author: MINTON, Judge.

text:
    Carlos Amaya GOMEZ, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2003-CA-000947-MR.
    Court of Appeals of Kentucky.
    Aug. 13, 2004.
    Case Ordered Published by Court of Appeals Oct. 1, 2004.

      John Rampulla, Fayette County Legal Aid, Inc., Lexington, KY, for appellant.
    Albert B. Chandler III, Attorney General of Kentucky, Michael L. Harned, Assistant Attorney General, Frankfort, KY, for appellee.
    Before JOHNSON, MINTON, and TACKETT, Judges.
   OPINION

MINTON, Judge.

Carlos Amaya Gomez appeals his conviction in the Fayette Circuit Court for first-degree wanton endangerment under a conditional guilty plea for which he received a one-year sentence. Gomez’s conditional plea reserved the right to appeal

the circuit court’s denial of his motion to suppress the incriminating statements because his limited comprehension of English prevented his making an intelligent waiver of his Miranda rights and because the police failed to notify him of his rights to consult with Mexican consular officials under the Vienna Convention on Consular Relations. The circuit court found that Miranda warnings do not apply to the pre-arrest questioning of Gomez; that, even so, Gomez had a sufficient grasp of English to understand the Miranda warnings; and that the failure to inform Gomez of potential consular rights does not result in suppression of evidence. We agree with the circuit court and affirm.

Gomez was originally indicted on two counts of first-degree wanton endangerment arising out of a shooting incident in Lexington on May 16, 2002, in which the occupants of a vehicle reported that the passenger of a white, four-door Plymouth Neon had fired a gun through the windshield of their vehicle. Gomez filed pretrial motions to suppress incriminating statements that he had made to the investigating officers. The circuit court conducted an evidentiary hearing at which Lexington-Metro Detectives Robert Sar-rantonio and Albert Johnson testified about the events that led to Gomez’s being arrested and charged. Gomez testified, too, but he related a very different version of the facts.

Sarrantonio and Johnson testified to the following. On the day of the shooting, Sarrantonio learned from the owner of the Neon that he had allowed Gomez and his brother, Eric, to use it the prior evening. The car owner led the detectives to Gomez’s apartment. Sarrantonio, Johnson, and a uniformed officer knocked at Gomez’s door and announced themselves. They were invited in. Gomez; his brother, Eric; Javier Tobar; and another male were present. Since a weapon had been involved, the officers immediately conducted a safety sweep of the apartment and ascertained that there were no other occupants.

All of the occupants of the apartment were Hispanic. Sarrantonio asked Gomez if he understood English. Gomez responded that he understood English well but that he had difficulty speaking English. Sarrantonio then Mirandized Gomez and Eric. Sarrantonio then asked Gomez if he understood. Gomez answered that he understood and nodded affirmatively.

Sarrantonio then explained to Gomez and the others why they had come. He informed Gomez and Eric that they had been identified as the likely suspects in the shooting incident and asked where the gun was. Gomez adamantly denied his involvement in the shooting, denied having a gun, and refused Sarrantonio’s request for permission to search the apartment for the gun. Gomez told Sarrantonio that he would need a search warrant to look for the gun.

Johnson testified that while Detective Sarrantonio was talking, Gomez made a side comment in Spanish to Tobar, who was also fluent in English. Johnson, who understands Spanish, heard Gomez tell To-bar “I only shot once.” Johnson confirmed his understanding by asking Tobar to repeat in English what Gomez had said. Tobar responded that Gomez had said he only shot once but that the other persons had shot three times. Johnson advised Sarrantonio what Gomez had said. Sar-rantonio then asked Gomez directly: “Did you shoot at them once?” Gomez responded that he did. Sarrantonio then asked Gomez to describe the events of the shooting. Gomez then informed the detectives that Eric had been the driver and he the passenger. He admitted that he shot the vehicle because the occupants had first shot at him three times.

The detectives testified that following these admissions, they arrested Gomez on two counts of wanton endangerment. As Gomez was being placed in the cruiser, Johnson testified that Gomez apologized, in English, for having lied about the shooting when first questioned. After he was placed in the cruiser, Gomez answered other questions in English, giving his name, address, birth date, marital status, and phone number to Sarrantonio. Both detectives reiterated in questioning by counsel and the trial court that all of the conversations they had with Gomez, and he with them, were in English.

Gomez testified in Spanish through a translator at the suppression hearing. He told the circuit court that he only understood a few English words when the detectives questioned him before his arrest. He emphatically denied speaking English at any time to the detectives. He testified that he did not understand that he had the right to remain silent.

Following the hearing, the circuit court made the following findings of fact and conclusions of law:

At the suppression hearing, [Gomez] gave every impression of being unable to speak any English. In fact, it cannot be doubted that his English is far from fluent. But a large question exists as to whether the officers are uniformly lying about his English-speaking level or whether [Gomez] is. The Court finds the officers’ testimony credible even though it is probably impossible to establish the full extent of [Gomez’s] knowledge of English without his cooperation.
It is notable that neither the Commonwealth nor defense offered testimony on this issue from others at the scene. Certainly, once the Commonwealth established its version of facts on the suppression issue, it behooves [Gomez] to refute them if they weigh adequately against him as they do here.
[Gomez] knew he was in the presence of officers. Believing himself shielded by the language barrier, he spoke freely to his friends. In so doing, he made a public statement subject to interpretation by anyone who heard it. No Miranda rights attach to this behavior. This response was not made due to interrogation techniques, but voluntarily to another person. If the police happened to overhear and understand it, that is [Gomez’s] misfortune.
This Court is not unaware of the grave problems relating to language issues in criminal defense cases. If [Gomez] truly understands no English, and the officers are all lying, this entire case would be a terrible result. But there is no credibility in that scenario. It is [Gomez] who has the greater reason to feign incomprehension.
Nonetheless, in this case, [Gomez] knew he was in the presence of several officers, and that if he admitted wrongdoing, this would be used against him. Common sense would indicate this, Miranda notwithstanding. Yet experience has shown this court that it is frequently irresistible to a Defendant to try to explain what happened in a light most favorable to him or her. The Court believes this is what happened here.
Consequently, [Gomez’s] Motion to Suppress is DENIED. The Court has previously ruled orally that the failure to advise [Gomez] of his consular rights is not fatal to this action since the most a consular official could do is visit or talk with [Gomez], and arrange for legal representation. [Gomez] has excellent legal representation, and the Court finds that all valid legal rights are being protected. [Gomez] is now aware of his consular rights and could pursue them at any time. The issues complained of here occurred prior to arrest and detention, and no rights provided by the Vienna Convention apply to pre-arrest statements specifically.

It is well settled that the standard of appellate review of a trial court’s decision on a motion to suppress

[Requires that we first determine whether the trial court’s findings of fact are supported by substantial evidence. If they are, then they are conclusive. Based on those findings of fact, we must then conduct a de novo review of the trial court’s application of the law to those facts to determine whether its decision is correct as a matter of law.

In the instant case, the trial court had substantial evidence before it and its findings are, therefore, conclusive that the facts are as the detectives described them to be. The trial court correctly concluded from these facts that a Miranda warning was not actually required because Gomez’s statements were not the result of a custodial interrogation. A defendant is in custody under Miranda when there is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest. We agree with the trial court that Miranda rights are not implicated under these facts because the incriminating comment Gomez made to Tobar in Spanish, though audible and understood by Johnson, was voluntarily made to a third party. Furthermore, we believe that the trial court correctly concluded that even if Miranda warnings, as given, were required, Gomez was able to understand his rights and he made a knowing waiver of them.

It is undisputed that Gomez was not advised about consultation with the Mexican consulate before being questioned. The record does not disclose when, if ever, the investigating officers were aware that Gomez was a citizen of Mexico. Indeed, the record of the suppression hearing discloses no evidence of Gomez’s status, other than his own testimony that he was born in Mexico and that he has lived in the United States since 1999 or 2000. Nevertheless, citing Article 36 of the Vienna Convention, Gomez argues that any statement he made to the Lexington police should be suppressed because the police failed to notify him of his right to consular notification at the time of arrest. Gomez’s incriminating statements, of course, occurred prior to arrest.

In general, when confronted in recent years with numerous claims based upon the Vienna Convention without the benefit of a definitive statement from the U.S. Supreme Court, federal courts have typically concluded remedies such as suppression of evidence or dismissal of an indictment are not available, even if the treaty creates individual rights. The U.S. Court of Appeals for the Sixth Circuit in U.S. v. Emuegbunam has gone further to hold that the Vienna Convention does not establish any judicially enforceable individual right of consultation between a detained foreign national and the consular representatives of his or her nation. We are similarly persuaded by the analysis and adopt the holding of the Court of Appeals of Wisconsin in State v. Navarro.

While we acknowledge this split in opinion, in light of the well-established principles of international law that guide judicial construction of a treaty, we are convinced that the Vienna Convention does not confer standing on an individual foreign national to assert a violation of the treaty in a domestic criminal case.

Accordingly, the circuit court properly denied suppression on this issue.

For the foregoing reasons, the judgment of the Fayette Circuit Court is affirmed.

ALL CONCUR.

      . Kentucky Revised Statutes (KRS) 508.060.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . Gomez contends that the right of consular officials from the nation of the arrested individual to communicate with their detained citizen is declared by Article 36 of the Vienna Convention on Consular Relations, April 24, 1963, 21 U.S.T. 77, T.I.A.S. No. 6820. The Vienna Convention is a seventy-nine article multilateral treaty signed by more than 100 nations, including the U.S. and Mexico. See State v. Martinez-Rodriguez, 131 N.M. 47, 33 P.3d 267, 271 (2001), cert den. Martinez-Rodriguez v. New Mexico, 535 U.S. 937, 122 S.Ct. 1317, 152 L.Ed.2d 225 (2002).

      . Commonwealth v. Neal, Ky.App., 84 S.W.3d 920, 923 (2002).

      . Little v. Commonwealth, Ky.App., 991 S.W.2d 141 (1999).

      . California v. Beheler, 463 U.S. 1121, 1124, 103 S.Ct. 3517, 3519, 77 L.Ed.2d 1275 (1983).

      . 268 F.3d 377, 391 (6th Cir.2001). See also United States v. Jimenez-Nava, 243 F.3d 192, 198 (5th Cir.2001), and Martinez-Rodriguez, supra n. 3 at 274.

