author: RITA W. GRUBER, Judge.

text:
    2009 Ark. App. 336
    Harold CRANE, Appellant, v. Melissa TALIAFERRO, Appellee.
    No. CA 08-1216.
    Court of Appeals of Arkansas.
    April 29, 2009.
    Rehearing Denied May 27, 2009.
    Jerry D. Patterson, Marshall, for appellant.
    Helen Rice Grinder, Conway, for appel-lee.
   RITA W. GRUBER, Judge.

liThe question before us is whether appellant Harold Crane and appellee Melissa Taliaferro are legally married for purposes of Arkansas law. The Searcy County Circuit Court found that the parties were not married and therefore dismissed appellant’s complaint for divorce for lack of subject-matter jurisdiction. Appellant contends that a common-law marriage exists between the parties and that the circuit court erred in finding otherwise. We find no error and affirm the circuit court’s order dismissing appellant’s complaint.

I. Facts

Appellant and appellee met in either 1981 or 1982 in Texas while appellee was completing her residency after graduation from medical school. In 1982 they moved to Leslie, Arkansas, where they both continue to live, and appellee set up the Leslie Medical Center. In April 1984, the parties were married in a ceremony at the home of appellee’s |2parents in Mount Pleasant, Texas. Neither of the parties resided in Texas at this time. They did not obtain a marriage license or certificate of marriage in either Texas or Arkansas. At a hearing on appellee’s motion to dismiss, appellee testified that their decision not to obtain a license was purposeful under the belief that their marriage was a contractual arrangement and “the government cannot interfere with the right to contract.” Appellant testified that they did not obtain a license because it is a “God given right for a man and a woman to get married, without asking the government.”

In 1984, after the ceremony, appellee accepted an offer from a doctor in Texas, Dr. Sessions, to enter into a six-month apprenticeship in alternative medicine. Appellee testified that she stipulated in the contract that she would not move to Texas because Dr. Sessions was concerned about revealing his methods to someone who might compete with him. She maintained her residence in Leslie and lived in Dr. Sessions’s basement in Texas during the six-month apprenticeship. She returned to Leslie after the apprenticeship and continued her practice in Leslie.

During appellee’s testimony, her voter-registration card for Searcy County dated October 1984 was introduced, indicating that her residence was Leslie and that she had been a resident of Leslie for two years. Her tax returns for the years 2003, 2005, 2006, and 2007 were also introduced, in which appellee filed as a single person with no dependents. She testified that appellant prepared her returns. Appellant never filed any returns for himself.

| -¡This case arose from an amended complaint for divorce filed by appellant on April 3, 2008. To establish jurisdiction, he alleged that the parties had been residents of Searcy County for more than six months and that the parties were lawfully married in Mount Pleasant, Texas, on April 14, 1982. Appellee filed a motion to dismiss the complaint for lack of subject-matter jurisdiction, alleging that the parties had never been, nor intended to be, lawfully married. She alleged the following: no certificate of marriage was filed in the State of Texas, Arkansas does not recognize common-law marriages, and the elements for a valid common-law marriage in Texas were not present in this case. The circuit court held a hearing, took testimony and other evidence, and entered an order granting appellee’s motion to dismiss, finding “that there is no basis for which this Court can find that a common-law marriage existed between [the parties]” and dismissing the case for lack of jurisdiction. The court noted in its order that a marriage ceremony was conducted but that the basis for the ceremony was to legitimize the marriage in the eyes of God and not in the eyes of the government. The court further found that there never was, and never could be, a valid marriage under the laws of the State of Texas because the parties were not residents of the State of Texas while holding themselves out to be husband and wife.

II. Standard of Review

We review a circuit court’s findings of fact from a bench tidal for clear error, giving due regard to the opportunity of the circuit court to judge the credibility of the witnesses. See Ark. R. Civ. P. 52(a); see also Neal v. Hollingsworth, 338 Ark. 251, 992 S.W.2d 771 (1999). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. 338 Ark. at 261, 992 S.W.2d at 776.

III. Validity of Common-Law Marriage

Appellant’s first point on appeal is that the circuit court erred as a matter of law in determining that he and appellee did not have a valid common-law marriage under Texas law. He argues that they were married in a ceremony in 1984 and lived together as husband and wife from 1984 until they separated in 2008. We turn to the applicable law.

Under Arkansas law, marriages that “would be valid by the laws of the state or country in which the marriages were consummated and in which the ‘parties then actually resided shall be valid in all courts in this state.” Ark.Code Ann. § 9-ll-107(a) (Repl.2008) (emphasis added). It is undisputed that no legal document of marriage — either an Arkansas marriage license or a Texas certificate of marriage — exists. Further, common-law marriages may not be created by law in Arkansas, although our courts do recognize marriages contracted by law in other states. Brissett v. Sykes, 313 Ark. 515, 517, 855 S.W.2d 330, 332 (1993). So, did a common-law marriage exist between the parties under Texas law? “A party seeking to establish the validity of a common law marriage must show a substantial relationship of long duration in the common law marriage state.” Id. (citing Standridge v. Standridge, 298 Ark. 494, 769 S.W.2d 12 (1989)).

At the time the parties were married in 1984, proof of a common-law marriage under | .jTexas law required “1) an agreement presently to be married; 2) living together in this state as husband and wife; and 3) holding each other out to the public in this state as husband and wife.” Texas Employers’ Ins. Ass’n v. Borum, 834 S.W.2d 395, 399 (Tex.Ct.App.1992) (emphasis in original). The court indicated that the highlighted language in sections (2) and (3) precluded proof of a common-law marriage “when the acts occurred in a state other than Texas.” Id. The court in Borum affirmed an order granting summary judgment finding that no common-law marriage existed because all of the evidence supporting the alleged common-law marriage occurred in Kentucky, not Texas. Like Arkansas, Kentucky did not recognize common-law marriage.

