author: PATRICIA BRECKENRIDGE, Chief Judge.

text:
    Richard E. JUSTIS, Respondent, v. Quinton WILSON, Director of Revenue, Appellant.
    No. WD 57203.
    Missouri Court of Appeals, Western District.
    May 31, 2000.

      Jeremiah W. (Jay) Nixon, Atty. Gen., James A. Chenault, III, Sp. Asst. Atty. Gen., Mo. Dept, of Revenue, Jefferson City, for appellant.
    Dan K. Purdy, Osceola, for respondent.
    Before BRECKENRIDGE, C.J., SPINDEN and HOWARD, JJ.
   PATRICIA BRECKENRIDGE, Chief Judge.

The Director of Revenue (Director) appeals from a judgment of the circuit court setting aside the revocation of Richard Justis’s driver’s license for an accumulation of points. The. circuit court set aside the revocation because it was not supported by competent and substantial evidence. Because this court finds that (1) the Director presented competent and substantial evidence that Mr. Justis’s conviction resulted in the assessment of twelve points under § 302.302.1., RSMo Cum.Supp.1997, (2) the Director had no discretion under § 302.304.7, but to revoke Mr. Justis’s license, and (3) Mr. Justis received sufficient notice under § 302.304.1, the cause is reversed and remanded with instructions.

Factual and Procedural History

On September 21, 1998, Mr. Justis pled guilty to the charge of driving with excessive blood alcohol content (BAC) in the Circuit Court of Henry County, Missouri. When the court reported the conviction to the Director, the court incorrectly reported that Mr. Justis had been convicted of driving while intoxicated (DWI). On October 30,1998, Mr. Justis was issued a notice from the. Director, pursuant to § 302.304, indicating that his driving privilege would be revoked for one year due to an accumulation of points for traffic convictions. The notice stated that the points added to Mr. Justis’s record resulted from the following convictions: (1) 10/29/98 Driving while intoxicated - 12 points; (2) 8/27/97 Speeding - 3 points; (3) 10/24/96 Fail to yield right of way - 2 points. On that same day, Mr. Justis was issued a second notice from the Director, which stated that his privilege to drive would be permanently denied, pursuant to § 302.060.

Mr. Justis filed a petition for judicial review, pursuant to § 302.311, RSMo 1994, in which he asserted that he had not been convicted for DWI, § 577.010, RSMo 1994, as indicated on the notice, but was in fact convicted for BAC, § 577.012. A hearing was held, at which time Mr. Justis made clear that he was appealing the point suspension, not the permanent denial of his driving privileges. During the hearing, Mr. Justis offered into evidence a copy of his judgment and sentence for BAC. The Director offered into evidence a certified copy of Mr. Justis’s driving record. The record showed that, in addition to the conviction on September 21, 1998, Mr. Justis had nine prior DWI convictions. The Director told the court that while the notice was technically inaccurate for listing DWI instead of BAC, Mr. Justis was convicted of BAC and since it was not his first DWI or BAC conviction, the point value would be the same for a conviction under either charge. The circuit court took the case under advisement and stated, “So in essence, the argument boils down to they put in were driving while intoxicated in their notice, they should have put BAC. It would not change the point value under RSMo 302.302. They’re one in the same points.” The circuit court subsequently issued a judgment setting aside the revocation of Mr. Justis’s license for one year due to an accumulation of points. The circuit court stated, in pertinent part, in its judgment:

The notice that was mailed to Plaintiff ... indicates that twelve (12) of those accumulated points were assessed as a result of a driving while intoxicated conviction that was received and processed by the Department of Revenue on October 29, 1998. Plaintiff maintains that this assessment of points was in error, because he was not, in fact, convicted of driving while intoxicated. Plaintiff offered Exhibit # 1, a copy of the sentence and judgment in case number CR498-695M arising out of this Court. The Court takes judicial notice of the proceedings in that case, which reflect that Plaintiff was convicted of operating a motor vehicle with blood alcohol content over .10 percent (B.A.C.) and operating a motor vehicle with defective equipment.

The circuit court noted that the Director had the burden of proof and then held:

Defendant maintained at the hearing herein that “it doesn’t make any difference” in that a conviction for driving with excess blood alcohol content would also result in the assessment of twelve (12) points against Plaintiffs drivers license, and result in a revocation. While that may or may not be the case, the Court is not going to speculate as to what the result might be if the proper convictions are shown on Plaintiffs driving record.

The judgment concluded with the statement that the revocation of Mr. Justis’s license was set aside because the revocation was not supported by competent and substantial evidence.

Five days after the hearing, the Henry County Circuit Court, the court from which Mr. Justis’s conviction for BAC originated and the same court which issued the judgment, sent the Director a driving record revision request to amend the charge of DWI that was reported incorrectly to BAC. The Director subsequently filed a motion for new trial and to set aside judgment that was heard and denied. The Director appeals.

Standard of Review

Section 302.311, RSMo 1994 governs the procedures and scope of review to be followed in proceedings concerning petitions for review of driver’s license revocations. Brown v. Director of Revenue, 772 S.W.2d 398, 400 (Mo.App.1989). It reads, in pertinent part:

In the event an application for a license is ... revoked by the director, the applicant or licensee so aggrieved may appeal to the circuit court ... in the manner provided by chapter 536, RSMo, for the review of administrative decisions at any time within thirty days after notice that a license is ... revoked. Upon such appeal the cause shall be heard de novo and the circuit court may order the director to ... sustain the suspension or revocation by the director, set aside or modify the same, or revoke such license. Appeals from the judgment of the circuit court may be taken as in civil cases....

Section 302.311, RSMo 1994.

This court reviews the judgment of the circuit court rather than the Director’s decision. Silman v. Director of Revenue, 880 S.W.2d 574, 575 (Mo.App.1994). The judgment of the circuit court will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carrón, 536 S.W.2d 30, 32 (Mo. banc 1976).

Point on Appeal

The Director argues in his sole point on appeal that the circuit court erred in setting aside the revocation of Mr. Justis’s driving privileges, in that he had committed an offense requiring the revocation of his license, whether the conviction was for DWI or BAC. Specifically, the Director argues that § 302.302.1(8) mandates that twelve points be assessed for either a second or subsequent BAC conviction or a second or subsequent DWI conviction and that § 302.304.7 requires revocation be imposed for the accumulation of twelve points within twelve months, giving the Director no discretion to do otherwise. The Director also argues that the notice provided to Mr. Justis was sufficient and that he was not prejudiced since the assessment of points was the same for either a DWI or BAC.

Sufficient Evidence of Assessment of Points to Require Revocation

Sections 302.302 and 302.304 instruct the Director to set up a point system for traffic violations, and provides for the suspension or revocation of an individual's driver’s license due to an accumulation of points within a certain period of time. James v. Director of Revenue, 893 S.W.2d 406, 407 (Mo.App.1995). “The statutes grant the Director no discretion from revoking the driving privileges where the accumulation of points meets the statutory amount.” Id.

The point values assessed for various traffic offenses is established by § 302.302.1. Subsection 8 of § 302.302.1 states that twelve points are assessed “[f]or the second or subsequent conviction of any of the following offenses however combined: driving while in an intoxicated condition, driving under the influence of controlled substances or drugs or driving with a blood alcohol content of ten-hundredths of one percent or more by weight.” Mr. Justis’s driving record indicates that he has been convicted nine previous times for DWI. As a matter of law, whether Mr. Justis was convicted of DWI or BAC, the assessment of twelve points against Mr. Justis’s driver’s license was mandated by law.

Under § 302.304.7, “[t]he director shall revoke the license and driving privilege of any person when the person’s driving record shows such person has accumulated twelve points in twelve months.... ” Thus, the Director had no discretion under § 302.304.7 but to revoke Mr. Justis’s license. Brown, 772 S.W.2d at 400. The Director is merely performing a ministerial act directed by the legislature. Id.

This court has found that a circuit court’s discretion is also limited by the provisions of § 302.304. Brown, 772 S.W.2d at 400. “Although the circuit court is a court of general jurisdiction, when it is engaged in the exercise of a special statutory power its jurisdiction is limited by such statutory power.” Id. When the Director presents evidence that a driver has accumulated twelve points in twelve months, the court is compelled to follow the mandate of the statute to revoke the driver’s license and cannot exercise its discretion to fashion any other remedy. Id. The court only has the power to sustain the revocation if the Director meets his burden of proof by proving that the driver accumulated twelve points in twelve months. Id.

Here, the issue.is whether the Director presented sufficient evidence to prove that Mr. Justis had accumulated twelve points in twelve months, requiring the revocation of his driver’s license. The evidence at the hearing was undisputed. Mr. Justis offered into evidence the court’s file to prove his BAC conviction on September 21, 1998. The Director then offered into evidence Mr. Justis’s driving record, which proved that he had nine prior DWI convictions. The circuit court set aside the revocation of Mr. Justis’s license because the Court was “not going to speculate” whether twelve points were assessed as a result of Mr. Justis’s BAC conviction as represented by the Director. Speculation was not necessary, however. Section 302.302.1(8) mandates that twelve points be assessed for a second or subsequent conviction for a BAC or DWI or any combination thereof. The undisputed evidence before the court proved that Mr. Justis accumulated twelve points in twelve months, mandating the revocation of his license under § 302.304.7. The circuit court erred when it set aside the revocation of Mr. Justis’s driver’s license for lack of competent and substantial evidence.

The Director includes an argument in his brief on appeal that Mr. Justis received sufficient notice under § 302.304.1, even though the notice to Mr. Justis of his revocation incorrectly listed a DWI conviction, rather than a BAC conviction. This court agrees. Section 302.304.1 states that, “The director shall notify by ordinary mail any operator of the point value charged against the operator’s record when the record shows four or more points have been accumulated in a twelve-month period.” The Director complied with the statute because the notice to Mr. Justis properly informed him of the point value charged against his record. Of greater significance, however, is the fact that Mr. Justis did not challenge the revocation of his license on the basis of inadequate notice either in the circuit court or on appeal, so no further discussion of the adequacy of the notice is necessary.

Conclusion

This court finds that the Director presented competent and substantial evidence that Mr. Justis’s conviction for BAC resulted in the assessment of twelve points under § 302.302.1, and that, as a matter of law, his license should be revoked for a period of one year. Accordingly, this court reverses the judgment and remands the cause to the circuit court for the entry of an order sustaining the revocation of Mr. Justis’s driver’s license for point accumulation.

All concur.

      . All statutory references are to the Revised Statutes of Missouri Cumulative Supplement 1997, unless otherwise indicated.

