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    Lee SIERAD And Hartford Casualty Insurance Company, Appellants v. Susan BARNETT, Successor Administrator of Estate of Leon Sierad, Appellee.
    No. 05-03-00127-CV.
    Court of Appeals of Texas, Dallas.
    May 31, 2005.

      Jeffrey Robert Sandberg, Dallas, for Appellant.
    Lee Sierad, Plano, pro se.
    Karen Cathey, Karen Cathey, P.C., McKinney, for Appellee.
    Before Justices WRIGHT and BRIDGES.

      . The Honorable Tom James, Retired, Court of Appeals, Fifth District of Texas at Dallas, was a member of the panel at the time this case was argued and submitted for decision. Due to his retirement from the Court, Justice James did not participate in the issuance of this opinion. See Tex.R.App. P. 41.1(a) & (b).

   OPINION

Opinion by

Justice BRIDGES.

This case was brought by an estate administrator against the former administrator and Hartford Casualty Insurance Company, which served as the former administrator’s surety. Hartford challenges the legal and factual sufficiency of the evidence to support the $180,000 damage award. In eighteen additional issues, Hartford asserts the trial court erred in 1) refusing to sign a “judgment” purportedly rendered earlier in the same proceeding, 2) refusing to enforce a purported rule 11 agreement, 3) awarding damages for the full amount of each bond, 4) taking judicial notice of the content of files in related matters in the underlying probate proceeding, 5) refusing to exclude evidence as a discovery sanction, 6) admitting lay-opinion testimony, 7) admitting hearsay evidence, and 8) admitting documents without proof of authentication. We affirm the trial court’s judgment.

Facts

Leon Sierad died intestate in June 1996, leaving two daughters, Lee Sierad and Stephanie Sierad. In July 1996, Lee was appointed temporary administrator, and in August 1997 she was appointed permanent administrator. Hartford served as Lee’s surety in both capacities, posting a separate bond of $90,000 for each.

Stephanie opposed Lee’s appointment as permanent administrator, filing her own application for that post. The matter was set for hearing on May 16, 1997, but at that time, the parties agreed to a two-month delay to try to reach a settlement. The parties announced an interim agreement, which the trial court noted in its docket. Lee’s attorney wrote a letter agreement, which essentially stated that Lee would remain rent-free in the home and would receive reimbursement for payments on the mortgage, and Stephanie would have possession of the Mercedes automobile and would insure it at her own expense. The attorneys for the parties signed the letter but never filed it. Some four years later, Hartford found the letter and filed it in this proceeding. It was disputed whether the parties had ever reached agreement on the terms in the letter.

Early on in her term as administrator, Lee filed a preliminary inventory showing the value of the estate as $206,345. Subsequently, Lee let the mortgage payments lapse, and eventually the lender brought a foreclosure proceeding (the “A” proceeding, commenced in November 1998). In January 2000, Stephanie filed this action (the “B” proceeding) against Lee and against Hartford as her surety. She alleged Lee had breached her fiduciary duty by failing to pay the mortgage or to pay rent on the house and failing to provide documentation to Stephanie so that she could register and insure the Mercedes. In March 2000, in the A proceeding, the court signed an order approving foreclosure on the house. In April 2000, Lee sold the house.

Thereafter Lee could not be located. On May 16, 2001, the court ordered Lee removed as permanent administrator, noting her whereabouts were unknown. Susan Barnett was named successor administrator, and Lee was ordered to turn over all estate property to Barnett. On May 25, 2001, a bench trial was held, based on Stephanie’s complaints about the house and car. On June 6, 2001, the trial court filed written findings and conclusions, finding that Lee had wasted $3,607, the net proceeds from the sale of the house. Some months later, the trial court denied Hartford’s motion to enter judgment on the findings and conclusions related to the proceeding on May 25.

Barnett joined as plaintiff in this proceeding. She pursued locating Lee, which she testified took about a year. After ascertaining the status of assets, Barnett amended the petition, substantially expanding the claims. Stephanie nonsuited her claim. A bench trial was held on December 6, 2002 when the court reopened the proceedings.

The trial court found that from the time Lee qualified as temporary administrator, “Lee immediately began treating the estate’s property as her own,” in derogation of the rights of others. The'court concluded the letter was not a “binding rule 11 agreement,” noting that it failed for want of consideration. Because Lee never took the action necessary to ensure Stephanie could use the Mercedes, Lee in turn lost the right to possess the house rent-free. This resulted in a loss in rentals and equity of $62,349, plus prejudgment interest of $24,176. In addition, the court found that “Lee also converted most of the decedent’s personal property to her own use, and wasted most of what was left.” Losses of personal property totaled $122,711, plus interest of $68, 914. Lee was also held liable for professional fees totaling $64,100. Accordingly, the trial court rendered judgment against Lee for $342,250 and against Hartford for $180,000, the combined maximum amount under the bonds.

Hartford appealed. Although Lee filed a notice of appeal, her attorney has withdrawn and no briefs have been filed on her behalf. Therefore, we dismiss her appeal for want of prosecution. Tex.R.App. P. 38.8(a)(1).

I.Sufficiency of Evidence on Injury and Damages

In its eighteenth issue, Hartford argues the evidence is legally and factually insufficient to support either that Lee caused economic loss to the estate or the amount of the damages awarded.

Once assets are traced to a fiduciary, a presumption arises that those assets were in her possession and the burden shifts to the fiduciary to account for the assets. Beaumont Bank, N.A. v. Butter, 806 S.W.2d 223, 226 (Tex.1991). A fiduciary has an ongoing duty to account fully for assets within her trust. Corpus Christi Bank and Trust v. Roberts, 597 S.W.2d 752, 755 (Tex.1980). See Scott v. Taylor, 294 S.W. 227, 231 (Tex.Civ.App.-Amarillo 1927, no writ) (burden on fiduciary to show all expenditures were just, necessary and correct and to turn over remaining assets); Garcia v. Garcia, 878 S.W.2d 678, 680 (Tex.App.-Corpus Christi 1994, no writ) (when fiduciary fails to file proper inventories and accounts, burden on fiduciary to show validity of deductions from assets).

When we review the findings for legal sufficiency, we consider only the evidence and inferences tending to support the finding and disregard all the evidence and inferences to the contrary. Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex.1995). We uphold the finding if it is supported by more than a scintilla of evidence. Id. When reviewing findings of fact for factual sufficiency, we consider and weigh all of the evidence and set aside the finding only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). We review challenges to a trial court’s conclusions of law as a matter of law. Boyd v. Diversified Fin. Sys., 1 S.W.3d 888, 890 (Tex.App.-Dallas 1999, no pet.).

The trial court found that Lee had wasted or converted estate assets as follows:

1. value of rentals and equity in house: $62,349; prejudgment interest: $24,176
2. value of the vehicles, $54,450
3. unauthorized withdrawals: $8,455
4. Bank of America account: $18,717
5. the Guaranty Federal Bank “estate account”: $192
6. bank fees: $330
7. Home Savings account: $2,921
8. insurance claim proceeds: $2,147
9. money order: $999
10. receivables: $14,500
11. household items: $20,000
12. prejudgment interest on loss on household property: $68,914.

Bearing in mind our conclusions on the letter agreement and on evidence issues, as discussed below, we have reviewed the record evidence. Concerning the house, the record shows Lee never paid rent and quit making payments on the mortgage. The testimony of Mark Beaty, the real estate expert, and of Barnett support that the estate lost the value of rental payments (46 months at $1250 per month) and equity in the home (compared to values had Lee timely sold the home), totaling a net loss of $62,349, with prejudgment interest totaling $24,176.

Concerning lost value on the vehicles, the amount of damages was based on Lee’s preliminary accounting valuing the vehicles at $65,000 and a final order approving a sale yielding cash proceeds of $7,050. The Mercedes, distributed to Stephanie, was valued at $3,500. The resulting net loss to the estate totaling $54,450 is thus supported by the evidence.

The amount of loss on unauthorized ■withdrawals on Leon’s business account, called the Texwood Sales account, the Bank of America account, the “estate account” at Guaranty Federal Bank, wasteful bank fees, and Home Savings account are all supported by documentary evidence or testimony, or both. The evidence supports the fact that Lee did not account for the disposition of those assets.

Documents and testimony supported that Lee never accounted for $2,147 in insurance proceeds concerning a covered loss on the house. Testimony supported that Leon had a $999 money order in his possession and that Lee did not account for it. The $14,550 in receivables was supported by evidence of a loss with respect to the Texwood Sales account ($7,500), an outstanding loan rendered un-collectible by the limitations having run, and a witness testified to the existence, shortly after Leon’s death, of over $7,500 in various receivables.

Concerning the value of household furnishings, three witnesses testified, each of whom had personally seen the furniture and owned furniture of a similar kind. Each gave a value of at least $20,000. Barnett presented calculations to support prejudgment interest on the loss on personal property in the amount of $68, 914. Lee’s testimony indicated she either disposed of the furnishings before moving out of the house or took them with her. When asked what happened to some of the more valuable furnishings, Lee responded that it was old and falling apart, or broken and no longer worth anything.

In addition, there is evidence to support a finding that Lee’s breach of her duties necessitated additional professional fees. The evidence supports as reasonable and necessary the award of $57,500 in attorney’s fees for Karen Cathey, the estate’s attorney during Barnett’s administration. The court awarded as well an additional $10,000 in the event of this appeal. Cath-ey testified that attorney’s fees for her firm, as of eight days before trial, were $57,352, that certain expenses were not included in the fee nor were subsequent days in trial included. She further testified that this fee was reasonable and necessary. The amount of time spent in the probate proceeding was directly the result of Lee’s failure to administer the estate properly. The firm extended funds for investigations to find Lee, which took about a year. Efforts to close the estate were hampered by “our inability to locate documents and assets and the necessity to file a motion to sell assets.” A portion of the time was on “this litigation,” which was “cumbersome,” given opposing counsels’ vigorous defense. She noted that more than the usual amount of time was required in the pre-trial phase and in preparing a trial brief and two supplemental briefs. The award of $1,600 in accountant’s fees and Barnett’s administrator’s fee of $5,000 are also supported by the evidence.

