author: Justice FITZGERALD.

text:
    In re C-SPAN ENTERTAINMENT, INC. and Sunil Dharod, Relators. and In re Akin Gump Strauss Hauer & Feld, LLP., Edward J. Fields, Jr., and Spencer B. Young, Relators.
    Nos. 05-04-01450-CV, 05-04-01655-CV.
    Court of Appeals of Texas, Dallas.
    May 3, 2005.

      Paul Bezney, David Wilson Dodge, Dodge, Anderson, Jones, Bezney & Gill-man, Dallas, David C. Musslewhite, Fruit-vale, for relators, 05-04-01450-CV.
    Alan L. Busch, Robert Ruotolo, Gerald Singer & Levick, P.C., Addison, Maurice Ladale Brimmage, Todd B. Baker, Thomas E. Kurth, Haynes & Boone, L.L.P., Dallas, for real party in interest, 05-04-01450-CV.

      Alan L. Busch, Robert Ruotolo, Todd Alan Hoodenpyle, Gerald Singer & Levick, P.C., Addison, for relators, 05-04-01655-CV.
    Thomas E. Kurth, Haynes & Boone, L.L.P., Dallas, for real party in interest, 05-04-01655-CV.
    Maurice Ladale Brimmage, Todd B. Baker, Haynes and Boone, Paul A. Bez-ney, David Wilson Dodge, Dallas, David C. Musslewhite, Fruitvale, for real party in interest, 05-04-01655-CV.
    Before Justices WHITTINGTON, FITZGERALD, and LANG-MIERS.
   OPINION NUNC PRO TUNC

Opinion by

Justice FITZGERALD.

The Court’s opinion of March 15, 2005 is withdrawn 06-346887, on the Court’s own motion, and this is now the opinion of this Court. These companion proceedings involve a related pair of orders from the same cause below. Both orders address the viability of a waiver of a jury trial. Relators C-Span Entertainment, Inc. and Sunil Dharod (collectively “C-Span”) contend the trial court abused its discretion by granting the motion to quash C-Span’s request for a jury, filed by real party in interest Blockbuster, Inc. Relators Akin Gump Strauss Hauer & Feld, LLP,. Edward J. Fields, Jr., and Spencer B. Young (collectively “Akin Gump”), in turn, contend the trial court abused its discretion by denying Akin Gump’s motion to quash C-Span’s jury demand. Put simply, C-Span demanded a trial by jury below; separately, Blockbuster sought and Akin Gump conditionally sought to rely on a waiver of the right to trial by jury found in certain contracts between Blockbuster and C-Span. For the reasons that follow, we find no abuse of discretion in the trial court’s rulings, and we deny the writs.

Background

In 1999, Blockbuster and C-Span negotiated an agreement whereby C-Span would purchase the assets and operations of eleven of Blockbuster’s stores in East Texas. Akin Gump represented C-Span in these negotiations. The sale was memorialized by a contract entitled “Asset Sale Agreement,” signed by the parties on September 24, 1999. On September 27, 1999, the parties executed Blockbuster’s standard form franchise agreements for the eleven stores (the “Standard Franchise Agreements”). The Standard Franchise Agreements included the following language:

COMPANY AND FRANCHISEE AND EACH OWNER BY EXECUTION OF THIS AGREEMENT IRREVOCABLY WAIVE TRIAL BY JURY ON ANY ACTION, PROCEEDING OR COUNTERCLAIM, WHETHER AT LAW OR EQUITY, BROUGHT BY EITHER OF THEM. (Emphasis in originals.)

The Asset Sale Agreement did not contain a jury waiver. •

After the closing of the transaction, disputes arose concerning the accuracy of certain financial information disclosed to C-Span during the negotiations. On June 8, 2001, C-Span filed suit against Blockbuster, asserting both tort and contract claims. Eventually, C-Span joined Akin Gump in the same action, alleging malpractice in Akin Gump’s representation during negotiation of the Blockbuster deal. Blockbuster counterclaimed against C-Span, and Blockbuster and Akin Gump also lodged cross claims against each other. During the pendency of this litigation, the trial court has entered seven scheduling orders — a significant number of those created by agreement of Blockbuster and C-Span — that included a date for a jury trial setting. At the point in time that this proceeding arose, the parties were set for trial before a jury on October 25, 2004.

On September 3, 2004, the Texas Supreme Court issued its opinion in In re Prudential, 148 S.W.3d 124 (Tex.2004). And on September 22, 2004, Blockbuster moved to quash C-Span’s jury demand, relying upon the jury-trial waiver contained in the Standard Franchise Agreements and the Prudential opinion’s pronouncement that pre-litigation jury waivers would be enforced by the supreme court. See id. at 131-32. The trial court granted Blockbuster’s motion, over C-Span’s opposition, and ordered the case removed from the jury docket. C-Span sought mandamus relief in this Court.

In the meantime, Akin Gump filed its own motion seeking to quash C-Span’s jury demand as to its claims against Akin Gump. The motion was conditioned upon the result of Blockbuster’s motion, because Akin Gump’s stated goal was — and apparently continues to be — having all claims tried together in a single proceeding. However, the trial court denied Akin Gump’s motion. Thus, Akin Gump seeks mandamus relief in this Court as well.

STANDARD OF REVIEW

We review a petition for writ of mandamus under a clear abuse of discretion standard. See Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex.1992). A clear abuse of discretion occurs when the trial court errs in analyzing or applying the law to the facts or when the trial court has but one reasonable decision and does not make that decision. Id. at 840. Mandamus is appropriate only when the petitioner has no adequate remedy on appeal. See id. at 840. The issue of pre-suit waiver of trial by jury has been determined by our supreme court to “fit[ ] well within the types of issues for which mandamus review is not only appropriate but necessary.” Prudential, 148 S.W.3d at 138.

C-Span’s Right to Trial by Jury

C-Span’s petition identifies four issues for our consideration. One issue has been mooted by subsequent proceedings. We address C-Span’s remaining three issues in turn.

Waiver of Contractual Jury Waiver

In its first issue, C-Span argues the trial judge abused his discretion by con-eluding Blockbuster was entitled to enforce the contractual jury waiver after joining in C-Span’s request for a jury for more than two years. C-Span avers that Blockbuster’s right to enforce the contractual provision was waived both implicitly (by more than two years of delay) and expressly (by entering into the series of jury-trial settings by agreement).

C-Span’s implicit waiver argument relies heavily upon the case of Rivercenter Associates v. Rivera, 858 S.W.2d 366 (Tex.1993). In that case, Rivercenter waited four months before moving to quash a jury demand that conflicted with the parties’ agreement to waive a jury trial in any dispute arising under their lease. The trial court denied the motion. Id. at 367. Finding in the record “no apparent reason” for Rivercenter’s delay in pursuing the issue, the supreme court denied mandamus relief. Id.

Rivercenter is clearly distinguishable from the case at bar. Initially, C-Span’s case arrives in this Court in precisely the opposite procedural posture of Rivercenter. The trial court in Rivercen-ter had found waiver, and an appellate court would need to find a clear abuse of discretion to reverse that finding on petition for mandamus. In C-Span’s case, the trial court found no waiver, and we would likewise need to find a clear abuse of discretion to reverse that finding. Indeed, to reverse the trial court here, we would need to conclude that Blockbuster waived its right to enforce its contractual jury waiver as a matter of law. The facts of this case do not yield the kind of certainty necessary for such a conclusion. The trial court did not have only one possible decision in this case; we will not second guess the decision it made. See Walker, 827 S.W.2d at 840.

Moreover, the evolving nature of the law controlling this case does not allow us to find a waiver as a matter of law. Before the supreme court issued its opinion in Prudential, this Court had refused to enforce pre-litigation jury waivers. See In re Prudential Ins. Co. of America, No. 05-02-01104-CV, 2002 WL 1608233 (Tex.App.-Dallas July 22, 2002) (not designated for publication). The supreme court specifically stated that the issue was one of first impression for that court. See id. at *8. We cannot say it was unreasonable for Blockbuster not to urge a motion to quash until the supreme court resolved the issue in a different fashion from this Court’s resolution. If it was not unreasonable for Blockbuster to wait, then it was not unreasonable for the trial court to reject C-Span’s argument of waiver based on Blockbuster’s waiting. We find no clear abuse of discretion in the trial court’s decision to reject C-Span’s waiver argument.

Relationship Between Agreements

In its second issue, C-Span argues that the trial court abused its discretion by concluding the jury waiver provisions found in the Standard Franchise Agreements apply to claims arising under the Asset Sale Agreement. According to C-Span, the Asset Sale Agreement and the Standard Franchise Agreements are separate documents, governing different transactions, and they are incapable of integration. Moreover, according to C-Span, Blockbuster’s claims arise solely out of the Asset Sale Agreement, making reference to the Standard Franchise Agreements inappropriate in any event. We disagree with both arguments.

The Asset Sale Agreement does contain an integration clause. However, beginning with the integration clause itself, the Asset Sale Agreement clearly contemplates and participates in the Standard Franchise Agreements. The integration clause states in relevant part:

12.3 Entire Agreement. This Agreement, including the exhibits and schedules, contains the entire agreement of the parties hereto.... Any reference herein to this Agreement shall be deemed to include the schedules and exhibits.

Schedule 1.1.2 to the Asset Sale Agreement — made a part of the agreement by the above-quoted language — is titled “List of Franchise Documents,” and the list includes “Standard Franchise Agreement for each of the Stores, together with all additional documents required thereunder ...” Arguably, this schedule would suffice to bring the Standard Franchise Agreements — and their jury waivers — within the Asset Sale Agreement. But if there were any doubt of the relationship between the agreements, the Asset Sale Agreement’s recitals include the following statement:

The Stores will be operated by the Purchaser pursuant to the terms of certain franchise agreements and area development agreements identified on Schedule 1.1.2 (collectively, the “Franchise Documents”) to be entered between the Seller and the Purchaser as of Closing Date.

