text:
    Bonnie Sue HIGGINS d/b/a American Cab Co. and City Cab Co., Appellant, v. MISSOURI DIVISION OF EMPLOYMENT SECURITY, Respondent.
    No. WD 64572.
    Missouri Court of Appeals, Western District.
    July 19, 2005.

      Austin L. Mitchell, Salem, MO, for Appellant.
    Ninion S. Riley, Jefferson City, MO, for Respondent.
    Before ELLIS, P.J, and SPINDEN and HOWARD, JJ.
   VICTOR C. HOWARD, Judge.

Bonnie Higgins (“Higgins”) appeals from a decision by the Labor and Industrial Relations Commission (“the Commission”), which found that during the years of 1999 and 2000, and since January 1, 2001, cab drivers performed services for “wages” in “employment” by Higgins, within the meaning of those terms as defined in sections 288.034 and 288.036 of Missouri’s Unemployment Law. Higgins raises two points on appeal. First, she claims that the Commission erred in finding that she “paid, albeit indirectly” the cab drivers. Second, Higgins claims that the Commission erred in finding the cab drivers were her employees rather than independent contractors.

For the reasons set forth below, we affirm the Commission’s decision.

Background

Higgins solely owns and operates the only two public taxicab (“cab”) businesses, which are known as City Cab Co. and American Cab Co., in Rolla, Missouri. In accordance with Chapter 38 of the Rolla City Code, which regulates the public cab business within the City’s jurisdiction, Higgins maintains City licenses to operate her cab businesses, regularly notifies the City authorities of each cab actually in operation as a public cab, and maintains sufficient amounts of liability insurance to compensate for damages resulting from the operation of her businesses.

Higgins is a “hands-off’ owner. She uses a management system that she inherited from her late father, who had once owned and operated a cab business. Higgins keeps the cabs for both businesses on a rented parking lot, adjacent to her boyfriend’s car lot. Higgins owns twenty cabs, which she painted yellow with the names of either American or City Cab with the companies’ phone numbers. However, Higgins indicated that there were rarely more than four cabs (two per company) in working condition. The keys are left in the operable cabs, which are left on the lot unlocked.

Any person (“the applicant”) who is interested in driving a cab speaks to a current driver. That driver instructs the applicant to obtain a copy of his or her driving record. After obtaining the record, the applicant gives it to a current driver, who then tons the record over to Higgins, to Higgins’ boyfriend, or directly to Higgins’ insurance company. Once the insurance company approves the applicant as an acceptable driver, the driver who had taken the application lets the applicant know that he or she can drive, and Higgins assigns the applicant an identification number to be reported on that driver’s log sheets and daily summaries. Higgins then assigns the approved driver to drive a specific available cab.

Inside each operable cab is: a sheet for logging cab trips; an instruction sheet entitled “TAXI CAB DRIVERS RULES,” the contents of which are set forth in our discussion of Point II; and a daily summary sheet. Except for dialysis patients, whose fares are paid by a third party to Higgins, all fares are paid to the driver in cash. The fare is $3 per trip anywhere within the Rolla city limits. Outside the city limits, a $l-per-mile surcharge is added to the fare. Before each shift, the driver is required to check the cab for oil, transmission, radiator, and steering fluids and to add more as needed. At the end of the shift, the driver is required to check the air pressure in the tires. Higgins authorizes the drivers to purchase gasoline for the cabs as needed, the cost of which is split 50-50 by the driver and Higgins. The drivers can also spend money on minor repairs, for which Higgins reimburses them. The cab drivers do not pay any costs or expenses, other than their one-half share of gas, in order to work for her. Despite a form Higgins has a driver sign acknowledging his or her responsibility for the $500 insurance deductible due to his or her negligence in any accident, Higgins pays the insurance deductible without recourse against the driver who causes damage to a cab in an accident.

The drivers are required to write down the time when each passenger is picked up, the place of pick-up, and the place where the passenger is dropped off. Additionally, the drivers are required to log the amount of the fare received from each passenger. At the end of each driving shift, each driver, on the summary sheet submitted to Higgins: (1) totals up the gross amount of fares collected, (2) subtracts the amount of gasoline purchased from the gross fares, and (3) keeps fifty percent of the cash balance. The driver leaves the remainder of the cash, plus a $3 fee charged by Higgins “to help pay for the logs,” with the completed driving log and summary sheet in a sealed envelope. Someone, usually Higgins’ boyfriend, then delivers the envelope to Higgins.

Higgins maintains a separate telephone number and a separate listing in the Rolla area telephone books for each of her cab companies. The telephone calls to both companies come into a phone system located in a Rolla office maintained by Higgins. A dispatcher does not answer the calls. Rather, Higgins installed a device on each telephone line that redirects the call directly to the cab belonging to the respective company. A cab driver answers the routed call from a phone device in the cab and either picks up the calling passenger himself or has another on-duty driver get the passenger. Higgins installed a monitoring and recording device on the phone system to keep track of the drivers by comparing the calls with their reported daily logs.

During the times relevant to this appeal, Higgins has filed income tax returns with the IRS using Form 1040 with attached schedules. For the tax year 2000, Higgins reported on Schedule C, as the sole proprietor of American Cab Co. and City Cab Co., that those businesses generated $134,641 in gross receipts and that she paid $107,178 in deductible costs for gasoline, vehicle repairs, insurance, telephone service, taxes, and licenses. She did not file W-2’s (wage and tax statements) or 1099’s (miscellaneous income) with the IRS with regard to the drivers. In the summer of 2003, an IRS agent examined Higgins’ federal income tax returns and relevant records for the tax years 2000 and 2001. On August 12, 2003, the IRS reported to Higgins that she did not owe any additional tax and was not subject to any penalty.

On January 9, 2001, the Rolla office of the Division of Employment Security (“the Division”) notified Higgins that it was going to audit her cab businesses’ books and records. Over a year later, the Division notified Higgins that it had determined, as a result of the audit, that the cab drivers were paid remuneration, which constituted “wages” under section 288.036 of the Missouri Employment Security Law, for the drivers’ services during the 1999 and 2000 tax years. Higgins appealed the Division’s determination to the Appeals Tribunal. After conducting a hearing, the Appeals Tribunal affirmed the Division’s determination. Higgins then applied for review of the Appeals Tribunal’s decisions with the Commission. On August 11, 2004, the Commission affirmed and adopted the decision of the Appeals Tribunal. This appeal follows.

Standard of Review

Section 288.210, RSMo 2000, governs our review of the Commission’s decision and states in relevant part:

The findings of the commission as to the facts, if supported by competent and substantial evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the appellate court shall be confined to questions of law. The court, on appeal, may modify, reverse, remand for rehearing, or set aside the decision of the commission on the following grounds and no other:
(1) That the commission acted without or in excess of its powers;
(2) That the decision was procured by-fraud;
(3) That the facts found by the commission do not support the award; or
(4) That there was no sufficient competent evidence in the record to warrant the making of the award.

We will affirm the Commission’s decision if we find, upon a review of the whole record that “there is sufficient competent and substantial evidence to support the [Commission’s decision].” Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 223 (Mo. banc 2003). We defer to the Commission on issues of credibility. See Tendai v. Mo. State Bd. of Registration for the Healing Arts, 161 S.W.3d 358, 366 (Mo. banc 2005). However, we owe no deference to the Commission’s conclusions of law or application of the law to the facts. Hoover v. Cmty. Blood Ctr., 153 S.W.3d 9, 12 (Mo.App. W.D.2005).

Point I

In Higgins’ first point on appeal she claims:

The Commission erred in finding that [she] “paid, albeit indirectly” the cab drivers because the weight of the evidence and the application of the law demonstrate that [she] did not pay the cab drivers, in that “splitting up a pot or till” is not payment by one party to the other, and that such absence of “payment” excludes [her] from coverage under the Missouri Employment Security Law.

We begin with the statutes and regulations relevant to Higgins’ argument that she did not “pay” the cab drivers:

Section 288.034 provides in relevant part:

1. “Employment” means service, including service in interstate commerce, performed for wages or under any contract of hire, written or oral, express or implied, and notwithstanding any other provisions of this section, service with respect to which a tax is required to be paid under any federal unemployment tax law imposing a tax against which credit may be taken for contributions required to be paid into a state unemployment fund or which, as a condition for full tax credit against the tax imposed by the Federal Unemployment Tax Act, [26 U.S.C.A. § 3301 et seq.] is required to be covered under this law.

(Emphasis added.) Section 288.036.1 defines “wages” as that term is used in Chapter 288 in relevant part as: “all remuneration, payable or paid, for personal services including commissions and bonuses and ... the cash value of all remuneration paid in any medium other than cash.” (Emphasis added.) Missouri Regulation 8 CSR 10-4.150, the stated purpose of which is to “ensure[ ] consistent interpretation of section 288.034.5,” directs:

(1) In order to interpret section 288.034.5, RSMo, effective June 30,1989, the division shall apply the common law rules applicable in determining the employer-employee relationship under [the Internal Revenue Code (“I.R.C.”) ], Section 3306(i). In applying the provisions of [I.R.C.], Section 3306(i) the division shall consider the case law, Internal Revenue Service regulations and Internal Revenue Service letter rulings interpreting and applying that subsection.

Higgins argues that the “key section ... regarding [the] threshold issue [of whether the cab drivers were ‘paid’] is § 288.032.1,” which defines an “employer” in relevant part as, “Any employing unit which in any calendar quarter in either the current or preceding calendar year paid for service in employment wages.” (Higgins’ emphasis.) Higgins claims that under the plain language of the words and terms of Chapter 288, wages were not “paid” by her to the cab drivers because, “there are no facts in evidence showing that [she], at any time, transferred to the cab drivers anything, checks or cash.” Higgins then argues that the definition of “payment” as found in Black’s Law Dictionary and federal case law requires a delivery of money or its equivalent by one person from whom it is due to another person to whom it is due, which is not present in this case.