Turning to the facts in this case, there was no evidence presented that the parties lived together in Texas after 1982, much less after the ceremony in 1984. The ceremony was held at the home of appellee’s parents in Texas; however, both appellee and appellant lived in Leslie, Arkansas, at the time. The only evidence that either party spent time in Texas after the ceremony was the testimony regarding appel-lee’s apprenticeship with Dr. Sessions. Moreover, it was undisputed that appellee maintained her residence in Leslie during the apprenticeship and stayed in Dr. Sessions’s basement during the six-month period. While appellant argues in his brief that he and appellee cohabitated in Texas for six months shortly after their marriage ceremony, his citation is to the argument of appellee’s counsel at the hearing that, during appellee’s “internship” with Dr. Sessions, appellant “came and went” and “they lived together in the basement as husband and wife.” However, |fiwe find no testimony or other evidence to suggest that appellant was ever in Texas during the apprenticeship, much less living with appellee as husband and wife. Counsel’s argument is not evidence. Accordingly, we hold the circuit court did not clearly err in finding that no common-law marriage existed between the parties and, therefore, in dismissing the complaint for lack of subject-matter jurisdiction.

IV Judicial Estoppel

For his second point on appeal, appellant asserts that appellee’s contention that she was never legally married to appellant violates the doctrine of judicial es-toppel by inconsistent positions. We decline to address this argument as appellant neither raised this issue nor obtained a ruling in circuit court, and we will not consider arguments raised for the first time on appeal or when a party has failed to obtain a ruling from the circuit court. See, e.g., Beverly Enterprises-Arkansas, Inc. v. Thomas, 370 Ark. 310, 316, 259 S.W.3d 445, 449 (2007) (holding failure to argue elements or obtain ruling on judicial estoppel precluded review).

Affirmed.

PITTMAN and ROBBINS, JJ„ agree.


source: Caselaw Access Project

author: JOSEPHINE LINKER HART, Judge.

license: Public Domain

text:
    2009 Ark. App. 330
    NORTH LITTLE ROCK SCHOOL DISTRICT and Risk Management Resources, Appellants, v. Cindy LYBARGER and Second Injury Fund, Appellees.
    No. CA 08-1149.
    Court of Appeals of Arkansas.
    April 29, 2009.
    Rehearing Denied June 3, 2009.

      Worley, Wood & Parrish, P.A., by: Jarrod S. Parrish, Little Rock, for appellants.
    Brazil, Adlong, Winningham & Mickel, PLC, by: Thomas W. Mickel, Conway, for appellees.
   JOSEPHINE LINKER HART, Judge.

| Appellants North Little Rock School District and its insurance carrier appeal from the Arkansas Workers’ Compensation Commission’s finding that ap-pellee Cindy Lybarger sustained a com-pensable injury during the course of her employment. Particularly, appellants argue that Lybarger was not performing employment services at the time of her injury. We conclude that substantial evidence supports the Commission’s decision, and accordingly, we affirm.

For the purposes of workers’ compensation, a compensable injury must “aris[e] out of and in the course of employment.” Ark.Code Ann. § ll-9-102(4)(A)(i) (Supp.2007). A compensable injury, however, does not include an “[ijnjury which was inflicted upon the employee at a time when employment services were not being performed.” Ark.Code Ann. |2§ 11-9-102(4)(B)(iii). The same test is used to determine whether an employee was “in the course of employment” and performing “employment services.” Texarkana Sch. Dist. v. Conner, 373 Ark. 372, 284 S.W.3d 57 (2008). Specifically, the test is whether the injury occurred within the time and space boundaries of the employment when the employee was carrying out the employer’s purpose or advancing the employer’s interest, directly or indirectly. Id. On appeal, we affirm the Commission’s decision if it is supported by substantial evidence. Id.

As Lybarger testified at the hearing, she is employed as a teacher’s aide assigned to Boone Park Elementary. On September 27, 2007, she was required to attend a staff development day at the Lakewood campus, a few miles away. She arrived at 8:00 a.m., and the meeting was adjourned around 11:00 a.m. She and others were “given a lunchtime, and then we had to report back to our building [Boone Park Elementary] for meetings after lunch.” She noted that she “normally just eat[s] in her car.” While en route to the parking lot to her car, she exited the building where the meeting was held and was entering another building when she broke her right leg while climbing stairs. She stated that she felt she was “on duty” when she fell, because she was “still on school property” and had not yet reached her car. When asked about the obligations she had for the district, she stated that she was an employee of the school district, and “if there had been any children, if there had been any parents, if there had been anything that had been asked of me, I mean, it’s possible, you know, to still be there.” She agreed that it was “[k]ind of like how the teacher or employee [¡¡of the school district assisted” her after she fell. She also testified that when she was going up the stairs, she was carrying her purse and handouts from the meetings that morning.

On cross-examination, she acknowledged that when she was released to go to lunch, it was her free time. Further, she stated that the meeting was over at Lakewood and that she had to go to Boone Park after an hour to work. She also acknowledged that there were no students or parents present, only teachers and aides. On redirect, she stated that at either campus she “would perform the same thing if ... I was approached.” She also agreed that if she had not been at the staff development day, she would not have had any handouts in her hand.

Before the administrative law judge (ALJ), the parties litigated whether Ly-barger was performing employment services at the time of her injury. The ALJ found Lybarger to be an “extremely credible witness” and concluded that Lybarger was performing employment services. Specifically, the ALJ noted that Lybarger “was at a school campus miles away from where she normally conducted her job duties.” The ALJ found that Lybarger “would never have been on the campus of Lakewood Junior High but for the staff development seminar which her employer required her to attend.” The ALJ observed that the “mere fact that [Lybarger] was at Lakewood Campus fulfilling her job requirements leads this examiner to find that she was in fact directly advancing her employer’s interest,” and that Lybarger “credibly testified she never made it to her ear to go to lunch.” The ALJ found that the “very fact that [Lybarger] was on a foreign campus attending a work required seminar that she was 14directly performing an employment service.” The ALJ also noted that had Lybarger “reached her car and proceeded to go eat lunch, there could be doubt as to whether employment services were being performed,” but that in this ease it was “clear that employment services were being performed.... ” Further, the ALJ found that Lybarger “had never began her lunch break while on the foreign campus.” The Commission adopted the ALJ’s opinion.