And then the Asset Sale Agreement concludes with this series of promises:

12.18 Transfer of Franchise Documents. The Purchaser, the Seller and the Shareholder agree that the Franchise Documents shall be assigned to the Purchaser and the Purchaser shall assume the Shareholder’s obligations under the Franchise Documents (the “Transfers”). The Shareholder agrees that within ten (10) business days after the Closing Date, the Shareholder shall effect the Transfers, and the parties hereto agree that prior to or concurrently with the Transfers the parties shall execute and deliver, or cause to be executed and delivered, all documents requires by the Franchise Documents (the “New Agreements”). The Seller hereby waives its right of first refusal, if any, with respect to and hereby consents to the Transfers, subject to the execution and delivery of the New Agreements.

Accordingly, the final act of the parties to the Asset Sale Agreement was to assure that the Standard Franchise Agreements were executed and delivered.

We conclude the Asset Sale Agreement and Standard Franchise Agreements were part of the same transaction and, therefore, must be construed together. See Prudential, 148 S.W.3d at 135. We further conclude that the Asset Sale Agreement incorporated the jury waiver in the Standard Franchise Agreements. See id. Accordingly, we find no clear abuse of discretion in the trial court’s application of that jury waiver to claims arising under the Asset Sale Agreement.

Ambiguity

C-Span’s third issue argues the jury waiver provisions of the Standard Franchise Agreements are rendered ambiguous by application to claims under the Asset Sale Agreement and that this ambiguity precludes a finding of knowing waiver by C-Span. Again, we disagree on the basis of the same facts and law governing C-Span’s second issue. The Asset Sale Agreement and the Standard Franchise Agreements were made part of the same transaction through the unambiguous language of the parties’ agreements. C-Span identifies no rational basis for a finding of ambiguity in those agreements. We find no clear abuse of discretion in the trial court’s refusal to make such a finding.

In sum, we conclude C-Span’s issues are without merit.

Akin Gump’s Right to Rely Upon The Contracting PaRties’ JURY Waiver

In its own mandamus proceeding, Akin Gump identifies two issues. It argues that the trial court abused its discretion in forcing Akin Gump to jury trial while removing the C-Span-Blockbuster trial from the jury docket. According to Akin Gump, it should be permitted to rely upon C-Span’s waiver of a jury for contractual and equitable reasons. Again, we disagree.

Benefit of Contractual Jury Waiver

Akin Gump’s reliance on C-Span’s contractual jury waiver is rooted in Akin Gump’s relationship to C-Span. Akin Gump, of course, was C-Span’s attorney— and hence C-Span’s agent — during the process of putting together and consummating the deal between C-Span and Blockbuster. With this premise, Akin Gump relies upon a series of arbitration cases, particularly McMillan v. Computer Translation Systems & Support, Inc., 66 S.W.3d 477 (Tex.App.-Dallas 2001) (orig.proceeding), wherein an agent was bound by the same agreement to arbitrate that bound the agent’s principal. However, the agency relationship that requires enforcement of agreements to arbitrate in these cases is distinguishable from the one before this Court. In the arbitration cases, the reason to hold the agent to the principal’s agreement is that the agent acted on behalf of the principal in the very conduct at issue in the case. If the principal would be required to arbitrate disputes arising out of that conduct, so should the agent. See id. at 481 (agents’ allegedly wrongful acts related to behavior as agents and those acts were within scope of claims covered by arbitration provision for which principal would be liable). However, in this case, the claim of Akin Gump’s liability is premised on entirely different conduct than is its principal’s potential liability. Indeed, rather than liability based upon agency principles — an agent acting on behalf of his principal based on authority to do so — the relevant liability here is that of the agent to its principal for allegedly violating its duties as agent. Stated differently, C-Span’s claims against Blockbuster and its claims against Akin Gump are separate and distinct. This is not a case of vicarious liability. Akin Gump’s one-time status as agent to C-Span will not allow it to avail itself of C-Span’s jury waiver that was given not as to Akin Gump, but as to Blockbuster.

We find no clear abuse of discretion in the trial court’s rejection of Akin Gump’s argument that agency principles support its reliance upon C-Span’s jury waiver in this case.

Equitable Benefit of Jury Waiver

Finally, Akin Gump argues that it should be allowed the benefit of C-Span’s jury waiver on equitable principles. Akin Gump argues that the trial court has “set the stage for the inevitable consequence of inconsistent results at trial” if it is forced to defend itself before a jury and the C-Span claims proceed before the trial court. Specifically, Akin Gump professes concern that its defenses will “certainly” be subject to inconsistent resolution if both a jury and the trial court must assess proportions of responsibility as among the three parties to the case. Again, we review this issue for a clear abuse of discretion. Matters of equity are committed to the trial court’s discretion. Tolpo v. Decordova, 146 S.W.3d 678, 684 (Tex.App.-Beaumont 2004, no pet.) (citing Burrow v. Arce, 997 S.W.2d 229, 246 (Tex.1999)); see also Penick v. Penick, 783 S.W.2d 194, 198 (Tex.1988) (acknowledging “great latitude” to be given trial court in applying equitable principles). Likewise, a trial court has the inherent power to control the disposition of cases on its docket, and the discretion vested in the trial court over the conduct of a trial is great. Dow Chemical Co. v. Francis, 46 S.W.3d 237, 240 (Tex.2001). Nothing in the record before us demonstrates that the trial court abused its discretion by denying AMn-Gump’s equitable arguments or by determining that different procedures could fairly apply in the trial court to the Blockbuster/C-Span claims and the Blockbuster/Akin Gump claims.

We decide both of Akin Gump’s issues against it.

Conclusion

We find no clear abuse of discretion in either proceeding. Accordingly, we deny both writs.

      . Akin Gump has taken the position before this Court that the fundamental remedy it seeks is the ability to participate in a single trial with the other parties. Accordingly, it seeks to try its portion of the case before the court if Blockbuster is permitted to do so; it seeks to try its case before a jury if Blockbuster is so required.

      . The several-day difference in dates marks the weekend’s interruption of the closing process.

      . We have before us neither a complete record of the parties' pleading history, nor a complete record of dispositive motions filed in this case. Accordingly, none of our conclusions regarding waiver of the right to a jury trial are intended to endorse, foreclose, modify, or otherwise comment upon the nature of the claims that remain to be tried below.

      . C-Span's fourth issue relates to Akin Gump, but was formulated at a time when Akin Gump’s motion to quash the jury demand was still pending in the trial court. That motion has now been ruled upon; indeed the trial court's ruling is the subject of the companion mandamus proceeding addressed herein, and C-Span has addressed the trial court’s ruling as to Akin Gump in that companion proceeding. Accordingly, this issue, which attempted to preserve the right to a jury trial against Akin Gump, is now moot.

      . Because the documents were part of the same transaction, it is not surprising that Blockbuster might look to the Standard Franchise Agreements to determine the extent of its damages, if any, for its claims of breach of the Asset Sale Agreement.


source: Caselaw Access Project

author: ANNE GARDNER, Justice.

license: Public Domain

text:
    In re Gregory MANN.
    No. 2-05-103-CV.
    Court of Appeals of Texas, Fort Worth.
    May 5, 2005.

      Beth A. Poulos, Arlington, for Gregory Mann.
    Gayle R. Temple, Arlington, for Dawn Mann.
    PANEL B: LIVINGSTON, GARDNER, and WALKER, JJ.
   OPINION

ANNE GARDNER, Justice.

I. Introduction

Relator, Gregory Mann, seeks a writ of habeas corpus. The 325th District Court of Tarrant County held Gregory in contempt for failing to pay child support and sentenced him to 180 days in jail as a punitive measure. In two issues, Gregory contends that the motion for contempt failed to provide the notice required by the Texas Family Code, and that the trial court’s contempt judgment is void for lack of specificity. We will sustain Gregory’s first issue and grant his writ of habeas corpus.

II. Procedural background

Real Party in Interest, Dawn Mann, sued Gregory for divorce. The trial court signed interim orders requiring Gregory to pay child support. There are two such orders involved in this case. The trial court signed “Additional Interim Temporary Orders” on September 17, 2004. In those orders, the court ordered Gregory to pay $326.16 per month in child support retroactive to June 1, 2004 (the date of the hearing on the temporary orders). On January 20, 2005, the trial court signed “Temporary Orders” that reduced Gregory’s child support obligation to $160.00 per month. Again, the order was retroactive to the date of the hearing, September 17, 2004.

On February 11, 2005, Dawn filed her “Amended Motion for Enforcement and Order to Appear.” With regard to child support, the motion alleged the following:

On September 17, 2004, in Cause No. 325-367157-04, styled “In the Matter of the Marriage of Dawn Mann and Gregory Mann and in the Interest of Dorothy Claire Mann,” in the 325th Judicial District Court of Tarrant County, the Court signed an order that appears in the minutes of the Court at volume —, page -, and states in relevant part as follows: IT IS ORDERED that Gregory Mann pay to Dawn Mann for the support of Dorothy Claire Mann $326.16 per month, with the first payment being due and payable on June 1, 2004 and a like payment being due and payable on the 1st day of each month thereafter until further order of this court.

The motion contained a chart listing the date each child support payment was due, how much Gregory paid, and when he paid it. The chart correctly shows that $326.16 was due each month from June through September 2004, and that $160 was due each month in October and December 2004 through February 2005. The chart omits November without explanation. But nowhere does the motion refer to the January 20, 2005 temporary orders.

