author: JIM GUNTER, Justice. CORBIN, J.,

text:
    2009 Ark. 114
    In re ADOPTION OF M.K.C.
    No. 08-1367.
    Supreme Court of Arkansas.
    March 5, 2009.
    Sanford Law Firm, PLLC, by: Josh Sanford, Russellville, for appellant.
   JIM GUNTER, Justice.

| t This is a second appeal which arises from an order of the Pope County Circuit Court denying an adoption petition filed by Appellant Callie Michelle Cox to adopt her biological child, M.K.C. We affirm.

In the first appeal, Appellant asserted that the circuit court erred in denying her petition for adoption by ruling that Arkansas Code Annotated section 9-9-204(3) (Repl.2002) does not permit an unmarried natural mother to adopt her own child. On June 5, 2008, we reversed the order of the circuit court and remanded the case for a consideration of the adoption petition on the merits. See In re Adoption of M.K.C., 373 Ark. 603, 285 S.W.3d 605 (2008) (M.K.C. I). Citing the reasoning set forth in King v. Ochoa, 373 Ark. 600, 285 S.W.Sd 602 (2008), handed down the same day, we held that the circuit court erred in its interpretation of § 9-9-204 and that the statute does permit an unmarried parent to adopt his or her biological child. On remand, the circuit court denied the adoption as not |2in the best interest of the child. Appellant now brings this appeal.

On appeal, Appellant asserts that the decision of the circuit court that the adoption of M.K.C. was not in the best interest of the child was clearly against the preponderance of the evidence, and the court’s denial of Appellant’s petition for adoption was clearly erroneous. Specifically, Appellant contends that (1) the circuit court erred in its application of Ark.Code Ann. § 9 — 9—215(a)(1) and (a)(2); (2) Appellant met all requirements of the Arkansas adoption statutes; and (3) the trial court erred in its dismissal of Appellant’s testimony as to abuse by the biological father.

Before an adoption petition can be granted, the circuit court must find from clear and convincing evidence that the adoption is in the best interest of the child. In re Adoption of AM.C.; Dixon v. Dixon, 286 Ark. 128, 689 S.W.2d 556 (1985). We will not reverse a circuit court’s decision regarding the best interest of a child to be adopted unless it is clearly against the preponderance of the evidence, giving due regard to the opportunity and superior position of the circuit court to judge the credibility of the witness. In re Adoption of A.M.C., 368 Ark. 369, 246 S.W.3d 426 (2007); In re Adoption of Lybrand, 329 Ark. 163, 946 S.W.2d 946 (1997).

Arkansas Code Annotated § 9-9-215 (Repl.2002) states, in pertinent part:

(a) A final decree of adoption and an interlocutory decree of adoption which has beeome final, whether issued by a court of this state or of any other place, have the following effect as to matters within the jurisdiction or before a court of this state:
la(l) Except with respect to a spouse of the petitioner and relatives of the spouse, to relieve the biological parents of the adopted individual of all parental rights and responsibilities, and to terminate all legal relationships between the adopted individual and his or her biological relatives, including his or her biological parents, so that the adopted individual thereafter is a stranger to his or her former relatives for all purposes. This includes inheritance and the interpretation or construction of documents, statutes, and instruments, whether executed before or after the adoption is decreed, which do not expressly include the individual by name or by some designation not based on a parent and child or blood relationship....
(2) To create the relationship of parent and child between petitioner and the adopted individual, as if the adopted individual were a legitimate blood descendant of the petitioner, for all purposes including inheritance and applicability of statutes, documents, and instruments, whether executed before or after the adoption is decreed, which do not expressly exclude an adopted individual from their operation or effect.

The circuit court found that, under § 9-9-215(a)(1) the effect of the adoption would impact the child’s relationship with the biological father because the relationship would involve the child’s right to support and inheritance.

In determining the best interest of the child, the court weighed the benefit of the child that would result from a separation from a biological father with which the child currently has no relationship against the detriment to the child that would result from the loss of support, right to seek support, and the right of inheritance. The court stated that the loss of a relationship that does not exist between the father and child “cannot be given much weight” as it “would require speculation.” The court went on to say that, as to the severance of the child’s right to receive financial support and inheritance, “the Court is without evidence as to the father’s financial circumstances or that of his family.” “To Uprovide any substantial weight in this regard would require speculation on the part of the Court.”

In applying § 9-9-215(a)(2), the circuit court found that Appellant is the natural mother and “the relationship contemplated under this subsection already exists.” The court then weighed the effect of § 9-9-215(a)(1) against the benefit to the child resulting from the creation of the relationship contemplated in § 9-9-215(a)(2). The court found that, because “the child currently enjoys all aspects of the relationship contemplated in that section,” the child does not gain anything from an adoption decree under § 9-9-215(a)(2). The court afforded “little, if any, weight” to the creation of such a relationship in its analysis.

The circuit court concluded that, when applying the statutory effect of the adoption to the circumstances at issue here, the adoption was not in the best interest of the child. On appeal, Appellant contends that the circuit court’s decision on remand does not adhere to this court’s mandate in the first appeal. We disagree. Our opinion in M.K.C. I simply reiterated that the plain language of section 9-9-204 allowed a natural parent to adopt his or her own child. Here, we conclude that it is appropriate for the circuit court in a best-interest-of-the-child analysis to consider the relative benefits or detriments of a child, including those set out by the General Assembly.

In addition to the statutory considerations addressed above, the circuit court had before it certain testimony. Appellant testified that she was unmarried and that the child has no legal father. No man has ever lived with her and/or the child and no man has ever ^provided for the child. No one has ever identified himself in a sworn document as the father or has ever registered with the putative father registry claiming to be the father. Appellant testified that she and the father were in a relationship for about three months. According to Appellant, he started using drugs and alcohol and would rape her every night. She also testified that he would hit her and his children. He would drink to the point that he would become abusive and then drink to the point that he would pass out. She testified that his children would splash in the bathtub and he would hit them with a leather belt while they were naked because he thought it was annoying. Appellant stated that she would fear for the welfare of her child if she had any contact with the father. Appellant’s mother, Kay Cox, has guardianship of the child because Appellant was having medical problems and was unable to care for the child. Appellant has always retained physical custody of the child. Kay Cox filed a consent on June 80th to the adoption proceeding. Appellant testified that she has the facilities and resources suitable to continue to provide for the care and nurture of the child. She stated that she wanted the court to terminate the prospective rights of any person who would claim to be M.KC.’s father.

Appellant’s mother testified that she had no reason to believe that Appellant was untruthful about the father’s drinking, his drug use, his criminal history, or the kind of physical abuse that he perpetrated on his own children. She also stated that she had heard Appellant’s allegations against the father from the time that Appellant told her that she was pregnant. However, she “was not around for much of the things [Appellant] talked about.”

lfiThe circuit court found that Appellant’s testimony regarding the rape and abuse to her and the abuse by the father of his children was not credible. Specifically, the court noted that when it came time to allege the multiple rapes by the child’s father, Appellant was “unable to do so with any degree of veracity.” The court also found that her lack of credibility continued through the allegations of drug use, alcohol use, and physical abuse of his two small children. “This lack of credibility combined with the complete absence of any supporting testimony, documentation, or other evidence as to the acts alleged, results in the allegations being afforded no weight in the Court’s determination of the best interest of the child.”

In order to grant the adoption petition, the circuit court must find that there is clear and convincing evidence that the adoption is in the best interest of the child. See In re Adoption of A.M.C, supra. We note that although the child’s father lived with Appellant for three months, he is not named. No paternity has been established. We also note the absence of corroborating testimony or evidence as to Appellant’s allegations regarding the father’s use of alcohol and drugs or the father’s abuse of his children, other than what Appellant told her mother. The circuit court is in a far superior position to observe the parties before it and to judge the credibility of the witnesses. See Posey v. Ark. Dep’t of Health & Human Servs., 370 Ark. 500, 262 S.W.3d 159 (2007). We give great weight to a trial judge’s personal observations when the welfare of young children is involved. In re Adoption of A.M.C., supra. It was Appellant’s burden to present credible evidence to convince the circuit judge |7that adoption was in the best interest of the child. Considering the circuit court’s determination that the effect of the adoption statute was speculative and that Appellant’s allegations against the father could be afforded no weight, she failed to meet this burden. Based on our standard of review that we will not reverse a circuit court’s decision regarding the best interest of a child to be adopted unless it is clearly against the preponderance of the evidence, we hold that the circuit court did not err in denying the adoption petition. Accordingly, we affirm.

Affirmed.

CORBIN, J., dissents.

CORBIN, J.,

dissenting.

I must dissent in this case because the majority is affirming the circuit court’s order despite the fact that it runs completely counter to this court’s holding in In re Adoption of M.K.C., 373 Ark. 603, 285 S.W.3d 605 (2008) (M.K.C. I), and King v. Ochoa, 373 Ark. 600, 285 S.W.3d 602 (2008). The majority’s total about-face from those decisions truly boggles my mind.

The majority concludes that the circuit court did not err in denying the adoption petition because the mother failed to present evidence that the adoption was in the child’s best interest. It is axiomatic that a circuit court must find from clear and convincing evidence that an adoption is in the best interest of a child. See In re Adoption of AM. C., 368 Ark. 369, 246 S.W.3d 426 (2007); Dixon v. Dixon, 286 Ark. 128, 689 S.W.2d 556 (1985). The problem in the instant case, however, is that in evaluating whether adoption |8was in M.KC.’s best interest, the circuit court incorrectly weighed factors that this court clearly held were policy issues to be considered by the General Assembly and not the courts of this state. See Ochoa, 373 Ark. 600, 285 S.W.Sd 602. In that ease, the circuit court denied a petition for adoption filed by a child’s biological father. The circuit court concluded that a biological parent was not eligible to adopt his or her own child despite the plain language in Ark.Code Ann. § 9-9-204(3) (Repl.2002) that provides that an unmarried father or mother of the individual may adopt. In recognizing that the effect of section 9-9-204(3) was to terminate the rights of the other biological parent, this court stated:

Parental rights and the integrity of the family unit have always been a concern of this state and their protection regarded as a proper function of the courts. See [In re Adoption of] Parsons, [302 Ark. 427, 791 S.W.2d 681 (1990) ]. The conditions upon which parental rights are to be terminated are a question of policy, the resolution of which is addressed in a democracy to the policy-making branch of government, the General Assembly, and it is not for the courts to make a statute say something that it clearly does not. Id. (citing Davis v. Smith, 266 Ark. 112, 583 S.W.2d 37 (1979)).

