason for his absence on each of these occasions. It is our determination that, based upon this evidence, the trier of fact could reasonably conclude that Mr. Willard provided Golden Gallon with sufficient notice that he was requesting leave for a condition covered under the FMLA.

In support of its argument that it had no duty to inquire as to whether Mr. Willard was entitled to FMLA leave, Golden Gallon cites the case of Stoops v. One Call Comm,., Inc., 141 F.3d 309 (7th Cir.1998). Golden Gallon states that Stoops sets forth the following as “factors tending to show that an employer [does] not have a duty to inquire further into an employee’s entitlement to FMLA leave”:

[T]he employee was adequately notified of his or her FMLA rights; the employee had a history of unexcused absences; the employee had taken leave before under the FMLA; the [employer] had recently heard from the employee’s doctor that the employee was able to work despite the employee’s impairment; and the employee had mentioned that he or she had a serious health condition, but did not indicate a need for time off for treatment.

As in the matter sub judice, the plaintiff employee in Stoops filed suit against his former employer under the FMLA after he was fired for excessive absences. In that case the employee began missing work when he began experiencing various symptoms which included confusion, nausea and chest pains. His physician determined that he was suffering from chronic fatigue syndrome and, at his employer’s urging, the employee began taking full-time FMLA leave. However, when the employee’s physician was asked to provide certification that would qualify the employee for FMLA leave, the physician indicated that, although the employee suffered from a serious chronic health condition, he was not incapacitated and would not have to work intermittently or on a reduced work schedule. Consequently the physician certified that the employee was not qualified for FMLA leave. Thereafter, the employee missed several days of work, notifying his employer that he was absent because of chronic fatigue syndrome and he was subsequently fired for excessive absenteeism. On appeal the employee argued that, with regard to those absences occurring after his physician certified that he was not qualified for FMLA leave, once he notified his employer that he was absent due to chronic fatigue syndrome the employer had a duty to investigate further and request a second medical certification if it wanted verification of his condition. The Court disagreed and held that when an employer receives medical certification which indicates that an employee need not miss work because of a serious health condition, the employer may rely on that certification until the employee provides a contradictory medical opinion. The Court in Stoops does not indicate that its decision was based upon any of the factors listed by Golden Gallon other than that “the [employer] had recently heard from the employee’s doctor that the employee was able to work despite the employee’s impairment.” We disagree that Stoops supports Golden Gallon’s argument that there is insufficient evidence that it received adequate notice that Mr. Willard’s absences might qualify as leave under the FMLA.

The Trial Court’s order granting Golden Gallon’s motion for summary judgment does not set forth the specific grounds upon which the Court based its ruling; however, our analysis of the record compels us to conclude that summary judgment is not proper in this case and that Golden Gallon’s arguments to the contrary are without merit.

YI. CONCLUSION

For the foregoing reasons the judgment of the Trial Court is vacated and the cause is remanded for further proceedings consistent with this opinion. Costs of appeal are adjudged against Golden Gallon TN, LLC.

      . Golden Gallon uses the word "employee” here. We assume this is a typographical error and have made this correction in accord with the facts as set forth in Stoops.


source: Caselaw Access Project

author: DAVID R. FARMER, J.,

license: Public Domain

text:
    In re ESTATE OF Erin Murray JONES.
    Court of Appeals of Tennessee, at Nashville.
    Nov. 5, 2003 Session.
    Feb. 25, 2004.
    Application for Permission to Appeal Denied by Supreme Court Dec. 6, 2004.
    Carrol D. Kilgor, Nashville, Tennessee, for the appellants, Raymond Burnett and Evie Moore.

      John A. Day, Rebecca C. Blair and Vincent Zuccaro, Brentwood, Tennessee, for the appellees, Sonnie E. Potts and Virginia S. Potts.
    Michael H. Johnson, Nashville, Tennessee, for the appellant, Mary McGowan.
    Jerry Scott, Murfreesboro, Tennessee, for the appellee, Lucy DePriest.
    Peggy D. Mathes, Guardian Ad Litem, Nashville, Tennessee, for the appellees, minor children.
    William L. Harbison, Mark T. Smith, Nashville, Tennessee, for the appellee, Kimberly Ingram.
   OPINION

DAVID R. FARMER, J.,

delivered the opinion of the court,

in which ALAN E. HIGHERS, J. and HOLLY M. KIRBY, J., joined.

This appeal is from a will contest. The trial court entered judgment according to the terms of a settlement agreement between the parties. Appellants contend they withdrew their agreement to the settlement before approval of the agreement by the trial court. They accordingly submit the agreement is not enforceable. We affirm judgment of the trial court enforcing the terms of the settlement agreement.

Decedent Erin Murray Jones (Ms. Jones) died in August 1998, leaving an estate of over $8 million and five wills executed over a period of twenty-four years. Ms. Jones executed a holographic will in January 1998; identical wills dated June 4, 1996, and October 28, 1996; a will dated 1993; and a will dated 1974. Ms. Jones never married, and left no children. Her heirs at law were her twelve surviving nieces and nephews.

In September 1998, Ms. Jones’ heirs and potential beneficiaries under will began this feud over her money, which, unfortunately, she did not take with her. In September 1998, the 1996 wills were offered for probate by nieces Mary McGowan and Lucy DePriest. Next of kin and beneficiaries named in the will were served with notice. Over the next four years, Ms. Jones’ heirs waged a protracted and acrimonious battle over which of the five wills was valid.

In November 1999, the court entered default judgments against heirs and legatees who failed to appear or take action in this case, including Appellants (who are brother and sister), their brother, John Burnett, and Kimberly Ingram (Ms. Ingram). In December 1999, Appellants, Mr. Burnett, and Ms. Ingram moved the court to set aside the default judgment. The trial court granted their motion in July 2000.

In April 2002, John Clemmons, then counsel for Appellants, filed a motion to withdraw as counsel for Ms. Ingram based on a conflict of interest. Upon motion of Ms. Ingram, he was later disqualified as counsel for Appellants. The matter was scheduled for trial on November 2, 2002. A pre-trial conference was scheduled for October 21, 2002. On October 18, counsel for Ms. Ingram notified the court that all parties except Appellants had reached a compromise agreement, and the pretrial conference was converted to a settlement conference by agreement of the parties. On October 22, Roger Smith (Mr. Smith), counsel for Appellants, notified the court that Appellants had accepted Appellees’ offer to settle the case. Under the settlement agreement, Appellants receive $15,000 each.

Appellants subsequently withdrew their agreement to the settlement, however, and on November 1, Mr. Smith, filed a motion to withdraw as counsel, stating as grounds Appellants’ withdrawal of consent to the settlement. The court held a hearing on Mr. Smith’s motion and Appellees’ motion to enforce the settlement agreement on November 4. Appellant Raymond Burnett (Mr. Burnett) attended the November 4 hearing and reaffirmed Appellants’ withdrawal from the settlement agreement. Mr. Burnett stated that Appellants continued to assert the validity of Ms. Jones’ 1974 will. Under this will, Appellants each would receive approximately two percent of Ms. Jones estate.