On appeal, appellants argue that Lybar-ger was not performing employment services, because she was not advancing her employer’s interest or doing anything required by her employer when she fell. Appellants assert that she was merely on her employer’s premises on her lunch break and free to do as she pleased. Appellant contends that the “going and coming” rule precludes an award of benefits in this case.

We recently noted that the “going and coming” rule ordinarily precluded recovery for an injury sustained while the employee was going to or returning from his place of employment, because an employee is generally not acting within the course of employment when traveling to and from the workplace. CV’s Family Foods v. Caverly, 2009 Ark. App. 114, 304 S.W.3d 671. The ultimate question, however, is whether the injury occurred within the time and space boundaries of the employment, when the employee was carrying out the employer’s purpose or advancing the employer’s interest directly or indirectly. Id.

Substantial evidence supports the Commission’s conclusion that Lybarger was performing employment services. Initially, we note that Lybarger testified that she was attending a seminar at the Lakewood campus, and that because she was still on school |Bgrounds she was on duty and that her obligation as a district employee on school grounds was to provide assistance if there had been anything asked of her. See Texarkana Sch. Dist. v. Conner, 373 Ark. 372, 284 S.W.3d 57 (2008) (affirming award of benefits in an employment services case where the Arkansas Supreme Court noted that the Commission credited the school employee’s testimony that he was on call once he returned to the school district’s premises, even if he was on lunch break); Foster v. Express Personnel Services, 93 Ark.App. 496, 222 S.W.3d 218 (2006) (reversing a denial of benefits after finding that the employee was performing employment services by virtue of the fact that she was on the job once she was on the premises). She also testified that when she was going up the stairs, she was carrying material from the meetings and would not have had any handouts in her hand if she had not been at the staff development day. Further, while Lybarger acknowledged that she was released to go to lunch and that it was her free time, she also testified that after lunch, she had to report back to Boone Park Elementary, a campus a few miles away. Her purpose in going to Boone Park Elementary, the campus to which she was assigned, was to attend additional meetings.

Thus, Lybarger was released to lunch, but at the direction of her employer, she was required during that time to exit the building and travel from one campus where she was performing employment services to another campus where she would perform employment services. We have previously held that driving from a seminar to the employee’s regular job site constituted employment services. See Jones v. Xtreme Pizza, 97 Ark.App. 206, 245 S.W.3d 670 (2006) (reversing for an award of benefits where claimant was injured while driving from a training seminar to his regular place of employment, thus advancing his employer’s interests and constituting employment services).

Moreover, in order to report to Boone Park Elementary, Lybarger first had to walk through and exit the Lakewood buildings. Thus, by walking through the Lakewood campus, she was carrying out the employer’s purpose and advancing her employer’s interest in that she was leaving Lakewood, preparatory to reporting to Boone Park Elementary. That there also may have been a non-employment-related purpose in walking through the campus does not alter the conclusion that she was also performing employment services. See CV’s Family Foods, supra (finding that an employee was performing employment services when he was injured, as he was not only walking to his car after closing the store, but also was watching a fellow employee to ensure her safety).

Furthermore, we do not know, in fact, that Lybarger was even going to have lunch. She had to leave the building before she could go to another location. One might surmise that she might have intended to pick up something to eat on her way to Boone Park Elementary and eat it in the car. Or she might have intended to drive directly to Boone Park Elementary. It would now be sheer speculation to assume that she might or might not have deviated from driving to Boone Park Elementary to conduct activities that were not employment services, such as eating lunch.

Accordingly, we affirm the Commission’s finding that Lybarger was performing 17employment services.

Affirmed.

ROBBINS, KINARD, and BAKER, JJ., agree.

VAUGHT, C.J., and BROWN, J., dissent.

Again our court wrestles with the definition of “employment services.” In another employment-services case, Texarkana School District v. Conner, 100 Ark.App. 100, 264 S.W.3d 579 (2007), the Workers’ Compensation Commission awarded benefits to a claimant who the employer claimed was not performing employment services. In Conner, the majority of our court, citing divergent authority, reversed the Commission. In my dissenting opinion in Conner, I voted to affirm, noting that the Commission had ample choices for authority because our cases and the supreme court’s cases on this issue were wide and diverse. Fui’ther, under our standard of review, I noted that we had to affirm if the Commission appropriately analyzed the facts and relied on relevant authority. Later, our supreme court properly reversed our court, but on a completely different analysis altogether. See Texarkana School Dist. v. Conner, 373 Ark. 372, 284 S.W.3d 57 (2008).

In the instant case, our majority has affirmed the Commission’s decision that relied upon inapplicable authority. Ms. Lybarger did not travel as part of her normal duties (she is a teacher’s aide); therefore, the traveling-salesman exception to the “going-and-coming rule” as enunciated in Olsten Kimberly Quality Care v. Pettey, 328 Ark. 381, 944 S.W.2d 524 (1997), and relied upon by the ALJ and Commission, does not apply. Our majority never mentions Pettey.

Instead, the majority goes a completely different direction, relying on a new theory and other (equally inapplicable) authority- — Jones v. Xtreme Pizza, 97 Ark.App. 206, 245 S.W.3d 670 (2006). Unlike the traveling-salesman exception of Pettey, the Jones case sets out the specific-task exception to the “going-and-coming rule.” In Jones, the claimant was traveling from one location of his job duties to another location of his job duties and was injured en route. He was not on a break. To the contrary, Ms. Lybarger had completed her duties at the middle school and was on a break, during which she was free to go home, go shopping, go to lunch, or take a nap in her car if she so chose. She was not required to return to work at the elementary school for another one-and-a-half to two hours. She was not following the instructions of her employer at the time of the accident or on a special errand for her employer. She was merely “going and coming” to work.

The case of CV’s Family Foods v. Caverly, 2009 Ark. App. 114, 304 S.W.3d 671, also fails to justify the majority’s decision in this case. There, the claimant, while walking to his | scar after work, was watching another employee walk to her car when he fell in the parking lot. The majority in Caverly affirmed the Commission’s finding that the claimant was performing employment services, because when he fell he was ensuring the safety of his employee.