      .260 Wis.2d 861, 659 N.W.2d 487, 491 (2003).


source: Caselaw Access Project

license: Public Domain

text:
    WAL-MART, Appellant, v. Sheila SOUTHERS; Honorable Donna Terry, Administrative Law Judge; and Workers’ Compensation Board, Appellees.
    No. 2004-CA-000104-WC.
    Court of Appeals of Kentucky.
    Oct. 22, 2004.

      Walter A. Ward, Lexington, KY, for appellant.
    Jackson W. Watts, Bradly Slutskin, Versailles, KY, for appellee.
    Before MINTON, SCHRODER, and TAYLOR, Judges.
   OPINION

MINTON, Judge.

When calculating an employee’s average weekly wage for potential benefits under Kentucky’s Workers’ Compensation law, an employee who is concurrently employed by more than one employer may combine the wages earned from all employers “as if earned from the employer hable for compensation.” Sheila Southers was injured on the job while working for Wal-Mart. She also worked for H & R Block fulltime during income tax season and intermittently throughout the balance of the year. The issue we are asked to review is whether the Workers’ Compensation Board correctly determined that Southers was concurrently employed by Wal-Mart and H & R Block when her injury occurred. Because there was a contract for hire between Southers and H & R Block during the period she worked for Wal-Mart, we hold that Southers was concurrently employed.

Southers began working for Wal-Mart as a cashier in 1996. During her employment with Wal-Mart and for several years prior, Southers also worked for H & R Block as a tax consultant. Although Southers primarily worked at H & R Block during their busy tax season — approximately mid-January through mid-April— she was “on-call” for the company throughout the rest of the year. According to H & R Block’s manager, Gary Campbell, Southers:

was on call from May thru [sic] December to do tax returns and handle any problems. It was not uncommon for her to return calls to clients. I did not maintain a record of her trips to the office during that period.. She did not submit any payroll for that time period[.] She has been employed by me since 1990.

Southers’s work-related injury occurred on August 21, 1998, while lifting a bag of potting soil at Wal-Mart. She received medical attention for her injuries and was deemed to have sustained a 6 percent permanent injury. Wal-Mart denied her claim for benefits and Southers appealed.

An Administrative Law Judge (ALJ) reviewed Southers’s claim and found her concurrently employed by Wal-Mart and H & R Block; therefore, Southers’s average weekly wage was calculated to include her wages from both employers. The Workers’ Compensation Board (Board) reversed and remanded the ALJ’s decision with regards to the issue of Southers’s concurrent employment. The Board held the ALJ “was restricted in her decision making [sic] based upon the evidence presented to her.” Therefore, the ALJ was instructed to reopen the evidence for the purpose of obtaining more wage information from Wal-Mart and H & R Block.

On remand, the ALJ reviewed the submitted wage information and, again, found Southers was concurrently employed. In reaching that decision, the ALJ relied on the average weekly wage forms filed by Southers, as well as the letter from Campbell highlighting the extent of Southers’s employment with H & R Block.

Wal-Mart filed a Petition for Reconsideration, which was overruled. On appeal, the Board affirmed the ALJ’s decision. We affirm.

Wal-Mart argues Southers was not concurrently employed because she did not have a contract for hire with H & R Block. In support of this argument, Wal-Mart makes two claims: first, Southers did not prove remuneration by H & R Block; and, second, Southers did not prove mutuality of obligation.

It is well settled that “the ALJ, as fact-finder, has the sole authority to judge the weight, credibility and inferences to be drawn from the record.” The decision of the ALJ may be appealed to the Board; but “no new evidence may be introduced before the Board, and the Board may not substitute its judgment for that of the ALJ concerning the weight of evidence on questions of fact.” The role of this Court in reviewing decisions of the Board “is to correct the Board only when we perceive that the Board has overlooked or misconstrued controlling law or committed an error in assessing the evidence so flagrant as to cause gross injustice.”

If a decision is made in favor of the claimant, the question on appeal “is whether the decision ... is supported by substantial evidence.” The term “substantial evidence” has been defined as “evidence of substance and relevant consequence having the fitness to induce conviction in the minds of reasonable men.”

In order for compensation to be payable under a claim for workers’ compensation benefits, “there must be a contract of hire between the employer and the employee.” The contract does not have to be written; however, “all of the elementary ingredients of a contract must be present.” In a workers’ compensation claim, “the threshold requirement ... is that the claimant must be an employee for hire. The essence of compensation protection is the restoration of a part of wages which are assumed to have existed.”

Defining the exact status of Southers’s employment with H & R Block presents us with -a unique situation. Southers’s employment was clearly not “seasonal work.” That term has been defined to include “occupations which are exclusively seasonal and therefore cannot be carried on throughout the year.” Unlike the other examples our courts have held to constitute seasonal work, Southers was not employed by H & R Block with the understanding she would be laid-off during part of the year, nor was H & R Block only operational during a particular season. Although Southers worked significantly more during tax season than the rest of the year, that fact alone is insufficient to define her employment as “seasonal.”

Likewise, Southers was not an unpaid or volunteer employee for H & R Block. She received an hourly wage, along with commission and payment for tax returns she completed.

It is clear, however, that Southers’s employment with H & R Block was, for lack of a better word, intermittent. Although she remained on-call throughout the year, the majority of her work was done from January through April. The wage information submitted by Southers indicated she received her last paycheck from H & R Block on May 20, 1998, some three months prior to her injury at Wal-Mart. However, Southers testified she continued to receive direct payments from H & R Block for the tax returns she completed.

Wal-Mart claims the irregularity of Southers’s employment with H & R Block and the fact she did not receive a regular paycheck is conclusive proof she was not under a contract for hire. Wal-Mart points to the evidence indicating Southers was not receiving remuneration from H & R Block on the date of her injury as proof she was not concurrently employed. Likewise, Wal-Mart claims the intermittency of her employment frustrated the mutuality of obligation requirement needed to establish a valid contract. We disagree.

We note at the outset there is nothing in the relevant statute that requires proof of remuneration to establish concurrent employment. Moreover, Wal-Mart has not provided any support for its contention that intermittent employment necessarily negates the existence of mutuality of obligation. The statute in question only lists two elements necessary to establish concurrent employment: proof the claimant was working under contracts with more than one employer at the time of injury, and proof the defendant employer had knowledge of the employment.

Wal-Mart conceded it had knowledge of Southers’s employment with H & R Block. Therefore, that element of the statute has been satisfied. With regards to the second element, the ALJ conclusively found Southers was working under contract for both Wal-Mart and H & R Block at the time of her injury. This finding is supported in the record by substantial evidence. Southers testified she had worked for H & R Block since 1985, first as a secretary and later as a tax consultant. She further testified that although she typically started her employment with H & R Block around mid-January and worked through the end of April, she remained available to do tax returns. Southers testified she received payment directly from H & R Block throughout the year in the form of hourly wages and commission.

Furthermore, the letter from Campbell confirmed the fact that Southers worked under a contract for hire with H & R Block. Campbell acknowledged that Southers was still on-call from May through December and that she had been consistently employed by H & R Block since 1990.

Based on the testimony of Southers and Campbell, we believe the ALJ had substantial evidence to conclude Southers was working under concurrent contracts for both H & R Block and Wal-Mart. Concerning Wal-Mart’s claims regarding the lack of remuneration and mutuality of obligation, there is sufficient proof H & R Block compensated Southers for her efforts throughout the year. Although she may not have received regular paychecks, Southers continued to receive compensation from H & R Block as she completed tax returns. There is also substantial evidence to support a finding of mutuality of obligation. Southers was obligated to work for H & R Block regularly during the tax season and on an “on-call” basis throughout the rest of the year. In exchange, H & R Block was obligated to compensate her.

We acknowledge that the situation under which Southers was employed by H & R Block is unique and lends itself to different interpretations. However, “[w]hen one of two reasonable inferences may be drawn from the evidence, the finders of fact may choose.” Here, the ALJ chose to believe the evidence presented by Southers. We cannot say whether our finding would have mirrored that of the ALJ; however, since there is substantial evidence to support the ALJ’s finding, we must affirm the Board’s decision.

For the foregoing reasons, the December 17, 2008, decision of the Workers’ Compensation Board is affirmed.

ALL CONCUR.

      . Kentucky Revised Statutes (KRS) 342.140(5).

      . Opinion of the Workers' Compensation Board, July 31, 2002, at page 11.

      . Miller v. East Kentucky Beverage/Pepsico, Inc., Ky., 951 S.W.2d 329, 331 (1997).

      . Smith v. Dixie Fuel Co., Ky., 900 S.W.2d 609, 612 (1995).

      . Daniel v. Armco Steel Company, L.P., Ky.App., 913 S.W.2d 797, 798 (1995), quoting Western Baptist Hospital v. Kelly, Ky., 827 S.W.2d 685, 687-688 (1992).

      . Wolf Creek Collieries v. Crum, Ky.App., 673 S.W.2d 735 (1984).

      . Smyzer v. B.F. Goodrich Chemical Company, Ky., 474 S.W.2d 367, 369 (1971).

      . Rice v. Conley, Ky„ 414 S.W.2d 138, 140-41 (1967); see also, M.J. Daly Co. v. Varney, Ky., 695 S.W.2d 400; 402 (1985).

      . Id.

      . Kentucky Farm & Power Equipment Dealers Association, Inc. v. Fulkerson Brothers, Inc., Ky., 631 S.W.2d 633, 635 (1982).

      . KRS 342.140(2).

      . See, Desa Int’l, Inc. v. Barlow, Ky., 59 S.W.3d 872 (2001) (worker hired with understanding she would only be employed for 7-8 months and laid-off the remainder of the year was a seasonal worker for purposes of calculating average weekly wage).

      . See, Dept, of Parks v. Kinslow, Ky., 481 S.W.2d 686 (1972) (individual employed by state park only from April to October when park was operational a seasonal employer for workers’ compensation purposes).

      . See, Travelers Insurance Co. v. Duvall, Ky., 884 S.W.2d 665, 667 (1994) (employment with paving company year-round and not "seasonal," even though paving is dictated by the weather).

      . See, Kentucky Farm & Power Equipment Dealers Association, Inc. v. Fulkerson Bros. Inc., Ky., 631 S.W.2d 633 (1982) (unpaid officer of a non-profit trade association not an "employee” for purposes of workers’ compensation benefits).

      . Jackson v. General Refractories Co., Ky., 581 S.W.2d 10, 11 (1979).


text:
    Michael W. DAVIDSON, Appellant, v. COMMONWEALTH of Kentucky, DEPARTMENT OF MILITARY AFFAIRS, Appellee.
    No. 2003-CA-000615-MR.
    Court of Appeals of Kentucky.
    Oct. 22, 2004.