The trial court’s associate judge held a hearing on Dawn’s motion on February 17, 2005. Gregory appeared in person and through his attorney. He waived his Fifth Amendment right against self-incrimination and testified. Gregory admitted that he had made only one $250 support payment as of the date of the hearing.

The trial court announced its decision on the record and held Gregory in contempt for failing to make the February 1, 2005 support payment. The court found that the other missed payments were not contemptible “[bjecause of all the bankruptcies that were filed and the delays in us being able to sign any orders.”

On February 17, the trial court signed a fill-in-the-blank contempt judgment. The court specifically found that Gregory was ordered on January 20, 2005 to make child support payments, and that he was able to make but failed to make the $160 payment due on February 1, 2005. The court ordered Gregory confined to the Tarrant County Jail for 180 days. The court’s judgment states that “[t]he Court SPECIFICALLY intends this commitment to be punitive (and coercive) in nature” and ordered Gregory to serve the full term of the sentence.

The trial court signed a type-written amended contempt judgment on February 18. The amended judgment essentially reiterates the findings in the original judgment. The pertinent part provides as follows:

The Court FURTHER FINDS that on January 20, 2005, Respondent, Gregory Mann, was ordered to make periodic payments for the support of [his daughter].
The Court FURTHER FINDS specifically that Respondent failed to pay and was able to pay a periodic child support payment on February 1, 2005.
The Court SPECIFICALLY intends this commitment to be punitive in nature. Accordingly, the Court FINDS Respondent should remain in jail until Respondent serves the full jail term of 180 calendar days in the Tarrant County Jail.

Gregory was taken into custody on February 17, 2005. He filed his petition for writ of habeas corpus on March 16, 2005. We granted temporary relief on March 18 and requested a response from Dawn.

III. Discussion

In his first issue, Gregory argues that the trial court’s contempt judgment is void because it holds him in contempt for violating an order other than the one identified in the motion to enforce. Dawn responds that Gregory waived his complaint because he failed to raise it in the trial court.

An original habeas corpus proceeding is a collateral attack on the contempt judgment. In re Bielefeld, 143 S.W.3d 924, 927 (Tex.App.-Fort Worth 2004, orig. proceeding) (op. on reh’g). We review a petition for writ of habeas corpus to determine if the order of commitment is void, either because it was beyond the power of the court to enter or because the contemnor was not afforded due process. Id. Guilt or innocence of the relator is not an issue; the only issue concerns the lawfulness of the relator’s imprisonment. Id.

Among the due process rights accorded an alleged contemnor is the right to reasonable notice of each alleged contumacious act. Ex parte Barlow, 899 S.W.2d 791, 797 (Tex.App.-Houston [14th Dist.] 1995, orig. proceeding). Texas courts have been very strict in requiring that proper notice be given before a person may be held in contempt for actions done outside the presence of the court. Ex parte Eureste, 614 S.W.2d 647, 648 (Tex.Civ.App.-Austin 1981, orig. proceeding). When proper notice is not given, then the contempt order is invalid. Id.

Section 157.002 of the Family Code sets out the notice requirements for a motion to enforce a child support order:

(a) A motion for enforcement must, in ordinary and concise language:
(1) identify the provision of the order allegedly violated and sought to be enforced; ...
(b) A motion for enforcement of child support:
(1) must include the amount owed as provided in the order, the amount paid, and the amount of arrearages;
(2) if contempt is requested, must include the portion of the order allegedly violated and, for each date of alleged contempt, the amount due and the amount paid, if any;....

Tex. Fam.Code Ann. § 157.002 (Vernon 2002)(emphasis added).

In this case, Dawn’s amended motion to enforce “included the portion” of the first child support order allegedly violated, but not the second child support order. As such, the motion did not comply with the mandatory notice requirements of § 157.002(b)(2) with regard to violations of the second child support order.

One might argue that the motion’s chart of missed payments was enough to put Gregory on notice that Dawn sought enforcement and contempt for the second order; after all, the chart lists the $160 payments Gregory faded to make under the second order. But section 157.002(b)(2) requires such a list of missed payments and inclusion of the “portion of the order allegedly violated.” Id. Under a strict analysis — even under a loose analysis — the motion to enforce failed to meet the statutory notice requirements.

The trial court specifically held Gregory in contempt for violating the second child support order. Gregory did not receive statutory notice of alleged violations of the second order. Gregory was deprived of his due process right and the trial court’s order is void.

The facts in Ex parte Thompson are similar to those in our case. 803 S.W.2d 876 (Tex.App.-Corpus Christi 1991, orig. proceeding). In Thompson, the trial court ordered relator to pay $200 per month in child support. Id. The trial court later increased that obligation to $350 per month. Id. When relator failed to make payments, his wife filed a motion to enforce and hold relator in contempt. Id. She specifically alleged that relator failed to comply with the second, $350 per month order. Id. The wife then filed an amended motion to enforce, this time alleging that relator violated the original, $200 per month order. Id. The trial court conducted a healing on the amended motion and held relator in contempt for failing to make support payments under the second, $350 per month order. Id. at 877. Relator filed a petition for habeas corpus. Id. The court of appeals held that the trial court’s contempt judgment was void because it held relator in contempt for violating the second order, but the wife’s amended motion alleged violation of the first order. Id. A correct motion would have alleged both violation of the original order and the modified order. Id.

Likewise, a correct motion in this case would have alleged violations of both the first and second child support orders. A correct motion would have included the relevant portions of both child support orders, not just the original order. Had Dawn filed a correct motion, the trial court’s judgment would not be void.

Dawn argues that Gregory waived any complaint about her motion to enforce by failing to specially except to the motion in the trial court. We disagree.

Dawn cites as authority for her waiver argument family code section 157.064 and rules of civil procedure 90 and 91. Section 157.064 of the Family Code allows but does not require a respondent to specially except to a motion for enforcement:

(a) If a respondent specially excepts to the motion for enforcement or moves to strike, the court shall rule on the exception or the motion to strike before it hears the motion for enforcement.
(b) If an exception is sustained, the court shall give the movant an opportunity to replead and continue the hearing to a designated date and time without the requirement of additional service.

Tex. Fam.Code Ann. § 157.064 (Vernon 2002). Rule 90, on the other hand, provides in part that “[e]very defect ... in a pleading ... which is not specifically pointed out by exception ... in the trial court ... shall be deemed to have been waived.” Tex.R. Civ. P. 90. Rule 91 requires that special exceptions point out with particularity the defect in the pleading excepted to. Tex.R. Civ. P. 91.

Dawn cites no cases relevant to her argument, but we have found several. Foremost among these is Ex parte Barlow, in which the Houston (fourteenth) court specifically rejected a waiver argument identical to Dawn’s. Barlow, 899 S.W.2d at 796-98. The Barlow court noted that “[t]his argument has no place in an original proceeding. Terms such as ‘waiver’ and ‘preservation’ apply to appeals,” not original proceedings. Id. at 796.

Further, the Texas Family Code does not require “special exceptions” or other objections as a predicate for a complaint about inadequate notice; rather it requires that a specific type of notice be given in enforcement and contempt motions. While section [157.064] does state that an alleged contemnor may file “special exceptions” to a motion to enforce, it does not require it, unlike [Tex.R. Civ. P.] 90 which does require an objection to preserve pleadings defects for appeal. The Texas Legislature purposefully placed precatory language in section [157.064]; if it had desired to make that section mandatory, it could have easily done so.

Id. at 797.

We agree with Barlow. We hold that a relator need not specially except to a defective motion to enforce to complain of lack of notice in a subsequent petition for writ of habeas corpus.

The Barlow court was sharply critical of three other casés that reached the opposite conclusion. Id. at 796. One of those cases was Ex parte Stephens, 734 S.W.2d 761 (Tex.App.-Fort Worth 1987, orig. proceeding). We acknowledge that language in Stephens is contrary to the result we reach today. See id. at 762-63. But that language was dicta; the Stephens court granted a writ of habeas corpus on other grounds. Id. at 764. Therefore, we are not bound by Stephens with regard to the question of waiver, nor must we overrule Stephens to reach the conclusion we reach today. See Edwards v. Kaye, 9 S.W.3d 310, 314 (Tex.App.-Houston [14 Dist.] 1999, pet. denied) (“Dictum is not binding as precedent under stare decisis.”).

We sustain Gregory’s first issue. Because our ruling on his first issue is dispos-itive of his petition, we need not consider his second issue. See Tex.R.App. P. 47.1. We grant Gregory’s petition for writ of habeas corpus and order him released from bond and discharged from custody.


text:
    Bruce J. BLISS, Jr., Appellant, v. NRG INDUSTRIES d/b/a National Duct Systems, Inc., Appellee.
    No. 05-03-01817-CV.
    Court of Appeals of Texas, Dallas.
    May 6, 2005.

      Bruce J. Bliss, Jr., Cotulla, pro se.
    Peter R. Thompson, Attorney and Counselor at Law, Kent D. Williamson, The Silva Firm, Dallas, for Appellee.
    Before Justices WRIGHT, FITZGERALD, and LANG-MIERS.
   OPINION

Opinion by

Justice FITZGERALD.

Appellant Bruce J. Bliss, Jr. was hired by Keystone Personnel, Group (“Keystone”) and assigned to work on a temporary basis for NRG Industries d/b/a National Duct Systems, Inc. (“NDS”). While working on NDS’s premises, Bliss sustained a hand injury. Bliss applied for and received workers’ compensation benefits for the injury. Then he sued Keystone and NDS alleging negligence. The trial court granted summary judgment in favor of NDS based on the exclusive-remedy doctrine of the Texas Labor Code. The court severed Bliss’s claim against NDS to make the summary judgment order final. Bliss appeals. For the reasons discussed below, we affirm the trial court’s order.

