text:
    In re Sue FULGIUM and Edward C. Fulgium, Jr.
    No. 06-04-00116-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted Nov. 15, 2004.
    Decided Nov. 16, 2004.

      John R. Mercy, Mercy, Carter, Tidwell, LLP, Errol N. Friedman, Friedman Law Office, Texarkana, for relator.
    Jo Thomason, Atchley, Russell, Waldrop & Hlavinka, LLP, Bobby Lockhart, Bowie County Dist. Atty., Texarkana, for real party in interest.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by

Justice ROSS.

Edward C. Fulgium, Jr., and Sue Fulgi-um petition this Court for a writ of mandamus compelling the Honorable Jeff Addison, Judge of the County Court at Law of Bowie County, to set aside a protective order denying depositions of Kim Griffin, case manager for CASA (Court Appointed Special Advocate) of Northeast Texas, Inc. (CASA), and the custodian of records of the Texarkana Children’s Advocacy Center (CAC), in a suit affecting the parent-child relationship pending in that court. The order also denied discovery of CASA’s and CAC’s records.

The Texas Department of Protective and Regulatory Services initiated that suit by filing a petition for protection of a child, for conservatorship, and for termination of the parent-child relationship. The children the subject of that suit are three females whose ages, at the time of suit, were sixteen, fifteen, and ten. Edward C. Fulgium, Jr., is referred to in the State’s petition as the “Legal Guardian” of the children, and the Fulgiums together are referred to elsewhere in the record as the “grandparents” and the “paternal grandparents” of the children. The trial court appointed CASA as the guardian ad litem for the children. Edward C. Fulgium, Jr., answered the suit with a general denial. His counsel then caused notices of intent to take oral depositions to be served on Griffin and the custodian of records for CAC. These notices were accompanied by subpoenas duces tecum for Griffin and the records custodian to produce all records maintained by them relating to these children.

CASA and CAC moved for protection from these notices and subpoenas. After hearing, the trial court granted the protective order, finding that the records sought by the subpoenas duces tecum were “work product” and that there was no showing of “substantial need” or “undue hardship.” For the reasons stated below, we deny the petition for writ of mandamus.

In their supplemental motion for protective order, CASA and CAC contended that the information sought by the depositions and the subpoenas was privileged under Section 261.201 of the Family Code, under Rule 502 of the Rules of Evidence, or under derivative judicial immunity. CASA and CAC make these same arguments in their response to the petition for writ of mandamus. In addition, CASA contends the information is protected as work product because, as guardian ad litem of the subject children, CASA is a “party’s representative.” CASA and CAC also contend Section 261.201 applies to them as a “designated agency” because they were appointed by the court. See Tex. Fam.Code Ann. § 261.001 (Vernon 2002), §§ 261.201, 261.301 (Vernon Supp.2004-2005). In the alternative, CASA and CAC contend the files are privileged under Rule 502, which honors privileges created by “law” when a person or other entity is required to report such information. See Tex.R. Evid. 502; Davidson v. Great Natl Life Ins. Co., 737 S.W.2d 312, 314 (Tex.1987).

The Fulgiums contend the work product privilege does not apply because CASA is not an attorney. If the work product privilege does apply, the Fulgiums contend that exceptions to the privilege allow discovery of the requested information. The Fulgiums contend CAC cannot claim either work product or a privilege because CAC is clearly not a party representative. The Fulgiums also contend that Section 261.201 only applies to the Department of Protective and Regulatory Services, not to CASA or CAC, and that no confidentiality is conferred to guardians ad litem under Section 107.002. See Tex. Fam.Code Ann. § 107.002 (Vernon Supp.2004-2005), §§ 261.001, 261.201, 261.301. Last, the Fulgiums contend that any privilege CASA could have claimed under Rule 502 has been waived by virtue of its report having been admitted into evidence. They further contend CAC cannot claim any privilege under Rule 502 because it was not required to submit a report.

Mandamus issues only when the mandamus record establishes (1) a clear abuse of discretion or the violation of a duty imposed by law, and (2) the absence of a clear and adequate remedy at law. Cantu v. Longoria, 878 S.W.2d 131, 132 (Tex.1994); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex.1992). Mandamus is an extraordinary remedy that will issue only to correct a clear abuse of discretion or, in the absence of another statutory remedy, when the trial court fails to observe a mandatory statutory provision conferring a right or forbidding a particular action. Abor v. Black, 695 S.W.2d 564, 567 (Tex.1985).

With respect to the resolution of factual issues or matters committed to the trial court’s discretion, the reviewing court may not substitute its judgment for that of the trial court. Walker, 827 S.W.2d at 839. The scope of discovery is generally within the trial court’s discretion. Dillard Dep’t Stores, Inc. v. Hall, 909 S.W.2d 491, 492 (Tex.1995). Mandamus will issue, though, to correct a discovery order if the order constitutes a clear abuse of discretion and there is no adequate remedy by appeal. In re Colonial Pipeline Co., 968 S.W.2d 938, 941 (Tex.1998).

A party will not have an adequate remedy by appeal when the appellate court would not be able to cure the trial court’s discovery error. An appeal will not be an adequate remedy where the party’s ability to present a viable claim or defense at trial is vitiated or severely compromised by the trial court’s discovery error. The remedy by appeal may be inadequate where a trial court’s discovery order disallows discovery which cannot be made a part of the appellate record, thereby denying the reviewing court the ability to evaluate the effect of the trial court’s error. Walker, 827 S.W.2d at 843^14; see Tom L. Scott, Inc. v. McIlhany, 798 S.W.2d 556, 558 (Tex.1990).

The trial court is granted discretion under Sections 261.201, 264.408, and 264.613 of the Family Code to order disclosure of the information sought in this case, provided certain requirements have been met. See Tex. Fam.Code Ann. § 261.201 (Vernon Supp.2004-2005), §§ 264.408, 264.613 (Vernon 2002). Under Section 261.201, information relating to the investigation of child abuse may not be disclosed unless the court orders it disclosed after determining that disclosure is essential to the administration of justice and would not endanger the child, the person reporting the abuse, or any other person. See Tex. Fam.Code Ann. § 261.201. While Section 261.201 does not specifically describe the entities to which it applies, Sections 264.408 and 264.613 provide that Section 261.201 applies to CASA and CAC. See Tex. Fam. Code Ann. §§ 261.201, 264.408, 264.613.

Section 264.613 provides that Section 261.201 applies to CASA. The creation of CASA is authorized by subchapter G. Tex. Fam.Code Ann. § 264.001, et seq. (Vernon 2002 & Supp.2004-2005); Chacon v. Chacon, 978 S.W.2d 633, 634 n. 1 (Tex.App.-El Paso 1998, no pet.). Section 264.613 provides that the “files, reports, records, communications, and working papers used or developed in providing services under this subchapter are confidential ... and may only be disclosed for purposes consistent with this subchapter,” and specifically lists the entities to which disclosure may be made. Tex. Fam.Code Ann. § 264.613. Neither the parents nor the grandparents of the child, or their attorney(s), are on this list. Further, Section 264.613(c) provides that “[ijnformation related to the investigation of a report of abuse or neglect of a child under Chapter 261 and services provided as a result of the investigation are confidential as provided by Section 261.201.” Id.

CAC’s records are protected by similar provisions. Under subchapter E, which applies to Child Advocacy Centers, Section 264.408 provides that the “files, reports, records, communications, and working papers used or developed in providing services under this chapter are confidential ... and may only be disclosed for purposes consistent with this chapter,” and specifically lists the entities to which disclosure may be made. Tex. Fam.Code Ann. § 264.408. As in Section 264.613, neither the parents nor the grandparents of the child, or their attorney(s), are on the list in Section 264.408. Id. Further, Section 264.408(b) provides that “[ijnformation related to the investigation of a report of abuse or neglect of a child under Chapter 261 and services provided as a result of the investigation is confidential as provided by Section 261.201.” Id.

Section 261.201(a) states that “[tjhe following information is confidential ... and may be disclosed only for purposes consistent with this code and applicable federal or state law or under rules adopted by an investigating agency.” Tex. Fam.Code Ann. § 261.201(a). Such information includes “except as otherwise provided in this section, the files, reports, records, communications, audiotapes, videotapes, and working papers used or developed in an investigation under this chapter or in providing services as a result of an investigation.” Tex. FamCode Ann. § 261.201(a)(2). Section 261.201 does include an exception that the trial court “may order” disclosure if after a hearing it is determined that the requested information is “essential to the administration of justice” and not likely to endanger the life or safety of the child, the person who reported the abuse, or any other person involved. Tex. Fam.Code Ann. § 261.201(b), (c).

