source: Caselaw Access Project

author: JOHNSON, Judge.

license: Public Domain

text:
    Catina BROCKMAN (Theodore H. Lavit, Real Party in Interest), Appellant, v. COMMONWEALTH of Kentucky (Hon. Doughlas M. George, Real Party in Interest), Appellee.
    No. 2004-CA-000982-MR.
    Court of Appeals of Kentucky.
    Dec. 9, 2005.
    Case Ordered Published by Court of Appeals Feb. 10, 2006.

      Daniel T. Taylor III, Louisville, KY, for Appellants.
    Gregory D. Stumbo, Attorney General, Raymond F. Debolt, Jr., Assistant Attorney General, Frankfort, KY, for Commonwealth of Kentucky.
    No brief filed, for Doughlas M. George.
    Before BARBER, BUCKINGHAM, and JOHNSON, Judges.
   OPINION

JOHNSON, Judge.

Theodore H. Lavit, Real Party In Interest, has appealed from an order entered on April 30, 2004, by Judge Doughlas M. George of the Taylor Circuit Court which held Lavit in contempt of court and fined him $825.00 for his failure to appear in court on November 10, 2003, for the trial of Commonwealth of Kentucky v. Catina Brockman. Having concluded that the trial court erred by finding Lavit in indirect criminal contempt of court without allowing him to have a jury trial, we vacate and remand.

Lavit represented Brockman on various criminal charges which were set for a trial to begin in the Taylor Circuit Court at 8:30 a.m. on Monday, November 10, 2003. At 8:35 a.m. on the morning of trial, Dawn Gregory, an attorney in Lavit’s office, appeared in court and explained to Judge George that Lavit had called his own office that morning and stated that he was too ill to try Brockman’s case. The case was continued, but Judge George stated that someone would have to pay the costs for the jurors and that Lavit should present a doctor’s excuse.

On November 25, 2003, Judge George entered an order assessing an $825.00 fee against Lavit. Judge George’s order stated that the fee was being assessed as “extraordinary expenses” pursuant to CR 3.02(3) which was applicable to a criminal proceeding pursuant to RCr13.04. Lavit filed a motion to set aside the trial court’s order and asked for a hearing.

The trial court heard Lavit’s motion on December 2, 2003, at which time Lavit again advised Judge George, this time in person, that he had been prepared to try Brockman’s case on November 10, 2003, but was absent from court only as a result of an illness. He stated that due to his illness he had attempted to contact the judge during the evening of November 9, 2003, and that on the morning of November 10, 2003, he concluded that he could not have effectively represented his client at that time in a three-day criminal trial. He presented Judge George with the requested medical excuse stating he had an “acute illness.” No other evidence was presented regarding the reasons for Lav-it’s absence or to contradict the medical excuse and Lavit’s statement that he was in fact ill. Judge George stated that he would reconsider his order assessing the fee.

On March 24, 2004, Judge George entered another order setting a “Show Cause Hearing” for April 20, 2004, for Lavit to “show cause why he should not be assessed the jury fee for the trial which was canceled on November 10, 2003[.]” At the hearing on April 20, 2004, Lavit presented Judge George with a letter from his doctor which set forth the symptoms he presented with on November 10, 2003, and a diagnosis of upper respiratory infection. Judge George asked the Commonwealth’s Attorney if he wished to question the doctor further regarding the matter or had any evidence to present. The Commonwealth declined and the hearing concluded. Judge George then entered his order of April 30, 2004, finding Lavit in contempt and assessing the $825.00 jury fee against him.

In this order Judge George indicated that in finding that Lavit was not prepared for trial on November 10, 2003, he “finds the Motion filed on December 4, 2003 (over twenty days after the November 10th trial date) most instructive as to Defense Counsel’s preparedness for trial.” Additionally, Judge George noted that Lavit had a routine examination previously scheduled with his doctor on November 10, 2003, as well as having a motion scheduled to be heard before the Casey Circuit Court on that date. Based on this evidence, Judge George found Lavit to be in contempt of court and assessed the jury fee. This appeal followed.

In its brief, the Commonwealth, on behalf of Judge George, contends that Lavit was not held in contempt of court, but merely assessed “additional costs” in a case requiring “extraordinary services” under CR 3.02(8). We disagree and quote from Judge George’s order of April 30, 2004, which specifically stated as follows:

“This Court has considerable discretion in the use of its contempt powers and finds the $825 jury fee assessment against Honorable Theodore Lavit to be necessary due to his lack of respect for this Court ” [emphases added].

Clearly, Judge George assessed the jury fee against Lavit for contempt of court.

This Court has previously held that an attorney’s failure to appear in court when he has a duty to appear is “treated as criminal contempt[ ] with criminal intent being an essential element of the offense” [emphases original]. Criminal contempt may be either “direct” or “indirect” in nature. A direct contempt occurs while the actor is before the court and is “an affront to the dignity of the court” which may be punished summarily. Indirect criminal contempt, on the other hand, “ ‘is committed outside the presence of the court and requires a hearing and the presentation of evidence’ in order ‘to establish a violation of the court’s order. It may be punished only in proceedings that comport with due process.’ ” The absence of an attorney from a scheduled court proceeding constitutes an indirect criminal contempt.

When the contempt is criminal in nature, as here, all the elements must be proven beyond a reasonable doubt. “Evidence necessary for a finding of contempt must show willful disobedience toward, or open disrespect for, the rule or order of a court.” A party is entitled to a jury trial on the disputed facts related to whether he is guilty of contemptuous conduct if the fine is “serious” rather than “petty”, and that determination will be made “within the context of the risk and possible deprivation faced by a particular contemnor.” Since Lavit faces a potential fine of $825.00, which is not petty, he is entitled to a jury trial on whether he is guilty of indirect criminal contempt.

Lavit argues that the evidence before the trial court was insufficient to support a finding of criminal contempt because there was no evidence showing that he intended to commit a contemptuous act. Rather, he contends that his explanation that his absence was justified due to an illness which prevented him from being able to appear and to effectively represent his client was unrefuted. He further notes that he did not become too ill to appear in court until the day of the trial and that he contacted his office the morning of the scheduled trial and asked an associate to appear and to advise the trial court of his illness, which she did. Further, when the trial court requested that he provide an excuse from a medical doctor concerning the illness, he did so.

After reviewing the record below, we conclude that whether Lavit’s actions were contemptuous turns on various issues of fact. From those disputed facts a jury could make certain findings and reasonable inferences that would support a finding of contempt of court. Some of the issues which are in dispute and which may affect the jury’s determination of whether Lavit acted contemptuously include, whether Lavit was prepared to go to trial on November 10, 2003; the purpose of Lavit’s call to Judge Weddle on November 9, 2003; and why Lavit attempted to call Judge George on November 9, 2003, if he had intended to try the Brockman case up until he awakened on November 10, 2003.

On remand, Judge George shall be disqualified from presiding over Lavit’s contempt proceedings since he may have to provide testimony concerning whether he was available at his home on November 9, 2003, and since he has expressed an opinion concerning the merits of the proceeding. If a jury finds Lavit guilty of indirect criminal contempt, then the new trial judge will exercise his or her discretion in assessing the fine.

For the foregoing reasons, the order of the Taylor Circuit Court is vacated and this matter is remanded for a jury trial before a new trial judge.

ALL CONCUR.

      . The $825.00 represented the juror’s fee paid to 66 jurors that reported for jury duty in Brockman’s case.

      . Kentucky Rules of Civil Procedure.

      . Kentucky Rules of Criminal Procedure.

      .The order specifically noted 14 requests from the 13-page motion and also noted "that this list is a brief summary and not exhaustive of the relief sought via this Motion.”

      . Commonwealth v. Pace, 15 S.W.3d 393, 395 (Ky.App.2000).

      . Id.; Commonwealth v. Burge, 947 S.W.2d 805 (Ky.1996).

      . Burge, 947 S.W.2d at 808.

      . Pace, 15 S.W.3d at 395 (quoting Burge, 947 S.W.2d at 808).

      . Id.

      . See Brannon v. Commonwealth, 162 Ky. 350, 172 S.W. 703 (1915).

      . Pace, 15 S.W.3d at 396.

      . International Association of Firefighters, Local 526, AFL-CIO v. Lexington-Fayette Urban County Government, 555 S.W.2d 258, 260 (Ky.1977).

      . Kentucky Revised Statutes 26A.015(2)(a) and (d) 4.


author: HENRY, Judge.

text:
    Donnie L. EMBRY and Evelyn F. Embry, his wife, Appellants, v. Ora TURNER and Dessie Turner, his wife, Appellees.
    No. 2004-CA-002040-MR.
    Court of Appeals of Kentucky.
    Feb. 10, 2006.

      Michael L. McKown, Hartford, KY, for appellant:
    Phillip L. Kimbel, Bowling Green, KY, for appellee.
    Before COMBS, Chief Judge; HENRY and VANMETER, Judges.
   OPINION

HENRY, Judge.

Donnie and Evelyn Embry (hereinafter “the Embrys”) appeal from a verdict and judgment of the Butler Circuit Court, and from an order of that court overturning its prior decision to grant a new trial. On review, we affirm.

The Embrys and Ora and Dessie Turner (hereinafter “the Turners”) are owners of neighboring parcels of land in Butler County, Kentucky. The parties are in dispute over the location of a boundary line between the parcels and — related to this dispute — ownership of a 15.26-acre tract of land. On October 27, 2000, the Embrys filed suit against the Turners seeking to establish the true boundary line between the properties and ownership of the disputed tract.

