author: Justice ROSS. Justice CARTER.

text:
    Raynell HILL, Individually and as Representative of the Estate of Randina Raye Burleson, Deceased, Appellant, v. Chad McKinley BARTLETTE, Appellee.
    No. 06-05-00031-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted Dec. 1, 2005.
    Decided Dec. 20, 2005.

      David Robertson, Longview, for appellant.
    Randall D. Goodwin, J. David Crisp, Crisp, Boyd, Poff, Schubert & Burgess, LLP, Texarkana, for appellee.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by

Justice ROSS.

Raynell Hill sued Chad McKinley Bart-lette for wrongfully causing the death of her daughter, Randina Raye Burleson. The trial court granted summary judgment in favor of Bartlette. Hill appeals, contending in her sole point of error the trial court erred in granting that judgment.

We affirm the trial court’s judgment because Hill failed to negate Bartlette’s statute of limitations defense. Also, Bart-lette proved as a matter of law that Hill is barred from bringing the current claims because there has been an accord and satisfaction on all claims.

Standard of Review

The propriety of a summary judgment is a question of law. We therefore review de novo the trial court’s decision. Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex.1994). Summary judgment for a defendant is proper when the defendant negates at least one element of each of the plaintiffs theories of recovery or pleads and conclusively establishes each element of an affirmative defense. Sci. Spectrum v. Martinez, 941 S.W.2d 910, 911 (Tex.1997); Wornick Co. v. Casas, 856 S.W.2d 782, 783 (Tex.1993).

The movant has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985). However, once the movant establishes that it is entitled to summary judgment, the burden shifts to the nonmovant to show why summary judgment should not be granted. Casso v. Brand, 776 S.W.2d 551, 556 (Tex.1989).

When a trial court’s order granting summary judgment does not specify the ground or grounds relied on for its ruling, summary judgment will be affirmed on appeal if any of the theories advanced are meritorious. Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex.1995). In this case, the trial ■ court did not specify the grounds relied on for its ruling. We therefore may reverse the granting of summary judgment only if a genuine issue of material fact exists as to each theory Bartlette presented.

Background

Hill lived in El Paso, but her daughter, Burleson, lived with Hill’s sister, Jo Col-linsworth, and Jo’s husband, Jerry Collins-worth, in Upshur County while Burleson attended Kilgore College. Early on December 25, 1999, Burleson was the passenger in an automobile driven by Chad Bart-lette in Panola County. Bartlette fell asleep. The car left the roadway and slammed into a concrete culvert. Burleson died less than two hours later.

Jerry had insurance through Texas Farmers Insurance Company on the automobile in which Burleson was riding at the time of the accident. Texas Farmers hired a law firm in anticipation of claims against Bartlette and Jerry. The firm assigned the case to Todd Lessert, an attorney with the firm.

Lessert contacted Jo and prepared documents so that Jo could serve as the temporary administrator of Burleson’s estate. Around November 2, 2001, Lessert contacted Hill and asked her to sign a waiver of service. On January 3, 2002, Hill signed the waiver of service in which she agreed that the application to appoint her sister, Jo, as temporary administrator could be heard without further notice to her.

On May 24, 2002, Jo, in her capacity as temporary administrator, signed a settlement agreement releasing Bartlette, Jerry, and Texas Farmers from all claims growing out of the accident. In return, Texas Farmers issued a check to Jo for $25,000.00.

After receiving the check, Jo had several conversations with Hill regarding how the money should be distributed. They eventually reached an impasse, and Hill claims she did not receive any of the settlement proceeds.

Three and a half years after Burleson’s death, Hill filed the current lawsuit against Bartlette. She asserts wrongful death and survival claims.

Bartlette filed a motion for summary judgment with the trial court. He advanced three theories in support of that motion. One, Hill’s claims are barred by the applicable statute of limitations. Two, there has been an accord and satisfaction on all claims barring the current lawsuit. Three, Hill ratified the underlying settlement agreement and therefore is precluded from bringing the current lawsuit.

Statute of Limitations Defense

A person must bring suit for a wrongful death or survival claim within two years after the death of the injured person. Tex. Civ. Prac. & Rem.Code Ann. § 16.003(b) (Vernon Supp.2005). Burleson died December 25, 1999. Thus, the limitations period ended December 26, 2001. The present lawsuit was not filed until June 25, 2003, eighteen months after the limitations period had ended.

Hill agrees the lawsuit was not filed within the limitations period. She contends, however, that the doctrine of equitable estoppel should prohibit Bartlette from asserting a statute of limitations defense.

A plaintiff may invoke equitable es-toppel to prevent an opponent from prevailing on limitations if the opponent, his or her agent, or representatives make representations that induce the plaintiff to delay filing suit within the applicable limitations period. Forrest v. Vital Earth Res., 120 S.W.3d 480, 486 (Tex.App.-Texarkana 2003, pet. denied) (citing Cook v. Smith, 673 S.W.2d 232, 235 (Tex.App.-Dallas 1984, writ ref'd n.r.e.)).

Equitable estoppel consists of five elements: (1) a false representation or concealment of material fact; (2) the representation was made with knowledge or the means of knowledge of the true facts; (3)the representation was made to a party without knowledge or the means of knowledge of the true facts; (4) the representation was made with the intention that it would be acted on; and (5) the party to whom the representation was made relied on it to his or her prejudice. Vills. of Greenbriar v. Torres, 874 S.W.2d 259, 264 (Tex.App.-Houston [1st Dist.] 1994, writ denied); Cook, 673 S.W.2d at 235.

Hill bears the burden of raising a fact issue as to each element of equitable estoppel. When the face of a motion for summary judgment shows the action is barred by limitations, the nonmovant bears the burden of producing summary judgment evidence sufficient to raise a fact issue on the affirmative defense of estop-pel. Forrest, 120 S.W.3d at 486; see also Gifford v. Bank of Sw., 712 S.W.2d 182, 184 (Tex.App.-Houston [14th Dist.] 1986, no writ). If the nonmovant does not raise a fact issue as to every element of equitable estoppel, summary judgment is proper. See Cook, 673 S.W.2d at 235.

The cases applying equitable estoppel are cases involving promises by a defendant, which are not intended to be fulfilled, but instead are intended to induce the plaintiff to delay filing the suit until after the limitations period has run. Forrest, 120 S.W.3d at 487. In cases involving liability insurance, equitable estoppel is typically asserted when an injured party, based on representations of future payment by an insurance adjuster for the defendant, delays filing suit until the statute of limitations has expired. Then,- on expiration of the limitations period, the insurance company refuses payment.

For example, in Frank v. Bradshaw, 920 S.W.2d 699 (Tex.App.-Houston [1st Dist.] 1996, no writ), an insurance adjuster allegedly made representations to Frank, the victim of a motor vehicle accident, that there was no time problem with regard to her claim. He allegedly promised Frank that, after the treatment was finished and all of her medical bills were received, he would pay her claim. After the insurance adjuster had received several medical bills from Frank, he sent a letter informing Frank that the statute of limitations had passed and that he would not pay any more claims or expenses. Id. The First Court of Appeals found these representations by the insurance adjuster were sufficient to create a question of fact on equitable estoppel and to avoid summary judgment. Id.; see also Cook, 673 S.W.2d at 235 (finding that, when adjuster told claimant medical bills would be paid, fact issue raised as to whether adjuster falsely made those statements to induce delay in filing suit).

The issue in the instant case is unique. Here, the insurance company paid the amount promised, but Hill claims she would have timely filed suit if not misled by the-insurance company’s attorney. Hill claims she established an attorney-client relationship with Lessert. She asserts that, while acting as her attorney, Lessert made misrepresentations on which she relied to her detriment. In particular, she alleges Lessert failed to disclose conflicts of interest, falsely promised she would receive the proceeds of the settlement, and employed an unnecessary probate procedure.

Equitable estoppel arises only in situations where one party has refused to do what he or she has a duty to do. Harwell v. State Farm Mut. Auto. Ins. Co., 896 S.W.2d 170, 175 (Tex.1995); Vrazel v. Skrabanek, 725 S.W.2d 709, 711 (Tex.1987). If an attorney-client relationship existed between Lessert and Hill, Lessert would have had a duty to disclose any conflicts of interest materially affecting that relationship. As an agent of Bartlette and Texas Farmers, Lessert already had a duty to avoid making material misrepresentations to Hill. See Vaughn v. Sturm-Hughes, 937 S.W.2d 106, 108 (Tex.App.Fort Worth 1996, writ denied). This is, therefore, a situation in which the doctrine of equitable estoppel might be applied.

Failure to Disclose Conflicts of Interest

Hill first contends equitable estop-pel should be applied because Lessert failed to disclose conflicts of interest. These conflicts allegedly arose when Les-sert entered into an attorney-client relationship with Hill. We reject this contention because we find no evidence in the record that an attorney-client relationship was formed within the relevant time period.