      . The dates listed reflect the date the convictions were received and processed by the Department of Revenue.


source: Caselaw Access Project

author: VICTOR C. HOWARD, Presiding Judge.

license: Public Domain

text:
    Bessie and William NANCE, Appellants, v. STATE TAX COMMISSION OF MISSOURI, Defendant, Robert M. Boley, Director, Department of Assessment for Jackson County, Missouri, Respondent.
    No. WD 55981.
    Missouri Court of Appeals, Western District.
    May 31, 2000.

      William E. Quirk and Michael J. Elston, Kansas City, for Appellants.
    Michael A. LeVota, Asst. County Counselor, Kansas City, for Respondent.
    Before: HOWARD, P.J., and ULRICH and SMART, JJ.
   VICTOR C. HOWARD, Presiding Judge.

William Nance appeals from the circuit court’s judgment affirming the State Tax Commission of Missouri’s order concerning the valuation of property he owns. Nance’s sole point on appeal is that the trial court erred in affirming the Commission’s order because the Commission’s analysis of the market value of the Nance property was not supported by competent and substantial evidence in that 1) the credible evidence proved that, as a result of the long-term uneconomic lease encumbering the property,, the leased fee was worthless, and 2) substantial and competent evidence indicated that based on actual rent received the leasehold was worth substantially less than the appraised value.

We affirm.

Facts

On November 25, 1958, NACO Development Company, which was owned by the Nance family, leased a 6.3-acre piece of property commonly described as 8907 East U.S. 40 Highway in Jackson County, Missouri, for a 99-year term from the owners of the fee simple for an annual rental of $4,500. The fee simple owners were Luther Melcher, Price Williford, and Duran Sleyster (“the Melcher group”). One year later, NACO assigned the lease to “Forest and Bessie Nance, husband and wife, as tenants by the entirety, with rights of sur-vivorship.” The lease included an option for the lessee or its assignees to purchase the property from the Melcher group for $62,500.

In 1962, D & L Development Company subleased the property from the Nances for the remainder of the term of the original lease at a rate of $800 per month. Under the terms of the sublease, the Nances are responsible for property taxes on the unimproved property, while D & L pays the property taxes resulting from any improvements on the property. When the Nances first subleased the property, the total property taxes amounted to approximately $300 per year.

In 1970, the Nances exercised their option to purchase the property for $62,500. The Nances obtained title to the property-in 1971. Bessie Nance became the sole owner of the property when her husband died. In 1982, Mrs. Nance conveyed the property to her son, William L. Nance. The 1982 deed was not recorded until October 3, 1994, shortly before Mrs. Nance died.

D & L never made any significant improvements to the property and currently rents the property to third parties on a month-to-month basis. By 1992, real estate taxes on the property had escalated to $9,000 per year because the tax assessor set the market value at $283,000. The assessor’s calculation of fair market value was based on the assumption that the fee was unencumbered and owned by Mrs. Nance as a fee simple.

Mrs. Nance, then still the record owner of the property, applied for review of the valuation of the property in the State Tax Commission. She also sought review of her 1994 property taxes, which were based on a market value of $292,437. The market valuations for both tax years are now before this court.

The State Tax Commission initially rejected Nance’s application for review. Mr. Nance appealed to the Circuit Court of Jackson County. By agreement of the parties, the case was remanded to the Commission for a second evidentiary hearing. The Commission adjusted the valuations for both 1992 and 1994 in light of the Missouri Supreme Court’s decision in Missouri Baptist Children’s Home v. State Tax Comm’n, 867 S.W.2d 510 (Mo. banc 1993) (“MBCH ”). In short, the Commission concluded that the lease created two property interests: the leasehold, owned by D & L, and the leased fee, owned by Mr. Nance. Each interest is subject to property tax under § 137.115.1 RSMo 1994. Thus, the fair market value for property tax purposes, according to the Commission, is the sum of the separately valued interests created by the long-term lease. The Commission held that the difference between the fair market value of the unencumbered fee simple and the sum of the values of the leased fee and the leasehold was the impact of the lease on the value of the property.

This appeal does not challenge the Commission’s methodology; rather, this appeal is premised on errors made in valuing the two separate interests - Mr. Nance’s leased fee and D & L’s leasehold - that make up the fair market value of the property adjusted for the impact of the long-term lease.

Evidence regarding the negotiation of the 1962 lease

During the second hearing before the Commission, Mr. Nance testified that he was instrumental in negotiating the initial lease for his parents in 1958 and the sublease to D & L in 1962. He also testified that in 1962 he believed that the sublease arrangement was not only prudent, but was a “winner,” because his parents would receive $9,600 in rent annually on a piece of land they were renting for $4,500 per year and that would cost them $62,500 to purchase under the 1958 lease. He also testified that the sublease did not require D & L to pay property taxes on the unimproved land because the value of the underlying land, and thus the amount of property taxes owed on an annual basis, was “pretty stable.” Both before and after the 1962 D & L lease, the Nances were required to pay the property taxes, and Mr. Nance was not “aware of any significant or material changes in taxes” that caused him concern about that requirement.

Robert J. Chapman, Appellant’s expert, testified that the 1962 lease was prudent despite its 95-year term and the fact that property taxes were not passed on to the tenant. He stated that in his opinion the lease was prudent because the income stream over ten years would exceed the option price by more than $30,000. Mr. Chapman testified that only since 1980 has it been common practice to include tax-escalation clauses in long-term leases.

No evidence was presented that the duration of the D & L lease was typical of leases entered into in the early 1960s. Nor was there evidence of any other such leases executed in the late 1960s or evidence showing the necessity of a 95-year lease to enable D & L to obtain long-term financing to make improvements possible.

Evidence regarding the value of the property for the 1992 tax year

Respondent’s expert, Lynn Michaelson, submitted a report valuing the leased fee at $81,500, the leasehold at $132,000, and the property unencumbered at $283,000 as of January 1, 1992. The report is an addendum to the appraisal he prepared while employed in the county’s assessment department, which was introduced as Exhibit B in the first hearing.

Mr. Michaelson’s appraisal of the leased fee was based solely on the income approach, but using actual rental income received capitalized at a rate of 11.17%. Mr. Michaelson assigned no value to Mr. Nance’s right of reversion, which probably will not occur until 2057. The appraisal did not consider the effect of the lease’s property tax provision on the income stream. Unlike the appraisal on the leased fee, the appraisal of the leasehold considered a hypothetical market rental rate rather than the actual rent D & L receives from its tenants.

Under cross-examination, Mr. Michael-son reiterated his opinion that the 1992 fair market value of Mr. Nance’s leased fee is $81,500. He testified that Mr. Nance could find a buyer for the leased fee for $81,500 with a $600 annual income stream, which amounts to a return on the hypothetical buyer’s investment of less than one percent. Mr. Michaelson also testified that the value of the leased fee would likely go down as time passes. Therefore, not only would the hypothetical buyer receive a return on his investment of less than one percent, but he would have to sell the leased fee at a loss (at least in the short term, while the landlord’s reversion-ary interest in 2057 is worthless). Nonetheless, the Commission concluded that the fair market value of Mr. Nance’s property for the 1992 tax year was $213,000 - Mr. Michaelson’s appraisal of the leased fee added to his appraisal of the leasehold.

At the hearing, Mr. Nance testified that no one would buy the leased fee for an income stream that was approximately $600 per year after taxes and declining with each increase in the assessed value.

Evidence regarding the value of the property for the 199k- tax year

The parties stipulated that the testimony of Mr. Nance and Mr. Chapman regarding the 1992 tax year would be admissible on the 1994 tax year as well.

With respect to the 1994 valuation, Mark E. Boettcher, a land appraiser with the Kansas City firm of Bliss Associates, Inc., testified that given the current tax burden, while “it would seem unlikely to me that a typical buyer would have any interest in ... buying the property,” the leased fee’s fair market value based on the income approach is $65,000 before the impact of property taxes is considered. When the tax burden is considered, the leased fee is worthless.

Steve Kennicutt, an appraiser with Jackson County, submitted his report, which indicated that the fair market value of the property was $300,000, while the leased fee was worth $90,000 and the leasehold was worth $136,000 as of January 1, 1993. At the hearing, he admitted that in making his valuations, he had incorrectly assumed that the property had public sewers. He also agreed that his $90,000 valuation of Mr. Nance’s interest in the property does not consider the current tax burden and that the leased fee is worthless when those taxes are factored in.

Mr. Kennicutt also stated that his valuation was based on annual income of $30,-000, while D & L’s annual income is closer to $13,800 per year, or only 46% of the hypothetical market rent assumed by Mr. Kennicutt’s appraisal. Mr. Kennicutt used the higher annual income in his valuation because he found that the current rental rates are “below market.” Additionally, like Mr. Michaelson, Mr. Kennicutt did not use the actual rent received by D & L to value the leasehold.

The Commission added Mr. Kennicutt’s appraisals of the leased fee and the leasehold together and set the fair market value of Mr. Nance’s property at $226,000.

On appeal to the Jackson County Circuit Court, Mr. Nance argued that the total fair market value of the property based on the income approach and using the actual rental income was only $65,000. The circuit court adopted the Commission’s findings of fact and affirmed the Commission’s determinations of true value. The court concluded that fair market value of the property was the sum of the value of the leased fee and the value of the leasehold. The court adopted the Commission’s findings on those values without any analysis and concluded that they were supported by competent and substantial evidence. This appeal followed.

Standard of Review

On appeal from a circuit court’s review of an administrative decision, we review the decision of the administrative agency, not the judgment of the circuit court. Evangelical Retirement Homes of Greater St. Louis, Inc. v. State Tax Comm’n of Missouri, 669 S.W.2d 548, 552. (Mo. banc 1984). On review of an administrative decision, this court is limited to a determination of whether the decision was supported by competent and substantial evidence upon the whole record, whether it was arbitrary, capricious or unreasonable, or whether the commission abused its discretion. Hermel, Inc. v. State Tax Comm’n, 564 S.W.2d 888, 894 (Mo. banc 1978). “A presumption exists in favor of the correctness of the valuation of the tax assessor.” Id. at 895. To rebut the presumption, Appellant must produce “substantial controverting evidence” showing the assessment to be excessive. Id.

The courts may not assess property for tax purposes. Savage v. State Tax Comm’n of Missouri, 722 S.W.2d 72, 75 (Mo. banc 1986). Proper methods of valuation and assessment of property are delegated to the Commission, and on review, the evidence must be considered in the light most favorable to the administrative body, together with all reasonable inferences which support it. Id.; see also Hermel, Inc., 564 S.W.2d at 896 (finding that “it is not within the purview of this court to determine the method of valuation to be adopted by the [C]ommission”). If the evidence would support either of two opposed findings, the reviewing court is bound by the administrative determination. Id. The Commission is the judge of the credibility of the witnesses and of the evidence. Equitable Life Assur. Soc’y of U.S./Marriott Hotels, Inc. v. State Tax Comm’n of Missouri, 852 S.W.2d 376, 380 (Mo.App. E.D.1993).