Higgins relies on Howard’s Yellow Cabs, Inc. v. United States, 987 F.Supp. 469 (W.D.N.C.1997), in support of her argument that the fare-splitting arrangement she had with the drivers did not constitute “payment” under Missouri’s Unemployment Law. Howard’s is inapposite. The issue in Howard’s was whether the taxpayer, a cab company owner, was entitled to relief from past liability for federal employment taxes pursuant to section 530 of the Internal Revenue Act of 1978 (codified as amended at 26 U.S.C. § 3401 nt. (1993)), even if the cab drivers were determined to be its common law employees. Id. at 473. As explained therein:

In 1978, Congress passed Section 530 of the Revenue Act of 1978 which “functions basically as a defense against liability determined by the Internal Revenue Service for misclassification of workers as ‘independent contractors’ instead of ‘employees.’ ” In re Rasbury, 130 B.R. 990, 1003 (Bankr.N.D.Ala. 1991), aff'd, 141 B.R. 752 (N.D.Ala.1992)....
Section 530(a) was enacted by Congress “in reaction to the perceived inconsistent and arbitrary action of the Internal Revenue Service in reclassifying independent contractors as employees.” Apollo Drywall, Inc. v. United States, 71 A.F.T.R.2d (RIA) 1689 ([W.D.] Mich. 1993).... In enacting this provision, “Congress intended the section to serve as a safe haven, sheltering employers who had acted in good faith in treating workers as independent contractors.” Id.
Irrespective of whether a worker is in fact an employee or an independent contractor, § 530 protects taxpayers from subjective application by the IRS of the twenty common law factors applicable to determining the employer-employee relationship. Queensgate Dental Family Practice, Inc., 68 A.F.T.R.2d (RIA) 5679 ([M.D.]Pa.1991). Indeed, § 530 “was designed explicitly to eliminate the need for courts to engage in the balancing of complex factual issues in determining whether an individual is an independent contractor or an employee under common law.” Id., (emphasis added); see also Donovan v. Tastee Freez, Inc., 520 F.Supp. 899, 903 [(D.P.R.] 1981).

Id. at 475-76 (emphasis added.) Thus, Howard’s considered the cab owner’s past federal employment tax liability in light of a federal “safe harbor” statute to protect employers. Id. No such safe harbor provision exists under Missouri’s Unemployment Law. Instead, the existence of the employer-employee versus independent contractor relationship for purposes of Missouri unemployment tax liability is determined by consideration of Missouri statutes and regulations. The decision in Howard’s “that [the cab owner] did not exercise control over all the proceeds such that the proceeds could be considered income to [the owner], or that the division of proceeds between [the owner] and its drivers constituted a ‘payment’ in the legal sense,” id. at 479, is not binding upon this court.

Higgins argues that 8 CSR 10-4.150 directs that the Division “shall” consider federal case law in interpreting Missouri’s Unemployment Law, such that the decision in Howard’s and the cases cited by it in defining “payment” are binding upon the Division. However,' 8 CSR 10-4.150 explicitly states that its purposes is only to “ensure! ] consistent interpretation of section 288.034.5,” which concerns the determination of whether “[s]ervice performed by an individual for remuneration” is “employment” under section 288.034.1, or whether “it is shown to the satisfaction of the division that such services were performed by an independent contractor.” Section 288.034.5 goes on to direct that in so determining the employment relationship, “the common law of agency right to control shall be applied.” Thus, the directive in 8 CSR 10-4.150 that the division “shall consider the case law, Internal Revenue Service regulations and Internal Revenue Service letter rulings” (emphasis added) relates to the consideration of whether the employer-employee relationship exists under the common law rules, which is the topic of discussion below in Point II. 8 CSR 10-4.150 does not, as argued by Higgins, dictate consideration of those outside sources for interpretation of words used in other definitional sections of Chapter 288. Even if it did, the Division shall “consider” those sources; it is not bound by them.

As for the effect of any IRS determination that Higgins did not owe any penalties for not paying federal unemployment tax for the years 2000 and 2001 or not filing W-2’s or 1099’s, section 288.215.2, RSMo 2000, provides:

Any finding of fact, conclusion of law, judgment or order made by an arbitrator, commissioner, commission, administrative law judge, judge or any other person or body with authority to make findings of fact or law in any proceeding not brought under this chapter shall not be binding or conclusive on an appeals tribunal or the labor and industrial relations commission in any subsequent or separate proceeding brought under this chapter, regardless of whether the prior action was between the same or related parties or involved the same facts.

This reflects a legislative intent to prohibit proceedings outside the Missouri Employment Security Law from having a binding effect upon the Commission. Thus, any determination of Higgins’ past federal tax liability is not binding upon the Commission.

Our legislature specifically codified the purpose of the Missouri Unemployment Law, Chapter 288, in section 288.020, RSMo 2000, as follows:

1. As a guide to the interpretation and application of this law, the public policy of this state is declared to be as follows: Economic insecurity due to unemployment is a serious menace to health, morals, and welfare of the people of this state resulting in a public calamity. The legislature, therefore, declares that in its considered judgment the public good and the general welfare of the citizens of this state require the enactment of this measure, under the police powers of the state, for compulsory setting aside of unemployment reserves to be used for the benefit of persons unemployed through no fault of their own.
2. This law shall be liberally construed to accomplish its purpose to promote employment security both by increasing opportunities for jobs through the maintenance of a system of public employment offices and by providing for the payment of compensation to individuals in respect to their unemployment.

In construing the sections of Chapter 288, we must:

ascertain the intent of the legislature from the language used, to give effect to that intent if possible, and to consider words used in the statute in their plain and ordinary meaning. Where the language of the statute is ambiguous or where its plain meaning would lead to an illogical result, then this court will look past the plain and ordinary meaning of a statute. Generally, statutes relating to the same subject are considered in pari materia .... Where two statutes concerning the same subject matter, when read individually, are unambiguous, but conflict when read together, this court will attempt to reconcile them and give effect to both.

Nichols v. Dir. of Revenue, 116 S.W.3d 583, 585-86 (Mo.App. W.D.2003) (quotations and citations omitted).

The Commission concluded that Higgins “paid remuneration in cash, albeit indirectly,” to the cab drivers. As set forth above, section 288.036.1 defines “wages” in relevant part as: “all remuneration, payable or paid, for personal services!.]” The term “payment,” the technical definition of which Higgins focuses heavily upon, is not used. According to Black’s Law DictionaRY 1128 (6th ed.1990), “A sum of money is said to be payable when a person is under an obligation to pay it.” (Emphasis added.) We conclude that the portion of fares retained by the cab drivers each night, although never specifically under the dominion or control of Higgins, was “payable or paid” to the drivers as those terms are used in section 288.036.1.

There is no indication that our legislature intended, by use of only the term “paid” to define “employer” in section 288.032.1, to limit “wages” as defined in section 288.036.1 and as used in the definition of “employment” under section 288.034.1 to refer to only those moneys directly “paid” in a technical sense. Revenue generated in the businesses as structured by Higgins is first and foremost revenue of her cab companies. Because of the structure of Higgins’ businesses, Higgins’ cab companies must part with some of that revenue to compensate the drivers. The fact that Higgins employed the convenience of having the drivers pay themselves by retaining their portion of the fares rather than deliver the money to her for redistribution does not mean the drivers were not “paid” or that the wages were not “payable” within the context of section 288.036.1.

Additionally, as more fully developed in our discussion of Higgins’ second point on appeal, we find that the drivers were employees of the cab companies. It follows that the fares collected by the drivers were the funds of their employer. Remuneration for their services became “wages” that were “payable or paid” from these funds regardless of the indirect method of payment used by Higgins.

Higgins’ first point on appeal is denied.

Point II

Higgins claims in her second point on appeal that the Commission erred in finding that the relationship between Higgins and the cab drivers was one of employment. Higgins claims that she retained or exercised only the right to control the results of the cab drivers’ jobs, not the right to control the manner and means by which the cab drivers performed their jobs. Thus, Higgins claims that the weight of the evidence shows that the cab drivers were independent contractors.

Section 288.034.5 provides:

Service performed by an individual for remuneration shall be deemed to be employment subject to this law unless it is shown to the satisfaction of the division that such services were performed by an independent contractor. In determining the existence of the independent contractor relationship, the common law of agency right to control shall be applied. The common law of agency right to control test shall include but not be limited to: if the alleged employer retains the right to control the manner and means by which the results are to be accomplished, the individual who performs the service is an employee. If only the results are controlled, the individual performing the service is an independent contractor.

Thus, there is a presumption that service performed by an individual for remuneration is “employment” subject to Missouri’s Unemployment Law. The presumption is overcome by satisfying the Division “that such services were performed by an independent contractor.” Id.

To aid in the consistent interpretation of section 288.034.5, 8 CSR 10-4.150 further directs, as set forth above, that the Division “shall apply the common law rules applicable in determining the employer-employee relationship under 26 U.S.C., Section 3306(i),” and that in doing so, the Division “shall consider the case law, Internal Revenue Service regulations and Internal Revenue Service letter rulings interpreting and applying that subsection.” Pursuant to the regulation, Missouri courts have consistently considered twenty common law factors identified in IRS Revenue Ruling 87-41, 1987 WL 419174 to aid in determining the nature of the employment relationship. See, e.g., Klausner v. Brockman, 58 S.W.3d 671, 677-79 (Mo.App. W.D.2001); and Nat’l Heritage Enters., Inc. v. Div. of Employment Security, 164 S.W.3d 160, 166 (Mo.App. W.D., 2005). Those twenty factors are: (1) Instructions, (2) Training, (3) Integration, (4) Services rendered personally, (5) Hiring, supervising and paying assistants, (6) Continuing relationship, (7) Set hours of work, (8) Full-time required, (9) Work on employer’s premises, (10) Order or sequence of set work, (11) Oral or written reports, (12) Payment by hour, week, or month, (13) Reimbursement of expenses or travel, (14) Furnishing tools and materials, (15) Significant investment, (16) Realization of profit or loss, (17) Works for more than one person or firm, (18) Offers services to the general public, (19) Right to fire, and (20) Right to quit. Rev. Rul. 87-41 at 298-99; Klausner, 58 S.W.3d at 677-79. As we explained in Klausner:

Since Rev. Rui. 87-41 was issued, the factors have always been intended as guides or aids in determining employment status. The factors are not intended to serve as a bright-line rule with no flexibility, but rather they are indices of control to assist the employer in attempting, for tax purposes, to determine the common law employment status of its workers. Not every factor is applicable in every situation, and each case is decided on the basis of its own facts. The degree of importance attached to each factor varies depending on the type of work and individual circumstances, and the relevant factors should be considered in inquiring about employment status with no one factor being decisive.