The events inducing a person to delay a particular action until after a particular date logically must occur before that date. Thus, the only misrepresentations on which Hill could have relied to her detriment must have occurred before December 26, 2001, the end of the limitations period. See Vills. of Greenbriar, 874 S.W.2d at 264.

The record contains only one set of communications between Hill and a representative of Bartlette or Texas Farmers that occurred before December 26, 2001. Around November 2, 2001, Lessert contacted Hill by telephone and asked her to sign a waiver of service in connection with the temporary administration. He then sent her a letter, with the waiver of service enclosed, memorializing the telephone conversation.

The details of the telephone conversation are in dispute. In a deposition, Les-sert stated he told Hill he was representing Bartlette and Jerry, and wished to secure a release on their behalf. In her deposition, Hill stated that, while she could not remember the conversation, Lessert only told her he was representing Burle-son’s estate. She also stated Lessert never told her he was representing Bartlette or Jerry.

The entire letter from Lessert to Hill reads:

Ms. Hill:
Please find enclosed an Affidavit stating you have no objection to Jo Collins-worth being appointed Temporary Administrator of your daughter’s estate. Please take the time to review this document, and providing it meets your approval, please sign it in front of a Notary Public, have your signature notarized, and return it to me in the self-addressed stamped envelope also enclosed for your convenience. As we discussed on the telephone, having Jo appointed as Temporary Administrator will allow this proceeding to go far more smoothly and quickly. Should you have any questions about this document or any other matters, please do not hesitate to contact me.
Sincerely,
TODD G. LESSERT

The attorney-client relationship is purely contractual. It arises from the clear and express agreement of the parties about the nature of the work to be done and the compensation to be paid. This contract may be implied by the conduct of the two parties. It is necessary that the parties either explicitly or implicitly manifest an intention to create an attorney-client relationship. Parker v. Carnahan, 772 S.W.2d 151, 156 (Tex.App.-Texarkana 1989, writ denied).

Hill stated in her deposition she believed Lessert was her attorney. However, there was never any discussion of, or an agreement on, attorney’s fees. There was never an agreement on the nature of work Les-sert would perform for Hill. Hill never asked Lessert to represent her. Lessert never told Hill that he was her attorney.

Hill cites Vinson & Elkins v. Moran, 946 S.W.2d 381 (Tex.App.-Houston [14th Dist.] 1997, writ dism’d by agr.), to support her contention that an attorney-client relationship existed. The facts of that case are dissimilar to the facts presented here.

In Moran, the executors of an estate hired the Vinson and Elkins law firm (V & E) to advise them on matters relating to the estate administration. The court held there was legally and factually sufficient evidence to find that, by its conduct, V & E had formed an attorney-client relationship with the Moran beneficiaries of the estate. Id. at 405.

The estate beneficiaries attended meetings where V & E attorneys gave the beneficiaries advice regarding taxes and tax consequences. The firm advised the beneficiaries on no less than four distinct legal issues. The attorneys stated they represented “the Moran family, the Moran Estate, the Moran Estate family, [and] Moran Estate interests.” The beneficiaries received several mailings directly from V & E. The beneficiaries had “quite a number of contacts” with V & E attorneys. Further, the beneficiaries were in effect paying V & E’s legal fees. The firm’s fees were paid out of the expected distributions from the estate based on the pro rata share each beneficiary was expected to receive. Id. at 403-04.

In contrast, Hill had only one contact with Lessert before December 26, 2001, a single telephone call. She received only one mailing from Lessert, a letter memorializing that call. Hill never paid any part of Lessert’s legal fees, either directly or indirectly. Lessert never advised Hill on any legal matters, other than to ask her to sign a waiver of service. The number and nature of the interactions in this case are different from those in Moran.

There is no evidence in the record raising a genuine issue of material fact about whether an attorney-client relationship existed between Hill and Lessert before December 26, 2001. Hill’s mistaken impression Lessert was her attorney is not sufficient by itself to create an attorney-client relationship. Because there was no attorney-client relationship, there was no conflict of interest concerning such a relationship that Lessert was required to disclose. Hill has, therefore, faded to raise an issue of material fact with respect to all the elements of equitable estoppel.

Failure To Receive Settlement Proceeds

Hill alleges that, when Lessert contacted her in November 2001, he told her she would receive all the settlement proceeds. Hill claims she did not receive any of those proceeds. Because of this, she contends Lessert’s statement was a false representation that caused her to delay filing suit until after the limitations period.

If Hill did not receive any of the money, it was because of a failed agreement between Hill and her sister, Jo. There is no evidence in the record that Lessert knew or could have known that a future agreement between Hill and Jo would fail and that Hill would not get the settlement proceeds. Thus, Lessert did not have knowledge or the means of knowledge that Hill would not get paid.

Lessert could not have intended for Hill to rely on his false representation if he did not know it was false. Therefore, with regard to this alleged misrepresentation, Hill has failed to raise a genuine issue of material fact with respect to at least two elements of equitable estoppel.

Necessity of Temporary Administration

Hill contends a temporary administration was not necessary to complete the settlement process. She asserts that either heirship affidavits or a dependent administration could have been used. She contends the decision to use a temporary administration to effectuate the settlement amounts to a misrepresentation.

The decision to employ one particular legal process rather than another is a matter of professional judgment. Even if that decision is not particularly astute, as Hill suggests, it does not amount to a false representation. Hill has therefore failed to show that Lessert made a false representation with regard to this allegation.

Hill has failed to raise a genuine issue of material fact with respect to each element of equitable estoppel. She therefore has not- met her burden of proof in order to invoke the doctrine of equitable estoppel to negate Bartlette’s limitations defense. Accordingly, the summary judgment was properly granted based on Bartlette’s assertion of a statute of limitations defense.

Accord and Satisfaction

Bartlette contends the settlement agreement constitutes an accord and satisfaction on all claims, barring Hill’s present lawsuit. Hill contends the settlement agreement does not constitute an accord and satisfaction of her claims. She further contends the settlement agreement is void because Jo did not have the authority to settle the wrongful death and survival claims.

The conditional tender of payment on a disputed or unliquidated claim may constitute an accord and satisfaction. The general rule of law regarding the conditional tender of payment element necessary to constitute an accord and satisfaction is that the conditional tender must be expressed by acts or declarations with sufficient clarity so that the creditor will know that his or her acceptance of the payment will constitute full payment of the claim. H.L. “Brownie” Choate, Inc. v. Southland Drilling Co., 447 S.W.2d 676, 678-79 (Tex.1969); see also Jenkins v. Henry C. Beck Co., 449 S.W.2d 454, 455 (Tex.1969).

We hold that the language of the settlement agreement was sufficient to constitute an accord and satisfaction. The relevant language reads:

IT IS EXPRESSLY AGREED AND UNDERSTOOD that the undersigned accepts the payment of the sums mentioned above as a full, complete, final and binding compromise of all claims against the parties released hereby, which involve disputed issues, regardless of whether too much or too little may have been paid. It is expressly agreed and understood that the acceptance of the sum mentioned above is in full ACCORD AND SATISFACTION of a doubtful and disputed claim....

Hill contends the settlement agreement is void because an estate administrator does not have the authority to settle a wrongful death claim. In contrast with a survival claim, a wrongful death claim is an action that belongs to statutory beneficiaries and does not benefit the estate. Palmer v. Coble Wall Trust Co., 851 S.W.2d 178, 181-82 (Tex.1992). However, estate administrators have statutory authority to pursue wrongful death actions on behalf of those beneficiaries if such beneficiaries have not done so on their own behalf within three months after the death of the injured individual. Tex. Civ. PRAC. & Rem.Code Ann. § 71.004(c) (Vernon 1997).

Hill next contends a temporary administrator does not have the authority to settle claims or bring suit on behalf of an estate. Again, there is statutory authority for a temporary administrator to do just that. The Probate Code authorizes the “personal representative” of an estate to “[m]ake compromises or settlements in relation to property or claims in dispute or litigation” on written application to the court. Tex. PROB.Code Ann. § 234(a)(4) (Vernon 2003).

The Probate Code defines “personal representative” as “executor, independent executor, administrator, independent administrator, temporary administrator, together with their successors.” Tex. PROb. Code Ann. § 3(aa) (Vernon 2003) (emphasis added).

Hill also contends the probate court’s order did not grant Jo the authority to settle the survival and wrongful death claims. The Probate Code provides, “Temporary administrators shall have and exercise only such rights and powers as are specifically expressed in the order of the court appointing them.... Any acts performed by temporary administrators that are not so expressly authorized shall be void.” Tex. PROB.Code Ann. § 133 (Vernon 2003).