Argument

The sole point on appeal is that the trial court erred in affirming the State Tax Commission’s order because the Commission’s analysis of the market value of the Nance property was not supported by competent and substantial evidence in that 1) the credible evidence proved that, as a result of the long-term uneconomic lease encumbering the property, the leased fee was worthless, and 2) substantial and competent evidence indicated that based on actual rent received the leasehold was worth substantially less than the appraised value.

We reiterate that this appeal does not challenge the Commission’s methodology in finding that the difference between the fair market value of the unencumbered fee simple and the sum of the values of the leased fee and the leasehold is the impact of the lease on the value of the property. Rather, the appeal challenges the methodology used to value the two separate interests - the leased fee and the leasehold - that make up the fair market value of the property adjusted for the impact of the long-term lease.

Section 137.115.1 provides, in relevant part, that “[t]he assessor shall annually assess all real property ... and possessory interests in real property at the percent of its true value in money....” “True value in money is the price which the property would bring from a willing buyer when offered for sale by a willing seller. Thus, the true value is the fair market value of the property on the valuation date.” MBCH, 867 S.W.2d at 512.

Valuation of Leased Fee

Appellant contends that the true value of land or an interest in land is the fair market value, and the effect of a long-term lease on that value must be considered by the Commission. Appellant contends that evidence in this case proved that as a result of the long-term lease encumbering the property, the leased fee was worthless.

Mr. Boettcher, Appellant’s expert, used the income approach to value the property. He applied the 14% to 16% yield rate to the property’s $9,600 annual income, suggesting a value of $60,000 to $68,000, which is what Mr. Boettcher testified a knowledgeable and willing buyer would likely pay for the leased fee interest. Mr. Boettcher testified that he was not able to quantify the effect of the long-term lease on the property value. However, he testified that in his opinion a buyer would pay less for the property because of the unfavorable lease.

Mr. Michaelson, Respondent’s expert, used the cost approach to determine the site value, but used the income approach to value the leased fee interest. He testified that the market value for the leased fee interest for the 1992 tax year was $81,500. Mr. Michaelson capitalized the contract rent using an 8% interest rate and an effective tax rate of 3.17% for an overall rate of 11.17%. Mr. Michaelson also considered the reversion value, but found that the lack of growth in the area indicated a reversion of less than two-tenths of one percent.

Mr. Kennicutt, Respondent’s expert, also used the cost approach to determine the site value, but used the income approach to value the leased fee. In determining the value of the leased fee interest, Mr. Kennicutt capitalized the contract rent, less expenses, using a 7% interest rate and an effective tax rate of 3.15% for an overall rate of 10.15%. The resulting value was $89,852, which he rounded to $90,000.

Appellant relies heavily on Missouri Baptist Children’s Home v. State Tax Commission, 867 S.W.2d 510 (Mo. banc 1993), in support of his point. Therefore, we initially discuss the facts and holdings of that case. In MBCH, Missouri Baptist Children’s Home appealed the valuation of a piece of property it owned, which was subject to a long-term lease to S.S. Kresge Company (K-Mart). MBCH, 867 S.W.2d at 511. The issue was whether a long-term sub-market lease may be factored into a determination of the “true value in money” of the subject property. Id. The court held that the assessing authority may “utilize actual as well as potential income in determining true value.” Id. at 512. The court found that the out-of-jurisdiction cases supporting this method for determining property value “take a realistic approach to the economic conditions which cause property subject to long-term leases to have lower actual rentals than might be obtained if the property was unencumbered by the lease in the current market place.” Id. at 512-13. The court found that the cases noted “that it is often the long-term lease that gives value to property.” Id. at 513. The court went on to state that

[t]he fact that a long-term lease is necessary to obtain long-term financing, which in turn makes possible the improvements, the fact that the lessor is a large nationally known retailer whose very presence improves rental value of nearby commercial property and the fact that prudent potential buyers would take the lease into consideration in determining what they are willing to pay are economic factors weighing in favor of giving consideration to actual rentals rather than relying solely on hypothetical value.

Id. The court held that “[b]y contrast, consideration of potential rent hypothesizes an unrealistic market. It assumes that properties now subject to long-term below-market leases are suddenly available to rent.” Id. The court found that

[wjholly excluding below-market long-term leases from the equation assumes facts that do not and are unlikely ever to exist. At the same time, projected actual income may be adjusted to reflect current market conditions where actual rent substantially distorts the property’s true value. In fact, circumstances may exist where the income capitalization method is too vague or speculative to be a reliable measure of value. But to ignore actual rentals payable under a long-term lease when the lease was a prudent business transaction at the time it was entered into would have the effect not only of punishing the entrepreneur whose efforts created the environment for the market but would ignore economic realities.

Id. (Citation omitted.) The court concluded that

[pjlacing a value on real property is not an exact science. When relying on the income capitalization method to determine value, the factfinder necessarily has some discretion to decide what weight will be given to actual rent, as opposed to potential market rent, in reaching its decision. Where the lease was prudent when entered into, the Commission is quite correct to consider actual rent as a factor in determining the value of the property under the income capitalization method.

Id.

It is clear that the Commission was required to consider the effect of the long-term lease on the value of the property in this case. In MBCH, 867 S.W.2d at 513, the court found that “[wjholly excluding below-market long-term leases from the [valuation] equation assumes facts that do not and are unlikely ever to exist.” It is also clear that the Commission did take into account the effect of the long-term lease on the value of the property. The Commission found that “[a] long-term lease is a relevant factor to consider when determining value,” and recognized that “the existence of the leasehold has a chilling effect on the value of the property.”

Citing MBCH, the Commission found that it may look at contract rent in conjunction with economic rent if a long-term lease was prudent when entered into. The Commission found that under the supreme court’s analysis in MBCH, a prudent lease is one that gives the property value. The Commission found that the factors present in MBCH (i.e., the long-term lease was necessary to obtain long-term financing which made improvements possible, and/or the leaseholder was a large, nationally known retailer whose presence enhances nearby property values) are not present in the case at bar. The Commission found that the lease was not prudent when entered into for four reasons. First, the Commission found that the testimony that the lease was prudent because it was returning in excess of ten percent per year on the $6,700 investment was without merit because 1) the evidence showed that the Nances did not even purchase the property until eight years after they sublet it to D & L, and 2) they were never under any obligation to purchase the property, so “return on investment” was not a verifiable motive. Second, the Commission found that “the very concept of a prudent lease requires the exercise of sound, cautious judgment,” and there was no credible evidence that would suggest that it was sound business judgment to tie up land for 95 years and to bear the tax burden on that land with no anticipation of significant improvement by a significant leaseholder. Third, the Commission found that Appellant’s argument that the lease was prudent because the ground value “looked pretty stable” was not persuasive. The Commission cited the fact that NACO or the Nances paid $4,500 per year rent and $300 per year taxes for the property in 1958, and in just over three years they were able to sublet the property for $9,600 per year, an increase of over 100 percent. The Commission found that such an increase in value in such a short period of time suggested that the Nances’ belief that the ground value was “pretty stable” was “extremely poor business judgment,” and therefore the lease could not be characterized as prudent. Fourth, the Commission found that, unlike in MBCH, the evidence did not support a finding that the 95-year D & L lease was typical of leases entered into in the early 1960s.

The Commission found that even though the D & L lease was not prudent, it could be considered if the evidence suggested that a prudent potential purchaser would take the lease into consideration when determining what he was willing to pay for the property. The Commission found that both of Respondent’s experts found that the sum of the leased fee value and the leasehold value was less than the fee simple value, and at least some portion of the difference was attributed to the effect of the long-term lease. Because the Commission found that a prudent buyer would pay no more for the property than what he would have to pay for its parts, the buyer would attempt to purchase each part separately. Therefore, the Commission found that true value in money for the subject property was $213,500 for 1992 and $226,-000 for 1994.

The Commission stated that projected actual income may be adjusted to reflect current market conditions where actual rent substantially distorts the property’s true value. The Commission found that “[t]he contract rent for the subject property substantially distorts its market value.” The Commission stated as follows:

[Appellant] argues that under the language of Missouri Baptist ... the property cannot have a value in excess of the capitalized value of the contract rent. Such a mandate cannot be found in Missouri Baptist. To the contrary, the Supreme Court stated that the income capitalization method may be too speculative to be a reliable measure of value when actual rent substantially distorts the property’s true value.... This case is a perfect example of the exception the Supreme Court was addressing. The only evidence on the record indicates that the unencumbered fee simple value for the property was $283,000 in 1992 and $300,000 in 1994. The leasehold alone was valued between $132,000 and $136,000. However, under [Appellant’s] argument, the property would have a value of no more than $90,000, the highest value proposed for the leased fee based on its income stream. The market value of the property must be at least equal to the market value of the ownership interests involved. Clearly, a value based solely on the actual rent substantially distorts the property’s total market value and therefore, cannot be a reliable indicator of that total value.

Appellant contends that the Commission’s finding that the fair market value of the leased fee was $81,500 and $90,000 for the tax years at issue is not supported by competent and substantial evidence in the record because all experts except Mr. Mi-chaelson agreed that, considering the terms of the long-term lease encumbering the property, the fair market value of the leased fee was zero. Appellant argues that Mr. Miehaelson’s testimony about the value of the leased fee was inherently unreliable because it was based on the unrealistic assumption that a buyer would invest $81,500 for, at best, an annual return of less than one percent over sixty years, assuming taxes do not rise over that period.

Appellant may be correct in asserting that nobody would purchase the leased fee at its present terms considering the tax burden. However, assessing the value of the leased fee interest in this case as zero would go against public policy. As Respondent points out, if a property owner could unilaterally alienate his property by lease or by other actions that make the property have no value to him, the taxing authority could not collect appropriate property tax because of the taxpayer’s unilateral action. If the property were not valued and assessed as unencumbered by the lease, the taxpayer appears to be afforded a tax cut because of the poor judgment of his predecessors.

Valuation of Leasehold

Appellant contends that the Commission compounded its error by relying on erroneous appraisals of the leasehold based on unsubstantiated, hypothetical market rent rather than the actual contract rent received by D & L, as required, with limited exceptions not applicable here, by Missouri Baptist Children’s Home v. State Tax Comm’n of Missomñ, 867 S.W.2d 510 (Mo. banc 1993).