Background

NDS’s summary judgment motion argued that Keystone and NDS were joint employers of Bliss because both companies exercised control over aspects of Bliss’s employment. The motion was based on an affidavit by Jack Steele, Director of Manufacturing for NDS. Steele testified that— in return for a fee paid to Keystone by NDS — -Keystone oversaw Bliss’s paychecks, human resource functions, insurance, and fringe benefits. Meanwhile, NDS directed “the time, place, and specific method of services which Mr. Bliss would perform on [NDS’s] property.” Because they were joint employers, NDS argued, both it and Keystone could avail themselves of the exclusive-remedy provision of the Texas Labor Code. See Tex. Lab.Code Ann. § 408.001(a) (Vernon 1996). Bliss did not file a response to the summary judgment motion. The trial court pronounced that NDS “is protected from suit by the applicability of the exclusive remedy doctrine of the Texas Labor Code,” and it granted the motion. Bliss appeals.

The Exclusive-Remedy Defense

Bliss’s first point of error argues the summary judgment evidence is insufficient to support the trial court’s order. Bliss argues there is a material fact question as to whether NDS was his employer, and thus the trial court erroneously.granted summary judgment to NDS based on the exclusive-remedy provision of the Act. We review summary judgments under well-established standards. The party moving for summary judgment carries the burden of establishing that no material fact issue exists and that it is entitled to judgment as a matter of law. See Tex.R. Civ. P. 166a(e). The nonmovant has no burden to respond to a summary judgment motion; summary judgments must stand on their own merits. M.D. Anderson Hosp. and Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex.2000). Accordingly, even if the nonmovant did not respond to the motion, he can still contend on appeal that the movant’s summary judgment proof is insufficient as a matter of law to support summary judgment. Id.

Two recent supreme court cases are instructive. In Wingfoot Enterprises v. Alvarado, 111 S.W.3d 134 (Tex.2003), the court addressed the fundamental question: who is the employer of a temporary employee for workers’ compensation purposes? The court concluded that both the provider of temporary employees and its client company could fit the definition of “employer” in the labor code. Thus, a temporary employee may well have more than one employer for purposes of workers’ compensation issues. The Wingfoot Enterprises court concluded:

An employee injured while working under the direct supervision of a client company is conducting the business of both the general employer and that employer’s client. The employee should be able to pursue workers’ compensation benefits from either. If either has elected not to provide coverage, but still qualifies as an “employer” under the Act, then that employer should be subject to common law liability without the benefit of the defenses enumerated in section 406.033.

Id. at 143. In Garza v. Exel Logistics, Inc., 48 Tex. Sup.Ct. J. 544, 2005 WL 783433 (Tex. Apr. 8, 2005), the court stated that we are to determine whether the worker is an employee of the client company as well as the temporary-employee provider, by applying “traditional indicia, such as the exercise of actual control over the details of the work that gave rise to the injury.” 48 Tex. Sup.Ct. J. at 547, 2005 WL 783433 at *3. In Garza, undisputed evidence established that when Mr. Garza was injured, he was working on the client’s premises, in the furtherance of the client’s day-to-day business, and under the specific direction of the client in terms of the details of his work. Id. The court concluded that, for workers’ compensation purposes, Mr. Garza was an employee of the client when he was injured. Id.

We apply the same “traditional indicia” in this case. The summary judgment evidence included the following undisputed testimony:

[NDS] temporarily obtained control over Mr. Bliss’s job duties, in that [NDS] would direct the time, place, and specific method of services which Mr. Bliss would perform on [NDS’s] property.

Likewise it is undisputed that Bliss was injured on NDS’s property while he was working. We conclude that NDS exercised actual control over the details of Bliss’s work that gave rise to the injury. Accordingly, we conclude Bliss was NDS’s employee for purposes of workers’ compensation and that injury. See id. We overrule Bliss’s first point of error.

Right to TRIAL by JURY

Bliss’s second point of error complains that he was denied his constitutional right to trial by jury. The right to a jury trial in civil cases is not absolute. See, e.g., Green v. W.E. Grace Mfg. Co., 422 S.W.2d 723, 725 (Tex.1968); Martin v. Commercial Metals Co., 138 S.W.3d 619, 626 (Tex.App.-Dallas 2004, no pet.). The summary judgment process provides a method of terminating a case when only questions of law are involved and there are no genuine issues of fact. See Lattrell v. Chrysler Corp., 79 S.W.3d 141, 150 (Tex.App.-Texarkana 2002, pet. denied). The process will not deprive litigants of a jury trial where material questions of fact exist. However, if there is nothing to submit to a jury, then the grant of summary judgment cannot violate a party’s constitutional right to a jury trial. See id.; see also Martin, 138 S.W.3d at 627. We have already concluded that there was no genuine issue of material fact concerning NDS’s status as Bliss’s employer. Accordingly, we decide this point against Bliss as well.

Ineffective Assistance of Counsel

In his third point of error, Bliss argues his counsel in the tidal court rendered ineffective assistance. In his brief, Bliss cites only to criminal cases concerning rules for ineffective assistance of counsel. But there is no corresponding constitutional right to counsel — let alone effective counsel — in civil proceedings. Knie v. Piskun, 23 S.W.3d 455, 461 (Tex.App.-Amarillo 2000, pet. denied) (citing Travelers Indem. Co. of Conn. v. Mayfield, 923 S.W.2d 590, 594 (Tex.1996)). Bliss cites us to no authority providing him such a right in this proceeding, and our research has not located any. The civil cases Bliss cites deal with an attorney’s obligations to his client. Those obligations are properly dealt with under malpractice or breach of contract theories in a suit between the attorney and the client. We overrule Bliss’s third point of error.

Due PROCESS Rights

In his fourth point of error, Bliss argues his federal and state due-process rights were violated because, as an inmate, he was unable to obtain a free copy of the statement of facts and clerk’s record for two trial court proceedings or to borrow the record of those proceedings. Bliss argues that this inability to obtain the record effectively closed this Court to him in violation of the State’s open-courts guarantee. Because the record indicates Bliss has received the requested record, we reject this point of error.

Bliss points to two specific trial court settings for which he requested, but was denied, access to the record: the trial court hearings of June 30, 2003 and December 1, 2003. On June 30, 2003, the trial court heard NDS’s motion for summary judgment. It is apparent from the record before us that Bliss possesses a copy of the motion for summary judgment and supporting affidavit, which appear to be the only relevant clerk’s documents for this proceeding. As to a record of the hearing itself, we assume that no court reporter recorded the hearing: our supreme court has directed that such a recording would be “neither necessary nor appropriate to the purposes of such a hearing.” City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 677 (Tex.1979). The record before us does not contain such a recording.

The December 1, 2003 hearing addressed NDS’s motion to sever. Bliss attended the December 1 hearing telephoni-cally, and the transcript indicates Bliss possessed a copy of the motion to sever. Moreover, our record indicates Bliss was in fact given a free copy of the eight-page transcript of the hearing on that motion by order of this Court. Indeed, Bliss has filed a supplemental brief based on that record.

Bliss has received the portions of the record that he complains of under this point of error. We reject his claim of due process violations, and we overrule his fourth point of error.

Conclusion

We have decided all of Bliss’s points error against him. Accordingly, we affirm the trial court’s order granting summary judgment in this case.

      . The statute specifically provides:
      Recovery of workers’ compensation benefits is the exclusive remedy of an employee covered by workers’ compensation insurance coverage or a legal beneficiary against the employer or an agent or employee of the employer for the death of or a work-related injury sustained by the employee.

        Id.

        . Bliss, who represents himself in this Court pro se, incorrectly characterizes his complaint as one of “factual insufficiency.” We address the point because it clearly challenges whether the summary judgment evidence is sufficient to support the trial court’s finding that Bliss’s claim against NDS is barred by the exclusive-remedy provision of the labor code.

      .For a question involving workers’ compensation coverage, an "employer” is defined simply as "a person who employs one or more employees.” Tex. Lab.Code § 406.001. An "employee,” in turn, is defined as "each person in the service of another under a contract of hire, whether express or implied, or oral or written.” Id. § 401.012(a).


author: Justice LANG-MIERS.

text:
    In the Interest of E.A.C. and C.L.C., Minor Children.
    No. 05-03-00554-CV.
    Court of Appeals of Texas, Dallas.
    May 11, 2005.

      Brad M. Lamorgese, Cooper & Scully, P.C., Dallas, for Appellant.
    Georganna L. Simpson, Law Office of Georganna L. Simpson, Susan Vrana, Moore, Vrana & Padgitt, Dallas, for Appellant.
    Before Justices WRIGHT, FITZGERALD, LANG-MIERS.
   OPINION

Opinion by

Justice LANG-MIERS.

This is a limited appeal pursuant to rule 34.6(c)(1) in which appellant Lorrie Lou McDonald complains of the child support order entered against her in favor of ap-pellee Glenn Coterill. See Tex.R.App. P. 34.6(c)(1). We modify the judgment and, as modified, affirm.

Background

McDonald and Coterill were married in 1981. Coterill filed a petition for divorce in 1999 in which he asked to be appointed joint managing conservator and primary possessory conservator of their three minor children. Coterill also asked for temporary child support from McDonald. The trial court appointed a guardian ad litem to represent the children’s interests but did not order McDonald to pay temporary child support.

In May 2001, the trial court heard evidence in the divorce action and granted the divorce. The divorce decree awarded McDonald, among other things, a promissory note in the principal amount of $658,000 plus interest payable monthly by Coterill to McDonald as payment for her community interest in the marital estate. At the guardian ad litem’s request, the trial court severed the issues in the suit affecting the parent child relationship (the SAPCR) and delayed the hearing on those issues.