Following a two-day jury trial conducted in January 2002, the jury unanimously found that the Turners were the rightful owners of the disputed tract of land. On February 12, 2002, the trial judge entered a trial order and judgment consistent with the jury’s verdict.

The Embrys subsequently filed a motion for judgment notwithstanding the verdict and a motion for new trial on February 21, 2002, arguing that the jury’s decision was contrary to law, that it was unsupported by sufficient evidence, and that it was the result of passion and prejudice. On February 11, 2003 — after an almost one-year delay — the trial judge entered an order denying the Embrys’ motion for judgment notwithstanding the verdict, but finding that “the verdict of the jury in this matter is contrary to the law, is not sustained by sufficient evidence, is against the weight of the evidence and therefore, the Plaintiffs are entitled to a new trial.” Accordingly, the matter returned to litigation.

On March 1, 2004, the Turners filed a motion to reinstate and confirm the original jury verdict. The record is unclear as to what the trial judge’s response was to this particular motion or what arguments were made in support of it, but on August 27, 2004, he entered an Order that reads, in relevant part, as follows:

This matter was tried before a Jury in Butler Circuit Court and the Jury returned a verdict in favor of Defendant on January 28, 2002. Prior to this matter being tried, this Court had required the Plaintiff and Defendant to attempt to settle this matter on more than one occasion. This Court had always felt that, for various reasons, this is a matter that should have been settled without the necessity of trial; however, the parties were unable settle [sic] the matter with the resultant jury trial. Thereafter, on February 11, 2003, this Court entered its Order sustaining the Plaintiffs motion for a new trial but overruling the Plaintiffs motion for a judgment notwithstanding the verdict. Candidly, this Court issued its Order for a new trial simply to allow the parties an additional chance to settle the case without the necessity of an appeal, with the parties incurring additional attorneys’ fees, etc. even at that point in the litigation. This Court felt that the parties could and should be able to settle this matter but this Court ms wrong. Therefore, this Court finds that it was in error when it sustained the Plaintiffs motion for a new trial and it is therefore this Court’s prerogative to correct its earlier error. (Emphasis added).

The trial judge consequently set aside his February 11, 2003 order sustaining Em-bry’s motion for a new trial and reinstated the trial order and judgment of February 12, 2002. This appeal followed.

This case presents two peculiarities, one minor and the other major. The minor one is procedural. It merits a brief mention here.

The grant of a new trial under CR 59.01 terminates the running of time for appeal. CR 73.02(1)(e). That rule goes on to say that “the full time for appeal fixed in this Rule commences to run upon entry and service under Rule 77.04(2) of an order granting or denying a motion under Rules 50.02, 52.02 or 59, except when a new trial is granted under Rule 59.” (Emphasis added). The effect of the foregoing phrase seems to be to terminate the running of time for appeal indefinitely when a new trial is granted, because it is expected that at some point there will be a new verdict and judgment from which to appeal. This interpretation agrees with cases which have held that the filing of a CR 59 motion converts a final judgment to an interlocutory judgment. See Personnel Board v. Heck, 725 S.W.2d 13, 18 (Ky.App.1986). In this case there was no new trial and therefore no new final judgment from which to appeal. Nevertheless, we are satisfied that the court continued to have jurisdiction to enter an order setting aside its prior order granting a new trial, as was done here. See, e. g., CR 6.03; see also Collins v. Wells, 314 S.W.2d 572, 574 (Ky.1958). We hold that the notice of appeal herein was timely when it was filed within thirty days after entry and service of the docket notation (under CR 77.04) of the order setting aside the order granting a new trial. CR 73.02(l)(e).

Procedural anomalies aside, once the order granting a new trial has been set aside, we are left to review the trial court’s decision to overrule the motion for a new trial, and the jury verdict and judgment. We first briefly note that an order either granting or denying a new trial under CR 59.01 is not a final order and is therefore not appealable as such, but it may be reviewed, as here, on appeal from the final judgment. Hardin v. Waddell, 316 S.W.2d 367, 368 (Ky.1958). As a general rule, “[t]he decision of a trial court to overrule a motion for new trial will not be disturbed on appeal absent a manifest error or abuse of discretion.” Gould v. Charlton Co., Inc., 929 S.W.2d 734, 741 (Ky.1996) (Citation omitted). In undertaking our analysis of the trial judge’s eventual decision not to allow a new trial here, we must be mindful that the decision is presumptively correct, and that we cannot reverse unless it was clearly erroneous. McVey v. Berman, 836 S.W.2d 445, 448 (Ky.App.1992) (Citations omitted); see also Prater v. Arnett, 648 S.W.2d 82, 86 (Ky.App.1983) (Citations omitted).

The Embrys first argue that the jury’s verdict in favor of the Turners was not supported by sufficient evidence. Accordingly, they contend that they are therefore entitled to a new trial pursuant to CR 59.01(f), which reads: “A new trial may be granted to all or any of the parties and on all or part of the issues for any of the following causes: ... That the verdict is not sustained by sufficient evidence, or is contrary to law.”

The Embrys specifically call into question the testimony of Ralph Anderson, the Turners’ expert civil engineer and survey- or, arguing that his testimony “was shown not to be credible and completely unsup-portive of the Turners’ position in this matter,” and that it “was so incredible and contrary to common knowledge as to be manifestly without evidentiary value.” However, after reviewing the references to the record made in the Embrys’ brief along with the testimony at trial as a whole, we believe that the trial judge did not abuse his discretion in allowing the case to go the jury and in denying the Embrys’ subsequent motion for a new trial.

While the issues raised by the Em-brys certainly go toward the credibility of Anderson’s testimony, we do not believe that they refute the testimony to such an extent as to merit a directed verdict or new trial. Our case law has long held that “[i]t is the function of the jury to determine questions of credibility and issues of fact where the evidence is conflicting.” Woods v. Asher, 324 S.W.2d 809, 811 (Ky.1959) (Citations omitted). “While the trial court has a broad judicial discretion in granting or refusing a new trial, it may not set aside a verdict of a jury because it does not agree with the verdict if there was sufficient evidence to support it.” Id. As we believe from our review of the record that there was sufficient evidence to support the jury’s unanimous verdict in this case—and even though we recognize that the jury could also have reasonably rendered a verdict in favor of the Embrys— we conclude that the trial judge did not abuse his “broad judicial discretion” in denying the Embrys’ motion for a new trial on this basis.

The Embrys next argue—also pursuant to CR 59.01(f)—that the jury’s verdict was contrary to law. Specifically, they contend that the trial judge should have granted a directed verdict in accordance with Faulkner v. Lloyd, 253 S.W.2d 972 (Ky.1952); Redman v. Redman, 240 S.W.2d 553 (Ky.1951); and Wolf v. Harper, 313 Ky. 688, 233 S.W.2d 409 (1950). The Embrys submit that “[a]ll three cases stand for the proposition that if parties to a boundary dispute enter into an agreed boundary line and acquiesce in possession that conforms to that agreement for a reasonable amount of time, said boundary becomes fixed, and a party is estopped from asserting a contrary boundary line.” (Emphasis in original). They argue that the evidence presented at trial is consistent with this principle, and that the Turners should consequently be estopped from asserting a contrary boundary line here.

As an initial matter, in reviewing the record, we find no indication that the Em-brys gave notice of “estoppel” as a potential basis for relief. It is well-established that estoppel must be specifically pled in order to be available as a ground for relief. See Stansbury v. Smith, 424 S.W.2d 571, 572-73 (Ky.1968) (Citation omitted). However, as the Turners did not object to the introduction of the issue of estoppel on this basis, we will consider it as applicable to the facts presented. Bailey v. Thompson, 300 S.W.2d 235, 237 (Ky.1957); see also CR 8.03; CR 15.02. We also note that the Embrys gave no notice of an agreed boundary or any other oral agreement as a ground for relief, but we will consider these issues nevertheless in accordance with the principles noted above.

The Faulkner decision sets forth three specific doctrines that are often used, and confused, in the context of disputed boundaries. The “agreed boundary” doctrine allows for parol agreements establishing boundary lines to be enforceable — despite the statute of frauds — “only in the event the true dividing line between two tracts is in doubt, and there is a dispute between the adjoining owners as to the exact location of the line, which depends on variable circumstances not susceptible of certain determination.” Faulkner, 253 S.W.2d at 974, citing Howard v. Howard, 271 Ky. 773, 113 S.W.2d 434 (1938). The Wolf and Redman cases cited by the Embrys also set forth and rely upon the “agreed boundary” doctrine. See Redman, 240 S.W.2d at 553-554 (Citation omitted); Wolf, 313 Ky. at 692, 233 S.W.2d at 411 (Citations omitted).

We believe that the evidence here supports a doubt and dispute as to the actual boundary line; however, in order for the “agreed boundary” doctrine to apply, there must be clear proof of a parol agreement between the applicable parties setting forth an agreed boundary. Bringardner Lumber Co. v. Bingham, 251 S.W.2d 273, 274 (Ky.1952) (Citation omitted). Here, there is questionable evidence, at best, of an actual agreement between the Embrys and Turners setting the boundary at the “agreed line” claimed by the Embrys. Indeed, in support of their argument, the Embrys cite only to these facts:

There was ample testimony that the Turners erected their fence on the line from point E to point F on the Anderson plat ... soon after purchasing the real estate in 1985. The Embrys built a fence immediately adjacent to the Turner fence (on the line from point E to point F on the Anderson survey plat) in approximately 1996 or 1997, and the Turners did nothing regarding said fence until 2000, when the Turner surveyor began setting stakes on the Em-bry’s [sic] side of the fence .... In fact, up to the filing of the lawsuit in 2000, Mr. Turner continued to acquiesce in the boundary as it was the Embrys who filed suit!