In sum, we conclude there was ample evidence that, through her acts or omissions, Lee caused waste or loss in the amounts of damages awarded concerning estate assets and the professional fees. Burroughs Wellcome, 907 S.W.2d at 499. Further, reviewing all of the record evidence, these findings are not so contrary to the overwhelming weight of the evidence so as to be clearly wrong or unjust. Cain, 709 S.W.2d at 176. We resolve Hartford’s eighteenth issue against it.

II. Refusal to Adopt Findings and Conclusions from Earlier Hearing

In its first issue, Hartford argues in essence that the trial court erred in refusing to enter judgment after the first bench trial, asserting that the findings and conclusions from June 2001 were tantamount to the court’s rendering of judgment.

We conclude that the trial court did not err in refusing to enter judgment on its initial conclusions in this proceeding. A trial court has the inherent authority to change or modify any interlocutory order or judgment until the judgment becomes final. Rush v. Barrios, 56 S.W.3d 88, 98-99 (Tex.App.-Houston [14th Dist.] 2001, pet. denied) (court may properly grant summary judgment after previous denial, without motion or prior notice so long as court has jurisdiction); see H.S.M. Acquisitions, Inc. v. West, 917 S.W.2d 872, 876-877 (Tex.App.-Corpus Christi 1996, writ denied). Indisputably, the trial court had jurisdiction over this proceeding, and therefore it had authority to reconsider its previous ruling. We resolve Hartford’s first issue against it.

III. Refusal to Enforce “Rule 11 Agreement”

In its seventeenth issue, Hartford complains that the trial court erred in refusing to enforce a “Rule 11” agreement, purportedly effecting a settlement between Lee and Stephanie. Rule of civil procedure 11 provides that no agreement between attorneys or parties touching on a pending suit will be enforced unless 1) the agreement is in writing, signed and filed as part of the record, or 2) the agreement is made in open court and entered of record. Tex.R. Civ. P. 11; Padilla v. LaFrance, 907 S.W.2d 454, 459 (Tex.1995).

The trial court made findings and conclusions as follows: The agreement could have been fully credited within the probate proceeding “had Lee fulfilled certain conditions inherent in the agreement,” and by not furnishing Stephanie necessary information to insure, register or otherwise maintain the car in her resident state, “Lee destroyed Stephanie’s ability to use it.” The trial court concluded, “Consideration for Stephanie either failed, became wanting, or both; because the contract failed, Lee lost the contractual right to possess the residence without paying rent to the estate.” The court further concluded that “the agreement is not, as Lee and Hartford Casualty now contend, a binding Rule 11 agreement.”

Hartford contends the trial court’s conclusion that the agreement was not binding is not supported by the evidence. We disagree. Stephanie’s attorney testi-fled that Stephanie could not get the insurance on the Mercedes renewed without action by Lee, as administrator. He attested that he requested from Lee’s attorney written documentation showing permission to use the car, to enable Stephanie to register and insure the car. No documentation was forthcoming and, consequently, Stephanie was forced to store the car and continue negotiating with Lee. This is more than a scintilla of evidence to support the trial court’s determination. Further, the evidence Hartford points to does not support our setting aside the trial court’s finding as factually insufficient. Accordingly, there is both legally and factually sufficient evidence to support the trial court’s refusal to enforce the purported rule 11 agreement. We resolve Hartford’s seventeenth issue against it.

IV. Liability Under Bonds

In its nineteenth issue, Hartford asserts error because of insufficient evidence of injury during both the temporary and permanent administration so that the estate suffered damages above the penal amount of the two bonds.

In determining that Hartford was liable for the maximum amount under each bond, the trial court found that Lee was never discharged from either administration and concluded, “Lee’s conduct constituted a pattern of waste, conversion, and breach of fiduciary duty that began as temporary administrator and continued until she was finally removed as permanent administrator.” The court added, “As a quantity, the loss only increased from the time it began until the time Lee was removed.”

The liability of a temporary administrator and her surety continues until paid. Drake v. Trinity Universal Ins. Co., 600 S.W.2d 768, 772 (Tex.1980). Lee, as permanent administrator, and her surety were liable for any failure to recover from herself as previous administrator. See Ward v. Maryland Cas. Co., 140 Tex. 124, 166 S.W.2d 117, 120 (1942), impliedly overruled on other grounds, Johnson & Higgins of Tex. v. Kenneco Energy, 962 S.W.2d 507 (Tex.1998). A surety remains liable under the bond for a temporary administrator, even though the administrator’s continuation of acts causing losses to the estate occurred after the temporary administration ended. Gulf Ins. v. Blair, 589 S.W.2d 786, 787-88 (Tex.Civ.App.-Dallas 1979, writ ref d n.r.e.).

Lee’s fiduciary duty as administrator required her to account fully for the estate’s assets and timely close the estate. Once Barnett traced an asset to Lee’s hands and showed the amount of loss, the burden was on Lee to, account for any claims or expenses as reasonable and necessary or to otherwise account for the loss, or loss of value, in the assets. See Buller, 806 S.W.2d at 226; Roberts, 597 S.W.2d at 755; Scott, 294 S.W. at 231. She failed to meet -that burden in either her role as temporary administrator or as permanent administrator. She also failed, in the latter role, to recover assets from herself as previous administrator. Accordingly, the trial court did not err in concluding that Hartford was liable for $90,000 on each bond. We resolve Hartford’s nineteenth issue against it.

V. Judicial Notice of Related Court Files

In its second and third issues, Hartford argues that the trial court erred in taking judicial notice of Hartford’s two bonds covering Lee. Hartford argues that Barnett failed to meet her burden of producing the two bonds, and thus there was no evidence of a written surety contract nor was there evidence of what obligations Hartford might have under such a contract.

“It is well recognized that a trial court may take judicial notice of its own records in a cause involving the same subject matter between the same, or practically the same, parties.” Gardner v. Martin, 162 Tex. 156, 158, 345 S.W.2d 274, 276 (1961). A court may take judicial notice, whether requested or not. Tex.R. Evid. 201(c). The trial court need not announce it is taking judicial notice. Dutton v. Dutton, 18 S.W.3d 849, 856 (Tex.App.-Eastland 2000, pet. denied). The court may be presumed to have taken notice of its own files. Harper v. Killion, 162 Tex. 481, 485, 348 S.W.2d 521, 523 (1961).

The trial court took judicial notice of “all court papers on file” to the extent permitted by law. The record includes the two bonds as part of the probate proceeding. Thus they were part of the evidence judicially noticed by the trial judge in the instant proceeding. We resolve Hartford’s second and third issues against it.

VI. Refusal to Exclude Evidence as Sanction for Disclosure Deficiencies

In its sixth, eighth, fifteenth, and sixteenth issues, Hartford asserts that the trial court erred in failing to exclude evidence that Hartford contends was either not disclosed before trial or untimely disclosed. Hartford complains that Barnett was late in disclosing the identity of the real-estate expert on valuation and rental value, Mark Beaty, and that Barnett failed to disclose the purported expert “report” he referred to when testifying. Hartford also asserts that Barnett failed to disclose its valuation of the estate vehicles, was late in disclosing certain bank documents, and faded to disclose the amount of professional fees owing by the estate, including attorneys’s fees for Cathey, the estate’s attorney.

The decision whether to admit evidence rests within the discretion of the trial court. E.I. du Pont de Nemours and Co., Inc. v. Robinson, 923 S.W.2d 549, 558 (Tex.1995). The test for abuse of discretion is whether the trial court acted without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985). An appellate court must uphold the trial court’s evidentiary ruling if there is any legitimate basis for the ruling. Id.

Under civil-procedure rule 193.6, a party who fails to supplement a discovery response in a timely manner may not introduce in evidence the untimely disclosed information unless the court finds that there was good cause or no unfair surprise or prejudice to the other party. Tex.R. Civ. P. 193.6(a). The burden of establishing this exception is on the party seeking to call the witness or introduce the evidence. Id. 193.6(b).

In its findings and conclusions, the trial court concluded that neither Hartford nor Lee was unfairly surprised or prejudiced by any disclosure deficiencies. The trial court found, in essence, that Lee, with Hartford’s participation or acquiescence, engaged in two devices to distract Barnett from her tasks as administrator: through putting Barnett to an evidentiary hearing to sell the estate’s vehicles and by placing obstacles to Barnett’s discovering estate documents that Lee failed to provide. The court’s findings and conclusions, in sum, follow:

• Hartford’s liability derives only from its status as Lee’s surety, thus Lee’s defenses are Hartford’s defenses; Hartford did not seek indemnity from Lee.
• Lee objected to Barnett’s application to sell estate vehicles, necessitating an evidentiary hearing in November, the month before trial in this cause. Hartford was present and acquiesced in Lee’s objection. The court concluded the objection was frivolous, oppressive, and harassing.
• It was in Hartford’s interest that Barnett be blocked from selling the vehicles. Unable to sell, Barnett would need to distribute the assets to heirs, and the loss in value in the assets would be the heir’s loss, “rather than Lee’s and Hartford Casualty’s loss associated with Lee’s disastrous performance as administrator.”
• All the evidence Lee and Hartford contended should have been excluded pertained to information about the estate’s assets and their value — which property Lee once controlled.
• Lee did not comply with an order to turn over estate property and records.
• Barnett was put to both a show-cause process and discovery to obtain administrative information from Lee.
• Barnett sought relevant bank account records from Lee, and Lee’s attorney agreed to expedite discovery, but reneged, and both Lee and Hartford resisted Barnett’s effort to subpoena the same records from the banks; the court concluded the “unjustified breach” by Lee of the discovery agreement, reinforced by Hartford, was frivolous, oppressive, and harassing.
• Barnett’s late disclosure of evidence was a result of the above-noted distractions.
• Lee and Hartford were not unfairly surprised or prejudiced by production that occurred within thirty days.