Ochoa, 373 Ark. at 602, 285 S.W.3d at 604. This court further noted that the circuit court also denied the petition because to allow the adoption would have terminated any financial responsibility on the part of the minor’s mother. Specifically, we quoted the following from |9the circuit court’s order:

Her consent does not change my mind about this. This is evidently a parent that by virtue of the consent does not want anything to do with the child. And, while this is an unfortunate set of circumstances, she still has the financial responsibility to look to and provide for that child. The state and the custodial parent have the obligation to pursue that, unless they are able to take care of the child financially themselves. In the event that the custodial parent were to pass away, if I were to grant this adoption, there would be no one else out there except you and I and the state to take care of this child.

This court then concluded:

We hold that this policy concern of the circuit court is a question that should be addressed by the legislature.

Id. at 602-603, 285 S.W.3d at 604-605. We further noted that while section 9-9-204 sets forth who may adopt, the other requirements of the Revised Uniform Adoption Act must still be satisfied. Ochoa, 373 Ark. 600, 285 S.W.3d 602. This is where the majority now goes astray.

In today’s opinion, the majority quotes only parts of the circuit court’s order on remand and then, in a most strained fashion, attempts to legitimize the court’s analysis by relying on Ark.Code Ann. § 9-9-215 (Repl.2002) for the proposition that the circuit court properly considered the policy issues of support and future inheritance in determining the best interest of the child. The problem is that section 9-9-215 does not allow a court to consider such policy issues, nor has this court ever interpreted it as such — until today.

The circuit court sets out the relevant portion of section 9-9-215(a)(2) and then | ¶(Improperly uses it as the guidepost in determining best interest. Specifically, the circuit court stated:

This Court then looked at the effect of a decree of adoption applying the results of A.C.A. 9-9-215 (a)(1) analysis weighing such against the benefit to the child resulting from the creation of the relationship contemplated in A.C.A. 9-9-215(a)(2). The child currently enjoys all aspects of the relationship contemplated in that section. The child gains nothing from a decree of adoption under this subsection. The benefits set out therein already exist and, therefore, the creation of the relationship between mother/petitioner and the adopted individual is afforded little, if any, weight in the analysis.
It is clear from the Court’s reading of A.C.A. 9-9-215 that the adoption proceedings contemplate a child receiving more than it loses as a result of the adoption. What a child might lose in inheritance or financial support in the termination of a biological parent’s obligations under Subsection (a)(1) could easily be outweighed by the creation of a new relationship under subsection (a)(2) providing care, affection, and guidance even if less money attenuates the “created” relationship.

Clearly, the circuit court’s attempted reliance on section 9-9-215 as a basis for denying the petition because of support and inheritance issues was erroneous. The purpose of section 9-9-215 is to explain the effects of an adoption decree, for example, that an adoption decree severs the relationship between an adopted child and his or her biological family. The section provides in relevant part:

9-9-215. Effect of decree of adoption.
(a) A final decree of adoption and an interlocutory decree of adoption which has become final, whether issued by a court of this state or of any other place, have the following effect as to matters within the jurisdiction or before a court of this state:
|n(l) Except with respect to a spouse of the petitioner and relatives of the spouse, to relieve the biological parents of the adopted individual of all parental rights and responsibilities, and to terminate all legal relationships between the adopted individual and his or her biological relatives, including his or her biological parents, so that the adopted individual thereafter is a stranger to his or her former relatives for all purposes. This includes inheritance and the interpretation or construction of documents, statutes, and instruments, whether executed before or after the adoption is decreed ....
(2) To create the relationship of parent and child between petitioner and the adopted individual, as if the adopted individual were a legitimate blood descendant of the petitioner, for all purposes including inheritance and applicability of statutes, documents, and instruments, whether executed before or after the adoption is decreed, which do not expressly exclude an adopted individual from their operation or effect.

Thus, section 9-9-215 simply explains that an adoption decree terminates financial responsibility on the part of a biological parent or terminates a right to inheritance from the biological family. It also explains the creation of a new relationship resulting from an adoption decree. In fact, this court has interpreted this statute “as an expression of public policy favoring a complete severance of the relationship between the adopted child and its biological family in order to further the best interest of the child.” Vice v. Andrews, 328 Ark. 573, 945 S.W.2d 914 (1997) (citing Suster v. Ark. Dep’t of Human Servs., 314 Ark. 92, 858 S.W.2d 122 (1993)).

My position is further supported by a review of our cases that have involved section 9-9-215. Those cases fall into two main categories. The first involves the propriety of grandparent visitation where an adoption is at issue. See, e.g., Hendrix v. Black, 373 Ark. 266, 283 S.W.3d 590 (2008); Tate v. Bennett, 341 Ark. 829, 20 S.W.3d 370 (2000). The |12second involves issues of inheritance rights. See, e.g., Wheeler v. Myers, 330 Ark. 728, 956 S.W.2d 863 (1997); Sides v. Beene, 327 Ark. 401, 938 S.W.2d 840 (1997). At no time since section 9-9-215 was enacted in 1977 has this court used the language of this section regarding the effect of an adoption decree in the manner that it does today.

I suspect that the majority’s attempt to find any way to affirm this case has more to do with a dislike of our rulings in M.K.C. I and King and a disapproval of the fact that the child’s father has never been identified. The majority simply does not think it is right for this mother to adopt her own child, particularly when they know nothing about the child’s father. The father’s identity is wholly irrelevant. It was undisputed that the father had never registered with the Arkansas Putative Father Registry or in any other way attempted to legitimate the child; thus, he was not entitled to any type of notice of the adoption proceeding. See Escobedo v. Nickita, 365 Ark. 548, 231 S.W.3d 601 (2006) (holding that the biological father was not entitled to notice of adoption proceeding where he failed to properly legitimate his child).

We are to presume that the General Assembly was aware of the fact that a child adopted by his or her biological parent would lose the right to future support or inheritance, as explained in section 9-9-215, when it provided that a biological parent could adopt his or her child pursuant to section 9-9-204(3). Under the majority’s opinion, however, there will rarely, if ever, be a situation where it is in a child’s best interest to be adopted by his or her biological parent, because support and inheritance from the other biological parent will 1 isalways be terminated and there is not likely to be the creation of a “new” relationship as is the case when a child is adopted by someone other than a biological parent. In short, the majority opinion completely eviscerates the General Assembly’s clear intent to allow adoption of a child by a biological parent. Because the majority’s opinion is clearly contrary to the intent of the General Assembly and in direct contravention of this court’s own precedent, I dissent.

      . The majority opinion spends a great deal of time discussing the fact that the trial court found the petitioner to be less credible with regard to allegations she made that the child’s father was abusive, both to her and to his other children, and had substance-abuse problems, but the circuit court's opinion itself acknowledged that its credibility determination was given no weight in its analysis of the child's best interest. As such, it escapes me as to why the majority spends so much time on this issue, other than to divert attention from the fact that it has no support for its conclusion that the trial court correctly analyzed the best interest of the child.


source: Caselaw Access Project

author: PER CURIAM. PAUL E. DANIELSON, Justice,

license: Public Domain

text:
    2009 Ark. 115
    Robert MEYER d/b/a Meyer Excavators Contractors, Appellant, v. CDI CONTRACTORS, LLC, Appellee.
    No. 08-654.
    Supreme Court of Arkansas.
    March 5, 2009.
    Rehearing Denied Sept. 10, 2009.

      Cyril Eugene Hollingsworth, Little Rock, for appellant.
    Friday, Eldredge & Clark, LLP, by: James Carl Baker, Jr., and Kimberly Dickerson Young, Little Rock, for appellee.
   PER CURIAM.

11 This court granted a petition for review filed by appellant Robert Meyer, d/b/a Meyer Excavators Contractors. The petition requested this court to review a decision by the court of appeals affirming the trial court’s grant of summary judgment in favor of CDI Contractors, L.L.C. (CDI) on Meyer’s fraudulent-inducement claim. We order rebriefing, however, because Meyer did not comply with Ark. Sup.Ct. R. 4-2(a)(5) (2008). Meyer failed to abstract depositions that provided a substantial amount of evidence to support CDI’s motion for summary judgment. Further, on July 6, 2005, Meyer filed a response to CDI’s motion for summary judgment that stated: “[Meyer] has controverted the facts alleged by [CDI] as detailed in [Meyer’s] Brief in Support of this Response. [Meyer] incorporates by reference his Brief in Support of this Response.” (Emphasis added.) CDI’s reply brief indicates that Meyer filed his brief in support of his July 6, 2005 response, but it is not included in the addendum |2or the record. Thus, the record is incomplete.

Rule 4 — 2 (a) (5) provides, in pertinent part:

The appellant’s abstract or abridgment of the transcript should consist of an impartial condensation, without comment or emphasis, of only such material parts of the testimony of the witnesses and colloquies between the court and counsel and other parties as are necessary to an understanding of all questions presented to the Court for decision.

The procedure to be followed when an appellant has submitted an insufficient abstract or addendum is set forth in Ark. Sup. Ct. R. 4-2(b)(3):

Whether or not the appellee has called attention to deficiencies in the appellant’s abstract or Addendum, the Court may address the question at any time. If the Court finds the abstract or Addendum to be deficient such that the Court cannot reach the merits of the case, or such as to cause an unreasonable or unjust delay in the disposition of the appeal, the Court will notify the appellant that he or she will be afforded an opportunity to cure any deficiencies, and has fifteen days within which to file a substituted abstract, Addendum, and brief, at his or her own expense, to conform to Rule 4~2(a)(5) and (8). Mere modifications of the original brief by the appellant, as by interlineation, will not be accepted by the Clerk. Upon the filing of such a substituted brief by the appellant, the appellee will be afforded an opportunity to revise or supplement the brief, at the expense of the appellant or the appellant’s counsel, as the Court may direct. If after the opportunity to cure the deficiencies, the appellant fails to file a complying abstract, Addendum and brief within the prescribed time, the judgment or decree may be affirmed for noncompliance with the Rule.