(Emphasis in original). Nothing here or otherwise in the record illustrates an actual agreement between the Embrys and the Turners setting the boundary line at the location urged by the Embrys. Such an agreement is a required element for relief under all three of the cases submitted by the Embrys. Consequently, we do not believe that the trial judge abused his discretion in declining to award the Em-brys a directed verdict or new trial on this ground.

Faulkner also sets forth that an oral agreement that does not fit within the bounds of the “agreed boundary” doctrine can still “fix” an agreed boundary line if the applicable parties “take possession to the agreed line and exercise possession for the statutory period.” Faulkner, 253 S.W.2d at 974, citing Combs v. Combs, 240 S.W.2d 558 (Ky.1951). Again, however, the record reflects little evidence of an oral boundary agreement between the Embrys and the Turners. Moreover, as Faulkner further notes: “In the last instance, the fixing of the line at the point agreed upon or acquiesced in by the parties is not an enforcement of the agreement but is upon the theory that adverse possession precludes either party from claiming beyond the agreed line.” Id. Consequently, under this theory, parties are required to recognize the agreed boundary as the applicable line for fifteen years or more before courts will recognize it as the true location. Combs, 240 S.W.2d at 559, citing Lewallen v. Mays, 265 Ky. 1, 95 S.W.2d 1125 (Ky.1936). As the Embrys did not place their fence on the disputed boundary line and essentially “claim” the disputed property as their own until 1996 or 1997, the applicable fifteen-year period was not satisfied. Accordingly, the Embrys were also not entitled to relief under this ground.

Faulkner finally observes that the doctrine of estoppel can often come into play in disputed boundary cases. Specifically, the opinion notes:

In the absence of a valid boundary agreement or adverse possession, a line may nevertheless become fixed by the operation of an estoppel. A landowner who knows the true line and silently permits an adjoining owner to make substantial improvements unknowingly past the fine is estopped to claim to the true boundary. The same is true if a landowner by conduct or assertions as to the boundary line is instrumental in having the improvements made past the true line.

Faulkner, 253 S.W.2d at 974, citing Martin v. Hampton Grocery Company, 256 Ky. 401, 76 S.W.2d 32 (1934). As stated by this court in Gosney v. Glenn, 163 S.W.3d 894 (Ky.App.2005):

The essential elements of equitable es-toppel are: (1) Conduct which amounts to a false representation or concealment of material facts, or, at least, which is calculated to convey the impression that the facts are otherwise than, and inconsistent with, those which the party subsequently attempts to assert; (2) intention, or at least expectation, that such conduct shall be acted upon by the other party; (3) knowledge, actual or constructive, of the real facts. As related to the party claiming the estoppel, they are: (1) Lack of knowledge and of the means of knowledge of the truth as to the facts in question; (2) reliance upon the conduct of the party estopped; and (3) action based thereon of such a character as to change his position prejudi-cially.

Id. at 899 (Citation omitted). Also of particular note here, our predecessor court held in Jones v. Travis, 302 Ky. 367, 194 S.W.2d 841 (1946), as follows:

In extraordinary circumstances title to real property may pass by an equitable estoppel where justice requires such action. In order to establish an equitable estoppel against one asserting title to real property, the party attempting to raise it must show an actual fraudulent representation, concealment or such negligence as 'will amount to a fraud in law, and that the party setting up such estoppel was actually misled thereby to his injury. In all instances a clear strong case of estoppel must be made out in order to pass title by reason thereof.

Jones, 302 Ky. at 369, 194 S.W.2d at 842.

The Embrys suggest that the Turners’ purported “acquiescence” in their fence for four to five years without filing any sort of legal action is sufficient to establish estoppel. However, “[m]ere acquiescence ... is not sufficient to create an estoppel. The party asserting it must have been induced to act to his detriment or misled to his injury.” Thomas v. Holmes, 306 Ky. 632, 637, 208 S.W.2d 969, 972 (Ky.1948), citing Mercer v. Federal Land Bank of Louisville, 300 Ky. 311, 188 S.W.2d 489 (1945); see also General Motors Acceptance Corp. v. Lincoln National Bank, 18 S.W.3d 337, 340 (Ky.2000), citing Nolin Production Credit Association v. Canmer Deposit Bank, 726 S.W.2d 693, 703-04 (Ky.App.1986). Although Mr. Embry’s testimony reflects that, at some point, Mr. Turner apparently voiced no objection to Mr. Embry’s placing a boundary marker next to the Turner fence, Mr. Embry also testified that Mr. Turner objected to the Embrys’ building their fence on what he believed to be his property, and that he placed surveying stakes on the disputed parcel in 2000 — just before the Embrys filed suit. The Embrys have offered no arguments here with respect to the required elements of estoppel and have directed us to nothing within the record to suggest any sort of false representation, concealment of material fact, detrimental reliance, or any of the other facts required to prove a claim of estoppel. We therefore conclude that the trial judge did not abuse his discretion in failing to provide the Em-brys relief on this ground.

The Embrys next argue that the jury incorrectly based its decision on passion or prejudice. Accordingly, they contend that they are therefore entitled to a new trial pursuant to CR 59.01(d), which reads: “A new trial may be granted to all or any of the parties and on all or part of the issues for any of the following causes: ... Excessive or inadequate damages, appearing to have been given under the influence of passion or prejudice or in disregard of the evidence or the instructions of the Court.”

The Embrys assert that the jury essentially rendered a verdict in favor of Mr. Turner because its members felt sorry for him. In support of this contention, the Embrys submit an affidavit from James Crafton, the foreman of the jury that decided the case. In this affidavit, Mr. Craf-ton expresses his belief that some of the jurors that voted for Mr. Turner did so because of his advanced age and because he looked confused on the stand. However, the affidavit also indicates that a number of the jurors voting for Mr. Turner “thought that his surveyor packed more weight.” In light of this conflicting evidence, we cannot say that the trial judge abused his discretion in failing to grant a new trial on the grounds of passion and prejudice.

The Embrys also contend that the trial judge erred by allowing Mr. Turner’s attorney to improperly lead him on direct examination during his testimony about the location of the parties’ common boundary line. They contend that “[b]y virtue of this leading, Mr. Turner was allowed to change his erroneous testimony on the critical issue of where the historical boundary line was between the parties.” (Emphasis in original).

Our evidentiary rules state that “Heading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness’ testimony.” KRE 611(c). We must review the judge’s decision here with an understanding that “[wjhile the use of leading questions on direct examination is generally unacceptable ... judgments will not be reversed because of leading questions unless the trial judge abused his discretion and a shocking miscarriage of justice resulted.” Tamme v. Commonwealth, 973 S.W.2d 13, 27 (Ky.1998) (Citations omitted). “The test for abuse of discretion is whether the trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky.2000) (Citation omitted). In following this standard, we also note that trial courts are obligated to “exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to: (1) Make the interrogation and presentation effective'for the ascertainment of the truth; (2) Avoid needless consumption of time; and (3) Protect witnesses from harassment or undue embarrassment.” KRE 611(a).

After reviewing Mr. Turner’s testimony in its entirety — including the specific instance complained of by the Embrys — we are satisfied that the trial judge did not abuse his discretion in allowing Mr. Turner’s attorney to lead him in the manner noted above, and that a “shocking miscarriage of justice” did not consequently result. Therefore, we must again reject the Embrys’ argument as to this issue.

The Embrys’ final argument is that the trial judge erred when he reinstated the jury verdict on his own accord based on inadmissible settlement negotiations. They specifically point to an April 9, 2002 supplemental response to the Embrys’ motion for new trial filed by the Turners stating that the Embrys would not agree to a settlement and contend that “[although [the trial judge] entered an order on May 20, 2002 striking said supplemental response, the trial court had already been tainted by the inadmissible settlement negotiation information.” We fail to see how this was the case, however, given that the trial judge ultimately granted the Embrys’ motion for a new trial after this pleading was submitted and stricken.

The Embrys further argue that “[t]he fact that the parties were unable to settle this matter after the Court entered an Order granting a new trial, and that the Court might have perceived the Embrys to be the obstinate party in the settlement negotiations, should not form a basis for the Court to set aside its Order granting a new trial.” We are not compelled to accept this argument because it ignores the fact that — by the trial judge’s own belated admission — the original order awarding a new trial had no actual foundation in CR 59.01 but was instead based upon the judge’s desire to compel a settlement. To allow the Embrys to benefit from this conduct would be highly inequitable, at best. Consequently, we do not believe that the Embrys are entitled to relief on this ground.

Finally, we must address the major peculiarity present in this case — the trial judge’s grant of a new trial upon grounds that he ultimately admitted that he fabricated in an effort to coerce a settlement. It is one thing for a judge to mediate settlement of a case prior to trial, which may be done if ethical requirements are scrupulously observed. See SCR 4.300 Canon 3 B(7)(d); Home Depot U.S.A., Inc. v. Saul Subsidiary I Ltd. Partnership, 159 S.W.3d 339, 341 (Ky.App.2004). It is quite another to set aside an otherwise valid jury verdict for reasons of personal belief or bias. The overturning of a jury verdict in favor of a new trial is a matter of the utmost seriousness, and should only occur when the specific criteria set forth in CR 59.01 are carefully considered and met. To flout those criteria due to one’s personal belief about a case is incompatible with our system of justice. Such conduct tends to erode public confidence in the fairness and impartiality of our court system. Nearly four years have passed since a Butler County jury unanimously decided this case in favor of the appellees. At least two years of delay in bringing this case to its ultimate conclusion was caused by the trial judge’s improper — even if well-intentioned — intervention. His interference was inappropriate at best and injudicious at worst.