Hartford complains the trial court erred in admitting Beaty’s expert testimony on valuation of the house because (1) Barnett did not disclose the real-estate expert within sixty days before trial, and (2) Barnett first disclosed at trial the report Beaty used in testifying and the fact that his wife had helped prepare the appraisal.

On these issues, the trial court specifically found as follows:

• Barnett disclosed Beaty, the real estate expert, after sixty, but within thirty days of trial, disclosing his mental impressions and opinions as well as a summary of the basis for his expert opinion; Barnett disclosed that certain items were available for inspection and copying.
• Neither Lee nor Hartford paid any attention to any such items offered for inspection, including any appraisal, although Hartford’s counsel acknowledged, three days before trial, that he knew the items were still available for inspection; rather Hartford and Lee intentionally bypassed their opportunity to discover what was necessary to be ready for trial.

One court has held that a trial court did not abuse its discretion in allowing expert testimony, even though some disclosure was untimely and the testifying expert referred to an undisclosed “consulting expert” at trial. Birnbaum v. Alliance of American Insurers, 994 S.W.2d 766 (Tex.App.-Austin 1999), disapproved on other grounds, In re Bass, 113 S.W.3d 735 (Tex.2003). The Bimbaum court noted that the answers to interrogatories, though inadequate, did disclose the subject of the expert’s testimony, and the expert was made available but the complaining party did not take a deposition. The court determined that, from this record, the trial court could have reasonably concluded the appellant had adequate opportunity to learn the opinions of the expert.

As in Birnbaum, the trial court concluded that Hartford was not unfairly surprised or prejudiced by deficiencies in disclosure concerning Beaty or the personnel who assisted in the work preparatory to his testifying. The trial court did not abuse its discretion in refusing to exclude Beaty’s testimony or the document admitted as a summary of his testimony.

Hartford argues that the trial court erroneously allowed Barnett to testify to the value of the estate’s vehicles because Barnett failed timely to disclose that information in discovery. Documents in the probate proceeding show Lee’s initial accounting valuing the vehicles at $65,000 and the final order approving sale for value amounting to $10,550. Barnett advanced those same values in this proceeding. Hartford does not challenge the trial court’s finding that it was present at the evidentiary hearing on Lee’s objection to Barnett’s selling of the vehicles. We conclude the trial court had ample evidence to support its conclusion that Hartford was not unfairly surprised or prejudiced by admission of evidence of the same vehicle values used in the probate proceeding. The trial court did not abuse its discretion in refusing to exclude this evidence.

Hartford also complains that the trial court erred in admitting documents from Guaranty Bank and Bank of America, because Barnett did not disclose those until shortly before trial. We note the trial court found that Hartford joined in Lee’s efforts to resist Barnett’s efforts to obtain the documents directly from the banks. Thus, the record supports a finding of lack of unfair surprise or prejudice. We conclude the trial court did not abuse its discretion in refusing to exclude the bank documents based on untimely disclosure. Tex.R. Civ. P. 193.6(b); Downer, 701 S.W.2d at 241-42 (evidentiary ruling upheld if any legitimate basis exists for it).

The trial court awarded a total of $64,100 in professional fees, including attorney’s fees of $57,500, accountant fees of $1,600, and $5,000 as Barnett’s administrator’s fee. Hartford argues the trial court erred in not excluding testimony of the estate’s attorney, Karen Cathey.

Barnett’s discovery response, dated November 4, stated that administrative expenses of no less than $30,000 would be incurred to resolve accounting issues and “to pursue the claims set forth in this litigation.” The response also stated there was “a minimum of $54,000 payable to third parties for administrative expenses and estate obligations.” We conclude that the trial court could have concluded that Hartford was not unfairly surprised by the amount of fees, including attorney’s fees, that Barnett claimed as administrative expenses the estate owed. We resolve the discovery aspects of Hartford’s sixth, eighth, fifteenth, and sixteenth issues against it.

VII. Lay-Opinion Testimony

In its fifth issue, Hartford challenges the lay testimony admitted to establish that the household furnishings were worth at least $20,000. At trial Hartford objected to each of the three witnesses on the basis that they were not experts.

Rule of evidence 701 permits a lay-witness opinion if the witness bases his opinion on his perception and if his opinion helps in determining a fact in issue. Tex.R. Evid. 701. Lay witnesses can give opinions on damages as long as they testify about matters within their knowledge. Coker v. Burghardt, 833 S.W.2d 306, 309 (Tex.App.-Dallas 1992, writ denied). A lay witness can testify about value if he has personal knowledge of facts forming the opinion, a rational connection exists between the facts and opinion, and the opinion is helpful. Laprade v. Laprade, 784 S.W.2d 490, 492 (Tex.App.Fort Worth 1990, writ denied). See Star Houston, Inc. v. Kundak, 843 S.W.2d 294, 299 (Tex.App.Houston [14th Dist.] 1992, no writ) (car is so central to modern life that owner is generally capable of filtering and processing information on value).

Molly Brunken, Leon’s fiancé, testified she was a frequent visitor in Leon’s home, was familiar with the furnishings, and that she owned comparable furnishings. Based on an earlier professional evaluation of her own furniture and the quantity and quality of Leon’s furnishings, she estimated they were worth around $20,000. Duane Aam-odt, who had lived in Leon’s house after his death, and Craig Tyler, Leon’s best friend, each testified they owned home furnishings similar to Leon’s. They estimated the value, respectively, as between $20,000 and $25,000 and between $25,000 and $30,000.

Accordingly, the record evidence establishes a basis for personal knowledge of the witnesses and a rational connection of that knowledge with the opinion. We cannot conclude that the trial court abused its discretion in admitting the opinion testimony on the value of household furnishings. Coker, 833 S.W.2d at 309. We resolve Hartford’s fifth issue against it.

VIII. Hearsay Objections

In its sixth, seventh, ninth, tenth, eleventh, twelfth, and thirteenth issues, Hartford objected that certain plaintiffs exhibits, and testimony based on them, were inadmissible hearsay. Barnett asserts that the challenged documents fall within the purview of the business records exception to the hearsay rule. We review below the challenged documents and testimony and determine that the trial court did not abuse its discretion in concluding that the documents and testimony were admissible.

Hearsay is “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Tex.R. Evid. 801(d). Rule 803(6) is the “business records exception” to the hearsay rule. Tex.R. Evid. 803(6). A “business record affidavit” conforming to the requirements of rule 803(6) will suffice to render such records admissible. Tex.R. Evid. 902(10).

Rule 803(6) permits “the custodian or other qualified witness” to verify business records according to the criteria in that rule “unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.” Tex.R. Evid. 803(6). When one business relies on another business’s records as its own and has verified for itself the accuracy of those records, such documents have been admitted so long as circumstances do not otherwise indicate a lack of trustworthiness. See Cockrell v. Republic Mortgage Ins. Co., 817 S.W.2d 106, 112-113 (Tex.App.-Dallas 1991, no writ) (second-party business records admissible when relied on by first party to make business payment and nothing in record or circumstances concerning generation of records indicated lack of trustworthiness); Duncan Dev. Inc. v. Haney, 634 S.W.2d 811, 813-14 (Tex.1982) (business records can comprise records of another business if latter determines accuracy of such records).

Hartford objected to documents Barnett used to establish the loss to the estate concerning Leon’s house, which occurred during Lee’s administration. Home Savings was the initial mortgage holder, succeeded by Washington Mutual. One document bearing the Home Savings logo showed the balance of the mortgage during the month of Leon’s death. This document was self-authenticated as to Lee and admitted through Lee. She attested that the accounting she submitted in the probate proceeding approximated that same amount. That accounting was judicially noticed in this proceeding.

A number of the documents concerning the house were duplicates of evidence duly admitted in related proceedings in this case. These included Washington Mutual’s verified “Authenticated Secured Claim” and its business record affidavit used to support its secured claim in the foreclosure proceeding (the A proceeding). Hartford points us to no evidence indicating the documents were inadmissible hearsay in the related proceedings.

The closing statement, generated during Lee’s administration, showed that the estate netted $3,607 from the sale of the house. Barnett received the document through the former attorney for the estate, who was employed during Lee’s administration. Lee was a party to the transaction represented by the closing statement, and she testified that it was her signature on the document. Although in a position to question its veracity, she did not deny the accuracy of the closing statement.

Hartford also objected to admission of the statement of account from Home Savings, the mortgage company, showing a $2,921 balance in Leon’s account. Barnett testified she discovered the existence of this unaccounted-for positive balance in documents related to the mortgage. These documents were faxed directly from Washington Mutual, Home Savings’ successor. When Lee was asked about the account, she could not recall it specifically. When asked whether the home loan was with Home Savings, she testified, “I believe so.” When asked whether she knew Leon had an account with Home Savings (used to service the mortgage), she stated “I think he did.” Despite her equivocal responses, the accountings Lee filed as administrator show disbursements to “Home Savings of Am.” for “mortgage payments.”

Hartford also objected to admission of a copy of a check for $2,147, payable to Leon and the mortgage company, from Farmers Insurance Group. It was accompanied by an explanation showing how Farmers had derived the amount due on the claim for roof repair. Barnett testified that she received the documents through Lee’s former attorney.

Hartford also asserts error in admitting Duane Aamodt’s testimony that he saw records, shortly after Leon’s death, that showed at least $10,000 in receivables. Aamodt’s testimony is not hearsay to establish that records of receivables existed. The trial court did not abuse its discretion in admitting Aamodt’s testimony concerning receivables of the estate that he personally saw and Lee neither produced nor explained. See Hayes v. Bouligny, 420 S.W.2d 800, 802 (Tex.Civ.App.-Corpus Christi 1967, no writ) (when instrument has been lost, production of original is excused; other evidence to prove contents of documents may be admitted).

Hartford also challenged Mark Beaty’s testimony as hearsay. The record shows Beaty himself testified as a real-estate expert, and he offered the values as his own opinion. Thus, this testimony was not hearsay.