In June 2001, the trial court heard evidence in the SAPCR, but the order was not signed until January 16, 2003. In the SAPCR order, the trial court appointed Coterill sole managing conservator of C.I.C. and appointed Coterill and McDonald joint managing conservators of E.A.C. The trial court also found that McDonald owed Coterill $6,119.16 in “child support arrearage” through January 1, 2002 plus interest accruing at six percent from February 2, 2002 for a total of $6,471.09 as of the date of the order. Additionally, the trial court awarded the guardian ad litem $1,200 against McDonald but' ordered Coterill to pay that amount on McDonald’s behalf. The trial court then ordered an offset of both the child support award and the guardian ad litem fees against the principal amount Coterill owed to McDonald by the terms of the promissory note.

McDonald timely requested findings of fact and conclusions of law. She also filed a motion for new trial in which she objected to the court’s order of offset of the guardian ad litem fees against the promissory note. The trial court denied McDonald’s motion for new trial and McDonald appealed. Fourteen days after McDonald filed her notice of appeal, the trial court issued its findings of fact and conclusions of law.

Pursuant to rule 34.6(c)(1), McDonald requested a partial reporter’s record and included a statement of issues to be presented on appeal. See Tex.R.App. P. 34.6(c)(1). Rule 34.6(c) limits the parties to these issues. Id.

McDonald argues (1) the trial court erred in ordering McDonald to pay child support arrearage where no order existed obligating her to pay child support, and (2) the trial court erred in ordering the child support arrearage owed by McDonald to be deemed paid from the promissory note awarded McDonald in the divorce decree because the offset is an impermissible modification of the divorce decree.

In an appeal under rule 34.6(c), we must presume the partial reporter’s record designated by the parties constitutes the entire record for purposes of reviewing these issues and that the omitted portions of the record are irrelevant. See R. 34.6(c)(4); see also $4,310 In United States Currency v. State, 133 S.W.3d 828, 829 (Tex.App.Dallas 2004, no pet. h.). This is true even if a point raises the factual or legal insufficiency of the evidence to support a specific finding identified in the issues. Tex.R.App. P. 34.6(c)(4); Bennett v. Cochran, 96 S.W.3d 227, 228 (Tex.2002).

We review a trial court’s determination of child support under an abuse of discretion standard. Wilemon v. Wilemon, 930 S.W.2d 290, 293 (Tex.App.-Waco 1996, no writ); see also Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990). A trial court abuses its discretion when it acts in an arbitrary and unreasonable manner, or when it acts without reference to any guiding principles. See Beaumont Bank, N.A. v. Butter, 806 S.W.2d 223, 226 (Tex.1991); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985); Doyle v. Doyle, 955 S.W.2d 478, 479 (Tex.App.Austin 1997, no pet.). Under an abuse of discretion standard, legal and factual insufficiency issues are not independent grounds of error but are relevant factors in assessing whether the trial court abused its discretion. Doyle, 955 S.W.2d at 479; Wilemon, 930 S.W.2d at 293-94. If there is some evidence of a substantive and probative character to support the decision of the trial court, no abuse of discretion occurs. Wilemon, 930 S.W.2d at 294.

ARREARAGE OR LUMP SüM CHILD Support Award?

In her first issue, McDonald argues the court abused its discretion in finding that she owed a “child support arrearage” in the SAPCR order because the court had never signed an order obligating her to pay child support. The SAPCR order stated:

“The Court finds that Lome Lou McDonald owes $6,119.16 in child suppoH arrearage to Glenn A. Coterill through January 1, 2002. IT IS ORDERED that the arrearage shall bear interest beginning February 1, 2002 at 6%. The court finds the arrearage and interest owed as of the date of the entry of this order is $6,471.09 and that Glenn A. Coterill may set off said amount against this arrearage and interest amount against the principal owed on one Promissory Note dated September 13, 2001 in the original principal amount of $658,000.00 owed by him to Lorrie Lou McDonald.... IT IS THEREFORE ORDERED AND DECREED that the amount of $6,471.09 is hereby paid by Glenn A. Coterill against the principal of the Promissory Note dated September 13, 2001 in the original principal amount of $658,000.00....”

(emphasis added).

Coterill responds that a trial court’s findings of fact control over its judgment and that the findings of fact in this case awarded lump sum child support, not an arrearage, citing civil procedure rule 299a. See Tex.R. Civ. P. 299a.

Rule 299a provides that “[flindings of fact shall not be recited in a judgment. If there is a conflict between findings of fact recited in a judgment in violation of this rule and findings of fact made pursuant to Rules 297 and 298, the latter findings will control for appellate purposes.” Id.; see Guridi v. Waller, 98 S.W.3d 315, 317 (Tex.App.-Houston [1st Dist.] 2003, no pet.) (findings of fact control over recitations of facts in judgment); Zorilla v. Wahid, 83 S.W.3d 247, 254 (Tex.App.-Corpus Christi 2002, no pet.) (same); Frommer v. Frommer, 981 S.W.2d 811, 814 (Tex.App.-Houston [1st Dist.] 1998, pet. dism’d) (same); Hill v. Hill, 971 S.W.2d 153, 156 (Tex.App.-Amarillo 1998, no pet.) (findings in judgment should be given effect if they don’t conflict with separately-filed findings). •

Finding of fact number six states:

6. At the request of Mother’s attorney during the pendency of the divorce and for judicial economy and efficiency, the Court abated hearings requested by Father for child support from Mother until final trial on the merits. The Court finds Mother should pay Father lump sum child support for the children in the possession of the father during the pendéncy of the divorce and pendency of the SAPCR in the amount of $6119.16 with interest at 6% beginning February 1, 2002.

(emphasis added).

We initially address McDonald’s argument that rule 299a does not apply in this case. First, she argues the family code requires the court to recite facts in the judgment and rule 299a does not apply. We disagree. The legislature made it clear in enacting the family code that, unless expressly provided otherwise, suits affecting the parent-child relationship are to be governed by the same rules of procedure as those generally applied in other civil cases. See McLeod v. McLeod, 723 S.W.2d 777, 779 (Tex.App.-Dallas 1987, no writ); see Tex. Fam.Code Ann. §§ 105.003, 109.002 (Vernon 2002).

McDonald cites sections 157.166 and 157.263 of the family code as requiring certain fact findings in a child support arrearage judgment. See Tex. Fam.Code Ann. §§ 157.166, 157.263 (Vernon 2002). But these sections refer to an order entered pursuant to a Chapter 157 motion to enforce a final order of child support. See generally Tex. Fam.Code Ann. Ch. 157 (Vernon 2002 & Supp.2004-05). Because this case is an original SAPCR proceeding, not a motion to enforce a child support order under Chapter 157, we conclude these sections do not apply. But even if they did, nothing in the language of these sections states that we should disregard rule 299a when findings of fact have been requested pursuant to rule 296. Accordingly, we reject McDonald’s argument that the family code prevents rule 299a from applying to this case.

McDonald next argues that rule 299a does not apply because the judgment recites an “ultimate fact” necessary to make a legal declaration of the rights of the parties and not a finding of fact stated in a judgment in violation of the rule, citing Pacific Employers Insurance Company v. Brown, 86 S.W.3d 353 (Tex.App.-Texarkana 2002, no pet.). Brown was a workers’ compensation case in which the judgment recited a seventeen percent impairment rating but the separately-filed findings of fact recited a thirteen percent impairment rating. Id. In Brown, the court held that the seventeen percent in the judgment was an “ultimate fact” that was necessary to make a legal declaration of the rights of the parties and was not a finding of fact. Id. at 356-57. As a result, the court held that it was not a finding of fact in a judgment in violation of rule 299a and rule 299a did not apply. Id.

While we express no opinion on Brown’s “ultimate fact” analysis, we conclude, unlike the court in Brown, that we are presented with an issue rule 299a resolves. McDonald requested findings of fact pursuant to rule 296 and the trial court issued those findings. When a conflict exists between findings of fact recited in a judgment and findings of fact made pursuant to rule 296, rule 299a mandates that the latter findings control for appellate purposes. Tex.R. Crv. P. 299a. We reject McDonald’s argument that the finding of an “arrearage” was an ultimate fact required to be in the judgment and that rule 299a does not apply.

Next, we turn to McDonald’s argument that because the trial court’s findings of fact and conclusions of law were filed untimely, “it is unclear whether the findings are effective for any purpose.” We disagree.

McDonald requested findings of fact and conclusions of law on January 21, 2003. When the trial court did not file its findings and conclusions by February 10, 2003, McDonald filed a notice of past due findings of fact and conclusions of law on February 17, 2003, making the findings and conclusions due March 3, 2003. The court issued its findings on May 1, 2003.

When a trial court files belated findings, the only issue that arises is whether the appellant was harmed, not whether the trial court had jurisdiction to make the findings. Morrison v. Morrison, 713 S.W.2d 377, 380-81 (Tex.App.-Dallas 1986, writ dism’d); Robles v. Robles, 965 S.W.2d 605, 610 (Tex.App.-Houston [1st Dist.] 1998, pet. denied). This harm may be in two forms: (1) the litigant is unable to request additional findings, or (2) the litigant was prevented from properly presenting his appeal. See Morrison, 713 S.W.2d at 381; Robles, 965 S.W.2d at 610.