Concerning the valuation of the leasehold for the 1992 tax year, the Commission noted the following in its decision:

To determine the leasehold value, Mr. Michaelson first determined the fee simple value from comparable sales and deducted the cost of demolition ($283,000). He then developed market land rent ($28,300) by using a typical capitalization rate for this type of property (10%). Mr. Michaelson testified that he could not develop a capitalization rate from similarly leased properties because there were none so he was forced to develop his capitalization rate from what he thought the fee simple value of the property should be. Finally, he subtracted the actual rent ($9,600) from the market rent ($23,800) to determine the benefit to the leaseholder ($18,700). Because the leasehold is subject to fluctuations in the real estate market and changes in the surrounding neighborhood, Mr. Michaelson determined that it was more volatile and had a higher degree of risk than the leased fee estate. Therefore he capitalized the benefit to the tenant at 11% rather than 8% assigned to the leased fee. A 3.17% effective tax rate was added for an overall rate of 14.17% indicating a value of $132,000.

In regard to the valuation of the leasehold for the 1994 tax year, the Commission noted as follows:

To determine the leasehold value, Mr. Kennicutt first determined the fee simple value from comparable sales ($300,-000). He then developed market land rent ($30,000) by using a typical capitalization rate for this type of property (10%). Finally, he subtracted the actual rent plus expenses ($10,700) from the market rent ($30,000) to determine the benefit to the leaseholder ($19,300). Because the leasehold is subject to fluctuations in the real estate market and changes in the surrounding neighborhood, Mr. Kennicutt determined that it was more volatile and had a higher degree of risk than the leased fee estate. Therefore, he capitalized the benefit to the tenant at 11% rather than 7% assigned to the leased fee. A 3.15% effective tax rate was added for an overall rate of 14.15% indicating a value of $136,000.

The Commission’s summaries of the appraisers’ valuations are supported by the record. In valuing the leasehold, both Mr. Michaelson and Mr. Kennieutt used the income capitalization method, an approved method for valuing leaseholds. Equitable Life Assurance Soc’y of U.S.,/Marriott Hotels, Inc., 852 S.W.2d at 378. Contrary to Appellant’s contention, we do not find any-' thing in MBCH that stands for the proposition that when valuing a leasehold, fair market value is established solely by actual rent received. To the contrary, the court in MBCH specifically held that “projected actual income may be adjusted to reflect current market conditions where actual rent substantially distorts the property’s true value.” MBCH, 867 S.W.2d at 513. The evidence in this case supports the finding that the actual income D & L was receiving under its lease substantially distorted the leasehold’s true value. Therefore, we conclude that nothing in MBCH affects the validity of the method used by Mr. Michaelson and Mr. Kennieutt to determine the value of the leasehold.

Moreover, the Commission found that “[i]n a case alleging overvaluation, [Appellant] must not only present evidence which overcomes the presumption in favor of the Board of Equalization, but must also present substantial and persuasive evidence showing that the value which he proposes is correct.” Appellant’s expert made no attempt to value the leasehold in this case. Therefore, the Commission may not be charged with error in accepting Respondent’s valuations of the leasehold. See Hercules, Inc. v. State Tax Comm’n of Missouri, 787 S.W.2d 739, 742 (Mo.App. E.D.1989) (affirming the Commission’s valuation on the basis that the appellants failed to prove a lesser true value in money of the assessed property).

To limit the value of the property to the value of the leased fee would ignore the value of the leasehold interest. Under § 137.115, the assessor is required to assess all real property and possessory interests in real property. To be sure, the long-term lease must be factored into valuation, and it was in this instance. Both of Respondent’s experts found that the sum of the leased fee value and the leasehold value was less than the fee simple value. Appropriately, at least some portion of the difference was attributed to the effect of the long-term lease.

Availability of Sewers

Appellant further argues that the Commission’s entire valuation for the 1994 tax year is tainted by Mr. Kennicutt’s admission that he incorrectly assumed that Appellant’s property had public sewers. Thus, Appellant argues, the appraisal does not constitute competent and substantial evidence, and the Commission should not have relied on the appraisal.

Mr. Kennieutt stated at the hearing that he did not determine that the property did not have sewers until after he made his appraisal report. Therefore, his report did not include an adjustment for the fact that the property did not have sewers. However, all of Mr. Kennicutt’s compara-bles had either no sewers or inconvenient access to sewers. The Commission found that “[l]ack of immediate access to sewers has some impact on property value. With no testimony from Complainant on the cost to cure this deficiency, the comparables presented by Mr. Kennieutt are the best indicators of market reaction to parcels with no sewers or inconvenient access.” We agree with the Commission’s finding, and we find that the Commission did not err in relying on Mr. Kennicutt’s valuation.

The judgment of the circuit court is affirmed.

ULRICH and SMART, JJ., concur.

      . Bessie Nance was the record holder of the property for the tax years at issue. Mrs. Nance died in 1994, and William Nance has been substituted by agreement of the parties.

      . All statutory references are to RSMo 1994.

      . Mr. Nance inaccurately recalled that his parents took title to the property prior to entering into the D & L sublease. In fact, they did not exercise their option to purchase the property until eight years after the sublease was entered into.

      . The income capitalization approach evaluates what a willing buyer would pay to realize the income stream that could be obtained from the property when devoted to its highest and best use. "Under this method, the Commission must project the net income stream that could reasonably be anticipated by an investor/purchaser, discounting future dollars to present levels in order to compensate for risk and the elapsed time required to recapture the initial investment.” Equitable Life Assur. Soc’y of U.S.,/Marriott Hotels, Inc., 852 S.W.2d at 380.

      . The cost approach evaluates the value of the land (in this case determined by comparison to similar properties), adds the value of replacement costs of improvements, and subtracts from that sum the value of depreciation of the improvements. Aspenhof Corp. v. State Tax Comm’n of Missouri, 789 S.W.2d 867, 869 (Mo.App. E.D.1990).


author: BARKER, J.,

text:
    FEDERATED INSURANCE COMPANY, v. Francis I. LETHCOE, et al.
    Supreme Court of Tennessee, at Knoxville.
    April 3, 2000.

      Peter Alliman, Madisonville, TN, for appellants, Francis I. Lethcoe, et al.
    David F. Harrod, Athens, TN, for appel-lee, Federated Insurance Company.
   OPINION

BARKER, J.,

delivered the opinion of the court,

in which DROWOTA, BIRCH, and HOLDER, JJ. joined.

This is an appeal from the Chancery Court for McMinn County which, pursuant to Tennessee Rule of Civil Procedure 60.02(5), modified a judgment that was previously entered in accord with a settlement agreement between the parties. The appellants appealed and contended that the trial court improperly modified the judgment and reduced the benefits they were to receive according to the agreement. The Special Workers’ Compensation Appeals Panel affirmed the judgment of the trial court, and the appellants filed a motion for full review by this Court to determine whether a party can seek modification of a workers’ compensation judgment for a fixed sum to be paid periodically almost two years after entry of judgment. We hold that where a party agrees to settle a workers’ compensation claim, and the trial court approves the settlement, the settling party is generally not entitled to relief pursuant to Rule 60.02(5). Accordingly, we reverse the judgments of the trial court and the Special Workers’ Compensation Appeals panel and remand this case to the trial court for further proceedings.

The principal issue in this case is whether, pursuant to Tennessee Rule of Civil Procedure 60.02(5), a party is entitled to relief from a judgment entered almost two years earlier in a workers’ compensation case based upon a mutual mistake regarding the applicable law. We hold that where a party agrees to settle a workers’ compensation claim, and the trial court approves the settlement, the settling party generally is not entitled to relief from judgment under Rule 60.02(5). Because Rule 60.02(5) is not to be used to relieve a party of its free, calculated, and deliberate choices, we also hold that the trial court abused its discretion in modifying the judgment. Accordingly, for the reasons herein, we reverse the Special Workers’ Compensation Appeals Panel and remand this case to the trial court for further proceedings.

BACKGROUND

On January 7, 1995, Vernon Lethcoe died after suffering serious injuries sustained in the course and scope of his employment with Bain & Holden Tire Company, Inc. (Bain & Holden). Shortly thereafter, Bain & Holden’s workers’ compensation carrier, Federated Insurance Company (Federated), filed a petition to apportion workers’ compensation benefits among Mr. Lethcoe’s wife and four children (the Lethcoes). In its petition, Federated stated: “Pursuant to statute plaintiff Federated acknowledges that the maximum benefit to which defendants are entitled would be One Hundred Fifty-three Thousand One Hundred Sixteen ($156,116.00) Dollars.”

The Lethcoes did not dispute Federated’s interpretation of the amount owed. Pursuant to the understanding of the parties, the chancery court entered an order on May 12, 1995, requiring Federated to make periodic payments to the Lethcoes pursuant to the statute until it had paid $153,116.00. The award was based on the state’s average weekly wage as determined by the department of employment security rather than on Vernon Lethcoe’s weekly compensation rate.

On May 13, 1996, in Spencer v. Towson Moving & Storage, 922 S.W.2d 508 (Tenn.1996), this Court rejected a similar interpretation of the Workers’ Compensation Law. In Spencer, we held that

[t]he maximum weekly benefit is to be determined based upon the employee’s average weekly wage; not until the sixty-six and two-thirds percent of the employee’s average weekly wages equals or exceeds [the statutorily prescribed] percentage of the state’s average weekly wage does the court use the figure [based on] ... the state’s average weekly wage to determine the amount of the compensation payable to the dependents.

Id. at 510 (quotation marks omitted).

Following our decision in Spencer, Federated filed a petition on May 7, 1997, to modify the previous judgment. Federated argued that according to Spencer, the Lethcoes should have been paid sixty-six and two-thirds percent of Vernon Leth-coe’s average weekly wage subject to the maximum weekly benefit. See Tenn. Code Ann. §§ 50 — 6—209(b)(1), -210(e) (1999). At his death, Vernon Lethcoe’s average weekly wage was $395.80, and, consequently, the weekly compensation rate for payment of benefits was $263.87. Because the award of benefits was subject to the maximum total benefit of 400 weeks, see id. §§ 50-6-102(13X0, -205(b)(1), the appropriate total award should have been $105,-548.00.

In accordance with Spencer, the chancery court modified its prior judgment and reduced the amount of benefits to $105,-548.00. The Special Workers’ Compensation Appeals Panel affirmed that judgment. The Lethcoes then filed a motion for full review by this Court to determine whether a party can seek modification of a workers’ compensation judgment for a fixed sum to be paid periodically almost two years after entry of judgment.