In addition, Hartford asserted certain of Barnett’s testimony was inadmissible hearsay. Barnett’s testimony concerning the balance in the Bank of America account was cumulative of the lengthy exhibit consisting of bank statements, which were accompanied by the bank’s business-record affidavit. Barnett’s statements reiterating values on the house according to Beaty was cumulative of his testimony. Her testimony concerning the mortgage balance was established by documents in evidence, as discussed above. Accordingly, any error in admitting any testimony of Barnett that was hearsay was harmless under appellate rule 44.1. Tex. R.App. P. 44.1. Accordingly, we resolve the hearsay aspects of Hartford’s sixth, seventh, ninth, tenth, eleventh, twelfth, and thirteenth issues against it.

IX. Authentication of Certain Evidence

In its fourth, ninth, tenth, eleventh, and thirteenth issues, Hartford complains that certain evidence was never authenticated, including the Home Savings/Washington Mutual documents, the closing statement, and the insurance claim form and check.

The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. Tex.R. Evid. 901. A document may be authenticated by “[ajppearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.” Id. 901(b)(4). Under evidence rule 104(a), when authenticity is challenged, the trial court must determine preliminary questions of admissibility. Tex.R. Evid. 104(a). This determination will not be overturned absent an abuse of discretion. Steenbergen v. Ford Motor Co., 814 S.W.2d 755, 760 (Tex.App.-Dallas 1991, writ denied).

We examined above, in our analysis of Hartford’s hearsay issue, the circumstances concerning the origin and admission of each of the documents Hartford asserts was not authenticated. We conclude that the trial court could have concluded that the proferred documents were genuine and that the court did not abuse its discretion in admitting the challenged documents.

Hartford also asserted admission of the two bonds was in error because Barnett failed to authenticate them. This argument is without merit. The trial judge signed the bonds in the probate proceeding. See Tex. Peob.Code Ann. § 197 (Vernon 2003) (required bonds shall be subscribed by both principals and sureties, and when approved by the court, shall be filed with the clerk). Moreover, Hartford was a signatory to the bonds and did not deny that its representative signed the bonds nor did Hartford otherwise question their genuineness. We conclude that the trial court did not abuse its discretion in overruling Hartford’s objections to authenticity. We resolve the authentication aspects of Hartford’s fourth, ninth, tenth, eleventh, and thirteenth issues against it.

We dismiss Lee Sierad’s appeal and affirm the trial court’s judgment against Hartford.

      . For example, when asked what happened to the big-screen TV, she testified that it was dropped when she moved from the house and destroyed. When questioned about the master bedroom furnishings, which the other witnesses had described as very nice furniture, Lee stated it was falling apart so she gave pieces of it to charity and set the rest of it out in the alley.

      . In its findings and conclusions, the trial court found that "Barnett’s reasonable and necessary attorneys fees were $57,500; and if either Lee or Hartford Casualty appeals, those fees would increase by $10,000.”

      . Whether the parties ever reached a meeting of the minds on the terms in the purported Rule 11 agreement was highly disputed. Stephanie’s attorney testified that he and Lee’s attorney agreed that the letter did not embody the agreed terms and that Lee’s attorney agreed not to file it. Lee’s attorney could not recall that conversation or the reason why he did not file the agreement. We assume ar-guendo that the parties agreed to the terms set forth in the subject document.

      . In its fifteenth issue, Hartford also asserted that Barnett’s testimony on future accountant’s fees was hearsay and that she failed to disclose she would testify as an expert on such fees. When Barnett first testified to the accountant’s fees, Hartford did not object on the bases it now asserts. Accordingly, Hartford failed to preserve these alleged errors. Tex.R.App. P. 33.1.

      . In its fourteenth issue, Hartford complains that the trial judge found the house was sold at foreclosure. The court held that, by failing to service the mortgage, Lee "enabled” the lender to foreclosure. There was no finding that the house was sold through a public foreclosure sale. Rather, it was undisputed the house was sold through a private sale.


source: Caselaw Access Project

author: FRANCIS, Justice.

license: Public Domain

text:
    LAW OFFICES OF WINDLE TURLEY, P.C., Appellant v. Robert L. FRENCH, Individually and on Behalf of the Estate of Yelma Rae French, Deceased, Robert R. French, Gwenda Dunn, Linda Gilliland, and Robin French, Appellees
    No. 05-04-00112-CV.
    Court of Appeals of Texas, Dallas.
    June 2, 2005.

      Thomas B. Cowart, Law Office of Win-dle Turley, P.C., Dallas, for Appellant.
    Wade Caven Crosnoe, Thompson, Coe, Cousins & Irons, L.L.P., Austin, Michael Sawieki, Brown, Sawicki and Mitchell, Dallas, for Appellee.
    Before Justices MOSELEY, FRANCIS, and MAZZANT.
   OPINION

FRANCIS, Justice.

This is a sanctions case arising out of a lawsuit for attorney fees. The Law Offices of Windle Turley, P.C. sued appellees Robert L. French, individually and on behalf of the estate of Velma Rae French, deceased, Robert R. French, Gwenda Dunn, Linda Gilliland and Robin French to recover attorney fees under contingent fee agreements. At the time this lawsuit was filed, appellant was already litigating these fee claims in Tarrant County through a petition in intervention it had filed two and one-half weeks earlier in appellees’ medical malpractice case. Appellant ultimately nonsuited its claims in Dallas County. The Dallas trial court later imposed sanctions against appellant for filing a frivolous suit. In twelve issues, appellant generally contends the evidence is insufficient to support the trial court’s imposition of sanctions and also presents several legal arguments asserting the sanctions were improper. After reviewing the record, we conclude the trial court did not abuse its discretion in imposing sanctions. Accordingly, we affirm the trial court’s judgment.

This case has a complex procedural history that is intertwined with the parallel proceeding in Tarrant County. We therefore outline some important dates, pleadings, and rulings that are relevant to the issues presented on appeal.

Appellant filed this lawsuit in Dallas County on February 5, 2001. The Tarrant County intervention was filed on January 18, 2001, one day before the final judgment was rendered in the underlying medical malpractice case. The pleadings in both cases were essentially identical except for the Dallas petition’s additional request for injunctive relief prohibiting the District Clerk of Tarrant County from releasing any funds paid into the Registry of the Court that represented disputed attorney’s fees and expenses. The day after it filed the Dallas petition, appellant moved for summary judgment on its intervention in Tarrant County. Appellees cross-moved for summary judgment and the Tarrant County trial court signed an order granting summary judgment to appellees on February 28, 2001. Appellant brought an appeal to the Fort Worth court of appeals which affirmed in part and reversed in part. See Law Offices of Windle Turley, P.C. v. French, 140 S.W.3d 407 (Tex.App.Fort Worth 2004, no pet.).

While the Tarrant County intervention was proceeding, appellees filed a general denial and various counterclaims to the Dallas County lawsuit. They also moved for sanctions in the Dallas suit contending, among other things, the purpose of the duplicative lawsuit was to harass them in retaliation for terminating their contract with appellant after Michael Sawicki, appellant’s lead counsel on their medical malpractice case, left appellant’s firm (ap-pellees later hired Sawicki to represent them). An initial hearing on the sanctions motion was held on April 12, 2001. On June 4, 2002, after the parties had reached an agreement, an order was entered on the parties’ nonsuits specifically dismissing all of appellant’s claims and all of appel-lees’ counterclaims except for their claim for filing a frivolous lawsuit. The June 4 order also expressly stated that appellees’ motion for sanctions remained pending. When the sanctions hearing continued on July 10, appellant argued the June 4 order was a final judgment and the trial court therefore lacked jurisdiction to rule on the sanctions motion. The trial court disagreed and orally awarded appellees sanctions in the amount of $4,876.25. An appeal was filed in this Court before the trial court signed its July 31 order memorializing its July 10 ruling. On appeal, appellant continued to argue that the trial court had lost its plenary jurisdiction to rule on the sanctions motion because the June 4 order was a final judgment. While the Dallas appeal was pending, the trial court granted appellees’ supplemental sanctions motion for conditional appellate attorney’s fees. Appellant filed another appeal for the supplemental sanctions order which we consolidated with appellant’s original appeal. Ultimately, we dismissed the appellant’s appeals for want of jurisdiction concluding there was no final appealable judgment because there was no order disposing appellees’ counterclaim for filing a frivolous lawsuit. See Law Offices of Windle Turley v. French, 109 S.W.3d 599, 600 (TexApp.-Dallas 2003, no pet.).

After we dismissed the appeals, the parties returned to the trial court. On November 6, 2003, the trial court signed a final judgment dismissing appellees’ frivolous lawsuit counterclaim, awarding appel-lees $14,500 in appellate fees for appellant’s unsuccessful appeals of the July 31 sanctions order and supplemental sanctions order, and conditionally awarding ap-pellees additional appellate attorney fees in the event it unsuccessfully appealed from the November 6 final judgment. This is the appeal from that final judgment.

We review a trial court’s ruling on a motion for sanctions for an abuse of discretion. Herring v. Welborn, 27 S.W.3d 132, 143 (Tex.App.-San Antonio 2000, pet. denied). A trial court abuses its discretion in imposing sanctions only if it based its order on an erroneous view of the law or a clearly erroneous assessment of the evidence. Monroe v. Grider, 884 S.W.2d 811, 816 (Tex.App.-Dallas 1994, writ denied). The test for determining whether the trial court abused its discretion is whether it acted without reference to any guiding rules and principles to the extent the act was arbitrary or unreasonable. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985). We review the entire record to determine whether the imposition of sanctions constitutes an abuse of discretion. Herring, 27 S.W.3d at 143. We may not substitute our judgment for that of the trial court. Gibson v. Ellis, 126 S.W.3d 324, 335 (Tex.App.-Dallas 2004, no pet.).

