author: TAYLOR, Chief Judge:

text:
    Michael F. DUDGEON, Jr., Appellant, v. Laurie Kidd DUDGEON, Appellee.
    Nos. 2009-CA-000522-ME, 2009-CA-001013-ME.
    Court of Appeals of Kentucky.
    July 23, 2010.

      Michael L. Hawkins, Frankfort, ICY, for appellant.
    ICevin P. Fox, Frankfort, KY, for appel-lee.
    Before TAYLOR, Chief Judge; CLAYTON, Judge; WHITE, Senior Judge.

      . Senior Judge Edwin M. White sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes (KRS) 21.580.

   OPINION

TAYLOR, Chief Judge:

Michael F. Dudgeon, Jr., brings Appeal No. 2009-CA-000522-ME from a January 7, 2009, Order made final by Order entered March 2, 2009, and Appeal No. 2009-CA-001013-ME from a May 22, 2009, Order of the Franklin Circuit Court, Family Court Division, (family court) denying motions to modify child support. We vacate and remand Appeal Nos. 2009-CA-000522-ME and 2009-CA-001013-ME.

The facts of this case invite our Court to address an increasingly relevant and onerous dilemma — the proper standard for modification of child support where each parent enjoys nearly equal physical time with the children, each parent earns nearly equal income, and each parent pays nearly equal amounts of other expenses related to the children. We hold that these three specific circumstances are of an “extraordinary nature” rendering the child support guidelines inapplicable under Kentucky Revised Statutes (KRS) 403.21l(3)(g) and, thereby, mandating application of the standard for modification of child support found in KRS 403.213(1).

Michael and Laurie Kidd Dudgeon were married in June 1996. Two children were born of the marriage. Subsequently, the parties’ marriage was dissolved by a decree of dissolution entered in the family court on April 11, 2006. The decree incorporated a settlement agreement wherein the parties agreed to share joint custody of their children with neither party being designated “primary custodian.” The parties agreed the children would spend “three weekday nights” per week with Laurie, “two weekday nights” per week with Michael, and alternate weekends between the parents. The parties further agreed that Michael would pay Laurie child support of $950 per month.

In 2005, the year the parties separated, Laurie earned approximately $48,153, and Michael earned approximately $99,784. Based upon these figures, Laurie’s income consisted of 32.5 percent of the parties’ combined income, while Michael’s income consisted of 67.5 percent.

On September 2, 2008, Michael filed a motion seeking to modify child support and to “codify” the parties’ actual time-sharing schedule with the children. Therein, Michael asserted that Laurie’s income since the divorce had substantially increased resulting in the current child support award being unfair and unconscionable. Michael also specifically requested that the time-sharing arrangement be “codified” by the court to reflect the actual time the children were spending with each parent.

Following a hearing, the family court denied Michael’s motion to modify his child support obligation. The court found that Laurie’s annual income increased to $96,000 and that Michael’s annual income increased to $114,300. However, the court denied the motion because it believed the increase in Laurie’s annual income did not equate to a 15 percent change in the amount of child support owed as required by KRS 403.213(2) to support a modification. As a result, the family court specifically found that Michael failed to demonstrate a material change in the circumstances that is both substantial and continuing per KRS 403.213(1). As to the timesharing arrangement, the court concluded that the actual time the children were spending with each parent only “changed slightly” from 2005. On March 2, 2009, Michael filed Appeal No. 2009-CA-000522-ME.

We observe from the record that Laurie’s annual income increased some $47,847 from her income in 2005. Thus, in 2008, Laurie earned 45.6 percent ($96,000) of the parties’ combined annual income, and Michael earned 54.4 percent ($114,300). As to timesharing, Laurie enjoyed physical custody of the children approximately 53.6 percent of the time in a two-week period, and Michael enjoyed physical custody of the children about 46.4 percent of the time in a two-week period. The difference in the amount of custodial time between the parties was attributed to Laurie having the children one extra night in a two-week period. Essentially, the parties’ custodial arrangement resulted in a nearly equal division of physical time between Laurie and Michael, the actual difference constituting a mere night every two weeks. The evidence also established that each party, likewise, almost equally shared other expenses associated with the children.

In early May, 2009, Michael filed a Renewed Motion to Modify Child Support on the premise that Laurie’s annual income had increased again to $123,384. This represented an increase of $75,231 in her annual income from that of 2005 and an increase of $27,384 from 2008. By order entered May 22, 2009, the family court summarily denied the motion, and on May 27, 2009, Michael filed Appeal No. 2009-CA-001013-ME. The appeals were subsequently consolidated for review by this Court.

APPEAL NO. 2009-CA000522-ME AND APPEAL NO. 2009-CA-001013-ME

In both appeals, Michael challenges the family court’s denials of his motions to modify child support. The material facts of this case are undisputed. Resolution of these appeals centers upon a question of law and specifically the proper interpretation of KRS 408.218(1) and (2), which set forth the criteria for modification of child support orders. KRS 403.213 reads, in part:

(1) The Kentucky child support guidelines may be used by the parent, custodian, or agency substantially contributing to the support of the child as the basis for periodic updates of child support obligations and for modification of child support orders for health care. The provisions of any decree respecting child support may be modified only as to installments accruing subsequent to the filing of the motion for modification and only upon a showing of a material change in circumstances that is substantial and continuing.
(2) Application of the Kentucky child support guidelines to the circumstances of the parties at the time of the filing of a motion or petition for modification of the child support order which results in equal to or greater than a fifteen percent (15%) change in the amount of support due per month shall be rebuttably presumed to be a material change in circumstances. Application which results in less than a fifteen percent (15%) change in the amount of support due per month shall be rebutt-ably presumed not to be a material change in circumstances. For the one (1) year period immediately following enactment of this statute, the ' presumption of material change shall be a twenty-five percent (25%) change in the amount of child support due rather than the fifteen percent (15%) stated above.