DISCUSSION

Tennessee Rule of Civil Procedure 60.02 allows a party to seek relief from a final judgment on specific grounds such as mistake, inadvertence, surprise, excusable neglect, fraud, or in cases where the judgment is void. In addition to these grounds for relief, Rule 60.02(5) also provides that a court may relieve a party from a final judgment for “any other reason justifying relief from the operation of the judgment.” Pursuant to Rule 60.02(5), Federated filed a petition to modify the chancery court’s final judgment in this case.

A party seeking modification of a judgment under Rule 60.02(5) bears the burden of proving that it is entitled to relief. See Banks v. Dement Constr. Co., 817 S.W.2d 16, 18 (Tenn.1991). In addition, the party must offer proof of the basis on which relief is sought. See id. Moreover, the motion for relief must be brought within a reasonable time after the judgment was entered. See Tenn.R.Civ.P. 60.02(5). Relief granted pursuant to Rule 60.02(5) is a matter within the trial court’s discretion, and the trial court’s decision will be reversed only for abuse of that discretion. See Toney v. Mueller Co., 810 S.W.2d 145,147 (Tenn.1991).

Relief under Rule 60.02(5) is only appropriate in cases of overwhelming importance or in cases involving extraordinary circumstances or extreme hardship. See Underwood v. Zurich Ins. Co., 854 S.W.2d 94, 97 (Tenn.1993). Federated contends that this is a case of overwhelming importance, and that the chancery court’s modification of the original judgment was justified under these circumstances.

To support its position, Federated relies on this Court’s decision in Brown v. Consolidation Coal Co., 518 S.W.2d 234 (Tenn.1974). In Brown, the trial court initially awarded workers’ compensation benefits to an employee based on a rate schedule that was in place at the time the employee’s occupational disease was first found to be disabling. See id. at 237. Fourteen months after the trial court’s judgment, the employer filed a petition to correct that judgment on the grounds that the trial court should have instead used the rate schedule that was in effect on the date the employee last worked. See id. at 236. This Court granted relief to the employer under Rule 60.02(5) and held that-

the award of the correct workmen’s compensation rates applicable to any given suit under said Act is of such overriding importance to employer and employee alike, that, in those cases where there is no dispute as to the date controlling the compensation rates, authority is vested by Rule 60.02(5) for the correction of error therein on motion made within a reasonable time and not limited to one year.

Id. at 238.

Federated’s reliance on Brown, however, is misplaced. This Court granted relief in that case under Rule 60.02(5) because the initial award was based on an incorrect legal construction of the workers’ compensation laws. See id. at 237-38. By contrast, the final judgment originally entered by the chancery court in this case was the result of an agreement between Federated and the Lethcoes. Although Federated argues before this Court that it had not reached an agreement with the Lethcoes concerning the total benefit, we are convinced otherwise. In its petition to apportion benefits, Federated explicitly stated:

“Pursuant to statute plaintiff Federated acknowledges that the maximum benefit to which defendants are entitled would be One Hundred Fifty-three Thousand One Hundred Sixteen ($156,116.00) Dollars.” Federated additionally states in its petition to modify the original judgment that “all parties hereto were acting in reliance on existing legal authority in Tennessee that defendants would be entitled to a total payment, conditioned on their continued dependence, in the amount of $153,116 .00.” And the chancery court, in its opinion modifying the original award, stated that it was acting “upon statement of the attorney as it was deemed the rate should be up to [78%] of the state average weekly wage.” Thus, the record clearly reflects the following: Federated proposed that the amount to which the Lethcoes were entitled was $153,116.00; the Lethcoes agreed; and the chancery court entered an order pursuant to this agreement.

While Rule 60.02(5) vests broad authority in the chancery court, this power “is not to be used to relieve a party from free, calculated, and deliberate choices [it] has made.” Banks, 817 S.W.2d at 19. We note that Federated could have attempted to persuade the Lethcoes that some other method for calculating benefits should be used, or it could have litigated the case rather than reach an agreement with the Lethcoes. Federated did not do so. Further, even if the chancery court somehow erred in entering final judgment pursuant to the agreement, Federated could have appealed that decision. Yet, again, Federated took no action despite this Court’s frequent admonition that “a party remains under a duty to take legal steps to protect his own interests.” Banks, 817 S.W.2d at 19.

Although Rule 60.02(5) is an avenue of relief from a final judgment, the Rule is to be construed quite narrowly. See Underwood, 854 S.W.2d at 97. We have repeatedly expressed concern that reopening workers’ compensation agreements frustrates legitimate goals of judicial economy and finality of settlements. See Cox v. Martin Marietta Energy Sys., 832 S.W.2d 534, 538 (Tenn.1992); Hate v. CNA Ins. Cos., 799 S.W.2d 659, 661 (Tenn.1990). Given these policy considerations and the narrow construction of Rule 60.02(5), we are reluctant to adopt a rule that permits a party to deviate from the terms of a settlement simply because a more favorable construction of the workers’ compensation statutes is subsequently announced by a higher court. If a party wants a more favorable construction of the workers’ compensation statutes, it may bargain for one within the limitations imposed by the settlement provisions of the code. See Tenn .Code Ann. § 50-6-206 (1999).

CONCLUSION

We hold that where, as here, a party agrees to settle a workers’ compensation claim and a final judgment is entered pursuant to that agreement, the settling party generally is not entitled to relief from judgment under Rule 60.02(5). We further hold that the chancellor abused his discretion in modifying the award in this case because Rule 60.02(5) may not be used to relieve a party of its free, calculated, and deliberate choices. Accordingly, we reverse the judgments of the trial court and the Special Workers’ Compensation Appeals Panel, and we remand this case to the trial @court for entry of judgment consistent with this opinion.

Costs of this appeal are taxed to the appellee, Federated Insurance Company.

      . We also directed the parties to file supplemental briefs addressing whether the doctrine of waiver bars Federated Insurance from seeking modification of a benefits award based on an inappropriate method of calculation where the issue was not raised in the initial petition. However, our decision with regard to the primary issue renders analysis of the waiver issue unnecessary.

      . The $3,000.00 difference in this portion of Federated’s petition appears to be the result of a typographical error on the part of Federated.

      . We note that modification of awards for periodic payments for more than six months may be appropriate in certain limited circumstances pursuant to Tennessee Code Annotated section 50-6-231 (1999).

      . While the parties appear to contend that Tennessee courts applied a uniform method of computing the average weekly wage, our'research does not reveal such a common interpretation. Rather, it appears that the first reported interpretation of the statute at issue was our decision in Spencer. Nevertheless, even if our decision in Spencer changed a commonly understood computation of the average weekly wage, modification of the original award still would not be appropriate. Cf. Penland v. Penland, 521 S.W.2d 222 (Tenn.1975) (refusing to permit modification of a property settlement based on a change of law).


author: BIRCH, J.,

text:
    ATS SOUTHEAST, INC., et al. v. CARRIER CORPORATION.
    Supreme Court of Tennessee, at Nashville.
    May 12, 2000.
    Fred C. Dance, Nashville, TN, for petitioners, ATS Southeast, Inc., Rent-A-Driver, Inc., and Wood Transportation, Inc.
    James A. Delanis, Jonathan J. Cole, Richard A. Stout, Nashville, TN, for respondent, Carrier Corporation.
   OPINION

BIRCH, J.,

delivered the opinion of the court,

in which ANDERSON, C. J., and DROWOTA, HOLDER, and BARKER, JJ., joined.

Pursuant to TenmSup.Ct.R. 23, we accepted the following question from the United States District Court for the Middle District of Tennessee: Under the Tennessee Consumer Protection Act, “[d]oes a corporation have standing to bring a private cause of action for treble damages pursuant to Tenn.Code Ann. § 47-18-109(a)?” We answer that it does. The Tennessee Consumer Protection Act defines, in Tenn.Code Ann. § 47-18-103(7), “person” to include corporations, and “persons” can seek treble damages available under Tenn.Code Ann. § 47-18-109(a). Therefore, we opine that a corporation has standing to bring a private cause of action for treble damages under Tenn.Code Ann. § 47-18-109(a).

I

Pursuant to Tennessee Supreme Court Rule 23, this Court accepted certification of the following question from the United States District Court for the Middle District of Tennessee:

Does a corporation have standing to bring a private cause of action for treble damages pursuant to Tenn.Code Ann. § 47-18-109(a)?

Because the Tennessee Consumer Protection Act (the Act) clearly contemplates that corporations injured by a violation of the statute should be granted such standing, we conclude that corporations do, indeed, have standing to bring a private cause of action for treble damages under TenmCode Ann. § 47-18-109(a).

II

Petitioner ATS Southeast, Inc. (ATS) filed a breach of contract action against Carrier Corporation (Carrier) in the United States District Court for the Middle District of Tennessee. Carrier filed a counterclaim against ATS and a separate suit against ATS’s predecessors, Rent-A-Driver, Inc. and Wood Transportation, Inc., seeking treble damages pursuant to TenmCode Ann. § 47-18-109(a). The court consolidated the two lawsuits.

Carrier alleged that ATS (and its predecessors), in selling services to Carrier, had engaged in “unfair and deceptive acts or practices affecting the conduct of trade and commerce” in violation of TenmCode Ann. § 47-18-104(a). On February 24, 1999, the United States District Court for the Middle District of Tennessee filed an order with the Tennessee Supreme Court certifying the above-quoted question of law.

III

When the Tennessee Consumer Protection Act was enacted in 1977, one of its stated purposes was “[t]o protect consumers and legitimate business enterprises from those who engage in unfair or deceptive acts or practices in the conduct of any trade or commerce in part or wholly within this state.” TenmCode Ann. § 47-18-102(b) (1979) (codifying 1977 Tenn.Pub.Acts ch. 488, § 2). Protecting both consumers and legitimate business enterprises from unfair or deceptive acts or practices remains a purpose of the Act today. See Tenn.Code Ann. § 47-18-102(2) (1995 & Supp.1999).

A violation of the Tennessee Consumer Protection Act may result in several different sanctions. First, “[ujnfair or deceptive acts or practices affecting the conduct of any trade or commerce” are designated Class B misdemeanors. Tenn.Code Ann. § 47-18-104(a) (1995). Additionally, as provided by the original version of the Act:

[a]ny person who suffers an ascertainable loss of money or property ... as a result of the use or employment by another person of an unfair or deceptive act or practice declared to be unlawful by this chapter may bring an action individually ... to recover actual damages .... If the court finds that the use or employment of the unfair or deceptive act or practice was a willful or knowing violation of this chapter, the court may award three (8) times the actual damages sustained and may provide such other relief as it considers necessary and proper. In determining whether treble damages should be awarded, the trial court may consider, among other things: (l)[t]he competence of the consumer, (2)[t]he nature of the deception or coercion practiced upon the consumer, (3)[t]he damage to the consumer, and (4)[t]he good faith of the person found to have violated the provisions of this chapter.