      Michael W. Davidson, Louisville, pro se.
    Donald L. Cox, Mary Janice Lintner, Louisville, for appellee.
    Before MINTON, SCHRODER, and TAYLOR, Judges.
   OPINION

MINTON, Judge.

Kentucky’s Whistleblower Act protects state employees from reprisal for reporting actual or suspected agency violations of the law. Michael W. Davidson, an employee in the state’s Department of Military Affairs, contended in the circuit court that the agency asked him to resign and initiated an investigation into allegations of misconduct and conflicts of interest to punish him for reporting violations of state law by the Kentucky Cabinet for Natural Resources and Environmental Protection (NREPC) in pending litigation he had against that agency. Specifically, Davidson alleged below that his disclosure that NREPC’s hearing procedures violate state law cost him his job. On appeal, he contends that the circuit court misunderstood his disclosure: he actually disclosed to the circuit court the retaliatory personnel action by Military Affairs against him. We hold that the circuit court did not misunderstand the claimed disclosure. We further hold that Davidson’s disclosure, even if true, is not protected by the whistleblower statute because it was already publicly known information.

FACTUAL BACKGROUND AND PROCEEDINGS IN CIRCUIT COURT

Davidson is an officer of the Wind River Energy Corporation. On multiple occasions since 1995, NREPC has cited Wind River and Davidson for violating Kentucky’s mining laws. In response, Wind River has filed a series of civil actions in Franklin Circuit Court asserting that the hearing procedures for Natural Resources constitute an abuse of authority and violate state law. In 1999, NREPC filed suit in Franklin Circuit Court to have its citations against Davidson and Wind River enforced. When the circuit court entered summary judgment in the instant case, some of the Wind River/NREPC suits were still pending.

In 1998, Davidson took leave from his state employment at Military Affairs for active military duty with the United States Army. On August 1, 2001, he resumed state employment with Military Affairs in the Office of the Adjutant General. One of Davidson’s job duties was to serve as a liaison with the Governor’s Office. On or about August 1, 2001, Davidson told Adjutant General John R. Groves that he wanted to speak to Andrew “Skipper” Martin, the Governor’s Chief of Staff, to see if Martin could “get Bickford off [Davidson’s] back.” James Bickford was then the Secretary of NREPC. Davidson does not deny making this statement but denies that he expressed any intent to use his position to obtain political influence from the Governor’s Office to intervene in his dispute with NREPC. On August 6,- 2001, Davidson was called to a meeting with Groves and Daniel F. Egbers, General Counsel of the Personnel Cabinet, and was asked to consider resigning because of his ongoing legal dispute with NREPC. Two days later, he was placed on paid leave pending an investigation of allegations of misconduct and conflicts of interest.

On September 26, 2001, Davidson moved to file an amended answer in the enforcement action filed by NREPC, adding a counterclaim alleging a violation of the whistleblower statute. Davidson alleged that Military Affairs had asked him to resign and had initiated an investigation into baseless allegations of misconduct and conflicts of interest to punish him for reporting actual or suspected violations of state law in his litigation against NREPC and to discourage him from such reporting. The circuit court denied Davidson’s motion to add this counterclaim.

Egbers wrote a confidential memorandum summarizing the findings of his investigation as follows: (1) Davidson “acted inappropriately” by stating his intent to have the Governor’s Chief of Staff intervene in his dispute with NREPC; (2) Davidson’s part-time employment with a company which is pre-approved and eligible for some Kentucky contracts creates the real potential for a conflict of interest; (3) Davidson was evasive in response to the questions posed during the course of the investigation; and (4) Davidson made “frivolous allegations” of an alleged whis-tleblower violation in the counterclaim against NREPC. Egbers concluded that these facts called into question whether Davidson possessed the judgment and integrity required by his position as liaison to the Governor’s Office. He recommended that Davidson be reassigned to a position within Military Affairs of equal grade and pay that required less judgment. Davidson rejects both the findings and conclusions of this investigation. On October 16, 2001, Adjutant General D. Allen Youngman informed Davidson that he would be reassigned to the Kentucky Commission on Military Affairs.

On October 24, 2001, Davidson sent a draft of the complaint in the instant action, which had not yet been filed, to the Office of the Governor and to Youngman. The allegations of whistleblower statute violations in the draft complaint were identical to those made in the earlier proposed counterclaim against NREPC with the exception that the defendant was changed from NREPC to Military Affairs. Egbers responded to the draft complaint with a letter to Davidson four days later stating that the complaint lacked merit and that the Commonwealth would defend itself vigorously, including seeking sanctions under CR 11 if Davidson filed the complaint. On November 5, 2001, Davidson filed the complaint in Franklin Circuit Court and resigned. Military Affairs filed a motion for summary judgment, and Davidson filed a motion for partial summary judgment on the issue of liability. The circuit court’s Opinion and Order granted summary judgment for Military Affairs and denied summary judgment to Davidson. This appeal followed.

OUR REVIEW OF THIS CASE IS DE NOVO

Summary judgment is appropriate when there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. The standard of review on appeal of a summary judgment is “whether the trial court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law.” The record must be viewed in the light most favorable to the party opposing the motion, and any doubts are to be resolved in his favor. Because factual findings are not at issue, we do not need to defer to the trial court. Also, we may affirm the trial court for any reason supported by the record.

In order to demonstrate a -violation of KRS 61.102, an employee must establish the following four elements: (1) the employer is an officer of the state; (2) the employee is employed by the state; (3) the employee made or attempted to make a good faith report or disclosure of a suspected violation of state or local law to an appropriate body or authority; and (4) the employer took action or threatened to take action to discourage the employee from making such a disclosure or to punish the employee for making such a disclosure. The employee must show by a preponderance of evidence that “the disclosure was a contributing factor in the personnel action.” The burden of proof is then on the state employer “to prove by clear and convincing evidence that the disclosure was not a material fact in the personnel action.”

The circuit court held that Davidson could not establish a violation of KRS 61.102 for the following reasons: (1) filing a lawsuit is not a means of making a protected disclosure under the whistle-blower statute; (2) Davidson had an ulteri- or motive for making a disclosure; (3) Davidson did not disclose the type of information which the statute was designed to protect; and (4) Military Affairs did not take any action to discourage Davidson from making a disclosure or to punish him from doing so. Davidson claims that the circuit court erred in reaching 'each of these conclusions partly because it misidentified the disclosure upon which Davidson relies. This alleged misidentification is connected to Davidson’s assertion that the circuit court dismissed one claim in his suit without consideration. Indeed, he asserts that the circuit court erred by not granting his motion for partial summary judgment based on this claim. Finally, Davidson asserts that this court should set aside the summary judgment in favor of Military Affairs because it ultimately resulted in the dismissal of his case before the Personnel Board.

THE CIRCUIT COURT DID NOT MISIDENTIFY THE DISCLOSURE

Davidson alleges that the circuit court misidentified the relevant disclosure or disclosures upon which he bases his whis-tleblower claim as the allegations raised in the numerous Wind River lawsuits that the hearing procedures of Natural Resources are an abuse of discretion and violate state law. Davidson asserts that the protected report was actually the counterclaim that he filed in the Natural Resources enforcement action in which he alleged retaliation by Military Affairs based on his litigation against Natural Resources. CR 8.06 states that “[a]ll pleadings shall be construed so as to do substantial justice.” Kentucky’s highest court has stated, the principal objective of a pleading is to give fair notice to the opposing party of the essential nature of the claim. Nothing in Davidson’s complaint gives fair notice of the allegation that he now raises that his protected disclosure was the filing of the counterclaim. Instead, it is clear that his whistleblowing claim is based solely on the theory of retaliation by Military Affairs for his reporting the wrongdoing of NREPC in his litigation against that agency.

Davidson’s assertion that his complaint states a-claim for retaliation based on his disclosure of an earlier whistleblow-ing violation by Military Affairs which he revealed in the counterclaim does not hold up. The retaliatory personnel actions which Davidson alleges Military Affairs took are the same in the instant complaint as in the counterclaim filed in the NREPC case: requesting his resignation and instituting an investigation of him. The same personnel actions that are the basis for his counterclaim. cannot then be the basis for new alleged retaliation for filing the counterclaim. We find no error in the circuit court’s interpretation of the complaint, including its identification of the relevant report or disclosure upon which Davidson’s claims of retaliation are based.

THE CIRCUIT COURT DID NOT OVERLOOK THE CR 11 THREAT

Davidson now asserts that Eg-bers’s threat to file CR 11 sanctions was an attempt to dissuade him from filing this suit and, hence, a personnel action prohibited by the whistleblower statute. Even if this were true, it does not help Davidson in this appeal as he did not raise this issue in his complaint. Contrary to Davidson’s assertions, the inclusion of the vague phrase that Military Affairs “has acted in such a way as to discourage” reporting actual and suspected violations of state law and abuse of authority is not sufficient to give fail* notice to Military Affairs that Davidson considered Egbers’s mention of CR 11 sanctions to be a personnel action violating KRS 61.102.

Davidson asserts that the circuit court dismissed without consideration that portion of his complaint that alleged that Eg-bers’s threat to file CR 11 sanctions was an attempt to dissuade him from filing this action and, hence, from reporting a violation of state law. Since we find that Davidson’s complaint raised no such claim, this argument is without merit.

DAVIDSON’S MOTION FOR PARTIAL SUMMARY JUDGMENT

Davidson asserts that the circuit court erred by not granting his motion for partial summary judgment on the issue of liability “as to the threatened use of official action to dissuade the pursuing of this whistleblower disclosure and claim.” Davidson identifies the “official action” as Egbers’s threat, in response to the draft complaint, to file CR 11 sanctions if Davidson filed this action. As previously noted, however, Davidson did not raise this claim in his complaint. He may not escape summary judgment by raising allegations which he might have made in his complaint but did not. We find no error in the circuit court’s denial of Davidson’s motion for partial summary judgment.

PROTECTED DISCLOSURES MAY BE MADE IN THE COURSE OF LITIGATION

The circuit court based its summary judgment, in part, on the fact that Davidson’s allegations against the hearing procedures of NREPC were made by filing a series of civil actions against the agency. The court stated, “[i]n Boykins v. Housing Authority of Louisville, Ky., 842 S.W.2d 527 (1992), the Kentucky Supreme Court declined to include the filing of a lawsuit within the parameters of a ‘disclosure’ under the Whistleblower statute.”