Arkansas Rule of Appellate Procedure— Civil 6(c) (2008) provides that this court can sua sponte direct the parties to supply omitted material by filing a certified, supplemental record. See also Gilbert v. Moore, 362 Ark. 657, 210 S.W.3d 125 (2005).

| .-¡Accordingly, under Ark. Sup. Ct. R. 4-2 and Ark. R.App. P. Civ. 6(c), we order Meyer to file a substituted abstract, addendum, and brief, and to file a certified, supplemental record that includes the omitted brief in support within fifteen days from the date of entry of this order. If Meyer fails to do so within the prescribed time, the judgment appealed from may be affirmed for noncompliance with Rule 4-2. After service of the substituted abstract, addendum, and brief, CDI shall have an opportunity to revise or supplement its brief in the time prescribed by the court.

Rebriefing and supplemental record ordered.

DANIELSON and CORBIN, JJ„ concur.

PAUL E. DANIELSON, Justice,

concurring.

I concur with the order to rebrief and to supplement the record in the instant matter. But in addition, I take this opportunity to encourage the readoption of our former rule of affirmance in such cases. Two years ago, this court alerted the bar to the problems this court was incurring due to deficient appellate briefs. See In re Appellate Practice Concerning Defective Briefs, 369 Ark. App’x 553 (2007). In that vein, we stated:

With this current raft of nonconforming briefs, and the time wasted and expense incurred, this court may be forced in the near future to return to its former rule of affirmance.

369 Ark. App’x at 554.

|4It is my opinion that, two years later, we have reached “the near future.” So far this term, since August 2008, we have ordered rebriefing in eleven cases, and we still have several months to go. In the prior term, we ordered rebriefing in nine cases, and, in the term before that, during which we issued our alert, eleven cases. It is clear that our deficient-brief problem is getting worse, not better. Enough is enough.

CORBIN, J., joins.


author: JIM GUNTER, Justice. ROBERT L. BROWN, Justice, JIM HANNAH, Chief Justice, ELANA CUNNINGHAM WILLS, Justice,

text:
    2009 Ark. 113
    Charles Wayne GREEN, Appellant, v. STATE of Arkansas, Appellee.
    No. CR 08-903.
    Supreme Court of Arkansas.
    March 5, 2009.

      Jeff Rosenzweig, Little Rock, and Ray Spruell, Jonesboro, for appellant.
    Dustin McDaniel, Att’y Gen., by: Deborah Nolan Gore, Ass’t Att’y Gen., for ap-pellee.
   JIM GUNTER, Justice.

11 This appeal arises from an order of the Randolph County Circuit Court granting the State’s motion to vacate Appellant Charles (Chad) Green’s plea agreement and reinstating the original charges against him. We affirm.

In 2003, Appellant and his father, Billy Green, were charged with four counts of capital murder. Appellant was also charged with two counts of rape in a separate incident. On August 9, 2003, Appellant entered into a written plea agreement with the State. Pursuant to the plea agreement, Appellant was required to testify for the prosecution in his father’s capital murder trial and to “fully cooperate” with the prosecution of his father. Appellant also gave a video-taped statement in conjunction with the written plea offer. Appellant later attempted to withdraw from the agreement, claiming that the statement he made pursuant to the agreement was coerced. Plea negotiations continued, resulting in a plea offer being made by the prosecutor’s office on February 6, 2004. The offer incorporated hthe previous offer of August 9, 2003, but with a reduced term of imprisonment. Appellant accepted the plea offer by letter on February 11, 2004. The State attempted to withdraw the agreement because Appellant’s proffer of testimony did not comply with the terms of the written agreement. The parties subsequently resolved their dispute over the proffer provision and reached an agreement. On March 2, 2004, Appellant pled guilty to one count of first-degree murder and one count of kidnapping. He pled no contest to the two counts of rape. At the plea hearing, the trial court asked the prosecution to state the negotiated plea. In explaining the plea, the State did not specifically reference the written agreement. Appellant was sentenced pursuant to the plea agreement. A judgment and commitment order was filed on May 27, 2004.

Appellant testified for the prosecution, and Billy Green was convicted of capital murder and sentenced to death. In Green v. State, 365 Ark. 478, 231 S.W.3d 638 (2006), we reversed Billy’s conviction and remanded for a new trial. In 2006, the State sought to re-interview Appellant in order to prepare for Billy’s new trial. Appellant’s attorney, Larry Kissee, reported to the prosecutors that Appellant would not submit to a re-interview, but would reserve his comments for the new trial. The State filed a motion to vacate Appellant’s judgment and commitment order and to reinstate the original charges against him. A hearing commenced on March 2, 2004, wherein the trial court found that Appellant had breached his plea agreement with the State and granted the State’s motion to vacate. Appellant now brings his appeal.

IjjFor his first point on appeal, Appellant asserts that the trial court erred in holding that he breached his plea agreement. Specifically, Appellant contends that (1) the August 9, 2003 agreement which the State seeks to enforce is not the agreement which was eventually consummated; and (2) the State’s motion is premature.

The State responds, asserting that Appellant failed to comply with the plea agreement. Specifically, the State contends that (1) the plea agreement includes the terms of the August 9, 2003 agreement; (2) Appellant violated the terms of the plea ágreement by refusing to meet with prosecutors regarding Billy Green’s new trial; and (3) the State’s motion was not premature.

Issues concerning the interpretation and enforcement of a plea agreement are reviewed de novo. United States v. Yah, 500 F.3d 698 (8th Cir.2007). We apply general contract principles in interpreting plea agreements. Id. When a dispute arises over the meaning of a plea agreement, this court will discern the intent of the parties “as expressed in the plain language of the agreement viewed as a whole.” Miles v. State, 350 Ark. 243, 85 S.W.3d 907 (2002).

In the August 9, 2003 agreement, Appellant agreed to “fully cooperate with the prosecution of Billy Green concerning all charges to be filed against him including but not limited to four counts of capital murder,” and to “testify at trial in the State’s case against Billy Green.” The offer was made under the condition that Appellant “fully comply with all provisions of the offer made by the State of Arkansas referenced herein. Any reluctance [4or failure to perform the acts set forth in this agreement shajl void the document.” In his motion to enforce plea agreement, Appellant admits that the plea offer accepted by Appellant on February 11, 2004, incorporated the previous offer of August 9, 2003, but with a reduced term of imprisonment.

When asked by the trial court to read the negotiated plea agreement into the record, the State stated the following:

Your Honor, subject to, the state will read the facts and subject to the defendant admitting to those facts and pleading guilty in Case Number 2003-12B and subject to his pleading guilty to the facts as will be announced by the State in Case Number 2004-23, the state will make the following recommendation: That sentence be deferred against this defendant until such time as he has testified against his co-defendant, Billy Green, which testimony will be truthful and consistent with his previous testimony given to the police by video recorded statement on August 9, 2003. In addition the defendant will make every effort to help the police locate the murder weapon, the .22 caliber rifle. Again, that’s subject to his pleading to the facts which will be read into the record when Your Honor asks for them. The recommendation will be that he serve twenty years on the Class Y first degree murder, twenty years on the Class Y kidnapping, both of these to be consecutive, and those are subject to the seventy percent rule. Recommendation would be that he serve two twenty year sentences on each, on each of the two rape charges in 2004-23, those two twenty year sentences to run concurrent and concurrent with Case Number 2003-123. The State requests and I understand the agreement is that sentencing will be deferred until after the defendant has testified in the co-defendant’s trial. Last but not least, he’ll get jail time credit from the date of his arrest back I believe the end of July, 2003, whatever number of days that is, at the time he testifies.

The State admits that it did not read the written agreement into the record or reference the written agreement. However, Appellant’s counsel stated, “we understand that we are to comply with the plea agreement,” and that “we agree to cooperate with the State.” | ^Appellant agreed with his counsel’s statement by stating “yes, sir.” He stated “yes, sir” when asked if he understood his guilty plea statement and “no, sir” when asked if he had any questions regarding the statement.

It is well settled that a written contract may be modified by a later oral agreement. Shumpert v. Arko Tel. Commc’ns, Inc., 318 Ark. 840, 888 S.W.2d 646 (1994). Appellant asserts that the written plea agreement is not incorporated in the final agreement because the parties’ ultimate agreement included two prison terms of twenty years, as opposed to the two twenty-five-year terms contemplated in the written plea. He relies on State v. Crawford, 373 Ark. 95, 281 S.W.3d 736 (2008) for his proposition that a plea agreement is limited to the terms read into the record at trial. In Crawford, we held that the State was free to bring a subsequent prosecution on a felony charge because the record did not reflect that a nolle prosequi was an unconditional dismissal or a final disposition of the case. We did not, as Appellant asserts, hold that a plea agreement must consist solely of the terms read into the record at trial.

The State points out that it would be illogical to presume that the State, when offering to reduce the prison term in Appellant’s favor, also agreed to abandon virtually all of the other conditions set forth in the parties’ written agreement. We agree. Here, the parties’ agreement was set out in advance through the written agreement. The State explained the substance of the agreement in open court, but did not abandon the conditions of the written agreement. All negotiations between the State and Appellant were based on I fithe original August 9, 2003 plea agreement. Thus, we hold that the written agreement was not voided by the statements read into the record in open court, and that it was incorporated into the final plea agreement.

We turn now to Appellant’s assertion that he fulfilled his obligations of the plea agreement by testifying in Billy’s first trial and is not required to now testify in a second trial. In Miles, supra, the appellant entered into a plea agreement with the State whereby he agreed to testify truthfully at his accomplice’s trial in return for a reduced charge and sentence. At his accomplice’s first trial, he testified truthfully that he and his accomplice committed aggravated robbery. The trial ended in a mistrial. At the accomplice’s second trial, the appellant changed his testimony, claimed that his former statement was coerced, and testified that neither he nor his accomplice was involved in the crime. We held that the appellant had breached the plea agreement by testifying falsely at the accomplice’s second trial. We stated that the word “trial” used in the plea agreement did not apply solely to the first trial that ended in a mistrial. “Clearly, the intent of the parties was for testimony to be used in a trial deciding the issue of guilt.” Id. at 253, 85 S.W.3d at 914.