The order appointing Jo as temporary administrator granted her the following powers: “To represent the Estate and heirs of Randina Ray [sic] Burleson in all necessary respects regarding any and all claims of the Estate and heirs against Chad Bartlett [sic] and Jerry Collinsworth, arising from an automobile accident on or about December 25, 1999.” Hill contends this language did not grant Jo the authority to settle the wrongful death and survival claims. .We disagree.

The order expressly grants the power to “represent the Estate and heirs of Randi-na Ray [sic] Burleson in all necessary respects regarding any and all claims.... ” We hold that this language is sufficient to convey the power to assert and settle claims. Further, the order specifically mentions the automobile accident that caused Burleson’s death. We hold this language is sufficiently specific to include the wrongful death and survival claims arising out of the accident.

Hill further contends a probate court does not have jurisdiction over wrongful death and survival claims. In support of this, Hill cites Seay v. Hall, 677 S.W.2d 19 (Tex.1984). In Seay, the Texas Supreme Court determined that the proper forum for such cases was in the state district courts. Id. at 25. This holding was expressly overruled in Palmer, 851 S.W.2d at 181. In Palmer, the court recognized that the Legislature had amended the Probate Code following the Seay decision to give probate courts jurisdiction over wrongful death and survival claims. Id. at 182.

Hill finally contends the settlement agreement should not constitute an accord and satisfaction on her claims because she did not sign the agreement and she did not receive the settlement proceeds. As shown above, Jo had the authority to settle the claims on Hill’s behalf; Hill’s signature was not necessary. Further, it is undisputed Jo received a $25,000.00 check made payable to the temporary administrator of Burleson’s estate. Whether she later distributed the proceeds of that check properly does not alter the nature of the earlier valid settlement agreement.

Jo had the authority to settle the present claims on Hill’s behalf. She signed a settlement agreement releasing Bartlette from these claims. In return, she received a check .in the amount of $25,000.00 as agreed in the settlement agreement. Accordingly, we hold the summary judgment was proper because there has been an accord and satisfaction on all claims, thereby barring the present lawsuit.

Ratification

Bartlette also sought summary judgment on the basis that, even if the settlement agreement was voidable or fraudulent, Hill ratified the agreement through her subsequent conduct. We have concluded that the settlement agreement was proper because it was entered into by someone with the authority to do so. Hill was not fraudulently made a party to that agreement. We therefore find it unnecessary to address Bartlette’s ratification argument.

Conclusion

Summary judgment was properly based on Bartlette’s statute of limitations defense because Hill failed to raise a genuine issue of material fact as to each element of equitable estoppel. Alternatively, summary judgment was proper because Bart-lette proved as a matter of law there was a valid settlement agreement constituting an accord and satisfaction on all claims.

Accordingly, we affirm the judgment.

CARTER, J., concurring.

. Concurring Opinion by

Justice CARTER.

I concur in the judgment of the Court because I agree with the analysis regard-mg the statute of limitations. My concern is the statement in the opinion that the order granting the temporary administrator the authority to represent the estate and heirs was sufficient to give her the right to settle the claim. The Probate Code states: “[w]hen a personal representative deems it for the interest of the estate, he may, upon written application to the court, and by order granting authority ... (4) [m]ake compromises or settlements in relation to property or claims in dispute or litigation.” Tex. PROB.Code Ann. § 234(a)(4) (Vernon 2003) (emphasis added). There is no contention that the temporary administrator filed an application requesting the probate court to approve the settlement or that the probate court entered an order specifically authorizing the settlement. I agree that the representative had, by court order, the authority to represent the estate and heirs of the deceased in this case, but once she had negotiated a proposed settlement, she was required to file a written application and to obtain an order from the probate court authorizing her to settle the suit.

      . First names are used to distinguish those sharing the same last name.

        . See Hycarbex, Inc. v. Anglo-Suisse, Inc., 927 S.W.2d 103 (Tex.App.-Houston [14th Dist.] 1996, no writ), holding that the language, “These payments shall constitute complete fulfillment of our obligation,” was sufficient to constitute a full accord and satisfaction.


source: Caselaw Access Project

author: RICHARD BARAJAS, Chief Justice.

license: Public Domain

text:
    In re HARBROOK TOOL & MFG. CO., Relator.
    No. 08-05-00359-CV.
    Court of Appeals of Texas, El Paso.
    Dec. 22, 2005.
    Rehearing Overruled Jan. 18, 2006.
    Corey W. Haugland, James, Goldman & Haugland, P.C., El Paso, for relator.
    Luis Aguilar, El Paso, respondent pro se.
    Martie Jobe, Luther Jones, Thomas E. Stanton, El Paso, for real parties in interest.
    Before BARAJAS, C.J., McCLURE, and CHEW, JJ.
   OPINION ON PETITION FOR WRIT OF MANDAMUS

RICHARD BARAJAS, Chief Justice.

Relator, Harbrook Tool & Mfg. Co., asks this Court to issue a writ of mandamus against the Honorable Luis Aguilar, Judge of the 120th District Court of El Paso County. Mandamus will lie only to correct a clear abuse of discretion. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992) (orig. proceeding). Moreover, there must be no other adequate remedy at law. Id. Although mandamus is not an equitable remedy, it is largely governed by equitable principles. Rivercenter Associates v. Rivera, 858 S.W.2d 366, 367 (Tex.1993). One such principle is that equity aids the diligent and not those who slumber on their rights. Id.

Harbrook, represented by Corey Haug-land, filed this mandamus proceeding to challenge an agreed order entered on February 17, 2005 requiring Harbrook to pay a share of costs associated with the appointment of a special master in discovery. Harbrook asserts that it had been previously dismissed from the suit when an amended petition filed in 2001 did not state any claims against it, and therefore, the trial court could not order it to pay a share of the costs. On May 27, 2005, Haugland was sent an invoice detailing the special master’s fees and specifying Harbrook’s share. On May 31, 2005, other parties who are represented by Haugland filed a mandamus petition in order to challenge the February 17, 2005 order. See In re Donald V. Labruzzo, Carlos Camarillo and Plasticos Promex, U.S.A., Inc., No. 08-05-00204-CV, 2005 WL 1593753, — S.W.3d - (Tex.App.-El Paso July 7, 2005) (denying- mandamus relief). Har-brook did not join the mandamus petition. Prior to the issuance of the opinion denying mandamus relief, the real party in interest' Juan Alyarez, filed a motion to compel Harbrook to pay its share of the fees. It was only after the trial court granted the motion to compel on November 14, 2005 that Harbrook filed this mandamus petition.

Harbrook provides no explanation for waiting nine months to challenge the February 17, 2005 order. We conclude that mandamus relief must be denied because of laches. See Furr’s Supermarkets, Inc. v. Mulanax, 897 S.W.2d 442, 443 (Tex.App.-El Paso 1995, orig. proceeding); Tex. R.App. P. 52.8(a). Our order granting Relator’s motion for emergency relief and staying the proceedings in the trial court is lifted and the motion to reconsider stay filed by the real party in interest is denied as moot.


author: LAMBERT, Chief Justice.

text:
    KENTUCKY BAR ASSOCIATION, Movant, v. Stuart L. LYON, KBA Member No. 42900, Respondent.
    No. 2005-SC-736-KB.
    Supreme Court of Kentucky.
    Dec. 22, 2005.
    Dana Cox Niekles, Deputy Bar Counsel, Kentucky Bar Association, Frankfort, Counsel for Movant: Bruce K. Davis, Executive Director.
    Michael L. Maple, Louisville, Counsel for Respondent.
   OPINION AND ORDER

LAMBERT, Chief Justice.

Respondent, Stuart L. Lyon, was admitted to the practice of law in the Commonwealth of Kentucky on July 8, 1960. His bar roster address is Legal Arts Building, 200 South 7th Street, Suite 305, Louisville, Kentucky 40202.

On April 1, 2003, Respondent entered a guilty plea pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), to one count of perjury in the first degree, a class D felony. Upon entry of his plea, Respondent was automatically suspended pursuant to SCR 3.166. Also, as a result of his plea, the Inquiry Commission, on April 23, 2003, issued a two-count charge. Count I alleged Respondent violated SCR 3.130-8.3(b), which provides: “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.” Count II alleged Respondent violated SCR 3.130-8.3(c), which provides: “It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.”

Respondent argued for an evidentiary hearing to prove he was not actually guilty of the crime, but the Trial Commissioner ruled that conviction of a felony forecloses inquiry into the Respondent’s guilt or innocence and that the conviction itself was the ethical violation for which he was being charged.