In the case at bar, there is simply nothing for the Commission to hang its hat on to get around the fact that Ms. Lybarger was merely walking to her car when she fell. There are absolutely no facts demonstrating that she was performing employment services at the time of her fall. Despite the majority’s characterization of the facts, Ms. Lybarger was not “on duty” or “on call” when she fell, and there were no children or parents on the school premises for her to assist. The facts are plain and simple that Ms. Lybarger, when she fell, was on a one-and-a-half to two hour break. These facts are controlled by Hightower v. Newark Public School System, 57 Ark. App. 159, 943 S.W.2d 608 (1997). High-tower is a classic “going-and-coming” case. And, unless or until we or our supreme court abolishes this rule, it should apply.

With that in mind, I am ever aware that as I stated in my Conner dissent, we or the supreme court on review, have never reversed a Commission opinion granting benefits in an employment-services ease. Maybe there is no action an employee can take that does not benefit her employer. If so, we should say as much.

I would reverse. Further, I am authorized to state that Judge Brown joins in this dissent.

      . The dissent remarks that, in contrast to the Commission, "the majority goes a completely different direction, relying on a new theory and other ... authority — Jones v. Xtreme Pizza, 97 Ark.App. 206, 245 S.W.3d 670 (2006),” noting further that we do not, as does the Commission, rely on Olsten Kimberly Quality Care v. Pettey, 328 Ark. 381, 944 S.W.2d 524 (1997). We have not relied on a new theory. In reaching its holding, the Jones court considered the facts found in Pettey. 97 Ark.App. at 211, 245 S.W.3d at 674. We, in turn, applied Jones to the case at bar. Thus, this case and Jones fall within a line of precedent that includes Pettey. Further, the dissent mis-characterizes the facts. This is not a "going and coming” case. Rather, at the direction of her employer, Lybarger was leaving a campus where she was performing employment services to report to her usual job site to perform employment services. Thus, as indicated by Jones, her walking through the building was also an employment service.


author: Justice CUNNINGHAM.

text:
    Ben SPURLOCK, Appellant, v. Tate BEGLEY, Appellee.
    No. 2009-SC-000050-DG.
    Supreme Court of Kentucky.
    April 22, 2010.

      John T. Aubrey, Manchester, KY, Counsel for Appellant.
    Phillip Lewis, Hyden, KY, Counsel for Appellee.
   Opinion of the Court by

Justice CUNNINGHAM.

Robert Griffin formed Caribou Coal Mining Processing, LLC, a limited liability company, for the purpose of acquiring and operating a coal tipple in Leslie County, Kentucky. After its formation, Appellee, Tate Begley, was approached by Griffin and asked to invest in the coal business. Begley borrowed $75,000.00 from a local bank and loaned it to Caribou Coal. On November 10, 2004, Caribou Coal executed a promissory note, payable to Begley, which stated that the loan amount was to be paid in full by June 1, 2005. No payments were made on the note, despite Griffin’s promises to make payments. Eventually, the due date passed on the note without any repayment.

Appellant, Ben Spurlock, had an ownership interest with two other individuals in a company known as Up The Greek Mining, LLC. Spurlock exchanged with Griffin a 25% ownership interest in Up The Creek Mining for a 25% ownership interest in Caribou Coal. Begley and Spurlock attended a meeting together at Caribou Coal’s offices in Manchester, Kentucky. Begley testified, which Spurlock ultimately denied, that Spurlock suggested to Griffin that Begley be given a 25% ownership interest in Caribou Coal in order to pay off the $75,000.00 debt. Griffin apparently agreed to this proposal and orally announced his intention to give Begley the 25% interest. This agreement was never materialized in writing. No further actions were taken by Griffin to memorialize the agreement.

Spurlock came to Begley’s office on February 22, 2006 and proposed to purchase Begley’s interest in Caribou Coal. There was some discrepancy at trial concerning exactly what Spurlock was attempting to purchase. According to Begley’s testimony, an agreement was reached whereby Spurlock would purchase Begley’s promissory note, effectively replacing him as owner of a 25% interest in Caribou Coal. Spurlock testified, however, that he was not purchasing the note, but was instead purchasing the 25% interest in Caribou Coal. A bare-bones note and agreement was produced by Begley, which provided as follows:

70000.00 will be paid by Ben Spurlock 200 Dawahare Dr. Hazard, KY 41701 by May 01, 2006. This transaction is for 25 percent ownership of Caribou Coal Processing LLC. If the note is not paid by the due date then an additional charge for what ever interest incurred by Tate Begley will be added to the balance. This is in reference of the promissory note signed by Caribou Coal November 10, 2004 copy of note will be included in the agreement.

The two parties signed and notarized the agreement that day and Spurlock paid Begley $5,000.00 earnest money, with the balance to be paid pursuant to the note.

Spurlock testified that shortly after making the initial $5,000.00 payment to Begley, he telephoned Griffin and indicated that he was purchasing Begley’s 25% interest in Caribou Coal. Griffin responded that Begley did not have a 25% interest and only held a promissory note. When confronted with this information, Spurlock contacted Begley and informed him that he would not pay the outstanding debt.

Caribou Coal eventually became insolvent and ceased all operations. In March 2007, Begley filed a complaint in the Leslie Circuit Court seeking a judgment on the promissory note and agreement. Spurlock denied liability, asserting the defense of failure of consideration based on Begley’s fraudulent misrepresentation of owning a 25% interest in Caribou Coal. In addition, Spurlock filed a counterclaim to recoup the $5,000.00 down payment made to Begley. A jury trial was conducted in August 2007. The case was submitted to the jury upon a single interrogatory, which provided:

Do you believe from the evidence heard in this case that Robert Griffith [sic] transferred to Tate Begley at [sic] 25% ownership interest in the company, Car-abou [sic] Coal Processing, LLC?