The judgment of the Butler Circuit Court is affirmed.

ALL CONCUR.

      . Kentucky Rules of Civil Procedure.

      . We also note that the Embrys failed to attempt to submit the issue of estoppel or of an agreed boundary to the jury in its proposed instructions even though — as to estoppel in particular — these are questions of fact to be determined by the circumstances of each case. Weiand v. Board of Trustees of Kentucky Retirement Systems, 25 S.W.3d 88, 91-92 (Ky.2000) (Citations omitted); McKenzie v. Oliver, 571 S.W.2d 102, 106 (Ky.App.1978) (Citations omitted); Wolf, 313 Ky. at 692, 233 S.W.2d at 411. Consequently, we have reservations as to whether the trial judge had any obligation to consider the Embrys’ argument in the first place. As this issue was addressed by neither the trial judge nor the parties at any point during these proceedings, we consider it only in passing.

      . Kentucky Rules of the Supreme Court.


author: GUIDUGLI, Judge.

text:
    N.T.G., a Minor, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2005-CA-000035-DG.
    Court of Appeals of Kentucky.
    Feb. 17, 2006.
    Timothy G. Arnold, Assistant Public Advocate, Frankfort, KY, for appellant.
    Gregory D. Stumbo, Attorney General of Kentucky, Ken W. Riggs, Assistant Attorney General, Frankfort, KY, for appellee.
    Before GUIDUGLI and JOHNSON, Judges; HUDDLESTON, Senior Judge.

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

   OPINION

GUIDUGLI, Judge.

This case involves an order of the Juvenile Division of the Hart District Court imposing fifteen days in detention on N.T.G., a thirteen-year-old child. Although the days in detention were probated, N.T.G. appealed the order to the Hart Circuit Court contending KRS 635.060 prohibits imposition of confinement in detention if the child is under fourteen years of age. The Hart Circuit Court affirmed the dispositional order based upon the fifteen days being probated, relying on X.B. v. Commonwealth. We reverse and remand.

The facts of the case as stated by the Hart Circuit Court are as follows:

On July 9, 2004, juvenile complaints were taken against [N.T.G.], age thirteen (13). The first complaint alleged that [N.T.G.] had committed Burglary, Second Degree, Class C Felony, by unlawfully entering the residence of Roy and Kristy Mathis. The second complaint alleged that [N.T.G.] had committed Theft By Unlawful Taking Under $300.00, Class A Misdemeanor, by consuming a bologna, cheese sandwich and beverage while at the same residence. The third complaint alleged that [N.T.G.] had committed Criminal Mischief, Third Degree, Class B Misdemeanor, by unlawfully kicking and breaking the door to said residence.
On August 12, 2004, [N.T.G.] admitted his guilt to the following offenses: Criminal Trespass, First Degree, Class A Misdemeanor, Theft by Unlawful Taking Under $300.00, Criminal Mischief, Third Degree. At the disposition hearing, [N.T.G.] was sentenced to fifteen (15) days, and that sentence was probated upon certain terms and conditions, including payment of restitution and no unlawful contact with his co-defendant. On appeal, [N.T.G.] asserts that the juvenile court committed reversible error when it imposed that disposition. This Court has determined that the issues raised on appeal can be addressed and adjudicated without the necessity of oral arguments.

On appeal to the Hart Circuit Court, N.T.G. argued that the juvenile court had failed to impose the least restrictive alternative method of treatment as mandated by KRS 630.120(4) and that the juvenile court was without authority to impose fifteen days of detention upon a thirteen-year-old. The circuit court summarily dismissed N.T.G.’s first argument finding it was without merit because the least restrictive alternative method of treatment deals with removal of a child which was not applicable herein. That issue has not been appealed and is not before this Court.

As to N.T.G.’s second argument that KRS 635.060 prohibits detention for a child under fourteen, the circuit court held:

[N.T.G.] next asserts that the juvenile court erred because it was without any authority to impose fifteen (15) days of detention upon a thirteen (13) year old. To support this position, [N.T.G.] has argued that KRS 645.060[sic] only allows the Hart District Court to confine juveniles from ages fourteen (14) through eighteen (18). This Court rejects [N.T.G.’s] argument based upon the following: (1) KRS 645.060(2)[sic] does not preclude a thirteen (13) year old from being placed on probation; and (2) the Kentucky Court of Appeals has previously vacated and remanded a disposition of a thirteen (13) year old child to require a juvenile court to consider probation. See X.B. v. Commonwealth, Ky.App., 105 S.W.3d 459 (2003).

Based upon the foregoing, the circuit court affirmed the dispositional order of the juvenile court. N.T.G. then petitioned this Court for discretionary review. The petition was granted, and we review the matter herein.

On appeal, N.T.G. sets forth the issue as follows, “Can a juvenile court probate a sentence that it would not be permitted to impose directly at disposition?” While N.T.G. freely concedes that the juvenile court could have probated any sentence it could have directly imposed, he vigorously argues that the court could not probate a sentence it could not directly impose, ie., detention. The Commonwealth responds by maintaining that the issue was not properly preserved for appellate review. It contends that at the dispositional hearing, N.T.G. objected to the probated fifteen days in detention because it was arbitrary and unduly harsh for a first-time offender and not because of the age limitation contained in KRS 635.060. In fact, at the dispositional hearing, the public advocate representing N.T.G. first learned of N.T.G.’s age after she had objected to the disposition as being arbitrary and harsh. As such, the Commonwealth claims N.T.G. is attempting to feed the juvenile court one can of worms and this appellate court another, which is prohibited. While this may have been true as to the appeal from the juvenile court to the circuit court, it is clear that the Hart Circuit Court order addressed the issue of KRS 635.060 and its effect on detention and age limitations. However, even if the issue had not been properly preserved for appellate review to this Court, we would address the merits of the argument under RCr 10.26, the palpable error rule.

Alternatively, the Commonwealth argues that the disposition fulfilled the overall intent of the juvenile code in that it was imposed in the best interests of the child and directed towards “treatment reasonably calculated to bring about an improvement of his or her condition” citing KRS 600.010(2)(d). It also contends that any error is harmless and/or moot since N.T.G. is now over fourteen years old. While the Commonwealth’s arguments are compelling, we believe the statute is controlling and must be strictly followed.

KRS 635.060 is titled “Options of court at dispositional hearing.” Sections (2), (4) and (5) address probation and detention alternatives for the court to consider. Section (2), in relevant part, states that the court at the dispositional hearing may:

(2) Place the child under parental supervision in the child’s own home or in a suitable home or boarding home, upon the conditions that the court shall determine, or place the child on probation under conditions that the court shall determine. At the time the child is placed on probation, the court shall explain to the child the sanctions which may be imposed if the court’s conditions are violated, and shall include notice of those sanctions as part of its written order of probation. [Emphasis added].

While this section permits probation, sections (4) and (5) specifically deal with detention in the following manner:

(4) If the child is fourteen (14) years of age but less than sixteen (16) years of age, order that the child be confined in an approved secure juvenile detention facility, juvenile holding facility, or approved detention program as authorized by the Department of Juvenile Justice in accordance with KRS Chapter 15A for a period of time not to exceed forty-five (45) days; or
(5) If the child is sixteen (16) years of age or older, order that the child be confined in an approved secure juvenile detention facility, juvenile holding facility, or approved detention program as authorized by the Department of Juvenile Justice in accordance with KRS Chapter 15A for a period of time not to exceed ninety (90) days[.]

Clearly, sections (4) and (5) dealing with the imposition of detention restricts this dispositional option to a child fourteen or older... Thus by statute, any child under the age of fourteen may not be placed in detention. Despite the clarity of the statute, the Commonwealth contends that the juvenile court can utilize detention for a child under fourteen as long as the detention time is probated. The Commonwealth appears to be arguing that the juvenile court can use this dispositional alternative (probated detention time) to threaten, scare or intimidate the juvenile into the proper behavior the court, the DJJ, the Commonwealth, the parents, the school or the victim deems appropriate. While we may believe the end result is commendable, unfortunately the statute does not permit such court action. KRS 635.060(2), dealing with probation, states that “[a]t the time the child is placed on probation, the court shall explain to the child the sanctions which may be imposed if the court’s conditions are violated, and shall include notice of those sanctions as part of its written order of probation.” [Emphasis added]. Obviously, a court cannot say that a child will be placed in detention for violation of a probated condition if the statute prohibits such due to his age.

We believe, as the Commonwealth points out, that KRS 600.010(2)(e) sets forth the legislative intent when dealing with a child adjudicated to be delinquent (a public offender) as follows:

KRS Chapter 635 shall be interpreted to promote the best interests of the child through providing treatment and sanctions to reduce recidivism and assist in making the child a productive citizen by advancing the principles of personal responsibility, accountability, and reformation, while maintaining public safety, and seeking restitution and reparation^]

Clearly, such a mandate cannot include giving misleading or inaccurate information to a child or imposing meaningless threats of detention not authorized by the law. As such, we believe the juvenile court acted erroneously in imposing detention time even though the sentence was ultimately probated. It follows that the Hart Circuit Court’s order affirming the juvenile court must be reversed and the matter remanded to the Hart District Court for further action consistent with this opinion.

ALL CONCUR.

      . 105 S.W.3d 459 (Ky.App.2003).

      .At the dispositional hearing, N.T.G.’s attorney stated she objected to the fifteen days probated because "this was his first offense and the juvenile is how old, sixteen (16) or so.” She was then informed by N.T.G. that he was only 13.