Here, the agreement did not limit Appellant’s testimony to the “original trial” or to “one trial only.” Thus, we hold that the intent of the parties “as expressed in the plain language of the agreement viewed as a whole,” was for Appellant to testify truthfully in a trial ending in a final judgment against his father.

Appellant argues in the alternative that even if he is obligated to testify in a retrial, |7the State’s motion to vacate was premature because he has not yet been called to the stand at the retrial. Appellant refused to meet with the prosecuting attorney on August 21, 2006, to discuss his testimony against his father. In the hearing on the motion to vacate, Appellant’s attorney, Larry Kissee, testified to the following:

He just said he would—tell them I am not going to talk to them. I think he said something to the effect that he would tell the true story when he testified.

The issue here is whether Appellant was obligated not only to testify at retrial, but whether he was also obligated to cooperate with the prosecutors before his testimony. In the August 9, 2003 plea agreement, Appellant agreed to “fully cooperate with the prosecution of Billy Green.” At the plea hearing, the following colloquy took place:

Mr. Kissee: We agree to cooperate with the state.
Appellant: Yes, sir.
The Court: Yes, sir to his statement? Appellant: Yes, sir.

Clearly, Appellant agreed to cooperate with the State in the plea agreement. We conclude that such cooperation includes not only testifying at retrial, but also assisting prosecutors in their preparation for trial, which Appellant refused to do. Based on the terms of the plea agreement, Appellant has breached the plea agreement by refusing to cooperate with the State.

We now turn to the issue of the State’s remedy. Appellant asserts that neither the State nor the trial court cited any Arkansas procedure that would permit the vacation of |Ra consummated plea and sentence. He contends that once his sentence was put into execution, it could no longer be amended. The State responds, asserting that the only way to enforce the plea agreement was for the trial court to vacate Appellant’s plea and sentence.

We have long held that a trial court loses jurisdiction to modify or amend an original sentence once the sentence is put into execution. Gavin v. State, 354 Ark. 425,125 S.W.3d 189 (2003). Here, the trial court did not amend or modify Appellant’s sentence. Rather, the trial court simply enforced the terms of the plea agreement entered into by the parties. Under the terms of the agreement, both parties bargained for and received substantial benefits. The State obtained Appellant’s guilty plea and his promise to testify against his father. Appellant received reduced charges and sentence. Appellant should not be allowed to benefit from his breach of this agreement. Applying general contract principles to this case, the appropriate remedy is to vacate the breached plea agreement and restore the parties to their respective positions before the plea agreement was entered.

Appellant also argues that if we do hold that a trial court can vacate a plea agreement that has been breached, such a procedure’s retrospective application to Appellant would violate federal and state constitutional guarantees of the due process of law under the Fifth and Fourteenth Amendments and article 2, § 8 of the Arkansas Constitution. Appellant cites to Mauppin v. State, 309 Ark. 285, 831 S.W.2d 104 (1992), where we stated the following:

|3“Ex post facto” literally means a law passed after the fact. That is, after the occurrence of the fact, or the crime. The constitutional prohibition on ex post facto laws is a limitation upon the powers of the legislature and does not of its own force apply to the judicial branch. However, the principle on which the clause is based, the notion that persons have a right to fair warning of that conduct which will give rise to criminal penalties, is fundamental to our concept of constitutional liberty, and as such, is protected against judicial action by the due process clause of the Fifth Amendment. Marks v. United States, 430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977).
Accordingly, the Supreme Court held that an unforeseen judicial enlargement of a criminal statute, applied retrospectively, operates precisely like an ex post facto law that is prohibited by Article I, § 10 of the Constitution of the United States, and it follows that such an interpretation is barred by the due process clause of the Fourteenth Amendment from achieving precisely the same result by judicial construction.

Once again, the trial court in the present case is not attempting to enlarge a criminal statute. The trial court is not changing, amending, or modifying Appellant’s sentence. It is simply vacating the plea agreement that was entered into between Appellant and the State because Appellant breached the agreement. As for Appellant’s argument that he did not have fair warning of the consequences of his actions, the plea agreement clearly gives Appellant fair warning that he must cooperate with the prosecutors. At the hearing, the State made it clear for the record the consequences if Appellant breached the agreement, stating:

[I]f the defendant fails or refuses to comply with the announced agreement that he would testify truthfully and consistently against his father, consistent that is with his statement of August 9th of 2003, that this recommendation by the state is not binding on the Court and that he is subject to the full range of punishment under the law for all four of those offenses.

Appellant cannot now argue that he did not have fair warning that he must cooperate with | mthe State.

For his final point on appeal, Appellant asserts that the vacation of the plea agreement and retrial would violate his federal and state constitutional guarantees against double jeopardy. Appellant also contends that a retrial would be barred by Arkansas Code Annotated § 5-1-112, which allows a former prosecution to be an affirmative defense to a subsequent prosecution for the same offense in certain circumstances.

The United State Supreme Court rejected the argument that the reinstatement of original charges pursuant to a plea agreement violated the Double Jeopardy Clause in Ricketts v. Adamson, 483 U.S. 1, 107 S.Ct. 2680, 97 L.Ed.2d 1 (1987). In Rick-etts, the appellant and the State of Arizona entered into an agreement wherein the State obtained the appellant’s guilty plea and his promise to testify against “any and all parties” involved in a murder. The appellant, a direct participant in the murder, received a reduced sentence and the State’s promise that he would not be prosecuted for his involvement in certain other crimes. The plea agreement stated that if the appellant breached the agreement, it would become null and void and his original charge would be automatically reinstated. The Court held that, under those provisions, the agreement was precisely equivalent to an agreement waiving a double-jeopardy defense. Applying Ricketts to the present case, we hold that Appellant waived his double-jeopardy defense by entering into a plea agreement providing that he would become subject to the full range of punishment for his original charges in the event of a breach. Moreover, Appellant’s argument regarding Ark. Code Ann. § 5-1-112 is premature as he has fynot yet been prosecuted. Based on the foregoing, we hold that the trial court did not err in vacating Appellant’s judgment-and-commitment order and reinstating his original charges.

Affirmed.

BROWN, J., concurs.

HANNAH, C.J., and WILLS, J. dissent.

IMBER, J., not participating.

ROBERT L. BROWN, Justice,

concurring.

I concur in the result but write separately to express why I believe the circuit judge had jurisdiction of this matter.

As the majority notes, the general rule subscribed to by this court is that once a valid judgment is put into execution, the circuit judge is without jurisdiction to modify or amend it. See, e.g., Gavin v. State, 354 Ark. 425, 125 S.W.3d 189 (2003). In my opinion, what separates this case from the general rule is the fact that the judgment was conditioned on Green’s trial court testimony and that condition was not satisfied.

In People v. Collins, 45 Cal.App.4th 849, 53 Cal.Rptr.2d 367 (1996), which involved a similar fact situation and issue, the California Court of Appeals concluded:

The relevant question is not whether the trial court had jurisdiction to reconsider the sentence imposed but, rather, whether the trial court had jurisdiction to consider a motion to vacate a judgment that was specifically conditioned upon the validity of a plea bargain agreement which, in turn, was expressly conditioned upon defendant’s truthfulness.

112M at 374.

Likewise, in the instant case, the relevant question is not whether the circuit judge has jurisdiction to modify or amend a valid sentence once imposed. Rather, the question is whether a circuit judge has jurisdiction to vacate a conditional judgment, and, specifically, one that is conditioned upon the parties’ future compliance with the terms of a plea agreement, when that condition is not met.

Here, Green’s judgment was conditioned upon the terms of his plea agreement with the State, which, in turn, was conditioned upon Green fully cooperating with the State and testifying against his father, Billy Green. When Green failed to abide by the terms of his plea agreement, the condition supporting his judgment failed, and the judgment became invalid. Because of this, the circuit judge did not violate the general rule that a valid judgment once executed may not be amended.

Two additional points support what I consider to be an exception to the general rule. The rationale and policy behind the general rule is that a circuit judge’s attempt to extend a defendant’s sentence, after a sentence is put into execution, implicates double jeopardy considerations, see Emerson v. Boyles, 170 Ark. 621, 280 S.W. 1005 (1926), while an attempt to reduce a defendant’s sentence, once put into execution, infringes upon the clemency power of the executive branch, see Coones v. State, 280 Ark. 321, 657 S.W.2d 553 (1983). In the case before us, the circuit judge is not attempting either to extend or reduce [1sGreen’s punishment, but rather he is ruling on the validity of his conditional judgment, where the condition has not been satisfied. Under these facts, the rationale behind the general rule is not implicated.

Additionally, as the majority notes, under the terms of a plea agreement, both the defendant and the State bargain for and receive a benefit. The reciprocal nature of plea agreements mandates that each party have the right to enforce the agreement when deprived of the benefit of their bargain. See Collins, 53 Cal.Rptr.2d at 374. Were a circuit judge unable to hold a party to the terms of its plea bargain, this would undermine the entire judicial process regarding plea agreements. In this connection, it is axiomatic that courts have inherent authority to protect the integrity of the judicial process. See U.S. v. Britt, 917 F.2d 353, 355 n. 2 (8th Cir.1990); Valley v. Phillips County Election Comm’n, 357 Ark. 494, 183 S.W.3d 557 (2004).

For these reasons, I believe the circuit judge had subject-matter jurisdiction of this matter, and I would affirm.

JIM HANNAH, Chief Justice,

dissenting.

I respectfully dissent. Quite simply the circuit court lacked subject-matter jurisdiction to vacate Charles Wayne Green’s sentence. “[W]here the defendant has entered upon the execution of a valid sentence, the court loses jurisdiction over the case.” Coones v. State, 280 Ark. 321, 323, 657 S.W.2d 553, 555 (1983). |uAny attempt to alter or revise a valid sentence already put into execution is a void act, and the original sentence remains in force. Williams v. State, 229 Ark. 42, 313 S.W.2d 242 (1958). Once a valid judgment is put into execution, the trial court is without jurisdiction to modify, amend, or revise it. Renshaw v. Norris, 337 Ark. 494, 989 S.W.2d 515 (1999); Davis v. State, 291 Ark. 191, 723 S.W.2d 366 (1987); see also Emerson v. Boyles, 170 Ark. 621, 280 S.W. 1005 (1926).