McDonald did not file objections to the findings or request additional findings of fact and conclusions of law. See Tex.R. Civ. P. 298 (any party may request additional or amended findings of fact and conclusions of law within ten days after the filing of the original findings and conclusions). Neither party asked this Court to abate the appeal to allow the trial court to make additional findings or conclusions, which the trial court is permitted to do even after it loses its plenary power. See Robles, 965 S.W.2d at 611; Morrison, 713 S.W.2d at 380-81. Additionally, the findings and conclusions were included in the record on appeal before McDonald’s brief was due, and she does not complain that she was prevented from properly presenting her appeal. We conclude McDonald has not shown harm from the trial court’s belated filing of its findings of fact and conclusions of law.

McDonald contends that applying rule 299a to the facts here allows Coterill to impermissibly “recast” the child support from an arrearage to a lump sum for the first time after the trial court’s plenary power expired, citing this Court’s opinion in McLeod as controlling. We disagree.

In McLeod, the issue was not whether the trial court’s findings of fact conflicted with findings in its judgment, but whether we could consider extrinsic evidence in construing the term “arrearage” in the judgment and, using that extrinsic evidence, interpret “arrearage” as actually an order for retroactive child support. Id. at 779-80. Finding the judgment was not ambiguous, we concluded we could not consider extrinsic evidence. Id. Here, the trial court’s findings, not extrinsic evidence, characterize the payment as a lump sum payment.

McDonald also argues the evidence is insufficient to support the trial court’s finding of fact number six “that she owed child support arrearage to Coterill” because there is no evidence “that the court ever set a child support obligation in a written order.” But finding of fact number six does not state that McDonald owed an arrearage; it states she owed lump sum child support. And McDonald does not challenge the sufficiency of the evidence to support the court’s finding that she owed lump sum child support.

We conclude the trial court’s finding of a lump sum child support award in its separately-filed findings of fact following a timely request under rule 296 controls over its finding of an arrearage in the SAPCR order. For these reasons, we modify the trial court’s order to reflect a lump sum child support award rather than an arrearage. Tex.R.App. P. 43.2(b); Zorilla, 83 S.W.3d at 254 (court modified child support awarded in divorce decree because it conflicted with the trial court’s findings of fact and conclusions of law).

We overrule McDonald’s first issue.

Impermissible Offset?

In her second issue, McDonald complains that the SAPCR order which offsets the amounts due McDonald under the promissory note against the child support she owes under the SAPCR order constitutes an impermissible collateral attack on the final order dividing the marital estate in the divorce case.

To preserve a complaint for appeal, the record must show that the complaint was made to the trial court by a timely request, objection or motion and that the trial court ruled on the request, objection or motion either expressly or implicitly or that the trial court refused to rule and the party objected to the court’s refusal. Tex.R.App. P. 33.1(a). The complaint raised on appeal must be the same as the complaint presented to the trial court. See Commonwealth Lloyd’s Ins. Co. v. Thomas, 825 S.W.2d 135, 147 (Tex.App.-Dallas 1992, writ ref'd n.r.e.); see also Hooten v. Dunbar, 347 S.W.2d 775, 777-78 (Tex.Civ.App.-Beaumont 1961, writ ref'd n.r.e.). A party may not enlarge a ground of error on appeal to include an objection not asserted at trial. Thomas, 825 S.W.2d at 147; see Pfeffer v. S. Tex. Laborers’ Pension Trust Fund, 679 S.W.2d 691, 693 (Tex.App.-Houston [1st Dist.] 1984, writ ref'd n.r.e.).

In her motion for new trial, McDonald objected to the provision in the SAPOR order authorizing an offset of the guardian ad litem fees against the promissory note. But she did not object to the offset of the child support award against the promissory note. We have examined the record and found nothing to show that McDonald presented this issue to the trial court. Having failed to preserve this issue for review, we overrule McDonald’s second issue.

Conclusion

We conclude the trial court’s findings of fact and conclusions of law control over the factual findings in its judgment and modify the trial court’s SAPCR order as follows:

The Court finds that Lorrie Lou McDonald owes $6,119.16 in lump sum child support to Glenn A. Coterill through January 1, 2002. IT IS ORDERED that the lump sum child support shall bear interest beginning February 1, 2002 at 6%. The court finds the lump sum child support and interest owed as of the date of the entry of this order is $6,471.09 and that Glenn A. Coterill may set off said amount against this lump sum child support and interest amount against the principal owed on one Promissory Note dated September 13, 2001 in the original principal amount of $658,000.00 owed by him to Lorrie Lou McDonald. IT IS THEREFORE ORDERED AND DECREED that the amount of $6,471.09 is hereby paid by Glenn A. Coterill against the principal of the Promissory Note dated September 13, 2001 in the original principal amount of $658,000.00. IT IS ORDERED that the escrow agent, Frederick S. Adams, is hereby given notice of the payment.

See Tex.R.App. P. 43.2(b). As modified, we affirm the trial court’s order.

      . One child turned age 18 before final judgment.

      . McDonald raises only the first two issues on appeal and stated she is not pursuing the third issue.

      . Neither party was ordered to pay monthly child support because each parent has custody of one child. McDonald complains only of the child support awarded Coterill for support during the pendency of this action because it was characterized as arrearage.

      . Any party may request findings of fact and conclusions of law within twenty days after the judgment is signed. Tex.R. Civ. P. 296. In this case, the judgment was signed January 16, 2003.

      . If the trial court does not file its findings of fact and conclusions of law within twenty days after a timely request, the requesting party shall file a "Notice of Past Due Findings of Fact and Conclusions of Law” within thirty days after filing the original request. Tex.R. Civ. P. 297. The trial court then has forty days from the date the original request was filed to file its findings of fact and conclusions of law. Id.

      . The clerk’s record was filed May 15, 2003 and included the trial court’s findings of fact and conclusions of law. The reporter’s record was filed June 12, 2003. McDonald filed her brief July 14, 2003.

      . Some confusion exists whether the court’s order of severance of the SAPCR issues from the divorce issues was actually a severance or merely an order for separate trials. We do not decide this issue because it does not affect the disposition of this case.


author: TERRY McCALL, Justice.

text:
    STATE of Texas, Appellant, v. Teaundra Lasha OAGES, Appellee.
    No. 11-04-00183-CR.
    Court of Appeals of Texas, Eastland.
    May 12, 2005.
    Rehearing Overruled June 2, 2005.

      James Eidson, District Attorney, Patricia Dyer, Assistant Criminal Dist. Atty’s Office, Abilene, for appellant.
    Stan Brown, Abilene, for appellee.
    Panel consists of: ARNOT, C.J., and WRIGHT, J., and McCALL, J.
   OPINION

TERRY McCALL, Justice.

Teaundra Lasha Oages, appellee, was charged by information with possession of less than two ounces of marihuana. The trial court granted appellee’s motion to suppress evidence. Because we hold that, under Article I, section 9 of the Texas Constitution, the officer made a valid search of appellee’s vehicle incident to her arrest, we reverse and remand.

Background Facts

The facts are not disputed. Officer Mike Baird of the Abilene Police Department stopped appellee for a traffic violation. Appellee ■ told Officer Baird that there was an outstanding warrant for her arrest related to some bad checks but that she had paid the checks. Officer Baird confirmed that there was an outstanding warrant for her arrest. He then arrested appellee, placed her in his patrol vehicle, and searched the passenger compartment of appellee’s car. Officer Baird found a small bag of marihuana in the center console.

At the motion to suppress hearing, counsel for appellee acknowledged that Officer Baird’s search incident to arrest would be valid under the Fourth Amendment of the United States Constitution. New York v. Belton, 458 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981). But counsel argued that the search was invalid under Article 1, section 9 of the Texas Constitution. The trial court granted appellee’s motion to suppress.

Standard of Review

In reviewing a trial court’s ruling on a motion to suppress, appellate courts must give great deference to the trial court’s findings of historical facts as long as the record supports the findings. Guzman v. State, 955 S.W.2d 85 (Tex.Cr.App.1997). Because the trial court is the exclusive fact finder, the appellate court reviews evidence adduced at the suppression hearing in the light most favorable to the trial court’s ruling. Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Cr.App.2000). We also give deference to the trial court’s rulings on mixed questions of law and fact when those rulings turn on an evaluation of credibility and demeanor. Guzman v. State, supra. Where such rulings do not turn on an evaluation of credibility and demeanor, we review the trial court’s actions de novo. Guzman v. State, supra; Davila v. State, 4 S.W.3d 844, 847-48 (Tex.App.-Eastland 1999, no pet’n). This case involved only the application of the law to the facts; hence, our review is de novo.

The Search Incident To Arrest Was Valid

At the suppression hearing, appel-lee relied solely on an argument based on the Texas Constitution. At the beginning of the hearing below, counsel for appellee stated:

[O]ur amended Motion to Suppress does not in any way rely upon the United States Constitution or the Fourth Amendment.

Appellee did not contest the validity of her arrest at the hearing. Appellee made the same argument to the trial court below that Justice Brennan made in his dissent in New York v. Belton, supra. Counsel contended that, under the circumstances, appellee could not have gained possession of a weapon or destroyed evidence:

[The officer] had a right to pat her down, to search her person, as he said, incident to arrest. Nobody is arguing about that; but the marihuana in the console was not out in the open. It was not where you would expect ... anyone to see it, and at the time [the officer] began the search of the vehicle she had already been placed under arrest, handcuffed in the back and sitting in the back seat of the patrol car. There was no danger ... to the officer.

Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), held that one exception to the Fourth Amendment’s warrant requirement for searches is that an officer may search the area within the immediate control of a person arrested. Where the person arrested was the occupant of a vehicle, however, police had difficulty in determining whether the passenger compartment was actually within that person’s reach. To establish a “workable rule,” the Supreme Court in New York v. Belton, supra, held that, “when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” New York v. Belton, supra at 460, 101 S.Ct. 2860. This bright-line rule has been consistently recognized and applied in Texas. State v. Gray, 158 S.W.3d 465 (Tex.Cr.App.2005); State v. Ballard, 987 S.W.2d 889 (Tex.Cr.App.1999); Williams v. State, 726 S.W.2d 99 (Tex.Cr.App.1986).