KRS 403.213(1) and (2).

Under KRS 403.213(1), a child support order may be modified “upon a showing of material change in circumstances that is substantial and continuing.” And, KRS 403.213(2) sets forth two separate presumptions pertaining to modification of child support. KRS 403.213(2) initially creates a rebuttable presumption that a material change in circumstances exists if the amount of child support owed per month would be altered at least 15 percent as calculated under the child support guidelines in KRS 403.212. Conversely, subsection (2) of KRS 403.213 also creates a rebuttable presumption that no material change in circumstances exists if the amount of child support owed per month would not be altered at least 15 percent as calculated under the child support guidelines.

In relying upon KRS 403.213(1) and (2) to deny Michael’s motions to modify child support, the family court concluded that Michael failed to demonstrate a 15 percent change in child support owed per month and, thus, had not demonstrated a material change in circumstances. In so concluding, we think the family court erroneously applied the rebuttable presumption in KRS 403.213(2). Our reasoning is as follows.

The child support guidelines are codified in KRS 403.212. The guidelines were originally developed “based on the theory that a child should receive as child support the same proportion of parental income that he or she would have received had the parties lived together as an intact, two-parent family.” 16 Louise E. Graham and James E. Keller, Kentucky Practice-Domestic Relations Law § 24:15 (3d ed.2008). To calculate child support under the guidelines of KRS 403.212, the combined monthly adjusted parental gross income is located on the child support guideline table and then the corresponding base monthly child support obligation is, likewise, identified. This base monthly child support obligation is then allocated to each parent in proportion to that parent’s respective percentage of the aforementioned combined monthly adjusted parental gross income. Thereafter, the amount owing by the noncustodial parent is the proper monthly child support obligation. The guidelines generally assume that one parent is the custodial parent and that the other parent is the noncustodial parent.

In our case, the child support guidelines of KRS 403.212 are inapplicable for two independent reasons. First, Michael and Laurie’s combined monthly adjusted parental gross income in 2008 and 2009 ($17,-525 and $19,807, respectively) exceeds the uppermost level of the child support guidelines ($15,000). We believe the guidelines are inapplicable by relying upon KRS 403.211(3).

KRS 403.211(3) provides that the child support guidelines in KRS 403.212 shall not be utilized where it would be unjust or inappropriate and sets forth criteria for the court to consider:

(a) A child’s extraordinary medical or dental needs;
(b) A child’s extraordinary educational, job training, or special needs;
(c) Either parent’s own extraordinary needs, such as medical expenses;
(d) The independent financial resources, if any, of the child or children;
(e) Combined monthly adjusted parental gross income in excess of the Kentucky child support guidelines;
(f) The parents of the child, having demonstrated knowledge of the amount of child support established by the Kentucky child support guidelines, have agreed to child support different from the guideline amount. However, no such agreement shall be the basis of any deviation if public assistance is being paid on behalf of a child under the provisions of Part D of Title IV of the Federal Social Security Act; and
(g) Any similar factor of an extraordinary nature specifically identified by the court which would make application of the guidelines inappropriate.

KRS 403.211(3) (footnote omitted). Thus, under KRS 403.211(3)(e), application of the child support guidelines is inappropriate because Michael and Laurie’s combined monthly adjusted parental gross income exceeds the upper level of the guidelines.

Second, and perhaps more importantly, are the parties’ particular familial circumstances — nearly equal physical time with the children, nearly equal income, and nearly equal expenditures for child-related expenses. For the reasons that follow, we hold that these three particular circumstances are of “an extraordinary nature” rendering application of the guidelines inappropriate and unjust under KRS 403.211(3)(g). See Downey v. Rogers, 847 S.W.2d 63 (Ky.App.1993).

The child support guidelines found in KRS 403.212 “do not contemplate ... a shared custody arrangement” between parents. Plattner v. Plattner, 228 S.W.3d 577, 579 (Ky.App.2007). Rather, the child support guidelines were designed so that child support would be paid by the noncustodial parent to the custodial parent. It must be recognized that the guidelines were intended to apply to a traditional post-dissolution familial model where one parent (usually the mother) was the primary custodial parent and earned substantially less income than the noncustodial parent (usually the father). By contrast, the modern complexities of family life have resulted in myriad and unique familial circumstances. Strict application of the child support guidelines contained in KRS 403.212 to these myriad and unique familial circumstances often leads to unjust results. To avoid such, our courts must be fully cognizant of and give credence to these myriad and unique familial circumstances when considering child support. KRS 403.211(3) provides our Courts with such a mechanism.

Under the unique familial circumstances of this case, Michael and Laurie earn nearly equal incomes and, concomitantly, exercise nearly equal physical custody of the children. Also, they share almost equally other expenses associated with the children. These three particular circumstances are of an extraordinary nature under KRS 403.211(3)(g). Indeed, it is manifestly unjust and inequitable to require Michael to pay Laurie $950 per month in child support when each earns nearly equal income, exercises nearly equal physical custody of the children, and shares nearly equal expenses associated with the children. It is beyond cavil that such inequitable result was ever intended by the General Assembly. While a determination of extraordinary circumstances is generally within the discretion of the circuit court, the circumstances of this case mandate such a result and serve as an apotheosis of extraordinary circumstances as contemplated under KRS 403.211(3)(g). See KRS 403.211(4). Thus, in this case, we conclude that application of the child support guidelines would be unjust per KRS 403.211(3)(g).