      . See Kennedy v. Commonwealth, 544 S.W.2d 219 (Ky.1976); Parker v. Commonwealth, 465 S.W.2d 280 (Ky.1971).

      . The Commonwealth did not argue before the Hart Circuit Court that the issue was not preserved.

      . We should point out that in A.W. v. Commonwealth, 163 S.W.3d 4 (Ky.2005), the Kentucky Supreme Court held that a child may be held in contempt of court for violating a condition of probation. That case would appear to permit a juvenile court to place a thirteen-year-old probated child in detention for contempt if the violation occurs after the child turns fourteen years old.


author: COMBS, Chief Judge.

text:
    COMMONWEALTH of Kentucky, CABINET FOR HEALTH AND FAMILY SERVICES, as next Friend of A.W., a Child, and C.W., a Child, Appellant, v. Hon. Margaret Ryan HUDDLESTON; Meredith Shea Weiss; Allen Ted Weiss; C.W., a Child, by and through Guardian ad Litem, Martha Blair Harrison; and A.W., a Child, by and through Guardian ad Litem, Martha Blair Harrison, Appellees.
    No. 2005-CA-000165-ME.
    Court of Appeals of Kentucky.
    Feb. 17, 2006.
    Lynn Pryor, Hopkinsville, KY, for appellant.
    No brief filed for appellees.
    Before Chief Judge, COMBS; DYCHE and HENRY, Judges.
   OPINION

COMBS, Chief Judge.

The Commonwealth of Kentucky, Cabinet for Health and Family Services (hereinafter, Cabinet), appeals from an order of the Warren Circuit Court, Family Division, which requires it to maintain residence in Simpson County of two children committed to its care. The Cabinet argues that the court abused its discretion by exceeding its authority when it restricted the Cabinet’s ability to determine the best placement for the children in order to achieve its goal of family reunification. None of the appel-lees has filed a responsive brief. After reviewing the record and considering the authorities cited by the Cabinet, we vacate that portion of the court’s order limiting the Cabinet’s discretion in determining the proper placement of the children committed to its care.

Following the filing of petitions alleging neglect as to A.W. and C.W., the children of the appellees (Meredith and Allen Weiss), were committed to the custody of the Cabinet in late 2003. At that time, Allen’s whereabouts were unknown. Meredith, incarcerated for alcohol-related charges, stipulated to having neglected the children. A.W. and C.W. were placed with foster parents in Simpson County.

After Meredith’s release from jail, she moved to Russell County. A permanency hearing concerning the continued care and custody of the children was conducted in October 2004 pursuant to KRS 610.125. In its order of October 6, 2004, the court determined that the children should remain under the Cabinet’s care and commitment. It also found that the Cabinet’s permanency goal of reunification of the children with their mother was in the children’s best interests. Nevertheless, it ordered the Cabinet to keep the children’s residence in Simpson County, a distance of more than 100 miles from that of their mother.

Citing the obstacles in providing services because of the two-hour commute for visitation between Meredith and her children, the Cabinet filed a motion to alter, amend, or vacate that portion of the order requiring it to keep the children in Simpson County. The motion was denied, and this appeal followed.

The Cabinet argues that the court’s restriction on where it can place the children “creates a situation which is unduly burdensome on [it] in its efforts to reunite the family.” (Appellant’s brief at p. 4.) The Cabinet cites both statutory authority and legal precedent for the principle that it— not the court — is responsible for determining where a child committed to its care should reside. Specifically, it relies on KRS 610.010(11), which provides as follows:

Except as provided in KRS 635.060(3), nothing in this chapter shall confer upon the [Family] Court jurisdiction over the actions of the Department of Juvenile Justice or the cabinet in the placement, care, or treatment of a child committed to the Department of Juvenile Justice or the cabinet; or to require the department or the cabinet to perform, or to refrain from performing, any specific act in the placement, care, or treatment of any child committed to the department or the cabinet. (Emphases added.)

By this enactment, the Cabinet (not the court) stands in loco parentis with respect to the children. The Legislature has conferred sole and exclusive authority upon the Cabinet to determine the appropriate placement of a child committed to its care. While the family court undoubtedly sought to provide much needed stability to A.W. and C.W., KRS 610.010(11) explicitly prevents it from intervening in Cabinet decisions with respect to their placement.

The Cabinet also maintains that the family court’s order restricting its placement of A.W. and C.W. offends the separation of powers provision of the Kentucky Constitution. That issue has already been resolved in favor of the Cabinet in Commonwealth v. Partin, 702 S.W.2d 51, 53 (Ky.App.1985), as follows:

Section 27 and 28 of the Kentucky Constitution preclude the district court’s exercise of executive powers, such as ordering the placement of children committed to CHR’s custody. See Clark v. Ardery, 310 Ky. 836, 222 S.W.2d 602 (1949). To the extent that the Campbell and Laurel district courts issued placement orders to CHR, those orders are unconstitutional and void.

Thus, for the foregoing reasons, we vacate only that portion of the Warren Family Court’s order requiring A.W. and C.W. to remain in Simpson County. We affirm the order granting custody of the children to the Cabinet but remand this matter for entry of a corrected order consistent with this opinion.

ALL CONCUR.

      . Kentucky Revised Statutes.

      . The Cabinet for Human Resources, the predecessor to the Cabinet for Health and Family Services.


author: PER CURIAM.

text:
    Charles MERTZLUFFT, Appellant, v. FIREMEN’S RETIREMENT SYSTEM OF ST. LOUIS and Board of Trustees of Firemen’s Retirement System of St. Louis, Respondents.
    No. ED 86066.
    Missouri Court of Appeals, Eastern District, Division Three.
    Dec. 27, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 2, 2006.
    Stanley E. Goldstein, Eli Karsh, St. Louis, MO, for appellant.
    Mark Lawson, St. Charles, MO, for respondent.
    Before KATHIANNE KNAUP CRANE, P.J., LAWRENCE E. MOONEY and GEORGE W. DRAPER III, JJ.
   ORDER

PER CURIAM.

The appellant, Charles Mertzlufft, appeals the circuit court’s judgment affirming the decision of the Board of Trustees of the Firemen’s Retirement System of the City of St. Louis denying him service-connected disability retirement benefits. We have reviewed the parties’ briefs and the record on appeal and find no error.

An opinion would have no precedential value. The parties have been provided with a memorandum, for their information only, setting forth the reasons for this order.

The trial court’s judgment is affirmed. Rule 84.16(b)(4).


author: LAWRENCE E. MOONEY, Presiding Judge.

text:
    HEARTLAND PAYMENT SYSTEMS, L.L.C., Respondent, v. UTICA MUTUAL INSURANCE COMPANY, Appellant.
    No. ED 84636.
    Missouri Court of Appeals, Eastern District, Division Four.
    Jan. 17, 2006.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 2, 2006.

      Steven M. Berezney, Gregory J. Minana, Greg G. Gutzler, St. Louis, MO, for appellant.
    Martin J. Buckley, Adrian P. Sulser, St. Charles, MO, for respondent.
   LAWRENCE E. MOONEY, Presiding Judge.

Utica Mutual Insurance Company appeals the judgment entered upon a jury verdict for the plaintiff, Heartland Payment Systems, L.L.C., on its claim for insurance benefits against Utica. We affirm.

Factual Background

Heartland is a computer processing center that processes credit-card transactions for retail merchants that have contracted with it for credit-authorization services. The instant case and coverage dispute arises out of Heartland’s processing credit-card transactions for Golf Concepts, Inc., a company that sold golf clubs through telephone sales orders. Golf Concepts did not have sufficient funds to satisfy all of its customers’ refund claims, thus creating un-collectible chargebacks for Heartland. Heartland sought to recover its losses resulting from these uncollectible charge-backs under two insurance policies.

To protect itself against the possibility of chargebacks it could not recover, Heartland had procured two insurance policies, one from Utica and one from Banclnsure, Inc. The indemnity policy issued by Utica, denominated as a Merchant Chargeback Indemnity Policy, provided coverage, subject to the terms and conditions of the policy, for “losses” sustained by Heartland caused by certain “covered acts” of Golf Concepts. The policy had an overall annual aggregate limit of indemnity of $1.2 million dollars, with no deductible. The policy contained an “other insurance” clause, which stated that “[i]f any other insurance or indemnity covering any ‘loss’ covered by this policy is available to the Insured, this policy shall only apply to that part of such ‘loss’ which exceeds the amount recoverable from such other insruance [sic] or indemnity.”

Under the Banclnsure policy, denominated as “Plastic Card Fraud Policy for Financial Institutions,” Banclnsure agreed to indemnify Heartland for the following: merchant fraud, merchant’s customer fraud, electronic terminal fraud, telephone sales and mail-order merchant fraud, and telephone sales and mail-order merchant’s customer fraud. The policy had an aggregate limit of liability of $10 million dollars, with a single-loss deductible of $500,000. Banclnsure’s policy also contained an “other insurance” clause, which stated, in pertinent part, that “[cjoverage afforded hereunder shall apply only as excess over any valid and collectible insurance or indemnity obtained by the Insured.... ”

Heartland filed proofs of losses with both Utica and Banclnsure. In its proof of loss submitted to Utica, Heartland claimed a loss of outstanding chargebacks for returns and non-delivery of golf clubs in the amount of $528,899.17. This proof of loss was subject to amendment, and Heartland filed a second proof of loss with Utica some six months later. In this second proof of loss, Heartland claimed $1,054,000 in uncollectible chargebacks as a result of Golf Concepts’ acts.