The bases for the trial court’s sanctions award and appellate attorney fees were Chapter 9 and 10 of the Texas Civil Practice & Remedies Code and TEX. R. CIV. P. 13. Appellant contends that none of these provisions support the trial court’s award because there is insufficient evidence to conclude the Dallas petition was factually groundless, legally groundless, or filed for an improper purpose. We do not agree.

Section 10.001 of the Civil Practice & Remedies Code provides that the signing of a pleading constitutes a certificate by the signer that to the best of his knowledge, information and belief after reasonable inquiry: (1) the pleading is not being presented for any improper purpose, including to harass or cause unnecessary delay or needless increase in the cost of litigation; (2) each claim defense, or legal contention is warranted by existing law or nonfrivolous argument for extension, or modification or reversal of current law, or establishment of new law; (3) each factual contention has evidentiary support or likely to have evidentiary support after reasonable investigation or discovery; (4) each denial of a factual contention is warranted by the evidence or reasonably based on a lack of information or belief. TEX. CIV. PRAC. & REM. CODE ANN. § 10.001 (Vernon 2002). If a court determines a pleading was signed in violation of Section 10.001, sanctions may be imposed on the signer, a party represented by the signer, or both. TEX. CIV. PRAC. & REM. CODE ANN. § 10.004(a) (Vernon 2002). We focus on section 10.001(1) which prohibits pleadings filed for an improper purpose.

At the hearings on the original sanctions motion, there was evidence that appellees’ attempts at trying to resolve the fee dispute were repeatedly rebuffed by firm president Windle Turley with the response of “That’s not going to happen.” Specifically, Robert French testified that, “... it seemed apparent to me that [Turley] really wasn’t looking after my case. It was more of a personal situation with him.” French further stated he thought the Dallas County suit was filed because, “he was really sore because [Sawicki] had left his law firm. He couldn’t get [Sawicki] in any way, so he thought he would go through me. And that’s all he’s done, is harass me.” French further testified that Turley told him it did not matter who tried the case, Turley was still going to get his 45 percent. French also noted that after the Tarrant County trial court indicated appellant was not going to get the relief it sought and instructed the parties to work out a resolution, appellant filed this lawsuit in Dallas County seeking the same relief. Appellant’s response to the sanctions motion indicated that the associate attorney who signed the Dallas petition on behalf of appellant was instructed by the firm to file the suit in Dallas County.

The day after appellant filed the Dallas proceeding, it moved for summary judgment in the Tarrant County intervention, thereby causing appellees to respond to two cases asserting virtually identical claims simultaneously. Nothing in the record suggested the Tarrant County trial court was unwilling or unable to resolve the fee dispute so as to warrant a second filing. In fact, at the first sanctions hearing, appellant’s attorney explained he filed the duplicative Dallas suit because “things were spiraling out of control and we had to do something to protect our interest.” Based on the record before it, the trial court could have determined the Dallas suit was filed for an improper purpose in violation of Section 10.001(1) of the Texas Civil Practice and Remedies Code. Specifically, the trial could have determined appellant’s filed the Dallas lawsuit not to protect their legal interests, but to improperly circumvent an imminent adverse ruling from the Tarrant County trial court poised to finally dispose of the same legal issues. Moreover, the act of filing the Dallas lawsuit could have been viewed by the trial court as unnecessarily prolonging and increasing the expense of litigation for appellees due to the personal animosity between the parties. After reviewing the entire record, including the timing and substance of the various pleadings and the testimony at the sanctions hearings, we conclude the trial court did not abuse its discretion in awarding appellees $4,876.25 in sanctions for appellant’s filing of the Dallas lawsuit. Because we conclude the sanctions order is sustainable under section 10.001(1), we need not address appellant’s challenges to other possible bases for the sanctions award.

Appellant also challenges the specificity of the trial court’s order awarding sanctions. Section 10.005 requires a sanctions order to describe the conduct the court had determined violates section 10.001 and explain the basis for the sanction imposed. Simply tracking the language of the statute is insufficient. See Henry v. Low, 132 S.W.3d 180, 189 (Tex.App.-Corpus Christi, pet. granted). The original sanctions order, in part, states as follows:

The Court finds that there is good cause to sanction the Law Offices of Windle Turley because it knew that its pleadings were identical to those already filed in and properly before the 141st Judicial District Court in Tarrant County. The Court find that the pleadings were filed in an attempt to harass the French family and needlessly prolong litigation and create unnecessary expense.

This language does more than merely track the language of the statute, it describes the act, namely the filing of an identical suit in Dallas County, that violated section 10.001(1) and found the purpose of the filing was to harass the French family by increasing the costs and time of litigation. We cannot conclude that reading the above order, appellant would not understand what its sanctionable conduct was. We therefore reject appellant’s challenge to the specificity of the sanctions order.

In addition to the original sanctions award of $4,876.25, appellant also challenges the supplemental sanctions award granting appellees “liquidated” appellate attorney fees of $14,500 for its first unsuccessful appeal of the sanctions awards to this Court and the contingent appellate attorney fees conditioned on an unsuccessful appeal of the November 6 final judgment. Appellant does not contest the amount of the attorney fees. Instead, appellant challenges whether such an award is available as a sanction under Chapter 10.

We first address appellant’s arguments that the award of conditional appellate attorney fees (1) is in effect an improper sanction for filing a frivolous appeal and (2) effectively undermines its right to appeal. Appellant provided little argument and cites no relevant authority for these positions. As such they are waived. See TEX. R. APP.P.38.1(h). Moreover, appellant’s arguments are unpersuasive. The sanctions order merely awarded appellate attorney fees if appellant was unsuccessful on appeal. It made no findings with respect to whether the appeal was groundless or brought for an improper motive. Likewise, the appellate attorney fees award was designed to compensate appellees for the expense of having to defend its sanctions award in the event appellant pursued an unsuccessful appeal. We find no chilling effect on appellant’s right to appeal in such circumstances.

Additionally, appellant argues that chapter 10 does not authorize conditional appellate attorney fees as part of a sanctions award. Focusing on the language in the statute which only permits attorney fees that are “incurred,” appellant contends only attorney fees already due may be awarded under Chapter 10. Appellant argues that because appellate attorney fees are a future expense, they are not recoverable under either section 10.002(c) or 10.004(c)(3). We read the sanctions orders as awarding appellate attorney fees only after the expense is incurred as a result of appellant’s unsuccessful appeal. We therefore reject appellant’s position that such conditional awards are contrary to Chapter 10. Moreover, to the extent appellant attempts to apply this argument to the $14,500 in attorney fees awarded to appellees for the first appeal, we note that those fees had been already been incurred when the trial court made that award.

Appellant also argues that because the earlier appellate proceeding was dismissed for want of jurisdiction, the disposition of the first appeal is insufficient to trigger the condition imposed by the trial court. We disagree. Appellant chose to appeal the sanctions orders challenging, among other things, the trial court’s plenary jurisdiction to rule on the sanctions motion. We specifically rejected that claim and concluded there was no final judgment from which an appeal could be taken. The supplemental sanctions order conditioned the award of appellate attorney fees on appellant’s unsuccessful appeal. Because appellant did not receive any relief from the trial court’s sanctions order as a result of its first appeal, it was unsuccessful and thus satisfied the condition of the trial court’s order. We also reject appellant’s argument that all appellate attorney fees must remain conditional until the underlying merits of the sanctions award have been determined in a second appeal. Appellant relies exclusively on In re Ford Motor Company, 988 S.W.2d 714 (Tex.1998) for this contention. However, our reading of Ford differs from appellant’s interpretation. In Ford, the sanctions order at issue ordered Ford to pay $25,000 in attorney fees if Ford sought mandamus review of the sanctions order. Id. at 718. Because the order was not conditioned on Ford’s failure to obtain relief, it effectively was a monetary penalty against Ford for exercising its legal rights. Id. at 722. In the case before us, the award of appellate attorney fees was conditioned on appellant’s failure to obtain relief. Moreover, that condition was satisfied when we dismissed appellant’s first appeal for want of jurisdiction. We therefore conclude that the trial court did not abuse its discretion in awarding appellees appellate attorney fees.

Finally, appellant challenges the trial court’s award of interest on appellate attorney fees. The trial court awarded post-judgment interest on the $14,500 in liquidated attorney fees from the date of appellant’s notice of appeal challenging the original sanctions order. The trial court awarded post-judgment interest on the conditional attorney fees from date of the notice of appeal from the final judgment, or, in the case of an appeal to the Supreme Court of Texas, the date appellant files its petition for review. Citing a concurring and dissenting opinion by Justice Hecht as authority for its position, appellant argues that because appellate attorney fees are not owed until the conclusion of its unsuccessful appeal, post-judgment interest should run from the disposition date of the appeal. See C & H Nationwide, Inc., v. Thompson, 903 S.W.2d 315, 329 (Tex.1994) (Hecht, J., concurring and dissenting). In Thompson, however, the issue before the court was whether prejudgment interest should be awarded on future damages not yet sustained. See id. at 328. Here, ap-pellees would begin to incur attorney fees upon the filing of the appeal, thus it is appropriate to begin the post-judgment interest from the date of the appeal filing. Other courts that have addressed this issue have agreed that post-judgment interest should run from the date the appeal is filed. See Moore v. Bank Midwest, N.A., 39 S.W.3d 395, 404 (Tex.App.-Houston [1st Dist] 2001, pet. denied), and O’Farrill Avila v. Gonzalez, 974 S.W.2d 237, 250 (Tex. App-San Antonio 1998, pet. denied). We therefore conclude the trial court did not abuse its discretion in ordering post-judgment interest on appellate attorney fees to run from the date the appeal is filed.

After reviewing the record in its entirety we conclude the trial court did not abuse its discretion in awarding appellees the underlying sanctions, appellate attorney fees, and post judgment interest. We affirm the trial court’s judgment.


author: Justice GRAVES. Justice JOHNSTONE,

text:
    Richard Allen MEREDITH, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2002-SC-0741-MR.
    Supreme Court of Kentucky.
    May 19, 2005.
    J. Bart Adams, Louisville, Counsel for Appellant.
    Gregory D. Stumbo, Attorney General, Janine Coy Bowden, Assistant Attorney General, Frankfort, Counsel for Appellee.
   Opinion of the Court by

Justice GRAVES.