The exception allowing the trial court to order the disclosure is discretionary. Under the Code Construction Act, the word “may” creates discretionary authority. Tex. Gov’t Code Ann. § 311.016 (Vernon 1998). If a hearing determines that the disclosure of the information is essential to the administration of justice and there is no danger to the child or another person, a court may order the disclosure at its discretion. The trial court held a hearing concerning the matter. Because there is no showing that the information is essential to the administration of justice or that the disclosure poses no danger to the child or another person, we cannot say the trial court clearly abused its discretion in refusing to order the disclosure. Further, there is no showing that disclosure would be consistent with the Family Code or required by federal or state law.

Because the Fulgiums have not shown that the trial court clearly abused its discretion in refusing to order disclosure under Section 261.201, we will not address the remaining contentions.

We deny the petition for writ of mandamus.


source: Caselaw Access Project

author: Justice MAZZANT.

license: Public Domain

text:
    Betty Sharon SCROGGS, Appellant v. AMERICAN AIRLINES, INC., Appellee.
    No. 05-03-01529-CV.
    Court of Appeals of Texas, Dallas.
    Nov. 30, 2004.

      Charles W. McGarry, Dallas, for appellant.
    Katherine Braden Staton, David T. Moran, Jeffrey G. Hamilton, Jackson Walker L.L.P., Dallas, for appellee.
    Before Justices WRIGHT, RICHTER, and MAZZANT.
   OPINION

Opinion by

Justice MAZZANT.

In this case alleging issues of negligence and premises liability, Betty Sharon Scroggs appeals the trial court’s summary judgment in favor of American Airlines, Inc. In three issues, Scroggs argues: (1) the trial court did not sustain American’s objections to her summary judgment evidence; (2) if the court implicitly sustained the objections, it abused its discretion in doing so; and (3) the court erred in granting summary judgment. We affirm in part and reverse in part.

BACKGROUND

Scroggs sued American after she fell on the metal hinge of a jet bridge while boarding a plane. American filed a motion for summary judgment, arguing Scroggs had no evidence that (1) the jet bridge or metal hinge was unreasonably dangerous; (2) American had actual or constructive knowledge of an unreasonably dangerous condition; and (3) the condition of the jet bridge caused Scroggs to fall. American also argued Scroggs’s testimony established she had not suffered compensable mental anguish, and therefore, American was entitled to summary judgment on Scroggs’s claim for mental anguish damages. Finally, although American argued no claim for negligent conduct existed, American argued it was entitled to summary judgment on any such existing claim because Scroggs had no evidence of duty, breach, or causation.

Scroggs filed a response to American’s motion and attached an affidavit by Dr. Gary Nelson. In its reply to Scroggs’s response, American moved to strike Scroggs’s summary judgment evidence. The court held a hearing on the summary judgment motion, but ordered that the motions be carried and postponed, allowing American either to reurge its motions or file amended or supplemental motions.

American supplemented its motion for summary judgment, and it sent Scroggs a “notice of hearing” stating that the motion for summary judgment would be heard on June 26. American next moved to strike Scroggs’s expert witness. Scroggs responded to the supplemental summary judgment motion on June 19 and included excerpts from Nelson’s deposition as well as some of Scroggs’s medical reports. American supplemented its motion to strike Scroggs’s expert on June 25, and Scroggs responded to the motion to strike her expert on June 25.

On June 26, the court held a hearing, but not on the summary judgment motion. Instead, according to the court’s language used at the beginning of the hearing (“We’re here on the record ... on a Motion to Strike this expert.”) and the notation on the reporter’s record, the court heard only American’s motion to strike Scroggs’s expert. The record contains no written order stemming from this hearing. The record reflects no other actions until the court granted American’s motion for summary judgment in an order dated July 3. The final judgment was amended September 15, and from that, Scroggs appeals.

Summary Judgment Evidence

In her first issue, Scroggs complains the trial court never sustained American’s objections to her summary judgment evidence. Scroggs argues that because there is no written order excluding any specific summary judgment evidence, we should conclude that American’s objections were overruled. American responds that it asserted “specific objections to Nelson’s opinions” in its motion to strike and objections to Scroggs’s evidence. American contends the objections were addressed by the trial court and were sustained. American argues the court “clearly set forth its rulings as to which opinions were struck and excluded.” We disagree.

Both parties discuss the possibility of using an implicit ruling on objections to summary judgment evidence as sufficient to show a trial court’s ruling. However, we need not determine if an implicit ruling would be sufficient in the case before us. We conclude there is no ruling from which to infer the trial court’s final resolution of American’s objections.

The trial court held a hearing on American’s motion to strike Scroggs’s expert. During that hearing, the court and the parties discussed several of Nelson’s opinions. During the hearing, the court at times stated it would sustain part of American’s objection to Scroggs’s expert. However, throughout the hearing, the court also made comments as follows:

So at the moment I can’t say that I will let him testify, but I can say that if he’s got a standard, it would seem to me that I would, and I would need to hear now what’s the problem, says the Defendant later on, all right?
If he can’t show me a standard, he’s not rendering those underlying opinions. And I don’t know whether I’ll let him say the “knew or should have known” even if I let him testify to the underlying opinion.
At the end of the hearing, the court thanked the parties and concluded:
[TJhank you all very much, and we will see whether he does or doesn’t get to testify.
What I’m not sure about your expert is whether I’m going to let him, for the first time ever, start looking at standards he’s never dealt with and can’t demonstrate an expertise in. That’s what I’m not sure I’m going to let him do....
But I will comment to the Defendants: I never yet have put somebody to trial whose experts I struck. So if they can’t rehabilitate this guy, the high probability is I’m going to let them go get — have the time to go get another, all right? ...
Counsel for American asked if he could submit an order, and the court replied to “[c]all it an interim order.” Further, the court stated,
[Y]’all didn’t tick off the specific opinions which is what I really, really need motions to do so that they then go — you did it globally, and I’m not granting the global.
Again, I don’t know whether he can testify globally about these things, okay?

The hearing ended, and the court adjourned.

Based on the record, we conclude the court did not reach a decision for a final order concerning the motion to strike or American’s objections to Scroggs’s summary judgment evidence. Further, the court complained American was not specific in stating to which opinions it objected. Because the court seemed unclear what specific objections American was making, and because of the language the court used in concluding the hearing, we cannot interpret the hearing as sustaining any particular objections regardless of any comments made earlier in the hearing. Because we have no clear indication of what final ruling the court made, and because the court itself did not interpret objections to specific opinions (“[Yj’all didn’t tick off the specific opinions which is what I really, really need motions to do.... ”), we conclude we have no order before us indicating that any of the summary judgment evidence was stricken or excluded. Accordingly, we resolve Scroggs’s first issue in her favor. Because of our resolution of Scroggs’s first issue, we need not address her second issue on appeal. See Tex.R.App. P. 47.1.

Summary Judgment

In her third issue, Scroggs contends the trial court erred in granting summary judgment. American, assuming no expert’s report was before the court, contends the court was correct to grant summary judgment because Scroggs has “no negligent activity claim.” Because we have resolved Scroggs’s first issue in her favor, in our summary judgment review we will consider the expert’s opinion as having been before the court below. And we review the summary judgment granted for both the premises liability claim and the negligent conduct claim.

Standard of Review

In its motion for summary judgment, American segregated its traditional and no evidence motions, making both arguments. Compare Tex.R. Civ. P. 166a(e) with Tex.R. Crv. P. 166a(i). Under a traditional motion for summary judgment, the moving party carries the burden of establishing that no material fact issue exists and that it is entitled to judgment as a matter of law. Tex.R. Crv. P. 166a(c); M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex.2000) (per curiam). By contrast, when a party moves for summary judgment under rule 166a(i), asserting that no evidence exists as to one or more elements of a claim on which the nonmovant would have the burden of proof at trial, the burden is on the nonmovant to present enough evidence to raise a genuine issue of material fact on each of the challenged elements. Tex.R. Civ. P. 166a(i); Gen. Mills Rest., Inc. v. Tex. Wings, Inc., 12 S.W.3d 827, 832 (Tex.App.-Dallas 2000, no pet.).

American attached evidence in support of its motion. Typically, if a party moves for summary judgment and attaches evidence, a court will view that motion as a traditional summary judgment motion. See Williams v. Bank One, Tex., N.A., 15 S.W.3d 110, 117 (Tex.App.-Waco 1999, no pet.). However, even though American included “evidence” with both its traditional and no evidence summary judgment motions, American raised only issues alleging “no evidence.” American did not argue it was entitled to judgment as a matter of law, nor did it carry a burden of establishing that no material fact issue existed as to the condition of the jet bridge. American did, however, contend that Scroggs had no evidence of her claims. Even in arguing against Scroggs’s claims for mental anguish, American contended Scroggs had no evidence she suffered mental anguish. Accordingly, we will review the issues on appeal under the no evidence standard of review.