At the November 4 hearing, the court granted Mr. Smith’s motion to withdraw and also granted Appellees’ motion to enforce the settlement agreement. The trial court remarked, “[t]here is no question in my mind that this contest of wills was settled almost two weeks ago ... on Tuesday, October the 22nd.” The court noted, “I believe that there was a settlement through a judicially sanctioned settlement conference.... The court acted in reliance upon the settlements communicated.” The court asked Mr. Burnett whether Mr. Smith had spoken with Appellants about the settlement agreement, and whether they and Mr. Smith had discussed “the pros and cons.” Mr. Burnett testified that they had agreed, but had only one night to consider the offer. Mr. Burnett requested that the court allow Appellants to obtain new counsel and reschedule the matter.

At the hearing, the trial court heard proof regarding the validity of the 1998 will and admitted that will to probate subject to the provisions of the settlement agreement. On November 14, 2002, the trial court entered judgment admitting the 1998 will to probate and ordering Ms. Jones’ estate distributed according to the terms of the settlement agreement.

Issues Presented

The issues raised in this appeal, as we slightly restate them, are:

(1)Whether the trial court erred by entering judgment pursuant to the settlement agreement where Appellants withdrew their agreement to the settlement.
(2) Whether the trial court erred by disqualifying Appellants’ first counsel, John Clemmons, due to a conflict of interest.
(3) Whether the trial court erred by applying the Tennessee Rules of Civil Procedure regarding default judgments for non-appearance in a statutory will contest.

Standard of Review

The issues raised in this appeal are issues of law. Our review of a trial court’s determinations on issues of law is de novo, with no presumption of correctness. Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn.2000).

Entty of Judgment on Settlement Agreement

The pivotal issue before this Court is whether the settlement agreement entered into by the parties was enforceable. Appellants contend they withdrew their agreement to the settlement before it was approved in open court, and that the settlement agreement accordingly was not enforceable. They further argue that, since intestate succession is possible in this case, the consent of heirs at law not participating in this lawsuit is required for distribution other than by intestate succession or provisions of a valid will. Appellees argue that the trial court sanctioned the settlement agreement prior to Appellants’ attempt to withdraw their consent. They contend the agreement accordingly was enforceable.

We first address Appellants’ argument that the settlement agreement is not enforceable because it was not joined by all potential heirs at law, but only the parties to this litigation. Intestate succession is the default result absent a valid will. The trial court admitted to probate Ms. Jones’ most recent will, the 1998 will, subject to the compromise reached by the parties. Other potential heirs at law simply have not contested the validity of this will, and are not parties to this lawsuit. This argument is without merit.

We turn next to whether the trial court erred by enforcing the terms of the settlement agreement notwithstanding Appellants’ subsequent withdrawal. Appellants cite Harbour v. Brown for Ulrich, 732 S.W.2d 598 (Tenn.1987), for the proposition that the settlement agreement is not enforceable because they withdrew their agreement prior to approval of the agreement by the trial court. A consent judgment does not reflect the judgment of the court, but merely an agreement between the parties to a lawsuit which has been placed into the record by the court. Harbour, 732 S.W.2d at 599. Therefore, although the courts encourage parties to resolve disputes by agreement, generally, the court cannot enter a consent agreement if a party withdraws his consent and communicates his withdrawal to the court before the court enters a judgment. Id. The compromise agreement may be enforceable as a contract, but it may not be entered by the court as a judgment when the court knows it has been repudiated by one of the parties. Id.

In making this determination, the Harbour court quoted 49 C.J.S. Judgments § 174(b), which reads: as follows:

The power of the court to render a judgment by consent is dependent on the existence of the consent of the parties at the time the agreement receives the sanction of the court or is rendered and promulgated as a judgment.

Id. (emphasis added). Accordingly, in REM Enterprises, Ltd. v. Frye, this Court recognized an exception to the general rule. REM Enterprises, Ltd. v. Frye, 937 S.W.2d 920, 922 (Tenn.Ct.App.1996)(perm.app.denied). In REM Enterprises, we distinguished Harbour, where the settlement agreement had not been read in court and had not been made part of the Technical Record. Id. We held that under the circumstances presented in REM Enterprises, where the terms of the agreement were read in open court and the chancellor asked the parties whether they consented to the agreement, the agreement was enforceable notwithstanding subsequent disavowal by the appellant. Id.

Thus, under the proper circumstances, a trial court may enter an agreed order notwithstanding the withdrawal of consent by one of the parties before entry of the judgment. Environmental Abatement, Inc. v. Astrum R.E. Corp., 27 S.W.3d 530, 538-39 (Tenn.Ct.App.2000)(perm.app.denied). Such circumstances exist at least where the terms of the agreement were presented in open court or hearing, are on the record, and where the terms have been accepted by the court and made part of the record. Id. In such cases, the terms of a settlement agreement may be enforceable if the parties agreed to them at the time the agreement was sanctioned by the court, notwithstanding subsequent attempts to withdraw. Id.

In the present case, Appellants were not present when the settlement offer was made on October 21, 2002, but were represented by counsel, Mr. Smith, who communicated the settlement offer to Appellants. Appellants accepted the settlement offer, agreeing to settle for a total of $30,000. On October 22, 2002, Mr. Smith communicated their acceptance to opposing counsel and to the trial court. The trial court conferred with counsel for the parties, and confirmed that the matter was settled. The settlement agreement is included in the Technical Record, and clearly was sanctioned by the court prior to withdrawal by the Appellants. Further, at the November 4 hearing, Appellant Raymond Burnett testified that Appellant and Mr. Smith had discussed the agreement, and that Appellants had given their consent to it.

Appellants clearly understood and consented to the terms of the settlement agreement, which is memorialized in the Technical Record, at the time it was sanctioned by the court. We accordingly affirm entry of judgment pursuant to the terms of the agreement as entered by the trial court.

Disqualification of Counsel

Appellants contend the trial court erred by permitting John Clemmons to withdraw as counsel from this lawsuit. Mr. Clemmons initially represented Appellants and Ms. Ingram in their motion to set aside the default judgment entered against them in November 1999. In April 2002, Mr. Clemmons withdrew as counsel for Ms. Ingram based on a conflict of interest between Ms. Ingram and Appellants. The trial court then granted Ms. Ingram’s motion to disqualify him as counsel for Appellants. In their brief to this Court, Appellants argue Mr. Clemmons faced not a conflict of interests, but a conflict of “objectives or loyalties,” and accordingly should not have been permitted to withdraw as counsel.

Upon review of the record, we agree with Appellees that Appellants are arguing semantics. Appellants, Ms. Ingram, and the other parties to this action have altered their positions regarding which will to advocate according to individual mixed objectives. Once Ms. Ingram’s interests, or objectives, diverged from Appellants, Mr. Clemmons was faced with a professional conflict. He could not simultaneously advocate the validity of different wills. We affirm judgment of the trial court on this issue.