Appellant, Richard Allen Meredith, was convicted in the Jefferson Circuit Court of complicity to commit murder and complicity to commit first-degree robbery. His convictions stemmed from an incident that took place at Harold’s Hubcaps in Louisville, Kentucky, in November 2000. Specifically, the jury found that Appellant was involved in the robbery and shooting death of the establishment’s owner, Harold Smith.

Diming the course of the investigation, the police received an anonymous tip that a Michael Crain had been involved in the dimes. When police ultimately attempted to confront Crain, he pulled a gun and fled. At some point during the pursuit, Crain was shot and killed. There is some indication from the record that Crain’s gunshot wounds were self-inflicted. Following Cram’s death, police received information that Appellant also may have been involved in the crimes. Appellant was subsequently indicted on charges of complicity to commit murder and complicity to commit first-degree robbery.

Following the guilt phase of trial, Appellant waived formal sentencing and accepted the Commonwealth’s recommendation of life without the possibility of parole for twenty-five years on the murder charge and twenty years imprisonment on the robbery charge, to run concurrently. Judgment was entered accordingly. He appeals to this Court as a matter of light.

Appellant argues that the Commonwealth’s evidence against him on either charge was insufficient to survive a directed verdict. For the reasons below, we find sufficient evidence in the record to sustain Appellant’s convictions on both charges.

I. Complicity — First-Degree Robbery
(1) A person is guilty of robbery in the first degree when, in the course of committing theft, he uses or threatens the immediate use of physical force upon another person with intent to accomplish the theft and when he:
(a)Causes physical injury to any person who is not a participant in the crime; or
(b) Is armed with a deadly weapon; or
(c) Uses or threatens the immediate use of a dangerous instrument upon any person who is not a participant in the crime.

KRS 515.020. Furthermore, under certain circumstances, a person is guilty of an offense committed by someone else. KRS 502.020 provides:

(1) A person is guilty of an offense committed by another person when, with the intention of promoting or facilitating the commission of the offense, he:
(a) Solicits, commands, or engages in a conspiracy with such other person to commit the offense; or
(b) Aids, counsels, or attempts to aid such person in planning or committing the offense; or
(c) Having a legal duty to prevent the commission of the offense, fails to make a proper effort to do so.
(2) When causing a particular result is an element of an offense, a person who acts with the kind of culpability with respect to the result that is sufficient for the commission of the offense is guilty of that offense when he:
(a) Solicits or engages in a conspiracy with another person to engage in the conduct causing such result; or
(b) Aids, counsels, or attempts to aid another person in planning, or engaging in the conduct causing such result; or
(c) Having a legal duty to prevent the conduct causing the result, fails to make a proper effort to do so.

Section one addresses “complicity to the act,” while section two addresses “complicity to the result.” “Complicity to the act” requires the Commonwealth to prove that the accomplice intended for the principal actor to commit the criminal act. “Complicity to the result” requires only “a state of mind which equates with ‘the kind of culpability with respect to the result that is sufficient for the commission of the offense,’ whether intent, recklessness, wantonness, or aggravated wantonness.” Tharp v. Commonwealth, 40 S.W.3d 356, 360 (Ky.2001), cert. denied, 534 U.S. 928, 122 S.Ct. 289, 151 L.Ed.2d 213 (2001).

Appellant urges that the evidence against him was insufficient to permit a jury to reasonably find that he had any knowledge of Cram’s intent to commit the robbery. We disagree. Though the evidence against Appellant is circumstantial, his intent can be “inferred from the act and surrounding circumstances.” Commonwealth v. Suttles, 80 S.W.3d 424, 426 (Ky.2002).

During the eight-day trial, the Commonwealth presented numerous witnesses. Samantha Green and Barbara Ferguson testified that they were eating at a Dairy Queen across from Harold’s Hubcaps on the afternoon in question, when Crain and another man entered the restaurant. Samantha stated that she knew Crain because he was her cousin’s boyfriend. Both women testified that the two men left the restaurant and crossed the street to Harold’s Hubcaps. Shortly thereafter, the women observed the men leave Harold’s Hubcaps, get into a red Ford Tempo and speed away. Neither woman thought anything was wrong until they each saw the subsequent news stories. While the women positively identified Crain from a photo line-up, neither was able to identify Appellant as the second perpetrator.

Brian Davis, Ashley Meyer, and Steve Craven all testified that on December 1, 2000, the date of Crain’s death, Appellant arrived at Davis’ home around 10:00 p.m., where the three men were watching television. Following a news story concerning Crain, Appellant admitted that he was the one who drove Crain to Harold’s Hubcaps on the day of the crimes. Myers testified that Appellant told him that he had previously observed Smith with a lot of money and tried to “gas his [Crain’s] head up.” Myers clarified that “gas his head up” basically meant talk him into it [the robbery].

Appellant told the three men that he dropped Crain off at Harold’s Hubcaps and gave him a spare cell phone. However, Crain quickly left the premises because there was a uniformed police officer purchasing a hubcap from Smith at the time. Appellant stated that he once again drove Crain back to Harold’s Hubcaps a short time later so that Crain could rob the store.

Evidently, after Crain found only $14 in the cash register, he and Smith had an altercation and Smith attempted to run away. Crain then shot Smith twice and called Appellant on his other cell phone to pick him up. Brian Davis testified that Appellant said Crain had stolen several Indian figurines from the store before leaving. In addition, all three men testified that Appellant owned a red Ford Tempo.

Jefferson County Police Detective Marcie Davis, the lead investigator, testified that when she went to Appellant’s house to interview his girlfriend, she observed a curio cabinet containing several Indian figurines. Detective Davis also confirmed that Appellant owned a red 1990 Ford Tempo. Davis testified that Appellant’s cell phone records showed that he, in fact, owned two separate phones. On the afternoon of November 22, 2000, the records indicated several phone calls between the two phones. Detective Davis then recounted her interview with Appellant, stating that he denied any involvement in the robbery or murder. Yet when asked if he ever discussed the crimes with anyone else, he responded that all he knew was that he was getting some money out of it for food and gas.

Sergeant Jerry Bennett testified that he stopped in Harold’s Hubcaps around 1:00 p.m. on November 22, 2000. Sergeant Bennett noted that there was a suspicious man in the store, whom he later identified from a photo line-up as being Michael Crain. Sergeant Bennett recounted that Harold Smith had expressed concern about the safety of his business and had requested extra patrol.

Lisa Fusting testified that she lived with Crain from September 2000 until December 2000. She stated that she knew Crain owned a gun and, in fact, had shot himself in the leg, resulting in a limp when he walked. Fusting testified that on the afternoon of November 22, 2000, Appellant came to the Archway Motel to pick up Crain. Fusting stated that she later called Meredith’s cell phone and spoke with Crain. The two men returned to the motel later that evening.

Appellant neither took the stand in his own defense, nor presented any alibi witnesses to refute the Commonwealth’s evidence.

Collectively, the evidence showed that on the day of the robbery Appellant picked up Crain at a motel, dropped him off at Harold’s Hubcaps and gave him a spare cell phone. Crain answered Appellant’s spare cell when Fusting called it. Cell phone records indicated several phone calls between Appellant’s cell and the spare cell that afternoon.

On the day of the crimes, Ms. Ferguson and Ms. Green saw Crain and another man in Dairy Queen and observed them exit the restaurant and cross the street towards Harold’s Hubcaps. A few moments later, the two women saw both men running towards, and then speed away in, a red Ford Tempo, the type of car Appellant owned. The pistol that the police recovered from Crain is the one that fired the spent casings found at Harold’s Hubcaps.

Additionally, Detective Davis observed several Indian figurines at Appellant’s home when interviewing his girlfriend. Appellant had previously told Detective Davis that Crain had stolen some Indian figurines during the robbery. Finally, Appellant gave Detective Davis conflicting answers about being involved in the crimes.

We conclude that the evidence was sufficient for a jury to reasonably find that Appellant provided Crain transportation to and from Harold’s Hubcaps with the intention of promoting or facilitating the offense of first-degree robbery. KRS 502.020(1); KRS 515.020. As such, the trial court did not err in refusing to grant a directed verdict on the robbery charge. Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky.1991).

II. Complicity — Murder

Appellant asserts that the Commonwealth failed to present any evidence that he was aware that Crain owned or possessed a gun at the time of the offenses. Accordingly, his conduct cannot rise to the level of “wantonness” manifesting an extreme indifference to human life as required by KRS 507.020(2).

The former felony murder doctrine allowed a participant in a dangerous felony to be convicted of a murder committed by his or her co-conspirator during the commission of the felony. It permitted a murder conviction regardless of the participant’s specific intent, or lack thereof, for the principal to commit the homicide. The doctrine required only the intent to participate in the underlying felony, and “created an almost strict liability with respect to murder committed during its commission.” Bennett v. Commonwealth, 978 S.W.2d 322 (Ky.1998) (quoting R. Lawson and W. Fortune, Kentucky Criminal Law, § 8-2(d)(1)).

However, Kentucky’s adoption of the Model Penal Code abrogated the felony murder doctrine as an independent basis of liability. Kentucky’s murder statute states in pertinent part:

(1) A person is guilt of murder when:
(a) With intent to cause the death of another person, he causes the death of such person or of a third person; ... or;
(b) Including, but not limited to, the operation of a motor vehicle under circumstances manifesting extreme indifference to human life, he wantonly engages in conduct which creates a grave risk of death to another person and thereby causes the death of another person.

KRS. 507.020.

In Kruse v. Commonwealth, 704 S.W.2d 192, 195 (Ky.1985), this Court examined the interplay between KRS 507.020 and KRS 502.020 in circumstances which would have been governed by the former felony murder doctrine. We explained that the culpability for someone in Appellant’s position “must now be measured by the degree of wantonness or recklessness reflected by the extent of his participation in the underlying robbery.”