As the child support guidelines in KRS 403.212 are inapplicable, it was error for the family court to deny Michael’s motions to modify child support based upon the rebuttable presumption of KRS 403.213(2). As hereinbefore stated, KRS 403.213(2) creates two separate rebuttable presumptions pertaining to modification of child support. If the amount of child support would increase or decrease at least 15 percent upon application of the child support guidelines, KRS 403.213(2) establishes a rebuttable presumption that a material change in circumstances exists, thus supporting modification of support. If there is less than a 15 percent increase or decrease per application of the child support guidelines, KRS 403.213(2) establishes a rebuttable presumption of no material change in circumstances. Under either rebuttable presumption, KRS 403.213(2) requires that the increase or decrease of 15 percent in the amount of child support owed is to be calculated per the child support guidelines. Where application of the child support guidelines is unjust or inappropriate by operation of KRS 403.211(3), it is axiomatic that the rebutta-ble presumptions contained in KRS 403.213(2) are, likewise, inapplicable. Additionally, without application of the child support guidelines, the calculation of a 15 percent increase or decrease would lack precise quantification.

Accordingly, we interpret the rebuttable presumptions found in KRS 403.213(2) as inapplicable in modification of child support cases where application of the child support guidelines have been determined unjust or inappropriate under KRS 403.211(3). In these cases, the proper standard for modification of child support is found in KRS 403.213(1) and simply requires a “showing of a material change in circumstances that is substantial and continuing.”

In sum, we conclude that the child support guidelines are inapplicable for two independent reasons — (1) Michael and Laurie’s combined monthly gross income exceeds the uppermost level of the child support guidelines rendering application of the guidelines inappropriate, and (2) the familial circumstances herein are of an extraordinary nature rendering application of the child support guidelines unjust. See KRS 403.211(3)(e) and (g). As the child support guidelines are inapplicable, the re-buttable presumption found in KRS 403.213(2) concerning modification of child support is, likewise, inapplicable. Hence, the proper standard for modification of child support is found in KRS 403.213(1) and is simply whether there exists a material change in circumstances that is substantial and continuing. We, thus, believe the family court erred by relying upon the rebuttable presumption found in KRS 403.213(2) as a basis for denying Michael’s motions to modify child support. Consequently, we vacate the family court’s January 7, 2009, and May 22, 2009, orders denying Michael’s motions to modify child support. Upon remand, the family court shall reconsider Michael’s motions to modify child support in accordance with KRS 403.213(1).

We view Michael’s remaining contentions of error either moot or without merit.

For the foregoing reasons, the Orders of the Franklin Circuit Court, Family Court Division, are vacated and this cause is remanded for proceedings consistent with this opinion.

ALL CONCUR.

      . The income figures are based upon the 2005 joint tax returns of Michael F. Dudgeon, Jr., and Laurie Kidd Dudgeon.

      . It is well-established that interpretation and construction of a statute is a matter of law for the Court. City of Worthington Hills v. Worthington Fire Prot. Dist., 140 S.W.3d 584 (Ky.App.2004); Kearney v. City of Simpsonville, 209 S.W.3d 483 (Ky.App.2006). And, the application of uncontroverted facts to the law is reviewed d& novo by the Court of Appeals. Keeney v. Keeney, 223 S.W.3d 843 (Ky.App.2007).

      . For purposes of determining child support, the monthly adjusted parental gross income will ordinarily be calculated by combining the "actual gross income of each parent.” See 16 Louise E. Graham and James E. Keller, Kentucky Practice-Domestic Relations Law § 24.19 (3rd ed.2008).

      . A narrow exception has been recently promulgated into the child support guidelines and is limited to "split custody” arrangements. KRS 403.212(6).

      . KRS 403.213(2) reads that ''[ajpplication of the Kentucky child support guidelines ... which results in ... a fifteen percent (15%) change....”


source: Caselaw Access Project

author: NICKELL, Judge:

license: Public Domain

text:
    Bart A. CAUDILL, Appellant, v. Kathryn L. CAUDILL, Appellee.
    No. 2009-CA-002002-ME.
    Court of Appeals of Kentucky.
    July 23, 2010.

      John T. Chafin, Prestonsburg, KY, for appellant.
    Max K. Thompson, Pikeville, KY, for appellee.
    Before NICKELL and STUMBO, Judges; WHITE, Senior Judge.

      . Senior Judge Edwin White sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes (KRS) 21.580.

   OPINION

NICKELL, Judge:

Bart A. Caudill appeals from a domestic violence order (DVO) entered by the Family Court Division of the Pike Circuit Court at the request of Kathryn L. Caudill. Bart alleges the evidence did not support entry of the DVO. After reviewing the record, the briefs and the law, we reverse and remand for entry of an order consistent with this opinion.

Bart and Kathryn were married but going through a dissolution proceeding in the Family Court Division of the Floyd Circuit Court. In August 2009, Kathryn filed a petition for a DVO in the Family Court Division of the Pike Circuit Court alleging an ongoing situation in which Bart had ignored her repeated directives to stay away from her workplace and whose verbal abuse caused her to feel very threatened. She also alleged Bart had a permit allowing him to carry a concealed weapon but she was uncertain whether it was still in effect. Following a hearing, at which both Bart and Kathryn testified, the court issued a DVO requiring Bart to “stay 1000 feet away for 90 days, exception during visitation exchange at Shoneys (sic) and children’s activities (school & sports).” The DVO expired on December 1, 2009.

Bart moved to alter, amend or vacate the DVO seeking specific findings on what the court believed constituted domestic violence and abuse. Following a hearing, the motion to alter, amend or vacate was denied, but the court clarified that domestic violence occurred when Bart pushed his way through a door. This appeal followed.

Because the DVO expired on December 1, 2009, well before the appellate record was transmitted to this Court in February of 2010, we ordered the filing of supplemental briefs on the limited issue of whether the appeal was moot. Bart argued an appeal testing the sufficiency of the evidence on which a DVO has been granted is never moot because entry of a DVO follows the alleged perpetrator forever in terms of background checks for employment purposes and volunteer work such as coaching Little League sports. Kathryn argued the appeal is obviously moot because the terms of the DVO expired without being extended and those particular terms will have no future impact. The continuing consequences of the DVO persuade us this appeal is not moot and resolution is required.