Respondent was granted, however, the right to an evidentiary hearing on whether aggravating or mitigating factors were present so as to affect Respondent’s discipline. The hearing was held in March of 2005. At the hearing, Respondent explained the perjury charge arose from his testifying in Jefferson District Court, Probate Division, that the purported Last Will and Testament of Leathean Frazier was, in fact, her will, and that he had witnessed its execution. The will had been prepared by Nick VanMeter, then a licensed practitioner who shared offices with Respondent. In reality, VanMeter had forged the entire will, including the signatures of the testatrix and Respondent in order to allow a previously disinherited nephew an inheritance to which he was not entitled. VanM-eter requested Respondent go to a probate hearing to prove the will. When VanMe-ter presented the will to him in court, Respondent claims his signature appeared authentic, so he testified in accordance with that belief.

Respondent had been a sole practitioner for over forty years, handling lower court misdemeanor criminal work and a few bankruptcies and personal injury cases. He had an office-sharing relationship with Nick VanMeter for twelve years.

Respondent presented several mitigating factors, including, without limitations: (1) absence of any prior disciplinary record; (2) absence of a profit motive; (3) cooperative attitude with the Kentucky Bar Association; (4) remorse and no likelihood of any future offenses. Respondent called several witnesses, including a retired district judge, all of whom testified to his good character and honesty.

After hearing all the evidence, the Trial Commissioner recommended Respondent be suspended from the practice of law for five (5) years without any credit for time served. Respondent appealed to the Board of Governors on the sole issue of whether Respondent should be given credit for the time that he had been and continues to be automatically suspended.

After a report by a Board member and deliberation, The Board made the following decisions and recommendations: All 18 members voted Respondent was guilty of violating SCR 3.130-8.3(b) and SCR 3.130-8.3(c); 10 members voted for a four year, nine month suspension beginning as of the date of the guilty plea in April of 2003; 6 members voted for a five year suspension, beginning as of the date of the guilty plea in April of 2003; one member voted for a five year suspension to begin from the date of this Court’s Order, one member voted for permanent disbarment.

We adopt the finding of the Board of Governors regarding Respondent’s guilt. We also find the appropriate discipline shall be a four year nine month suspension from the practice of law, beginning as of the date of the temporary suspension on April 2, 2003.

Thus, it is ORDERED that:

1) Stuart L. Lyon is hereby suspended from the practice of law in the Commonwealth of Kentucky for four years and nine months, commencing from the date of his original suspension on April 2, 2003 pursuant to SCR 3.166.

2) That at the end of this suspension Lyon shall be required to reapply for admission to the Kentucky Bar, and that such application be reviewed under the provisions of SCR 3.505, SCR 2.040, and SCR 3.510.

3) Pursuant to SCR 3.390, Lyon shall provide notice to any clients, if applicable, he currently represents of his inability to provide further legal services, to notify all courts in which he has matters pending of his suspension and to provide the Director of the Kentucky Bar Association with a copy of all such letters simultaneously with their mailing.

4) In accordance with SCR 3.450, Lyon is directed to pay all costs associated with the disciplinary proceedings against him, said sum being $1,361.47, and for which execution may issue from this Court upon finality of this Opinion and Order.

All concur.

      . SCR 3.510(4)


author: /s/ Joseph E. Lambert CHIEF JUSTICE

text:
    Hugh M. RICHARDS, Movant, v. KENTUCKY BAR ASSOCIATION, Respondent.
    No. 2005-SC-0851-KB.
    Supreme Court of Kentucky.
    Dec. 22, 2005.
   OPINION AND ORDER

Movant, Hugh M. Richards, of London, Kentucky, was admitted to the practice of law in the Commonwealth of Kentucky on October 3, 1979. On April 2, 2004, the Inquiry Commission of the Kentucky Bar Association (KBA) issued a three-count charge of professional misconduct against Richards. Richards has admitted to the allegations in the charge and has moved this Court to issue a public reprimand along with certain other conditions. The KBA has no objection to this motion. We, therefore, grant the motion and outline the substance of the three counts below.

In July 2000, Orville and Evelyn Rouse paid Richards $500 to represent them in a civil action against Preferred Mobile Homes, in which they were seeking a return of their $2,000 down payment for a mobile home. On December 11, 2000, Richards sent the Rouses a letter stating that he had prepared the complaint and requested that they schedule.an appointment to review and sign the complaint. After receiving the letter, Ms. Rouse telephoned Richards and asked that he send them the complaint so they did not have to travel to his law office.

On December 21, 2000, per his clients’ instructions, Richards mailed the complaint to the Rouses. They thereafter signed and returned it to him the same month. However, Richards failed to file the complaint in the Laurel District Court until May 31, 2002. Between December 2000 and May 2002, the Rouses repeatedly and unsuccessfully attempted to contact Richards about the status of their case.

During this same time period, Richards was also representing the Rouses in an unrelated class action matter. On September 19, 2002, the Rouses notified Richards that he was being discharged as their counsel in the class action case. Richards thereafter contacted Ms. Rouse on September 23, 2002, and informed her that he was going to withdraw as counsel in the Laurel District Court case as well.

Richards again contacted the Rouses in November 2002 and told them he would be sending a bill for the work he had done prior to his withdrawal. The Rouses never received such bill. Further, despite a request by the Rouses in June 2003, Richards failed to return the $500 retainer fee until September 2003.

The Inquiry Commission charged Richards with violating: (1) SCR 3.130-1.3, which provides that “a lawyer shall act with reasonable diligence and promptness in representing a client,” when he failed to file the district court complaint until May 2002; (2) SCR 3.130-1 .4(a), which provides that “a lawyer should keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information,” when he failed to respond to his client’s request for information from December 2000 through May 2002; and (3) SCR 3.130-1.16(d), which provides that “upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled, and refunding any advance payment of fee that has not been earned,” when he failed to return the Rouses’ retainer fee until September 2003.

Richards admits that he is guilty of violating the Rules of Professional Conduct as charged by the Inquiry Commission. Therefore, the KBA having no objection, Richards’ motion is granted and it is hereby ordered that:

(1) Hugh M. Richards is publicly reprimanded for his violations of SCR 3.130-1.3; SCR 3.130-1.4(a); and SCR 3.130-1.16(d);

(2) In accordance with SCR 3.450, Richards is directed to pay all costs associated with these disciplinary proceedings against him, said sum being $28.21, and for which execution may issue from this Court upon finality of this Opinion and Order;

(3) Richards will complete, at his own expense, nine (9) hours of remedial ethics and law office management education— separate and apart from his fulfillment of any other continuing education requirement — within two (2) years of the entry of this Opinion and Order;

(4) The remedial ethics education must be satisfied by Richards’ personal attendance at a live continuing education program, a satellite or video continuing education program in the presence of a monitor, or other programs approved in advance by the KBA Office of Bar Counsel.

(5) If Richards fails to comply with any of the above terms or if charges of like or similar violations are issued against him by the Inquiry Commission during the next two (2) years from the entry of this Opinion and Order, then, upon motion of the KBA Office of Bar Counsel, the public reprimand may be converted into a thirty-day (30) day suspension from the practice of law.

All concur.

Entered: December 22, 2005.

/s/ Joseph E. Lambert CHIEF JUSTICE


author: Chief Justice LAMBERT

text:
    CAVALIER HOMES OF ALABAMA, Appellant, v. Hon. Eddy COLEMAN, Judge, Pike Circuit Court, Division I, Appellee.
    No. 2005-SC-000160-MR.
    Supreme Court of Kentucky.
    Dec. 22, 2005.
    Jeffrey M. Baldwin, Porter, Schmitt, Jones & Banks, Paintsville, KY, James B. Ratliff, Baird, Baird, Baird & Jones, P.S.C, Pikeville, KY, for Appellant.
    Eddy Coleman, Judge, Pike Circuit Court, Pike County Hall of Justice, Pike-ville, KY, Lawrence R. Webster, Pikeville, KY, for Appellees.
   Opinion of the Court by

Chief Justice LAMBERT

The Appellant, Cavalier Homes of Alabama, appeals from the Court of Appeals’ dismissal of its petition for extraordinary relief. The underlying action involves a mobile home that Appellee, Cynthia Adkins Damron, purchased from Appellant. Damron filed suit against the Appellant, under various theories of recovery, for damages allegedly sustained to the mobile home during its delivery.

Appellant pled as an affirmative defense the arbitration clause in the parties’ written purchase agreement. Appellant moved the trial court to stay proceedings and order arbitration of the matter. After a hearing, the trial court denied Appellant’s motion, finding that Appellee did not have actual knowledge of the policy with respect to arbitration. Appellant then sought extraordinary relief in the Court of Appeals. The Court of Appeals held that the Appellant could not obtain relief via an original action in the Court of Appeals because Appellant had a statutory remedy allowing for an immediate appeal.