The Default Judgment

Appellants contend the trial court erred by entering a default judgment against them in November 1999. The trial court set aside this judgment in July 2000, however. Thus any error, if such error indeed occurred, was harmless. This issue is pre-termitted.

Conclusion

We affirm the judgment of the trial court in all respects. Costs of this appeal are taxed to the Appellants, Raymond Burnett and Evie Moore, and their surety, for which execution may issue if necessary.


text:
    STATE of Tennessee, Department of Children’s Services v. C.H.K, and Unknown Father. In re J.W.P.
    Court of Appeals of Tennessee, Eastern Section, at Nashville.
    Assigned on Briefs July 7, 2004.
    Aug. 13, 2004.
    Permission to Appeal Denied by Supreme Court Nov. 8, 2004.

      Kelli Barr Summers, Brentwood, Tennessee, for Appellant, C.H.K.
    Paul G. Summers, Attorney General and Reporter, and Elizabeth C. Driver, Assistant Attorney General, Nashville, Tennessee, for Appellee, State of Tennessee, Department of Children’s Services.
    Susie Piper McGowan, guardian ad li-tem, Nunnelly, Tennessee, pro se.
   SHARON G. LEE, J.,

delivered the opinion of the court,

in which HERSCHEL P. FRANKS, P.J. and D. MICHAEL SWINEY, J., joined.

OPINION

This appeal involves a petition filed by the Department of Children’s Services to terminate the parental rights of the mother to her three year old son. The Trial Court granted the petition and the mother appealed. We have determined that the Trial Court’s judgment must be vacated and remanded because the Trial Court failed to make the specific findings of fact and conclusions of law on the issue of abandonment as required by Tenn.Code Ann. § 36-l-113(k). Further, we find that the Trial Court’s judgment must be reversed since there was not clear and convincing evidence for termination pursuant to Tenn.Code Ann. § 36-l-113(g)(3)(A). Therefore, we vacate in part, reverse in part and remand.

I. FACTUAL BACKGROUND

C.H.K., the Appellant in this case, gave birth to a son, J.W.P., on January 23, 2000. In January of 2002, C.H.K. and her minor son, moved from the State of Alabama to Nashville, Tennessee to reside with her father. When she arrived in Tennessee, however, she could not find her father. She stayed with her grandmother for a couple of weeks and then checked into the Econo Lodge motel in Nashville. Sometime thereafter, C.H.K. left her two year old son in the motel room allegedly with a woman she had met while both were incarcerated. This woman was never located nor was her identity ever confirmed. The Department of Children’s Services (hereinafter referred to as “D.C.S.”) received a referral on January 26, 2002, regarding J.W.P. and, upon investigation, found the two year old child alone in the motel room with cough syrup, trash, and several open glass containers of alcohol lying around the room easily accessible to the child. The child was taken to Vanderbilt Hospital where he was examined and released. The mother could not be located and D.C.S. took the child into its custody on that date and placed him in the foster home where he continues to reside.

The record indicates that C.H.K. first learned of her son’s removal by D.C.S. around 3:00 a.m. on Sunday, January 27, 2002. The next morning she went to D.C.S. offices where she was informed that on the following Thursday, January 31, 2002, a preliminary hearing would be conducted in Juvenile Court regarding her child’s custody. When C.H.K. appeared at the Juvenile Court hearing, she was arrested upon charges of attempted child neglect for the incident which occurred at the motel. Meanwhile, the preliminary custody hearing was held as scheduled and the Juvenile Court ordered that custody of J.W.P. remain with D.C.S.

In February of 2002, a permanency plan was developed with respect to J.W.P. which designated alternative goals of returning him to C.H.K., placing him with a relative or placing him for adoption. The plan was signed by C.H.K. and approved by the Juvenile Court on March 14, 2002.

At a hearing in the Juvenile Court on June 12, 2002, the Court referee found J.W.P. to be a dependent and neglected child. The referee further ruled that C.H.K.’s visitation with J.W.P. be suspended pending a further hearing on August 8, 2002. C.H.K. appealed this decision to the Judge of the Juvenile Court, which ruling was subsequently affirmed by the Juvenile Court on March 3, 2003.

On July 18, 2002, D.C.S. filed a petition to terminate C.H.K.’s parental rights upon grounds of abandonment, failure to follow permanency plan, and persistence of conditions.

On August 8, 2002, C.H.K. pled guilty in the Davidson County Criminal Court to the offense of attempted child neglect, a class E felony, arising out of the' motel incident. Also, on that date the Juvenile Court referee ordered that C.H.K’s visitation rights remain suspended, that D.C.S. be relieved of its responsibility to facilitate visitation between C.H.K. and J.W.P., and that the permanency plan be changed to reflect adoption as its sole goal. Although a new permanency plan was developed which complied with this ruling, this plan was not signed by C.H.K.

D.C.S.’s petition to terminate parental rights was heard on October 1, 2003. On October 10, 2003, the Court entered its order terminating the parental rights of C.H.K. and “unknown father” under authority of Tenn.Code Ann. § 36-1-102(l)(A)(i), Tenn.Code Ann. § 36-1-113(G)(3)(A), and Tenn.Code Ann. § 36-1-113(1). The present appeal by the mother followed.

II.ISSUES FOR REVIEW

Issues presented for our review in this case are:

1. Is there clear and convincing evidence that C.H.K. abandoned J.W.P.?

2. Is there clear and convincing evidence of the persistence of conditions which would cause J.W.P. to be subjected to further neglect and, therefore, prevent J.W.P.’s safe return to the care of C.H.K.?

3. Is there clear and convincing evidence that the termination of parental rights is in J.W.P.’s best interest?

III.STANDARD OF REVIEW

Our standard of review in this non-jury case is de novo upon the record of the proceedings below and there is no presumption of correctness with respect to the trial court’s conclusions of law. Campbell v. Florida Steel Corp., 919 S.W.2d 26 (Tenn.1996) and Tenn. R.App. P. 13(d). The trial court’s factual findings are, however, presumed to be correct and we must affirm such findings absent evidence preponderating to the contrary. Union Carbide Corp. v. Huddleston, 854 S.W.2d 87 (Tenn.1993).

IV.ABANDONMENT

We begin our analysis of the first issue as to whether there was clear and convincing evidence of abandonment by acknowledging the well-settled rule that “parents have a fundamental right to the care, custody and control of their children.” In re Drinnon, 776 S.W.2d 96, 97 (Tenn.Ct.App.1988). The United States Supreme Court has recognized the unique nature of proceedings to terminate parental rights, stating that “[f]ew consequences of judicial action are so grave as the severance of natural family ties.” M.L.B. v. S.L.J., 519 U.S. 102, 119, 117 S.Ct. 555, 136 L.Ed.2d 473, (1996) (citing Santosky v. Kramer, 455 U.S. 745, 786, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982)). A “parent’s desire for and right to the companionship, care, custody, and management of his or her children is an interest far more precious than any property right”. Santosky, 455 U.S. at 759, 102 S.Ct. 1388. However, we are also compelled to recognize that this right is not without limitation and may be terminated if clear and convincing evidence supports termination under pertinent statutory authority. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). Our courts have defined “clear and convincing evidence” as evidence which “eliminates any serious or substantial doubt concerning the correctness of the conclusions to be drawn from the evidence” and “produce[s] in the fact-finder’s mind a firm belief or conviction regarding the truth of the propositions sought to be established.” O’Daniel v. Messier, 905 S.W.2d 182, 188 (Tenn.Ct.App.1995).