After investigation, Utica informed Heartland that it had concluded that Golf Concepts committed covered acts under the policy. Utica further acknowledged that Heartland had provided Utica -with data establishing that, to date, the total overdraft balance was $1,473,270.44. Uti-ca took the position that, because of the effect of the two “other insurance” clauses in the Utica and Banclnsure policies, it was responsible for only a portion of the covered losses Heartland had sustained. Utica asserted that Banclnsure’s policy applied on a pro-rata basis with its indemnity policy for any loss in excess of the $500,000 deductible in the Banclnsure policy. Based on this position and its construction of the two insurance policies, Uti-ca calculated that it owed Heartland $519,478.80, and tendered a check for that amount.

Heartland also made a claim under the Banclnsure policy for the uncollectible chargebacks on the Golf Concepts account. In the proof of loss submitted to Bancln-sure, Heartland claimed a total loss in the amount of $1,473,957.44 as a result of Golf Concepts’ various fraudulent acts. Ban-clnsure declined to make any payment.

Heartland filed suit against Utica and Banclnsure. In its action against Utica, Heartland alleged it had sustained losses in excess of $1,293,024.14 as a result of the acts of Golf Concepts. Heartland claimed that Utica was obligated to pay the full policy limit and sought to recover the remaining balance of Utica’s $1.2 million limit of liability — $680,526.20—plus interest. As against Banclnsure, Heartland alleged it had sustained losses in excess of $1,293,024.14 as a result of certain fraudulent acts by Golf Concepts. Heartland sought indemnification from Banclnsure for all losses caused by the fraudulent acts of Golf Concepts in excess of the $1.2 million limit insured by Utica, up to Ban-clnsure’s policy limit of liability of $10 million dollars.

In addition to filing answers, both Utica and Banclnsure filed cross-claims against each other. In Banelnsure’s cross-claim against Utica, Banclnsure argued that under its “other insurance” clause, its policy provided coverage only in excess of that provided by Utica. Banclnsure sought declaratory relief from the court stating that it had no liability until Utica’s policy was exhausted. In its cross-claim against Ban-clnsure, Utica sought declaratory relief, indemnity, and contribution. Utica claimed that because Heartland was covered under both the Utica and Banelnsure policies for the same claim, payment was subject to proration between Utica and Banelnsure. Utica sought declaratory relief so stating, and also sought contribution and indemnity from Banelnsure on the same grounds.

After a period of discovery, various motions for summary judgment were filed by both Utica and Banelnsure. Among these motions was Banelnsure’s motion for partial summary judgment on the issue of primary versus excess coverage. In this motion, Banelnsure requested the trial court to enter judgment finding that the Utica policy was the primary insurer of the losses claimed by Heartland as a result of the chargebacks incurred on the Golf Concepts account and that Banelnsure coverage is excess only for those specific losses that resulted from fraud. In denying this motion, the trial court ruled that “both policies identify and cover the same risk, i.e., loss to Heartland resulting from acts of fraud committed by Golf Concepts.” The trial court further noted that under Missouri law, although “other insurance” clauses are enforceable, when two policies cover the same risk and contain closely similar “other insurance” clauses, the clauses are not enforced, and each insurer is liable for its pro-rata share of the loss based upon a comparison of the policy limits. The trial court also ruled that with respect to the Golf Concepts claim, the insurance policies issued by Banelnsure and Utica afforded Heartland concurrent coverage.

Just prior to trial, Heartland and Ban-clnsure settled, with Heartland receiving $826,724.90 for the losses it suffered on the Golf Concepts account. Heartland then proceeded to trial on its claim against Uti-ca. Heartland filed a pretrial motion in limine to prevent Utica from presenting any evidence that Heartland was covered by the Banelnsure policy and to prevent Utica from introducing any evidence or argument that since there was concurrent coverage, Utica’s policy provided coverage for only a portion of Heartland’s losses. In support of its motion, Heartland claimed that because Utica was attempting to disclaim certain amounts of coverage as being concurrently covered under another policy, and because the policy issued by Utica provided coverage even in the absence of fraud on the part of Golf Concepts, that Utica thus had the burden of proving which transactions and losses were the result of fraud, and therefore subject to proration with the Banelnsure policy. Heartland further claimed that Utica was required to present expert testimony to show which chargebacks were the result of fraud, and that because Utica failed to designate any experts, it could not support any argument that there were losses for which there was concurrent coverage. The trial court granted Heartland’s motion and sustained Heartland’s subsequent trial objections to the introduction of evidence and argument of the existence of the Ban-clnsure policy.

The jury returned a verdict in Heartland’s favor, awarding Heartland $680,526.20, the full amount Heartland was seeking. This amount, when combined with the amount already paid by Utica, totals $1.2 million — the overall aggregate limit of Utica’s policy. The trial court entered judgment in accordance with the jury’s verdict and denied Utica’s post-trial motions. Utica now appeals.

Discussion

Utica raises three points on appeal. First, Utica alleges the trial court erred in ruling that the proofs of loss were not sufficient evidence of Golf Concepts’ fraud. In a related claim, Utica next alleges that even if it was required to produce evidence on fraud other than the proofs of loss, the trial court erred in ruling that Utica was required to produce expert testimony on the issue of fraud. And third, Utica claims the trial court erred in precluding it from presenting evidence of Banclnsure’s settlement. Although Utica raises three separate points on appeal, the underlying argument for each point is essentially the same. Utica complains that it was forced to pay more than its pro-rata share of Heartland’s losses.

Utica’s position that it is only liable for its pro-rata share of Heartland’s losses is based on its interpretation of the two policies at issue in this case, and on its application of a general rule governing “other insurance” clauses. Under that general rule, “when two policies both contain similar ‘other insurance’ clauses, the clauses are treated as mutually repugnant and are disregarded.” Federal Insurance Company v. Gulf Insurance Company, 162 S.W.3d 160, 164 (Mo.App. E.D.2005) citing Arditi v. Massachusetts Bonding & Insurance Co., 315 S.W.2d 736, 743 (Mo.1958). In this situation, the losses are prorated between the insurers as though neither policy had an “other insurance” clause. Federal Insurance, 162 S.W.3d at 164; 15 Couch on Insurance 3d Contribution and Apportionment § 219.47.

In this case, the Utica and Banclnsure policies both contained “other insurance” clauses. Although expressed in different ways, the meaning and intent of each clause is the same — if there exists other insurance covering the loss, the insurer will only provide excess coverage over the limits of the other policy. Because the Utica and Banclnsure policies contain like excess “other insurance” clauses, the provisions are mutually repugnant, and the clauses are to be disregarded. Neither policy contains any further “other insurance” provisions purporting to limit their liability. Accordingly, Heartland’s losses are to be prorated between Utica and Ban-clnsure in proportion to the amount of coverage by their respective policies. See Federal Insurance, 162 S.W.3d at 164; 15 Couch on Insurance 3d supra § 219.47.

That the losses here are prorated between Utica and Banclnsure is of no benefit, however, to Utica on its current claims of trial-court error in the exclusion of evidence regarding the Banclnsure policy. Utica asserts that it planned to introduce evidence of Banclnsure’s concurrent coverage in order to limit damages to Uti-ca’s pro-rata share. Utica argues that without this evidence, it had no opportunity to present its defense of pro-rata liability, or its entitlement to a set-off. And thus, Utica complains that it was forced to pay well over its pro-rata share — an amount much greater than it contracted to pay. Utica’s argument is fundamentally flawed. A pro-rata allocation among insurers is just that — an allocation among the various insurers. This must be distinguished from the insurer’s relationship with its insured. “A pro-rata allocation among insurers does not reduce their respective obligations to their insured.” Dart Industries, Inc. v. Commercial Union Insurance Company, 28 Cal.4th 1059, 1071, 124 Cal.Rptr.2d 142, 152, 52 P.3d 79, 87 (2002). When multiple policies are triggered on a single claim, and liability apportioned among multiple insurers, that apportionment has no bearing upon the insurers’ obligation to the policyholder. Id. The insurers’ obligation to the policyholder is to cover the full extent of the policyholder’s liability, up to the policy limits. Id. And, likewise, while an insured’s right of recovery is restricted to the actual amount of its loss, this does not bar it from demanding full coverage from each insurer, as long as its demand is made in good faith. Fireman’s Fund Insurance Company v. Maryland Casualty Company, 65 Cal.App.4th 1279, 77 Cal.Rptr.2d 296, 305 n. 5 (1998) citing 16 Couch on Insurance 2d Contribution and Apportionment § 62:1.

And so, here, even though Heartland’s losses are to be prorated between Utica and Banclnsure, Utica remained contractually obligated to Heartland under its policy to cover the full extent of Heartland’s covered losses, up to the policy limit. Uti-ca sought to introduce evidence regarding Banclnsure’s concurrent coverage, in an effort to limit damages and reduce the amount Heartland could recover from Uti-ca. In this case, however, such evidence of Banclnsure’s concurrent coverage was irrelevant and properly excluded.