We review a no evidence summary judgment under the same legal sufficiency standard used to review a directed verdict. Gen. Mills, 12 S.W.3d at 833. Under Texas Rules of Civil Procedure 166a(i), a party may move for summary judgment if no evidence exists to support one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. Tex.R. Civ. P. 166a(i); Gen. Mills, 12 S.W.3d at 833. The moving party must allow adequate time for discovery and must state in the motion the elements on which there is no evidence. Tex.R. Crv. P. 166a(i). The non-movant must then bring forth evidence that raises a fact issue on the challenged elements. Murray v. Ford Motor Co., 97 S.W.3d 888, 891 (Tex.App.-Dallas 2003, no pet.). Although the non-moving party is not required to marshal its proof, it must present evidence that raises a genuine issue of material fact on the challenged elements. Crocker v. Paulyne’s Nursing Home, Inc., 95 S.W.3d 416, 419 (Tex.App.-Dallas 2002, no pet.). A no evidence summary judgment is properly granted if the nonmovant fails to bring forth more than a scintilla of probative evidence to raise a genuine issue of material fact on the challenged elements. Id. In determining whether the nonmovant has met its burden, we review the evidence in the light most favorable to the nonmovant and resolve all doubts in its favor. Id.; General Mills, 12 S.W.3d at 833.

Discussion

American moved for summary judgment, contending Scroggs had no evidence of her claims against American. American argued Scroggs had no evidence for any of the elements of a premises liability claim, arguing there was no evidence (1) of an unreasonably dangerous condition; (2) that American possessed actual or constructive knowledge of an unreasonably dangerous condition, or that American failed to exercise reasonable care to reduce or eliminate any unreasonable risk of harm; and (3) that the unreasonably dangerous condition proximately caused plaintiffs injuries. American also contended it was entitled to summary judgment on the mental anguish claim because Scroggs’s testimony “did not state a claim for mental anguish damages.” American also contended (under its “no evidence” heading) that Scroggs had no evidence to show duty, breach, or causation for her negligent conduct claim.

Premises Liability Claim

An Unreasonably Dangerous Condition

Scroggs responded to American’s summary judgment motion and attached affidavits and excerpts from depositions. American argued there was no evidence an unreasonably dangerous condition existed. Nelson’s affidavit expressed the slope and surface slickness together created an unreasonably dangerous condition. Accordingly, viewing the evidence most favorably to Scroggs, we conclude Scroggs brought forth more than a scintilla of evidence that raised a fact issue on this challenged element. See Murray, 97 S.W.3d at 890-91.

Actual or Constructive Knowledge; Failure to Exercise Reasonable Care to Reduce or Eliminated Any Unreasonable Risk of Harm

Regarding American’s actual or constructive knowledge of an unreasonably dangerous condition, Scroggs submitted incident reports to demonstrate other passengers had fallen on American’s jet bridges. Further, in her deposition, Scroggs stated there were no hand railings in the jet bridge where she fell. However, American submitted an excerpt from Ju-dee Ann Alex’s deposition in which she stated the handrails are present to assist passengers in making the “transition in the floor level.” A reasonable inference of constructive knowledge may be made when one location in a building is made safer by altering the area (such as by adding hand rails) but another similar place is not so altered. See Harwood v. Hines Interests Ltd. P’ship, 73 S.W.3d 450, 452 (Tex.App.-Houston [1st Dist.] 2002, no pet.). Scroggs testified no hand rails were in the jet bridge where she fell, but an American employee stated the handrails are provided to assist passengers in making the transition along the jet bridges.

Further, the fact that the owner or occupier of a premises created a condition that posed an unreasonable risk of harm may support an inference of knowledge. Keetch v. Kroger Co., 845 S.W.2d 262, 265 (Tex.1992). Creating the condition does not establish knowledge as a matter of law, but creation of the condition is circumstantial evidence of knowledge. See id. at 266. In premises cases, constructive knowledge can be established by showing that the condition had existed long enough for the owner or occupier to have discovered it upon reasonable inspection. CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 102-03 (Tex.2000).

Deposition testimony was presented indicating the jet bridge was purchased in 1972 and had never been refurbished. It was taken out of service just prior to the date Scroggs filed her lawsuit and was subsequently destroyed. A reasonable inference follows that American maintained control over the jet bridge and had for a substantial amount of time.

Viewing all of this evidence in the light most favorable to Scroggs, and disregarding all contrary evidence and inferences, we conclude that more than a scintilla of evidence was brought forth regarding whether American had actual or constructive knowledge of the jet bridge’s alleged dangerous condition. See Murray, 97 S.W.3d at 890-91.

The Unreasonably Dangerous Condition Proximately Caused Plaintiff’s Injuries

Scroggs testified she slipped on the metal transition plate on the jet bridge. Nelson also stated that the slope and slipperiness of that plate was the cause of Scroggs’s fall. We conclude, viewing this evidence in the light most favorable to Scroggs, and disregarding all contrary evidence and inferences, more than a scintilla of evidence was brought forth regarding whether the alleged unreasonably dangerous condition proximately caused Scroggs’s fall, which in turn caused her injuries. See Murray, 97 S.W.3d at 890-91.

Evidence of Mental Anguish Damages

Scroggs submitted copies of a doctor’s report stating: “[Scroggs] developed increased panic attacks, depression because of this [her fall and fracturing her foot].... Her anxiety and depression are significant for situational problems.” Accordingly, we conclude Scroggs brought forth more than a scintilla of evidence regarding her mental anguish suffered as a result of the incident. See Murray, 97 S.W.3d at 890-91.

Because we conclude Scroggs brought forth at least a scintilla of evidence on all elements of her premises liability claim, we hold the court erred in granting summary judgment on that claim. We resolve this portion of Scroggs’s third issue in her favor.

The Negligent Conduct Claim

American argued that Scroggs’s petition alleged only injuries stemming from defective premises and not negligent conduct. However, American did address the negligent conduct claim in its motion for summary judgment by contending Scroggs had no evidence of duty, breach, or causation.

Generally, an owner of land has a duty to use reasonable care to make and keep the premises safe for business invitees. See Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 527 (Tex.1997). The legal duty of an owner or occupier may subject it to liability in two situations: (1) those arising from a defect existing on the premises when the independent contractor/invitee entered; and (2) those arising from activity on the premises. Id; see also Redinger v. Living, Inc., 689 S.W.2d 415, 417 (Tex.1985). To recover on a negligent activity theory, the person must have been injured by or as a contemporaneous result of a negligent activity itself rather than a condition created by a negligent activity. Keetch, 845 S.W.2d at 265; Crooks v. Moses, 138 S.W.3d 629, 638 (Tex.App.-Dallas, 2004, no pet.). Injury resulting from a negligent activity would, therefore, be the breach of that duty to use reasonable care to make and keep the premises safe for business invitees.

Having reviewed the record, we find no evidence of any contemporaneous activity by which Scroggs alleged she was injured. Accordingly, we hold the court did not err in granting summary judgment on any negligent activity claim. Any argument she has raised addresses an alleged condition created by an activity instead of an activity that actually caused injury.

Conclusion

Having found the court did not exclude or strike any of Scroggs’s summary judgment evidence, we conclude that Scroggs brought forth at least a scintilla of evidence on all elements of her premises liability claim. Further, she also brought forth more than a scintilla of evidence for mental anguish damages. Accordingly, we reverse the trial court’s summary judgment as it relates to premises liability and as it addresses mental anguish damages. However, we conclude Scroggs brought forth no evidence of a contemporaneous activity by which Scroggs was injured, which would be a breach of American’s duty to Scroggs.

We affirm the trial court’s summary judgment as it relates to any negligent conduct claim raised by Scroggs.

      . American cites Mitchell v. Baylor University Medical Center, 109 S.W.3d 838, 842 (Tex. App.-Dallas 2003, no pet), to contend that we have stated that a reporter’s record documenting the trial court’s rulings would indicate the record was clear and sufficient. Instead, in Mitchell, we stated,
      [T]here is no record of a hearing on this motion or a written order granting or overruling this motion, nor is there a reporter’s record of the summary judgment hearing. The record does not show that the trial court sustained the medical center’s objections. Evidence that has been objected to remains part of the summary judgment proof unless an order sustaining the objection is reduced to writing, signed, and entered of record.

        Id. Mitchell noted only that no record of a hearing was before the Court. We did not say conclusively that such a record would be the only indication we would need to determine what summary judgment proof remained before the trial court.


author: PER CURIAM. Chief Justice GRAY

text:
    Shawna BELLER, Appellant, v. The STATE of Texas, Appellee.
    No. 10-02-00282-CR.
    Court of Appeals of Texas, Waco.
    Dec. 1, 2004.
    Karen Zellers, Spring, for appellant.
    William Lee Hon, Polk county Dist. Atty., John S. Holleman, Polk County Asst. Dist. Atty., Spring, for appellee.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   ABATEMENT ORDER

PER CURIAM.