The majority cites Gavin v. State, 354 Ark. 425, 125 S.W.3d 189 (2003), for the proposition that a valid sentence may not be amended or modified, but it may be vacated because that is not a modification. Gavin does not support that proposition. The critical language in Gavin is that conviction and imposition of sentence deprive “the trial court of jurisdiction to amend or modify a sentence”. Id. at 430,125 S.W.3d at 191. The issue in Gavin was loss of jurisdiction (emphasis added) and not whether a circuit court could vacate a sentence that it could not modify or amend. I fail to understand how a court lacks jurisdiction to modify a sentence but has jurisdiction to vacate that sentence.

The concern is that, because Green entered into a plea agreement and received the benefit of the agreement, he should not be able to retain that benefit unless he carries out his end of the agreement by testifying against his father. I could not agree more that Green should be required to fulfill his agreement. However, the majority, in insuring that Green does not retain the benefit of his bargain without fulfilling his end of the bargain, is disregarding over eighty years of precedent by allowing the circuit court to vacate Green’s 11Bsentence. This is not necessary.

While we have not previously addressed a similar fact pattern, other states have. The case of Brunelle v. State, 113 S.W.3d 788 (Tex.Crim.App.2003) is similar to the one before us. In a plea agreement to a charge of capital murder, Brunelle agreed to testify against a co-defendant and in return received a lesser conviction and sentence. However, Brunelle then refused to testify. The State of Texas moved the trial court to set aside the plea agreement and conviction arguing that Brunelle had breached his agreement. The trial court did so. The Texas Court of Criminal Appeals noted that the conviction on the plea agreement was three years old and held that the trial court’s jurisdiction over the matter had expired. The court expressly rejected the notion of “a species of contract jurisdiction enabling it to interpret the plea agreement and to set it aside if it determines the agreement has been breached.” Brunelle, 113 S.W.3d at 790. The court noted that while contract principles apply to plea agreements, “they may not be enforced to the detriment of due process.” Id. The proper path was set out in Brunelle:

We find no precedent for the proceeding initiated by the State in this case, nor can we see any necessity or purpose for it. Appellant has been reindicted for this offense, which should serve as adequate notice to Appellant that the State considers the plea agreement invalid. If Appellant believes this conviction still bars the subsequent prosecution, he may challenge the subsequent prosecution in an appropriate proceeding wherein he would have the opportunity to more fully develop the facts.

Id.

By entering into the plea agreement, Green waived any objections to trial on the 1charges if he breached the agreement. Therefore, if Green breached the plea agreement, the existing judgment and conviction on the plea agreement is no bar to a subsequent prosecution and trial. Double jeopardy concerns do not dictate that the former conviction and sentence be vacated before Green is tried on the charges.

In short, either Green breached the plea agreement, waiving any objection to prosecution, or he did not. The circuit court lost jurisdiction to consider the plea agreement or its breach under both the criminal law and contract law. The State may proceed with the prosecution and let the question of the breach and the defense of double jeopardy be decided as a defense in that subsequent prosecution, a proceeding in which the circuit court has jurisdiction to act. I would declare the acts of the circuit court void and allow the State to proceed as it sees fit.

ELANA CUNNINGHAM WILLS, Justice,

dissenting.

Because I cannot agree that the circuit court had subject-matter jurisdiction of this action, I respectfully dissent.

Cases are legion in Arkansas for the proposition that a trial court loses jurisdiction to modify or amend an original sentence once the sentence is put into execution. See, e.g., Gavin v. State, 354 Ark. 425, 125 S.W.3d 189 (2003) (citing Pike v. State, 344 Ark. 478, 40 S.W.3d 795 (2001); McGhee v. State, 334 Ark. 543, 975 S.W.2d 834 (1998); DeHart v. State, 312 Ark. 323, 849 S.W.2d 497 (1993); Jones v. State, 297 Ark. 485, 763 S.W.2d 81 (1989)). We have made clear that this is a loss of subject matter jurisdiction. Gates v. State, |17353 Ark. 333, 107 S.W.3d 868 (2003); Bagwell v. State, 346 Ark. 18, 53 S.W.3d 520 (2001).

As noted by the majority, the appellant entered into a plea agreement with the State and sentencing was deferred until after the Appellant testified in Billy Green’s trial. After Billy Green’s trial, the Appellant was sentenced pursuant to the plea agreement and a judgment and commitment order was filed on May 27, 2004. The State later returned to the circuit court and filed a motion to vacate the judgment and commitment order, alleging a breach of the plea agreement. In my view, once the trial court put the Appellant’s sentence into execution by issuing the commitment order, it lost subject-matter jurisdiction to entertain the State’s motion to vacate the judgment.

The majority concludes that “the trial court did not amend or modify Appellant’s sentence.” In my view the “vacation” of a sentence certainly amends or modifies it. In addition, the majority concludes that the circuit court, rather than amending or modifying the Appellant’s sentence, “simply enforced the terms of the plea agreement entered into by the parties” and that “Mpplying general contract principles to this case, the appropriate remedy is to vacate the breached plea agreement....” The majority does not indicate how [ isthis confers subject-matter jurisdiction on the circuit court. Subject-matter jurisdiction cannot be conferred by consent of the parties, State v. J.B., 309 Ark. 70, 827 S.W.2d 144 (1992) (citing Hargis v. Hargis, 292 Ark. 487, 731 S.W.2d 198 (1987); Venhaus v. Hale, 281 Ark. 390, 663 S.W.2d 930 (1984)), nor may it be waived. Vowell v. Fairfield Bay Community Club Inc., 346 Ark. 270, 58 S.W.3d 324 (2001); see also Servewell Plumbing v. Summit Contractors, 362 Ark. 598, 210 S.W.3d 101 (2005)(“Parties may by agreement consent to personal jurisdiction ... but subject-matter jurisdiction cannot be conferred merely by agreement of the parties.”); Moore v. Richardson, 332 Ark. 255, 964 S.W.2d 377 (1998); Douthitt v. Douthitt, 326 Ark. 372, 930 S.W.2d 371 (1996). The entry or enforcement of a plea agreement, therefore, does not confer subject-matter jurisdiction on a circuit court after the sentence has been put into execution.

We are not the first state to grapple with this problem. For example, in Dier v. State, 524 N.E.2d 789 (Ind.1988), the Indiana Supreme Court concluded that a trial court was without jurisdiction to vacate a sentence and impose the original sentence where the defendant, whose original sentence was reduced pursuant to agreement with the State in exchange for his testimony against another defendant, later testified for the same defendant in the latter’s post-conviction proceeding. The trial court cited the State’s assertion that the defendant “committed fraud on the State and the court” and “breached his contract made with the State to the extent justice requires he not profit from his ignoble deeds.” The Indiana Supreme Court stated, however, that “[wjhatever merit there is to this contention |19fails to give jurisdiction to the trial court.” Id. at 790; see also Moore v. State, 686 N.E.2d 861 (Ind.App.1997) (reversing trial court’s vacation of defendant’s sentence after breach of plea agreement, relying on Dier, supra, and finding no “Indiana law which grants a trial court jurisdiction over a defendant after it pronounces sentence based upon the breach of a plea agreement”).

In addition, in State v. Young, 188 Or. App. 247, 71 P.3d 119 (2003), a defendant was originally indicted for eight counts of murder, robbery and burglary. He pled guilty under a plea agreement to three of the murder charges and specifically agreed that if he breached the agreement, the State could try him on the remaining charges and that he would waive any double jeopardy or speedy trial issues. He later breached the agreement and the State prosecuted him on the remaining charges. He pled guilty to the remaining charges, but during the penalty phase, argued a lack of jurisdiction. The Oregon Court of Appeals held that the defendant was “correct that the trial court lacked authority to modify” the three executed murder sentences he had received, but that the court did have jurisdiction to impose separate sentences on the remaining charges.

Finally, in People v. Collins, 45 Cal. App.4th 849, 53 Cal.Rptr.2d 367 (1996), the California Court of Appeals was faced with a juvenile defendant who pled guilty pursuant to a plea agreement to a single count of being an accessory to murder after the fact. The defendant agreed in the plea agreement to testify concerning the actions and criminal offenses of all persons involved in the murder and the agreement provided that a breach |Mwould render it null and void and result in reinstatement of the original charges. In return, the defendant was committed to the California Youth Authority for a term of five years. The State, following a series of events, later deemed the agreement to have been breached, and moved to set aside the plea agreement and sentence in order to resume the proceedings against the defendant. After the trial court granted the motion, the defendant entered a plea to the new indictments by the grand jury and received a prison sentence of twenty-one years. The defendant appealed, alleging both the absence of any specific statutory authorization for such a post-conviction motion by the State, and the lack of jurisdiction occurring after the original sentence had been put into execution.

The California Court of Appeals first held that even absent a specific statutory procedure, California “state law supports the existence of remedial power to act upon a post-conviction petition brought by either the defendant or the prosecution to enforce the terms of a plea bargain agreement.” Id. at 863, 53 Cal.Rptr.2d 367. With regard to jurisdiction, the court held that the defendant was “estopped” from raising the court’s lack of jurisdiction to act. Although noting that “if a court is without jurisdiction no amount of consent or estoppel can bestow it,” the court held that the rule applies only to subject-matter jurisdiction, which the court found was present in the case before it. It is unclear on what basis the appellate court concluded that subject-matter jurisdiction existed in the California trial court.

Arkansas law, however, is clear that subject-matter jurisdiction is lost after the sentence of a defendant has been put into execution. Gates, supra. While I agree with the ^majority that the Appellant should not be allowed to benefit from his breach of the plea agreement, I cannot conclude that the trial court had subject-matter jurisdiction of the State’s motion to vacate the sentence. This is a problem that calls out for a solution, either by way of a legislative amendment, a change in our rules, or the availability of the ancient writ of error coram nobis in this particular circumstance. Unfortunately, these remedies are unavailable on the current record. I must, therefore, respectfully dissent.

HANNAH, C.J., joins.

      . A sentence is placed into execution when the court issues a commitment order, unless the trial court grants an appellate bond or specifically delays execution of sentence on other valid grounds. See DeHart, supra. A limited exception to the loss of jurisdiction, not applicable here, is found at Ark.Code Ann. § 5 — 4—301(d) (Repl.2006), which empowers circuit courts to modify certain original sentences following probation revocation hearings.