In Williams v. State, supra, the trial court had found the defendant guilty of unlawfully carrying a handgun. On appeal, the defendant argued that his arrest had been unlawful under the Fourth Amendment and under Article 1, section 9. The defendant had stepped out of his truck and was standing by the open door when the officer noticed a brown paper bag on the floorboard on the driver’s side. Looking inside the bag, the officer found a handgun. He then arrested the defendant.

Upholding the trial court’s denial of the defendant’s motion to suppress, the court in Williams found that the officer had probable cause to arrest the defendant because he had parked on the wrong side of the street. The court then relied on New York v. Belton, supra, to find that the officer’s search incident to arrest was valid. Judge Teague’s dissenting argument that the Texas Constitution should afford greater protection, at least where the arrest was for a minor traffic violation, was rejected by the majority opinion. See Williams v. State, supra at 105-07.

Appellee is correct in stating that Heitman v. State, 815 S.W.2d 681 (Tex.Cr.App.1991), held that Texas courts may find that defendants have greater rights under the Texas Constitution than they have under the Supreme Court’s interpretation of the United States Constitution. We are mindful, however, of the court’s admonition in Johnson v. State, 912 S.W.2d 227, 233 (Tex.Cr.App.1995), that, although Texas courts can hold that defendants have greater rights under the Texas. Constitution, this does not mean that Texas courts should do so. In Johnson, the court interpreted the issue of when a “seizure” has occurred under Article I, section 9 the same as the Supreme Court did in California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991).

Our reading of Gray, Ballard, and Williams persuades us that, where there is a search incident to the arrest of an occupant of a vehicle, Texas follows the bright-line rule of New York v. Belton, supra, in interpreting Article I, section 9 of the Texas Constitution, even though the Court of Criminal Appeals has not expressly so stated. The objective approach of Belton “makes more sense” than the alternatives, and it is more reasonable in terms of application. See Crittenden v. State, 899 S.W.2d 668, 673 (Tex.Cr.App.1995). The search incident to arrest here was not subject to more stringent restrictions under the Texas Constitution than under the Fourth Amendment. See Ashton v. State, 931 S.W.2d 5, 8 (Tex.App.Houston [1st Dist.] 1996, pet’n ref'd)(holding that Article I, section 9 did not preclude an officer’s search of the defendant’s purse; it was a valid search incident to arrest).

We sustain the State’s sole issue on appeal.

This Court’s Ruling

We reverse the decision of the trial court and remand the case for further proceedings.

      . The Williams court found that it did not matter that the search incident to the arrest preceded the formal custodial arrest by a few moments, citing Rawlings v. Kentucky, 448 U.S. 98, 100, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980).


text:
    In the Matter of C.G.
    No. 05-04-00541-CV.
    Court of Appeals of Texas, Dallas.
    May 13, 2005.

      Dean M. Swanda, Arlington, TX, for Appellant.
    Lori L. Ordiway, Assistant District Attorney for Dallas County, Chief of the Appellate Division, Dallas, TX, for Appel-lee.
    Cheryl D. Holder, Asst. Dist. Atty., Dallas, for state.
    Before Justices WRIGHT, FITZGERALD, and LANG-MIERS.
   OPINION

Opinion by

Justice FITZGERALD.

C.G., a juvenile, appeals the trial court’s disposition of his adjudication as a juvenile involved in delinquent conduct. That disposition resulted in C.G.’s assignment to the Texas Youth Commission (“TYC”)— rather than probation or assignment to less restrictive facilities — and a restitution order in the amount of $600. C.G. identifies eight issues on appeal: each challenges the sufficiency of some evidence underlying this disposition. We affirm the trial court’s disposition.

Background

Appellant pleaded true to • aggravated robbery in the adjudication portion of this proceeding. He was sixteen years old at the time of the hearing. The trial court accepted his plea and found appellant to be a child engaged in delinquent conduct and subject to a determinate sentence. The parties put on evidence concerning the appropriate disposition.

The State’s Evidence

The State initially offered exhibits, including predisposition reports, appellant’s psychological assessment, and a victim service addendum. This evidence was admitted without objection.

Thomas King, appellant’s probation officer, testified for the State. He testified that the juvenile department recommended appellant be committed to the care, custody, and control of the TYC. King cited the aggravated nature of the offense as one reason for the recommendation. He also cited appellant’s use of a handgun, his involvement with “negative peers,” his “minimal” involvement with marijuana, his poor academic record, and his violation of the school dress code. King testified that appellant admitted carrying a weapon and threatening another person before the incident made the basis of this charge. King stated appellant had a history of fighting and reported that appellant’s father had been “referred to the criminal justice system as well.” He testified that restitution was indicated to the victim in the amount of $600. He stated that he believed this recommendation was in the public’s interest and appellant’s best interest at this time.

On cross examination, King testified that appellant had only begun associating with these “negative peers” recently, that all his drug tests had been negative since his arrest, and that his father’s referral to the criminal justice system had taken place in 1983. King testified he was recommending rehabilitation, specifically work on positive decision-making skills and individual counseling. He admitted that both of these services could be performed while appellant was on probation. They could also be performed in less restrictive placements. Appellant had been accepted at two such placements, and King said he did not know of any needs of appellant that could not be met in those placements or at home.

Appellant’s Evidence

Appellant’s father (“Father”) testified that appellant shares his ministry to feed and share faith with the homeless; that shared ministry will continue if appellant received probation. Father further testified his son had been employed for two to three months at the time of the hearing. Father promised that if appellant were given probation, his parents would supervise him closely. If he could not return home, then Father sought other, less restrictive placement for appellant. Father testified appellant had not been a discipline problem and admitted that — because appellant had not been a difficult child— Father may have “let loose the reigns [sic] a little bit too much.” On cross-examination, Father testified he had given appellant permission to go to the mall and to a friend’s house the night the robbery took place. He knew the robbery took place at eleven o’clock at night; he did not know the accomplice. Nor did Father know how his son could have gotten a gun, but he had heard of guns in the school, so he thought perhaps the gun had come from the same people supplying those other guns.

Appellant’s mother (“Mother”) also testified on her son’s behalf. Mother agreed with her husband’s testimony. She asked the court to give appellant probation and stated she and Father could supervise appellant at home. She also testified appellant had not been a problem for her.

Appellant’s high school soccer coach testified that appellant was in his class. Appellant was not truant; he was well-behaved. The coach said he wanted to help keep appellant “out of the system”; he believed appellant was a good kid who had just slid off the right path.

Finally, appellant testified. He stated that he had learned his lesson after a month in confinement. He identified the individual who gave him the gun. He testified he now understands the consequences of his actions. Appellant said he participated in the robbery because he “thought it would just be easy.” He said he did think about the victim inside the store: he emptied the gun before he went in so no one could be hurt. He apologized to the victim, who was in the courtroom. Appellant testified he hopes to graduate, take classes at a community college, and work in his father’s ministry to help other kids not make the same mistake he made. He promised to abide by any terms and conditions that would be attached to probation. He asked, if he could not receive probation, for placement other than with TYC.

On cross-examination, appellant stated he did not know what he was going to do with the money from the robbery. He denied telling police he was going to use it to buy jerseys and shoes at the mall. He admitted the victim did not know the gun was unloaded. He opined that probation would be a punishment. He stated he had learned his lesson.

Appellant offered a series of exhibits, that included letters from his pastor and other adults who were members of his church and friends of his family. The exhibits also included a written daily plan, drawn up by Father, that provided for close supervision of appellant by his parents.

Disposition and Appeal

At the close of evidence, the trial court ordered appellant to be committed to TYC for eight years and to perform restitution to the robbery victim in the amount of $600. This appeal followed.

Commitment of Juvenile to TYC

If the trial court commits a child to the TYC, then its order must include three specific determinations:

(A) it is in the child’s best interests to be placed outside the child’s home;
(B) reasonable efforts were made to prevent or eliminate the need for the child’s removal from the home and to make it possible for the child to return to the child’s home; and
(C) the child, in the child’s home, cannot be provided the quality of care and level of support and supervision that the child needs to meet the conditions of probation.

Tex. Fam.Code Ann. § 54.04(f)(1) (Vernon Supp.2004-05). The trial court’s order in this case did include each of these three findings. However, appellant alleges, in his first six issues, that the evidence is both legally and factually insufficient to support each of these three necessary findings by the trial court. A juvenile judge has broad discretion to determine the proper disposition of a child who has been adjudicated as engaging in delinquent behavior. In re K.J.N., 103 S.W.3d 465, 465-66 (Tex.App.-San Antonio 2003, no pet.); J.R.W. v. State, 879 S.W.2d 254, 257 (Tex.App.-Dallas 1994, no writ). Absent an abuse of discretion, we will not disturb the findings of the juvenile court. In the Matter of K.L.G., 972 S.W.2d 203, 206 (Tex.App.-Beaumont 1998, no pet.). Under an abuse of discretion standard, legal and factual insufficiency are relevant factors in assessing whether the trial court abused its discretion. Doyle v. Doyle, 955 S.W.2d 478, 481 (Tex.App.-Austin 1997, no writ). In our legal sufficiency review, we consider only the evidence and inferences tending to support the findings, and we set aside the judgment only if there is no evidence of probative force to support the findings. In re J.D.P., 85 S.W.3d 420, 426 (Tex.App.-Fort Worth 2002, no pet.). In our factual sufficiency review, we consider and weigh all the evidence and set aside the judgment only if the finding is so against the great weight and preponderance of the evidence as to be manifestly unjust. Id.