Id. at 680.

The “bedrock” of determining the employment relationship remains “ ‘the common law agency test of the right to control’ ” the manner and means of performance. Travelers Equities Sales, Inc. v. Div. of Employment Sec., 927 S.W.2d 912, 921 (Mo.App. W.D.1996) (quoting § 288.034.5, RSMo 1994). We must consider the objective facts of the relationship between Higgins and the drivers and the reasonable inferences drawn therefrom to reach the ultimate conclusion about Higgins’ right to control the manner and means by which the results are to be accomplished. At one extreme of the continuum is “employment”; at the opposite extreme of the continuum is “independent contractor.” It is easy to ascertain the legal nature of the work relationship at these extremes. However, as the facts of the relationship converge toward the center of the continuum, the line becomes more difficult to draw.

Higgins highlights factors tending to indicate that the cab drivers were independent contractors rather than her employees. We do not feel it is necessary to discuss in detail the application of each relevant factor in this case. While certain factors are indicative of Higgins’ lack of control over the cab drivers, there is competent and substantial evidence that the facts here do not converge toward the center of the continuum. Rather, the facts tend toward the “employment” extreme.

At all relevant times, Higgins has owned American Cab Co. and City Cab Co. as a sole proprietor. The revenue-generating assets include the vehicles used as cabs and the city license to operate those vehicles as cabs. Higgins owns the license and the vehicles. The drivers are integral to Higgins’ businesses in order to generate revenue from these assets.

In each of the cabs were “TAXI CAB DRIVERS RULES,” by which Higgins explicitly details how the drivers are to perform their duties as follows:

1. BE ON TIME FOR WORK.
2. WE DO NOT LEAVE WORK EARLY.
3. IF YOU SHOULD EVER BE LATE YOU WILL HAVE TO REMAIN AT WORK THAT DAY TO MAKE UP FOR THE TIME YOU WAS LATE.
4. ALL DRIVERS WILL CHECK THERE FLUIDS AND TIRES AT THE BEGINNING OF THERE SHIFT AND AT THE END OF THERE SHIFT.
5. ALL CHECK OUTS WILL BE TURNED IN EVERY DAY AT THE END OF THE SHIFT THERE WILL BE NO CHECK OUT WILL BE TOOK HOME WITH THE DRIVERS.
6. ALL CALLS WILL BE WROTE DOWN AND CALLED IN AS SOON AS THEY CALL YOU, YOUR CALLS ARE BEING RECORDED.
7. ALL DRIVERS WILL RADIO THERE PICK UP THERE DELIVERY AND PRICE OF THERE FARES AT ALL TIMES EVEN IF THEY ARE WORKING BY THERE SELFS.
8. YOUR CALL SHOULD BE PICKED UP WITHIN TEN MINS WHEN THAT CALL COMES IN YOU SHOULD BE WRITING DOWN THE TIME, IF YOU CANNOT PICK IT UP WITHIN THIS TIME IT SHOULD BE GIVEN TO THE OTHER SIDE.
9. ALL DRIVERS WILL WORK WITH THERE PARTNER WE WILL TAKE TURNS ON THE OUT OF TOWN RUNS, THIS DOES NOT MEAN JUST BY THE DAY.
10. ALL CALLS WILL BE LOGGED INCLUDING NO SHOWS NO MONEY OR WHAT EVER.
11. EVERY CALL WILL BE WROTE DOWN ON EVERY BODYS LOGEDEVEN IF THEY DO NOT PICK IT UP.
12. YOUR CAR WILL BE CLEANED OUT, EVERY DAY INSIDE FOR THE NEXT DRIVER, AND CUSTOMERS.
13. IF YOU ARE THE ONLY ONE WORKING ON YOUR SHIFT AND A OUT OF TOWN RUN COMES IN YOU SHOULD GIVE IT TO THE OTHER SIDE IF THEY HAVE TWO DRIVERS. IF YOU ARE WORKING WITH A NEW DRIVER HE SHOULD BE SENT OUT OF TOWN UNTIL HE KNOWS THE TOWN.
14. THERE WILL BE NO COMPANY TAKING THE OTHER COM-PANYS CUSTOMER WHEN THEY ARE GIVE A CALL BY THE OTHER COMPANY.
15. WE DO NOT HAVE PERSONAL CALLS WE DO NOT TELL THE CUSTOMER TO ASK FOR YOU.
16. IF YOU ARE THE ONLY DRIVER OUT THERE AND YOU GET BE HIND WE DONOT TELL THE CUSTOMER YOU ARE THE ONLY DRIVER THE BEST THING TO SAY IS WE ARE A LITTLE BIT BEHIND.
17. IF YOU HAVE TO HAVE A DAY OFF AND IT IS NOT YOUR REGULAR SCHULED DAY OFF YOU WILL HAVE TO WORK YOUR SCHULED DAY OFF.
18. IF YOU NEED OFF FOR SOME REASON WE NEED AT LEAST A TWENTY FOUR HOUR NOTICE.
19. IF YOU ARE SHARING A CAR WITH SOME BODY IT IS BEST YOU PICK THAT DRIVER UP TO GO WITH YOU TO GAS UP AT THE END OF YOUR SHIFT.
20. WE DO NOT HAUL PEOPLE AROUND IN OUR CARS UNLESS THEY ARE PAYING CUSTOMERS FOR EXAMPLE FRIENDS, FAMILY, CAB DRIVERS NOT ON DUTY THIS IS DUE TO INSURANCE.
21. WE WILL BE NICE TO CUSTOMERS WE WILL HELP THEM LOAD AND UN LOAD GROCERYS.
22. ONE DRIVER WILL NOT TAKE ALL THE RUNS IF HE IS WORKING WITH A PARTNER WE WILL SHARE.
23. WE WILL MAKE NEW DRIVERS FELL WELCOME WE WILL NOT TALK ABOUT THEM BEHIND THERE BACKS.
24. WE WILL NOT TALK ABOUT THE DRIVER TO THE CUSTOMER YOU SHOULD HOLD UP FOR EACH OTHER.
25. ALL CARS HAS HUP CAPS IF YOU LOSE ONE IT IS YOUR RESPONSIBLY TO REPLACE IF YOU SHARE A CAR YOU SHOULD CHECK YOUR HUP CAPS WHEN YOU FUEL UP.
26. WE WILL NOT BE OUT OF OUR CAR MORE THAN FIVE MINS. AT A TIME.
OVER
27. WE WILL RADIO IN WHEN WE ARE GOING TO BE OUT OF THE CAR, FOR GROCERYS OR ANYTHING ELSE.
28. ALL PREPAID MONEY WILL BE TURNED IN THE DAY YOU SELL THE CARD, ALL CARDS WILL BE COUNTED FOR OR YOU WILL HAVE TO PAY FOR THEM.
29. WE DO NOT HAVE CREDIT SO DO NOT EVEN BOTHER CALLING ME.
30. I DO NOT TAKE CHECKS IF YOU FELL UP ON YOUR SELF TO TAKE AND CHECK AND IT COMES BACK I WILL GET THE CHECK MONEY FROM YOU PLUS $25.00.
31. ALL OUT OF TOWN RUNS YOU WILL GET YOUR MONEY FROM THE CUSTOMER BEFORE YOU LEAVE TOWN, CAUSE IF YOU DONOT I WILL GET MY MONEY REGARDLESS.
32. WE DO NOT GIVE ANY DISCOUNT OWN OUT OF TOWN RUNS OR IN TOWN RUNS WHAT IS ON THE PRICE LIST IS WHAT I GET.
33. we do not go to our personal houses, if for some reason we have to go should not be more than once.
34. WE WILL NOT THROWN TRASH OUT AT THE SHOP.
35. WE WILL NOT ABUSE THE CAR, BECAUSE YOU ARE MAD AT SOME BODY WE WILL NOT DRIVE THE CAR MORE THAN SIXTY-FIVE ON INTER STATE.
36. TIME CALLS WILL BE PICKED UP FIRST FOR EXAMPLE IF YOU HAVE A TIME CALL AND ANOTHER CALL COMES IN YOU WILL GO AND GET YOUR TIME CALL FIRST. IT IS IMPORTANT TO BE ON TIME FOR THE TIME CALLS IF YOU ARE NOT BUSY YOU SHOULD BE SETTING IN THAT ZONES THE CLOSES TO YOUR TIME CALL.
37. WE HAVE ZONES THESE ZONES ARE SET UP TO MAKE EVERY BODY MONEY AND WEAR OFF THE CAR, WHEN YOU EMPTY YOUR CALL YOU SHOULD GO TO THE ZONE THAT IS THE CLOSES TO WHERE YOU EMPTY.
38. WE DO NOT GIVE OUT ANY INFORMATION ON THE DRIVERS OR CUSTOMERS OVER THE PHONE EXAMPLE ADDRESS WHERE YOU TOOL A CUSTOMER, ADDRESS OF THE DRIVERS.
39. WE DO NOT DISCUSS THE CARS WITH THE CUSTOMER.
40. IF YOU ARE HAVING A PROBLEM WITH SOME BODY COME AND DISCUSS IT WITH ME.
41. THERE WILL NOT BE ANY SLEEPING ON THE JOB. THANK YOU,
BONNIE HIGGINS

Further, Higgins controls and monitors the phone systems, requires regular ac-countings of fares received and business-related expenditures from the drivers, and controls the advertising for her cab businesses. At no time have the drivers possessed any rights that restrict Higgins’ authority to manage her businesses in any way. It was ideal short-term or part-time work for the drivers because they were immediately paid in cash, and, other than their time, they had no expenses.