Boykins concerned an employee of the Housing Authority of Louisville (HAL) who was fired after she filed a negligence suit against HAL concerning injuries that her infant son suffered in an apartment owned, operated, and managed by HAL. The Kentucky Supreme Court stated that KRS 61.102 was intended “to protect employees from reprisal for the disclosure of violations of the law.” Contrary to the circuit court’s interpretation in the instant case, however, Boykins did not establish a per se rule that a statement made in pleadings or in the course of litigation could never be a protected report or disclosure under the statute. Indeed, “the judiciary or any member of the judiciary” are specifically included in KRS 61.102 as appropriate persons to whom to make a protected report. The Kentucky Supreme Court held that Boykins was not protected by the whistleblower statute simply because she did not report or disclose information which fell within the parameters of the statute. KRS 61.102 protects reports of the following:

any facts or information relative to an actual or suspected violation of any law, statute, executive order, administrative regulation, mandate, rule, or ordinance of the United States, the Commonwealth of Kentucky, or any of its political subdivisions, or any facts or information relative to actual or suspected mismanagement, waste, fraud, abuse of authority, or a substantial and specific danger to public health or safety.

The Kentucky Supreme Court stated, “[t]he gravamen of [Boykins’s] suit was not intended as a report of information regarding any alleged mismanagement or endangerment of public health and safety by HAL, but was rather a simple negligence action.” A report of simple negligence is not listed among the types of information protected by the statute. Hence, Boykins was not protected by the whistleblower statute.

In contrast, Davidson alleged that the hearing procedures of NREPC constitute an abuse of authority and violate state law, both of which are included among the types of disclosures protected by KRS 61.102. To the extent that the circuit court based its summary judgment on the belief that Boykins categorically excludes persons making a disclosure in the course of litigation from protection under the whistleblower statute, it erred.

BOYKINS DOES NOT ADDRESS EMPLOYEES’ POSSIBLE ULTERIOR MOTIVE

The summary judgment also seems to be based, in part, on the circuit court’s conclusion that Davidson had an ulterior motive for making his disclosure about NREPC. The court noted that Davidson’s litigation was filed in the shadow of citations made by the agency against him and Wind River. Echoing the language of Boykins, the court stated that “the gravamen” of Davidson’s allegation against NREPC “was to invalidate the fines being levied against him.” The circuit court cites Boykins as authority for the proposition that an employee’s subjective motivation for making a disclosure is relevant to whether it is protected by the whistleblower statute.

Some states do require that an employee’s disclosure be motivated purely by a sincere desire to expose the illegality rather than any self-serving interest before it is entitled to whistleblower protection. However, we do not read Boykins as expressing any position on this issue. Indeed, we do not find that the Kentucky courts have ever addressed whether an employee’s motivation for making a report is relevant under KRS 61.102. Since we affirm the circuit court’s granting of summary judgment on other grounds, we decline to address this issue now.

REPORT OF PUBLICLY KNOWN INFORMATION IS NOT PROTECTED DISCLOSURE

The circuit court also held that Davidson’s actions were not within the scope of the whistleblower statute because he did not disclose the type of information which is protected by the statute. The Kentucky courts have not specifically addressed what constitutes a “report” within the meaning of KRS 61.102. However, the Kentucky Supreme Court has stated that KRS 61.102 is “similar in almost every respect” to the federal whistleblower statute. So we may look to federal precedent for guidance on this issue.

In Meuwissen v. Department of Interi- or, the United States Federal Court of Appeals, Federal Circuit, held that “[a] disclosure of information that is publicly known is not a disclosure” within the meaning of the federal Whistleblower Protection Act. Meuwissen was an administrative law judge within the Department of Interior who was assigned a case which required him to interpret a provision of a federal act. The statutory provision had previously been interpreted in a case by Meuwissen’s predecessor, with that interpretation subsequently being upheld as constitutional by the 8th Circuit Court of Appeals. Meuwissen informed his superi- or that he did not intend to follow the precedent because he found the earlier case’s interpretation of the act contrary to its purpose and erroneous. He then issued an opinion overturning the previous interpretation of the act. He was fired. He claimed that he was fired for whistle-blowing. The court held that he was not protected by the federal whistleblower statute because he did not disclose any information which was not already known. The court stated, “[t]he purpose of the WPA is to protect employees who possess knowledge of wrongdoing that is concealed or not publicly known, and who step forward to help uncover and disclose that information.” The court found that the conduct which Meuwissen purported to disclose, the agency’s interpretation of the act, was already well-known as it had been the subject of two previous decisions.

The instant case presents a similar situation. Davidson reported to the Franklin Circuit Court, on several occasions, that the hearing procedures for NREPC are an abuse of authority and violate state law. However, he did not report anything about these procedures which was not already known, such as secretive agency procedures. These hearing procedures are set forth in statutes and administrative regulations. Regardless of the merits of Davidson’s allegations against NREPC, we concur with the circuit court that his allegations against the agency do not constitute a report or disclosure that is protected by the whistleblower statute. Since Davidson cannot meet an element essential to establishing his whistleblower claim, the circuit comí; properly granted summary judgment in favor of Military Affairs.

APPROPRIATENESS OF REASSIGNMENT NOT PROPER GROUNDS

As a third reason for granting summary judgment to Military Affairs, the circuit court stated that Military Affairs’s “decision to reassign the Plaintiff was not ‘retaliation.’ ” The court stated that Davidson’s position required good judgment; and, based on the investigation and Eg-bers’s appraisal, Military Affairs believed that Davidson could not effectively serve as a liaison to the Governor’s Office. Citing a federal case for the proposition that mere critical appraisal of an employee by a supervisor is not a whistleblower violation, the court concluded that Military Affairs did not violate KRS 61.102 by reassigning Davidson. This is not a conclusion which the court may reach at the summary judgment stage. Davidson asserts that the investigation was itself retaliation for whistleblowing because it was baseless and was designed just to punish him. Moreover, he disputes the findings of the investigation. Clearly, there are genuine issues of material fact regarding this matter. Thus, basing summary judgment on the ground that Davidson’s reassignment was allegedly justified by Egbers’s investigation was error.

DISMISSAL OF CASE BEFORE PERSONNEL BOARD

Davidson also asserts that this Court should overturn the circuit court’s summary judgment because the Personnel Board relied, in part, upon the summary judgment in dismissing Davidson’s administrative actions. If Davidson seeks relief from the Personnel Board’s decision, he may follow the proper procedures to appeal that decision. The collateral consequences of the circuit court’s decision in an unrelated administrative proceeding are not a proper matter for consideration by this Court. And we decline to address it.

CONCLUSION

For the forgoing reasons, we affirm the Franklin Circuit Court’s opinion and order of February 25, 2003, granting the motion for summary judgment of Military Affairs and denying Davidson’s motion for partial summary judgment.

ALL CONCUR.

      . Kentucky Revised Statutes (KRS) 61.102.

      . Appellee’s Brief at 8 n. 4 (setting forth names and case numbers of these civil actions).

      . Id.

      .Both parties agree that Davidson was entitled to reemployment rights following his military leave under state and federal law. See 38 USC §§ 4311, etseq.; KRS 61.371-61.379; 101 KAR 1:395.

      . This report is undated, but the context of the report indicates that it was written between September 26, 2001, and October 15, 2001.

      . Adjutant General Youngman replaced Adjutant General Groves.

      . Kentucky Rules of Civil Procedure.

      . Kentucky Rules of Civil Procedure (CR) 56.03.

      . Scifres v. Kraft, Ky.App., 916 S.W.2d 779, 781 (1996).

      . Steelvest, Inc. v. Scansteel Service Center, Inc., Ky., 807 S.W.2d 476, 480 (1991).

      . Id.

      . Kentucky Farm Bureau Mut. Ins. Co. v. Gray, Ky.App., 814 S.W.2d 928, 930 (1991).

      . Woodward v. Commonwealth, Ky., 984 S.W.2d 477, 480-81 (1998).

      . KRS 61.103(3). "Contributing factor” is further defined in KRS 61.103(l)(b).

      . KRS 61.103(3).

      . This issue was raised both in the suits filed by Wind River against Natural Resources and in those filed by Natural Resources against Wind River and Davidson.

      . Lee v. Stamper, Ky., 300 S.W.2d 251, 253 (1957).

      . Plaintiff's Compl. at ¶ 1. ("[Military Affairs] has threatened to take and has taken adverse personnel actions against the Plaintiff for bringing to the attention of Franklin Circuit Court violations of state law and abuse of authority by the Cabinet for Natural Resources and Environmental Protection.”); id. at ¶ 2 ("Groves and Egbers requested Plaintiff's resignation as a state employee based, as a contributing factor, on pending litigation with the Cabinet for Natural Resources and Environmental Protection.”); id. at ¶ 3 ("On August 8, 2001, the Defendant initiated an investigation into 'allegations of misconduct and conflicts of interest’ based, as a contributing factor, on the Plaintiff’s litigation with the Cabinet for Natural Resources and Environmental Protection.”)

      . Id. at ¶ 9.

      . We note, without deciding this matter, that there is some question whether a threat to file CR 11 sanctions could constitute a "personnel action” within the meaning of the Kentucky whistleblower statute. See KRS 61.103(3). "Personnel action” seems to suggest an action with consequences within the scope of employment, not in the separate realm of the courtroom.

      . 842 S.W.2d at 528.

      . Id. at 529.

      . Id.

      . Id.

        . See, e.g., Parsells v. Manhattan Radiology Group, L.L.P., 255 F.Supp.2d 1217, 1236 (D.Kan.2003) (holding that Kansas's common law tort of retaliatory discharge requires that "the 'whistle-blowing' must have been done out of a good faith concern over the wrongful activity reported rather than a[sic] from a corrupt motive such as malice, spite, jealousy or personal gain"); Obst v. Microtron, Inc., 614 N.W.2d 196, 202 (Minn.2000) (interpreting Minnesota's whistleblower statute, Minn. Stat. Ann. § 181.932(l)(a), to require an examination not only into the contents of the report but also into why the employee made the report).

      . Commonwealth Dept. of Agriculture v. Vinson, Ky., 30 S.W.3d 162, 169 (2000).

      . 234 F.3d 9, 13 (2000).

      . Meuwissen, 234 F.3d at 13.

        .Id. at 12-13. See also, Obst, 614 N.W.2d at 203 (holding that an employee’s revelation of information that was "openly known and acknowledged” could not be a good faith report under the applicable Michigan whistle-blower statute).