As the foregoing facts reveal, Appellant sought review of an interlocutory order by means of an extraordinary writ pursuant to CR 81. This Court has long held that appeals are allowed only from final judgments. We have been presented with many appealing arguments and invited to depart from our strict application of the final judgment rule. Nevertheless, we have firmly adhered, even in the face of arguments predicated on extreme expense, delay, etc., to our rule. There are certain rare instances, however, in which an interlocutory appeal is allowed by statutory enactment. One such circumstance is that the Commonwealth is allowed to appeal from an interlocutory order of a trial court whereby evidence is suppressed. The rationale for this, of course, is that unless an appeal is allowed, jeopardy will attach and the Commonwealth will be without a remedy by appeal as it is forbidden from appealing from a judgment of acquittal. Another such circumstance presents here. In 1984, the General Assembly adopted the Uniform Arbitration Act. A provision of that Act, KRS 417.220, expressly provides that “An appeal may be taken from [a]n order denying an application to compel arbitration made under KRS 417.060.... The appeal shall be taken in the manner and to the same extent as from orders or judgments in a civil action.” Thus, the General Assembly has, by the foregoing enactment, created a statutory interlocutory right of appeal where no such right would otherwise exist. We need not explore the rationale or the wisdom of this enactment. We will take it at face value.

Despite the right of appeal described and acknowledged hereinabove, Appellant in the instant case brought its claim to the Court of Appeals by means of an extraordinary writ application. In the petition for extraordinary relief, Appellant asserted that without relief, it would suffer immediate and irreparable harm and would be without a remedy by appeal. Thus, the grounds asserted amount to a proper statement for extraordinary relief, but the form of relief sought is inconsistent with the statutory remedy allowed. The Court of Appeals recognized this and dismissed the claim as being improper.

Appellant argues that it is entitled to seek whatever form of relief it chooses and that ai'gument is not unappealing. Thus, it would be possible to treat the petition for extraordinary relief as such and hold the Appellant to the required standard. Of course, on that basis, Appellant would surely lose as the statute allowing for an interlocutory appeal defeats the contention that there is no adequate remedy by appeal. In our view, however, better practice is to treat this as the Court of Appeals treated it. Appellant sought appellate review of an interlocutory order and KRS 417.220 gives express directions as to the means to pursue such review. We need not torture the rules relating to extraordinary writs to permit Appellant to stay in court and immediately thereafter, determine that it loses because the statute provides it with an appellate remedy.

Accordingly, we affirm the Court of Appeals’ dismissal of Appellant’s petition for extraordinary relief.

All concur.

      . CR 81.

      . CR 54.01; National Gypsum Company v. Corns, 736 S.W.2d 325 (Ky.1987).

      . See e.g., Corns, 736 S.W.2d 325.

      . KRS 22A.020(4). See e.g., Linehan v. Commonwealth, 878 S.W.2d 8 (Ky.1994); Eaton v. Commonwealth, 562 S.W.2d 637 (Ky.1978).


author: DYCHE, Judge.

text:
    Joan THORN, Appellant, v. COMMONWEALTH of Kentucky and Shirley Robinson, Appellees.
    No. 2004-CA-001861-MR.
    Court of Appeals of Kentucky.
    Dec. 16, 2005.
    Delbert K. Pruitt, Paducah, KY, for appellant.
    No brief for appellees.
    Before COMBS, Chief Judge; DYCHE and HENRY, Judges.
   OPINION

DYCHE, Judge.

On August 28, 2003, the McCracken Family Court removed A.R. from the custody of his maternal great-grandmother, Joan Thorn, based on a finding of neglect. The child was placed into the custody of his paternal grandmother, Shirley Robinson. Thorn appealed that ruling to the McCracken Circuit Court, which reversed the family court, but then vacated its judgment for lack of subject matter jurisdiction.

The sole issue in this case is whether the circuit court properly declined subject matter jurisdiction of the appeal from the family court order. We find that it did and affirm.

Formerly, the determination of whether the appeal of a family court ruling should be taken to the circuit court or the Court of Appeals depended on local rules of practice and a two part analysis that characterized the underlying family court issue as being within either district court or circuit court jurisdiction. Elery v. Martin, 4 S.W.3d 550 (Ky.App.1999).

KRS 22A.020(1) was amended in 2003 to read as follows:

Except as provided in Section 110 of the Constitution, an appeal may be taken as a matter of right to the Court of Appeals from any conviction, final judgment, order, or decree in any case in Circuit Court, including a family court division of Circuit Court, unless such conviction, final judgment, order, or decree was rendered on an appeal from a court inferior to Circuit Court.

(Emphasis added.) Thus, all appeals from family court shall be taken to the Court of Appeals upon the effective date of this amendment, June 24,2003.

Although admittedly a recent development and a departure from prior procedure, the amendment to KRS 22A.020 was in effect from the outset of this case on August 21, 2003. Therefore, we conclude that the circuit court properly vacated its judgment for lack of jurisdiction.

Thorn also argues that the retention of KRS 620.155 after the amendment of KRS 22A.020 preserves an alternative choice of appeal to either this Court or the circuit court. We disagree.

KRS 620.155 provides in pertinent part:

Any interested party aggrieved by a proceeding under KRS 610.010(l)(e) including the parent, child, guardian ad litem, the cabinet, and the county attorney may appeal from the juvenile court to the Circuit Court as a matter of right in the manner provided in the Kentucky Rules of Civil Procedure.

This provision is inapplicable to the present case. KRS 620.155 does not provide a choice of forum for appeal. Rather, the statute sets forth the procedure of appeal for a neglect proceeding in a “juvenile court,” meaning the juvenile session of district court. KRS 600.020(15); see also T.A. v. Byer, 13 S.W.3d 629, 631 (Ky.2000). Family courts are granted primary jurisdiction over the same subject matter as KRS 610.010(l)(e) in KRS 23A.100(2)(c). When two statutes are in seeming conflict, courts are to construe the statutes so as to give meaning to both. Hopkinsville-Christian County Planning Commission v. Christian County Board of Education, 903 S.W.2d 531, 532 (Ky.App.1995). To the extent there is a conflict between the appellate procedure set forth in KRS 22A.020 and KRS 620.155, we find that KRS 620.155 is intended for use in counties that do not have a family court. In this case, the underlying action originated in family court, so any appeal should have been taken pursuant to KRS 22A.020.

The order of the McCracken Circuit Court is affirmed.

ALL CONCUR.


author: PER CURIAM.

text:
    VANCE BROTHERS, INC., Respondent, v. OBERMILLER CONSTRUCTION SERVICES, INC., Appellant.
    No. SC 86668.
    Supreme Court of Missouri, En Banc.
    Jan. 10, 2006.

      Charles E. Weedman, Jr., Harrisonville, for Appellant.
    Anthony L. DeWitt and Edward D. Robertson, Jr., Jefferson City, Jerry J. Relli-han, Raymore, for Respondent.
   PER CURIAM.

Obermiller Construction Services, Inc., was the general contractor for several retail stores. It engaged Vance Brothers, Inc., to apply microsurfacing to a parking lot. A dispute arose between the parties concerning the quality of work performed. Obermiller withheld payment. Vance brought suit. Obermiller counterclaimed, including a claim for breach of contract.

Neither party initially requested attorney fees. Prior to trial, however, the parties stipulated that they would allow the pleadings to be amended to include a prayer for attorney fees pursuant to section 431.180. The parties also agreed that the trial judge would decide attorney fees after the jury’s verdict.

The jury found for Vance both on its claim for payment and on Obermiller’s counterclaim for breach of contract. Ob-ermiller moved the trial court to “exercise its discretion” and not award fees to Vance based upon Obermiller’s good faith in withholding payment. The court overruled the motion and awarded Vance $61,400.00 in attorney fees. Obermiller appeals. The judgment is affirmed.

DISCUSSION

Obermiller claims for the first time on appeal that the trial court did not have jurisdiction because the suit relied on section 431.180 and was brought as a petition on account rather than on a contract. Vance contends that Obermiller’s claim was- not properly preserved for appeal.

Generally, a litigant must preserve a claim of error in the trial court in order to be afforded appellate review. An exception exists, however, when an appellant cites the trial court’s lack of jurisdiction. The question of jurisdiction may be raised at any stage of the proceedings, even for the first time on appeal. State Tax Comm’n v. Admin. Hearing Comm'n, 641 S.W.2d 69, 73 (Mo. banc 1982). Because the alleged lack of statutory authority questions the jurisdiction of the court to enter the particular judgment in the particular case, such allegations need not be advanced to the trial court in order to be heard on appeal. See State ex rel. Lambert v. Flynn, 348 Mo. 525, 154 S.W.2d 52, 57 (Mo. banc 1941). The claim is preserved.

Although preserved, Obermiller’s claim is not well-taken. The statute requires: (1) that the parties enter into a private construction contract and (2) that payments be made pursuant to the contract. Vance pleaded that it had entered “an agreement” with Obermiller. The agreement contains an offer, acceptance and consideration. In fact, Obermiller counterclaimed for breach of contract. As the parties tried the case on the basis that a contract existed, the pleadings are amended to conform to the evidence. Rule 55.33(b). Vance also pleaded that no payments were made under the contract.