The majority of Higgins’ arguments on appeal concerning application of the twenty factors relate to her decision to be a “hands off’ manager. Higgins continually argues that she did not actually control the manner and means by which the cab drivers performed their services. However, as explained in IRS Revenue Ruling 71-572, 1971 WL 26813,, it is “not necessary that the employer actually direct and control the manner in which services are performed; it is sufficient if he [or she] has the right to do so.” Higgins’ unrestricted ownership and authority to manage unequivocally show that she retains an unrestricted right to direct and control the manner and means of the cab drivers’ performance. Higgins’ decision not to overtly exercise that right is not determinative. Higgins failed to overcome the presumption in section 288.034.5 that the services performed by the cab drivers were in the employment of Higgins.

Higgins’ second point on appeal is denied.

Conclusion

There is sufficient competent and substantial evidence to support the Commission’s decision that for the relevant years the cab drivers performed services for “wages” in “employment” by Higgins within the meaning of those terms as defined in sections 288.034 and 288.036. Accordingly, we affirm the decision.

ELLIS, P.J., and SPINDEN, J., concur.

      . Unless otherwise noted, statutory references are to RSMo Cum.Supp.2004.

      . We borrow in part from the decision of the Appeals Tribunal, which the Commission affirmed and adopted, without further attribution.

      . Higgins indicated that her insurance company required the drivers to have a Class E driver’s license.

      . We note that Hampton overruled, in part, a large number of cases applying a different standard of review. Some of those cases are relied upon in this opinion without further notation that they have been overruled in part on other grounds by Hampton or cases relying upon Hampton’s standard of review analysis.

      . We recognize that there are grammatical and spelling errors in these rules but do not indicate "[sic]" for each.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    John E. FIZER, Appellant, v. STATE of Missouri, Respondent.
    No. WD 64453.
    Missouri Court of Appeals, Western District.
    July 19, 2005.
    Mark A. Grothoff, Columbia, MO, for Appellant.
    Deborah Daniels, Jefferson City, MO, for Respondent.
    Before NEWTON, P. J., LOWENSTEIN and BRECKENRIDGE, JJ.
   ORDER

PER CURIAM.

Following a jury trial, John Fizer was found guilty of stealing, Section 570.030, and possession of drug paraphernalia, Section 195.233. Fizer now appeals the denial of his Rule 29.15 motion for post-conviction relief, claiming ineffective assistance of counsel. This court has reviewed the briefs of the parties and the record on appeal. Finding no reversible error, this court affirms the denial of his Rule 29.15 motion. Because a published opinion reciting the facts and restating the applicable principles of law would have no precedential value, this court affirms by summary order under Rule 84.16(b).

Affirmed. Rule 84.16(b).


author: JAMES K. PREWITT, Judge.

text:
    Carl HARNESS and Caroline Harness, Plaintiffs-Respondents, v. Jackie WALLACE and Linda Wallace, Defendants-Appellants.
    No. 26653.
    Missouri Court of Appeals, Southern District, Division One.
    July 21, 2005.

      Paul F. Sherman, Mann, Walter, Bishop & Sherman, P.C., Springfield, MO, for Appellant.
    Janis Ellis McCain, Springfield, MO, for Respondent.
   JAMES K. PREWITT, Judge.

Jackie Wallace and Linda Wallace (“Appellants”) appeal the judgment of the trial court entered on October 8, 2004, in favor of Carl Harness and Caroline Harness (“Respondents”). Respondents sought title to property by adverse possession.

Appellate review in this non-jury case requires that the judgment be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or unless it erroneously declares or applies the law. Schaefer v. Rivers, 965 S.W.2d 954, 956 (Mo.App.1998). The trial court’s judgment is presumed valid, the burden is on the appellant to demonstrate its incorrectness, and due regard is given to the trial court to judge the credibility of witnesses. Id.

The property at issue is a 0.7-acre tract that lies south of the deeded south lot line of Respondents’ land between that line and a fence in Oldfield, Missouri (“disputed area”). Respondents acquired property at 314 State Highway T (“Highway T property”) bordering the disputed area, by warranty deed on June 26, 2002, from Marla Cook.

Cook acquired her interest in the Highway T property from her grandparents, Alma and Roger Adams, on September 11, 1996. Alma and Roger Adams acquired the Highway T property on July 1, 1952. At the time, there was a fence along the south line of the disputed area. The Adamses took care of the disputed area and built a shed for “storage and raising chickens.”

After Cook acquired the Highway T property, she used the disputed area for the same purpose. At the time Cook sold her property to Respondents, the fence was still in the same location.

Appellant Jackie Wallace testified that his family used the disputed area as a driveway for ingress and egress to his property “as long as he can remember.” Jackie’s father, Dale Wallace, who lived next to the disputed area since 1942, testified that he never claimed the disputed area. The fence was in place when Dale Wallace purchased property “behind” Respondents’ current land in 1947.

On September 6, 2002, Respondents filed a Petition for Temporary Restraining Order, Preliminary and Permanent Injunction and Quiet Title against Appellants. On October 9, 2002, Appellants counterclaimed for Ejectment, Trespass, and Declaratory Judgment. The trial was held on August 24, 2004. Respondents called Kenneth Buchanan, a registered land survey- or, who had examined the Highway T property and the disputed area. Buchanan’s sketch of Respondents’ property (“Exhibit 14”) was introduced as a supplement to Respondents’ legal description. Exhibit 14 displays the Highway T property and the disputed area:

On September 24, 2004, the trial court issued its Findings of Fact and Conclusions of Law, stating there was “no credible evidence that anyone believed the disputed area belonged to anyone other than [Respondents]” who “have [also] claimed ownership and held open and notorious title on disputed area since 1947.” On October 8, 2004, judgment was entered declaring the disputed area owned by Respondents. Appellants filed Notice of Appeal on November 15, 2004.

In the first segment of their point on appeal, Appellants allege the trial court erred by admitting Exhibit 14, as it was “without [witness’s] personal knowledge” and “in violation of Section 60.150, RSMO[.]” In the second segment of their point, Appellants contend the exhibit fails to show Respondents had adverse possession of the disputed area. Respondents counter that the exhibit was not admitted as evidence but, rather, as “an aid to the court,” and that they satisfied the burden of proving adverse possession of the disputed area.

Appellants contend an adverse possession suit cannot be sustained unless the claimant establishes precise boundaries of the property and, absent such proof, the judgment is void and rests on speculation and conjecture. Kitterman v. Simrall, 924 S.W.2d 872, 877 (Mo.App.1996). This is proven by surveys and any visual indicators beyond “crude sketches.” Id. Exhibit 14 does not appear to be a crude sketch.

Appellants offered testimony of D. Nelson Mackey, and Respondents offered the testimony of Kenneth Buchanan. Buchanan testified he prepared Exhibit 14 and his manner of doing so. Mackey testified to his experience surveying this area of Christian County in comparison to Exhibit 14. The need for precise boundaries occurs where the location of a disputed area is at issue. Kitterman, at 877-878. That is not an issue in this case, as the area appears to be known by the parties and its location is not in question.

Section 516.010, RSMo 2000 reads, in part:

No action for the recovery of lands, tenements or hereditaments, or for the recovery of the possession thereof, shall be commenced, had or maintained by any person ... unless it appear that the plaintiff, his ancestor, predecessor, grantor or other person under whom he claims was seized or possessed of the premises in question, within ten years before the commencement of such action.

Under this statute, a party claiming ownership by adverse possession must prove that their possession is: (1) hostile, (2) actual, (8) open and notorious, (4) exclusive, and (5) continuous for the ten-year period prior to the commencement of the action. Henderson v. Town & Country Grocers of Fredericktown, Mo., Inc., 978 S.W.2d 850, 855 (Mo.App.1998).

The trial judge is in a better position than this court to determine credibility of the parties, their sincerity, character and other trial intangibles which may not be shown by the record. Crowe v. Clairday, 935 S.W.2d 343, 346 (Mo.App.1996).

Hostile “possession must be opposed and antagonistic to the claims of all others, i.e., the claimant must occupy the land with the intent to possess it as his own and not in subservience to a recognized, superior claim of another.” Teson v. Vasquez, 561 S.W.2d 119, 127 (Mo.App.1977). Respondent Caroline Harness testified Cook’s intent was to convey the disputed area along with the rest of the property. Cook testified that she believed she was selling Respondents the property that was encompassed by the fence line. Appellants contend that hostile possession requires the intent of depriving the true owner of title, in accordance with the holding in Teson, 561 S.W.2d 119. Color of title is not a requirement of adverse possession but “serves to extend actual possession ... to constructive possession[.]” Id. at 126.

Actual possession may be shown by claimant’s present ability to control land and intent to exclude others from such control. Id. There was testimony regarding the location and use of the shed, the location of the fence, and of an inoperable school bus on the disputed property. This satisfies the elements of hostile possession and actual possession.

Open and notorious possession “is satisfied when there are ‘visible acts of ownership’ exercised over the disputed property.” Flowers v. Roberts, 979 S.W.2d 465, 469 (Mo.App.1998). Cook testified that her grandparents used the disputed area for working on motor vehicles, raising poultry and burning trash. Cook further testified Respondent Jackie Wallace asked her to clean up the trash and remove the bus from the disputed area. She contends she never tried to hide ownership of the disputed area. She testified to the accuracy of photos showing the fence along the disputed areas as existing prior to 1952. Respondents testified that after they acquired the property in 2002, they continued to clean up the disputed area. That Respondents and their predecessors exercised open and notorious possession was sufficiently shown to warrant the judgment.

A claimant must show exclusive possession for the required period, but “[t]his does not mean that mere sporadic use, temporary presence or permissive visits by others (including the title holder) will defeat a claim of exclusive possession.” Machholz-Parks v. Suddath, 884 S.W.2d 705, 708 (Mo.App.1994). Cook testified that she acquired her interest in the property in 1996. Her grandparents had lived on the Highway T property since 1952. Cook and her grandparents used the property and believed it was owned by them. (T., 061) No evidence was presented that Appellants or anyone else violated this exclusivity. Appellant Jackie Wallace testified that he asked Cook and Respondents to move trash from the property. This element was met.