On appeal, Bart argues that neither domestic violence and abuse, nor the future likelihood of domestic violence and abuse was established. Prior to entry of a DVO, the court must find “from a preponderance of the evidence that an act or acts of domestic violence and abuse have occurred and may again occur....” KRS 403.750(1). The preponderance of the evidence standard is satisfied when sufficient evidence establishes the alleged victim was more likely than not to have been a victim of domestic violence. Baird v. Baird, 234 S.W.3d 385, 387 (Ky.App.2007). The definition of domestic violence and abuse, as expressed in KRS 403.720(1), includes “physical injury, serious physical injury, sexual abuse, assault, or the infliction of fear of imminent physical injury, serious physical injury, sexual abuse, or assault between family members.... ” The standard of review for factual determinations is whether the family court’s finding of domestic violence was clearly erroneous. CR 52.01; Reichle v. Reichle, 719 S.W.2d 442, 444 (Ky.1986). Findings are not clearly erroneous if they are supported by substantial evidence. Moore v. Asente, 110 S.W.3d 336, 354 (Ky.2003). “[I]n reviewing the decision of a trial court the test is not whether we would have decided it differently, but whether the findings of the trial judge were clearly erroneous or that he abused his discretion.” Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky.1982) (citation omitted). Abuse of discretion occurs when a court’s decision is unreasonable, unfair, arbitrary or capricious. Kuprion v. Fitzgerald, 888 S.W.2d 679, 684 (Ky.1994) (citations omitted).

While “domestic violence statutes should be construed liberally in favor of protecting victims from domestic violence and preventing future acts of domestic vio-lenee[,]” Barnett v. Wiley, 103 S.W.3d 17, 19 (Ky.2003), “the construction cannot be unreasonable.” Id. (citing Beckham v. Board of Education of Jefferson County, 873 S.W.2d 575, 577 (Ky.1994)). Furthermore, we give much deference to a decision by the family court, but we cannot countenance actions that are arbitrary, capricious or unreasonable. See Kuprion, 888 S.W.2d at 684.

With the foregoing authority in mind, we have reviewed the DVO hearing numerous times. The audio quality is poor but we have heard no testimony of “physical injury, serious physical injury, sexual abuse, assault, or the infliction of fear of imminent physical injury, serious physical injury, sexual abuse, or assault between family members” which is required by KRS 403.720(1) for a finding of domestic violence and abuse. The trial court candidly acknowledged this was not a “run of the mill” DVO case and characterized it as “marginal” at best. The court explained it was granting the DVO, but limiting it to just ninety days, because the parties needed a “cooling off period.”

Shortly after the DVO hearing, Bart asked the court to make specific findings identifying the conduct that constituted domestic violence. The court convened a second hearing, but before making findings of fact, the court asked again whether the parties were agreeable to entry of mutual restraining orders. Kathryn was not agreeable. Thereafter, the court reviewed the evidence and stated that Bart’s visits to Kathryn’s workplace may have been irritating, but they did not constitute domestic violence and they were not the basis for granting the DVO. The court went on to say there was no evidence of Bart’s threatening Kathryn at work and no proof Bart had acted inappropriately at the children’s school. The court then made clear that it had granted the DVO based on one occasion when Bart “basically pushed [Kathryn] out of the way to enter the home.”

In reviewing the evidence and the statutory definition of domestic violence and abuse, we cannot say there was substantial evidence of physical injury, serious or otherwise, sexual abuse, assault or the infliction of fear of any of the foregoing. At most, there was an unwanted touching, but that alone does not satisfy the definition of domestic violence and abuse as stated in KRS 403.720(1). Because the entry of the DVO was not supported by substantial evidence it cannot stand.

For the foregoing reasons, the DVO entered by the Pike Circuit Court is reversed and remanded with direction that all traces of the erroneously entered DVO be removed from the court record.

ALL CONCUR.

      . Kathryn is a resident of Pike County.

      . Kentucky Rules of Civil Procedure.

      . A similar inquiry was made prior to the DVO hearing.


author: ACREE, Judge:

text:
    Jared R. STEEN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2009-CA-000070-MR.
    Court of Appeals of Kentucky.
    July 30, 2010.
    Thomas M. Ransdell, Assistant Public Advocate, Frankfort, KY, for appellant.
    Jack Conway, Attorney General of Kentucky, Perry T. Ryan, Assistant Attorney General, Frankfort, KY, for appellee.
    Before ACREE and STUMBO, Judges; LAMBERT, Senior Judge.

      . Senior Judge Joseph E. Lambert sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statute (KRS) 21.580.

   OPINION

ACREE, Judge:

Appellant, Jared R. Steen, seeks reversal of the Jefferson Circuit Court’s decision denying his motion for a directed verdict. He was sentenced to five years’ imprisonment for the offense of manslaughter, and eight days for driving under the influence. Steen contends there was insufficient evidence for a reasonable juror to find him guilty. We disagree, and affirm the convictions.

On May 4, 2007, the appellant, Jared R. Steen agreed to give Robert Lyle a ride home from work at United Parcel Service. That ride ended abruptly and tragically, leaving Robert Lyle dead and Jared Steen severely injured. Robert Lyle died at the scene and Steen was rushed to the University of Louisville Hospital.

While at the hospital, two separate tests were conducted to determine Steen’s blood alcohol content. The first test was based on a blood sample taken by the University of Louisville Hospital about an hour and twenty-five minutes after the wreck. The result of the first test was a blood alcohol content level between 0.083 and 0.0899. The second test, conducted by the Kentucky State Police, was based on a sample taken about two hours and ten minutes after the wreck occurred. This test resulted in a blood alcohol content of 0.07.