The jury found in the affirmative, and the trial court subsequently denied Spur-lock’s motion for judgment notwithstanding the verdict. In a 2-1 decision, the Court of Appeals affirmed the decision of the Leslie Circuit Court, stating that ownership of a limited liability company interest is not synonymous with being a member of such a company, and that the trial court did not err in its instructions. On October 21, 2009, this Court granted discretionary review.

For the following reasons, we reverse the decision of the Court of Appeals and hold that Begley failed, as a matter of law, to produce sufficient evidence that he possessed an ownership interest in Caribou Coal Processing, LLC.

We note at the outset that limited liability companies are creatures of statute, and their organizational and structural parameters are outlined in KRS Chapter 275. Patmon v. Hobbs, 280 S.W.3d 589, 593 (Ky.App.2009). As the issues presented in this case are purely matters of statutory interpretation, they are subject to de novo review by this Court. Revenue Cabinet v. Hubbard, 37 S.W.3d 717, 719 (Ky.2000).

Though the brief, one-paragraph contract between Spurlock and Begley purports to transfer the latter’s “25 percent ownership interest” in Caribou Coal Processing LLC, Chapter 275 does not speak in terms of “owners” of a limited liability company, but instead such people are referred to as “members.” See Thomas E. Rutledge and Lady E. Booth, The Limited Liability Company Act: Understanding Kentucky’s New Organizatimal Option, 83 Ky. L.J. KRS 275.275 governs admission to membership in a limited liability company. That statute provides:

(1) Subject to subsection (2) of this section, a person may become a member in a limited liability company:
(a) In the case of the person acquiring a limited liability company interest directly from a limited liability company, upon compliance with an operating agreement or, if an operating agreement does not so provide in writing, upon the written consent of all members; and
(b) In the case of an assignee of the limited liability company interest, as provided in KRS 275.255 and 275.265.
(2) The effective time of admission of a member to a limited liability company shall be the later of:
(a) The date the limited liability company is formed; or
(b) The time provided in the operating agreement or, if no time is provided, when the person’s admission is reflected in the records of the limited liability company.

From the evidence introduced at trial, it is clear that Begley was not a “member” pursuant to KRS 275.275. As no evidence of an operating agreement of Caribou Coal was introduced, it was necessary for Begley to introduce evidence that all of the members of the company had consented in writing to his membership. We find no such evidence in the record before us. At most, it appears that Begley had a limited liability company interest that he received in exchange for his tendering $75,000.00 to Caribou Coal. KRS 275.195(1). This was, according to testimony introduced at trial, assigned to him by Griffin at the meeting in Manchester.

Pursuant to KRS 275.195(1) and KRS 275.255(l)(a), a member may assign, in whole or in part, the economic rights (the limited liability company interest) associated with a membership interest. It, thus, appears that the membership interest in a limited liability company includes both economic rights and also rights to participate in the management of the business. Rutledge, 88 Ky. L.J. at 33. If the non-transferring members do not approve of the transfer of a membership interest pursuant to KRS 275.265(1), the interest is divided into its economic rights (which are transferred) and its governance rights (which are not transferred). See KRS 275.255(l)(d) (“Until the assignee of a limited liability company interest becomes a member pursuant to KRS 275.265(1), the assignor shall continue to be a member. .... ”). The implication is that if a majority of the members do approve, a transfer of a membership interest will convey both the economic and the governance rights. This, then, leads to the conclusion that simply acquiring economic rights does not, in and of itself, equate to “ownership” or “membership” in the limited liability company.

Therefore, even assuming that the testimony is correct, Begley still did not receive an “ownership interest” in Caribou Coal. As detailed above, no evidence was introduced to show that Begley ever followed the requirements of KRS 275.265(1) to become a “member” of Caribou Coal. To the contrary, it appears that Begley has, at the most, an economic interest in Caribou Coal. Stated differently, there was a substantial failure of proof on the part of Begley to show that he, in fact, ever had an “ownership interest” in Caribou Coal.

According to the testimony of Spurlock, he was under the impression that he was to purchase a 25% ownership interest in Caribou Coal so Up The Creek Mining could sell coal through Caribou’s coal tipple. It was Begley who drafted the agreement to sell his “25 percent ownership of Caribou Coal Processing LLC.” Courts in this state have long held that “when a contract is susceptible of two meanings, it will be construed strongest against the party who drafted and prepared it.” B. Perini & Sons v. Southern Ry. Co., 239 S.W.2d 964, 966 (Ky.1951) (internal citation omitted). In the context of limited liability companies, “ownership” and “membership” are synonymous. Rutledge, supra. Begley had no ownership interest to convey to Spurlock and, as such, there is a failure of consideration. O.P. Link Handle Co. v. Wright, 429 S.W.2d 842, 845 (Ky.1968).

In addition, the jury instructions prepared by the trial court were incorrect as a matter of law. An instruction’s function is “only to state what the jury must believe from the evidence ... in order to return a verdict in favor of the party who bears the burden of proof.” Howard v. Commonwealth, 618 S.W.2d 177, 178 (Ky.1981) (quoting Webster v. Commonwealth, 508 S.W.2d 33, 36 (Ky.1974)). The purpose of instructions is to provide guidance for the jury by submitting the applicable law relating to the issues in the controversy. Shewmaker v. Richeson, 344 S.W.2d 802, 806 (Ky.1961). The jury instructions in this case, however, failed to correctly state the law. Given the technical and specialized meaning of the terms “owner” and “member” in the context of limited liability companies, the tendered instruction was legally deficient.

At trial, Spurlock offered the following proposed jury instruction:

1. You are instructed that a member (owner) of a Kentucky limited liability company means a person who has been admitted to membership as set forth within the limited liability company’s operating agreement or, if an operating agreement does not so provide in writing, upon the written consent of all members. (KRS 275.015(13) and KRS 275.275).
INTERROGATORY NO. I: From the evidence at the trial of this action, on February 22, 2006, was Tate Begley the owner of a 25% interest in Caribou Coal, LLC?