Adverse possession must be continuous for a period of ten years, which means without lapse and uninterrupted for the statutory period. Moore v. Quirk, 81 S.W.3d 717, 721 (Mo.App.2002). “An adverse possession claimant may tack his possession to that of his predecessors in title to establish the requisite ten year period.” Conduff v. Stone, 968 S.W.2d 200, 203 (Mo.App.1998). The testimony which proved exclusivity also showed continuous use by Respondents and the property’s previous owners for a period extending back to 1947.

Even if the sketch was improperly admitted, that does not require reversal. In a non-jury case, the rules excluding evidence are less-strictly enforced. Gardner v. Robinson, 759 S.W.2d 867, 868 (Mo.App.1988). If there is sufficient other evidence to support the judgment in a non-jury case, the judgment is not reversed because of the improper admission of evidence. Id.

Evaluation of the record for the requirements of adverse possession shows sufficient evidence to support the judgment. Thus, it is not necessary to determine if Exhibit 14 was improperly admitted.

The judgment is affirmed.

GARRISON, P.J., and RAHMEYER, J., concur.


text:
    William R. BONNER, D.O., Petitioner-Respondent, v. STATE BOARD OF REGISTRATION FOR the HEALING ARTS, Respondent-Appellant.
    No. 25737.
    Missouri Court of Appeals, Southern District, Division Two.
    July 21, 2005.
    Jeremiah W. (Jay) Nixon, Atty. Gen., William E. Roberts, Office of Atty. Gen., Jefferson City, for Appellant
    Craig R. Heidemann, Bolivar, for Respondent.
   PER CURIAM.

The judgment on appeal concerns action by the State Board of Registration for the Healing Arts (“Board”) against William R. Bonner, D.O. (“Dr. Bonner”). During the pendency of this case on appeal, the parties “entered into a written settlement agreement! ]” and “[a]s a term of the parties’ settlement ..., the parties have agreed that this Court should vacate the judgment of the circuit court and remand the case to the circuit court with instructions to dismiss Dr. Bonner’s petition.”

Because it appears that the parties, by settling their disputes, have mooted this appeal, we exercise our discretion to vacate the judgment and remand with instructions as requested by the parties. In doing so, we rely heavily on State ex rel. Chastain v. City of Kansas City, 968 S.W.2d 232 (Mo.App.1998), which held as follows:

“While we ... decline to declare a ‘bright line’ rule as to vacatur, we conclude that the normal practice should be to vacate the judgment when one or more parties requests such action in a case moot on appeal.... This power has been recognized in Missouri law going back to at least as early as Neenan v. City of St. Joseph, 126 Mo. 89, 28 S.W. 963, 965 (1894). This is consistent with the modern majority rule.”

Id. at 243.

Having concluded that this case is moot and does not fall within the public interest exception to the mootness doctrine, this court, pursuant to the stipulation of the parties, dismisses the appeal and remands the case to the trial court with instructions to vacate its judgment and dismiss Dr. Bonner’s petition.


author: JANICE M. HOLDER, J.,

text:
    STATE of Tennessee v. David G. HOUSLER.
    Supreme Court of Tennessee, at Nashville.
    Feb. 3, 2005 Session.
    July 15, 2005.
    Michael E. Terry, Nashville, Tennessee, for the Defendant-Appellant, David G. Housler.

      Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Joseph F. Whalen, III, Assistant Attorney General, for the Plaintiff-Appellee, State of Tennessee.
   OPINION

JANICE M. HOLDER, J.,

delivered the opinion of the court,

in which FRANK F. DROWOTA, III, C.J., and E. RILEY ANDERSON, ADOLPHO A. BIRCH, JR., and WILLIAM M. BARKER, JJ., joined.

We granted review to determine whether the Court of Criminal Appeals erred in reversing the trial court’s order supplementing the appellate record in the defendant’s case with the transcript of co-defendant Courtney Mathews’ trial. We conclude that the trial court properly supplemented the record. Accordingly, we reverse the judgment of the Court of Criminal Appeals. We order supplementation of the appellate record with the Mathews transcript for consideration in the defendant’s related Rule 11 appeal pending in this Court.

The defendant, David G. Housler, and his co-defendant, Courtney Mathews, were indicted for four counts of felony murder in connection with the 1994 deaths of four Taco Bell employees in Clarksville, Tennessee. The same judge presided over their separate trials. In 1996, Mathews was convicted as charged. The transcript of the Mathews trial was prepared in June 1997. Housler’s trial was held in November 1997. Housler was convicted as charged and sentenced to life imprisonment.

Housler appealed his convictions to the Court of Criminal Appeals. He raised several issues, including whether the State presented inconsistent theories in the trials of Housler and Mathews in violation of Housler’s due process rights. According to Housler, the State argued at Mathews’ trial that Mathews acted alone in committing the murders but argued at Housler’s trial that Housler acted as Mathews’ lookout. Housler attached the Mathews transcript to his appellate brief. The Court of Criminal Appeals refused to consider the transcript because it was not properly certified and was not part of the appellate record. Housler then filed a motion requesting that the Court of Criminal Appeals supplement the record with the “full record” of the Mathews trial. In the alternative, Housler requested that the Court of Criminal Appeals direct the trial court to supplement the record with the Mathews transcript. The Court of Criminal Appeals denied Housler’s motion.

Thereafter, Housler filed a motion in the trial court requesting that the trial court supplement the record with the Mathews transcript. The trial court granted Hous-ler’s motion, finding that without supplementation and certification of the Mathews transcript the record did not accurately disclose the factual basis for Housler’s due process claim of inconsistent theories and the court’s decision regarding that issue. The Court of Criminal Appeals granted the State’s application for extraordinary review pursuant to Tennessee Rule of Appellate Procedure 10 and reversed the trial court’s order supplementing the record. The Court of Criminal Appeals held that supplementation of the record was inappropriate because the Mathews transcript was not introduced in the trial court and was not properly certified. We granted review.

ANALYSIS

Tennessee Rule of Appellate Procedure 24 governs the content of the record on appeal. The record on appeal consists of papers and exhibits filed in the trial court, the transcript or statement of the evidence, any requests for instructions, and “any other matter designated by a party and properly includable in the record as provided in subdivision (g) of this rule.” Tenn. R.App. P. 24(a). The purpose of the appellate record is to “convey a fair, accurate and complete account of what transpired with respect to those issues that are the bases of appeal.” Id. The procedure for correction or modification of the record is set forth in subdivision (e) of Rule 24, which provides:

If any matter properly includable is omitted from the record, is improperly included, or is misstated therein, the record may be corrected or modified to conform to the truth. Any differences regarding whether the record accurately discloses what occurred in the trial court shall be submitted to and settled by the trial court regardless of whether the record has been transmitted to the appellate court. Absent extraordinary circumstances, the determination of the trial court is conclusive. If necessary, the appellate or trial court may direct that a supplemental record be certified and transmitted.

The trial court’s authority to add to or subtract from the record is not unlimited. Subdivision (g) of Rule 24 provides that

[njothing in this rule shall be construed as empowering the parties or any court to add or subtract from the record except insofar as may be necessary to convey a fair, accurate and complete account of what transpired in the trial court with respect to those issues that are the bases of appeal.

The procedure for correcting or modifying the record reflects the dual goals of avoiding technicality and expediting a just resolution of the case on its merits. These goals are achieved by according deference to the trial court’s decision as to which matters are properly in-cludable in the record, thereby avoiding additional litigation on that subject alone. Bradshaw v. Daniel, 854 S.W.2d 865, 868 (Tenn.1993). The trial court is in the best position to determine those matters necessary to provide a fair, accurate, and complete account of the proceedings upon which the appeal is based. Id. at 869; see also Artrip v. Crilley, 688 S.W.2d 451, 458 (Tenn.Ct.App.1985) (identifying the trial court as the final arbiter of the transcript or statement of the evidence).

This Court has upheld supplementation of the record by the trial court under Rule 24 in several cases involving matters not introduced into evidence at trial. In Johnson v. Hardin, 926 S.W.2d 286 (Tenn.1996), the plaintiffs attached transcript portions to their motion for a new trial but failed to follow the provisions of Rule 24 for filing a partial transcript. The trial court granted the plaintiffs’ request to supplement the record with the appropriately certified portion of the transcript already contained in the technical record. The Court of Appeals reversed the trial court and dismissed the appeal. We reversed the Court of Appeals, holding that the trial judge’s determination that the partial transcript conveyed a fair, accurate and complete account of what transpired at trial with respect to the single issue raised on appeal was conclusive. Johnson, 926 S.W.2d at 240.

In State v. Causby, 706 S.W.2d 628, 633 (Tenn.1986), this Court held that the Court of Criminal Appeals erred in failing to consider affidavits that had not been admitted into evidence but had been filed with the trial court in support of the motion for a new trial. We reasoned that the affidavits alleging improper jury separation were “properly includable” in the record because, once the affidavits were filed, Tennessee Rule of Criminal Procedure 33(c) mandated that they be considered as evidence. Causby, 706 S.W.2d at 633.

In Bradshaw, a new trial had been granted to the plaintiff after a trial on the merits. 854 S.W.2d at 869. On remand, the defendant filed a motion for summary judgment, relying on the entire record. The trial judge concluded that the defendant’s testimony at the first trial was properly includable in the record on appeal. The Court of Appeals refused to consider this testimony, holding that because it was not transcribed at the time of the hearing on the motion for summary judgment, it was not before the trial judge when he ruled on the motion. Reversing, we held that under Rule 24(e), “absent extraordinary circumstances, an appellate court does not have the authority to refuse to consider matters that are determined by the trial court judge to be appropriately includable in the record.” Id.