The State charged Shawna Beller with third degree felony theft. Tex. Pen.Code Ann. § 31.03(e)(5) (Vernon Supp.2004). Beller filed a motion to suppress her written confession. The trial court denied Bel-ler’s motion, yet failed to enter findings of fact and conclusions of law regarding the voluntariness of her confession. A jury found Beller guilty, and she was sentenced to four years’ confinement. She complains on appeal that the court erred by admitting her written confession because it was coerced.

Beller argues in her second issue that the trial court erred by not entering findings of fact and conclusions of law on the voluntariness of her confession, and asks this Court to abate this appeal and direct the trial court to enter its findings. The Texas Code of Criminal Procedure requires a trial court to enter written findings of fact and conclusions of law that specifically support its conclusion that the defendant’s statements were voluntary. Tex.Code Crim. Proc. Ann. art. 38.22, § 6 (Vernon Supp.2004). This requirement is mandatory, regardless of whether a defendant has objected to the lack of findings. Urias v. State, — S.W.3d -,-, No. 335-03, 2004 WL 2347789,-1-*2 (Tex.Crim.App. Oct.20, 2004).

Because the trial court has failed to make the required findings of fact and conclusions of law, we sustain Beller’s second issue. We abate this appeal and direct the trial court to enter findings of fact and conclusions of law concerning the vol-untariness of Beller’s written confession.

The trial court shall, within thirty days after the date of this Order: (1) make appropriate orders and findings of fact and conclusions of law; and (2) deliver any orders and findings of fact and conclusions of law to the trial court clerk.

The trial court clerk shall: (1) prepare a supplemental clerk’s record containing all orders and findings of fact and conclusions of law which the trial court renders or makes; and (2) file the supplemental clerk’s record with the Clerk of this Court within forty-five days after the date of this Order.

If Beller determines, after reviewing the trial court’s findings, that she should amend or supplement her brief, her amended or supplemental brief will be due thirty days after the supplemental record is filed. If Beller files an amended or supplemental brief, the State will have thirty days thereafter to file a responsive brief.

Chief Justice GRAY

dissents with the following note:

Because the majority now chooses to run over me by not allowing an adequate time for me to prepare a full and proper dissent, I will issue my dissent on a later date. The majority gave no notice to me that this order would issue today.


author: TOM GRAY, Chief Justice,

text:
    Cosme MENDEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 10-04-00206-CR.
    Court of Appeals of Texas, Waco.
    Dec. 8, 2004.
    Cosme Mendez, Dalhart, pro se.
    John W. Segrest, McLennan County Dist. Atty., Waco, for appellee.
   From the 54th District Court, McLen-nan County, Texas, Trial Court # 1999-851-C, George H. Allen, Judge.

Appeal abated.

TOM GRAY, Chief Justice,

dissenting to abatement order.

Without discussion, the Court rejects the trial court’s determination, implied by the trial court’s denial of the DNA motion, that the court did not find reasonable grounds for the motion to be filed. See Tex.Code Grim. Proo. Ann. art. 64.01(c) (Vernon Pamp.2004-2005). The majority’s reliance on Gray is misplaced. Gray v. State, 69 S.W.3d 835 (Tex.App.-Waco 2002, order). Gray was decided under the original version of article 64.01(c). The original version of the statute required appointment of counsel if 1) the convicted person informs the court that the person wants to file a motion; and 2) the court determines the person is indigent. Act of 2001, 77th Leg., ch. 2, § 2, 2001 Tex. Gen. Laws 2, amended by Act of 2003, 78th Leg., ch. 13, § 1, 2003 Tex. Gen. Laws 16.

In apparent response to the flood of requests and related expense for appointed counsel having to pursue baseless, frivolous, groundless motions, the legislature amended the statute. The amendment added a new criterion to be met before the trial court was required to appoint counsel: that “the court finds reasonable grounds for a motion to be filed.” Tex.Code CRiM. Proo. Ann. art. 64.01(c) (Vernon Pamp. 2004-2005). No longer is the trial court required to appoint counsel just because a defendant has requested DNA testing and has shown that he or she is indigent. The defendant must now provide the trial court sufficient information from which the trial court can make the finding, required by the statute, that “reasonable grounds for a motion to be filed” exist.

The trial court did not appoint counsel in response to Mendez’s request. If the request does not affirmatively show a reasonable ground for making a motion, there is no reason to abate this appeal. A review of the request for DNA testing not only does not show a reasonable ground for making the motion, it also affirmatively negates that any such ground exists.

Mendez wants blood on a knife, alleged by the State to have been used in the aggravated assault for which Mendez was found guilty, to be tested for a determination that it was not the victim’s blood; ergo, it was not the knife used in the assault. And as Mendez’s argument goes, no knife, no aggravated assault, and no deadly weapon finding; thus, Mendez gets much less prison time.

The problem with Mendez’s request is, at least, threefold. First, identity must have been an issue for a request for DNA testing to be meritorious. Tex.Code Crim. Proo. Ann. art. 64.03(a)(1)(B) (Vernon Pamp.2004-2005). The issue presented by Mendez is not that his participation in the assault was an issue, but whether the assault was an aggravated assault due to the use of a deadly weapon. The identity of the assailant, Mendez, was not an issue. Mendez attacks the complainant’s inability to identify the knife. That is not the issue of identity that will entitle a defendant to a DNA test. Id.

Second, the request established that the knife, on which the blood is alleged to be present, was presented as evidence in the trial. The request does not indicate why Mendez did not have, or attempt to have, the knife tested during his original trial. For a motion for DNA testing to have merit, the defendant must show that the biological material was not previously subjected to DNA testing “through no fault of the [defendant], for reasons that are of a nature such that the interests of justice require DNA testing.” Tex.Code Ceim. Proc. Ann. art. 64.01(b)(1)(B) (Vernon Pamp.2004-2005).

Mendez’s request affirmatively states' that he was aware of the knife used as evidence by the State, knew it had blood on it, and knew that it was never tested for anything. Thus Mendez’s request shows a reasonable ground does not exist because no reason is given for the failure to conduct his own DNA test at the time of trial.

Third, and this may be the most important of the three, even if the DNA test established that the blood on the knife was not the victim’s, it would not establish what Mendez asserts that it would. Mendez states: “The movant expects the DNA test to prove that no weapon was ever involved in the case.” This is really the crux of the entire request for DNA testing.

But the DNA test will never be able to prove what Mendez wants it to prove. At most, it could show that the victim was not the source of the biological material alleged to be on the knife. This does not mean that it was not the knife used, or that no knife was used, or that no offense occurred. While it could possibly raise an issue regarding what weapon was used in the assault, in this case, a negative DNA test result would never be able to establish that Mendez “would not have been convicted if exculpatory results had been obtained through DNA testing.” Tex.Code Crim. Proc. Ann. art. 64.03(a)(2)(A)(Vernon Pamp.2004-2005).

Any of these three reasons would support a determination that the trial court did not find “reasonable grounds for a motion to be filed.” Tex.Code Crim. Proc. Ann. art. 64.01(c) (Vernon Pamp.2004-2005).

By its entire failure to address a need for the trial court to make a preliminary review of the grounds for making a motion, the Court has judicially removed the very language the legislature added to avoid the result this case is headed toward — taxpayer dollars spent for appointed counsel to evaluate a frivolous request for DNA testing.

As to the appointment of an attorney on appeal, I would apply the same analysis of the amended statute as we applied to the original statute in Gray and hold that a person requesting DNA testing is only entitled to an attorney on appeal if the person meets the three requirements discussed above for the appointment of an attorney in the trial court. Having determined that Mendez has failed to make that showing, I would also hold that he is not entitled to appointed counsel on appeal.

I would affirm the trial court’s denial of the request for DNA testing. Because the Court abates the appeal for a determination of whether the appointment of trial or appellate counsel is required, I respectfully dissent.


author: DAVID GAULTNEY, Justice. DON BURGESS, Justice,

text:
    In re Ben “Benji” JOHNSON.
    No. 09-04-324 CV.
    Court of Appeals of Texas, Beaumont.
    Submitted on Aug. 6, 2004.
    Decided Dec. 9, 2004.

      David J. Van Susteren, Houston, for appellant.
    Anne Pickle, Seale, Stover, Bisbey & Morían, Jasper, for appellees.
    Before McKEITHEN, C.J., BURGESS, and GAULTNEY, JJ.
   OPINION

DAVID GAULTNEY, Justice.

Our opinion of October 7, 2004, is withdrawn, and this opinion is substituted.