Using the results of the two tests, the medical examiner, Dr. Burrows-Beekham, attempted to extrapolate what Steen’s blood alcohol content would have been at the time of the incident. In her analysis, she used three conversion numbers, because each person has a different metabolic rate of absorption, making it impossible to come up with an exact number of what the blood alcohol content would be. Using the results of the first test and two different formulas, Dr. Burrows-Beekham calculated a potential blood alcohol range between 0.1055 and 0.1199. Applying the conversion formula to the second test, Dr. Burrows-Beekham calculated Steen’s blood alcohol content to be between 0.1 and 0.11. Both of these calculations assume the alcohol in Steen’s body was fully absorbed by his body at the time of the wreck. These numbers do not reflect the possibility Jared Steen ingested the alcohol just prior to the collision actually occurring and his body actually absorbing the alcohol after the crash.

Dr. Burrows-Beekham was not able to say with a “reasonable degree of medical certainty” that Steen was within the range she predicted based on her calculations. She was not able to commit to such a range because there are several variables that could impact the actual number, such as the amount and type of food in the stomach. However, Dr. Burrows-Beck-ham stated that this was the best test that could be used, since they did not have a sample taken immediately following the collision.

The appellant’s requests for directed verdicts were denied and the Jefferson Circuit Court jury convicted Steen of manslaughter in the second degree and driving under the influence. Jared Steen was sentenced to five years’ imprisonment for the offense of manslaughter, a $1,000 fine, and eight days for driving under the influence. The five-year sentence and fine were both probated. Following the trial, the appellant properly preserved and brought an appeal on the issue of the denial of his directed verdict.

The decision to deny a motion for directed verdict is reviewed based on the standard outlined in Commonwealth v. Benham, 816 S.W.2d 186 (Ky.1991), which followed both Commonwealth v. Sawhill, 660 S.W.2d 3 (Ky.1983), and Trowel v. Commonwealth, 550 S.W.2d 530 (Ky.1977). The standard is as follows:

On appellate review, the test of a directed verdict is, if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt, only then the defendant is entitled to a directed verdict of acquittal.

Benham, 816 S.W.2d at 187.

Applying this standard we conclude that directed verdict was not warranted in this case. A reasonable juror could find the elements of manslaughter in the second degree as outlined in KRS 507.040 had been proven by the prosecution.

There is ample evidence in the record that could lead a reasonable juror to find guilt. The test results showing Steen had a blood alcohol level between 0.083 and 0.0899 an hour and twenty-five minutes and a level of 0.07 two hours and ten minutes after the crash coupled with the testimony of Dr. Burrows-Beckham provide an avenue for a juror to reach a guilty verdict. A reasonable juror could find Jared Steen’s alcohol content was as high as 0.119 because of the calculations done by Dr. Burrows-Beckham. Based on the same testimony, a juror could further find an individual with blood alcohol content above a 0.1 level was under the influence of alcohol.

When the trial court considered the directed verdict motion, it was required to include consideration of Dr. Burrows-Beckham’s testimony along with all “the evidence in the light most favorable to the prosecution[.]” Potts v. Commonwealth, 172 S.W.3d 345, 349 (Ky.2005), citing Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). After hearing the variables that could affect the blood alcohol content of an individual, a juror could still reasonably arrive at the conclusion that Jared Steen was in the range described by Dr. Burrows-Beck-ham. If a juror could find this to be true, then he or she could also reasonably conclude Steen wantonly caused the death of Robert Lyle, based on his level of intoxication.

Furthermore, the per se level of intoxication is not to be introduced in any case outside a prosecution for driving under the influence. Cormney v. Commonwealth, 943 S.W.2d 629, 634 (Ky.App.1996), citing Walden v. Commonwealth, 805 S.W.2d 102 (Ky.1991). There is no magic number for intoxication, the jury must determine based on the facts and circumstances of the case if the driver was “under the influence” sufficiently to have constituted wanton conduct. Overstreet v. Commonwealth, 522 S.W.2d 178, 179 (Ky.1975). In this case, the jury was permitted to infer from Dr. Burrows-Beckham’s testimony what effect alcohol could have on a person with a blood alcohol level around 0.1 and its conclusion was reasonable that an individual with that amount of alcohol in his system would be under the influence.

Therefore, because a reasonable juror could find the appellant guilty of second-degree manslaughter as defined in KRS 507.040, the decision of the Jefferson Circuit Court is affirmed.

ALL CONCUR.


text:
    Theresa JAIMES, Appellant, v. Michael D. THOMPSON, Appellee.
    No. 2008-CA-002355-MR.
    Court of Appeals of Kentucky.
    July 30, 2010.

      Sheila P. Hiestand, Louisville, KY, for appellant.
    William P. Swain, William B. Orberson, Louisville, KY, for appellee.
    Before ACREE, KELLER and LAMBERT, Judges.
   OPINION

ACREE, Judge:

Appellant, Theresa Jaimes, seeks reversal of the Jefferson Circuit Court’s grant of summary judgment denying her recovery for injuries sustained when she slipped and fell on property owned by the appel-lee. The appellee, Michael Thompson, did not retain control of the premises where Theresa Jaimes’ injury occurred. Therefore, he is not liable and the decision of the Jefferson Circuit Court is affirmed.

Ms. Garcia-Maldonado rented a single-family residence from appellee, Michael D. Thompson. On or about September 4, 2006, Theresa Jaimes fell while ascending the steps leading to Ms. Garcia-Maldonado’s front door. Jaimes sought to recover damages incurred as result of the fall in a negligence action against Thompson, alleging that the steps were in a defective condition. Jaimes asserts that Thompson had a duty to maintain the stairs and that he was liable to her because she was an invitee on the premises.

The circuit court granted summary judgment in Thompson’s favor finding that Thompson did not maintain complete possession and control over the steps and did not have a duty to repair the premises. Therefore, he was not liable. On appeal, this court must determine if the moving party is entitled to judgment as a matter of law and the decision of the circuit court is reviewed de novo. Miller v. Cundiff, 245 S.W.3d 786, 788 (Ky.App.2007).