Tenn.Code Ann. § 47-18-109(a) (1979) (codifying 1977 Tenn.Pub.Acts ch. 438, § 10) (emphases added).

Following the 1977 codification of the Act, corporations began asserting that they should be permitted to sue for treble damages under Tenn.Code Ann. § 47-18-109(a). These suits were unsuccessful because the term “consumer,” as used in the original version of the Act, was defined as a “natural person” who sought or acquired “goods, services, or property....” Tenn. Code Ann. § 47-18-103(a) (1979) (codifying 1977 Tenn.Pub.Acts ch. 438, § 3). Thus, prior to the time that the Act was amended in 1989, corporations were disallowed from pursuing treble damages under Tenn .Code Ann. § 47-18-109(a) because recovery under Tenn.Code Ann. § 47-18-109(a)(1^4) was limited to “consumerfs],” and the term “consumer,” for purposes of the Act, was not defined to include corporations. See American Bldgs. Co. v. White, 640 S.W.2d 569, 575 (Tenn.Ct.App.1982); Grantham and Mann, Inc. v. American Safety Products, Inc., 831 F.2d 596, 608 (6th Cir.1987).

IV

In 1989, however, Tenn.Code Ann. § 47-18-109(a)(4) was amended. It now reads as follows, with changes to the original Act noted in bold type:

[i]n determining whether treble damages should be awarded, the trial court may consider, among other things: (A) [t]he competence of the consumer or other person; (B) [t]he nature of the deception or coercion practiced upon the consumer or other person; (C) [t]he damage to the consumer or other person; and (D) [t]he good faith of the person found to have violated the provisions of this chapter.

Tenn.Code Ann. § 47-18-109(a)(4) (1995 & Supp.1999) (codifying 1989 Tenn.Pub.Acts ch. 498, § 3) (emphases added).

The inclusion, in 1989, of the “or other person” language is significant. As has been the case ever since the Act was codified in 1977, “person” is defined to include “a natural person, individual, governmental agency, partnership, corporation, trust, estate, incorporated or unincorporated association, and any other legal or commercial entity however organized.... ” Tenn.Code Ann. § 47-18-103(7) (1995 & Supp.1999) (emphasis added); Tenn.Code Ann. § 47-18 — 103(f) (1979) (codifying 1977 Tenn.Pub.Acts ch. 438, § 3).

Several courts recognized the significance of the 1989 amendment. Indeed, in 1992, the United States District Court for the Middle District of Tennessee stated that:

in 1989, the Tennessee legislature inserted the phrase ‘or other person’ after the word ‘consumer’ in § 47-18-109(a)(4)(A), (B), and (C).... While Tenn. Code Ann. § 47-18-103(2) defines a ‘consumer’ as ‘any natural person,’ § 47-18-103(7) defines ‘person’ to include ‘partnershipfe], corporation[s], trustfs], ... and any other legal or commercial entities] however organized,’ in addition to ‘natural personfs].’ Thus, because the Tennessee Consumer Protection Act affords a private right of action to ‘[a]ny person,’ [under] Tenn. Code Ann. § 47-18-109(a)(l), and a trial court is required to consider specifically ‘[t]he damage to the consumer or other person,’ [under] TenmCode Ann. § 47-18 — 109(a)(4)(C)[ ], when considering the issue of treble damages, the Court finds that corporations may recover [treble] damages under the Act....’

Smith Corona Corp. v. Pelikan, Inc., 784 F.Supp. 452, 483 (M.D.Tenn.1992) (emphases added); see Olin Corp. v. Lambda Electronics, Inc., 39 F.Supp.2d 912, 914 (E.D.Tenn.1998); Operations Mgmt. Int’l, Inc. v. Tengasco, Inc., 35 F.Supp.2d 1052, 1058 (E.D.Tenn.1999); see also Jeffrey L. Reed, The Tennessee Consumer Protection Act: An Overview, 58 Tenn.L.Rev. 455, 478-79 (1991).

Despite the seemingly clear language of the amended statute, several courts have continued to hold that corporations lack standing to sue under the Act. See Syncor Int’l Corp. v. Newbaker, 12 F.Supp.2d 781, 783 (E.D.Tenn.1998); LIC Corp. v. Baskin-Robbins Ice Cream Co., Nos. 03A01-9207-CV-242, 03A01-9207-CV-243, 1993 WL 2796, at *3 (Tenn.Ct.App. Jan.8,1993). In Syncor, a case decided after the 1989 amendment, the United States District Court for the Eastern District of Tennessee improperly analyzed the issue of corporate standing under TenmCode Ann. § 47-18-109(a), focusing on “the question of whether corporations are considered ‘consumers’ for purposes of the Act.” Syn-cor, 12 F.Supp.2d at 783. As previously implied, it is irrelevant whether a corporation is a “consumer” under the Act because the right of action is given to “personfs],” a term that is specifically defined to include corporations. See Tenn.Code Ann. § 47-18-109(a)(4) (1995 & Supp.1999); Tenn. Code Ann. § 47-18-103(7) (1995 & Supp. 1999).

In Baskim-Robbins, the Tennessee Court of Appeals reached an erroneous result when considering whether corporations had standing to sue under the Act. See Baskin-Robbins, 1993 WL 2796, at ⅜3. In that case, the court relied on the Court of Appeals’s pre-1989 decision in American Buildings Co. v. White, and did not discuss the 1989 amendment to TenmCode Ann. § 47-18-109(a)(4). See id.

Finally, the petitioners argue that the legislative history of the 1989 amendment, specifically the caption to the 1989 amendment that is found in Tennessee Public Acts, 1989, Chapter No. 498, indicates that the legislature did not intend to amend the Act to provide corporations with a private cause of action for treble damages. Instead, argue the petitioners, the purpose of the 1989 amendment was to regulate “certain promotional schemes” relative to telemarketing scams.

We need not reach the question of the 1989 amendment’s legislative history. “When the language contained within the four corners of a statute is plain, clear, and unambiguous, the duty of the courts is simple and obvious, ‘to say sic lex seripta, and obey it.’ ” Hawks v. City of Westmore-land, 960 S.W.2d 10, 16 (Tenn.1997) (quoting Miller v. Childress, 21 Tenn. (2 Hum.) 320, 321-22 (1841)). In instances when the language of the statute is clear on its face, we need not reach the question of the legislature’s intent in enacting the law; “[wjhere there is no ambiguity in the language of an act, comments of legislators, or even sponsors of the legislation, before its passage are not effective to change the clear meaning of the act.” D. Canale & Co. v. Celauro, 765 S.W.2d 736, 738 (Tenn.1989). The language of Tenn.Code Ann. § 47-18-109(a) and Tenn.Code Ann. § 47-18-103(7) is clear and unambiguous. Read together, the two statutes indicate that corporations (and other entities included within the Act’s definition of a “person”) have standing to bring a private cause of action for treble damages under the Tennessee Consumer Protection Act.

V

We answer the question certified by the United States District Court for the Middle District of Tennessee as follows:

Under Tenn.Code Ann. § 47-18-103(7) of the Tennessee Consumer Protection Act, a “person” is clearly defined to include corporations. Because the remedy of treble damages available under Tenn.Code Ann. § 47-18~109(a) is available to “personfe],” it is, thus, available to corporations. As such, corporations have standing to bring a private cause of action for treble damages under Tenn. Code Ann. § 47-18-109(a).

The clerk will transmit this opinion to the United States District Court for the Middle District of Tennessee and to the parties in accordance with Rule 23, § 8 of the Tennessee Supreme Court Rules. The costs in this Court will be taxed to the petitioners, ATS, Rent-A-Driver, Inc., and Wood Transportation, Inc.

      . The Supreme Court may, at its discretion, answer questions of law certified to it by the Supreme Court of the United States, a Court of Appeals of the United States, a District Court of the United States in Tennessee, or a United Slates Bankruptcy Court in Tennessee. This rule may be invoked when the certifying court determines that, in a proceeding before it, there are questions of law of this state which will be determinative of the cause and as to which it appears to the certifying court there is no controlling precedent in the decisions of the Supreme Court of Tennessee. Tenn.Sup.Ct.R. 23, § 1.

      . Tennessee Code Annotated § 47-18-109(a) is part of the Tennessee Consumer Protection Act.

      . In cases involving an alleged violation of statutory law, the question of whether a party has "standing” to initiate a cause of action requires a determination of whether the statutory provision on which the claim rests grants persons in the plaintiff's position a right to seek judicial relief. See Metropolitan Air Research Testing Auth., Inc. v. Metropolitan Gov't of Nashville and Davidson County, 842 S.W.2d 611, 615 (Tenn.Ct.App.1992).

      .In its order certifying the previously quoted question, the District Court noted that because ATS, Rent-A-Driver, Inc., and Wood Transportation, Inc. were collectively the "moving party” within the meaning of Rule 23, § 6 of the Tennessee Supreme Court Rules, they would be designated the "petitioners” in this case.

      . The full definition of the term "consumer” is
      any natural person who seeks or acquires by purchase, rent, lease, assignment, award by chance, or other disposition, any goods, services, or property, tangible or intangible, real, personal or mixed, and any other article, commodity, or thing of value wherever situated or any person who purchases or to whom is offered for sale a franchise or distributorship agreement or any similar type of business opportunity. Tenn.Code Ann. § 47-18-103(a) (1979) (codifying 1977 Tenn.Pub.Acts ch. 438, § 3).
      Currently, the term "consumer” is defined in exactly the same way that it has been defined ever since the Tennessee Consumer Protection Act was enacted in 1977. Compare Tenn.Code Ann. § 47-18-103(2) (1995 & Supp.1999) with Tenn.Code Ann. § 47-18-103(a) (1979) (codifying 1977 Tenn.Pub.Acts ch. 438, § 3).

      . The petitioners’ reliance on our decisions in Quality Auto Parts v. Bluff City Buick, 876 S.W.2d 818 (Tenn.1994); Pursell v. First American Nat'l Bank, 937 S.W.2d 838 (Tenn.1996); and Ganzevoort v. Russell, 949 S.W.2d 293 (Tenn.1997) is similarly misplaced. In each of those cases there was a determination that the Act did not apply; however, in each instance that determination was based on the lack of "unfair or deceptive acts or practices affecting the conduct of any trade or commerce” under Tenn.Code Ann. § 47-18-104, and not on the corporate status of the party making the claim.