As Obermiller noted in its motion to amend answer, “[A]ll elements to bring [a claim under section 431.180] have been set forth in Vance’s petition.” Section 431.180 does not require that the action brought under the statute be one in contract. Vance brought “an” action (a petition on account), as mandated in section 431.180, to receive payment. This satisfies the statute.

Obermiller next contends the award of attorney fees was improper because the statute requires an award of interest as a prerequisite to the awarding of attorney fees. The statute makes no such requirement. It states a court “may [,] in addition to any other award for damages, award interest ... from the date payment was due pursuant to the terms of the contract, and reasonable attorney fees, to the prevailing party.” (Emphasis added.) Where a statute’s language is clear, courts must give effect to its plain meaning and refrain from applying rules of construction unless there is some ambiguity. Home Builders Ass’n of Greater St. Louis, Inc. v. City of Wildwood, 107 S.W.3d 235, 239 (Mo. banc 2003). The statute places discretion in the court to award interest and attorney fees. No restriction is placed On the court’s discretion to award attorney fees even if interest is not awarded. As the statute is clear, resort to other similar statutes to divine the meaning of section 431.180 is not permitted.'

CONCLUSION

The judgment is affirmed.

All concur.

      . This Court transferred this case after an opinion by the Court of Appeals, Western District, authored by the Honorable Harold L. Lowenstein. Mo. Const, article V, section 10. Parts of that opinion are incorporated without further attribution.

      . All statutory references are to RSMo 2000. The pertinent provisions of section 431.180 state:
      1. All persons who enter into a contract for private design or construction work after August 28, 1995, shall make all scheduled payments pursuant to the terms of the contract.
      2. Any person who has not been paid in accordance with subsection 1 of this section may bring an action in a court of competent jurisdiction against a person who has failed to pay. The court may[,] in addition to any other award for damages, award interest at the rate of up to one and one-half percent per month from the date payment was due pursuant to the terms of the contract, and reasonable attorney fees, to the prevailing party. If the parties elect to resolve the dispute by arbitration pursuant to section 435.350, RSMo, the arbitrator may award any remedy that a court is authorized to award hereunder.

      . In a jury-tried case, an appellant must raise the alleged error in a motion for new trial in order to preserve the issue for appellate review. Rule 78.07(a)(1).

        . Section 431.180 refers to scheduled “payments.” Section 1.030 notes that when a statute uses a plural number, any single matter also is included. Multiple payments are not necessary to invoke section 431.180.

      .For the same reason, the "good faith” ¡requirement explicitly set out in section 34.057 (the public prompt payment act) cannot be read into section 431.180, which contains no similar language.

      . Obermiller’s motions to dismiss the appeal and for appellate attorney fees are overruled.


text:
    STATE ex rel. Alis Ben JOHNS, Relator, v. The Honorable Greg KAYS, Respondent.
    No. SC 86936.
    Supreme Court of Missouri, En Banc.
    Jan. 10, 2006.
    Janet M. Thompson, Donald Catlett, Charles D. Moreland, Office of the Public Defender, Columbia, for Relator.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Shaun J. Mackelprang, Robert J. Ahsens, Asst. Attys. Gen., Jefferson City, William James Icenogle, Prosecuting Attorney, Camdenton, for Respondent.
   PER CURIAM.

Alis Ben Johns was convicted of first degree murder and sentenced to death in Pulaski County. This Court affirmed that judgment. State v. Johns, 34 S.W.3d 93 (Mo. banc 2000). Johns then filed a post-conviction motion. The motion court determined that Johns was mentally retarded and, therefore, not eligible for the death penalty under Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), and section 565.030, RSMo 2000. The state did not appeal the motion court’s judgment, which is now final.

Johns is now charged with first degree murder in Camden County. Relying on the prior finding that he is mentally retarded, Johns seeks to prohibit the state from seeking the death penalty in the Camden County case. The state is bound by the earlier judgment of mental retardation. The preliminary writ, as modified, is made absolute.

In deciding whether collateral es-toppel applies, the following four factors are considered: (1) is the issue in the present case identical to the issue decided in the prior adjudication; (2) was there a judgment on the merits in the prior adjudication; (3) is the party against whom collateral estoppel asserted the same party or in privity with a party in the prior adjudication; and (4) did the party against whom collateral estoppel is asserted have a full and fair opportunity to litigate the issue in the prior suit. The doctrine applies only to those issues that were necessarily and unambiguously decided. State v. Nunley, 923 S.W.2d 911, 922 (Mo. banc 1996).

The Respondent acknowledges these factors exist in this case. Relying on State v. Lundy, he argues, nevertheless, that collateral estoppel also requires that a party seeking to take advantage of collateral estoppel must be bound by an adverse judgment in the prior adjudication. Such a reading of Lundy overlooks that that case involved different defendants and that ease’s acknowledgment that collateral es-toppel generally does apply if the defendant is the same person in both cases. State v. Lundy, 829 S.W.2d 54, 56 (Mo.App.1992).

In this case, the parties agree the factors stated in Nunley are present. Lundy does not add an additional requirement where the defendant is the same person in both cases.

Respondent also argues this case does not warrant the issuance of a writ because Johns is not yet subject to the death penalty because the prosecutor may waive the penalty or the jury may not impose the penalty. A writ is appropriate where a lower tribunal lacks the power to act as contemplated. State ex rel. Riverside Joint Venture v. Missouri Gaming Com’n, 969 S.W.2d 218, 221 (Mo. banc 1998). Whether the death penalty is available affects the preparation for trial and the conduct of the trial. For example, if the death penalty is not available, each party is entitled to three fewer peremptory challenges. State v. Boston, 910 S.W.2d 306, 312 (Mo.App.1995). As the death penalty cannot be imposed in this case, the trial court lacks the authority to act to honor these additional peremptory challenges or to otherwise treat the case as one in which the death penalty is sought.

The alternative writ is made absolute, as modified, to prohibit the state from seeking the death penalty in the underlying cause.

All concur.


author:
PER CURIAM.
     RICHARD B. TEITELMAN, Judge,

text:
    STATE of Missouri, Respondent, v. Clifton Clyde REED, Jr., Appellant.
    No. SC 86803.
    Supreme Court of Missouri, En Banc.
    Jan. 10, 2006.

      Nancy A. McKerrow, Office of the State Public Defender, Columbia, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Dora Fichter, Asst. Atty. Gen., Jefferson City, for Respondent.
   PER CURIAM.

A jury convicted Clifton Reed, Jr., of six counts of criminal nonsupport, a class D felony. The court imposed a sentence of five years on each count, to be served concurrently. Reed claims that the state improperly used its peremptory challenges to exclude males from the jury and that the state failed to prove the mental element of “knowingly.” Finding no error, the judgment is affirmed.

PEREMPTORY CHALLENGE

Standard of Review

An appellate court reviews a trial court’s ruling on a gender-Batson challenge to determine whether the ruling is clearly erroneous. State v. Marlowe, 89 S.W.3d 464, 470 (Mo. banc 2002); State v. Parker, 836 S.W.2d 930, 943 (Mo. banc 1992).

Discussion

During jury selection the prosecutor exercised all seven of his peremptory challenges against men. Reed objected, claiming a Batson violation. The trial court required the State to provide reasonably specific and clear gender-neutral reasons for the strikes. The trial court found that the State did so. The burden then shifted to Reed to demonstrate that the State’s explanations were pretextual and that the strikes were impermissibly based upon gender. Reed maintains he did so by demonstrating that similarly situated female jurors were not struck by the State. He further argues that the prosecutor wanted an all-female jury because a male was charged with failing to support his children and the two primary witnesses were Reed’s ex-wife and the female supervisor of the child support division. Reed claims that the prosecutor’s reasons for exercising the strikes were implausible.

There is no clear error in the trial court’s determination that the prosecutor’s reasons for peremptorily striking men were gender neutral. The prosecutor indicated that it was his practice, after receiving the jury list, to put a “plus or minus or a question mark” beside names depending on the potential juror’s occupation and the type of case to be tried. In this case, the prosecutor’s initial list noted self-employed people tend to hide income and this was a support case. During voir dire, the prosecutor used a separate list to place a second mark indicating his preference for jurors based upon the way “they dress[ed],” “their facial expressions,” and “the way they were paying attention.”

In each of the cases of “similarly situated” females who had question marks on the first list, the prosecutor indicated the male potential juror was struck for having a minus sign next to his name on the list that was not resolved by further questioning. At the time he made his strikes, the lack of the second mark by the female potential juror indicated to the prosecutor that the appearance and demeanor of the potential juror eliminated any issues he had with her occupation. The prosecutor gave gender-neutral reasons for not striking the female potential jurors and for striking the male jurors.

The trial court’s ruling, finding no pretext, is not clearly erroneous.