We believe that the instructions offered by Spurlock “properly and intelligibly state the law.” Howard, 618 S.W.2d at 178. As Senior Judge Henry noted in his dissent: “It makes little sense to ask a jury whether there has been a transfer of an ownership interest in a limited liability company without informing it about the requirements to transfer such an interest.” We agree. Therefore, we hold that the jury instructions were erroneous as a matter of law.

Based upon the foregoing, we reverse the decision of the Court of Appeals and hold that Begley failed, as a matter of law, to produce sufficient evidence that he possessed an ownership interest in Caribou Coal Processing, LLC. In addition, we find error in the jury instructions and, accordingly, hold that Spurlock was entitled to a judgment notwithstanding the verdict.

All sitting. All concur.


author: Justice SCHRODER.

text:
    William BUCK, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2008-SC-000896-DG.
    Supreme Court of Kentucky.
    April 22, 2010.

      Samuel N. Potter, Assistant Public Advocate, Department of Public Advocacy, Frankfort, KY, Counsel for Appellant.
    Jack Conway, Attorney General, James Coleman Shackelford, Assistant Attorney General, Frankfort, KY, Counsel for Ap-pellee.
   Opinion of the Court by

Justice SCHRODER.

In this case, we are called upon to evaluate this Court’s holding in Hyatt v. Commonwealth, 72 S.W.3d 566 (Ky.2002), in light of 2006 amendments to the Kentucky Sex Offender Registration Act (SORA). After considering the arguments of the parties and the relevant case law, we continue to hold that SORA does not violate the Ex Post Facto Clause of the United States Constitution or the Kentucky Constitution.

I. BACKGROUND

In 1994, Kentucky first enacted SORA, also known as “Megan’s Law.” It required those convicted of sex offenses who were not incarcerated to register with their local probation and parole office, and to continue to register for a period of ten years after their final discharge from confinement, probation, parole, or any other form of supervised release. Failure to comply was a Class A misdemeanor. SORA also criminalized knowingly providing “false, misleading, or incomplete information” as a Class A misdemeanor. However, SORA’s registration requirements applied only “to persons convicted after the effective date” of the Act. 1994 Ky. Acts ch. 392, § 6 (uncodified).

In 1998, the General Assembly amended SORA to provide for risk assessments for sex offenders. Those designated high risk were required to register for life, while others were required to register for ten years after their final discharge. The provisions were made applicable to “persons individually sentenced or incarcerated after the effective date of this Act.” 1998 Ky. Acts ch. 606, § 199 (uncodified). Some provisions became effective July 15, 1998, while the remainder went into effect January 15,1999. Id. § 200.

Effective July 2000, the General Assembly again amended SORA, eliminating the need for a risk assessment, and basing the length of registration on the offense committed. The amendments also increased the penalty for failing to register — and for providing false, misleading, or incomplete information — from a Class A misdemeanor to a Class D felony. The 2000 bill stated that it “shall apply to all persons who, after the effective date of this Act, are required ... to become registrants.... ” 2000 Ky. Acts ch. 401, § 37 (uncodified).

The General Assembly approved another set of SORA amendments in 2006. The 2006 amendments increased the registration period for non-lifetime registrants from ten years to twenty years. The bill also amended the statutes criminalizing failure to register or providing false, misleading, or incomplete information:

(11) Any person required to register under this section who knowingly violates any of the provisions of this section or prior law is guilty of a Class D felony for the first offense and a Class C felony for each subsequent offense.
(12) Any person required to register under this section or prior law who knowingly provides false, misleading, or incomplete information is guilty of a Class D felony for the first offense and a Class C felony for each subsequent offense.

2006 Ky. Acts ch. 182, § 6 (codified at KRS 17.510(11) and (12)). The amended statute enhanced the penalty for a second or subsequent offense to a Class C felony, and criminalized the violation of “prior law.” The same 2006 bill also placed residency restrictions on all registrants.

In 1985, Appellant William Buck was convicted of first-degree sexual abuse. He received a probated three-year sentence. But in 1987, Buck was convicted of two additional, unrelated felonies (second-degree assault and second-degree burglary). He was sentenced to serve 23 years for all three convictions. In 1997, Buck was granted parole. Because the 1994 version of SORA applied only prospectively, Buck was not subject to SORA’s registration requirements.

In February 2000, Buck violated the conditions of his parole, and was returned to prison. Because Buck then became a person incarcerated after the effective date of the 1998 amendments, those provisions applied to him, and he was required to register upon release. In addition, because Buck was still incarcerated when the 2000 amendments went into effect, he became subject to those provisions as well. In March 2001, Buck again received parole. In April 2002, Buck again violated the terms of his parole, and he returned to prison. In August 2005, Buck was once more granted parole.

On October 27, 2006 (after the effective date of SORA’s 2006 amendments), the Newport, Kentucky police checked Buck’s registered address, and found that he was not living there. Buck was subsequently indicted for failure to register as a sexual offender (second or subsequent offense), a Class C felony as a result of the 2006 SORA amendments. Buck filed a motion to bar prosecution based on the ex post facto clauses of the United States and Kentucky constitutions. The circuit court denied the motion. As a result, Buck entered a conditional guilty plea to an amended charge of failure to register as a sexual offender (first offense), a Class D felony. Buck reserved the right to appeal the circuit court’s denial of his motion to bar prosecution based on the ex post facto clauses. The Court of Appeals affirmed the ruling of the circuit court, and this Court then granted discretionary review.

II. ANALYSIS

Both the United States Constitution and the Kentucky Constitution prohibit ex post facto laws. U.S. Const, art. I, § 10; Ky. Const. § 19(1). An ex post facto law is any law, which criminalizes an act that was innocent when done, aggravates or increases the punishment for a crime as compared to the punishment when the crime was committed, or alters the rules of evidence to require less or different proof in order to convict than what was necessary when the crime was committed. Purvis v. Commonwealth, 14 S.W.3d 21, 23 (Ky.2000) (citing Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L.Ed. 648 (1798)). The key inquiry is whether a retrospective law is punitive. Martin v. Chandler, 122 S.W.3d 540, 547 (Ky.2003) (citing California Dept. of Corr. v. Morales, 514 U.S. 499, 506 n. 3, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995)). See also Commonwealth v. Baker, 295 S.W.3d 437, 442 (Ky.2009), cert. denied, — U.S. -, 130 S.Ct. 1738, 176 L.Ed.2d 213 (2010).