In the present case, the Mathews transcript was used by the defense, the prosecution, and the trial court. Defense counsel read from portions of the Mathews transcript in questioning witnesses and presenting arguments. The parties and the trial judge discussed at length the issue of inconsistent theories and the evidence offered at Mathews’ trial. These discussions occurred prior to and during Housler’s trial, as well as during the hearing on Housler’s motion for a new trial. Despite these discussions, the Mathews transcript was never entered into evidence. Nor was the Mathews transcript attached to the motion for a new trial.

Nevertheless, the record reflects that the Mathews transcript was before the trial court for its consideration. At the beginning of the hearing on the motion for a new trial, the State objected to the trial court’s consideration of any new evidence regarding the inconsistent theories issue, arguing that the trial court need only compare the Mathews transcripts and the transcript of Housler’s trial: “There’s nothing in this motion six [concerning inconsistent theories] that’s not covered by the transcripts. Everything the State presented is in the transcript; in the transcript for the first trial and in the transcript for the second trial.” During the hearing on the motion for a new trial, the trial judge remarked that he would “have to go back and read the transcription” of the Mathews trial to refresh his recollection of a certain witness’ testimony. During the hearing on the motion to supplement, the trial judge commented:

This Court has said — and I don’t think it has really been objected to by the State, perhaps it — perhaps, but this Court has said repeatedly, and still now believes, that you cannot read the Matthews [sic] transcription, you could not have sat through the trial and believed any other thing than the State of Tennessee believed that Courtney B. Matthews [sic] acted alone in the robbery and killing of the people employed at the' Taco Bell Restaurant.

(Emphasis added). Furthermore, in the order granting Housler’s motion to supplement the record, the trial court stated:

Mr. Housler raised issues pre-trial, at trial, and post-trial related to the two prosecutions, particularly the different prosecution theories. The Court denied Housler’s legal arguments, in part, upon the Court’s consideration, review, and comparison of the trial testimony of the State’s prosecution of Courtney Mathews and the State’s prosecution of David Housler.

(Emphasis added).

Contrary to the State’s assertion, the trial judge was not relying solely on his memory of the Mathews trial. See Lane v. State, 968 S.W.2d 912, 914-15 (Tenn.Crim.App.1997) (holding that an appellate court “cannot review the memory of the trial court, and this deficiency would generally hamper [the appellate court’s] ability to effectively review the record”). The record reflects that the trial court appropriately considered the Mathews transcript in ruling on the inconsistent theories issue. We hold that any matter appropriately considered by the trial court is properly includable in the appellate record and may be added to the record under Rule 24(g) when such matter is “necessary to convey a fair, accurate and complete account of what transpired in the trial court with respect to those issues that are the bases of appeal.”

We emphasize the importance of properly entering matters into evidence at trial. A party who fails to follow the proper procedure risks having such matters excluded from the appellate record. While it would have been better practice for Housler to have formally introduced the Mathews transcript into evidence, this technical defect does not justify disregarding a portion of the record that the trial court appropriately considered and deemed necessary for a fair, accurate, and complete account of what transpired in the trial court. See Bradshaw, 854 S.W.2d at 869.

The trial court in this case specifically found that the record was inaccurate without supplementation and certification of the Mathews transcript. The State does not dispute the accuracy of the Mathews transcript certified by the trial court or suggest that it differs from the transcript used during the Housler proceedings. Certification of the transcript in conjunction with supplementation of the record was not improper. See Johnson, 926 S.W.2d at 240. Absent extraordinary circumstances, a trial court’s determination regarding supplementation is conclusive. Tenn. R.App. P. 24(e). Finding no extraordinary circumstances, we conclude that the Court of Criminal Appeals erred in reversing the trial court’s order allowing supplementation of the record with the certified transcript of the Mathews trial.

CONCLUSION

We hold that the trial court properly supplemented the appellate record with the Mathews transcript and that no extraordinary circumstances exist justifying the Court of Criminals Appeals’ refusal to consider the Mathews transcript. Accordingly, we reverse the judgment of the Court of Criminal Appeals and hereby order supplementation of the appellate record with the certified transcript of the Mathews trial for consideration by this Court in Housler’s related Rule 11 appeal.

Costs of this appeal are taxed to the appellee, the State of Tennessee.

      . The Rule expressly excludes, however, the following papers:
      (1) subpoenas or summonses for any witness or for any defendant when there is an appearance for such defendant; (2) all papers relating to discovery, including depositions, interrogatories and answers thereto, reports of physical or mental examinations, requests to admit, and all notices, motions or orders relating thereto; (3) any list from which jurors are selected; (4) trial briefs; and (5) minutes of opening and closing of court.
      Tenn. R.App. P. 24(a).

      . Tennessee Rule of Criminal Procedure 33(c) provides that affidavits filed in support of a motion for new trial "shall be considered as evidence by the court.”


author: WILLIAM M. BARKER, J., FRANK F. DROWOTA, III, C.J.,

text:
    In re ESTATE OF Merle Jeffers McFARLAND.
    Supreme Court of Tennessee, at Knoxville.
    May 3, 2005 Session.
    July 7, 2005.

      Charles R. Terry, Morristown, Tennessee, Douglas T. Jenkins, Rogersville, Tennessee, and William Lewis Jenkins, Jr., Dyersburg, Tennessee, for the appellant, Stephen D. McFarland, Administrator C.T.A. of the Estate of Merle Jeffers McFarland.
    Gene Paul Gaby, Greeneville, Tennessee, for the appellee, James Cox.
    James Robert Walker, Knoxville, Tennessee, for the appellee, The University of Tennessee.
    Patrick Ledford, Kingsport, Tennessee, for Amicus Curiae, Elizabeth Walker, Ad-ministratrix C.T.A. of the Estate of Charles Dow Chase.
    Daniel B. Minor, Kingsport, Tennessee, for Amicus Curiae, Jackie Terry Olinger.
   OPINION

WILLIAM M. BARKER, J.,

delivered the opinion of the court,

in which E. RILEY ANDERSON, and ADOLPHO A. BIRCH, Jr., JJ., joined. FRANK F. DROWOTA, III, C.J., filed a dissenting opinion in which JANICE M. HOLDER, J., joined.

We granted review in this case to determine the appropriate manner of distributing lapsed residuary gifts in a will. Specifically, we are confronted with a holographic will containing a residuary clause which devised percentages of the testatrix’s estate to certain named beneficiaries. Three of these beneficiaries predeceased the testatrix, causing their gifts to lapse. Because these beneficiaries also died without issue, the Tennessee anti-lapse statute is not applicable. Thus, the question presented is whether the lapsed residuary gifts are to be divided among the remaining residuary beneficiaries or pass through intestate succession to the testatrix’s heirs at law. The probate court concluded that the lapsed gifts created a partial intestacy, and the lapsed gifts passed to the heirs at law. The Court of Appeals affirmed. Upon review, we affirm the judgment of the Court of Appeals.

Facts

On November 14, 1994, Ms. Merle Jef-fers McFarland executed a holographic will. In this will, Ms. McFarland named an administrator for her estate, gave directions regarding her burial, set aside two percent of her estate to provide funds for funeral expenses, and also devised a specific bequest of three thousand dollars to the Tieke-McCullough Cemetery bank fund. The will further directed that the remainder of her estate was to be divided among eighteen named individuals and entities.

Specifically, Ms. McFarland provided in her will that “[t]he rest of the estate I wish to be divided to the following.” She then listed the following beneficiaries along with the percentages of her estate devised to each. Her two brothers, Willie Lee Jef-fers and Minnis Rankin Jeffers, were each to receive a ten percent share of the residuary estate. Clarence Lee McFarland, Mary Louise McFarland, and Evelyn B. McFarland McCulley were each also devised a ten percent share. Another ten percent share was to be divided equally between the three sons of Clyde E. McFarland. The First United Methodist Church of Bulls Gap received a five percent share. Larry and Virginia Carpenter were to divide a five percent share. A two percent share was devised to the city of Bulls Gap. Another two percent share went to the Tieke-McCullough Cemetery for “mowing and up keep of the cemetery.” The Thompson Cancer Center in Knoxville was devised a ten percent share to be used for research, and the University of Tennessee was also to receive ten percent “for scholarships or what they need most.” Ms. McFarland granted one percent shares to the Bulls Gap Masonic Lodge and Eastern Star Lodge. Finally, the United Way Fund or any other “worthy charity fund” was devised a two percent share.

On October 12, 2001, seven years after making the will, Ms. McFarland passed away at the age of eighty-four. An administrator was appointed by the trial court, and the will was admitted to probate. However, the administrator subsequently filed a declaratory judgment action seeking the court’s guidance as to how the proceeds of the estate were to be distributed. This action was necessitated due to the fact that three of the residuary beneficiaries named in the will, Minnis Rankin Jeffers, Willie Lee Jeffers, and Mary Louise McFarland, had predeceased the testatrix, Ms. McFarland. Also, none of these predeceased beneficiaries had left a surviving spouse or issue. It was therefore uncertain as to how these individuals’ shares were to be distributed.

The chancery court, exercising probate jurisdiction, determined that the gifts to each of the three predeceasing beneficiaries had lapsed. Because each had died without leaving surviving issue, Tennessee’s anti-lapse statute, Tennessee Code Annotated section 32-8-105 (2001), did not apply. The probate court concluded that these circumstances resulted in a partial intestacy in Ms. Farland’s estate. The chancellor also acknowledged that the long-standing common law rule, as announced in Ford v. Ford, 31 Tenn. 431 (1852), was that lapsed residuary gifts do not remain as part of the residue of the will to be distributed to remaining beneficiaries, but instead pass by intestate succession to the testator’s next of kin. Therefore, the chancellor directed that those shares of the estate devised to the predeceased beneficiaries were to be distributed to Ms. McFarland’s heirs at law, rather than being divided among the remaining residuary beneficiaries.

The estate administrator filed an interlocutory appeal in the Court of Appeals, where the decision of the probate court was subsequently affirmed. We then granted review. The issue presented is whether the lapsed residuary gifts pass to the testatrix’s heirs at law or to the remaining residuary beneficiaries. The estate administrator, along with the remaining residuary beneficiaries, argue that the lapsed gifts should be divided among the remaining residuary beneficiaries in proportion to their interests granted in the will. In opposition, the surviving heirs argue that the lapsed gifts pass by intestate succession.