MENTAL ELEMENT OF “KNOWINGLY”

Standard of Review

When a criminal defendant challenges the sufficiency of the evidence to support a conviction, this Court’s review is limited to determining whether sufficient evidence was admitted at trial from which a reasonable trier of fact could have found each element of the offense to have been established beyond a reasonable doubt. State v. Burrell, 160 S.W.3d 798, 801 (Mo. banc 2005). This Court accepts as true all evidence favorable to the verdict and disregards all evidence and inferences to the contrary. Id.

Discussion

In addition to his Batson claim, Reed alleges that the evidence was insufficient to support his convictions and sentences on Counts I, II, III, and IY. He correctly notes that the elements of a criminal nonsupport case against a parent are: (1) knowingly fails to provide, (2) without good cause, (3) adequate support, (4) that he or she is legally obligated to provide. Section 568. 0⅛0. 1. He argues the evidence at trial failed to prove the “knowledge” element of the crime because there was no proof that he knew there was an order of support.

State v. Morovitz, 867 S.W.2d 506, 508 (Mo. banc 1993), holds that proof of the relationship of parent to minor child is sufficient to establish a prima facie basis for a legal obligation of support. All that is required is “knowledge of the legal obligation to provide support in an adequate amount for the child.” Morovitz at 509. As noted in State v. Watkins, 130 S.W.3d 598, 600 (Mo.App.2004), a parent’s knowledge of a support order is not required because “a support order is not even a requisite to criminal liability. A parent can be prosecuted for criminal nonsupport despite the absence of such an order.” Other cases support this conclusion.

Succinctly stated, “[a dissolution] decree with a provision for child support is not a prerequisite to a prosecution under [section 568.040], and by the same token the existence of such a support decree does not bar a prosecution under that section.” State v. Davis, 469 S.W.2d 1, 3 (Mo.1971). If court-ordered child support is not an element of the criminal nonsupport statute, then a fortiori knowledge of such an order is not required for a conviction under section 568.040. Consequently, Reed’s point fails.

A further explanation may clarify any misconceptions. “The support of one’s children involves the discharge of one of the most basic responsibilities that a person assumes as a member of society.” In re Warren, 888 S.W.2d 334, 336 (Mo. banc 1994). Every parent has a legal obligation to provide for his or her children regardless of the existence of a child support order. Morovitz, 867 S.W.2d at 508. Proof of the relationship of parent to child is sufficient to establish a prima facie basis for a legal obligation of support. Id.; Watkins, 130 S.W.3d at 600.

The purpose of the criminal nonsupport statute is to compel recalcitrant parents to fulfill their obligations of care and support; the purpose is not to enforce court-ordered child support obligations. State v. Moss, 791 S.W.2d 501, 503 (Mo.App.1990). As such, in a prosecution under section 568.040, the existence of a child support order is merely evidence of what constitutes “adequate support.” State v. Sellers, 77 S.W.3d 2, 5 (Mo.App.2002).

Here, the uncontradicted evidence showed that Reed sired two children by his ex-wife. He treated the children as his own throughout them lives, never disclaiming that he was their father. He admitted at trial that he was the children’s father. Moreover, the uncontradicted evidence showed that he provided virtually no support for the children during the charged periods.

The State proved that a parent-child relationship existed, and this legal obligation was never questioned. Morovitz, 867 S.W.2d at 508. Once Reed admitted that he was the father and never questioned this fact throughout their lives, he admitted that a legal obligation existed and he necessarily admitted that he had “knowledge of the legal obligation.” Id. at 508-09.

In so holding, it is acknowledged that Morovitz found that the “knowledge” element was proven because “[defendant was aware of the court order of support, since it was a part of his dissolution decree and since he fought the obligation for years.” Id. at 509. However, the Court neither held nor intimated that a support order was a prerequisite to proof of the knowledge element in a section 568.040 prosecution. The analysis of the “knowledge” element in that case was not exhaustive and did not delve into the history of the “knowing” requirement under section 568.040 and its predecessor statutes. The “knowledge” element was handled by merely noting that obviously it was proven via evidence that the defendant knew about his dissolution decree obligation. Id. Simply stated, the Court was not confronted with the implicit question presented here,.ie., what evidence satisfies the knowledge element when there is no court-ordered support figure?

Contrary to Reed’s assertions, Morovitz does not compel a finding that a father who lives apart from his children and fails, without good cause, to provide them adequate support, can avoid the reaches of section 568.040 simply due to the absence of knowledge of a court order setting a support amount. Such a notion is neither logical nor is it in keeping with the historically recognized purpose for such legislation, namely, punishment of a parent who fails to fulfill his or her legal duty to support his or her children, State v. Earnest, 162 S.W.2d 338, 342 (Mo.App.1942), and securing for children such due and proper care as is necessary to protect their lives and health, State v. Russell, 102 S.W.2d 727, 728 (Mo.App.1937).

The result in this case does not make the “knowledge” element meaningless in a section 568.040 case. Examples of when resolution of the “knowledge” element could be dispositive include: (a) an instance where the alleged father of an out-of-wedlock child defends on the ground he never knew (during the relevant period of non-support) he had sired a child, or (b) a case in which a married father claims he had a long-term separation from his wife and that she bore a child during that separation without his knowledge. In these situations, the parent could fully admit that he was the biological father while still denying knowledge of the legal obligation during the relevant time periods. While this certainly would be termed generally as “good cause” for failing to support, it is not the type of “good cause” contemplated by the statute. Statutory “good cause” refers to a parent’s inability to provide support, not the simple unknowing failure to provide such. See section 568. 040. 1(2); Davis, 469 S.W.2d at 5; State v. Mehaffey, 534 S.W.2d 563, 564 (Mo.App.1976), and cases cited therein; State v. Hobbs, 220 Mo.App. 632, 291 S.W. 184, 186 (1927) (predecessor statute).

In addition, the “knowledge” element could be dispositive if a person is charged with the class D felony of failing to pay child support and proof is required that the arrearage is more than $5,000. Section 568.040.4 provides:

Criminal nonsupport is a class A misdemeanor, unless the person obligated to pay child support commits the crime of nonsupport in each of six individual months within any twelve-month period, or the total arrearage is in excess of five thousand dollars, in either of which case it is a class D felony.

To prosecute a case as a class D felony because the total arrearage is in excess of $5,000, a defendant’s knowledge of a specific legal obligation to pay a set dollar amount as child support is required. Otherwise, there would be no point in setting a $5,000 cumulative amount as an alternative to failure to pay any six individual months within a twelve-month period. In this case, the proof was sufficient because Reed was not charged under the $5,000 cumulative amount provision.

CONCLUSION

The judgment is affirmed.

WOLFF, C.J., STITH, PRICE, LIMBAUGH and RUSSELL, JJ„ concur; TEITELMAN, J., concurs in part and dissents in part in separate opinion filed; WHITE, J., concurs in opinion of TEITELMAN, J.

RICHARD B. TEITELMAN, Judge,

concurring in part and dissenting in part.

I agree with the per curiam opinion that Reed’s Batson challenge is without merit. I respectfully dissent because the state did not bear its burden of proving each element of the offense.

No one doubts that parents are under a moral obligation to take care of and provide for their children. What is at issue in this case, however, is the application of the criminal law and whether the state bore its burden of proving each element of the offense beyond a reasonable doubt. Section 568.040 is a criminal statute, and the rule of strict construction requires courts to construe criminal statutes strictly against the state. State v. Hobokin, 768 S.W.2d 76, 77 (Mo. banc 1989). Consequently, the resolution of this case must be based upon a strict application of the plain language of section 568.040.

In relevant part, section 568.040 provides that “a parent commits the crime of nonsupport if such parent knowingly fails to provide, without good cause; adequate support which such parent is legally obligated to provide for his child or stepchild who is not otherwise emancipated by operation of law.” Therefore, in order to convict a parent of nonsupport, the state must prove that the parent: (1) knowingly failed to provide; (2) without good cause; (3) adequate support; (4) which he or she was legally obligated to provide. State v. Morovitz, 867 S.W.2d 506, 508-509 (Mo. banc 1993). The per curiam opinion concludes that because the state proved that Reed knew he was the father, the state also established a “legal obligation” for purposes of section 568.040. This reasoning conflates the “knowingly” and “legal obligation” elements of section 568.040.