      . A writ of error coram nobis may provide a procedural means to vacate a plea and sentence, but this is an "extraordinarily rare remedy, more known for its denial than its approval.” Deaton v. State, 373 Ark. 605, 285 S.W.3d 611 (2008) (citing State v. Larimore, 341 Ark. 397, 17 S.W.3d 87 (2000)). This particular writ is “allowed only under compelling circumstances to achieve justice and to address errors of the most fundamental nature.” Id. (citing Pitts v. State, 336 Ark. 580, 986 S.W.2d 407 (1999) (per curiam)). A writ of error coram nobis is only appropriate when an issue was not addressed or could not have been addressed at trial because it was somehow hidden or unknown and would have prevented the rendition of the judgment had it been known to the trial court. Echols v. State, 360 Ark. 332, 201 S.W.3d 890 (2005). The writ was originally available in both criminal and civil cases, but has been abolished in civil cases in Arkansas. Ark. R. Civ. P. 60(k) (2008). In Larimore v. State, 327 Ark. 271, 279, 938 S.W.2d 818, 821 (1997), this court stated a "circuit court can entertain a writ of error coram nobis after appeal only if we grant permission.” In the present case, Green did not appeal his sentence. In Adler v. State, 35 Ark. 517, 525 (1880), the court noted that “[w]hether the circuit court, in the exercise of its common law powers, may issue the writs of error coram nobis, has not heretofore been decided by this court.” Upon consideration of the question and examination of the writ’s jurisprudence in Britain and the United States, the Adler court held, apparently even after execution of the sentence, that "[w]e think the circuit judge had power to issue the writ of error coram nobis, and upon the assignment of error in fact ... to cause a jury to be impannelled [sic] in term to try the issue." Id. at 530. However, it appears that the jurisdiction of trial courts to entertain writs of error coram nobis has been divested by adoption of a rule, beginning with Emerson v. Boyles, 170 Ark. 621, 280 S.W. 1005 (1926), that a trial court loses jurisdiction once a sentence has been executed. See also Hodge v. State, 320 Ark. 31, 894 S.W.2d 927 (1995); Howell v. Kincannon, 181 Ark. 58, 24 S.W.2d 953 (1930).


author: Justice ABRAMSON.

text:
    Lila Faye SPENCER, Appellant, v. ESTATE OF Charles SPENCER, Appellee.
    Nos. 2008-SC-000191-DG, 2008-SC-000196-DG.
    Supreme Court of Kentucky.
    June 17, 2010.

      Richard L. Walter, Samuel Scott Mar-cum, Boehl, Stopher & Graves, LLP, Pa-ducah, KY, Counsel for Appellant.
    Mark Lane Ashburn, Paducah, KY, Counsel for Appellee.
   Opinion of the Court by

Justice

ABRAMSON.

This is a declaratory judgment action to determine the ownership of a brokerage account. The action was brought on behalf of the estate of Charles Spencer, a resident of Paducah who died testate on February 10, 2006. The estate, represented by Pamela Adkins, Mr. Spencer’s daughter by his first marriage, filed suit against Lila Faye Spencer, Mr. Spencer’s second wife and his widow (Faye). The trial court ruled that the brokerage account was a joint account with the right of survivorship and that upon Charles’s death it passed entirely to Faye. The Court of Appeals, rejecting that analysis, held that the Spencers held the brokerage account as tenants in common, with the result that upon Charles’s death his one-half interest in the account passed to the estate. Both parties have appealed from that decision. The estate maintains that an ante-nuptial agreement between Charles and Faye precludes her having any interest in the brokerage account while Faye maintains that the trial court correctly ruled that the entire brokerage account passed to her under the right of survivorship. We agree with the Court of Appeals that neither party is entitled to summary judgment on the grounds each alleges but reject the Court of Appeals’ alternative ground for summary judgment as premature. Accordingly, we affirm in part, reverse in part, and remand to the trial court for additional proceedings.

RELEVANT FACTS

Many of the facts are not in dispute. Charles and Faye married on October 30, 1995. Both had been married previously and both had children. On the day prior to their wedding they executed an ante-nuptial agreement, in which they listed the property each held at that point in time and agreed, basically, that neither would claim any interest in the pre-marital property of the other. In particular, the agreement provides in pertinent part as follows:

4. If Spencer [Charles] dies while he is lawfully married to Hughes [Faye], then Hughes shall not ask or claim any part of the estate of Spencer, over and above any portion Spencer would voluntarily elect to bequeath or devise to her by his Last Will and Testament....
9. Hughes hereby releases and relinquishes unto Spencer, his heirs, executors, administrators, and assigns any and all rights or claims by way of dower, inheritance, descent, distribution, surviv-orship, or otherwise in and to the real and personal property of Spencer, now owned or hereafter acquired, and any and all other rights and claims of every kind and nature arising out of, or growing out of, the marriage which will hereafter exist between the parties....
12. Any and all gifts received by the parties jointly during the marriage shall be owned by them in equal shares. Any gifts made by the parties to each other during the marriage shall be subjects of memoranda executed by the parties in duplicate and attached to the duplicate originals of this agreement.

The couple attached lists of their pre-mari-tal property to the agreement, and among the property on Charles’s list were stocks and bonds that came eventually to be held in an EdwardJones brokerage account of which Charles was the sole registered owner.

On August 24, 2005, Charles executed an EdwardJones Letter of Authorization to Change Registration or Transfer Assets. Pursuant to the Letter, a joint account was opened in the names of “Charles F. Spencer & L. Faye Spencer,” and the stocks and bonds from Charles’s individual account were transferred to and reregistered in the new joint account with Faye. Charles died just a few months later, on February 10, 2006. Apparently EdwardJones understood Charles and Faye’s joint account to include the right of survivorship, and thus when the estate approached the brokerage firm to release the assets of the joint account to it, the brokerage firm refused on the ground that Faye had become the owner. Faye likewise refused the estate’s demand that she turn over the joint account assets, and it was her refusal that prompted the estate’s declaratory judgment action.

According to the estate, Charles cannot, as a matter of law, be deemed to have given Faye any part of his EdwardJones account because the purported gift was not memorialized in the manner the ante-nuptial agreement specifies, ie., by memorandum attached to the agreement’s duplicate originals. Faye countered by arguing that the joint EdwardJones account came within the Multiple Party Accounts provisions of KRS Chapter 391 which provide that a qualifying joint account is presumed to belong to the survivor absent “clear and convincing written evidence of a different intention.” Thus, Faye claimed that, as a matter of law, the EdwardJones account was hers. These arguments were cited in competing motions for summary judgment. The trial court, as noted, rejected the estate’s argument and granted summary judgment to Faye. The Court of Appeals likewise rejected the estate’s ante-nuptial agreement argument. We begin our analysis by affirming the Court of Appeals in that regard.

ANALYSIS

As the parties correctly note, summary judgment is not proper unless the record, when examined in its entirety, shows that there is “no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law.” CR 56.03. “The record must be viewed in a light most favorable to the party opposing the motion ... and all doubts are to be resolved in his favor.” Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476 (Ky.1991). Because in general a summary judgment does not require findings of fact but only an examination of the record to determine whether material issues of fact exist, we generally review the grant of summary judgment without deference either to the trial court’s assessment of the record or its legal conclusions. Malone v. Kentucky Farm Bureau Mutual Insurance Company, 287 S.W.3d 656 (Ky.2009) (citing Schmidt v. Leppert, 214 S.W.3d 309 (Ky.2007)).

THE APPEAL BY THE ESTATE OF CHARLES SPENCER

I. The Ante-nuptial Agreement Does Not Entitle the Estate to Summary Judgment.

The estate maintains that it was entitled to summary judgment because the Ed-wardJones account cannot be deemed to have been given to Faye. It insists that under paragraph 12 of the ante-nuptial agreement, as quoted above, any gift of Charles’s property to Faye during the marriage was to be memorialized in writing with the writing attached to both copies of the agreement. Because that requirement was not met, the estate argues, the agreement’s strict terms should be given effect qnd the presence of Faye’s name on the joint EdwardJones account should be disregarded.

As the estate correctly notes, ante-nuptial agreements are a recognized type of contract in Kentucky, Gentry v. Gentry, 798 S.W.2d 928 (Ky.1990), and like other contracts, they are to be construed so as to give effect to the parties’ intentions. Pressman v. Pressman’s Administrator, 275 Ky. 45, 120 S.W.2d 739 (1938). Unlike other contracts, however, ante-nuptial agreements are often negotiated and entered into when the parties are not truly bargaining at arms length, and they are often sought to be enforced long after their creation when the parties’ circumstances may have changed substantially. For these reasons, we have insisted that courts retain broad discretion to “modify or invalidate all or part of an ante-nuptial agreement where enforcement is unconscionable.” Lane v. Lane, 202 S.W.3d 577, 579 (Ky.2006). Further, we have long held that such agreements are to be construed liberally, not in deference “to the strictly technical meaning of the words used,” but with reference to “the whole instrument ... and evidence, also, of the situation of the parties, the surrounding circumstances, and all other means that will throw light on the intention of the parties.” Collins v. Bauman, 125 Ky. 846, 102 S.W. 815, 816 (1907).

The trial court and the Court of Appeals both ruled that, considered as a whole, the ante-nuptial agreement was not intended to preclude gifts between the parties and that the memorandum requirement of paragraph 12 was not so inflexible a requirement as to defeat on purely technical grounds a transfer of property that was clearly intended to be a gift. That gift provision of the agreement should be understood, rather, as requiring that, for gifts between the parties, the giver’s intention be clearly evidenced by a writing. We agree that this is a reasonable construction of paragraph 12, which clearly was not meant to frustrate gifts between the parties, but only to prevent gift claims by the alleged recipient where the giver’s intention had not been made manifest. We agree with the lower courts too, then, that the EdwardJones Authorization Letter executed by Charles, even though it was not attached to the ante-nuptial agreement, satisfied the agreement’s requirement that gifts between the parties be memorialized in writing.