Standard of Review

When this Court is called upon to construe a will, and there is no dispute in the evidence as to any material fact, then the question on appeal is one of law. In re Estate of Vincent, 98 S.W.3d 146, 148 (Tenn.2003). Accordingly, our review is de novo with no presumption of correctness accompanying the lower courts’ conclusions of law. Id. (citation omitted).

Analysis

I. Principles of Will Construction

In construing a will, the cardinal rule is that the Court must attempt to ascertain the intent of the testator and to give effect to that intent unless prohibited by a rule of law or public policy. Id. at 150; see Winningham v. Winningham, 966 S.W.2d 48, 50 (Tenn.1998). Holographic wills drawn by unskilled drafters are given a liberal construction. See Garner v. Becton, 187 Tenn. 34, 212 S.W.2d 890, 891 (1948). Nevertheless, the intention of the testator must be ascertained, if at all possible, from the particular words used in the will and from the context, general scope, and purpose of the instrument. Daugherty v. Daugherty, 784 S.W.2d 650, 653 (Tenn.1990). The Court “cannot determine the devolution of estates based upon the mere surmise as to the testator’s intention.” Pinkerton v. Turman, 196 Tenn. 448, 268 S.W.2d 347, 350 (1954).

The administrator of the estate argues that Ms. McFarland’s will manifested a clear preference for those specified beneficiaries rather than for the heirs at law. He argues that Ms. McFarland clearly intended the residuary beneficiaries to receive the remainder of her estate, in its entirety, and to the exclusion of all other persons, including her heirs. The administrator also correctly notes that when a person makes a will there is a presumption that the person did not intend to die intestate as to any part of his or her property. See Tenn.Code Ann. § 32-3-101 (2001); In re Walker, 849 S.W.2d 766, 768 (Tenn.1993).

On the other hand, the law requires us to read a will as if it had been executed immediately prior to the testator’s death. Tenn.Code Ann. § 32-3-101 (2001); see also Bell v. Shannon, 212 Tenn. 28, 367 S.W.2d 761, 766 (1963). Furthermore, a person is presumed to be acquainted with applicable rules of law when executing a will. McCarley v. McCarley, 210 Tenn. 484, 360 S.W.2d 27, 29 (1962). We must presume, therefore, that Ms. McFarland, prior to her death, knew that several of the beneficiaries had predeceased her, and we can further presume that she knew these lapsed gifts would pass by intestate succession to her heirs. Also, there is no evidence in the record that she attempted to redraft or revise her will to provide for an alternative distribution of the lapsed gifts.

Faced with a lack of any clear evidence concerning the testatrix’s intent on this point, we are left to apply the general rules governing residuary clauses and lapsed gifts.

II. General Rules of Property Descent and Distribution

A gift or devise in a will which fails because the beneficiary predeceases the testator is said to lapse. White v. Kane, 178 Tenn. 469, 159 S.W.2d 92, 94 (1942). To avoid this problem, Tennessee, like many other states, has enacted an “anti-lapse” statute which works to save lapsed gifts for the representatives of the predeceased beneficiary. Id. The Tennessee anti-lapse statute provides, in part:

(a) Whenever the devisee or legatee or any member of a class to which an immediate devise or bequest is made, dies before the testator, or is dead at the making of the will, leaving issue which survives the testator, the issue shall take the estate or interest devised or bequeathed which the devisee or legatee or the member of the class, as the case may be, would have taken, had that person survived the testator, unless a different disposition thereof is made or required by the will.

TenmCode Ann. § 32-3-105 (2001) (emphasis added).

This statute attempts to further the presumed intent of the testator in the absence of any contrary intent expressed through the will. Weiss v. Broadway Nat’l Bank, 204 Tenn. 563, 322 S.W.2d 427, 432 (1959). However, the anti-lapse statute saves the gift only if the predeceased beneficiary has left issue surviving the testator; otherwise, the statute has no application, and the gift lapses. See Cox v. Sullins, 181 Tenn. 601, 183 S.W.2d 865, 866 (1944).

Another manner of disposing of lapsed gifts is through a will’s residuary clause. If the will contains specific gifts or devises of property which lapse, these are deemed to fall into the residue and are disposed of through the provisions of the residuary clause, unless the testator has manifested a contrary intention. Milligan v. Greeneville Coll., 156 Tenn. 495, 2 S.W.2d 90, 93 (1928). Yet a particular problem arises when, as in the present case, the anti-lapse statute is inapplicable, and the gift which has lapsed is already a part of the residue. Under such circumstances, the traditional rule, derived from the English common law, is that the lapsed gift falls out of the terms of the will and passes by intestate succession to the testator’s heirs at law. See, e.g., Corbett v. Skaggs, 111 Kan. 380, 207 P. 819, 820 (1922); In re Frolich’s Estate, 112 N.H. 320, 295 A.2d 448, 450 (1972). This rule has, in fact, been the law in Tennessee for the past 153 years, having been adopted in Ford v. Ford, 31 Tenn. 431 (1852). This Court held in Ford that when “a bequest to several be of the residue, and it fail as to part by reason of lapse, partial revocation, or other cause before stated, such part cannot fall into the remaining residue, but will be undisposed of and go to the next of kin.” Id. at 435.

Despite its stability in our state, this rule has been much criticized in other jurisdictions and by legal commentators, with the main argument being that the rule defeats the most probable intent of the testator in this situation. Due in part to ■ this criticism, the Uniform Probate Code adopts an alternative rule, often called the “modern” rule, which directs that “if the residue is devised to two or more persons and the share of one of the residuary devisees fails for any reason, his share passes to the other residuary devi-see, or to other residuary devisees in proportion to their interests in the residue.” Unif. Probate Code § 2-606 (1974). The UPC rule has gained wide-spread support, having been adopted, either by statute or through case law, in the vast majority of other states. By contrast, the common-law or Ford rule remains in effect in only a minority of states, including Tennessee.

Nevertheless, although widely abandoned in other jurisdictions, the Ford rule cannot fairly be termed either incorrect or illogical. The reasons supporting the modern UPC rule are generally that it more closely comports with the probable intent of the testator and that it avoids partial intestacy. See In re Slack’s Trust, 220 A.2d at 473-74; Corbett, 207 P. at 822. However, in our view, it is just as likely that a person would consider the implications of the traditional or Ford rule when executing his or her will and thus implicitly intend that lapsed gifts should pass to the heirs, rather than to the remaining residuary beneficiaries. Therefore, neither of the rules is more logically correct than the other. The two divergent rules simply represent two competing schools of thought as to what a testator would most probably desire to happen when a residuary gift lapses.

The Ford rule does not result in any obvious injustice or unfairness, and cannot be said to frustrate the intent of the testator. For instance, in the present case, the testratrix devised certain percentages of her residuary estate to eighteen specified parties, and three of these gifts subsequently lapsed. The will gives no indication of how the testatrix preferred these lapsed gifts to be distributed. However, application of the Ford rule results in the testatrix’s stated intentions being carried out precisely as she directed with respect to fifteen of the eighteen beneficiaries. Further, the lapsed gifts pass to the most natural objects of her bounty — her heirs, which is a disposition favored under the law. See Furchtgott v. Young, 487 S.W.2d 801, 304 (Tenn.1972) (holding that in the absence of an expressed intention to the contrary, “ ‘a construction will be favored which conforms most nearly to the general laws of inheritance and which will prefer those of the blood of the testator to strangers or to persons not so closely related to the testator’ ”) (quoting Davis v. Mitchell 27 Tenn.App. 182, 178 S.W.2d 889, 913 (1944)). Conversely, application of the modern UPC rule would work to completely redraft the terms of the will, with none of the eighteen bequests being fulfilled exactly as directed by the testatrix.

Although we do not know how the testatrix would have preferred the lapsed gifts to be distributed, she clearly gave considerable thought to the specific percentages of her estate which she allotted to each beneficiary. To enlarge those percentages now, without any evidence that the testatrix intended such an outcome, would, in our opinion, totally frustrate her intentions as stated in the will. Faced with the choice between these two options, we conclude that the Ford rule secures the result which most closely comports with the testatrix’s stated intentions and is the most just, natural, and reasonable disposition of the property. See Davis, 178 S.W.2d at 913 (stating that “such construction will be adopted if possible that will dispose of the property in a just, natural or reasonable manner”).

III. Principle of Stare Decisis

Further supporting retention of the common-law Ford rule is the principle that whenever a judicial decision, such as Ford, “has been submitted to and for some time, acted under, and is not manifestly repugnant to some rule of law of vital importance in the system, it should not lightly be departed from, nor for purposes which are not of the highest value to the community.” Hall v. Skidmore, 180 Tenn. 23, 171 S.W.2d 274, 276 (1943) (internal quotations omitted) overruled on other grounds by Graves v. Sawyer, 588 S.W.2d 542 (Tenn.1979). In urging us to abandon the Ford rule, the appellants cite a general trend toward adoption of the more modern UPC rule, and also argue that the testatrix probably intended for her estate to be divided among the named residuary beneficiaries, to the exclusion of her heirs. Neither argument is sufficiently persuasive or compelling to support overriding a rule of law that has been in effect in this state for far more than a century. The doctrine of stare decisis is “one of commanding importance, giving, as it does, firmness and stability to principles of law.” J.T. Fargason Co. v. Ball, 128 Tenn. 137, 159 S.W. 221, 222 (1913). Stability in the law allows individuals to plan their affairs and to “safely judge of their legal rights.” Id. Generally, well-settled rules of law will be overturned only when there is obvious error or unreasonableness in the precedent, changes in conditions which render the precedent obsolete, the likelihood that adherence to precedence would cause greater harm to the community than would disregarding stare decisis, or an inconsistency between precedent and a constitutional provision. None of these reasons are evident in the present case.