      . Any constitutional defect caused by the limited nature of the caption was cured when the bill was codified. See Tenn. Const, art II, § 17; State v. Chastain, 871 S.W.2d 661, 666 (Tenn.1994); Harmon v. Angus R. Jessup Assoc., Inc., 619 S.W.2d 522, 523 (Tenn.1981). This is, essentially, the position of the Attorney General in response to claims of unconstitutionality based on the Act being broader than its caption.


author: Justice O’NEILL Justice ABBOTT,

text:
    The STATE of Texas, Petitioner, v. $217,590.00 IN UNITED STATES CURRENCY, Respondent.
    No. 98-0582.
    Supreme Court of Texas.
    Argued Sept. 8, 1999.
    Decided April 13, 2000.
    Rehearing Overruled May 25, 2000.

      Brian Kelly Johnson, John Cornyn, Don J. Clemmer, Austin, George P. Morrill, II, Beeville, for Petitioner.
    G. Rudolph Garza, Jr., Corpus Christi, for Respondent.
   Justice O’NEILL

delivered the opinion of the Court.

This case involves the forfeiture of $217,590 allegedly derived from illegal drug trafficking. See TexCiiim. PROc.Code art. 59.01-.08 (the “civil forfeiture statute”). We must decide whether the claimant, Henry Perez Olvera, voluntarily consented to the search that revealed the money and the evidence linking it to criminal activity. In doing so, we decide the standard appellate courts must apply in civil forfeiture proceedings to review a trial court’s disposition of a motion to suppress evidence allegedly obtained as the result of an illegal search. We hold that whether a claimant voluntarily consented to a search is a mixed question of law and fact reviewable for an abuse of discretion. In applying this standard, we defer to the trial court’s factual findings if they are supported by the evidence. But whether the trial court properly applied the law to the facts is a question of law for the appellate courts to decide.

Applying this standard, we conclude that the trial court did not abuse its discretion in denying Olvera’s motion to suppress, and that the court of appeals misapplied the totality of the circumstances test in holding that Olvera’s consent was not voluntary. See 970 S.W.2d 660, 667. Because it held that Olvera’s consent was not voluntary, the court of appeals did not consider Olvera’s points of error concerning the scope of that consent and his contention that the evidence was factually insufficient to establish that the money was linked to a felony drug transaction and therefore subject to forfeiture. Accordingly, we reverse the court of appeals’ judgment and remand this case to the court of appeals to allow it to consider Olvera’s remaining points.

I

Background

While patrolling U.S. Highway 59 in Bee County, Texas, Department of Public Safety Trooper Jimmy Moore stopped a commercial tractor-trailer driven by Olvera that was missing a mud flap. Olvera’s wife and infant child were riding with him, even though they were unauthorized noncommercial passengers. Moore questioned Olvera about the missing mud flap and began a commercial motor vehicle inspection of the trailer and its cargo. During the inspection, Moore questioned Olv-era and his wife about the truck’s cargo and their trip. Moore’s suspicions became aroused for a number of reasons. First, Olvera was unable to produce the logbook that commercial vehicle drivers are normally required to maintain. In addition, Olvera said that he had picked up his load in a Wal-Mart parking lot, even though the trailer’s seal was displaced. Moore thought it unlikely that a shipper would leave an unsealed trailer in a public area. Finally, Olvera did not seem to understand the bill of lading for the vehicle’s freight.

After discovering these apparent irregularities, Moore asked Olvera whether he was transporting any contraband. Olvera responded that he was not. Moore, aware that illegal drugs are frequently transported on Highway 59, was unconvinced and asked if he could search the tractor and trailer. Olvera answered, “I guess so.” Moore had written consent forms with him, but testified he did not use them because the stop was being videotaped. The videotape of the stop is part of the record.

Moore then called for a narcotics dog and handler. When they arrived about twenty minutes later, Moore remarked to the handler that “[t]his man ... does not want this vehicle searched.” The dog was led around the truck and alerted to the presence of drugs. Moore instructed Olv-era to follow him in the truck to the Bee County Sheriffs Office, where the dog again alerted to the presence of drugs. While searching the tractor cabin, Moore noticed that several screws were missing from a plywood panel in the sleeper area. He removed the panel and found a compartment where the air-conditioning unit should have been. Inside the compartment he found a grocery sack containing $217,590 in cash. He also found marijuana residue in a box adjacent to the compartment. Olvera was given Miranda warnings, after which he admitted that the money represented proceeds from drug sales. The police seized the money, and the State initiated this forfeiture proceeding.

Olvera moved to suppress all evidence and statements obtained as a result of the search, arguing that he did not freely and voluntarily consent to the search as he contends is required by the federal and state constitutions in the absence of a search warrant. The State defended the search’s legality, claiming that Olvera voluntarily consented. After hearing evidence, the trial court found that Olvera “orally and voluntarily consented to the search,” and granted forfeiture. A divided en banc court of appeals reversed, holding that the State failed to establish by clear and convincing evidence that Olvera voluntarily consented to the search. See 970 S.W.2d at 667. Specifically, the court concluded that Olvera’s consent was not clear and unequivocal because there was evidence he may not have known that he could decline the search. See id. Accordingly, the court of appeals held that the money and all evidence linking it to criminal activity should have been excluded as fruits of an illegal search. See id.

II

Standard of Review

We have never defined the standard appellate courts should apply in reviewing a trial court’s determination that a person’s consent to a search was or was not voluntary, and thus whether evidence obtained from the search may be subject to exclusion. Whether a consent to search was voluntary under the totality of the circumstances involves questions of both fact and law. The first part of the analysis involves a determination of the historical facts leading up to the consent. The second part involves assessing whether the trial court’s findings demonstrate voluntariness under the totality of the circumstances, which is a question of law. We review a trial court’s decision on a mixed question of law and fact for an abuse of discretion. See Brainard v. Texas, 12 S.W.3d 6, 30 (Tex.1999). Accordingly, we hold that an abuse of discretion standard of review applies to a trial court’s ruling on a motion to suppress evidence based upon the contention that a claimant’s consent to a search was not voluntary.

In applying the abuse of discretion standard, reviewing courts defer to the trial court’s factual determinations; a reviewing court does not engage in its own factual review, but decides whether the record supports the trial court’s resolution of factual matters. See Goode v. Shoukfeh, 943 S.W.2d 441, 446 (Tex.1997); cf. Gibbs v. State, 819 S.W.2d 821, 830-31 (Tex.Crim.App.1991) (observing that appellate courts defer to trial courts’ resolutions of fact issues in suppression hearings); Segura v. State, 826 S.W.2d 178, 181 (Tex.App.—Dallas 1992, pet. refd) (noting that the trial court is judge of a suppression hearing witness’s credibility and weight to be given testimony). If the record supports the trial court’s evidentiary findings, the reviewing court is not at liberty to disturb them. See Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex.1992). A reviewing court instead determines only whether the trial court properly applied the law to the facts in reaching its legal conclusion. See id.; Segura, 826 S.W.2d at 181.

The underlying historical facts preceding Olvera’s consent are undisputed, perhaps because the encounter between Olvera and Moore was videotaped. Accordingly, we decide whether the trial court properly applied the governing constitutional principles to the undisputed facts.

Ill

Voluntariness of Consent

Courts have identified a number of factors to be considered in determining whether a person voluntarily consented to a search, including, but not limited to: (1) whether the police displayed weapons or used physical force or other intimidating tactics, see United States v. Wyatt, 179 F.3d 532, 535 (7th Cir.1999); Frierson v. State, 839 S.W.2d 841, 851 (Tex.App.—Dallas 1992, pet. refd); (2) whether the police engaged in misconduct, see United States v. Cherry, 759 F.2d 1196, 1211 (5th Cir.1985); De Jesus v. State, 917 S.W.2d 458, 462 (Tex.App.—Houston [14 Dist.] 1996, pet. refd); (3) whether the police asserted a right to search, see Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968); Dawson v. State, 868 S.W.2d 363, 368 (Tex.App.—Dallas 1993, pet. refd); (4) the degree to which the detainee cooperated with the search, see United States v. Cooper, 43 F.3d 140, 147 (5th Cir.1995); Frierson, 839 S.W.2d at 851; (5) the detainee’s age, intelligence, education, and physical condition, see Schneckloth v. Bustamante, 412 U.S. 218, 226, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Dawson, 868 S.W.2d at 368; (6) the detainee’s attitude about the likelihood of discovering contraband, see, United States v. Gonzales, 79 F.3d 413, 421 (5 th Cir.1996); (7) the length of detention and the nature of the questioning, see id. at 226; (8) whether the police administered Miranda warnings, see id.; and (9) whether the detainee was aware of the right to refuse consent, see Schneckloth, 412 U.S. at 226-27, 93 S.Ct. 2041; Allridge v. State, 850 S.W.2d 471, 493 (Tex.Crim.App.1991).

No single factor is dispositive. See United States v. Morales, 171 F.3d 978, 983 (5th Cir.1999); Arcila v. State, 788 S.W.2d 587, 591 (Tex.App.—Dallas 1990), aff'd, 834 S.W.2d 357 (Tex.Crim.App.1992), overruled on other grounds by Guzman, 955 S.W.2d 85. Instead, courts must consider the totality of the circumstances. See Schneckloth, 412 U.S. at 227, 93 S.Ct. 2041; Meeks v. State, 692 S.W.2d 504, 510 (Tex.Crim.App.1985).

Ignoring these countervailing factors, the court of appeals concluded that Olv-era’s consent was .not voluntary because “Olvera may not have been aware that he could decline the search [because] Moore already had been around the vehicle and inside the trailer [and] did not explain to Olvera that he did not have to consent to the search.” 970 S.W.2d at 667. It is well-established, however, that knowledge of the right to withhold consent, although an important factor, is not dispositive. See Schneckloth, 412 U.S. at 226-27, 93 S.Ct. 2041; United States v. Galberth, 846 F.2d 983, 989 (5th Cir.1988); Meeks, 692 S.W.2d at 510. By focusing solely on that factor, the court of appeals effectively imposed a requirement upon law enforcement officers to inform suspects that they have a right to refuse consent to a search, a requirement that the United States Supreme Court has expressly rejected as “thoroughly impractical.” Schneckloth, 412 U.S. at 231, 93 S.Ct. 2041. Because the court of appeals did not meaningfully analyze the evidence relating to other factors bearing on the issue of voluntariness, it misapplied the totality of the circumstances test.