      . Herman v. Department of Justice, 193 F.3d 1375, 15 IER Cases 1162 (Fed.Cir.1999).


text:
    James G. CLEMONS; Cindy Clemons Carter; and William Howard Clemons, Appellants, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2003-CA-002020-MR.
    Court of Appeals of Kentucky.
    Nov. 5, 2004.

      C. Mike Moulton, Elizabethtown, for appellant.
    Gregory D. Stumbo, Attorney General of Kentucky, Matthew D. Nelson, Assistant Attorney General, Frankfort, for appellee.
    Before MINTON and VANMETER, Judges; MILLER, Senior Judge.

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

   OPINION

MINTON, Judge.

Two of the non-financial conditions of James Clemons’s pretrial release from jail were to avoid alcohol and to observe a curfew. The trial court revoked his bond after Clemons was caught out drinking past curfew., After jailing Clemons subject to a higher bond, the trial court also ordered Clemons’s sureties, Cindy Clemons Carter and William Howard Clemons, to forfeit a portion of the original bond. The sureties argue that they did not receive the required notice of the bond forfeiture hearing and that the amount of the forfeiture is excessive. Because we hold that the trial court may properly order a forfeiture of bond for violation of non-fínancial conditions, that the amount of the forfeiture was not excessive, and that the issue of notice was not preserved for appellate review, we find no error in the trial court’s decision and we affirm.

STATEMENT OF FACTS

Clemons was arrested in August 2001 on charges of manufacturing and trafficking in methamphetamine. Clemons’s father, William H. Clemons, posted a $50,000 cash bond for his release. When Clemons appeared for arraignment on the charges, his original bond was changed to a $20,000 property bond. Clemons’s brother and sister, William Howard Clemons and Cindy Clemons Carter, executed the second bond.

The trial court placed several non-financial conditions on Clemons’s release, including a prohibition against drinking or possessing any alcoholic beverages, and a requirement that he stay at home between 6:00 p.m. to 6:00 a.m. On July 10, 2003, a state trooper attempting to serve a subpoena on Clemons found him at approximately 11:00 p.m. at a house some five miles from his residence. The officer smelled alcohol on Clemons’s breath and administered a portable breath test (PBT). The PBT showed Clemons’s blood alcohol level to be .0516. Clemons admitted to the officer he had drunk two glasses of wine. He also claimed he was out past curfew for purposes of employment. According to Clemons, he had been hired to housesit for a friend.

PROCEDURAL HISTORY

Following the report that Clemons had violated his bond conditions, the Commonwealth filed a motion to revoke bond. The revocation hearing was held on July 22, 2003. The police officer who administered the PBT and Clemons were the only witnesses. At the conclusion of the hearing, the court concluded Clemons had violated the non-financial conditions of his bond by drinking alcohol. Therefore, his bond was revoked, Clemons was jailed, and a new bond raised to $50,000 cash.

Upon request by defense counsel, a hearing on the motion to forfeit bond was reassigned to September 16, 2003. The order reassigning the hearing was supposedly distributed to counsel for Clemons and the Commonwealth, as well as individually to the sureties. For reasons not apparent in the record, the hearing was not held on September 16 but, rather, on August 19, 2003. Clemons, both sureties, and counsel for all parties involved were present. After hearing arguments from both sides, the court ordered the forfeiture of $5,000 of the $20,000 bond. This appeal followed.

THE COURT’S FORFEITURE OF $5,000 WAS NOT EXCESSIVE

The sureties first argue the court’s forfeiture of $5,000 of the $20,000 property bond was excessive. In support of this argument, the sureties argue that during the roughly two years Clemons was released on bond, he was present at every court session where his presence was required. Therefore, the sureties assert that since Clemons had previously complied with the conditions of his bond, the $5,000 forfeiture is unwarranted. We disagree.

The purpose of posting bonds “is to secure the defendant’s being arrested and brought to justice.” Bonds are permitted by the court “for the convenience of a person not yet proved to be guilty, and to protect the state against the expense of keeping such persons in jail.” Bonds are discretionary, and the decision to impose, forfeit, or remit bonds lies solely with the trial court.

But bonds are also used to impose certain non-financial conditions to control the defendant’s behavior while on pretrial release. The majority of jurisdictions allow courts to forfeit a defendant’s bond if one of these conditions is breached. Kentucky case law has yet to broach the subject of whether bond forfeiture is appropriate for violation of non-financial conditions. However, the language of the applicable statute and procedural rule clearly indicates the General Assembly’s intent that courts have the option to forfeit for such violations. KRS 431.545 plainly states that bond forfeiture is appropriate if a defendant “shall willfully fail to appear or shall willfully fail to comply with the conditions of his release....” Likewise, RCr 4.42 states:

(1) If at any time following the release of the defendant and before the defendant is required to appear for trial the court is advised of a material change in the defendant’s circumstances or that the defendant has not complied with all conditions imposed upon his or her release, the court having jurisdiction may order the defendant’s arrest and require the defendant or the defendant’s surety or sureties to appear and show cause why the bail bond should not be forfeited or the conditions of release be changed, or both.
(3) Where the court is acting on advice that the defendant has not complied with all conditions imposed upon his or her release, the court shall not change the conditions of release or order forfeiture of the bail bond unless it finds by clear and convincing evidence that the defendant has wilfully [sic] violated one of the conditions of his or her release or that there is a substantial risk of nonappearance.

Based on these rules, we believe the trial court was acting within its authority when it forfeited $5,000 of the $20,000 property bond posted for Clemons’s release. There was clear and convincing evidence at the forfeiture hearing that Clemons had, in fact, violated his release conditions. Not only did the trooper testify that Clemons’s blood alcohol level was .0516, but Clemons himself testified he had been drinking wine. Since his bond conditions affirmatively stated Clemons was prohibited from drinking, consuming, or possessing alcoholic beverages, his actions were clearly in violation.

Likewise, we do not believe the forfeiture of $5,000 was excessive. There are no clear-cut rules defining what is and what is not “excessive.” However, as discussed, discretion regarding bond issues lies with the trial court. We do not have the authority to reverse that decision unless we determine there has been an abuse of discretion. In this case, we do not believe the $5,000 forfeiture constitutes such an abuse.

Finally, the sureties’ argument that forfeiture was improper because Clemons had until that time complied with his release conditions is without merit. The bond conditions were not based upon a reward system. And there is no merit to an argument that the trial judge should have waived bond forfeiture for Clemons’s violation of the conditions merely because of his previous compliance. Thus, we affirm.

THE NOTICE ISSUE WAS NOT PRESERVED AT THE TRIAL LEVEL

The sureties’ second point of contention is that the court failed to give them proper notice of the August 19, 2003, forfeiture hearing. They argue that under RCr 4.52, they should have received notice twenty days prior to the hearing.

This argument is also without merit due to failure to preserve the issue at the trial level. It is the responsibility of counsel “to present to the trial court those questions of law which may become issues on appeal.” If an issue is not properly preserved, this Court may only review the matter for “[a] palpable error which affects the substantial rights of a party....”

After viewing the entire videotape of the August 19, 2003, forfeiture hearing, we conclude that there was no error affecting the rights of the sureties. All interested parties were personally present and represented by counsel at the hearing. No mention whatsoever was made of lack of notice, nor was a continuance requested. Likewise, both sides were given a fair opportunity to present their case. Since failure to preserve the issue did not lead to palpable error, we are without authority to review this issue.

However, even if the notice issue had been preserved and notice had, in fact, been deficient, we agree with the Commonwealth that the sureties did not establish prejudice. Again, as stated, all parties were present and represented by counsel. Each side was given ample opportunity to present an argument before the court. RCr 9.24 states, “[t]he court ... must disregard any error or defect in the proceeding that does not affect the substantial rights of the parties.” Because we believe the sureties were in no way prejudiced, we disregard any alleged error or deficiency in the notice.

For the foregoing reasons, the decision of the trial court is affirmed.

ALL CONCUR.

      . Abrams v. Commonwealth, 254 Ky. 68, 70 S.W.2d 983, 984 (1934); see also, Johnson

        Bonding Company, Inc. v. Commonwealth, Ky., 487 S.W.2d 911, 913 (1972).

      . See Abrams, supra.

      . Abraham v. Commonwealth, Ky.App., 565 S.W.2d 152, 158 (1977); see also, United Bonding Insurance Company, Kent Cox, Agent v. Commonwealth, Ky., 461 S.W.2d 536, 538 (1971).

      . See, e.g., State v. Korecky, 169 N.J. 364, 777 A.2d 927, 933-934 (2001) ("the majority rule in other jurisdictions is that bail may be forfeited for a violation of a condition other than nonappearance.”) (citing, State v. Williams, 730 A.2d 677, 680 (Me.1999)) (affirming forfeiture of bail after finding defendant possessed alcohol in violation of condition of release); State v. Hernandez, 1 Neb.App. 830, 511 N.W.2d 535, 538-39 (1993) (holding bond properly forfeited because defendant breached "crime-free” condition); State v. McLaughlin, 122 Ohio App.3d 418, 701 N.E.2d 1048, 1051 (1997) (holding partial forfeiture of appearance bond proper when defendant violated bond condition that he have "no contact” with victim); Bridges v. Superior Court, 121 R.I. 101, 396 A.2d 97, 101 (1978) ("[B]ail system is designed to ensure the accused's presence at court and to keep the accused as much under control of the court as if he were actually in the custody of a court officer. ”); State v. Badzmierowski, 171 Wis.2d 260, 490 N.W.2d 784, 786 (App.1992) (holding bond properly forfeited when defendant violated bond no-contact condition).

      . Kentucky Revised Statutes.

      . KRS 431.545 (emphasis added).

      . Kentucky Rules of Criminal Procedure.

      . RCr 4.42(1), (3) (emphasis added).

      . Todd v. Commonwealth, Ky., 716 S.W.2d 242, 248 (1986); see also, Turner v. Commonwealth, Ky.App., 460 S.W.2d 345, 346 (1970); RCr 9.22 (emphasis omitted).

      . RCr 10.26.


author: MINTON, Judge. COMBS, Chief Judge,

text:
    E.D., Appellant, v. COMMONWEALTH of Kentucky, CABINET FOR HEALTH AND FAMILY SERVICES, Appellees.
    No. 2004-CA-000335-MR.
    Court of Appeals of Kentucky.
    Nov. 19, 2004.
    Albert W. Barber III, Owensboro, KY, for appellant.
    Mona S. Womack, Frankfort, KY, for appellee.

      Before COMBS, Chief Judge; JOHNSON and MINTON, Judges.
   OPINION

MINTON, Judge.