II. The Ante-nuptial Agreement Did Not Preclude Summary Judgment for Faye.

The estate next contends that, even granting this construction of paragraph 12—that it could be satisfied by a clear manifestation of the giver’s intent even if the gift memorandum was not attached to the agreement—the Court of Appeals erred by ruling that the creation of the joint EdwardJones account amounted to a clear manifestation of Charles’s intent to give an interest in the account to Faye. It concedes that, generally, when one person causes intangibles, such as stock certificates, notes, bonds, cashier’s checks, or bank accounts “to be issued by a second person in favor of another, individually or jointly, the latter becomes a third party beneficiary of the transaction, and is vested with the rights evidenced by the instrument.” Hensley v. Ball, 380 S.W.2d 279, 288 (Ky.1964) (stock certificates, bonds, cashier’s check); Saylor v. Saylor, 389 S.W.2d 904 (Ky.1965) (bank savings account). The estate argues, however, that here the fact that Charles did not comply with the strict terms of the ante-nuptial agreement could be viewed as evidence that he did not intend to confer upon Faye the rights usually incident to joint ownership. In that way, the estate maintains, an issue of material fact arises, which should have been submitted to a jury and which thus precludes the summary judgment in favor of Faye. We agree with the Court of Appeals, however, that notwithstanding the ante-nuptial agreement, Charles’s creation of the joint EdwardJones account was clearly intended to confer upon Faye an interest in the account. That, as noted, is the consequence Kentucky law presumes. The estate has suggested no other reason for creating the joint account, and we do not attribute to Charles a senseless act. The ante-nuptial agreement, in sum, neither entitles the estate to summary judgment nor precludes the summary judgment awarded to Faye, and on those points, accordingly, we affirm the Court of Appeals.

III. By Promoting and Acquiescing in a Judgment That Did Not Properly Invoke CR 54.02, The Estate Forfeited Any Additional Claims it May Have Had.

The estate raises one additional issue in its appeal. The EdwardJones account, which held the bulk of Charles’s assets, was the main focus of the parties’ dispute, but the estate’s complaint also alleged that it was entitled to Charles’s half of household items jointly acquired during the marriage and to the return of household items that Charles brought to the marriage or acquired separately during marriage. The complaint sought a declaration defining both sets of household contents. This aspect of the complaint appears to have been forgotten during the dispute over the Ed-wardJones account. Neither party’s summary judgment motion indicated that what was being sought was only a partial summary judgment or that issues in addition to those relating to the brokerage account remained to be addressed. Accordingly, the trial court’s order granting summary judgment to Faye closed the entire case by reciting that “the plaintiffs Complaint is dismissed with prejudice.”

The summary judgment prompted the estate’s motion to alter, amend, or vacate, a motion which also requested the trial court to enter findings and conclusions in support of its ruling. At the hearing on that motion, the estate, for the first time apparently, asserted that the summary judgment had not addressed the household property questions and so requested either that the judgment be withdrawn until those questions could be addressed or that the summary judgment be made partial but final-and-appealable. From the bench, the trial judge acknowledged that the household property issues had not been addressed, but, apparently accepting counsel’s suggestion that he could “piecemeal” the judgment, entered Findings of Fact and Conclusions of Law explaining the summary judgment on the EdwardJones issue, otherwise denied the estate’s motion to alter, amend, or vacate; and recited that the denial of the estate’s motion was “a final and appealable order.” Neither the order nor the judgment itself recited that there was “no just reason for delay” as provided in Kentucky Rule of Civil Procedure (CR) 54.02.

The estate did not renew its motion to have the judgment altered nor did it otherwise object to the trial court’s order. On appeal, however, it contends that

the Circuit Court obviously erred in dismissing the entire claim, when the motion brought by the Estate was for a partial summary judgment. Faye’s counsel, the Estate’s counsel, and the Circuit Court Judge, all conceded in the oral arguments at the hearing held on January 12, 2007, that the entire case should not have been dismissed and other issues remained for further litigation. Unfortunately, when the Order was entered it was again listed as a total dismissal of the claim.

As the Court of Appeals observed with respect to this assertion by the estate, when the trial court entered its order denying the estate’s motion to alter or amend, the parties’ and the court’s expectation appears to have been that the Court of Appeals would address the Ed-wardJones account issue and would then remand for additional proceedings concerning the household property. Unfortunately, although CR 54.02 allows in certain circumstances for an appeal in a multi-claim action from a partial judgment disposing of less than all the claims, that rule requires that the partial judgment recite both that the judgment is “final” and that “there is no just reason for delay.” Watson v. Best Financial Services, Inc., 245 S.W.3d 722 (Ky.2008). Absent those certifications, the rule is not invoked. The judgment here did not certify that “there was no just reason for delay,” and thus we are confronted with a situation in which the judgment the estate recommended to the court and acquiesced in is now challenged by the estate, essentially, as having been interlocutory and non-appealable.

Although we are not unsympathetic to the estate’s plight, given that all involved apparently expected that the “household items” portion of the estate’s claim would be addressed after this appeal, the hard fact is that it was the estate’s responsibility to ensure that the judgment was in the proper form to invoke CR 54.02. Signer v. Arnold, 436 S.W.2d 493 (Ky.1969). Not only did the estate fail to advise the trial court of the proper form of a partial judgment pursuant to CR 54.02, but it suggested and acquiesced in the improper form the court employed. The estate will not be heard on appeal to claim that it is entitled to relief from its own mistake in the trial court. The Court of Appeals did not err, therefore, by refusing to grant relief on this ground.

THE APPEAL BY LILA FAYE SPENCER

Turning now to Faye’s appeal, she maintains that the EdwardJones account was a survivorship account, which, upon Charles’s death, became entirely hers. She argued before the trial court that the account was governed by the Multiple Party Accounts provisions of KRS Chapter 391. One of those provisions, KRS 391.315, provides in pertinent part that

[s]ums remaining on deposit at the death of a party to a joint account belong to the surviving party or parties to the account as against the estate of the decedent unless there is clear and convincing written evidence of a different intention at the time the account is created.

Faye claimed, and the trial court agreed, that this provision applies to the Edward-Jones brokerage account and accordingly that the account belonged entirely to Faye. The Court of Appeals rejected Faye’s argument, however, and ruled instead that the Multiple Party Accounts provisions of KRS Chapter 391 do not apply to brokerage accounts. The Court then proceeded to rule that the joint EdwardJones account was, as a matter of common law, to be deemed a tenancy in common, with Faye’s half of the account remaining hers at Charles’s death, and Charles’s half passing to his estate. On appeal, Faye maintains that the EdwardJones account does indeed come within the Multiple Party Account provisions of KRS Chapter 391 and, further, that even apart from the statutory presumptions applicable to “multi party accounts,” the EdwardJones account was a survivorship account. Although we agree with the Court of Appeals that the Multiple Party Account provisions of KRS Chapter 391 do not apply to brokerage accounts and thus that the trial court erred when it found a statutory basis for summary judgment, we agree with Faye that the Court of Appeals overstepped its role when it in effect crafted its own summary judgment in the face of a material factual dispute.

I. Brokerage Accounts Are Not Governed By the Multiple Party Account Provisions of KRS Chapter 391.

As noted above, KRS 391.315 provides that the surviving party to a joint account owns the sums remaining on deposit as against the estate of the decedent absent clear and convincing written evidence of a contrary intent. The statute thus creates a rebuttable presumption that a qualifying “joint account” is a survivorship account. The scope of this joint-account presumption, and in particular whether it applies to brokerage accounts, is a matter of first impression for this Court.

We may begin our consideration of the question by reiterating that our goal in construing any statute is to give effect to the intent of the General Assembly. We derive that intent, if at all possible, from the language the General Assembly chose, either as defined by the General Assembly or as generally understood in the context of the matter under consideration. Osborne v. Commonwealth, 185 S.W.3d 645 (Ky.2006). We presume, of course, that the General Assembly intended for -the statute to be construed as a whole, for all of its parts to have meaning, and for it to harmonize -with related statutes. Hall v. Hospitality Resources, Inc., 276 S.W.3d 775 (Ky.2008); Lewis v. Jackson Energy Cooperative Corporation, 189 S.W.3d 87 (Ky.2005). We also presume that the General Assembly did not intend an absurd statute or an unconstitutional one. Layne v. Newberg, 841 S.W.2d 181 (Ky.1992). Only if the statute is ambiguous, however, or otherwise frustrates a plain reading, do we resort to extrinsic aids such as the statute’s legislative history or the canons of construction. MPM Financial Group, Inc. v. Morton, 289 S.W.3d 193 (Ky.2009); Stephenson v. Woodward, 182 S.W.3d 162 (Ky.2005). On the contrary, if a plain reading of the statute yields a reasonable legislative intent, then that reading is decisive and must be given effect. Osborne v. Commonwealth, supra.

KRS 391.315 was originally enacted in 1976 as part of H.B. 98. In pertinent part, that Bill was based upon Article VI of the Uniform Probate Code, as promulgated by the National Conference of Commissioners of Uniform State Laws in 1969. Article VI addressed “Non-probate Transfers,” ie., transfers of a decedent’s assets outside the probate system, and was a response to the burgeoning interest during the 1960s in probate avoidance devices, or “will substitutes,” such as the revocable inter vivo trust. William M. McGovern, Jr., Nonprobate Transfers Under The Revised Uniform Probate Code, 55 Alb. L.Rev. 1829 (1992) (McGovern). Article VI comprised two parts, a part devoted to “Multiple Party Accounts” and a part consisting of a single statutory section addressing more generally written “Provisions Relating to Effect of Death.” These parts are now codified in Kentucky respectively at KRS 391.300-891.855 and KRS 391.360. The Multiple Party Accounts provisions validate as non-testamentary three types of will substitute: the joint account, the Tot-ten trust, and the payable-on-death (POD) account. KRS 391.315, KRS 391.325. KRS 391.360 validates as non-testamentary certain other written instruments, such as insurance policies and pension plans, providing for the disposition of property upon the owner’s death.

KRS 391.300 provides definitions for several of the key statutory terms. A “joint account” is defined as “an account payable on request to one (1) or more of two (2) or more parties whether or not mention is made of any right of survivor-ship.” KRS 391.300(4). An “account,” in turn, is defined as “a contract of deposit of funds between a depositor and a financial institution, and includes a checking account, savings account, certificate of deposit, share account and other like arrangement.” KRS 391.300(1). A “financial institution,” finally, is defined as “any organization authorized to do business under state or federal laws relating to financial institutions, including, without limitation, banks and trust companies, savings banks, building and loan associations, savings and loan companies or associations, and credit unions.” KRS 391.300(3).