To determine whether a retrospective law is punitive, “we must determine whether the legislature intended to establish a civil, nonpunitive, regulatory scheme, or whether the legislature intended to impose punishment.” Baker, 295 S.W.3d at 442 (citing Smith v. Doe, 538 U.S. 84, 92, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003)). If the legislature intended to impose punishment, then the law is punitive. Id. Where the “legislature intended to enact a civil, nonpunitive, regulatory scheme, then we must determine whether the statutory scheme is so punitive either in purpose or effect as to negate the State’s intention to deem it civil.” Id. (internal quotations and citations omitted).

In determining whether a civil, nonpuni-tive, regulatory scheme is punitive in either purpose or effect, this Court and the U.S. Supreme Court have applied five of the factors discussed in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963). These factors are “whether, in its necessary operation, the regulatory scheme” (1) has been regarded in our history and traditions as punishment, (2) promotes the traditional aims of punishment, (3) imposes an affirmative disability or restraint, (4) has a rational connection to a nonpunitive purpose, or (5) is excessive with respect to the nonpunitive purpose. Baker, 295 S.W.3d at 443-44 (citing Doe, 538 U.S. at 97, 123 S.Ct. 1140). These factors provide a “useful framework,” but are “neither exhaustive nor dispositive.” Doe, 538 U.S. at 97, 123 S.Ct. 1140.

This Court, in Hyatt v. Commonwealth, addressed an ex post facto challenge to SORA and its 1998 and 2000 amendments. 72 S.W.3d 566. The Court held that registration requirements do not amount to an ex post facto punishment, because Hyatt had been unable to show that he was disadvantaged by being required to register as a sex offender. Id. at 571.

Though Hyatt rested its decision on whether registration requirements “disadvantage” the offender, the Court went on to discuss many of the Mendozar-Martinez factors. Hyatt noted that “the designation of sexual predator is not a sentence or a punishment but simply a status resulting from a conviction of a sex crime.” Id. at 572. The Court also stated that registration does “not constitute a disability or restraint.” Id.

The Kentucky 1998 and 2000 Sex Offender Registration Statutes are directly related to the nonpunitive goals of protecting the safety of the public. The statutes in question do not amount to a separate punishment based on past crimes.... Any potential punishment arising from the violation of [SORA] is totally prospective and is not punishment for past criminal behavior.

Id.

The next year, the United States Supreme Court upheld the Alaska Sex Offender Registration Act against an ex post facto challenge. Smith, 538 U.S. 84, 128 S.Ct. 1140. The Court concluded that the Alaska legislature did not intend the act to be punitive. Id. at 96, 123 S.Ct. 1140. And, applying the Mendoza-Martinez factors, the Court held that the act was not so punitive in purpose or effect as to negate the legislature’s intent to deem it civil. Id. at 105, 123 S.Ct. 1140. Therefore, the registration act was not punitive, and retroactive application did not violate the Ex Post Facto Clause. Id. at 105-06, 123 S.Ct. 1140.

Recently, this Court held in Commonwealth v. Baker that the retroactive application of the 2006 sex offender residency restrictions violated the Ex Post Facto Clause of the United States Constitution and the Kentucky Constitution. 295 S.W.3d at 447. Relying on Hyatt and the fact that the residency restrictions were an extension of SORA, this Court concluded that the General Assembly did not intend the residency restrictions to be punitive. Id. at 443. However, applying the Mendoza-Martinez factors, the majority concluded that Kentucky’s residency restrictions were so punitive in effect as to negate any intention to deem them civil. Id. at 447. Therefore, the restrictions were punitive, and could not be applied retroactively. Id.

With these principles in mind, we now address the specifics of this case. Buck essentially makes two ex post facto arguments: (1) that the various enhancements to the degree of offense for failing to register constitute ex post facto punishment, and (2) that post-Hyatt amendments have changed SORA to such a degree that the entire sex offender registration scheme is now punitive, and therefore subject to the ex post facto clauses.

The original, 1994 version of SORA did not apply to Buck, because it applied only to those convicted after the effective date of the act. 1994 Ky. Acts ch. 392, § 6 (uncodified). Therefore, when Buck was first paroled in 1997, he was not required to register. The 1998 version of SORA was made applicable to those sentenced or incarcerated for a sex crime after the effective date of the act. 1998 Ky. Acts ch. 606, § 199 (uncodified). As a result, Buck became subject to SORA when he returned to prison in February 2000.

Effective July 2000, SORA was amended to increase the penalty for failure to register from a Class A misdemeanor to a Class D felony. 2000 Ky. Acts ch. 401, § 16(11) and (12) (codified at KRS 17.510(11) and (12)). The 2000 amendments applied to persons who “after the effective date of this Act, are required ... to become regis-trants_” Id. § 37 (uncodified). In addition, the 2000 version of SORA required registration upon “release by the court, the parole board, the cabinet, or any detention facility.” Id. § 16(2) (codified at KRS 17.510(2)).

Because Buck was released after the 2000 amendments became effective, he was subject to the Class D felony penalty for failure to register. See Peterson v. Shake, 120 S.W.3d 707, 709-10 (Ky.2003) (registrant released in 1999 not subject to 2000 version of SORA because 2000 version applies only to those who are required “to become registrants” after the effective date, but 2000 version applies to those who did not secure release prior to its effective date, distinguishing Martinez v. Commonwealth, 72 S.W.3d 581 (Ky.2002)).

Buck argues that the 2006 amendment to SORA, enhancing the penalty for a second or subsequent offense of failing to register, constitutes ex post facto punishment when applied to him. Although Buck ultimately pleaded guilty to an amended charge of a first offense (a Class D felony) we note that “the constitutional proscription against ex post facto laws does not extend to enhancing punishment for an offense committed after the effective date of a criminal statute by reason of status as a prior offender.” Botkin v. Commonwealth 890 S.W.2d 292, 293 (Ky.1994) (citing Gryger v. Burke, 334 U.S. 728, 68 S.Ct. 1256, 92 L.Ed. 1683 (1948)) (emphasis original).