The court of appeals attempted to bolster its conclusion that Olvera’s consent was not voluntary with Moore’s statement to the dog handler that “[t]his man ... does not want this vehicle searched.” 970 S.W.2d at 667. But Moore testified that, despite this statement, he believed Olvera’s consent was voluntary, and the trial court specifically found that Moore’s testimony was credible. That finding indicates the trial court likely interpreted Moore’s statement as his perception that Olvera knew the vehicle contained contraband and did not want it to be discovered, rather than an indication that Olvera’s consent was not voluntary. See id. at 669 (Rodriguez, J., dissenting); see also United States v. Gonzales, 842 F.2d 748, 755 n. 3 (5th Cir.1988), overruled on other grounds by United States v. Hurtado, 905 F.2d 74 (5 th Cir.1990) (stating “In the purest sense, consent by suspects with knowledge that incriminating evidence will be discovered during a search would never be truly voluntary if self-interest were the primary focus of the voluntariness inquiry.”). The ultimate duty to determine credibility and demeanor rests upon the trier of fact. See McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex.1986).

Considering the totality of the circumstances sin-rounding Olvera’s consent in light of the other relevant factors, we conclude that Olvera voluntarily consented to the search. Moore was the only officer present when Olvera’s consent was requested, and he did not draw his weapon or physically threaten Olvera. Moore did not raise his voice or otherwise verbally abuse Olvera. In fact, Moore worked with Olvera for some time to reconcile the bill of lading with the truck’s load. When Moore requested Olvera’s consent, they were standing alongside a major highway and not in an isolated area where Olvera might feel threatened. Nor did Moore claim a right to search the vehicle beyond the commercial motor vehicle inspection, which Olvera’s expert conceded was proper. Olvera was thirty-three years old and a professional truck driver fluent in English. Nothing in the record suggests that Olvera’s intelligence, education, or physical condition affected the voluntariness of his consent. And Olvera does not challenge the court of appeals’ holding that Moore had reasonable suspicion to detain him. See 970 S.W.2d at 665-66. On balance, the totality of the circumstances surrounding Olvera’s consent supports the trial court’s determination that Olvera voluntarily and unequivocally consented to the search.

Because it concluded that Olvera’s consent was not voluntary, the court of appeals did not consider Olvera’s points of error six and seven concerning the scope of Olvera’s consent, or his contention that the evidence was factually insufficient to support the trial court’s conclusion that the cash in Olvera’s possession was contraband. Accordingly, we reverse the court of appeals’ judgment and remand to the court of appeals to allow it to consider those points.

Justice ABBOTT filed a concurring opinion.

Justice ABBOTT,

concurring.

I concur in the Court’s judgment and analysis, but I write separately to raise the question whether the Court’s analysis is necessary in the first place. The analysis presupposes that the exclusionary rule applies. That is appropriate because neither of the parties in this case argued that the exclusionary rule should not apply. As such, it would be inappropriate for the Court to sua sponte decide the issue.

Both the Fourth Amendment to the United States Constitution and Article I, section 9 of the Texas Constitution prohibit unreasonable searches and seizures and require the exclusion of evidence obtained in violation of that prohibition in criminal trials. See U.S. Const, amend. IV; Tex. Const, art. I, § 9; Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); Polk v. State, 738 S.W.2d 274, 276 (Tex.Crim.App.1987); see also TEX.CODE CRIM. P. art. 38.23(a) (codifying and expanding the exclusionary rule). But forfeiture proceedings are generally in rem actions brought against the property, not the individual, and thus may be considered civil in nature. See United States v. Ursery, 518 U.S. 267, 274, 116 S.Ct. 2135, 135 L.Ed.2d 549 (1996); State v. Rumfolo, 545 S.W.2d 752, 754 (Tex.1976); State v. Benavidez, 365 S.W.2d 638, 640 (Tex.1963); see also Tex.Code CRiM. P. art. 59.05(b). Texas’ forfeiture statute specifically provides that forfeiture cases “shall proceed to trial in the same manner as in other civil cases.” Tex.Code CRiM. P. art. 59.05(b) (emphasis added).

The United States Supreme Court has held that evidence obtained in violation of the Fourth Amendment must be excluded in certain forfeiture proceedings. See One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 702, 85 S.Ct. 1246, 14 L.Ed.2d 170 (1965). In reaching that decision, the Court relied heavily on the fact that forfeiture of the claimant’s automobile under the Pennsylvania statute was “clearly a penalty for the criminal offense” of illegal liquor possession or transportation. Id. at 701-02, 85 S.Ct. 1246. But the Texas forfeiture statute declares the Legislature’s intent that “asset forfeiture is remedial in nature and not a form of punishment.” Tex.Code CRiM. P. art. 59.05(e). Moreover, the Court of Criminal Appeals has concluded that Chapter 59 is not so punitive that the Fifth Amendment’s double jeopardy clause bars a criminal prosecution after a forfeiture proceeding. See Fant v. State, 931 S.W.2d 299, 307-08 (Tex.Crim.App.1996).

The foregoing authority leads me to question whether the exclusionary rule applies, and I urge future civil forfeiture litigants to raise the issue.

      . Evidence obtained as the result of an unreasonable search and seizure is subject to exclusion in a criminal proceeding. See U.S. Const, amend. IV; Tex. Const, art. I, § 9; Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); Polk v. State, 738 S.W.2d 274, 276 (Tex.Crim.App.1987); see also TEX.CRIM. PROC.CODE art. 38.23(a) (codifying and expanding the exclusionary rule). We have never decided whether the exclusionary rule applies to civil forfeiture proceedings. See $4,182 v. State, 944 S.W.2d 24, 27 (Tex.App.—Texarkana 1997, no writ) (assuming without deciding that the exclusionary rule applied in civil forfeiture proceeding); $56,700 v. State, 710 S.W.2d 65, 70 (Tex.App.—El Paso 1986) (indicating that the exclusionary rule would apply unless "the deterrent effect [is] satisfied by other means, thereby leaving no reason to exclude the evidence in a civil action.”), rev'd on other grounds, 730 S.W.2d 659 (Tex.1987). Because both parties in this case presume the exclusionary rule’s application, we will assume without deciding that the rule applies.

      . The Texas Transportation Code allows a DPS officer to detain and enter a commercial motor vehicle on a highway to determine whether the vehicle is in violation of federal or state safely regulations. See Tex. Transp. Codes 644.103.

      . These standard of review principles are similarly applied in criminal cases. See Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997) (affording deference to trial court’s historical facts determination and “application of law to fact” questions that turn on questions of credibility and demeanor; mixed questions that do not turn on evaluation of credibility and demeanor are reviewed de novo); Combest v. State, 981 S.W.2d 958, 960 (Tex.App.—Austin 1998, pet. refd) (applying Guzman standard of review to the voluntary consent issue).

      . The court of appeals indicated that the State was required to prove that Olvera's consent was voluntary by clear and convincing evidence. 970 S.W.2d at 666. Because we conclude that the evidence in this case supporting the trial court’s decision meets the "clear and convincing” standard, we do not decide whether the lesser preponderance standard applies to the voluntary consent issue in Chapter 59 forfeiture proceedings.


author: PRICE, J., WOMACK, J.,

text:
    Ladderick Donnell WILCOX, Appellant, v. The STATE of Texas.
    No. 1079-99.
    Court of Criminal Appeals of Texas, En Banc.
    May 3, 2000.
    Michael Goains, Cameron, for appellant.
    Jeffrey L. Van Horn, Asst. State Atty., Matthew Paul, State’s Atty., Austin, for State.
   PRICE, J.,

delivered a concurring opinion,

in which McCORMICK, P.J., and MEYERS and KEASLER, J.J., joined.

I write separately to emphasize my displeasure with the actions taken by the trial court here. I cannot condone its act of dismissing the jury and sitting as fact-finder for the punishment evidence. When a defendant pleads guilty in front of a jury, the trial is not bifurcated, but rather is a unitary trial asking that the fact-finder determine punishment only — not guilt. See Carroll v. State, 975 S.W.2d 630, 631-32 (Tex.Crim.App.1998). Trial courts should not attempt to circumvent the State’s statutory right to refuse consent to a defendant’s jury waiver by dismissing the jury before it has performed its only objective in a guilty plea case: determining punishment.

With these thoughts, I concur in the improvident grant of the State’s petition.

WOMACK, J.,

filed a dissenting opinion

in which MANSFIELD and KELLER, JJ., joined.

We granted review of this case to address a jurisdictional question: “Does a Court of Appeals have jurisdiction, pursuant to Code of Criminal Procedure article 44.01(b), to consider the State’s appeal of a trial court’s imposition of deferred adjudication following a jury verdict of guilty?” The court of appeals held that the appellate courts “are without jurisdiction” of such an appeal. In doing so, it followed our recent precedents.

Today the Court simultaneously dismisses the case because our decision to grant review was improvident, and tries (in a concurring opinion) to address the merits of the appeal of which we have no jurisdiction. Respectfully, I think the Court does both too little and too much.

The question we agreed to review is the freshest unhealed wound we have inflicted on the criminal jurisprudence of the State. This case is yet another illustration of the mistake our closely divided court made in holding that article 44.01(b) does not authorize such an appeal as this. The reasons why this holding was wrong have been given elsewhere. I shall not repeat them here. The Court should grant review to correct the mistake and hold that the appellate courts have jurisdiction.

And the Court should not indulge in a sub rosa jurisprudence in which the appellate courts, acting without jurisdiction, discuss issues of illegal sentences in “concurring” opinions. If we are without jurisdiction, we have no authority to address the question of whether the trial court erred. By taking this unauthorized action, the Court tacitly recognizes that the grant of review in this case was far from improvident.

      . "The State is entitled to appeal a sentence in a case on the ground that the sentence is illegal.” Tex.Code Crim. Proc. art. 44.01(b).

      . See State v. Wilcox, 993 S.W.2d 848, 850 (Tex.App.—Austin 1999).

      . See State v. Baize, 981 S.W.2d 204 (Tex.Cr.App.1998); State v. Ross, 953 S.W.2d 748 (Tex.Cr.App.1997); cf. Speth v. State, 6 S.W.3d 530 (Tex.Cr.App.1999) (defendant may not complain of condition of probation for first time on appeal ), cert. denied, 529 U.S. -, 120 S.Ct. 1720, - L.Ed. -, 2000 WL 249190 (2000).

        . See Baize, 981 S.W.2d at 207 (McCormick, P.J., dissenting, joined by two of three other dissenting judges); Ross, 953 S.W.2d at 752 (Womack, J., dissenting); cf. Speth, 6 S.W.3d at 535 (Womack, J., concurring, joined by three judges).