To the extent Utica has paid more than its pro-rata share, it may yet have a remedy. Utica may have a right to assert a cause of action against Bancln-sure for equitable contribution. Equitable contribution is the right to recover from a co-obligor who shares liability with the party seeking contribution. Fireman’s Fund, 77 Cal.Rptr.2d at 303. The right to contribution arises when several insurers are obligated to indemnify the same loss, and one insurer has paid more than its share of the loss. Id. Where multiple insurance carriers insure the same insured and cover the same risk, each insurer has independent standing to assert a cause of action against its coinsurers for equitable contribution when it has undertaken the indemnification of the common insured. Id. The right of contribution permits reimbursement to the insurer that paid on the loss for the excess it paid over its proportionate share of the obligation. Fireman’s Fund, 77 Cal.Rptr.2d at 303; 15 Couch on Ins.3d, supra § 217.4; see also, Federal, 162 S.W.3d at 164. In order to have a right of contribution on the ground of concurrent insurance, the insurance provided by each must cover the same insured, the same interest, and the same risk. Hartford Acc. & Indem.Co v. Western Cas. & Sur. Co., 712 S.W.2d 722, 724 (Mo.App. E.D.1986). Here, the insurance provided by Utica and Banclnsure both covered the same insured, Heartland. Both policies identified and covered the same risk, and afforded Heartland concurrent coverage. Accordingly, Utica may yet have a cause of action against Banclnsure for equitable contribution to recover any amounts Utica paid on Heartland’s losses in excess of its proportionate share of the obligation.

The judgment is affirmed.

MARY K. HOFF and BOOKER T. SHAW, JJ., concur.

      . Heartland is essentially the middleman between these individual retail merchants and various credit-card companies. When a customer makes a purchase with a credit card, the merchant uses Heartland to obtain verification for the purchase from the credit-card company. The customer's credit-card information is sent to Heartland’s computer center, and then relayed to the credit-card company to obtain authorization for the purchase. Once the purchase is authorized or declined, that information is then sent back from the credit-card company to Heartland, and from Heartland back to the merchant. After a purchase is approved, Heartland deposits funds in the merchant’s account and then ultimately collects payment from the credit-card company.

      . As part of processing credit-card transactions, Heartland processes chargebacks on behalf of the bank or financial institution issuing the credit cards. If a customer protests a credit charge on their statement, and the merchant declines to refund their money, the customer can lodge a complaint with the bank that issued the credit card and ask the bank for credit. When this occurs, the issuing bank generates a chargeback, crediting the customer’s account. The amount is then deducted from the sums the credit-card company pays to Heartland. It is then up to Heartland to receive reimbursement from the merchant. To do so, Heartland may either deduct the amount from the merchant's next deposit or it may debit the merchant’s bank account. If there are insufficient funds to cover the chargeback, an account receivable is created. An account receivable becomes an uncollectible chargeback when Heartland determines it cannot recover that sum from the merchant.

      . Utica’s policy defined a loss, in part, as follows: a "monetary loss sustained by the insured as a direct result of an 'uncollectible chargeback’ occurring on or after the 'retroactive date,' if any....”

      . Utica's policy defined a "Covered act," as the following acts committed by a "merchant":
      (1) Failing to reimburse a cardholder following nondelivery of a product to such cardholder;
      (2) Processing mail order transactions not authorized by the Insured;
      (3) Processing telephone order transactions not authorized by the Insured;
      (4) "Factoring” of "bank card” transactions;
      (5) Misappropriating cardholder funds on deposit with the "merchant”;
      (6) Making material misrepresentations in a merchant application to the Insured;
      (7) Processing "bank card” transactions not authorized by a cardholder;
      (8) Using deceptive or misleading methods to solicit funds form a cardholder; or
      (9) Use of counterfeit, lost or stolen credit numbers by "merchants.”

      . These are set out in Banclnsure’s policy:
      A.MERCHANT FRAUD
      Loss resulting directly from the Insured's Uncollectible chargeback, or series of Un-collectible chargebacks, to a Merchant to the extent that the chargeback, or series of chargebacks, is the result of fraud perpetrated on the Merchant by the Merchant's customer involving the use of Plastic Cards, but only when the chargeback is uncollectible because the Merchant is a debtor in Bankruptcy.
      B. MERCHANT'S CUSTOMER FRAUD
      Loss resulting directly form the Insured's Uncollectible chargeback, or series of Un-collectible chargebacks, to a Merchant to the extent the chargeback, or series of chargebacks is the result of fraud perpetrated on the Merchant by the Merchant’s customer involving the use of Plastic Cards, but only when the chargeback is Uncollectible because the merchant is a debtor in Bankruptcy.
      C. ELECTRONIC TERMINAL FRAUD
      Loss resulting directly form the fraudulent use of a Plastic Card at an Electronic Terminal.
      D. TELEPHONE SALES AND MAIL ORDER MERCHANT FRAUD
      Loss resulting directly from an Uncollectible chargeback, or series of Uncollectible chargebacks, to a Merchant to the extent the chargeback, or series of chargebacks, is the result of fraud committed by the telephone sales and/or mail order Merchant(s) involving the use of a Plastic Card.
      E. TELEPHONE SALES AND MAIL ORDER MERCHANT’S CUSTOMER FRAUD
      Loss resulting directly from the insured's Uncollectible chargeback, or series of Un-collectible chargebacks, to a Merchant to the extent the chargeback, or series of chargebacks, is the result of fraud perpetrated on the telephone sales and/or mail order Merchant by the telephone sales and/or mail order Merchant's customer involving the use of Plastic Cards, but only when the chargeback is Uncollectible because the telephone sales and/or mail order Merchant is a debtor in Bankruptcy.

      . Heartland asserted that Golf Concepts had engaged in the following covered acts under Utica’s policy: (a) failing to reimburse cardholders following nondelivery of products to such cardholders; (b) misappropriating cardholder funds or deposits with the merchant; (c) making material misrepresentations in a merchant application to the insured; (d) processing bank-card transactions not authorized by cardholders; and (e) using deceptive or misleading methods to solicit funds from a cardholder.

      . According to testimony at trial, the total chargebacks eventually totaled $1.8 million dollars.

      . The trial court denied all motions for summary judgment.

      . Banelnsure dismissed its cross-claim against Utica. We reject Heartland's argument that Utica had abandoned its cross-claim against Banelnsure. Utica dismissed its cross-claim against Banelnsure after the notice of appeal was filed, thereby disposing of all counts and claims and vesting this Court with jurisdiction.

      .The trial court entertained Utica’s offer of proof with respect to the court’s ruling on Heartland’s motion in limine at the close of all evidence. Utica offered both the Bancln-sure policy and the proof of loss submitted by Heartland to Banclnsure. The trial court received Utica’s offer of evidence, but again sustained Heartland’s motion.

      . “Other insurance’’ clauses are provisions inserted in insurance policies to vary or limit an insurer’s liability when additional, concurrent insurance exists to cover the same loss. Planet Insurance Company v. Ertz, 920 S.W.2d 591, 593 (Mo.App. W.D.1996). Three basic types of "other insurance” clauses are utilized: pro-rata clauses that limit the insurer’s liability to a proportion of the total loss; excess clauses that make the policy excess or payable after other policies; and escape clauses that allow the insurer to escape all liability. Id.

      . In so holding, we note that this Court is primarily concerned with the correctness of the trial court's result. See Trimble v. Pracna, 167 S.W.3d 706, 716 (Mo. banc 2005), and thus, do not reach Utica's specific allegations of trial-court error.

      . Banclnsure is free to answer and defend such a suit with any argument that is not precluded by the holdings of this appeal.


author: KENNETH M. ROMINES, Judge.

text:
    Mary Jones EIME, Trustee, Respondent, v. Jerry BRADFORD, Appellant.
    No. ED 86083.
    Missouri Court of Appeals, Eastern District, Division Two.
    Jan. 24, 2006.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 2, 2006.

      Patricia H. Thomas, Lake St. Louis, MO, for appellant.
    Dennis G. Schafer, Montgomery City, MO, for respondent.
   KENNETH M. ROMINES, Judge.

Jerry Bradford (Bradford) appeals the Montgomery County Circuit Court’s (Court’s) Civil Judgment, which declared Mary Jones Eime (Eime) the owner of a .30 acre tract of land, and awarded Eime treble damages for vegetation Bradford removed from this land. We reverse.

Facts

Since 1967, Eime has owned a tract of land in Montgomery County, which measures approximately 86 acres. In 2003, Bradford purchased approximately 30 acres directly east of the Eime property. Thus, the Bradford and Eime properties share an east-west border. In 1941, the Kassmans, who owned Bradford’s property from 1940 to 1992, built a fence that ran from north to south, between their property and the Eime property. When Bradford purchased his property, he walked the property line and discovered survey stakes located as much as 17 feet west of the fence. Bradford had a survey done in June 2004, which confirmed the actual property line, and discovered that the fence was actually located west of the property line by as much as 21 feet. Thus, a strip of land measuring .30 acres (“disputed property”), located directly west of the fence, was within the boundaries of Bradford’s property.

In October 2003, Bradford told Eime that he believed he was the owner of the disputed property, and planned on removing the fence, as well as the trees on the disputed property. Eime responded that the fence is the proper property line and that she owned the disputed property, and asked him not to remove the fence and trees. Approximately one or two weeks later, Bradford again told Eime that he planned to bulldoze the fence and trees; Eime again objected.

In February 2004, Bradford received a letter that indicated that Eime was claiming title to the disputed property by adverse possession, and would file suit against him if he destroyed the fence or otherwise damaged her property. On 31 July 2004, Bradford used a bulldozer to remove part of the fence, as well as some vegetation on the disputed property. That evening, Bradford received a telephone message from Eime, asking him to stop bulldozing the property. On 18 August 2004, Bradford continued clearing the disputed property.

Procedural History

On 20 August 2004, Eime filed a petition, which requested that the Court declare her the owner of the disputed property by adverse possession, and enjoin Bradford from interfering with her ownership. Eime also requested damages for Bradford’s clearing of the disputed property, and asked the Court to enjoin Bradford from further trespassing. On 17 December 2004, Bradford filed his First Amended Answer and Counterclaim, which requested that the Court dismiss Eime’s Petition, declare him the owner of the disputed property, and award him damages for trespass. The case was tried before the Court, Judge Wesley C. Dalton, presiding, on 15 February, 2005.