When determining whether a residential landlord is liable for injuries sustained on leased property, there is a critical distinction between properties leased wholly by one tenant and properties leased by numerous tenants. When a tenant maintains complete control and possession over the premises and the landlord has no contractual or statutory obligation to repair, the landlord is only liable for “the failure to disclose known latent defects at the time the tenant leases the premises.” Carver v. Howard, 280 S.W.2d 708, 711 (Ky.App.1955). However, when a portion of the premises is retained by the landlord for the common use and benefit of numerous tenants, the landlord must exercise ordinary care to keep common areas in a reasonably safe condition. Id.

In this case, the defect was not latent. Jaimes testified she was aware of the defective step in question for two years preceding the accident during which she had periodically visited her friend, the tenant, Ms. Garcia-Maldonado. Furthermore, the entirety of the premises was leased to Ms. Garcia-Maldonado and there were no shared common areas. Thus, Thompson did not retain control over a portion of the premises for the common use of numerous tenants. Absent a contractual or statutory duty to repair, Thompson did not have a duty to repair the steps.

There is no evidence that Thompson had a duty to repair the steps. Even presuming a contractual duty contained in the lease, Thompson could only be liable for breach of the contract — not for the injury sustained by Jaimes — and recovery would be limited to the cost of the repair. See Miller, 245 S.W.3d at 788.

Jaimes cannot recover damages from Thompson for the injuries she sustained on the property regardless of her status as an invitee. The decision of the circuit court is affirmed.

ALL CONCUR.


author: PATRICIA BRECKENRIDGE, Judge.

text:
    PEOPLES BANK, Appellant, v. Stephen M. FRAZEE and Jennifer Frazee, Defendants, and H.L. Frazee, Respondent.
    No. SC 90536.
    Supreme Court of Missouri, En Banc.
    Aug. 31, 2010.

      Michael J. King, Winters & King Inc., ■ Tulsa, OK, and Richard L. Rollings Jr., Camdenton, for appellant.
    Richard L. Schnake and Brian K. Asber-ry, Neale & Newman LLP, Springfield, for defendants.
   PATRICIA BRECKENRIDGE, Judge.

A Missouri circuit court quashed registration of a foreign judgment Peoples Bank obtained in an Oklahoma district court against Missouri resident, H.L. Fra-zee. The Missouri court found that the Oklahoma court lacked personal jurisdiction over Mr. Frazee. Peoples Bank appeals. It challenges the circuit court’s assignment of the burden of proof to Peoples Bank to establish that the Oklahoma court’s jurisdiction was proper. Peoples Bank also challenges the Missouri court’s finding that the Oklahoma court lacked personal jurisdiction over Mr. Frazee because he had insufficient minimum contacts with Oklahoma.

In a proceeding to register a foreign judgment, there is the strong presumption that the rendering court had jurisdiction and entered a valid judgment, and the party asserting the invalidity of the foreign judgment, here, Mr. Frazee, has the burden of overcoming the presumption of jurisdiction and validity. Because the facts and circumstances before the Court demonstrate that Mr. Frazee established minimum contacts with Oklahoma when he guaranteed a promissory note, the Oklahoma court’s assertion of personal jurisdiction over Mr. Frazee comports with Oklahoma’s long-arm statute and the Due Process Clause of the Fourteenth Amendment of the United States Constitution. The circuit court’s judgment is reversed, and the ease is remanded.

Factual and Procedural Background

Peoples Bank is an Oklahoma banking corporation located in Tulsa. Stephen M. Frazee and Jennifer Frazee, a married couple who reside in Tulsa, borrowed money from Peoples Bank and executed a promissory note to the bank for repayment of the loan. When Stephen and Jennifer defaulted on the loan, Bill Burnett, executive vice president of Peoples Bank, met with Stephen and informed him that Peoples Bank was calling the promissory note due to the default. Stephen told Mr. Burnett that he believed his grandfather, H.L. Frazee, would help him.

At Stephen’s suggestion, Mr. Burnett telephoned Mr. Frazee, a Missouri resident who never has lived or owned property in Oklahoma, to discuss the situation. Mr. Burnett informed Mr. Frazee that Stephen and Jennifer’s note was in default, and they discussed what the bank would require. Mr. Frazee said that he wanted to talk to Stephen and Jennifer. Subsequently, Mr. Frazee called Mr. Burnett at the bank in Oklahoma and agreed to sign a guaranty of Stephen and Jennifer’s promissory note. After their conversation, Mr. Burnett prepared and mailed the guaranty to Mr. Frazee at his Missouri address. Mr. Frazee signed the guaranty and mailed it back to Peoples Bank at its Tulsa address. Mr. Frazee was aware he was doing business with an Oklahoma bank on behalf of Stephen, who lived in Oklahoma. On April 26, 2006, simultaneously with Mr. Frazee’s execution and delivery of the guaranty, Stephen and Jennifer executed a new promissory note.

Stephen and Jennifer defaulted on the new promissory note. Although demand for payment was made of Stephen, Jennifer and Mr. Frazee, the note was not paid. Peoples Bank filed a petition in the district court of Tulsa County, Oklahoma, against Stephen and Jennifer for breach of promissory note and against Mr. Frazee for breach of obligation upon guaranty. The court clerk mailed a summons to Mr. Fra-zee by certified mail to addressee only, but Mr. Frazee refused service. None of the defendants filed answers in the Oklahoma action, and the Tulsa County district court entered a default judgment on July 13, 2007. The default judgment was in favor of Peoples Bank, finding Stephen, Jennifer, and Mr. Frazee jointly and severally liable for $72,520.84 plus interest, reasonable attorney fees, and costs.