Specifically, the Commentary to KRS. 502.020 states in part:

Special mention should be made of the problem of imputing liability from one person to another because of the existence of a criminal conspiracy. The preexisting law is difficult to ascertain and describe. It is clear that if multiple parties conspired to commit an offense and one of them committed it, all were equally responsible for the offense. Complicity of this type is now covered by subsection (1) since all of the conspirators . intended to promote the offense committed. If one of the conspirators departs from the scope of the conspiracy and commits an offense not contemplated by the conspiratorial agreement, the problem is much more difficult. Previous existing liability in this situation was governed by this principle:
[W]hen individuals associate themselves in an unlawful enterprise, an act done by one in pursuance of a conspiracy is the act of all and extends to such results as are the natural and probable consequences of such act, even though such consequences were not specifically intended as a part of the original plan.
In an effort to further clarify the circumstances under which liability could be imputed from one conspirator to another the Court had said that “natural and probable consequences” are those which “should have been necessarily and reasonably anticipated” in the completion of the conspiratorial objective.
In virtually every case involving these principles, the Court has been concerned with imputing liability for murder to all participants of a conspiracy which had as its objective the commission of another felony, usually robbery, burglary or arson. In a few cases, the Court imposed criminal liability in this situation because of the existence of the conspiracy. In doing so, it never clearly stated the relationship of the “conspiracy” doctrine to the “felony murder” doctrine. In this Code a different approach to the problem is taken, one that achieves the same result as is achieved under preexisting law but without the difficulty that previously existed in the law. A defendant’s liability for a death which occurs under these circumstances is governed by the provisions of the homicide chapter (KRS Ch 507). The following example selves to demonstrate: D agrees with another person to commit an armed robbery. During the course of this robbery a third person is killed by D’s cohort. If D and his co-conspirator had agreed as part of the conspiracy to kill anyone interfering with the endeavor, he could be convicted under subsection (1) on intentional murder. In the absence of such an agreement his liability must depend upon what the decision makers find his state of mind to have been with regard to the resulting death. If, from all of the circumstances, they find that he acted with wantonness manifesting extreme indifference to human life, he is guilty under KRS 507.020(l)(b) of murder. (Citations omitted).

Additionally, the Commentary to KRS 507.020 states in pertinent part:

KRS 507.020 ... abandon[s] the doctrine of felony murder as an independent basis for establishing an offense of homicide. Under the section, deaths occurring in the course of other felonies must be judged under the “intentional” and “wantonness with extreme indifference” provisions of KRS 507.020(l)(a) and (b) and the “wantonness” provision of KRS 507.040. Thus, if a defendant intentionally commits an act of killing during a felony his guilt is to be determined under KRS 507.020(l)(a). If a felony participant other than the defendant commits an act of killing, and if a jury should determine from all the circumstances sunvunding the felony that the defendant’s participation in that felony constituted wantonness manifesting extreme indifference to human life, he is guilty of murder under KRS 507.020(1) (b). (Emphasis added).

In the instant case, the trial court instructed the jury on both theories of liability. We find sufficient evidence in the record to support Meredith’s conviction for wanton murder. “[T]he facts proving the element of endangerment necessary to convict of first-degree robbery may be the same facts which prove the element of aggravated wantonness necessary to convict of wanton murder.” Bennett, supra, at 327.

For a conviction of wanton murder under KRS. 507.020(b),

The conduct in question must have involved a substantial and unjustifiable risk of death to human life; the defendant, in causing the death in question, must have consciously disregarded that risk, and his disregard must have constituted “a gross deviation from the standard of conduct that a reasonable person would [have observed] in the situation.” Taken together, these three elements constitute the culpable mental state defined in KRS 501.020 as “wantonness,” .... If accompanied by a fourth element, i.e., “circumstances manifesting an extreme indifference to human life,” they are sufficient for a conviction of murder.

KRS 507.020, Commentary (1974).

Appellant provided Crain with transportation as well as a cell phone for communication. After Crain was unable to go through with the first attempt because of a police officer’s presence in the store, Appellant drove him back a second time. Several witnesses testified that Crain had owned guns all his life. Meyer testified that Crain had attempted to sell him a gun in Appellant’s presence. Craven’s testimony revealed that Appellant had seen Harold Smith with a lot of money, told Crain about it, and tried to talk him into the robbery. Finally, the pistol the police recovered from Crain is the one that fired the spent casings found at Harold’s Hubcaps.

It was certainly reasonable for the jury to determine from the evidence that Appellant’s participation in the robbery constituted the wantonness required for a murder conviction under KRS 507.020(2). Bennett, supra; Kruse, supra.

III. Admissibility of child-support arrearage

Prior to trial, the Commonwealth filed a KRE 404(c) notice of its intent to introduce evidence of Appellant’s child-support arrearage as a motive for the robbery. The trial court overruled his objection, but held that pursuant to Brown v. Commonwealth, 983 S.W.2d 513 (Ky.1999), only statements that Appellant needed money to pay his child support obligation were admissible; specifics of any child support proceedings were not admissible. Accordingly, several Commonwealth witnesses testified at trial that Appellant was having difficulty paying his child support and needed money. He now alleges that such evidence, in light of what he considers “a scant level of proof’ that he participated in the robbery and murder, was unduly prejudicial. We disagree.

This case is analogous to Tucker v. Commonwealth, 916 S.W.2d 181, 184 (Ky.1996), wherein we held that proof of the defendant’s child support arrearage was admissible to demonstrate his motive to commit robbery. Further, like the instant case, the defendant in Tucker neither objected to the challenged testimony nor.requested an admonition. Here, defense counsel appeared satisfied with the trial court’s exclusion of any evidence pertaining to the child support proceedings. No further objection was raised and, as such, we conclude the issue was not properly preserved for review. RCr 9.22. Notwithstanding, the evidence was properly within the scope of KRE 404(b), and was relevant and probative of Appellant’s motive for the robbery. No error occurred.

Accordingly, the judgment and sentence of the Jefferson Circuit Court for Appellant’s convictions of complicity to first-degree robbery as well as complicity to murder are affirmed.

COOPER, GRAVES, KELLER, SCOTT, and WINTERSHEIMER, J.J. concur.

JOHNSTONE, J., concurs in part and dissents in part in a separate opinion in which LAMBERT, C.J., joins.

Opinion by

Justice JOHNSTONE,

concurring in part and dissenting in part.

Although I concur with that part of the Majority’s opinion affirming Appellant’s conviction for complicity to commit first-degree robbery, I respectfully dissent as to the conviction for complicity to commit murder.

Because there is no evidence that Crain had any prior intent of shooting Smith, and in fact did so only after the two had an altercation, the intent to cause Smith’s death cannot be imputed to Appellant. Thus, the complicity to commit murder charge must be pursuant to KRS 502.020(2), the “complicity to the result” theory. As noted in Tharp v. Commonwealth, 40 S.W.3d 356, 360 (Ky.2000), cert. denied, 534 U.S. 928, 122 S.Ct. 289, 151 L.Ed.2d 213 (2001):

[A] person can be guilty of “complicity to the act” under KRS 502.020(1) only if he/she possesses the intent that the principal actor commit the criminal act. However, a person can be guilty of “complicity to the result” under KRS 502.020(2) without the intent that the principal’s act cause the criminal result, but with a state of mind which equates with “the kind of culpability with respect to the result that is sufficient for the commission of the offense,” whether intent, recklessness, wantonness, or aggravated wantonness. KRS 502.020 (1974 Official Commentary); R. Lawson and W. Fortune, Kentucky Criminal Law § 3 — 3(b)(3), at 106, § 3-3(c)(2), at 114 (Lexis 1998).

Nonetheless, the trial court’s instruction set forth both theories of liability:

You will find the defendant, RICHARD ALLEN MEREDITH, guilty of Murder (Complicity), under this instruction if, and only if, you believe from the evidence beyond a reasonable doubt, all of the following:
A. That in this county on or about the 22nd day of November, 2000, acting alone or in complicity, he caused the shooting death of Harold Smith;
AND
B. That in so doing:
(1) He intentionally caused the death of Harold Smith;
OR
(2)(a) He voluntarily participated in the commission of a theft, or attempted theft, knowing that another person would be threatened with a deadly weapon during the course of that theft;
AND
(b) During the course of the theft or attempted theft, and as a result thereof, Harold Smith was shot and killed;
AND
(c) By participating in the theft, this defendant was wantonly engaging in conduct which created a grave risk of death or serious physical injury to another and thereby caused the death of Harold Smith under circumstances manifesting an extreme indifference to the value of human life.

Notably, even the second theory of liability, i.e. complicity to the result, required the jury to believe that Appellant participated in the commission of a theft knowing that Smith “would be threatened with a deadly weapon.” Thus, by virtue of the trial court’s instruction, the Commonwealth was required to prove that Appellant, acting alone or in complicity with Crain, either intentionally caused the death of Smith, or was aware that Crain would be armed with a deadly weapon during the course of the theft. There is no evidence in the record to support either theory.

Citing Bennett v. Commonwealth, 978 S.W.2d 322 (Ky.1998) and Kruse v. Commonwealth, 704 S.W.2d 192 (Ky.1986), the Majority opines that Appellant’s culpability in Smith’s death can be determined from the wantonness evidenced by his participation in the underlying robbery. However, I find the Majority’s reliance on Bennett and Kruse misplaced as both cases concerned defendants who actively participated in all aspects of the respective crimes and had specific knowledge that the other participant possessed a weapon. In fact, the defendant in Bennett supplied the weapon that his cohort used to kill the victim. 978 S.W.2d at 324. In the instant case, while the Commonwealth makes reference to several witnesses having knowledge that Crain owned a gun, at no point is it asserted that Appellant knew Crain owned a gun, much less that he was armed at the time of the robbery.