At trial, Bradford testified that, based on the survey information, he believes he owns the disputed property.

Eime testified that her husband helped Mr. Kassman maintain the fence before the Kassmans moved away in 1992; no one has worked on the fence since 1992. Eime admitted that she never logged the woods or cut the timber on the disputed property; never asserted ownership over the property by patrolling it or posting a “No Trespassing” sign; and never ran cattle or planted in the disputed property. Eime also testified that she never discussed ownership of the disputed property with the Kassmans; because Eime and the Kass-mans shared the property, there was no need for such a discussion.

Eime also testified as to her alleged use of the disputed property. Eime testified that she farmed a bean field that bordered, but did not actually include, the disputed property. Eime also testified that the property is beautiful, and “screened us from the other road,” and that she “enjoyed the wildlife on our farm very much.” Finally, although Eime testified that the trees in the disputed property provided shade and ornament, there is not a house near the disputed property to be shaded.

Charlene Kassman (Charlene) testified that it was her understanding that, from 1967 on, Eime and her husband claimed ownership of the disputed property. When asked what Eime did to make her claim of ownership to this property, Charlene responded that she did not know and did not remember.

On 1 March 2005, the Court issued a Civil Judgment in favor of Eime. The Court found that, in October 2005, Bradford became aware of Eime’s adverse possession claim — or at least her belief that she owns the disputed property; Bradford began clearing the disputed property in summer 2004, against Eime’s wishes; the vegetation on the disputed property had great aesthetic value to Eime; and no substantial evidence was presented regarding any trespass by Eime on Bradford’s property. The Court noted that it would cost $3,452 to replace, and between $600 and $800 to install, new vegetation.

The Court concluded that Eime presented sufficient evidence to show, by a preponderance of the evidence, actual, hostile, open and notorious, exclusive, and continuous possession of the disputed property for ten years, and thus acquired the disputed property by adverse possession. The Court ordered Bradford to pay Eime $10,356 in treble damages for the $3,452 vegetation loss; $700 to install new vegetation; and $909 to install a new barb wire fence, plus costs. Bradford appeals.

Point One: Adverse Possession

Bradford first argues that the Court erred when it found that Eime acquired the disputed property by adverse possession. In particular, Bradford alleges that Eime failed to present evidence of visible acts of exclusive ownership — her only “use,” admiring the property’s aesthetic properties, is not enough to establish title by adverse possession.

We will affirm the Court’s judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

There is a presumption that the record owner of wild and vacant land is the actual owner. Luttrell v. Stokes, 77 S.W.3d 745, 749 (Mo.App. S.D.2002). Thus, the party claiming adverse possession has the burden of establishing ownership. Id. Every element of an adverse possession claim must be proven by a preponderance of the evidence. Dobbs v. Knoll, 92 S.W.3d 176, 180-81 (Mo.App. E.D.2002). The party must show that possession was 1) actual, 2) hostile and under a claim of right, 3) open and notorious, 4) exclusive, and 5) continuous for ten years. Id. Because property is unique, each adverse possession case must be decided in light of its own circumstances. Harris v. Lynch, 940 S.W.2d 42, 45 (Mo.App. E.D.1997). We must consider the location, character, and reasonable use of the land. Id.

Bradford first challenges the Court’s finding that Eime had actual possession of the disputed property. Actual possession is the present ability to control the land and the intent to exclude others from such control. Dobbs, 92 S.W.3d at 181. A mere “mental enclosure” of land is not enough for actual possession. Harris, 940 S.W.2d at 45. There must be continued acts of occupying, clearing, cultivating, pasturing, building fences or other improvements, and paying taxes. Id. (no adverse possession of strip of land between fence and boundary line, when owners merely let cattle have access to the land, extended part of fence, and maintained fence); Edmonds v. Thurman, 808 S.W.2d 408, 411 (Mo.App. S.D.1991) (maintenance of old fence built by predecessor in title not enough to establish adverse possession).

It is true that the actual possession element of adverse possession is less strict for wild, undeveloped land than it is for developed land, because the nature, location, and potential uses for the property may restrict the type of affirmative acts of ownership. Luttrell v. Stokes, 77 S.W.3d 745, 749 (Mo.App. S.D.2002); Whiteside v. Rottger, 913 S.W.2d 114, 120 (Mo.App. E.D.1995). However, even cases that find actual possession of wild and undeveloped land involve much more significant acts of possession than those alleged by Eime. See Whiteside (adverse possession of undeveloped land established when owners built fence and well on land; fished and hunted on land; and removed timber from land). See also Edmonds at 411 (occasional trespasses such as intermittent use of land for pasture or gathering firewood do not establish adverse possession).

Eime’s alleged uses of the disputed property — farming an adjacent bean field, and enjoying the property’s shade and aesthetic properties — do not amount to actual possession. Eime has failed to establish this element of her adverse possession claim by a preponderance of the evidence.

Bradford next challenges the Court’s finding that Eime’s alleged possession of the disputed property was open and notorious. Open and notorious possession is shown if the claimant’s occupancy was “conspicuous, widely recognized, and commonly known,” and is shown by visible acts of ownership. Dobbs v. Knoll, 92 S.W.3d 176, 180-81 (Mo.App. E.D.2002). It is true that the wild and undeveloped nature of property may increase what is required to prove that possession is open and notorious: “[t]he fact that the land in question is wild, undeveloped and covered in woods and hills in no way lessens what is required to satisfy the element of possession being ‘open and notorious’ and, indeed, may very well increase it.” Flowers v. Roberts, 979 S.W.2d 465, 471 (Mo.App. E.D.1998) (holding that “minimal and sporadic” efforts to maintain a dirt road, plus driving on road a few times each year, was not enough to show that possession of wild and undeveloped land was open and notorious).

Eime testified that she never patrolled the disputed property or posted a “No Trespassing” sign, or otherwise asserted ownership of the disputed property. Eime’s alleged visible acts of ownership are far from “conspicuous, widely recognized, and commonly known.” Eime has failed to show that her alleged possession of the disputed property was open and notorious.

As mentioned above, a claimant must prove every element of his or her adverse possession claim by a preponderance of the evidence. Eime has failed to show that her alleged possession of the disputed property was actual or open and notorious. This is more than enough to defeat her adverse possession claim. There is no need to address the remaining elements.

Point one is granted.

Point Two: Treble Damages

Bradford’s second point on appeal challenges the Court’s decision to award Eime treble damages for trespass, pursuant to Section 537.340, rather than single damages, pursuant to Section 537.360. Because we find that Bradford is the true owner of the disputed property, no trespass occurred; thus, Sections 537.340 and 537.360 do not apply, and we do not need to consider Bradford’s related arguments. The Court’s award of treble damages is reversed.

The judgment is reversed. The Court is ordered to enter judgment for Bradford on Eime’s claim for adverse possession.

GARY M. GAERTNER, SR., P.J. and GEORGE W. DRAPER, concur.

      . All statutory references are to RSMo. (2000).

      . We note that the court below denied Bradford’s claim for damages for trespass to his property by Eime. However, because Bradford did not appeal the Court's ruling on this issue, we have no authority to review this issue.


text:
    STATE of Missouri, Respondent, v. Farlin GILLIEHAN, Appellant.
    No. ED 85634.
    Missouri Court of Appeals, Eastern District, Division Two.
    Jan. 24, 2006.
    Rehearing Denied March 2, 2006.
    N. Scott Rosenblum, Mark W. Lyons, Rosenblum, Schwartz, Rogers & Glass, P.C., Clayton, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Daniel N. McPherson, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before GARY M. GAERTNER, SR., P.J., GEORGE W. DRAPER III, J., and KENNETH M. ROMINES, J.
   ORDER

PER CURIAM.

Appellant, Farlin Gilliehan (“Defendant”), appeals from the judgment of the Circuit Court of St. Louis County convicting him, after a jury trial, of burglary in the second degree (Count I), section 569.170 RSMo 2000, stealing of $500 or more (Count II), section 570.030, RSMo (Supp.2002), stealing of firearms (Count IV), section 570.030, and possession of drug paraphernalia with intent to use (Count V), section 195.233. Defendant was sentenced as a persistent offender to one year of imprisonment for Count V and fifteen years of imprisonment for each of the other three counts of which he was convicted. All sentences were ordered to run concurrently with each other. We affirm.

We have reviewed the briefs of the parties and the record on appeal. As an extended opinion would serve no jurisprudential purpose, we affirm the judgment of the trial court pursuant to Rule 30.25(b). We have, however, provided a memorandum opinion for the use of the parties only setting forth the reasons for our decision.

      . All statutory references are to RSMo 2000, unless otherwise indicated.


text:
    Abeir GHATTAS, Respondent, v. Kambiz AMINI, Appellant.
    No. WD 65417.
    Missouri Court of Appeals, Western District.
    Feb. 21, 2006.
    Rehearing Denied March 28, 2006.
    Howard D. Lay and Molly Brown Barta-los, Kansas City, for appellant.
    Abeir Ghattas, Kansas City, pro se.
    Before JOSEPH M. ELLIS, Presiding Judge, HAROLD L. LOWENSTEIN, Judge, and PAUL M. SPINDEN, Judge.
   ORDER

Kambiz Amini appeals the circuit court’s judgment entering an order of protection against him. We affirm. Rule 84.16(b).