The trial court found relator, Ben “Ben-ji” Johnson, in contempt of court and committed him “to the Jasper County Jail until such time as he deposits the sum of $24,150.32” into the registry of the court. The contempt order finds he is able to deposit the funds. In this habeas corpus proceeding, relator says he has been imprisoned for nonpayment of a debt in violation of the Texas Constitution. See Tex. Const, art. I, § 18.

The underlying case is the guardianship of Jimmy Mays. Mays’ daughter, Jemece Mays Richard, has been appointed his guardian. As guardian, Richard is attempting to recover Mays’ property. See Tex. Prob.Code §§ 768, 877 (Vernon 2003 & Vernon Supp.2004).

Mays’ wife, Rose Mays, who divorced Jimmy in 2001 and remarried him in April 2004, received a check in the mail payable to Jimmy Mays in the amount of $24,150.32. The trial court instructed Rose Mays to pay the money into the registry of the court. Rose deposited the check into a credit union account, withdrew the entire amount in cash, and gave the money to relator for safekeeping.

Relator testified he placed the money under a pine tree where he could watch it from his porch. When Rose Mays returned for the money, relator went to the tree and discovered the money was gone. After hearing this explanation, the trial court ordered relator and Rose Mays to pay the money into the registry of the court by 9:30 the next morning. When they failed to do so, he found them in contempt of court and put them in jail.

Payment of a debt may not be coerced by imprisonment. See Tex. Const. art. I, § 18 (“No person shall ever be imprisoned for debt.”); see Ex parte Hall, 854 S.W.2d 656, 658 (Tex.1993). However, not every obligation to pay money is a “debt” within the meaning of Article I, Section 18 of the Texas Constitution. See id.; Ex parte Davis, 101 Tex. 607, 111 S.W. 394, 396 (1908) (“There are many instances in the proceedings of the courts where the performance of an act may be enforced by imprisonment and would not come within the prohibition of the Constitution, although it might involve the payment of money.”). For example, the obligation to support one’s spouse or child is “a legal duty arising out of the status of the parties,” not out of a contract, and is not considered a debt. See Ex parte Hall, 854 S.W.2d at 658. In Ex parte Hall, the Court explained that a person may also contract to support a spouse or child, “and that obligation, to the extent it exceeds his legal duty, is a debt.” Id. The obligation • to pay money arising out of a contract is a debt within the meaning of Article I, Section 18. See generally Ex parte Duncan, 462 S.W.2d 336, 337 (Tex.Civ.App.-Hous-ton [1st Dist.] 1970, orig. proceeding) (citing Ex parte Yates, 387 S.W.2d 377 (Tex.1965)).

In Ex parte Sutherland, 526 S.W.2d 536, 539 (Tex.1975), the Court held an obligation to surrender specific property in the division of a community estate was not a debt. Sutherland was placed in jail for contempt for failing to pay his former wife one-half of retainer pay received by him as a member of the Fleet Reserve. The Supreme Court explained as follows why there was “no problem here of imprisonment for debt in the constitutional sense”:

Relator was constituted a trustee by the court to collect and remit to the clerk the one-half of the pay awarded to the wife. In performing that duty he will not be paying a debt but will be surrendering the share to which his former wife is legally entitled. His confinement to compel payment of the arrearage in the wife’s one-half of the retainer pay is not imprisonment for debt within the meaning of Article 1, Section 18, of our Constitution.

Id. Sutherland was not ordered to pay a debt; rather, he was ordered to surrender property to which another person was legally entitled. Surrendering another’s property, even though the property was money, was not payment of a debt.

In Ex parte Gorena, 595 S.W.2d 841, 846-47 (Tex.1979), a case involving an obligation to make monthly payments of retirement benefits to a former spouse, the Court said “[njumerous cases in other jurisdictions have affirmed a trial court’s order holding a trustee or other fiduciary in contempt for failure to turn property, including money, over to third persons.” Id. The Court approved reasoning which likened a spouse’s status to that of a trustee in considering whether an obligation to pay was a debt. Id. (approving “the decision and reasoning” in Ex parte Anderson, 541 S.W.2d 286 (Tex.Civ.App.-San Antonio 1976, orig. proceeding)). In Ex parte Buller, 834 S.W.2d 622, 626 (Tex.App.-Beaumont 1992, orig. proceeding), this Court held a trustee or other fiduciary could be jailed for contempt in refusing to turn over funds.

Relator’s obligation is based on his possession for safekeeping of property the trial court had previously ordered placed in the registry of the court. That the property is money does not mean his legal duty is a debt. The trial court found he is still able to place the money in the registry of the court. He is holding another’s property and has been ordered to surrender the property. We conclude relator is not being imprisoned for nonpayment of a debt within the meaning of Article I, Section 18 of the Texas Constitution.

Relator says in his reply brief that he does not have the cash. He says he “cannot use personal funds to satisfy the Order because he is indigent,” and notes he has moved to proceed in forma pauperis in this case. We understand this argument to be there is no evidence he still has the asset entrusted to him in his possession, he cannot comply, and the order is therefore void. See Ex parte Chambers, 898 S.W.2d 257, 259-60 (Tex.1995).

A contempt order imposing a coercive restraint is void if the condition for purging the contempt cannot be performed. Ex parte Dustman, 538 S.W.2d 409, 410 (Tex.1976); Ex parte Thetford, 369 S.W.2d 924, 925 (Tex.1963). “[T]he issue in habeas corpus review is whether the relator has conclusively established that [the relator] was involuntarily unable to pay.” See Ex parte Chambers, 898 S.W.2d at 262 (criminal contempt); see also In re Briggs, 965 S.W.2d 743, 745 (Tex.App.-Beaumont 1998, orig. proceeding) (civil contempt).

Once the money was traced into his possession, relator was presumed to possess the entire amount traced, and he was required to show he was not in possession of all or part of the traced amount. See generally Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex.1991). The trial court determines the credibility of the witnesses and the weight to be given their testimony. In re Briggs, 965 S.W.2d at 745. Relator admits he had possession of the cash, but he says it must have been stolen after he placed it under a pine tree where he could watch it from his porch for ten or twelve days until Rose Mays returned for the money. The trial court was not required to accept an incredible account. On this record we cannot say relator has established involuntary inability to comply.

The relator is not entitled to relief on the issue originally presented to this Court. Accordingly, the issue is overruled.

OPINION ON MOTION FOR REHEARING

In a motion for rehearing, relator argues his right to due process of law was violated because he was not given proper notice of the contempt, was not given the opportunity to retain counsel, and did not have an opportunity to defend himself at a contempt hearing. Relator says he never had an attorney “at any point during the evidentiary hearing on the Motion to Show Cause.” Relator also says the court signed its order finding him in contempt of court without holding a contempt hearing. Relator further states:

[T]he district court apparently relied on the show cause hearing of July 21, 2004, at which [relator] was merely testifying as a witness (which he did voluntarily without the necessity of a subpoena), without counsel, and with no knowledge that the judge might place him in jail the very next day.

Contempt of court proceedings may be civil or criminal. See Ex parte Werblud, 536 S.W.2d 542, 545-46 (Tex.1976). See In re Houston, 92 S.W.3d 870, 876 n. 2 (Tex.App.-Houston [14th Dist.] 2002, orig. proceeding). Criminal contempt is punishment for past conduct. Id. Civil contempt is coercive, and the eontem-nor may obtain his release by complying with the court’s order. Id.

The distinction between civil and criminal contempt impacts the due process analysis. See International Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 826-27, 114 S.Ct. 2552, 129 L.Ed.2d 642 (1994); see also Hicks v. Feiock, 485 U.S. 624, 631-32, 108 S.Ct. 1423, 99 L.Ed.2d 721 (1988). Criminal penalties may not be imposed upon one who has not been afforded the Constitutional protections required of criminal proceedings. See Bagwell, 512 U.S. at 826, 114 S.Ct. 2552. However, civil coercive sanctions designed to compel future compliance may be imposed in a civil proceeding upon notice and an opportunity to be heard. Id. at 827, 114 S.Ct. 2552.

The due process analysis is also impacted by whether the contempt is direct or constructive. Direct contempt occurs in the presence of the court. See Ex parte Chambers, 898 S.W.2d 257, 259 (Tex.1995). Contempt outside the presence of the court is constructive contempt. Id.) see also Ex Parte Gordon, 584 S.W.2d 686, 688 (Tex.1979). Direct contempt that is witnessed by the judge may be summarily punished. See In re Oliver, 333 U.S. 257, 274, 68 S.Ct. 499, 92 L.Ed. 682 (1948). No further proof is required. Id.) see also generally Ex Parte Daniels, 722 S.W.2d 707, 709 (Tex.Crim.App.1987) (criminal contempt). However, contempt not personally observed by the judge requires notice and an opportunity to be heard on disputed facts. See Ex parte Gordon, 584 S.W.2d at 689-90. Absent adequate notice, a contempt order is a nullity. In re Acceptance Ins. Co., 33 S.W.3d 443, 448-49 (Tex.App.-Fort Worth 2000, orig. proceeding). Finally, the nature of the sanction is a factor to be considered in determining due process. See generally Ector County Indep. Sch. Dist. v. Hopkins, 518 S.W.2d 576, 581 (Tex.Civ.App.-El Paso 1974, no writ). Jail is a deprivation of liberty, whether the contempt is civil or criminal, direct or constructive.