Tenn.Code Ann. § 36-l-113(c) requires that termination of parental rights be based upon the following:

(1) A finding by the court by clear and convincing evidence that the grounds for termination [of] parental or guardianship rights have been established; and
(2) That termination of the parent’s or guardian’s rights is in the best interests of the child.

Tenn.Code Ann. § 36-l-113(g)(3)(A) provides that termination of the parental rights may be based upon the ground of “abandonment” as further defined at Tenn. Code Ann. § 36-l-102(l)(A). The latter statute provides at subsection (iv) that, among other things, “abandonment” means the following:

A parent or guardian is incarcerated at the time of the institution of an action or proceeding to declare a child to be an abandoned child, or the parent or guardian has been incarcerated during all or part of the four (4) months immediately preceding the institution of such action or proceeding, and either has willfully failed to visit or has willfully failed to support or has willfully failed to make reasonable payments toward the support of the child for four (4) consecutive months immediately preceding such parent’s or guardian’s incarceration, or the parent or guardian has engaged in conduct prior to incarceration which exhibits a wanton disregard for the welfare of the child. (Emphasis added.)

The Trial Court’s order of termination provides as follows:

Upon hearing the testimony and a review of the file, the Court amends the Petition to Terminate Parental Rights and hereby conforms the Petition to the proof presented at trial. The Court finds by clear and convincing evidence that the conditions which caused the child to be placed in the Department’s custody in January, 2002, continue, in that the mother is still not available to parent this child. By her own testimony, the mother admitted she has a lengthy criminal history. She has been arrested five (5) times between 1998 and 2002 for charges of statutory rape, theft of property under five hundred dollars ($500.00), theft of property over one thousand dollars ($1,000.00), violation of probation and DUI. [C.H.K.] has five children, none of whom are in her custody. Davidson County Juvenile Court terminated her parental rights to two of her children, [C.C.K.] and [C.A.K.] in 1998. The other two children are in custody of relatives and [J.W.P.]., as previously noted, has been in foster care continuously since January 2002. The record revealed [J.W.P.] was included in a safety plan in Alabama with his sister, [A.P.], in the home of her father, [W.PJ. The mother, [C.H.K.], left Alabama with [J.W.P.] without the consent of [W.P.] or the Alabama Department of Children’s Services. According to the mother’s own testimony she left [J.W.P.] in the care of a woman with whom she (the mother) met in jail. The woman was being held on a DUI. A few weeks after [J.W.P.] was brought into custody, the mother was arrested for DUI and leaving the scene. [C.H.K.] was recently denied parole, and won’t be eligible for parole until August, 2004. Pursuant to T.C.A. § 36-l-102(l)(A) “Abandonment” means, for purposes of terminating the parental or guardian rights of parent(s) or guardian(s) of a child to that child in order to make that child available for adoption, that ... (iv) A parent or guardian is incarcerated at the time of the institution of an action or proceeding to declare a child to be an abandoned child, or the parent or guardian has been incarcerated during all or part of the four (⅜) months immediately preceding the institution of such action or proceeding, and either has willfully failed to visit or has willfully failed to support or make reasonable payments toward the support of the child for four (f) consecutive months immediately preceding such parent’s or guardian’s incarceration, or the parent or guardian has engaged in conduct prior to incarceration which exhibits a wanton disregard for the tuelfare of the child. (Emphasis in the original.)

In In re Adoption of Muir, No. M2002-02963-COA-R3-CV, 2003 WL 22794524, at *3, 2003 Tenn.App. LEXIS 831, at *9 (Tenn.Ct.App. November 25, 2003), no appl. perm, appeal filed, we discussed the duty of the trial court to enter written orders containing specific findings of fact and conclusions of law in termination cases as follows:

A trial court’s responsibility to make findings of fact and conclusions of law in termination cases differs materially from its responsibility in other civil cases. Generally, trial courts, sitting without juries, are not required to make findings of fact or conclusions of law unless requested in accordance with Tenn. R. Civ. P. 52.01. Termination cases, however, are another matter. Tenn.Code Ann. § 36-l-113(k) explicitly requires trial courts to “enter an order which makes specific findings of fact and conclusions of law” in termination cases. Thus, trial courts must prepare and file written findings of fact and conclusions of law with regard to every disposition of a petition to terminate parental rights, whether they have been requested or not.
Tenn.Code Ann. § 36 — 1—113(k) reflects the Tennessee General Assembly’s recognition of the necessity of individualized decisions in these cases. In re Swanson, 2 S.W.3d 180, 188 (Tenn.1999) (holding that termination cases require “individualized decision making”). It also reflects the General Assembly’s understanding that findings of fact and conclusions of law facilitate appellate review and promote the just and speedy resolution of appeals. Bruce v. Bruce, 801 S.W.2d 102, 104 (Tenn.Ct.App.1990).
When a trial court has not complied with Tenn.Code Ann. § 36-l-113(k), we cannot simply review the record de novo and determine for ourselves where the preponderance of the evidence lies as we would in other civil, non-jury cases. In accordance with In re D.L.B., 118 S.W.3d [360,] 365 we must remand the case for the preparation of appropriate written findings of fact and conclusions of law.

Although the Trial Court cites subsection (iv) of the statute as supporting authority for its decision to terminate parental rights in this case, the Trial Court’s order fails to set forth any findings which show either that C.H.K. was incarcerated on July 18, 2002, the date D.C.S. filed its petition instituting termination proceedings, or that she was incarcerated during all or part of the four months immediately preceding that date. Moreover, the Trial Court’s order fails to specify whether its decision is based upon a determination that C.H.K. wilfully failed to visit or support J.W.P. during the period immediately preceding her incarceration or, rather, upon a determination that C.H.K. engaged in conduct prior to her incarceration which demonstrated a wanton disregard for her child’s welfare. Although this paragraph concludes with the recitation of subsection (iv) of the statute, the second sentence indicates that the referenced supporting evidence shows a persistence of those conditions which caused J.W.P. to be removed from C.H.K.’s custody. Proof of persistence of conditions is not required under subsection (iv).

In light of these deficiencies, we are compelled to vacate the order of termination to the extent it is based upon a finding of abandonment under TenmCode Ann. § 36-l-102(l)(A)(iv) and we remand for preparation of findings of fact and conclusions of law as required by Tenn.Code Ann. § 36-l-113(k).