In addition, Buck argues that the 2000 amendment, which increased failure to register (first offense) from a Class A misdemeanor to a Class D felony, constitutes ex post facto punishment when applied to him. We cannot agree. “Any potential punishment arising from the violation of [SORA] is totally prospective and is not punishment for past criminal behavior.” Hyatt, 72 S.W.3d at 572. See also Doe, 538 U.S. at 101-02, 123 S.Ct. 1140 (“A sex offender who fails to comply with the reporting requirement may be subjected to a criminal prosecution for that failure, but any prosecution is a proceeding separate from the individual’s original offense.”). While a sex offender’s past conduct is the reason he or she is required to register, the failure to register occurs in the present. An increase in the degree of the offense for failing to register would only present an ex post facto issue if the act of failing to register occurred prior to the effective date of the amendment.

This also highlights an important difference between SORA and the sex offender residency restrictions at issue in Baker. In Baker, this Court concluded that KRS 17.545 (the sex offender residency restriction statute) was punitive in effect, taking into account the Mendoza-Martinez factors. 295 S.W.3d at 447. We stated that the statute could, among other things, force registrants to move from their homes, restrict registrants’ access to social programs, and prevent registrants from making a permanent home. Id. at 445-47. These issues were particularly relevant to the conclusions that KRS 17.545 imposed an affirmative disability or restraint, and was excessive with respect to its nonpuni-tive purpose.

Baker dealt with the consequences of compliance with residency restrictions, and concluded that compliance was punitive in effect. By contrast, SORA requires an intervening, independent failure or omission (i.e., failure to register or providing false, misleading, or incomplete registration information) before it becomes punitive. When a statute is not expressly punitive, the relevant question for ex post facto purposes is what the statute requires — not the consequences of noncompliance.

Analyzing SORA and its 2006 amendments in light of what it requires from the registrant, we continue to believe that SORA is a remedial measure with a rational connection to the nonpunitive goal of protection of public safety, and we see no reason to depart from our holding in Hyatt. Buck has demonstrated nothing in the 2006 amendments to SORA drastic enough to render SORA punitive.

Buck points to the fact that the 2006 bill amending SORA was entitled “AN ACT relating to sex offenses and the punishment thereof.” In Baker, which dealt with another provision of the same 2006 bill, this Court rejected the argument that this title alone rendered the entire bill punitive. 295 S.W.3d at 443. Buck points to the increased length of registration (10 years increased to 20 years for non-lifetime registrants), but has not demonstrated that this increased registration period is being applied retroactively.

Buck also attempts to distinguish Hyatt and Doe based on the fact that the registrants in those cases were challenging the registration system, but had not yet been subject to criminal liability. This only underscores our holding in Hyatt that criminal liability for failure to register is prospective and not a punishment for past crimes. The fact that Buck, unlike the registrants in Hyatt and Doe, has actually been convicted of failing to register does not change the fact that that criminal prosecution is the result of a new crime, separate from the original sex offense. We find nothing in the 2006 amendments that requires us to depart from Hyatt.

III. CONCLUSION

The enhancements to the degree of the offense of failing to register as a sex offender do not constitute ex post facto punishment as applied to Appellant William Buck. In addition, the 2006 amendments to SORA have not changed the character of the statute to the point of rendering Kentucky’s sex offender registration scheme punitive. Therefore, Buck’s prosecution was not barred by the Ex Post Facto Clause of the United States Constitution or the Kentucky Constitution. The judgment of the Court of Appeals is hereby affirmed.

All sitting. All concur.

      . 1994 Ky. Acts ch. 392 (codified at KRS 17.500-17.540).

      . 1998 Ky. Acts ch. 606, §§ 138-139.

      . 2000 Ky. Acts ch. 401, §§ 15-17. The same bill also required the Kentucky State Police to create and maintain a website to display registrant information. Id. § 19.

      . 2000 Ky. Acts ch. 401, § 15 (codified at KRS 17.500) defines "registrant” as any person over eighteen, or any youthful offender, who has committed a sex crime or a criminal offense against a minor (as defined in the Act), or who is a sexually violent predator. The definition also includes a person required to register under the law of another state, or a person convicted of a crime in another state that would require registration had it been committed in Kentucky.

      .2006 Ky. Acts ch. 182, §§ 5-8.

      . 2006 Ky. Acts ch. 182, § 3. This Court held in Commonwealth v. Baker that those residency restrictions could not be applied to those who committed their crimes before the effective date of the act. 295 S.W.3d 437 (Ky.2009), cert. denied, 130 S.Ct. 1738 (2010).

      . Buck had apparently registered as living at an abandoned building in Kenton County.

      . The record is not entirely clear as to why Buck was initially charged with a second or subsequent offense. However, it appears from the video record that Buck had been previously convicted for failure to register.

      . Though the appellants in Hyatt had been classified as high-risk sex offenders under the 1998 law, the Hyatt opinion also made reference to the 2000 amendments. See Hyatt, 72 S.W.3d at 572.

      . Hyatt relied on the “disadvantage” language from Weaver v. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981). While Baker also made reference to this language, other cases have identified the "disadvantage” language as dicta. See Morales, 514 U.S. at 506 n. 3, 115 S.Ct. 1597; Cecil v. Commonwealth, 297 S.W.3d 12, 22-23 (Ky.2009); Martin, 122 S.W.3d at 547. The key inquiry is clearly whether the law at issue is punitive. Martin, 122 S.W.3d at 547; see also Baker, 295 S.W.3d at 442.

      . The issue of whether Buck was incarcerated for his sex crime or for his non-sexual felonies only is not before this Court, and there is no evidence in the record on this point.

      . Unlike the appellant in Peterson, Buck was incarcerated when the 2000 amendments took effect, and he was not required to become a registrant until after that time. Therefore, the issue of what, if any, effect the 2006 amendments have on our holding in Peterson is not properly before this Court.