This is a civil contempt order designed to coerce relator to comply with the trial court’s order. The contempt is constructive. The hearing at which relator testified was held to resolve a motion to show cause, and to convert the temporary guardianship into a permanent one. The record does not reflect relator was represented by counsel. At the conclusion of the testimony, the following exchange occurred between Richard’s counsel, Mays’ counsel, and the trial court:

[Richard’s Counsel]: We would like to ask that [Rose] be found in contempt of court, put in jail, and ask that the property be returned to the temporary guardian.
[The Court]: Are there pleadings on file that I can find her in contempt?
[Mays’ Counsel]: I didn’t see it in the file.
[Richard’s Counsel]: I don’t believe that I have asked for a finding of contempt because there was not a prior written order.
[Mays’ Counsel]: No, sir, Your Honor.
[Richard’s Counsel]: It was ordered that she bring the money to the registry of the court, orally.
[The Court]: I just orally asked her to do that. I believe she’s admitted that. Okay. I’m going to find that ... the money, the $24,150 should be deposited in the registry of the district court of Jasper County, Texas. I’m going to order that done by 9:30 in the morning. If the money is not deposited in the registry of the district court of Jasper County, Texas, I find not only Mrs. Mays, but Mr. Johnson, Rev. Johnson in contempt of this court.
[Mays’ Counsel]: Your Honor, we understand the position of the Court; however, we’ve not had proper notice of this hearing.
[The Court]: She keeps saying you have. I’ll set the hearing later. Do we understand what’s going to happen in the morning at 9:30?
[The Court]: Mrs. Mays, do you understand that you can be in contempt of court; and if you are in contempt of court, it’s very possible you can go to jail until you purge yourself of that contempt. Mr. Johnson, did you understand what I said?
[The Court]: I’ll see you in the morning at 9:30, and one of you better have that money.
[The Court]: Deposit to the registry of the District Clerk of Jasper County, Texas and if it’s not, I want a written order. I’m going to sign that order today. But I’m giving you notice, Mrs. Mays; and I talked to the preacher out there, Brother Johnson. He knows to have it here at 9:30 in the morning. And he knows what’s going to happen in the event it’s not here.

Relator’s explanation for his failure to deliver the cash involves disputed facts concerning out-of-court conduct. He was entitled to reasonable notice of the contempt charge and a reasonable opportunity to be heard. See In re Houston, 92 S.W.3d at 876. Reasonable notice will provide him with an opportunity to consult counsel, present witnesses, or otherwise prepare his defense.

The notice provided to relator, which the record reflects was less than twenty-four hours, was not sufficient. Johnson was a witness at the show cause hearing. He was not the respondent. Considering the inadequacy of the notice provided in this case, the contempt order is a nullity. See In re Acceptance Ins. Co., 33 S.W.3d at 448-49. Relator’s first issue on motion for rehearing is sustained. We grant the petition for writ of habeas corpus and order the relator Ben “Benji” Johnson released from confinement and from the bond previously ordered.

WRIT GRANTED.

DON BURGESS, Justice,

concurring and dissenting.

I concur with opinion of the Court on motion for rehearing. Because I disagree with the majority’s opinion on the substantive issue originally presented in the relator’s petition, I respectfully dissent. While this is a sparse record, this much we do know:

1 — Jemece Richard was appointed temporary guardian of Jimmy Mays.

2 — Rose Mays deposited a check from Louisiana-Pacific to Jimmy Mays into the Texaco Credit Union and then withdrew the cash.

3 — There was a prior hearing where the Judge verbally ordered Rose to pay the money into the registry of the court.

4 — Rose gave Johnson the money after she was told to “bring [the money] to court.”

5 — The hearing conducted on July 21, 2004 was not a contempt hearing, “because there was not a prior written order.”

6 — At the conclusion of the July 21, 2004 hearing, the court verbally ordered Rose and Johnson to deposit $24,150 into the registry of the court by 9:30 a.m., July 22, 2004.

7 — A written order reciting the verbal order and setting a hearing for 10:30 am on July 22, 2004. The order was signed July 22, 2004.

8 — The order committing Johnson to jail recites the verbal order of July 21 and finds Johnson is able to deposit the funds but has refused to do so and finds Johnson in contempt, but does not recite that a hearing was held.

Therefore, based solely on the record, Mr. Johnson is, at best, a gratuitous bail-ee of the money from Ms. Mays or, at worst, a thief of the money from Ms. Mays or Ms. Richard. As I view the record, Mr. Johnson had no knowledge of the dispute between Ms. Mays or Ms. Richard nor any knowledge of the verbal order that Ms. Mays deposit the proceeds of the check into the registry of the court. All Mr. Johnson knew was Ms. Mays asked him to keep the money until she could take it to court. Under these facts, Mr. Johnson clearly had no fiduciary relationship with Ms. Richard, the court or Ms. Mays, for “[a] bailment generally does not create a formal, fiduciary relationship between bail-ee and bailor.” Prime Products, Inc. v. S.S.I. Plastics, Inc., 97 S.W.3d 631, 637 (Tex.App.-Houston [1st Dist.] 2002, pet. denied) (citing Bank One, Texas, N.A. v. Stewart, 967 S.W.2d 419, 442 (Tex.App.Houston [14th Dist.] 1998, pet. denied)). Johnson’s only relationship (bailor/bailee) was with Ms. Mays and either he negligently (failed to take proper care of the money) or intentionally (stole the money) breached that relationship.

If the trial court and the majority believes Johnson negligently breached his duty, then this is a pre-suit, pre-judgment civil commitment under the guise of contempt. If the trial court and the majority believes Johnson intentionally breached his duty, then this is either a pre-suit, prejudgment civil commitment under the guise of contempt or a pre-trial, pre-sen-tence criminal commitment under the guise of contempt. Neither of these three rationales are constitutional.

A similar case, not mentioned by the majority, is Currie v. Drake, 550 S.W.2d 736, 741 (Tex.Civ.App.-Dallas 1977, writ ref d n.r.e.). The court stated:

At the conclusion of the hearing the court entered an order directing that actions be taken. A portion of that order directed that Holt and Currie return moneys which were owed to the estate. The order does not direct appellants to deliver to the executor a specific identified fund in being, but only to repay the amount of money previously received. Consequently, this portion of the order is a direction for payment of a debt, and if the parties do not comply, it would not be enforceable by contempt. Tex. Const, art. I, s 18. The proper remedy would have been a judgment on which execution might be levied. Northwestern Fuel Co. v. Brock, [139 U.S. 216, 220, 11 S.Ct. 523, 35 L.Ed. 151 (1891) ], and Salgo v. Hoffman, 521 S.W.2d 922, 925 (Tex.Civ.App.Dallas 1975, no writ). Accordingly, we reverse the order and remand the cause to the probate court with instructions to conduct a hearing wherein testimony may be taken concerning the payment of the claim and offsets, if any, and render a judgment accordingly.

Here, too, the proper remedy is not an order of contempt, but a suit for conversion. I would grant the writ, release Mr. Johnson and not subject him to further contempt proceedings.

      . Rose Mays has filed a petition for writ of habeas corpus.

      . In his motion for rehearing, relator says Jimmy Mays is deceased. The parties do not address the effect of the ward's death on this civil contempt proceeding. See Tex Prob. Code Ann. § 745(a)(2) (Vernon Supp.2004).

      . Cash may be the subject of a bailment. See Tellez v. Tellez, 531 S.W.2d 368, 369 (Tex.Civ.App.-El Paso 1975, no writ); Bloom v. Bloom, 767 S.W.2d 463, 469 (Tex.App.-San Antonio 1989, writ denied).

      . "A bailee has the duty to exercise ordinary care over the goods and is therefore 'responsible’ for the bailor’s goods.” Sisters of Charity of the Incarnate Word, Houston, Texas v. Meaux, 122 S.W.3d 428, 431 (Tex.App.-Beaumont 2003, pet. denied).

      . "Theft as defined in Section 31.03 constitutes a single offense superseding the separate offenses previously known as theft, theft by false pretext, conversion by a bailee, theft from the person, shoplifting, acquisition of property by threat, swindling, swindling by worthless check, embezzlement, extortion, receiving or concealing embezzled property, and receiving or concealing stolen property.” Tex. Penal Code Ann. § 31.02 (Vernon 2003).