Y. PERSISTENT CONDITIONS

A second ground for the Trial Court’s termination of the mother’s parental rights was Tenn.Code Ann. § 36-1-113(g)(3)(A). The order provided as follows:

The Court also finds by clear and convincing evidence that additional grounds exist for termination of Respondent [C.H.K’s] parental rights to the child pursuant to T.C.A. § 36-1-113(g)(3)(A) in that the said child has been removed from the home of the parent or guardian by order of a court for a period of six (6) months and:

(i) The conditions which led to the child’s removal or other conditions which in all reasonable probability would came the child to be subjected to further abuse or neglect and which, therefore, prevent the child’s safe return to the care of the parent or guardian still persist;
(ii) There is little likelihood that these conditions will be remedied at an early date so that the child can be safely returned to the parent or guardian in the near future; and
(Hi) The continuation of the parent or guardian and child relationship greatly diminishes the child’s chances of early integration into a safe, stable and permanent home. (Emphasis in original.)

The order of the Trial Court indicates that the fact that C.H.K. was “unavailable” to care for J.W.P. was the condition which led to his removal from her custody and that such condition persisted at the time of trial in that C.H.K. remained unavailable as a consequence of her incarceration. We acknowledge that C.H.K. was unavailable to care for J.W.P. at the time of trial. The record also confirms the finding of the Trial Court that C.H.K. would not be eligible for parole until August, 2004, and, although the Court’s order does not so state, presumably the Court relied upon this finding in concluding that the condition of C.H.K.’s unavailability would not be remedied at an early date.

While it is true in a broad sense that J.W.P. was removed from the custody of his mother because she was unavailable to care for him, more precisely, J.W.P. was removed from his mother’s custody because she neglected him by leaving him alone in a motel room. The pertinent question is whether C.H.K. continues to neglect J.W.P. However, C.H.K. has not had custody of J.W.P. since his removal and has not been allowed visitation with him since suspension of visitation by the Juvenile Court referee in June of 2002. Accordingly, C.H.K. has not been presented with an opportunity to care for J.W.P. and it is not possible that she has demonstrated an intention to neglect him as she did when he was removed from her custody. Under these circumstances we disagree that it has been shown that the conditions which led to J.W.P.’s removal still persist. We recognize that TenmCode Ann. § 36 — 1—113(g)(3)(A) also provides that termination may be based upon the existence of “other conditions which in all probability would cause the child to be subjected to further abuse or neglect and which, therefore, prevent the child’s safe return to the care of the parent.” However, it is our determination that the legislature did not intend that the incarceration of a parent constitutes a condition which would cause the child to be subject to abuse or neglect except under specified circumstances. We are compelled to reach this conclusion because Tenn. Code Ann. § 36 — 1—113(g)(6) allows initiation of parental termination if “[t]he parent has been confined in a correctional or detention facility of any type, by order of the court as a result of a criminal act, under a sentence of ten(10) or more years, and the child is under eight (8) years of age at the time the sentence is entered by the court.” We believe that this subsection of the statute manifests an intent that there must be proof that the parent is incarcerated under a sentence of at least ten years before the mere fact of incarceration will constitute grounds for termination of parental rights. Such proof has not been presented in this case.

It is clear to us that C.H.K. has been guilty at times of poor parenting and bad judgment. We do not condone her conduct; however, we must follow the dictates of the legislature in making our ruling in this case. Therefore, we respectfully disagree that there is clear and convincing evidence that grounds exist for termination in this case under TenmCode Ann. § 36 — 1—113(g)(3)(A) and we reverse the order terminating C.H.K.’s parental rights to the extent that it is based upon that authority.

VI. BEST INTERESTS

Although the issue is raised as to whether there is clear and convincing evidence that a termination of parental rights would be in J.W.P.’s best interests, as is required under of Tenn.Code Ann. § 36 — 1—113(b), it would be premature to address that issue absent the establishment of grounds for termination under subsection (a) of that statute.

VII. CONCLUSION

For the foregoing reasons, the judgment of the Trial Court is vacated in part, reversed in part, and remanded for further action consistent with our decision herein. Costs of appeal are adjudged against the State of Tennessee, Department of Children’s Services.


author: PER CURIAM.

text:
    In re Paul Edward HENRY.
    No. 04-0052.
    Supreme Court of Texas.
    Jan. 14, 2005.

      Charles F. Holmans III, Law Office of Charles F. Holmans, Dallas, for relator.
    Lora A. Pickar, Unglaub Law Firm, Plano, for respondent.
   PER CURIAM.

Relator in this habeas corpus proceeding challenges his confinement in Collin County jail for failure to pay child support and past-due property taxes in accordance with a final divorce decree. We ordered the relator released on bond pending our consideration of his petition for writ of habeas corpus. We conclude that the relator’s confinement for failure to pay property taxes constituted imprisonment for a debt in violation of article I, section 18 of the Texas Constitution, and that the trial court’s commitment order is void. Accordingly, we grant the writ of habeas corpus and order the relator discharged.

Paul Edward Henry and Dawn Henry were divorced in November 1997. They had one child. The final divorce decree ordered Paul to pay weekly child support, certain debts, and the 1995 and 1996 real estate taxes due on the marital residence. Paul failed to comply with the decree, and on September 3, 2003, the trial court conducted a hearing on Dawn’s motion to enforce. On December 5, 2003, the trial court signed an order finding Paul guilty of contempt for failure to pay past-due real estate taxes and of 359 separate acts of contempt for failure to pay child support. The trial court imposed a criminal contempt sentence of confinement in the county jail for 72 hours and a civil contempt sentence requiring that Paul remain confined until he paid his ex-wife $30,141.42, which included $20,873 in past-due child support, $2,268 in interest, $4,640.42 in past-due property taxes, and $2,360 in attorney’s fees. The trial court suspended the sentence on the condition that Paul make weekly payments toward the full judgment and continue the previously ordered weekly child-support payment, but the trial court revoked the suspension in a separate commitment order signed on January 8, 2004, after Paul failed to comply with the suspension order’s conditions. Paul was ordered to serve the 72-hour criminal contempt portion of the order and was remanded to custody for confinement in the county jail until he paid Dawn the full judgment of $30,141.42, plus $860.25 in additional child support and $2,300 in additional attorney’s fees. Paul filed a petition for writ of habeas corpus in the court of appeals, which was denied. He then petitioned this Court for relief.

A commitment order is subject to collateral attack in a habeas corpus proceeding. See Ex parte Barnett, 600 S.W.2d 252, 254 (Tex.1980). A writ of habeas corpus will issue if the trial court’s contempt order is void, either because it is beyond the court’s power or because the relator has not been afforded due process. See id.; see also Ex parte Swate, 922 S.W.2d 122, 124 (Tex.1996). A commitment order that violates the Texas Constitution is beyond the court’s power and is void. See Ex parte Yates, 387 S.W.2d 377, 380 (Tex.1965). The Texas Constitution provides that “[n]o person shall ever be imprisoned for debt.” Tex. Const, art. I, § 18. Thus, although an order requiring payment of debt may be enforced through legal processes like execution or attachment, a confinement order premised on failure to pay a debt is void. See Ex parte Hall, 854 S.W.2d 656, 658 (Tex.1993) (stating “the failure to comply with an order to pay a ‘debt’ is not contempt punishable by imprisonment”).