Peoples Bank then filed the current action for registration of its foreign judgment in the circuit court of Wright County, Missouri. Mr. Frazee filed a limited entry of appearance and a motion to quash registration of the foreign judgment on the grounds that the judgment was void due to lack of personal jurisdiction over him by the Oklahoma court. After Peoples Bank filed suggestions in opposition to the motion, Mr. Frazee filed suggestions in support of his motion to quash registration and his affidavit. Peoples Bank filed its response to Mr. Frazee’s suggestions. In Peoples Bank’s response, it included the affidavit of Mr. Burnett. After a hearing at which no evidence was presented, the Missouri circuit court determined that the Oklahoma court did not have personal jurisdiction over Mr. Frazee and sustained his motion to quash the foreign judgment. In doing so, the circuit court placed the burden of proof to establish personal jurisdiction on Peoples Bank.

Peoples Bank appeals. Peoples Bank asserts that the circuit court erred in placing the burden on it to prove that the Oklahoma district court had personal jurisdiction over Mr. Frazee, a Missouri resident. Peoples Bank also claims that the circuit court erred in finding that the Oklahoma district court lacked personal jurisdiction over Mr. Frazee and argues that he had sufficient minimum contacts with Oklahoma so that maintenance of the lawsuit did not offend traditional notions of fair play and substantial justice. After an opinion by the court of appeals, this Court granted transfer. Mo. Const, art. V, sec. 10.

Burden of Proof

Peoples Bank claims that the circuit court erred in finding that Peoples Bank had the burden of proof to establish that the Oklahoma court had personal jurisdiction over Mr. Frazee. Generally, when personal jurisdiction is contested by the filing of a motion to dismiss a Missouri action, the plaintiff bears the burden of establishing that the defendant’s contacts with the forum state were sufficient. State ex rel. Ranni Assocs., Inc. v. Hartenbach, 742 S.W.2d 134, 137 (Mo. banc 1987). When the challenge to personal jurisdiction arises in the context of a motion to register a foreign judgment, however, the strong presumption of the validity of a foreign judgment that is regular on its face makes the general rule inapplicable.

Under article IV, section 1 of the United States Constitution, this Court must give full faith and credit to the valid judgment of a sister state unless there is (1) a lack of subject matter jurisdiction, (2) a lack of personal jurisdiction, or (3) fraud in the procurement of the judgment. Phillips v. Fallen, 6 S.W.3d 862, 864 (Mo. banc 1999). “[A] foreign judgment, regular on its face, ... is entitled to a strong presumption that the foreign court had jurisdiction both over the parties and the subject matter and the court followed its laws and entered a valid judgment.” Id. at 868. The burden to overcome the presumption of validity and jurisdiction must be met with “the clearest and most satisfactory evidence,” and this burden lies with the party asserting the invalidity of the foreign judgment. Id.

In this case, Mr. Frazee defaulted in the Oklahoma action, and judgment was entered against him. He contested the Oklahoma district court’s personal jurisdiction over him for the first time in the Missouri circuit court. Because the issue was not litigated in the foreign state, Mr. Frazee had the right to attack the judgment for lack of personal jurisdiction in the Missouri circuit court. Miller v. Dean, 289 S.W.3d 620, 624 (Mo.App.2009). The Oklahoma judgment Mr. Frazee was contesting is regular on its face, so the judgment was subject to the strong presumption that the Oklahoma court had jurisdiction. As the party asserting invalidity of the foreign judgment, Mr. Frazee bore the burden of establishing that the Oklahoma court lacked personal jurisdiction. The circuit court erred in placing the burden on Peoples Bank.

The circuit court’s error does not entitle Peoples Bank to relief, however. A circuit court’s decision regarding whether a foreign judgment should be registered is a legal conclusion. Big Tex Trailer Mfg., Inc. v. Duff Motor Co., 275 S.W.3d 384, 386 (Mo.App.2009). Likewise, a circuit court’s determination of personal jurisdiction is a legal conclusion. Bryant v. Smith Interior Design Group, Inc., 310 S.W.3d 227, 231 (Mo. banc 2010). The circuit courts’ legal conclusions are subject to a de novo review on appeal. Miller, 289 S.W.3d at 624. Therefore, when a defendant appeals a circuit court’s decision regarding a claim of lack of personal jurisdiction in a registration-of-foreign-judgment proceeding, the appellate court reviews the legal conclusions de novo and determines whether the foreign court had personal jurisdiction over the defendant and whether the judgment should be registered. Id. This Court’s de novo review eliminates any prejudice to Peoples Bank from the circuit court’s erroneous assignment of the burden of proof to Peoples Bank.

Personal Jurisdiction over Defendant

In its second claim of error, Peoples Bank argues that the circuit court erred in determining that the Oklahoma district court lacked personal jurisdiction over Mr. Frazee. Peoples Bank contends he had sufficient minimum contacts with Oklahoma so that maintenance of the lawsuit did not offend traditional notions of fair play and substantial justice. This Court must determine whether Mr. Frazee’s actions surrounding the execution of the guaranty constitute sufficient minimum contacts with the forum that Oklahoma’s exercise of personal jurisdiction over him was reasonable.

Because this jurisdictional challenge arises in the context of a motion to register a foreign judgment, this Court must look to the rendering state’s law— that is, Oklahoma’s substantive law — to determine whether the Oklahoma court had personal jurisdiction over Mr. Frazee. See Phillips, 6 S.W.3d at 868; see also Pettit v. Am. Nat Bank of Austin, 649 P.2d 525, 527 (Okla.1982). The facts and circumstances considered in determining whether personal jurisdiction exists are those found by the registering and enforcing jurisdiction, rather than the rendering jurisdiction. See Gletzer v. Harris, 159 S.W.3d 462, 465-66 (Mo.App.2005) (applying New York substantive law to the facts found by the Missouri court); see also Whipple v. JSZ Fin. Co., 885 So.2d 933, 936 (Fla.Dist.Ct.App.2004) (applying Texas substantive law to the facts found by the Florida court). Therefore, this jurisdictional inquiry can be made -without deferring to any of the jurisdictional facts recited in the foreign judgment, see Kilbourn v. Kilbourn, 354 Mo. 17, 190 S.W.2d 206, 207 (1945), and Missouri civil procedure rules will govern the proceedings in the circuit court and this Court’s review of the circuit court’s judgment.