      .The majority has certainly made it easier to retrieve stolen money; one may simply order the bank robber to return the money and if there is no compliance, hold the robber in contempt and civilly commit the robber until the money is returned. A novel approach but with definite constitutional infirmities.


author: CHARLES B. BLACKMAR, Senior Judge. WILLIAM RAY PRICE, JR.,

text:
    STATE ex rel. Carol Russell FISCHER, Director of Revenue, Respondent, v. Joe R. BROOKS, Appellant.
    No. SC 85951.
    Supreme Court of Missouri, En Banc.
    Nov. 9, 2004.
    As Modified by Court’s own Motion Dec. 21, 2004.
    Joe R. Brooks, Kansas City, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Trevor S. Bossert, Asst. Atty. Gen., Jefferson City, MO, for Respondent.
   CHARLES B. BLACKMAR, Senior Judge.

The Director of Revenue sues pursuant to section 143.611, RSMo, to collect state income taxes for the years 1992, 1993, 1994, 1995, and 1996. The appellant filed no return for any of these years, and the Director estimated the taxes, pursuant to statutory authority. The appellant did not file a protest as permitted by section 143.631, which is the exclusive remedy for challenging the assessment. State ex rel. Lohman v. Latimer, 4 S.W.3d 560 (Mo.App.1999). The appellant, indeed, does not appear to challenge the amount of the assessment for any year, but raises other challenges to the judgment.

The appellant represented himself both in the trial court and in this Court, which of course is his privilege. The trial court entered judgment for the Director for each of the years in question, and the appellant appealed directly to this Court, asserting jurisdiction pursuant to Mo. Const, art. V, sec. 3 because the case involves the construction of a revenue law of the state. The Attorney General argues that no construction of a revenue law is involved and asks for transfer of the case to the Missouri Court of Appeals, Western District.

There is much to the Attorney General’s argument but, because the appellant’s appeal is so patently lacking in merit, we are reluctant to burden the parties and the court of appeals with additional tasks. The appellant argues, apparently, that the Director is precluded from suing for collection of unclaimed income taxes because no regulations have been adopted, as required by section 143.511, RSMo, prescribing the place for filing income tax returns. This argument, if accepted, would alter “an income stream to the government,” see Alumax Foils, Inc. v. City of St Louis, 939 S.W.2d 907, 910, by depriving the Director of the ability to collect any delinquent tax and, therefore, seems to provide a justification for our assuming jurisdiction. We do not rule the point definitively, and this case should not be cited as authority on the jurisdictional issue.

The appellant, first, challenges the jurisdiction of the trial court by what he deems a “special appearance.” He appeared in the trial court at later stages in the proceeding and thereby waived any challenge to jurisdiction over his person. See State ex rel. White v. Marsh, 646 S.W.2d 357 (Mo. banc 1983).

The appellant’s principal argument is based on the Director’s failure to adopt regulations pursuant to section 143.511, RSMo, specifying the place where returns are to be filed or taxes paid. He points to the word “shall” in the statute. Substantial authority demonstrates, however, that the use of “shall” in a statute does not inevitably render compliance mandatory, when the legislature has not prescribed a sanction for noncompliance. Farmers & Merchants Bank and Trust Company v. Director of Revenue, 896 S.W.2d 30, 32-33 (Mo. banc 1995). The statute in question specifies no sanction.

The appellant does not claim that the Director’s asserted failure excuses the payment of income taxes. 12 CSR 10-010(4), furthermore, makes it clear that “[t]he public may ... make submissions to ... the department in person or by mail ... to the director of revenue at the Department of Revenue offices in Jefferson City, Missouri.” The appellant could easily find where his returns could be filed.

We perceive no error in substance or procedure. The judgment is affirmed.

WHITE, C.J., WOLFF, STITH, TEITELMAN and LIMBAUGH, JJ., concur.

PRICE, J., dissents in separate opinion filed.

RUSSELL, J., not participating.

WILLIAM RAY PRICE, JR.,

Judge, dissenting.

I respectfully dissent. This Court simply does not have jurisdiction over this case.

This Court may not obtain jurisdiction of the subject matter of [an] appeal by consent, waiver, or in the interest of judicial economy. We are mindful of cases of recent vintage in which this Court has retained cases before it in which it has no jurisdiction “as a matter of judicial economy.” See e.g., [State ex rel. Lack v. Melton, 692 S.W.2d 302, 304 (Mo. banc 1985) ]; Pace v. City of Hannibal, 680 S.W.2d 944, 946 (Mo. banc 1984); State v. Davis, 653 S.W.2d 167 (Mo. banc 1983); State v. Higgins, 592 S.W.2d 151 (Mo. banc 1979). The jurisdiction of this Court may not be expanded beyond its constitutional limits, even in the name of judicial economy. To the extent that cases of this Court hold otherwise, they, too, must be overruled.

Kuyper v. Stone County Comm’n, 838 S.W.2d 436, 438 (Mo. banc 1992).

The majority opinion reaches the merits of this case because the case is patently without merit. However, even when the decision is easy, this Court cannot create jurisdiction to lighten the load for the lower courts.


author: PER CURIAM.

text:
    STATE ex rel. Kenneth BAUMRUK, Relator, v. The Honorable Mark SEIGEL, Respondent.
    No. SC 86040.
    Supreme Court of Missouri, En Banc.
    Dec. 7, 2004.
    Deborah B. Wafer, Teoffice E. Cooper, David J. Kenyon, St. Louis, for relator.
    Dean P. Waldemer, John R. Lasater, Office of Prosecuting Atty., Clayton, for respondent.
   ORIGINAL PROCEEDING IN PROHIBITION

PER CURIAM.

In State v. Baumruk, 85 S.W.3d 644 (Mo. banc 2002), this Court reversed the judgment in relator Kenneth Baum-ruk’s underlying first degree murder case and remanded to the Circuit Court of St. Louis County with instructions to grant Baumruk’s motion for change of venue. Thereafter, at an informal hearing on May 14, 2004, respondent announced that he was transferring the case to St. Charles County and, over Baumruk’s objection, that he would follow the case to St. Charles County. In addition, he overruled Baumruk’s motion to recuse. Baumruk then filed a petition for writ of prohibition in the Court of Appeals, Eastern District, to prevent respondent from following the case. The petition was denied, but was refiled in this Court, which issued its preliminary writ. Prohibition is available, “to prevent exercise of extra-jurisdictional power.” State ex rel. Kinder v. McShane, 87 S.W.3d 256, 260 (Mo. banc 2002).

Respondent points to no statute, court rule, or other authority that allows a judge to follow a case out of circuit on change of venue absent special appointment by this Court under article V, section 6, of the Missouri Constitution. Instead, a circuit judge’s authority is limited by sec. 478.220, which provides that “Circuit judges ... may hear and determine all cases and matters within the jurisdiction of their circuit courts.... ” When the case is finally transferred to the Circuit Court of St. Charles County, it is to be assigned to a regular judge of that circuit, and the assignment is to be made by the presiding judge under section 478.240 or pursuant to local court rule under section 478.245.

For these reasons, the preliminary writ is made absolute.

WHITE, C.J., WOLFF, STITH, PRICE, TEITELMAN and LIMBAUGH, JJ., and HARDWICK, Sp.J., concur.

RUSSELL, J., not participating.


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

text:
    Kevin S. BROWN and Melody L. Brown, Respondents, v. FIRST HORIZON HOME LOAN CORP., Appellant.
    No. SC 85773.
    Supreme Court of Missouri, En Banc.
    Dec. 7, 2004.

      Thomas J. Fritzlen, Jr., Kansas City, for appellant.
    James R. Tweedy, Bloomfield, for respondents.
   PER CURIAM.

Kevin and Melody Brown borrowed money from First Horizon Home Loan Corp. A deed of trust secured the loan. The Browns paid the loan in full. They sent a demand letter to Home Loan requesting a release of the real estate. Home Loan filed the release with the recorder of deeds. The release was recorded 32 days after Home Loan received the Browns’ demand letter.

The Browns filed suit, alleging that Home Loan failed to comply with section 443.130 , which requires the release to be delivered to the person making satisfaction within 15 business days after the request. The Browns sought judgment for the statutory 10% penalty. Home Loan attacked the validity of section 443.130. The trial court sustained the Browns’ motion for summary judgment. Home Loan appeals. This Court has jurisdiction. Mo. Const, article V, section 3. Because the demand letter did not sufficiently track the statutory requirements of section 443.130, the judgment is reversed.

As this Court recently noted in Garr v. Countrywide Home Loans, Inc., 137 S.W.3d 457, 460 (Mo. banc 2004): section 443.130 is penal in nature and must be strictly construed. Any demand letter purporting to invoke section 443.130 should closely track the language of the statute to place the mortgagee on notice that the statutory demand is being made.