A person may be confined under a court’s contempt powers for failure to pay child support. See Tex. Fam.Code §§ 157.001, 157.166—167; Hall, 854 S.W.2d at 658. But the obligation to support a child is viewed as a legal duty and not as a debt. See Hall, 854 S.W.2d at 658. Similarly, attorney’s fees related to child-support contempt actions are viewed as costs and are not considered a debt. Ex parte Helms, 152 Tex. 480, 259 S.W.2d 184, 188-89 (1953). In this case, the trial court clearly had authority to order Paul confined for failure to pay past-due child support and related attorney’s fees. We must decide whether the trial court also had authority to order Paul confined for failure to pay past-due property taxes.

As with child-support obligations, a person may be held in coercive contempt for failure to satisfy an obligation to deliver specific property pursuant to a division of the community estate. See Ex parte Sutherland, 526 S.W.2d 536, 539 (Tex.1975). The delivery of community property under a divorce decree is not considered payment of a debt when the delivering party surrenders property to which the former spouse is legally entitled. Id. In that instance, the surrendering spouse is, constructively, a trustee in holding the other spouse’s property; as such, the surrendering spouse is not paying a debt, but rather turning over property rightfully due the other under the divorce decree. Id.; Ex parte Preston, 162 Tex. 379, 347 S.W.2d 938, 940-41 (1961). The Henrys’ divorce decree addresses the payment of property taxes in a section devoted to division of assets and requires payment of the taxes “as a part of the division of the estate of the parties.” We must determine whether the trial court’s coercive contempt sentence for Paul’s failure to pay the court-ordered property taxes constitutes prohibited imprisonment for debt.

We have held that when a trial court finds that the particular property at issue currently exists and awards that property as part of the community estate’s division, the contemnor is not indebted to the other party, but becomes a constructive trustee who holds that party’s assets. Preston, 347 S.W.2d at 940. In such an instance, a court may find the holding party in contempt and order confinement for willfully refusing to obey an order to turn over funds to which the other party is legally entitled. Id. at 940-41. In this case, the Henrys’ divorce decree did not indicate that funds to pay the property taxes presently existed, nor did it specify particular community funds from which the property taxes were to be paid. Without such identification of existing funds, we cannot consider Paul a constructive trustee or fiduciary who holds community assets that rightfully belong to Dawn. Consequently, Paul’s obligation to pay past-due property taxes is a debt owed to the taxing entity. See Ex parte Chacon, 607 S.W.2d 317, 319 (Tex.Civ.App.-El Paso 1980, orig. proceeding) (holding that a judgment providing for payment of federal taxes is a debt owed to the federal government). The fact that the tax obligation was imposed as a part of the division of community property does not in itself transform the obligation into one enforceable by coercive contempt. See Ex parte Gorena, 595 S.W.2d 841, 845 (Tex.1979) (citing Ex parte Duncan, 462 S.W.2d 336 (Tex.Civ.App.-Houston [1st Dist.] 1970, orig. proceeding) (acknowledging that coercive enforcement of divorce decree’s recital of the parties’ agreement that relator would make payments on a car note constituted imprisonment for debt despite fact that the car was awarded to relator’s wife as part of the community property division)). We conclude that Paul’s obligation to pay property taxes as ordered in the divorce decree is a debt and therefore is not enforceable by confinement for contempt. See Tex. Const, art. I, § 18.

Paul contends the trial court’s entire commitment order is void because it assesses one coercive punishment for all acts of civil contempt when at least one of those acts is not punishable by confinement. We agree. In Ex parte Davila, we held that a contempt order requiring the relator to pay a sum of money that included amounts that could not be the basis for contempt is void and requires that the relator be discharged from confinement. 718 S.W.2d 281, 282 (Tex.1986). As in Davila, the commitment order here does not assess separate penalties for each contemptuous act; rather, it requires Paul to pay a $30,141.42 lump sum to secure his freedom. Id. This lump sum includes the past-due property taxes and associated penalties, and the commitment order confines Paul until he satisfies the full obligation. “If one punishment is assessed for multiple acts of contempt, and one of those acts is not punishable by contempt, the entire judgment is void.” Id. Because the trial court did not allocate the $30,141.42 judgment based on particular contemptuous acts, and because Paul’s failure to pay past-due property taxes as required in the divorce decree is not punishable by coercive contempt, we hold that the trial court’s entire civil commitment order is void.

Dawn suggests that any void portions of the commitment order can be severed from the valid portions of the order. As authority for her position, Dawn cites one pr e-Davila case from this Court and several cases from our courts of appeals. Those cases, however, are distinguishable in that the contempt and commitment orders in issue either separately listed the punishment for each contemptuous act, involved only the enforceability of a contempt order for inability to pay, or were decided before Davila. Ex parte Carey, 704 S.W.2d 13, 14 (Tex.1986) (pre-Davila case); In re Ross, 125 S.W.3d 549, 553 (Tex.App.-Austin 2003, orig. proceeding) (listing contempt sentences separately); In re Villanueva, 56 S.W.3d 905, 908 (Tex.App.-Houston [1st Dist.] 2001, orig. proceeding) (same); In re Patillo, 32 S.W.3d 907, 909 (Tex.App.-Corpus Christi 2000, orig. proceeding) (same); Ex parte Williams, 866 S.W.2d 751, 753 (Tex.App.Houston [1st Dist.] 1993, orig. proceeding) (same); Ex parte Ramon, 821 S.W.2d 711, 715 (Tex.App.-San Antonio 1991, orig. proceeding) (involving inability to pay support); Ex parte Linder, 783 S.W.2d 754, 758 (Tex.App.-Dallas 1990, orig. proceeding) (listing contempt sentences separately); Ex parte Conoly, 732 S.W.2d 695, 699 (Tex.App.-Dallas 1987, orig. proceeding) (involving two separate contempt orders). Here, as we have said, the commitment order does not allocate the $30,131.42 judgment based on separate contemptuous acts and contains no findings to support a lesser coercive contempt sentence. Accordingly, we are unable to reform the civil commitment order or sever any portion thereof. Had the commitment order in this case itemized the contemptuous acts and identified a discrete dollar amount for each failure to pay, our conclusion might be different.

We hold that the trial court’s commitment order is void. Accordingly, without hearing oral argument, Tex.R.App. P. 52.8(c), we grant Paul Edward Henry’s petition for writ of habeas corpus and order him discharged.

Justice GREEN did not participate in the decision.

      . Likewise, a person may be incarcerated for failure to pay a criminal fine. E.g., Ex parte Chambers, 898 S.W.2d 257, 267 (Tex.1995) (citing Dixon v. State, 2 Tex. 481, 482 (1847)). Criminal fines are not debts, and the Texas Constitution does not prohibit confinement for failure to pay such fines. Id. The failure to pay a criminal fine, however, is not an issue in this proceeding.