The terms “knowingly” and “legal obligation” are separate and distinct elements under section 568.040. If knowledge of paternity is sufficient to prove the legal obligation element under section 568.040, then there would be no need for courts to consider evidence of court ordered support obligations. Once parentage was established, the existence of a court ordered support obligation would be irrelevant as to the defendant’s knowledge of a legal obligation. However, in all of the cases cited in the per curiam opinion, the “knowingly” element referred to the defendant’s knowledge of a court ordered support obligation. In fact, there appears to be no case under section 568.040 or predecessor statutes in which a parent has been convicted of felony nonsupport absent a court ordered support obligation. If knowledge of parentage alone is deemed sufficient to establish a legal obligation for purposes of section 568.040, then the separate statutory element of “legal obligation” appears to ,be meaningless and redundant. When interpreting a statute, however, this Court is required to give meaning to every word of the legislative enactment. Spradlin v. City of Fulton, 982 S.W.2d 255, 262 (Mo. banc 1998). Interpreting section 568.040.1 as the per curiam opinion relegates the separate statutory term “legal obligation” to surplusage, included for no reason. This Court has long held that every word of the statute should be given meaning and not be considered a needless repetition. Lora v. Director of Revenue, 618 S.W.2d 630, 633 (Mo. banc 1981). Until today’s decision, the courts and the state have implicitly recognized this by securing convictions for felony nonsupport only upon proof of the defendant’s knowledge of a legal obligation in the form of a court ordered support obligation.

The Due Process Clause of the Fourteenth Amendment to the United States Constitution prohibits the conviction of any defendant “except upon evidence that is sufficient fairly to support a conclusion that every element of the crime has been established beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 314-15, 99 S.Ct. 2781, 2786-87, 61 L.Ed.2d 560 (1979). The state has failed to prove that Reed knowingly failed to meet a legal obligation to support his children. I would reverse the judgment on Counts I, II, III, and IV, but affirm the judgment in all other respects.

      . This Court transferred this case after opinion by the Court of Appeals, Southern District, authored by the Honorable Kenneth W. Shrum. Mo. Const. article V, section 10. Parts of that opinion are incorporated without further attribution.

      . All statutory references are to RSMo 2000. Criminal nonsupport is a class A misdemean- or, but is elevated to a class D felony if the person obligated to pay support commits the crime of nonsupport in each of six individual months within any twelve-month period or the total arrearage is in excess of $5,000. Section 568.040.4.

        .Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

      . In addition to Morovitz and Watkins, see, e.g., State v. Davis, 469 S.W.2d 1, 3 (Mo.1971); State v. Sellers, 77 S.W.3d 2, 5 (Mo.App.2002); State v. Schneider, 971 S.W.2d 355, 356 (Mo.App.1998); State v. Moss, 791 S.W.2d 501, 503 (Mo.App.1990).


author: JOHN E. PARRISH, Judge.

text:
    Carol Sue KING, Appellant, v. COMMUNITY BLOOD CENTER OF The OZARKS and Division of Employment Security, Respondents.
    No. 26675.
    Missouri Court of Appeals, Southern District, Division One.
    Oct. 19, 2005.
    Motion for Rehearing or Transfer to Supreme Court Denied Nov. 3, 2005.
    Margaret A. Schlachter, Springfield, for Appellant.
    Larry R. Ruhmann, St. Louis, for Respondents.
   JOHN E. PARRISH, Judge.

Carol Sue King (claimant) appeals the order of the Labor and Industrial Relations Commission (the commission) denying waiting week credit for unemployment compensation benefits. The order disqualified claimant for waiting week credit and benefits for four weeks. This court affirms.

Claimant worked for Community Blood Center of the Ozarks (employer) from August 28, 1995, until she was discharged on January 21, 2004. The commission found:

On January 17, 2004, Employer’s surveillance cameras recorded that Claimant worked from 5:49 a.m. until 10:10 a.m. (four hours and 21 minutes). Claimant instructed an employee (Heidi Schisler) under her supervision to write down on Employer’s “log” that Claimant had worked seven and three-quarters hours that day.
On January 19, Claimant’s supervisor queried Claimant about the large number of hours she worked on January 17 and the resulting overtime liability. Claimant still did not correct the log entry. On January 21, Employer again confronted Claimant with the inaccurate entry. At first, Claimant denied telling Ms. Schisler to record that Claimant worked seven and three-quarters hours that day. After Ms. Schisler was brought into the meeting, Claimant admitted telling her to record an inaccurate number of hours.

Claimant states two points on appeal. Both assert that the record on appeal does not support the decision of the commission. Claimant contends the record does not contain substantial and competent evidence of misconduct by claimant to support the commission’s denial of benefits. In her argument, claimant refers to her testimony at the hearing conducted in this case. She testified .that the recording of incorrect hours worked was a result of mistaken communication between her and Ms. Schisler; that it was not intentional. She argues that, for that reason, she should not be denied waiting week credit for purposes of unemployment compensation benefits; that, by reason of her testimony, the record on appeal is not sufficient to uphold the commission’s decision.

Section 288.050.2, RSMo 2000, as it existed at the time of claimant’s discharge, provides:

Notwithstanding the other provisions of this law, if a deputy finds that a claimant has been discharged for misconduct connected with the claimant’s work, such claimant, depending upon the seriousness of the misconduct as determined by the deputy according to the circumstance in each case, shall be disqualified for waiting week credit or benefits for not less than four nor more than sixteen weeks for which the claimant claims benefits and is otherwise eligible.

Laswell v. Industrial Commission of Missouri, 534 S.W.2d 613 (Mo.App.1976), states:

Missouri has accepted the definition found in 76 Am.Jur.2d, Unemployment Compensation § 52, p. 945: “ * * * misconduct within the meaning of an unemployment compensation act excluding from its benefits an employee discharged for misconduct must be an act of wanton or wilful disregard of the employer’s interest, a deliberate violation of the employer’s rules, a disregard of standards of behavior which the employer has the right to expect of his employee, or negligence in such degree or recurrence as to manifest culpability, wrongful intent, or evil design, or show an intentional and substantial disregard of the employer’s interest or of the employee’s duties and obligations to the employer.”

Id. at 616.-

As the trier of fact, the-Commission may choose to believe or disbelieve all or none .of any witness’ testimony. Morris v. Labor and Industrial Relations Commission, 573 S.W.2d 439, 441[4] (Mo.App.1978). In our review, the findings of the Commission as to the facts, if supported by competent and substantial evidence and in the absence of fraud, shall be conclusive, and our jurisdiction is confined to questions of law. § 288.210, RSMo 1978.[] We must consider the evidence in the light most favorable to the Commission’s findings, together with all reasonable inferences that may be drawn therefrom, and we may not substitute our judgment on the evidence for that of the Commission, or set aside the Commission’s findings and order, unless they are clearly contrary to the overwhelming weight of the evidence. LaPlante v. Industrial Commission, 367 S.W.2d 24, 27[3] (Mo.App. 1963).

Helm v. Labor & Indus. Relations Com’n of Missouri 654 S.W.2d 327, 328 (Mo.App.1983).

The order of the commission is supported by competent and substantial evidence on the whole record. No error of law appears. Further opinion would have no precedential value. The commission’s order is affirmed in compliance with Rule 84.16(b).

PREWITT, P.J., and RAHMEYER, J., concur.

      . The record on appeal identifies Ms. King as Carol Perkins. Appellant’s brief denotes that she was "formerly Perkins.”

      . The statute was changed, effective January 1, 2005, subsequent to the events on which this appeal is predicated. .

      . The substance of this statute, as it relates to the issue stated in the case from which this quotation is taken, remains the same although there have been changes in its language since the 1978 revision.


text:
    Kitty E. NICOLAI, Plaintiff/Appellant, v. CITY OF ST. LOUIS CIRCUIT ATTORNEY, Circuit Clerk of the 22nd Judicial Circuit, Mariano Favazza, Missouri State Highway Patrol, Troop C, St. Louis City Metropolitan Police Dept. and Federal Bureau of Investigation, Defendants/Respondents.
    No. ED 85785.
    Missouri Court of Appeals, Eastern District, Division Four.
    Nov. 1, 2005.
    Application for Transfer to Supreme Court Denied Jan. 9, 2006.
    Gail Gaus Renshaw, Wood River, IL, Nicholas J. Riggio, Sr.-co-counsel, St. Louis, MO, for appellant.
    David Frederick Barrett, Jefferson City, MO, for Mariano Favazza, Federal Bureau of Investigation, City of St. Louis Circuit Attorney and Missouri State Highway Patrol, Troop C.
    Jane Berman Shaw, St. Louis, MO, for St. Louis City Metropolitan Police Department.
    Before NANNETTE A. BAKER, P.J., ROBERT G. DOWD, JR., J. and SHERRI B. SULLIVAN, J.
   ORDER

PER CURIAM.

Kitty E. Nicolai appeals from the trial court’s amended judgment granting in part and denying in part her First Amended Motion to Expunge and Close [Arrest] Records. We have reviewed the briefs of the parties and the record on appeal and conclude that the trial court did not err in its amended judgment. An extended opinion would have no precedential value. We have, however, provided a memorandum setting forth the reasons for our decision to the parties for their use only. We affirm the judgment pursuant to Missouri Rule of Civil Procedure 84.16(b).