E.D. (Appellant) is the mother of C.D., C.D. is the biological mother of the minor children, A.H. and D.D.; but her parental rights have been terminated. After the termination of C.D.’s parental rights, Appellant petitioned the McLean Circuit Court for grandparent visitation with A.H. and D.D. The circuit court dismissed her petition for failure to state a claim upon which relief may be granted.

On appeal, Appellant asserts that it was error for the circuit court to dismiss her petition for grandparent visitation without conducting an evidentiary hearing to determine whether visitation would be in the best interest of A.H. and D.D. We conclude that Appellant’s statutory right to grandparent visitation under KRS 405.021 was foreclosed upon the termination of her daughter’s parental rights because Appellant had not previously been granted visitation by the circuit court. Thus, we affirm.

J.D., Jr. is the biological father of D.D. J.S. is the biological father of A.H. In early 2002, A.H. and D.D. were removed from the custody of J.D., Jr. and C.D. and placed in the custody of the Commonwealth of Kentucky, Cabinet for Health and Family Services, apparently in conjunction with dependency, neglect, and abuse proceedings in the McLean District Court. In April or May of 2003, the McLean Circuit Court involuntarily terminated the parental rights of C.D. and J.D. with respect to D.D. and the parental rights of C.D. and J.S. with respect to A.H.

On September 19, 2003, Appellant filed a petition in McLean Circuit Court for grandparent visitation with A.H. and D.D. under KRS 405.021. In support, Appellant asserts that the McLean District Court granted her visitation rights in an order entered October 2, 2002, before the termination of C.D.’s parental rights. On October 27, 2003, the Cabinet filed a motion to dismiss Appellant’s petition for failure to state a claim upon which relief may be granted, citing CR 12.02 of the Kentucky Rules of Civil Procedure (CR).

The Cabinet asserts that Appellant lacks standing to seek visitation because any legal relationship that she had with the children was severed when the parental rights of her daughter, C.D., were terminated. The Cabinet further asserts that Appellant failed to preserve her visitation rights, as authorized by KRS 405.021, by not obtaining a circuit court order granting her visitation rights before the termination of parental rights.

On February 2, 2004, the circuit court addressed the Cabinet’s motion to dismiss Appellant’s petition for failure to state a claim. The circuit court heard no evidence on the merits of Appellant’s motion, including whether her visitation was in the best interest of the children. Instead, the court indicated its intention to dismiss Appellant’s petition on the grounds that the district court order upon which her claim to visitation rests is not sufficient under KRS 405.021 to preserve any grandparen-tal visitation rights. Thus, any right to grandparent visitation was severed when Appellant’s familial ties to the children were severed with the termination of C.D.’s parental rights. The circuit court entered an order dismissing Appellant’s petition on February 10, 2004. Appellant then filed a timely appeal of the circuit court’s decision.

As the Kentucky Supreme Court has stated, “the existence and extent of grandparents’ rights is exclusively the prerogative of the legislature.” Before the enactment of the grandparents’ visitation statute, KRS 405.021, in 1976, grandparents had no legal rights to visitation with their grandchildren in Kentucky. Significantly, for our purposes, the statute was amended in 1996 to provide a way for a grandparent to preserve visitation rights even if the parental rights of the son or daughter of the grandparent, the parent of the child at issue, are terminated. The apparent purpose of this amendment was partially to abrogate the harsh rule established by the Kentucky Supreme Court in Hicks v. Enlow that the termination of parental rights also terminates any grandparents’ visitation rights. The court explained its reasoning as follows:

Termination of parental rights, as provided for by statute, whether voluntary or involuntary, once legally adjudicated severs all relationship of parent and child as if the same had never existed. The statutory reasons underlying the termination process relate to parental abandonment, neglect and abuse so substantial that the child must be legally cutoff [sic] from the parent. They justify a legal structure that provides finality and blocks every path to further litigation to reestablish a connection to parents whose rights have been terminated. Litigation by grandparents, by the family of such parents, would frustrate and circumvent the termination decree. The statutory language of severance required in the termination decree now expresses no exception, and none may be created by implying an exception from the grandparents’ visitation statute.

The 1996 amendment to the grandparents’ visitation statute, KRS 405.021, demonstrates an attempt on the part of the legislature to balance the interest in finality of termination of parental rights with public policy reasons in favor of continued grandparent visitation. This balance is also reflected in the current version of KRS 405.021, which reads in relevant part as follows:

(1) The Circuit Court may grant reasonable visitation rights to either the paternal or maternal grandparents of a child and issue any necessary orders to enforce the decree if it determines that it is in the best interest of the child to do so. Once a grandparent has been granted visitation rights under this subsection, those rights shall not be adversely affected by the termination of parental rights belonging to the grandparent’s son or daughter, who is the father or mother of the child visited by the grandparent, unless the Circuit Court determines that it is in the best interest of the child to do so.
(2) The action shall be brought in Circuit Court in the county in which the child resides.

Appellant asserts that she is entitled to continued visitation with A.H. and D.D. under KRS 405.021 because she was granted visitation with the children before her daughter, C.D.’s, parental rights were terminated. Appellant relies upon an agreed order entered October 2, 2002, by the McLean District Court after A.H. and D.D. had been placed in the custody of the Cabinet but before C.D.’s parental rights were terminated. The order, which was entered in cases . 02-J-00020 and 02-J-00021, In Re: A.H. and D.D., minor children, appears to modify an earlier visitation order or agreement; but no other order or agreement has been included in the record before this Court. The October 2, 2002, agreed order states, in part, as follows: “By agreement, the Cabinet shall expand the visitation between these children and their parents to two hours per week, and the grandparents may visit with the children during this time.”

Appellant relies on an order of the district court rather than an order of the circuit court. But KRS 405.021(1) clearly specifies that “[t]he Circuit Court may grant reasonable visitation rights” to grandparents. KRS 405.021(2) also specifies that “[t]he action [for grandparent visitation] shall be brought in Circuit Court in the county in which the child resides.” Significantly, the protections available in KRS 405.021(1) for preserving grandparent visitation, which would otherwise be severed by the termination of parental rights of the grandparent’s son or daughter who is the parent of the child at issue, are conditional on the grandparent’s having “been granted visitation rights under this subsection.” This refers back to the earlier sentence in KRS 405.021(1) about obtaining reasonable visitation through the circuit court. Clearly KRS 405.021 requires a visitation order issued by the circuit court prior to the termination of parental rights of a grandparent’s son or daughter to protect grandparent visitation rights with the children of that son or daughter. Nevertheless, Appellant suggests that we should find an order by the district court to be sufficient because the bonds developed between child and grandparent are the same regardless of which court entered the order.

As this Court stated in Cole v. Thomas when we held that great-grandparent visitation is not within the purview of KRS 405.021, “while we agree that the more familial bonds a child has is generally better for the child, this court is not in a position to add words and meaning to a statute that is clear on its face.” We can only enforce the statute as it is written. And, as KRS 405.021 is written, it calls for a visitation order from the circuit court in the county in which the child resides, not the district court. Since Appellant did not obtain a circuit court order granting her grandparent visitation prior to the termination of her daughter’s parental rights, she may not rely on the exception in KRS 405.021 to preserve her visitation rights. Once C.D.’s parental rights were terminated, Appellant also lost her statutory right to seek grandparent visitation under KRS 405.021. Therefore, the Circuit Court properly dismissed Appellant’s petition for grandparent visitation.

We also note that even if the order on which Appellant relies were issued by the circuit court, we do not believe that it would satisfy the requirements of KRS 405.021. The main purpose of the order appears to be to establish the number of hours of parental visitation available per week. Only secondarily does it mention that “the grandparents may visit with the children during this time,” meaning the two hours of parental visitation. Thus, the grandparents are not granted a right to visitation independent of parental visitation. Moreover, Appellant is not specifically granted any visitation. The district court merely refers to “the grandparents”; but A.H. and D.D., theoretically, have six grandparents between them. There is no indication that the district court even knew of Appellant much less of her fitness for visitation. We do not think that this passing, generic reference to permitting grandparent visitation in conjunction with parental visitation qualifies as a grant of grandparent visitation rights to Appellant within the meaning of KRS 405.021. Thus, she may not rely on the statutory exception within KRS 405.021 for a grandparent who has been granted visitation prior to the termination of his or her child’s parental rights. Again, because she may not rely on this statutory exception, Appellant’s statutory right to seek visitation with her grandchildren, A.H. and D.D., under KRS 405.021, was cut off when her daughter’s parental rights were terminated.

For the foregoing reasons, we affirm the McLean Circuit Court’s denial of Appellant’s petition for grandparent visitation.

JOHNSON, Judge, concurs.

COMBS, Chief Judge, dissents and files separate opinion.

COMBS, Chief Judge,

dissenting.

I respectfully dissent. I believe that KRS 405.021 is expansive enough to allow the circuit court to re-visit the previous district court order and to scrutinize it in light of the facts of this case to determine if the best interests of the children indicate the propriety of continued grandparent visitation. No statutory language indicates that timing of entry of such an order is of the essence requiring strict compliance in order to preserve this precious right.

It is true that the statute contemplates that grandparent visitation be established prior to termination of parental rights. However, the statute does not mandate an exclusive chronology or sequence of events as a condition precedent to a continuation of grandparent visitation. The intent of the statute has been held to be remedial, encompassing cases decided prior to its amendment:

The purpose of the amendment to KRS 405.021 was to change the existing law to which the courts, and undoubtedly litigants, had expressed displeasure. It was neither logical nor consistent with public policy to sever the child from an established grandparent relationship without first determining if such action was in the child’s best interest. The statute is dearly remedial in nature. If it is in the child’s best interest, it preserves grandparent visitation established prior to the termination proceeding. It is applicable to cases prior to July 1996, as well as those after the effective date of the amendment. (Emphasis added.)

Dotson v. Rowe, Ky.App., 957 S.W.2d 269, 271. If indeed this statute can be applied retrospectively to other cases, surely it can be utilized in this case to allow the circuit court to evaluate the visitation order of the district court according to the critical standard of the “best interest of the child” in balancing any and all other competing interests.

Appellant placed the issue in the proper perspective by contending that “the bonds developed between child and grandparent are the same regardless of which court entered the order.” (Majority opinion, p. 265). I agree and would accordingly remand this case to the circuit court for a hearing to examine the substantive issue of the well-being of these children rather than focusing incorrectly on the procedural technicality of which court acted first on the issue of grandparent visitation.

      . Kentucky Revised Statutes.