The Commentary to § 2.06 of the Model Penal Code provides:

[Complicity in conduct causing a particular criminal result entails accountability for that result so long as the accomplice is personally culpable with respect to the result to the extent demanded by the definition of the crime. Thus, if the accomplice recklessly endangers life by rendering assistance to another, he can be convicted of manslaughter if a death results, even though the principal actor’s liability is at a different level.

Model Penal Code Pt. I § 2.06 Comment, at 321 (1985). Because Appellant was charged with complicity to commit murder, the jury had to find that he either acted intentionally with respect to Smith’s death or acted under circumstances manifesting an extreme indifference to human life:

[T]he conduct in question must have involved a substantial and unjustifiable risk of death to human life; the defendant, in causing the death in question, must have consciously disregarded that risk, and his disregard must have constituted “a gross deviation from the standard of conduct that a reasonable person would [have observed] in the situation.” Taken together, these three elements constitute the culpable mental state defined in KRS 501.020 as “wantonness,” and without more, will suffice for a conviction of manslaughter in the second degree. If accompanied by a fourth element, i.e., “circumstances manifesting extreme indifference to human life,” they are sufficient for a conviction of murder.

KRS 507.020, Commentary (1974).

The evidence at trial that Appellant provided Crain with transportation and a cell phone was certainly sufficient to support his conviction for complicity to commit first-degree robbery, and would likely have constituted the “wantonness” sufficient for a manslaughter conviction. However, in the absence of any evidence that Appellant was aware Crain possessed a deadly weapon at the time of the robbery, I do not believe that Appellant’s conduct rose to a level manifesting an extreme indifference to the value of human life so as to sustain a conviction for murder. Brown v. Commonwealth, 975 S.W.2d 922 (Ky.1998); Johnson v. Commonwealth, 885 S.W.2d 951 (Ky.1994).

Accordingly, I would reverse Appellant’s conviction for complicity to commit murder.

LAMBERT, C.J., joins this opinion concurring in part and dissenting in part.

      . "KRS 502.020(2) is modeled after what became Section 2.06(4) of the Model Penal Code.” Tharp, supra, at 365.


author: VANMETER, Judge.

text:
    John SMITH, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2003-CA-000214-DG.
    Court of Appeals of Kentucky.
    Sept. 24, 2004.
    Discretionary Review Denied by Supreme Court June 8, 2005.

      Bobby Amburgey, Mt. Vernon, KY, for Appellant.
    Gregory D. Stumbo, Attorney General of Kentucky, Jeff Moss, Garrard County Attorney, Lancaster, KY, for Appellee.
    Before JOHNSON, TAYLOR, and VANMETER, Judges.
   OPINION

VANMETER, Judge.

This court granted discretionary review of an order from the Garrard Circuit Court affirming the Garrard District Court’s judgment after a jury found John Smith guilty of driving under the influence (DUI), pursuant to KRS 189A.010. Smith argues that the trial court erred by failing to dismiss the action based on the Commonwealth’s failure to elect under which subsection of KRS 189A.010 it would proceed. For the reasons stated hereafter, we affirm.

On January 10, 2001, a Kentucky State Police officer stopped Smith after observing his vehicle cross a highway centerline and then veer to the fog line. The officer gave Smith various field sobriety tests, all of which he failed. The officer arrested Smith and gave him an Intoxilyzer test, which measured .088. Smith was charged with violating KRS 189A.010(5)(a), operating a motor vehicle under the influence of alcohol/drugs, first offense.

The matter proceeded to discovery, and Smith requested

[a]ll evidence known to the Commonwealth which tends to exculpate the defendant of the charges against defendant or which tend to show that the crime committed by the defendant is a different crime than charged or was in fact a lesser degrees [sic] of the crime charged or which might be necessary to prevent unfair surprise at trial.

The Commonwealth responded that Smith was “charged with DUI 1st, BA results 0.88” [sic]. In response to Smith’s request for the identity and anticipated testimony of any expert who was to be called by the Commonwealth, the Commonwealth stated:

Trooper Eric Taylor will be the witness for the Commonwealth. He will testify to the operation of the vehicle of Mr. Smith while traveling west on Ky Hwy 52. The defendant was crossing the centerline on the highway. Upon stop of the vehicle, Trooper Taylor observed a strong smell of alcohol on his person, his eyes were red and glassy and defendant displayed slurred speech. The defendant was given filed [sic] sobriety test HGN, walk and turn, one leg stand and PBT. Defendant failed all tests and was placed under arrest for DUI. The defendant was read the implied consent card at 2329 and BA was given at 2355. The BA result was a 0.88[sic], Defendant was offered a blood test and defendant refused. Commonwealth does not intend to call any expert witáness [sic] at this time. Commonwealth will supplement its response should this information change.

At the close of the Commonwealth’s case during Smith’s jury trial, defense counsel moved for a directed verdict based on the fact that the Commonwealth had failed to inform him under which subsection of KRS 189A.010(1) it would proceed. The judge denied this motion, and the jury ultimately found Smith guilty of DUI under KRS 189A.010(l)(a) and (b). The circuit court affirmed the district court’s decision. This court granted discretionary review.

First, we note that Smith’s discovery request, set out above, did not ask the Commonwealth to specify under which subsection of KRS 189A.010(1) it would proceed. Thus, the sole issue on appeal is whether the Commonwealth was required to notify Smith of the subsection(s) of KRS 189A.010(1) under which it would proceed, even though Smith did not request the information.

KRS 189A.010(1) provides as follows:

A person shall not operate or be in physical control of a motor vehicle anywhere in this state:
(a) Having an alcohol concentration of 0.08 or more as measured by a scientifically reliable test or tests of a sample of the person’s breath or blood taken within two (2) hours of cessation of operation or physical control of a motor vehicle;
(b) While under the influence of alcohol;
(c) While under the influence of any other substance or combination of substances which impairs one’s driving ability;
(d) While under the combined influence of alcohol and any other substance which impairs one’s driving ability; or
(e) Having an alcohol concentration of 0.02 or more as measured by a scientifically reliable test or tests of a sample of the person’s breath or blood taken within two (2) hours of cessation of operation or physical control of a motor vehicle, if the person is under the age of twenty-one (21).

The court in Commonwealth v. Wirth, Ky., 936 S.W.2d 78 (1996), held that the Commonwealth may prosecute a defendant under multiple subsections and theories of KRS 189A.010(1), and that it is not required to elect one subsection, to the exclusion of all others, under which to proceed. As noted by Smith, Wirth also mandated that the Commonwealth must inform a defendant under which subsection(s) of KRS 189A.010(1) it will proceed, stating as follows:

While we do not agree with an interpretation that the statute or laws requires an election as to which of the four statutory subsections will be prose-euted to the exclusion of all others, it would appear that fundamental fairness and appropriate trial preparation requires notice as to which statutory subsections will be proven by the Commonwealth. Such notice should be given in good faith within a reasonable time pri- or• to trial to permit the defendant to assemble evidence in opposition to the charges against him. A blanket notice covering all possible violations without regard to the available evidence would defeat the purpose and be tantamount to no notice at all.

936 S.W.2d at 81 (emphasis added). Thus, Wirth places an affirmative duty on the Commonwealth to notify a defendant regarding which subsections of KRS 189A.010(1) it will attempt to prove.

In Commonwealth v. Reynolds, Ky., 136 S.W.3d 442 (2004), the Kentucky Supreme Court acknowledged that Wirth created an affirmative duty on the Commonwealth. In discussing subsections (a) and (b) of KRS 189A.010(1), the court stated, “[i]n Wirth, the Court allowed the Commonwealth to pursue a conviction on both the per se subsections and the ‘under the influence’ subsection. In the interest of fairness we added a requirement that the Commonwealth provide sufficient notice to the defendant.” 136 S.W.3d at 444 (emphasis added). Further, the court held, “[t]he WiHh decision allowing prosecution pursuant to KRS 189A.010 on the bases of multiple theories is still applicable and the Commonwealth is required to give notice as to the subsections that it intends to prove.” Id. at 446.

Here, the facts clearly show that Smith was over 21 years of age, that he was charged with DUI, and that the Intoxilyzer 5000 had produced a blood alcohol reading of .088. In addition, the citation described Smith’s driving and his performance on field sobriety tests, and it indicated that blood and urine samples were not taken. Smith was therefore on notice that he was subject to prosecution under subsections (a) and (b) of KRS 189A.010(1). The Commonwealth’s discovery responses set forth in detail the proof which it would present. At trial, Smith’s counsel conducted a vigorous and thorough cross-examination of the arresting officer as to the facts of the arrest, Smith’s driving, the field sobriety tests, and the operation of the Intoxilyzer 5000. Further, Smith’s counsel presented an expert witness concerning the Intoxilyzer 5000. Certainly, these steps satisfied the underlying purpose of the Wirth notice requirement, i.e., “to permit the defendant to assemble evidence in opposition to the charges against him.”

Even if we were to agree that the Commonwealth did not technically and explicitly give notice as to the subsections of KRS 189A.010(1) under which it intended to prosecute Smith, we believe the facts of this case are such that any error was harmless. Under RCr 9.24, any error or defect must be disregarded if it “does not affect the substantial rights of the parties.” An error is deemed harmless if, upon consideration of the entire case, there appears to be no likely possibility that the result would have been different in the absence of error. Scott v. Commonwealth, Ky., 495 S.W.2d 800, 801-02 (1972); Abernathy v. Commonwealth, Ky., 439 S.W.2d 949, 952 (1969), overruled in part on other grounds by Blake v. Commonwealth, Ky., 646 S.W.2d 718 (1983). Our review of the record shows that the Commonwealth’s omission did not in any way prejudice Smith’s opportunity to prepare a meaningful defense, and that no likely possibility exists that Smith’s defense or the result of the trial would have been any different had the Commonwealth more specifically informed him under which subsection(s) it was proceeding.

The circuit court’s judgment is affirmed.

ALL CONCUR.