      . The pertinent portions of the Henrys’ final divorce decree provide the following:
      14. Division of Marital Estate.

      The Court finds that the following is a just and right division of the parties’ marital estate, having due regard for the rights of each party and the child of the marriage.
      IT IS ORDERED AND DECREED that the estate of the parties is divided as follows:

      [Dawn] is awarded the following as [Dawn’s] sole and separate property, and [Paul] is hereby divested of all right, title, interest, and claim in and to such property:
      1. The following real property [identified in Exhibit A, which contains legal descriptions of the marital residence].

      IT IS ORDERED AND DECREED that [Paul] shall pay, as a part of the division of the estate of the parties, the following and shall indemnify and hold [Dawn] and [Dawn’s] property harmless from any failure to so discharge these items:
      1. The following debts, charges, liabilities, and obligations:

      1995 and 1996 Real Estate taxes due and owing on the property described in Exhibit A ..., and shall hold [Dawn] harmless from any penalty or interest due thereon.

      . This is not to say that the trial court may not issue a new commitment order that imposes a civil contempt sentence for Paul's failure to pay child support and related attorney’s fees without imposing a coercive contempt sentence for his failure to pay property taxes. We do not, however, decide the validity of such an order today.


author: MEYERS, J.,

text:
    The STATE of Texas v. George MOFF, Appellee.
    No. 458-03.
    Court of Criminal Appeals of Texas.
    Oct. 6, 2004.
    Rehearing Denied Jan. 12 and 26, 2005.
    Michael H. Hummell, Corpus Christi, for Appellant.

      Douglas K. Norman, Asst. District Atty., Corpus Christi, Matthew Paul, State’s Atty., Austin, for State.
   OPINION

MEYERS, J.,

delivered the opinion of the Court,

in which KELLER, P.J., and WOMACK, JOHNSON, KEASLER, HERVEY, HOLCOMB, and COCHRAN, JJ., join.

The Appellee, Moff, was charged with intentional, knowing and reckless misapplication of fiduciary property. Tex. Pen. Code § 32.45(b). The indictment submitted by the district attorney failed to specify the transaction or transactions involved. Moff filed a motion to quash the indictment, which was granted by the trial court. The trial court’s order directed the State to re-file the indictment, specifying which purchases were alleged to be unauthorized. The State appealed, and the Court of Appeals reversed the trial court’s order quashing the indictment. State v. Moff, 133 S.W.3d 648 (Tex.Crim.App.2003). Appellee filed a petition for discretionary review, asserting that the trial court had the discretion to quash the indictment and to require more specificity. We granted review to determine “[wjhether a trial court abuses its discretion when it requires more specificity in an indictment alleging recklessness and spanning seven years which fails to identify which of the countless transactions during that time span the State may rely on for conviction.” We hold that this issue warrants a de novo, rather than an abuse of discretion standard of review. After a de novo review, we conclude that the Court of Appeals erred by reversing the trial court’s order because the accused was deprived of the notice required to prepare an adequate defense.

FACTS

Moff was the chief appraiser of Nueces County for twenty years. In his capacity as chief appraiser, he was responsible for making various purchases for the County. A grand jury indicted Moff for alleged misapplication of fiduciary property. The indictment read:

On or about and between January 1, 1993 and December 31, 1999, George Moff did then and there intentionally, knowingly, and recklessly misapply property, to wit: money and credit cards, of the value of $20,000.00 or more but less than $100,000.00, that the said defendant held as a fiduciary in a manner that involved substantial risk of loss to the Nueces County Appraisal District, the owner of said property, and the person for whose benefit the property was held, by using said money and credit cards to make purchases without the effective authorization of the Nueces County Appraisal District Board of Directors.

Appellee filed a motion to quash the indictment for failing to specify which purchases were made without the authorization of the Appraisal District Board of Directors. Moff was also under indictment on two other charges that might have involved the same item or items, and he argued that until he knew which purchases were alleged to be unauthorized, he could not raise the defense that the charges in the current indictment were jeopardy barred. The trial court held an initial hearing on the motion, during which the State argued that the identification of which purchases were unauthorized was an evidentiary issue that Appellee could learn through discovery. The court deferred ruling on the motion. At a subsequent hearing to determine which purchases were alleged to be unauthorized, the State acknowledged that its report on charges for the time period identified in the indictment was 60 pages long, but stated that it was not required to disclose which purchases were unauthorized. The State argued that it had not yet determined which charges it planned to use to support its case against Appellee. The trial court then granted the motion to quash and ordered the State to re-file its indictment to assert with specificity which purchases were allegedly unauthorized. On appeal, the State asserted that the indictment included all elements of the offense, and left out only evidentiary matters not required to be pled. The Court of Appeals held that the trial court abused its discretion in granting the motion to quash.

STANDARD OF REVIEW

Prior to our decision in Guzman v. State, 955 S.W.2d 85 (Tex.Crim.App.1997), abuse of discretion was the standard employed by our Court when reviewing a trial court’s decision to quash an indictment. But we did not have occasion to analyze its appropriateness. However, we now determine that a de novo review is more' appropriate in a case such as the one before us. The amount of deference appellate courts afford a trial court’s rulings depends upon which “judicial actor” is better positioned to decide the issue. Guzman, 955 S.W.2d at 89. The sufficiency of an indictment is a question of law. When the resolution of a question of law does not turn on an evaluation of the credibility and demeanor of a witness, then the trial court is not in a better position to make the determination, so appellate courts should conduct a de novo review of the issue. While this case is different from Guzman in that it involves the Appellee’s due process right to notice of the charges against him, our reasoning for modifying the standard of review is the same. The trial court’s decision in this case was based only on the indictment, the motion to quash, and the argument of counsel, so the trial court was in no better position than an appellate court to decide this issue. Because the Court of Appeals used an abuse of discretion standard of review, we will conduct a de novo review of the trial court’s ruling rather than review the decision of the Court of Appeals.

NOTICE

The right to notice is set forth in both the United States and Texas Constitutions. See U.S. Const, amend. VI; Tex. Const, art. I, § 10. Thus, the charging instrument must be specific enough to inform the accused of the nature of the accusation against him so that he may prepare a defense. State v. Mays, 967 S.W.2d 404, 406 (Tex.Crim.App.1998); Daniels v. State, 754 S.W.2d 214, 217 (Tex.Crim.App.1988); Adams v. State, 707 S.W.2d 900, 901 (Tex.Crim.App.1986). In addition, the Texas Code of Criminal Procedure provides guidelines relating to the sufficiency of an indictment. See, e.g., Article 21.03 (“Everything should be stated in an indictment which is necessary to be proved.”); Article 21.04 (“The certainty required in an indictment is such as will enable the accused to plead the judgment that may be given upon it in bar of any prosecution for the same offense.”); Article 21.11 (“An indictment shall be deemed sufficient which charges the commission of the offense in ordinary and concise language in such a manner as to enable a person of common understanding to know what is meant, and with that degree of certainty that will give the defendant notice of the particular offense with which he is charged, and enable the court, on conviction, to pronounce the proper judgment. ...”).