Best Interest of the Child to be Placed Outside Home

The trial court found that it would be in C.G.’s best interests to be placed outside his home. See Tex. Fam.Code § 54.04(f)(1)(A). We look first to the evidence supporting that finding. The predisposition report identified appellant not just as a participant in an armed robbery, but as the actor who brandished the gun, pointed it at the complainant, and threatened the complainant in a continuing fashion. Appellant’s probation officer recommended placement outside the home based in part on this aggravated nature of appellant’s admitted offense. The officer also cited appellant’s involvement with negative peers, his involvement — albeit “minimal”— with marijuana, his poor academic record, and his violation of the school dress code. Significantly, the probation officer also testified to appellant’s history of fighting and to at least one earlier incident that included carrying a weapon and threatening someone. All of these conditions arose while appellant lived at home, and Father and Mother were apparently unaware of most, if not all, of .the problems. The trial judge heard the parents testify. She could well have concluded that the parents — despite their good intentions — underestimated appellant’s problems. She could also have concluded that appellant’s parents could not provide the highly structured and supervised setting C.G. required, according to both psychological assessment and probation officer. There was certainly some evidence of probative force to support a finding that appellant’s best interest would be placement outside his home. See J.D.P., 85 S.W.3d at 426. Even when we view all the evidence offered on behalf of appellant, we cannot say that the finding is so against the great weight and preponderance of the evidence as to be manifestly unjust. See id.

Reasonable Efforts to Keep Child in Home and Allow His Return to Home

Appellant also challenges the trial court’s finding that “reasonable efforts were made to prevent or eliminate the need for the child’s removal from the home and to make it possible for the child to return to the child’s home.” See Tex. Fam. Code § 54.04(i)(l)(B). Appellant’s probation officer prepared the updated February 4, 2004 predisposition report that was admitted into evidence as State’s Exhibit 1. That report stated, inter alia, that a pre-trial hearing had been held and that “[a]ll reasonable efforts were considered with the respondent.” While those efforts are not catalogued in the report, we find no contrary evidence in the record. Accordingly, we conclude the evidence is legally and factually sufficient to support the trial court’s finding. See J.D.P., 85 S.W.3d at 426.

Inadequate Care, Support, and Supervision to Help Child Meet Conditions of Probation

Finally, appellant argues the evidence is insufficient to support the trial court’s finding that “the child, in the child’s home, cannot be provided the quality of care and level of support and supervision that the child needs to meet the conditions of probation.” Tex. Fam.Code § 54.04(i)(l)(C). We look again at all the evidence of the problems experienced by appellant while living at home, and we conclude there was some evidence to establish that his home circumstances were inadequate to help appellant meet the conditions of probation. See J.D.P., 85 S.W.3d at 426. Appellant’s parents did testify to their willingness to create more structure for appellant’s days and to monitor his conduct more closely. We have no basis for doubting the parents’ sincerity concerning their desire to help their son. Appellant himself testified that he had learned his lesson and that he could live at home and comply with the conditions of probation. However, the trial judge was in the best position to determine appellant’s sincerity and credibility and to determine whether he was likely to successfully follow through with the conditions of probation if he lived at home. When we look at all the evidence neutrally, we cannot say that it is factually insufficient to support the trial court’s finding. See id.

We have concluded that adequate evidence supports each of the three required findings of the trial court. We decide appellant’s first through sixth issues against him.

Restitution

Appellant’s final two issues challenge the legal and factual sufficiency of the evidence underlying the trial court’s $600 restitution order. The initial police report of the incident, entered into evidence at the hearing, stated between $250 and 300 was taken in the robbery. A later Victim Service Report, also admitted into evidence, stated the complainant lost $600. Appellant argues there was no reason for court to have chosen $600 over the smaller amount. The State responds that the larger figure simply represents the complainant’s re-calculation of his loss. The trial court could well have determined that the later-developed figure was based on reasoned calculation rather than a quick estimate immediately after the crime. The court’s decision had at least as strong a basis in the evidence as the figure appellant prefers. We conclude the evidence is legally and factually sufficient to support the trial court’s restitution order. See id. We overrule appellant’s seventh and eighth issues.

Conclusion

We have decided each of appellant’s issues against him. We find no abuse of discretion in the trial court’s disposition. Accordingly, we affirm the judgment of the trial court.

      . There was evidence appellant had tried marijuana one time, well before his arrest.


author: BILL VANCE, Justice.

text:
    In re Ronald David LUDWIG.
    No. 10-05-00219-CR.
    Court of Appeals of Texas, Waco.
    May 25, 2005.
    Ronald David Ludwig, Kenedy, pro se.
    Gene Knize, Ellis County Dist. Atty., Waxahachie, for appellee/respondent.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   OPINION

BILL VANCE, Justice.

Relator Ronald David Ludwig, an indigent inmate, seeks a writ of mandamus ordering respondent to appoint an attorney to represent him in his motion for DNA testing under Article 64.01(c) of the Texas Code of Criminal Procedure. We will deny the petition.

Mandamus relief may be granted if the relator can demonstrate that (1) the act sought to be compelled is purely ministerial and (2) the relator has no other adequate legal remedy. Neveu v. Culver, 105 S.W.3d 641, 642 (Tex.Crim.App.2003). In Neveu, the Court of Criminal Appeals held that appointment of counsel under the 2001 version of article 64.01(c) was mandatory. Id. The 2001 version of 64.01(c) required the convicting court to appoint counsel if the court determined that the convicted person is indigent. See Act of Apr. 3, 2001, 77th Leg., R.S., ch. 2, § 2, 2001 Tex. Gen. Laws 2, 2-3 (amended 2003) (current version at Tex.Code Crim. Proc. Ann. art. 64.01 (Vernon Supp.2004-05)). Thus the Court of Criminal Appeals concluded that appointment of counsel under 64.01(c) was a purely ministerial act. Neveu, 105 S.W.3d at 642.

However, article 64.01(c) was amended in 2003. As amended, the convicting court is required to appoint counsel only if it determines that the convicted person is indigent and finds reasonable grounds for a motion to be filed. Tex.Code Ckim. Proc. ANN. art. 64.01(c) (Vernon Supp.2004-05). Thus, even if the convicting court determines that a convicted person is indigent, the court would not be required to appoint counsel if it found there were no reasonable grounds for the motion to be filed — a finding we would review for an abuse of discretion. Cf. Wallace v. State, 106 S.W.3d 103, 108 (Tex.Crim.App.2003) (appellate court reviews for abuse of discretion a trial court’s finding concerning reasonable grounds in determining whether to grant a hearing on motion for new trial). Under the amended statute, appointment of counsel is no longer a purely ministerial act. Ludwig thus has not satisfied the first requirement for mandamus relief.

Accordingly, Ludwig’s petition for writ of mandamus is denied.

      . See Act of Apr. 25, 2003, 78th Leg., R.S., ch. 13, §§ 8, 9, 2003 Tex. Gen. Laws 16, 17 (establishing effective date for amendments to art. 64.01 as Sept. 1, 2003).


author: /s/ Joseph E. Lambert Chief Justice

text:
    Charles E. KING, Movant, v. KENTUCKY BAR ASSOCIATION, Respondent.
    No. 2005-SC-0246-KB.
    Supreme Court of Kentucky.
    May 19, 2005.
   OPINION AND ORDER

Movant, Charles E. King, whose bar roster address is P.O. Box 249, Pine Knot, Kentucky 42635-0249, moves this Court to enter an order pursuant to SCR 3.480(3) permanently disbarring him from the practice of law in the Commonwealth of Kentucky. The Kentucky Bar Association (KBA) does not object to the motion for permanent disbarment. We grant the motion.

On January 12, 2005, King pled guilty in the McCreary Circuit Court to one hundred and thirty-two felony counts of theft by failure to make required disposition of property valued over $300 in violation of KRS 514.070. While acting as Master Commissioner for McCreary Circuit Court, King misappropriated the proceeds from numerous separate sales by transferring funds from the Master Commissioner’s account to his own personal account instead of to the rightful beneficiaries. The aggregate value of the misappropriated funds exceeded $300,000.

King admits that his conduct violates SCR 3.130-8.3(b) which provides that: “It is professional misconduct for a lawyer to: Commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.” Similarly, he admits that his conduct also violates SCR 3.130-8.3(c) which provides that: “It is professional misconduct for a lawyer to: Engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” King acknowledges that his criminal actions constitute unethical conduct and seeks to terminate all pending disciplinary matters against him by resigning under terms of permanent disbarment pursuant to SCR 3.480(3). SCR 3.480(3) permits a KBA member to resign when the member has engaged in unethical conduct. King has stated that he will never again practice law in the Commonwealth of Kentucky and understands that the reinstatement provisions of SCR 3.480(3)(a) and SCR 3.510 do not apply. As previously noted, the KBA does not object to the motion.

Accordingly, IT IS HEREBY ORDERED:

(1) Movant, Charles E. King, is permanently disbarred from the practice of law in the Commonwealth of Kentucky. He shall not be permitted to apply for reinstatement of his license to practice law. The period of disbarment shall commence on the date of the entry of this Opinion and Order.

(2) Pursuant to SCR 3.390, King shall notify, in writing, all courts in the Commonwealth of Kentucky in which he may have matters pending and all clients of his inability to provide further legal services, and provide the Director of the KBA with a copy of all such letters. Notification must be furnished within ten (10) days from the entry of this Opinion and Order.

(3) King is further ordered to pay the costs associated with this proceeding in the amount of $20.00, for which execution may issue upon finality of this Opinion and Order.

All concur.

Entered: May 19, 2005.

/s/ Joseph E. Lambert Chief Justice