      . The Cabinet asserts that the juvenile division of the district court entered emergency protective custody orders placing A.H. and D.D. into the Cabinet’s care following the March 27, 2002, death of D.D.’s twin sibling, J.D. According to the Cabinet, J.D. died from asphyxiation when a dresser fell on top of him while he and D.D., then twenty-one months old, were locked in a bedroom by J.D., Jr. and C.D. and left unsupervised for a period of hours. The Cabinet further asserts that C.D. and J.D., Jr. were each convicted of three counts of second-degree criminal abuse for the actions leading to J.D.’s death. As none of the district court records are included in the record of this appeal, we have no way of verifying the truth of these allegations.

      . Appellant asserts that the circuit court's order of termination of parental rights was entered on May 23, 2003, while the Cabinet asserts that it was entered on April 14, 2003. The exact termination date is not relevant to this Court’s decision.

      . Throughout her brief, Appellant consistently miscites the date an order was signed by the court or the date a motion was signed by the moving attorney as the date the order was entered or the motion was filed. As these minor discrepancies in dates are not relevant, we will simply refer to the correct entry and filing dates as determined by the record.

      . The Cabinet also appears to have filed an identical motion on October 28, 2003.

      . Kentucky Rules of Civil Procedure.

      . The circuit court’s order does not recite the reason for the dismissal of Appellant’s petition.

      . Because of the subject matter of this case, we have treated it as an expedited appeal.

      . Hicks v. Enlow, Ky., 764 S.W.2d 68, 71 (1989), partially abrogated on other grounds by Ky. Acts 1996, ch. 302, § 1; ch. 314, § 2, effective July 15, 1996.

      . Id. at 70.

      . Enacted Ky. Acts 1996, ch. 302, § 1; ch. 314, § 2, effective July 15, 1996.

      . Dotson v. Rowe, Ky.App., 957 S.W.2d 269, 270 (1997).

      . Id., 957 S.W.2d at 270-271. See Hicks, 764 S.W.2d at 71, 73-75.

      . Hicks, 764 S.W.2d at 71 (citation omitted).

      . Dotson, 957 S.W.2d at 271.

      .The case name on the district court order actually lists the children's names in full, but we have used their initials to protect their privacy.

      . 735 S.W.2d 333, 335 (1987).

      . See Hicks, 764 S.W.2d at 74.

      . Six, rather than four, because the children have different fathers.

      . See Hicks, 764 S.W.2d at 74.


author: RONNIE L. WHITE, Judge.

text:
    Andre V. COLE, Appellant, v. STATE of Missouri, Respondent.
    No. SC 85830.
    Supreme Court of Missouri, En Banc.
    Nov. 23, 2004.
    Rehearing Denied Jan. 25, 2005.

      Rebecca L. Kurz, Kansas City, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Shaun J. Mackelprang, Deborah Daniels, Andrea K. Spillars, Asst. Attys. Gen., Jefferson City, for Respondent.
   RONNIE L. WHITE, Judge.

I.

A jury in St. Louis County convicted Appellant, Andre Cole, of first-degree murder, first-degree assault, first-degree burglary, and two counts of armed criminal action. He was sentenced to death for the murder, given three life terms of imprisonment for the assault and armed criminal action, and thirty years for the burglary. This Court upheld Appellant’s convictions and sentences on direct appeal. Appellant, raising four points of error, appeals from the overruling of his Rule 29.15 postconviction relief motion. This Court has jurisdiction, Mo. Const, art. V, sec. 10, order of June 16, 1988. Affirmed.

II.

Reviewing points on appeal from the denial of postconviction relief is limited to a determination of whether the findings and conclusions of the trial court are clearly erroneous. The findings and conclusions are clearly erroneous only if the appellate court is left with the definite impression that a mistake has been made.

Because all of Appellant’s points allege ineffective assistance of counsel, he must show that “counsel’s performance did not conform to the degree of skill, care and diligence of a reasonably competent attorney and that he was thereby prejudiced.” “To prove prejudice, the movant must show a reasonable probability that, but for counsel’s errors, the result of the proceedings would have been different.” Appellant bears the burden of proving grounds for relief by a preponderance of the evidence.

III.

In his first point, Appellant alleges ineffective assistance of counsel for trial counsel’s failure to object to four statements made by the prosecutor during the State’s guilt phase closing argument. This Court specifically addressed these four statements in Appellant’s direct appeal when Appellant claimed they were improper and prejudicial, and the Court found no error of law in association with these statements. Again, finding no error of law, an extended opinion on these issues would have no precedential value.

Appellant also contends that the prosecutor made an improper emotional appeal to the jurors during the penalty phase closing argument when stating, “There have always been times in our society when citizens, patriots, from time to time have stepped up and done the things that need to be done to protect society.” Appellant claims that this statement improperly implied that the jurors would be shirking their duty as patriots if they did not deliver the death penalty. Trial counsel did not object, and allegedly improper comments made by the prosecutor not preserved for review by a timely objection are reviewed only for manifest injustice under the plain error rule.

The jury was statutorily required to objectively find the presence of at least one statutory aggravator beyond a reasonable doubt to impose the death sentence. Appellant provides no evidence that the jury was subjectively prejudiced by the prosecutor’s statement. The jury found the presence of two statutory aggravators beyond a reasonable doubt, and when this Court independently conducted its proportionality review during Appellant’s direct appeal, the Court concluded there was “no evidence to suggest that the punishment imposed was a product of passion, prejudice, or any other arbitrary factor.”

IV.

Appellant’s final three points all hinge upon the adequacy of defense counsel’s investigation and presentation of mitigating evidence during the penalty phase of his trial. Appellant alleges that counsel failed to present testimonial evidence regarding his favorable adjustment to incarceration, his religious upbringing, and his alleged mental or emotional disturbance at the time of the murder. Appellant claims that presentation of this evidence would have resulted in a life sentence as opposed to the death penalty.

When determining which mitigation theory to pursue during the penalty phase, Appellant’s trial counsel interviewed twenty-five individuals identified to her by Appellant and his family. She contacted the corrections officers where Appellant was being confined and investigated Appellant’s behavior while in jail. Two separate psychological experts, including one of Appellant’s choosing, evaluated Appellant’s mental condition. Ultimately trial counsel called ten witnesses during the penalty phase.

Appellant’s trial counsel was a seasoned, death-penalty litigation attorney, having tried nineteen capital murder cases. Counsel elected to pursue a strategy of presenting good character evidence, including Appellant’s work ethic, religious upbringing, and participation in church activities, as a way to humanize Appellant to the jury. At the 29.15 motion hearing counsel testified that her experience with presenting evidence on a defendant’s good behavior in jail was generally ineffective. Counsel’s presentation of good character evidence theory, however, essentially overlapped on his present good behavior status. Counsel is not ineffective for failing to put on cumulative evidence and “reasonable choices of trial strategy, no matter how ill fated they appear in hindsight, cannot serve as a basis for a claim of ineffective assistance.”

With regard to counsel choice of mental health experts, and the decision not to elicit testimony from other lay witnesses about Appellant’s alleged emotional distress, both experts who examined the Appellant concluded that he was not suffering from any mental disease or defect at the time of the crime. There was no evidence that Appellant was suffering from depression, paranoia or delusional beliefs. His thought processes were found to be logical and sequential and he was determined to be capable of knowing and appreciating the nature, quality and wrongfulness of his conduct. Defense counsel cannot be found ineffective for failing to shop for a more favorable expert witness. Moreover, to have elicited lay testimony as to any perceived emotional disturbance could have been viewed by the jury as being contradictory, not only in terms of the expert’s mental assessment of Appellant, but also in terms of counsel’s mitigation theory to humanize the Appellant with good character evidence.

Y.

The judgment is affirmed.

All concur.

      . State v. Cole, 71 S.W.3d 163 (Mo. banc 2002). All prison terms were consecutive.

      . Rule 29.15(k); Christeson v. State, 131 S.W.3d 796, 798-799 (Mo. banc 2004).

      . Christeson, 131 S.W.3d at 799.

      . Nicklasson v. State, 105 S.W.3d 482, 483-484 (Mo. banc 2003); Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

      . Id.

      . Nicklasson, 105 S.W.3d 482 at 484; Rule 29.15(i).

      . The prosecutor’s four statements were: (1) "I can't think of a case that could be more important to the people of St. Louis County;” (2) "She's a mom who worked for a health company doing clerical work and he's a convicted killer;" (3) that "people sitting in that chair (indicating Appellant's chair), ladies and gentlemen, are usually there for a reason;" and (4) "don't tell Terri Cole, a dying woman by your verdict that she is a liar;”

      . Cole, 71 S.W.3d at 170-171.

      . Rule 30.25.

      . Cole. 71 S.W.3d at 170: Rule 30.20.

      . Section 565.032. All statutory references are to RSMo 2000 unless otherwise indicated.

      . Section 565.032.2.

      . Cole, 71 S.W.3d at 176.

      . Christeson, 131 S.W.3d at 799; Winfield v. State, 93 S.W.3d 732, 740 (Mo. banc 2002).

      . Winfield, 93 S.W.3d 732 at 741.


author: MICHAEL A. WOLFF, Judge. RICHARD B. TEITELMAN, Judge,

text:
    Kevin Dale SEXTON, Appellant, v. JENKINS & ASSOCIATES, INC., Defendant, Steve Sloniker, et al., Respondents.
    No. SC 85803.
    Supreme Court of Missouri, En Banc.
    Dec. 7, 2004.
    Rehearing and Modification Denied Jan. 25, 2005.

      Christopher P. Sweeny, John E. Turner, Kansas City, Andrew J. Gelbach, Warrens-burg, for appellant.

      John R. Loss, John M. Brigg, Kansas City, for respondents.
   MICHAEL A. WOLFF, Judge.

Introduction

After Dale Sexton’s first lawsuit for on-the-job injuries failed for lack of subject matter jurisdiction, may he try again in a second suit?

Sexton’s first lawsuit for injuries against his employer was dismissed on the grounds that Sexton’s claim is for workers’ compensation that is within the exclusive jurisdiction of the Labor and Industrial Relations Commission. The court of appeals affirmed the dismissal. In this second lawsuit, Sexton pleaded new allegations intended to invoke the circuit court’s jurisdiction.

Although the dismissal of the first lawsuit was “without prejudice,” the first action adjudicated the issue of the circuit court’s subject matter jurisdiction. Sexton’s second civil action for damages is precluded by the first action. The dismissal “without prejudice” does allow Sexton to seek relief in a workers’ compensation proceeding.

The judgment is affirmed.