Construing these definitions, the Court of Appeals ruled that brokerage firms, such as EdwardJones, are not sufficiently bank-like to be deemed “financial institutions,” and that brokerage accounts, or securities accounts, such as the Spenc-ers’ joint account, do not fit comfortably within the concept of a “deposit of funds” and thus do not qualify as “accounts” for statutory purposes. Given that the Ed-wardJones account did not come within the KRS 391.315 presumption of survivorship, its ownership upon Charles’s death was thus a matter of common law. Faye argues that the residuary phrases in the definitions of “financial institution” and “account,” i.e., the defining of “financial institution” as being “without limitation” to the examples listed in the statute, and the inclusion of “other like arrangement” in the definition of “account,” indicate the General Assembly’s intent that those definitions be construed broadly and that thus construed they embrace brokerage firms and brokerage accounts.

Like the Court of Appeals, most of the other courts that have addressed this issue have construed identical or similar definitions as not applying to securities or to brokerage accounts. deKallos v. Weis, 941 S.W.2d 630 (Mo.App.1997); Ashe v. Hurt, 117 Idaho 266, 787 P.2d 252 (1990); In re Palmer, 145 Wash.App. 249, 187 P.3d 758 (2008); Berg v. D.D.M., 603 N.W.2d 361 (Minn.App.1999); Estate of Reed, 681 A.2d 460 (Me.1996); Union National Bank of Texas v. Ornelas-Gutierrez, 772 F.Supp. 962 (1991). As Faye points out, however, the Supreme Court of Pennsylvania has reached the opposite conclusion and has held that the residuary phrases in the definitions of “financial institution” and “account” cast a net wide enough to bring in brokerage firms and brokerage accounts. Deutsch, Larrimore & Farnish, P.C. v. Johnson, 577 Pa. 637, 848 A.2d 137 (2004). In Ashe, too, the Supreme Court of Idaho left open the possibility that a sufficiently bank-like brokerage firm might come within the statute. To the extent, however, that the definitions’ residuary phrases can thus be thought to render the definitions ambiguous, we are persuaded that the ambiguity must be resolved as the Court of Appeals resolved it, so as to exclude the EdwardJones account.

This conclusion follows from related acts by our General Assembly. To place those acts in context, we may observe that Article VI of the Uniform Probate Code as promulgated in 1969 was perceived, at least, as not applying to securities and security accounts. The failure of the uniform act to address securities drew a certain amount of critical commentary. See, e.g., Diane C. Amado, Uniform Probate Code Section 6-201: A Proposal to Include Stocks and Mutual Funds, 72 Cornell L.Rev. 397 (1987); Richard V. Wellman, Transfer-cm-Death Securities Registration: A Neto Title Form, 21 Ga. L.Rev. 789 (1987). That and other criticism led the National Conference of Commissioners on Uniform State Laws to approve, in 1989, a revised version of Article VI. The new version retains the two parts of the original version, although with modifications to the “Multiple Party Accounts” provisions, and incorporates a new third part, referred to as the “Uniform TOD [transfer-on-death] Security Registration Act.” Ronald R. Volkmer, Legislative Bill 250: The New Nonpro-bate Transfers Article of the Nebraska Probate Code, 27 Creighton L.Rev. 239 (1993); McGovern, supra.

The Kentucky General Assembly has not adopted the 1989 revisions of parts one and two of Article VI. In 1998, however, in H.B. 314 our General Assembly did adopt the Uniform TOD Security Registration Act, which has been codified at KRS 292.6501-292.6512. According to the “Prefatory Note” accompanying the revised Article VI,

The purpose of Part 3 ... is to allow the owner of securities to register the title in transfer-on-death (TOD) form. Mutual fund shares and accounts maintained by brokers and others to reflect a customer’s holdings of securities (so-called “street accounts”) are also covered. The legislation enables an issuer, transfer agent, broker, or other such intermediary to transfer the securities directly to the designated transferee on the owner’s death. Thus TOD registration achieves for securities a certain parity with existing TOD and pay-on-death (POD) facilities for bank deposits and other assets passing at death outside the probate process.
The TOD registration under this part is designed to give the owner of securities who wishes to arrange for a nonprobate transfer at death an alternative to the frequently troublesome joint tenancy form of title.

Uniform Probate Code, Article VI, Prefatory Note (1989 rev.).

Explaining the separate treatment of securities and securities accounts apart from the bank and bank-like accounts addressed in the “Multiple Party Accounts” provisions, the UPC drafters observe that traditionally the default rules for life-time ownership in the two areas have differed, with securities more like real estate in that “the values are typically large and the transactions relatively infrequent, which is why the legal regime requires concurrence of all concurrent owners for transfers affecting such assets.” Id. Multi-party bank accounts, on the other hand, typically facilitate frequent small transactions and thus usually “allow any one cotenant to consume or transfer account balances.” Id. The drafters acknowledged that this “distinction between bank accounts and securities has begun to crumble,” id., as banks increasingly offer large-value investment accounts such as certificates of deposit, and brokerage firms increasingly render securities subject to small, recurrent transactions through cash management and money market accounts. Nevertheless, “even though new forms of contract have rendered the boundaries between securities and bank accounts less firm, the distinction seems intuitively correct for statutory default rules.” Id. In the securities area, the drafters believed, those rules were “unambiguous,” and it was not the purpose of part three of the 1989 revision to alter them. On the contrary, “[t]he sole purpose of the present statute is to facilitate a nonprobate TOD mechanism as an option for [securities] owners.” Id.

Although the commentary to the Uniform Probate Code is not to be attributed to the General Assembly, the adoption of part three of Article VI makes it clear that the General Assembly did not intend the “Multiple Party Accounts” provisions to apply to securities and brokerage accounts since otherwise the adoption of part three of the 1989 UPC would have been redundant and superfluous. Also in 1998, in H.B. 165, the General Assembly amended KRS 391.360, to include as nontestamenta-ry “[a] written provision for a nonprobate transfer on death in a[ ] ... certified or uncertified security account agreement.” This change, too, would be meaningless if securities accounts were already included in the Multiple Party Account provisions. We presume, of course, that the General Assembly did not intend for its 1998 acts to be meaningless, and so conclude that the Court of Appeals was correct when it held that the KRS 391.315 presumption of right of survivorship did not apply to the Spencers’ joint EdwardJones account.

II. The Court Of Appeals’ Alternative Summary Judgment Was Premature.

The conclusion that KRS 391.315 does not apply to the EdwardJones account removed the basis for the trial court’s award of summary judgment to Faye. Having determined that neither party presented a valid ground for summary judgment, the Court of Appeals should have, at that point, remanded the matter to the trial court for additional proceedings. Instead, relying on Saylor v. Saylor, supra, the Court of Appeals ruled that because the EdwardJones account had been opened in the form of “Charles F. Spencer & L. Faye Spencer”, as opposed to “Charles F. Spencer or L. Faye Spencer,” it must, as a matter of common law, be deemed a tenancy in common and so divided equally between Faye and the estate. This is a theory of the case that was not developed in, or ruled upon by, the trial court, and in particular it is a theory the factual basis for which the parties have had no opportunity to address. It is true that in Saylor the former Court of Appeals held that a joint account in the conjunctive (“and”) was rebuttably presumed to indicate a tenancy in common, whereas a joint account in the disjunctive (“or”) was re-buttably presumed to indicate a joint tenancy with the right of survivorship. The crucial word here, however, is “rebutt-ably.” In the absence of evidence of a contrary intent, the presumptions provide rules of decision. Where there is contrary evidence, however, a question of fact may require disposition by the fact finder, or, if the evidence of a contrary intent is clear beyond dispute, a ruling to that effect may be required by the court.

Faye has not had an opportunity to rebut the presumption the Court of Appeals imposed on her and to prove that the EdwardJones account was intended to be a survivorship account. It does not appear from the record, moreover, that it would be impossible for her to do so. At one of the preliminary hearings, counsel for Faye stated that the EdwardJones account representative who had opened the joint account for them was available to testify concerning the account. Furthermore, Faye has attached to one of her briefs monthly account statements which identify the account as one with survivorship. This is enough of an evidentiary showing to overcome the summary judgment the Court of Appeals imposed, and even if it were not, a remand would still be necessary to give Faye an opportunity to develop such a showing. The Court of Appeals’ attempt to fashion an alternative ground for summary judgment exceeded its role and was erroneous.

CONCLUSION

In sum, neither the estate nor Faye was entitled to the summary judgments they sought from the trial court. The estate was not entitled to summary judgment because the ante-nuptial agreement upon which it relied did not foreclose gifts from Charles to Faye. Further, while the nature of Charles’s gift to Faye will be determined on remand, the ante-nuptial agreement’s requirement that the giver’s intention be clearly memorialized was satisfied by Charles’s Letter of Authorization creating the joint EdwardJones account, notwithstanding the fact that the Letter was not attached to the ante-nuptial agreement. Faye was not entitled to summary judgment because the statutory presumption on which she relied — that “joint accounts” under KRS 391.315 include the right of survivorship — does not apply to brokerage accounts such as the Edward-Jones account at issue here. Because neither party was entitled to summary judgment, the dispute over the ownership of the EdwardJones account should have been remanded to the trial court for additional proceedings. The Court of Appeals’ attempt to resolve the dispute in the absence of an adequately developed record by ordering summary judgment on an alternative ground was erroneous.

Accordingly, in the appeal by the estate of Charles Spencer, 2008-SC-000196, we affirm, and in the appeal by Lila Faye Spencer, 2008-SC-000191, we affirm in part and reverse in part the Opinion of the Court of Appeals. We, further, remand the matter to the McCracken Circuit Court for additional proceedings consistent with this opinion.

All sitting. All concur.

      . The rule does not apply, moreover, where there are not multiple claims but rather a single claim with multiple elements of relief. General Acquisition, Inc. v. GenCorp, Inc., 23 F.3d 1022 (6th Cir.1994). We need not decide, however, whether the estate's complaint presented a single claim or multiple claims, because even if CR 54 could have been invoked, the trial court's judgment did not invoke it.

      . The Multiple Party Accounts provisions are KRS 391.300-391.355.