Here, the indictment followed the statute for misapplication of fiduciary property, which provides:

A person commits an offense if he intentionally, knowingly, or recklessly misapplies property he holds as a fiduciary or property of a financial institution in a manner that involves substantial risk of loss to the owner of the property or to a person for whose benefit the property is held.

Tex.Pen.Code. § 32.45(b). We have stated that ordinarily, an indictment is legally sufficient if it delineates the penal statute in question. Daniels, 754 S.W.2d at 218; Thomas v. State, 621 S.W.2d 158, 161 (Tex.Crim.App.1981) (opinion on rehearing); Haecker v. State, 571 S.W.2d 920, 921 (Tex.Crim.App.1978). However, these cases are different from the case before us because the issue in them relates to whether the terms used in the indictment are sufficiently specific to provide notice to the defendant. Thus, this rule applies when the indictment is framed under a statute in which the act constituting the offense is defined so that the accused is informed of the nature of the charge. Haecker, 571 S.W.2d at 921. Additionally, this rule does not mean that a trial court cannot require the State to amend an indictment which tracks the language of the statute when more notice is needed so that the accused can adequately prepare a defense.

Because fundamental constitutional protections are involved, if a defendant files a timely motion stating that the indictment does not provide adequate notice, there are some circumstances in which the trial court may require more information. In Drumm, the appellant filed a motion to quash, stating that the information failed to give sufficient notice. The trial court overruled the motion. We reversed the judgment and stated that:

Because of the fundamental notions of fairness that require adequate notice of the nature of the charges against the accused in our system of justice, a timely claim of inadequate notice requires careful consideration.... When the defendant petitions for sufficient notice of the state’s charge by motion to quash adequately setting out the manner in which notice is deficient, the presumption of innocence coupled with his right to notice requires that he be given such notice.

Drumm, 560 S.W.2d at 946-47. Thus, the accused has the right to notice that is specific enough to allow him to investigate the allegations against him and establish a defense.

We have considered issues similar to the one before us in Swabado v. State, 597 S.W.2d 361 (Tex.Crim.App.1980), and Amaya v. State, 551 S.W.2d 385 (Tex.Crim.App.1977). In Swabado, the defendant was charged with tampering with a government record. He filed a motion to quash the indictment, contending that it was vague and ambiguous due to the fact that, as a nursing home administrator for several years prior to the indictment, he routinely prepared and filed government records including monthly staffing reports. Swabado, 597 S.W.2d at 362-63. The trial court denied the motion. We held that the trial court erred in denying the motion because the indictment failed to identify the monthly staffing report on which the State would rely. Id. at 364. Thus, the statutory language was insufficient to provide the defendant with notice of the offense.

The defendant in Amaya was required to make many statements to the Department of Public Welfare. The information alleging welfare fraud failed to allege which of the defendant’s statements was false. We stated that, “if a proper exception or motion to quash is filed and brought to the attention of the court before trial, the State must then respond by amending the indictment or information to include a specific allegation of what the State will rely upon to convict.” Amaya, 551 S.W.2d at 387, citing American Plant Food Corp. v. State, 508 S.W.2d 598, 603 (Tex.Crim.App.1974). We held that the defendant was entitled, upon proper exception, to know which false statement the State would rely upon for conviction. Amaya, 551 S.W.2d at 387. Thus, as a general rale, an indictment must give the defendant notice of precisely what he is charged with so that he may prepare an adequate defense. However, in a case such as the one before us, in which each unauthorized transaction was a separate criminal act but together constitutes the single offense of misapplication of fiduciary duty, details regarding the specific acts on which the State intends to rely are not required to be Usted in the indictment, as long as they are provided by some other means.

ANALYSIS

The indictment in the case before us alleges that the illegal purchases occurred “on or about and between January 1, 1993 and December 31, 1999.” Similar to the defendant in Swabado, in his capacity as Chief Appraiser of the Nueces County Appraisal District, Moff used money and credit cards to make numerous purchases of equipment and supphes during the time period alleged in the indictment. Although the indictment correctly tracks the language of the statute, in this type of case, that alone is not sufficient to fulfill the constitutional and statutory requirements of specificity. It is unreasonable to require the defendant to gather evidence and prepare a defense for each of the credit card and cash transactions he made during the seven-year time frame in the indictment. Thus, additional information that is reasonably necessary for the defense to prepare its case must be provided. This is not to say that the State must lay out its case in the indictment, only that the defendant must be informed of the specific transactions that allegedly violate the statute. We recently stated in Kellar v. State, 108 S.W.3d 311, 313 (Tex.Crim.App.2003), that “this due process requirement may be satisfied by means other than the language in the charging instrument.” In Kellar, prior to trial, the State filed an itemized list containing the dates, check numbers, and amounts of each transaction, which provided the defendant with sufficient notice to prepare his defense. This is not meant to imply that the notice requirement is always satisfied by discovery. For example, the State may not conduct “trial by ambush,” in which the information necessary to provide notice is buried somewhere in a mass of documents turned over to the defendant. The trial court must determine whether the notice given to the defendant is sufficient and should quash the indictment if the notice is not specific enough. Therefore, the trial court did not err in quashing the indictment because the State failed to give Moff sufficiently specific notice of the particular act or acts with which he is charged.

We note that in the pre-trial hearing and at oral argument, the State suggested that Moff should look outside the indictment to a report generated by the Texas Rangers to identify the unauthorized purchases. The trial judge specifically rejected this idea and found that the documents that had been provided to Moff did not provide sufficiently specific notice to allow him to prepare his defense.

Because the indictment was quashed and the State appealed the decision of the trial court rather than re-file the indictment, there has been no trial. Since there was no trial from which to show harm, the situation before us is not subject to a harm analysis.

Conclusion

We hold that, because the State failed to provide sufficient notice to inform the accused of the specific acts for which he was charged, the trial court did not err in quashing the indictment. The judgment of the Court of Appeals is reversed, and the cause is remanded to the trial court to resume the proceedings.

PRICE, J., concurs.

      . [STATE] I think that the best working blueprint we have at this point we’ve already produced to them, which is the ranger’s 60-plus page report. So that, in terms of theory of a case at this point, that’s probably the best one we have.
      [COURT] Have you folks been talking to the — to the federal government? That’s how — that's what they do. They produce hundred-page documents and go "Somewhere in there lies the offense.”

      But it seems to me that there seems to be a notice problem. You’ve got the dollar amount but there’s got to be some documentation that says: Well, Mr. Moff, on this date did A and this is what we say he did, he misappropriated or used a credit card.

      It seems to me that if I'm going to sit here and we have a jury in the box, that a person that’s accused of a crime needs to know what he or she is accused of. For the State to say, "Well, between '93 and '99,” and produce whatever documents, and just throw it against the wall is not serving anyone, including Mr. Moff or any accused that comes into court.

      [DEFENSE] All I’m asking them to do is identify out of the thousands of pages of documents they've produced which ones reflect something that they can — that they contend was illegal.