Procedural Background

Kevin Sexton was injured while working for a construction subcontractor. Sexton sued the contractor and three employees of the contractor in Henry County Circuit Court, alleging that their negligence in building and installing a handrail and guardrail around an open elevator shaft caused his injuries. The court dismissed Sexton’s action “without prejudice” for lack of subject matter jurisdiction, finding that Sexton’s petition failed to state the “something extra” necessary to bring his claim within the subject matter jurisdiction of the circuit courts. Sexton appealed. As previously noted, the Court of Appeals, Western District, affirmed the trial court’s judgment. Sexton v. Jenkins & Associates, Inc., 41 S.W.3d 1 (Mo.App.2000) (Sexton I).

Sexton sued the same defendants in Jackson County Circuit Court in a slightly amended petition. The defendants moved for summary judgment arguing that the judgment in Sexton I barred Sexton’s action based on the doctrine of issue preclusion. The Jackson County court overruled the motion. The defendants then moved for dismissal for lack of subject matter jurisdiction alleging that Sexton’s petition still failed to allege “something extra” beyond the duty to provide a safe working place so as to avoid the civil action immunity afforded by the workers’ compensation act to defendants. The court sustained the motion to dismiss.

Sexton appeals to this Court, asserting that the workers’ compensation act does not provide immunity for fellow employees, that he pleaded facts constituting the “something extra” required to remove the case from the exclusive jurisdiction of the Labor and Industrial Relations Commission, and that section 287.120 is unconstitutional. Because Sexton’s current appeal challenges the validity of a state statute, this Court has exclusive jurisdiction of the appeal. Mo. Const., art. V, sec. 3.

Collateral Estoppel — Issue Preclusion

The court-made doctrine of collateral estoppel — known by its modern term, issue preclusion — precludes relitigation of an issue previously decided and incorporated into an earlier judgment. The doctrine requires that the issue was fully and fairly litigated, that the issue was essential to the earlier judgment, and that the earlier judgment be final and binding on the party against whom it is asserted. King General Contractors, Inc. v. Reorganized Church of Jesus Christ of Latter Day Saints, 821 S.W.2d 495, 500 (Mo. banc 1991). That is precisely the situation in this case — the issue of subject matter jurisdiction was fully and fairly litigated in Sexton I.

Sexton I was dismissed without prejudice. The essential question, however is: without prejudice as to what?

Dismissal without prejudice usually is not an adjudication on the merits of the claim and does not affect the plaintiffs right to refile the action. Rule 67.01; Mahoney v. Doerhoff Surgical Services, 807 S.W.2d 503, 506 (Mo. banc 1991). In certain circumstances, however, a dismissal without prejudice may be considered a judgment on the merits of issues, such as jurisdiction, that are actually litigated and decided. Healy v. Atchison, Topeka & Santa Fe Railroad, 287 S.W.2d 813, 815 (Mo.1956).

Sexton I held that the Labor and Industrial Relations Commission had exclusive subject matter jurisdiction. Section 287.120.2. Subject matter jurisdiction is a tribunal’s statutory authority to hear a particular kind of claim.

The dismissal of Sexton I on grounds that the circuit court lacked subject matter jurisdiction was appealable. Generally, a dismissal without prejudice is not a final appealable judgment. However, “[w]hen the effect of the order is to dismiss the plaintiffs action and not the pleading merely, then the judgment entered is final and appealable.” Mahoney, 807 S.W.2d at 506. Sexton appealed the dismissal of Sexton I. The issue of subject matter jurisdiction was fully litigated, and the judgment bars asserting the same kind of jurisdiction over this claim in any other circuit court. Healy, 287 S.W.2d at 815.

When the Henry County court dismissed Sexton’s first action for lack of jurisdiction, Sexton chose to appeal the decision rather than to move to amend the petition. Sexton’s Jackson County petition, the second lawsuit, does not allege a new claim. He cannot circumvent the dismissal in the first case by altering his pleadings with the benefit of the appellate opinion. The Jackson County Circuit Court found that the new allegations did not change anything and that it was the same claim for relief that the Sexton I court found to be outside the subject matter jurisdiction of the circuit courts. This Court does not reach the issue — decided against Sexton by the Jackson County court — of whether Sexton’s second lawsuit pleaded “something extra” that supposedly would suffice to state a claim for damages. Nor do we reach Sexton’s challenge to the constitutionality of section 287.120. The doctrine of issue preclusion applied here makes it unnecessary to reach these issues.

In the federal system,, the principles of res judicata and collateral estop-pel — issue preclusion — apply to questions of jurisdiction as well as to other issues. Underwriters National Assurance Co. v. North Carolina Life & Accident & Health Insurance Guaranty Association, 455 U.S. 691, 706, 102 S.Ct. 1357, 71 L.Ed.2d 558 (1982). “Public policy dictates that there be an end of litigation; that those who have contested an issue shall be bound by the result of the contest; and that matters once tried shall be considered forever settled as between the parties.” Baldwin v. Iowa State Traveling Men’s Association, 283 U.S. 522, 525, 51 S.Ct. 517, 75 L.Ed. 1244 (1931). After Baldwin, the United States Supreme Court held that when the question of subject matter jurisdiction has been fully litigated in the original forum, the issue cannot be retried in a subsequent action' between the parties. Durfee v. Duke, 375 U.S. 106, 111, 84 S.Ct. 242, 11 L.Ed.2d 186 (1963).

Dismissal of Sexton’s claim for want of subject matter jurisdiction was “without prejudice” — but only as to Sexton’s right to proceed in the proper forum. Hayman v. Southern Pacific Co., 278 S.W.2d 749 (Mo.1955). Sexton is not barred from pursuing his claim in the proper forum — the Labor and Industrial Commission.

Conclusion

The judgment is affirmed.

WHITE, C.J., STITH, PRICE, and LIMBAUGH, JJ„ and JOYCE, Sp.J., concur.

TEITELMAN, J., concurs in separate opinion filed.

RUSSELL, J., not participating.

RICHARD B. TEITELMAN, Judge,

concurring.

I concur with the principal opinion that issue preclusion applies to bar Sexton’s second petition in the circuit court. I write separately to emphasize that Sexton’s allegations against his co-employees in the second petition would otherwise properly invoke the subject matter jurisdiction of the circuit court.

The workers compensation law provides employers with immunity from common law liability for breaches of the duty to maintain a safe workplace. State ex rel. Hartman v. Kintz, 832 S.W.2d 9, 10 (Mo.App.1992). This immunity extends to any employee charged with carrying out the employer’s duties. State ex rel. Badami v. Gaertner, 630 S.W.2d 175, 180 (Mo.App.1982). Thus, a co-employee’s failure to perform a duty delegated to him by his employer does not give rise to a cause of action by a fellow employee who is injured because of the failure. Id. at 179. However, an injured employee may sue a co-employee in the circuit court if he or she alleges that the fellow worker did “something extra” beyond the breach of the duty to maintain a safe workplace. Badami, 680 S.W.2d at 180. The “something extra” includes any affirmative negligent acts by a co-employee that are outside the scope of an employer’s responsibility to provide a safe workplace. State ex rel. Taylor v. Wallace, 73 S.W.3d 620, 621 (Mo. banc 2002).

The issue of what constitutes an “affirmative negligent act” or “something extra” is not susceptible to precise definition. Wallace, 73 S.W.3d at 622. Instead, the rule has been developed over the years on a case-by-case basis. Id. One general situation that satisfies the “something extra” test is where an employee alleges that he or she was directed to engage in dangerous conditions that a reasonable person would recognize as hazardous beyond the usual requirements of employment. Lyon v. McLaughlin, 960 S.W.2d 522, 525 (Mo.App.1998). Sexton’s allegations present such a situation and, therefore, satisfy the “something extra” test.

Sexton alleged that he was working on a construction project and was employed by a subcontractor of Jenkins & Associates, the main contractor on the project. Three Jenkins employees, Sloniker, Hurlburt and Lacy, removed a cover that was protecting an open elevator shaft. They then built and installed a guardrail around the elevator shaft. Sexton alleged that the Jenkins employees constructed the guardrail in violation of numerous OSHA standards. The guardrail was made with 1" x 4" boards instead of the required 2" x 4" boards. The wood was decayed. The small, decayed boards were nailed together the wrong way with nails that were too small to support a worker. Sexton alleged that shortly after the guardrail was completed, Sloniker, a supervisor, directed Sexton to commence work near the elevator shaft. Sloniker instructed Sexton to use the guardrail to lower himself into the elevator shaft and assured him that the rail was safe. Sexton followed Sloniker’s instructions. The guardrail failed. Sexton fell down the open elevator shaft and was seriously and permanently injured.

Sexton alleged that Sloniker directed him to work in dangerous conditions that a reasonable person would recognize as hazardous beyond the usual requirements of employment and that he was seriously injured as a result. Accordingly, Sexton’s second petition adequately alleged the “something extra” required to invoke circuit court jurisdiction.

      .The "new allegations” in the Jackson County petition are:
      1. Defendants knew or should have known that Sexton and others would be working around the shaft, handrail and guardrail and represented that it was safe.
      2. Defendants were on the job when Sexton arrived at the job site and at or near the time of the fall.
      3. Defendant Sloniker represented to appellant on the date of the accident that the guardrail was safe to use when they knew or should have known that it was not safe; and directed appellant to use the guardrail and Sexton relied on these statements.
      4. Defendant Sloniker directed and supervised the work of constructing the handrail and guardrail.
      5. Defendants breached their duty to Sexton by doing "something extra”.

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

      . Closely related is the doctrine of “res judica-ta," which means "a thing adjudicated.” The common-law doctrine of res judicata precludes relitigation of a claim formerly made. In modern terms the doctrine is known as claim preclusion. Chesterfield Village, Inc. v. City of Chesterfield, 64 S.W.3d 315, 318 (Mo. banc 2002). The doctrine precludes not only those issues on which the court in the former case was required to pronounce judgment, "but to every point properly belonging to the subject matter of litigation and which the parties, exercising reasonable diligence, might have brought forward at the time.” Id. The question in this case could also be analyzed as claim preclusion in that the former adjudication bars another claim in the circuit court. But it is more accurate to characterize the question as one of issue preclusion, precluding Sexton only on the issue of subject matter jurisdiction, since he is free to litigate his injury claim in the proper forum, the Labor and Industrial Relations Commission. Sometimes the term “res judicata " is used as the label for claim preclusion or issue preclusion.

      . At oral argument Sexton’s counsel indicated that a workers’ compensation claim for these injuries is pending against Sexton’s employer.