While no particular language is specifically required to be included in the letter, the letter must somehow put the lender on notice that a demand is made under section 443.130. The Browns’ letter has neither a reference to section 443.130 nor the 15 business days Home Loan has to respond. The person making satisfaction is not identified. No demand is made that the release be given to the person making satisfaction rather than filing the release with the recorder of deeds. As in Garr, in this case the Browns’ letter as a whole does not place Home Loan on notice that demand is made under section 443.130.

The judgment is reversed.

WOLFF, STITH, PRICE and LIMBAUGH, JJ., and CALLAHAN, Sp.J., concur.

TEITELMAN, J., dissents in separate opinion filed.

WHITE, C.J. and RUSSELL, J., not participating.

RICHARD B. TEITELMAN, Judge,

dissenting.

I respectfully dissent.

Section 443.130.2 requires only that a mortgagor send a demand letter to the mortgagee by certified mail, return receipt requested. The only statutory requirements for the content of the demand letter are that it “include good and sufficient evidence that the debt secured by the deed of trust was satisfied with good funds” and that the mortgagor advance funds for “the expense of filing and recording the release-” Section 443.130.2. “[N]o particular form of words is necessary for the demand; it is sufficient if it informs the mortgagee with reasonable certainty that an entry of satisfaction of the particular mortgage is requested.” Martin v. STM Mortgage Co., 903 S.W.2d 548, 550 (Mo.App.1995); 59 C.J.S. Mortgages, Section 474c (1949).

In this case, the Browns’ demand letter complied with all statutory requirements for a valid demand letter and reasonably informed Home Loan that the plaintiffs were requesting a deed of release under section 443.130. The Browns sent the demand letter via certified mail, return receipt requested. The Browns requested a deed of release because the debt was satisfied. As expressly required by the statute and referenced in the demand letter, they enclosed funds for the expense of filing and recording the deed of release. Nonetheless, the majority concludes that Home Loan, a large, sophisticated mortgage lender, had no notice that the Browns were invoking the Missouri statute that enforces a mortgagee’s right to a deed of release upon satisfaction of the mortgage.

In support of its conclusion, the majority identifies four aspects of the demand letter that prevented Home Loan from being put on notice that the Browns were invoking section 443.130.

First, the majority notes that Browns’ letter did not reference section 443.130. Section 443.130 only requires that the mortgagee be put on notice, via a demand letter, that the mortgagor is requesting a deed of release. There is no statutory requirement that the statute be cited.

Second, the majority notes that the Browns’ letter does not reference the 15 days Home Loan had to respond. The 15-day time period in section 443.130.1 is nothing more than the time in which a mortgagee has to provide a deed of release pursuant to a demand letter. The statute does not, either explicitly or implicitly, require citation to the 15-day time limit in order for a demand letter to be effective. The relevant factor is that the Browns demanded an action that is precisely the subject matter of section 443.130: a deed of release upon satisfaction of the debt.

Third, the majority notes that the Browns’ letter did not identify the person making satisfaction of the debt. The statute only requires that, upon satisfaction of the debt, Home Loan “deliver to the person making satisfaction a sufficient deed of release.” As the Browns’ owned the mortgaged property and sent the demand letter, it would be more than reasonable for Home Loan to assume the Browns are the persons making satisfaction. In any event, this is a fact that could be easily verified.

Finally, the majority notes that no demand was made that the release be given to the person making satisfaction rather than filing the release with the recorder of deeds. Again, the statutory requirements for a valid demand letter under section 443.180.2 require neither the citation of section 443.130 nor a recitation of the statutory elements for liability for failure to promptly tender a deed of release.

The Browns’ demand letter satisfied every statutory requirement for a demand letter. A banking corporation such as Home Loan is presumed to know the law. Round Prairie Bank of Fillmore v. Downey, 64 S.W.2d 701, 704 (Mo.App.1933); Deal v. Bank of Smithville, 52 S.W.2d 201, 205 (Mo.App.1932). Concluding that a sophisticated mortgage company is not on notice because a customer’s demand letter fails to cite the statute or recite provisions other than those required to be set forth indulges an unreasonable assumption that institutional lenders are utterly unaware of their statutory obligations unless advised by their customers.

The demand letter is valid. It is undisputed that Home Loan failed to provide a deed of release within 15 days. As stated in section 443.130.1 and found by the trial court, the Browns are entitled absolutely to ten percent upon the amount of the security instrument. I would affirm.

      . All statutory citations are to RSMo 2000.


author: RONNIE L. WHITE, Chief Justice. WILLIAM RAY PRICE, JR., Judge,

text:
    STATE of Missouri ex rel. Bobby Joe MAYES, Relator, v. The Honorable John D. WIGGINS, Respondent.
    No. SC 85657.
    Supreme Court of Missouri, En Banc.
    Dec. 7, 2004.

      Deborah B. Wafer, Office of the Public Defender, St. Louis, for relator.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Richard A. Starnes, Kevin M. Zoellner, Asst. Attys. Gen., Jefferson City, for respondent.
   ORIGINAL PROCEEDING IN PROHIBITION

RONNIE L. WHITE, Chief Justice.

I.

Relator, Bobby Jo Mayes, was convicted of two counts of first-degree murder and two counts of armed criminal action. Mr. Mayes’ convictions were affirmed on direct appeal, but this Court reversed his original sentence and remanded for a retrial of his penalty phase. At the completion of the retrial, the jury returned findings of the presence of aggravating circumstances in connection with the murders, but could not agree on punishment. Respondent discharged the jury, overruled Relator’s motion for a life sentence and ordered a new penalty phase trial. Relator seeks alterna-five writs of mandamus and/or prohibition to prevent Respondent from ordering the retrial and requiring him to enter an order of life imprisonment. This Court issued its preliminary writ of prohibition, which is made absolute as modified. This Court has jurisdiction. Mo. Const, article V, section 4.

II.

“Prohibition is a discretionary writ, and there is no right to have the writ issued. Prohibition will lie only to prevent an abuse of judicial discretion, to avoid irreparable harm to a party, or to prevent exercise of extra-jurisdictional power.” Prohibition is an appropriate remedy in this instance because Respondent’s order granting a new penalty phase trial is an interlocutory order and is not subject to an appeal.

Earlier this year, this Court confronted the same issues raised by Relator and specifically held that when the jury is unable to agree on punishment and the verdict fails to show that the jury found all facts necessary for the imposition of death, that Respondent’s only option would be to impose a life sentence. The record is clear that the jury found the presence of aggravating circumstances; however, it is devoid of findings of mitigating circumstances or as to what circumstances the jurors relied upon when not finding that these aggravators warranted an imposition of death. As the prior analysis dictates, under such circumstances Respondent had but one option — to declare a sentence of life without probation, parole, or release except by act of the governor.

III.

The preliminary writ is made absolute as modified to prohibit Respondent from taking any action other than to order a sentence of life in prison.

WOLFF, STITH and TEITELMAN, JJ., concur.

PRICE, J., dissents in separate opinion filed.

LIMBAUGH and RUSSELL, JJ., concur in opinion of PRICE, J.

WILLIAM RAY PRICE, JR., Judge,

dissenting.

I respectfully dissent.

My disagreement with the majority decision is a continuation of my disagreement with the majority decisions in State v. Whitfield, 107 S.W.3d 253, 272 (Mo. banc 2003) (Price, J., concurring and dissenting), and State ex rel. Baker v. Kendrick, 136 S.W.3d 491, 495 (Mo. banc 2004) (Price, J., concurring). I also disagree because the majority opinion in the instant case overlooks the applicable statutory language.

Section 565.040, RSMo 1994, is premised upon a “death sentence imposed.” Here, no death sentence was imposed. Unlike the situation in Baker, the trial court in this case had not allowed its jurisdiction to order a new trial to expire. See Rule 29.11(g) (“If the motion for new trial is not passed on within ninety days after the motion is filed, it is denied for all purposes”).

The trial court was fully within its right to order a new trial that would comply with the procedural requirements imposed by Whitfield as a result of the United States Supreme Court decision in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) (holding that capital defendants are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment). The preliminary writ should be quashed and a jury should be allowed to determine the defendant’s sentence.

      . State v. Mayes, 63 S.W.3d 615 (Mo. banc 2001).

      . State ex rel. Linthicum v. Calvin, 57 S.W.3d 855, 856-57 (Mo. banc 2001).

      . State v. Harris, 486 S.W.2d 227, 229 (Mo.1972).

        . State ex rel. Baker v. Kendrick, 136 S.W.3d 491 (Mo. banc 2004); State v. Whitfield, 107 S.W.3d 253, 270-271(Mo. banc 2003); section 565.030, RSMo 2000.

      . Id.