The power of this Court to overrule former decisions “is very sparingly exercised and only when the reason is compelling.” Edingbourgh v. Sears, Roebuck & Co., 206 Tenn. 660, 337 S.W.2d 13, 14 (1960). Radical changes in the law are best made by the legislature. J.T. Fargason Co., 159 S.W. at 222. In our view, if our General Assembly determines that the UPC or “modern” rule would better serve the public interest, then it is within its power to adopt it into law, as have many other states. For the time being, we see no compelling reason in the ease now before us to overrule the long-standing precedent established in Ford. Therefore, we agree with the probate court and the Court of Appeals that the Ford rule governs this case, and the lapsed residuary gifts in Ms. McFarland’s will pass to her heirs under the laws of intestate succession.

Conclusion

In summary, we hold that the lapsed residuary gifts at issue in this case are not to be divided among the remaining residuary beneficiaries. Rather, the lapsed gifts result in a partial intestacy and therefore pass under the laws of intestate succession to the testatrix’s heirs at law.

Costs of this appeal are taxed to the appellant, Stephen D. McFarland, administrator C.T.A. of the estate of Merle Jeffers McFarland, or his sureties, for which execution may issue if necessary.

FRANK F. DROWOTA, III, C.J., filed a dissenting opinion in which JANICE M. HOLDER, J., joined.

FRANK F. DROWOTA, III, C.J.,

dissenting.

I respectfully dissent. The question in this case is whether, when a will includes a residuary clause with two or more beneficiaries, a lapsed residuary gift is to be distributed among surviving residuary beneficiaries or among the testator’s intestate heirs. The majority reaffirms Ford v. Ford, 31 Tenn. 431, 435 (1852), which holds that a lapsed residuary gift passes via intestate succession. I would overrule Ford and hold that where the residue of a will is devised to two or more persons and the share of one fails, that share passes to the other residuary devisees in proportion to their residuary interests. See Unif. Probate Code § 2-606(b), 8 U.L.A. 427 (1998); see also Restatement (Third) of Property: Wills & Other Donative Transfers § 5.5 cmt. o (1999). Consequently, in this case I would distribute the lapsed residuary gifts proportionally among the surviving residuary beneficiaries of the McFarland will rather than via the laws of intestate succession.

I would adopt the modern “remain in the residue” rule for the following reasons. First, I think that the modern rule would better approximate the average testator’s likely intent. See Corbett v. Skaggs, 111 Kan. 380, 207 P. 819, 821 (1922); In re Frolich’s Estate, 112 N.H. 320, 295 A.2d 448, 451-52 (1972); In re Gray’s Estate, 147 Pa. 67, 23 A. 205, 206 (1892). To be sure, both the English “no residue of a residue” rule and the modern rule involve a certain degree of arbitrariness because each rule is designed to control distribution where a testator has failed to provide express direction. Yet in my view, given the lack of express direction, it is reasonable to presume that by choosing to make a will which includes a residuary clause, a testator would prefer lapsed residuary gifts to go to the remaining named residuary beneficiaries rather than to intestate heirs. As for this case, I think that slightly enlarging the shares of named residuary beneficiaries would more likely match the testatrix’s intent than would distributing the lapsed shares to persons whom she potentially did not even include in her will.

After all, the very purpose of a residuary clause is to function as a dragnet for devising parts of a testator’s estate not otherwise disposed of. See Oliver v. Wells, 254 N.Y. 451, 173 N.E. 676, 678 (1930) (describing a residuary clause as manifesting the intent that “the gift shall be a dragnet that will cover every interest not effectively disposed of otherwise”). In light of this purpose, in the absence of express direction, it is entirely sensible to gather up lapsed residuary gifts and fold them back into the shares of surviving residuary beneficiaries. See Corbett, 207 P. at 822 (“The reasons for allowing lapsed specific legacies to fall into the residue apply with equal force in favor of allowing all the residue to go to the surviving residuary legatees in case of the death of one of them, instead of turning over a part of it to persons for whom other provision had been made, or who had not been referred to in the will at all.”).

Second, by devising lapsed residuary gifts, the modern rule would thus closely comport with the established presumption against partial intestacy, which is itself aimed at reinforcing testamentary intent. See Corbett, 207 P. at 822; see also In re Frolich’s Estate, 295 A.2d at 452; In re Slack’s Trust, 126 Vt. 37, 220 A.2d 472, 472-74 (1966). It is well settled in Tennessee that in construing wills, courts are to strive to ascertain and to effectuate the testator’s intent, unless prohibited by law or public policy. In re Estate of Vincent, 98 S.W.3d 146, 150 (Tenn.2003); Williamson v. Brownlow, 219 Tenn. 464, 410 S.W.2d 878, 880 (1967). And as we explained in Williamson,

[i]t is equally fixed in the jurisprudence of this State that it will be presumed that one who undertakes to make a will does not intend to die intestate as to any of his property; and, if possible, courts will construe a will so that it disposes of all the testator’s property if such can be done by any fair interpretation or allowable implications from the words used.

410 S.W.2d at 880-81; see also In re Walker, 849 S.W.2d 766, 768 (Tenn.1993). A residuary clause only “strengthens the presumption that the testator intended his entire estate to pass by his will.” In re Frolich’s Estate, 295 A.2d at 452. Moreover, in my view such a presumption is especially applicable to unskillfuUy drafted wills, such as the holograph in this case, which are to be liberally construed, see Garner v. Becton, 187 Tenn. 34, 212 S.W.2d 890, 891 (1948).

Third, I do not think that overturning Ford by adopting the modern rule would violate the principles of stare decisis. The recognition of the “no residue of a residue” rule in Ford, an 1852 decision, had never been reaffirmed by this Court. Further, only a single reported Tennessee Court of Appeals decision has applied this holding of Ford. See Davis v. Anthony, 53 Tenn. App. 495, 384 S.W.2d 60, 63 (1964). I firmly agree with the majority that “[i]t is our duty to observe the doctrine of stare decisis as one of commanding importance giving as it does firmness and stability to principles of law evidenced by judicial decisions.” Metro. Gov’t of Nashville & Davidson County v. Poe, 215 Tenn. 53, 383 S.W.2d 265, 277 (1964). At the same time, however, the Court “should not close its doors to the changing conditions, but should so fashion its opinions that the new truly grows out of the old as the product of a changing environment.” Id.

In conclusion, just as we have appropriately modernized other English common law doctrines in the area of wills and estates, I think it appropriate now to update our rule concerning the distribution of lapsed residuary gifts. According to In re Gray’s Estate, the “no residue of a residue” rule reflects a “concession to the set policy of English law ... to keep the devolution of property in the regular channels, to the heirs and the next of kin, whenever it can be done.” 23 A. at 206. I would adopt the “remain in the residue” rule as more consonant with our modern conceptions of testamentary intent.

I am authorized to state that Justice Holder joins with me in this dissenting opinion.

      . See Tenn.Code Ann. § 32-3-105 (2001).

      . The word "issue" has been interpreted as meaning only direct descendants of the beneficiary. White, 159 S.W.2d at 95.

      . See Corbett, 207 P. at 821-22; In re Frolich’s Estate, 295 A.2d at 451; In re Gray’s Estate, 147 Pa. 67, 23 A. 205, 206 (1892); In re Slack’s Trust, 126 Vt. 37, 220 A.2d 472, 473 (1966); see also Edward C. Halbach, Jr., Stare Decisis and Rules of Construction in Wills and Trusts, 52 Cal. L.Rev. 921, 940 (1964); Patricia J. Roberts, Lapse Statutes: Recurring Construction Problems, 37 Emory L.J. 323, 368-71 (1988).

      . This is also the rule espoused in the most current versions of American Jurisprudence and the Restatement of Property. See 80 Am. Jur.2d Wills § 1452 (2002); Restatement (Third) of Prop.: Wills & Other Donative Transfers § 5.5 cmt. o (1999).

      . As of the date of this opinion thirty-seven states had adopted the UPC rule by statute. See, e.g., Ala.Code § 43-8-225(b) (1982); Ariz.Rev.Stat. § 14-2604 (2005); Colo.Rev. Stat. § 15-11-604 (2004); Fla. Stat. ch. 732.604(2) (2004); Haw.Rev.Stat. § 560: 2-604 (1996); Mich. Comp. Laws § 700.2604(2) (1998); MontCode Ann. § 72-2-614 (2003); 20 Pa. Cons.Stat. § 2514(11) (1999); Wash. Rev.Code § 11.12.120(2) (1999). Four states have adopted the UPC rule through case law. See, e.g., In re Frolich’s Estate, 295 A.2d at 452; In re Slack’s Trust, 220 A.2d at 474.

      . In addition to Tennessee, seven other states and the District of Columbia continue to adhere to the traditional common-law or “English” rule. See Bronson v. Pinney, 130 Conn. 262, 33 A.2d 322, 326 (1943); Starkey v. Dist. of Columbia, 377 A.2d 382, 383 (D.C.1977); Matter of Estate of Kirkendall, 642 N.E.2d 548, 552 (Ind.Ct.App.1994); Bankers Trust Co. v. Allen, 257 Iowa 938, 135 N.W.2d 607, 612 (Iowa 1965); Hopson v. Ratliff, 426 So.2d 1377, 1380-81 (La.Ct.App.1983); Byrd v. Wallis, 182 Miss. 499, 181 So. 727, 731 (1938); In re Lewis’ Estate, 39 Nev. 445, 159 P. 961, 962 (1916); Dean v. Moore, 380 P.2d 934, 937 (Okla.1962).

      . As stated by the majority in footnote 5, the modem "remain in the residue rule” has been adopted, mostly by statute, in an overwhelming majority of jurisdictions. At least four jurisdictions have adopted the modern rule via judicial decision. See, e.g., Corbett v. Skaggs, 111 Kan. 380, 207 P. 819, 822 (1922); In re Frolich's Estate, 112 N.H. 320, 295 A.2d 448, 452 (1972); Commerce Nat’l Bank of Toledo v. Browning, 158 Ohio St. 54, 107 N.E.2d 120, 126 (1952); In re Slack’s Trust, 126 Vt. 37, 220 A.2d 472, 474 (1966).