Under Missouri’s procedural rules, if personal jurisdiction is challenged in a motion to register a foreign judgment, the parties may present affidavits to supplement the pleadings “or the court may direct that the matter be heard wholly or partly on oral testimony or deposition.” See Chromalloy Am. Corp. v. Elyria Foundry Co., 955 S.W.2d 1, 4 (Mo. banc 1997); see also Rule 55.28; State ex rel. Harmon v. Scott, 820 S.W.2d 101, 103 (Mo. App.1991). The circuit court can believe or disbelieve any statement in such affidavits, and factual determinations are within the sole discretion of the circuit court. Chromalloy Am. Corp., 955 S.W.2d at 4.

Regarding Oklahoma’s substantive law on personal jurisdiction, Oklahoma’s long-arm statute authorizes an Oklahoma court to exercise jurisdiction “on any basis consistent with the Constitution of [Oklahoma] and the Constitution of the United States.” Okla. Stat. tit. 12 § 2004(F) (1993). It extends Oklahoma courts’ jurisdiction over non residents “to the outer limits of the Oklahoma Constitution and the Due Process Clause of the Fourteenth Amendment to the United States Constitution.” Conoco, Inc. v. Agrico Chemical Co., 115 P.3d 829, 834 (Okla.2004). The “outer limits” have been established by the United States Supreme Court. Id. Therefore, the inquiry is whether the Oklahoma court’s exercise of personal jurisdiction over Mr. Frazee comports with federal due process. See Gilbert v. Sec. Fin. Corp. of Okla., Inc., 152 P.3d 165, 173 (Okla.2006).

The Due Process Clause of the Fourteenth Amendment requires that the defendant have minimum contacts with the forum state so that “maintenance of the suit does not offend traditional notions of fair play and substantial justice.” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945). Minimum contacts must have a basis in “some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). Jurisdiction is proper “where the contacts proximately result from actions by the defendant himself that create a ‘substantial connection’ with the forum State.” Id. (internal citations omitted). Random, fortuitous, or attenuated contacts are not sufficient. Id. “In some cases, single or isolated acts by a defendant in a state, because of their nature and quality and the circumstances of their commission, provided sufficient minimum contacts to support jurisdiction for liability arising from those acts.” Bryant, 310 S.W.3d at 233; see also Int’l Shoe, 326 U.S. at 318, 66 S.Ct. 154.

In addition to proving that the defendant purposefully availed himself of the privilege of conducting activities within the forum, exercise of personal jurisdiction over a defendant with minimum contacts must be “reasonable” in light of the surrounding circumstances of the case. Asahi Metal Indus. Co., Ltd. v. Super. Ct. of Cal., Solano Cty., 480 U.S. 102, 113, 107 5.Ct. 1026, 94 L.Ed.2d 92 (1987). This reasonableness depends on an evaluation of several factors. Id. A court must consider the burden on the defendant, the forum’s interest in adjudicating the dispute, and “the plaintiffs interest in obtaining convenient and effective relief.” Burger King Corp., 471 U.S. at 477, 105 S.Ct. 2174. Consideration must also go to “the interstate judicial system’s interest in obtaining the most efficient resolution of controversies and the shared interest of the several States in furthering fundamental substantive social policies.” Asahi, 480 U.S. at 113, 107 S.Ct. 1026 (quoting World-Wide Volkswagen, Corp. v. Woodson, 444 U.S. 286, 292, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980)).

Consideration of these factors “sometimes serve[s] to establish a reasonableness of jurisdiction upon a lesser showing of minimum contacts than would otherwise be required.” Burger King Corp., 471 U.S. at 477, 105 S.Ct. 2174. “[W]here a defendant who purposefully has directed his activities at forum residents seeks to defeat jurisdiction, he must present a compelling case that the presence of some other considerations would render jurisdiction unreasonable.” Id. In determining whether a defendant has established sufficient minimum contacts, “ ‘the foreseeability that is critical to due process analysis ... is that the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.’ ” Id. at 474, 105 S.Ct. 2174 (quoting Worldr-Wide Volkswagen, 444 U.S. at 295, 100 S.Ct. 559).

Peoples Bank alleges that Mr. Frazee’s actions surrounding his execution of a guaranty of Stephen and his wife’s promissory note establish minimum contacts with Oklahoma. A guaranty is a contract, and “[a]n individual’s contract with an out-of-state party alone” cannot “automatically establish sufficiently minimum contacts in the other party’s home forum.” Burger King Corp., 471 U.S. at 478, 105 S.Ct. 2174. Instead, whether an execution of a contract with an out-of-state party can constitute a sufficient contact for due process analysis is a multifaceted, fact-specific inquiry, and never a mechanical application of rules. Id. Prior negotiations and “contemplated future consequences,” as well as the terms of the contract and the parties’ course of dealings, are all factors that must be evaluated in determining “whether the defendant purposefully established minimum contacts within the forum.” Id. at 479, 105 S.Ct. 2174.

Other jurisdictions that have addressed the contacts necessary to assert personal jurisdiction over a non-resident guarantor have undertaken “an independent factual assessment of a defendant’s contacts with the forum when deciding whether it possesses jurisdiction over that defendant.” Mellon Bank (East) PSFS, Nat’l Ass’n. v. Farino, 960 F.2d 1217, 1224 (3d Cir.1992). Based on the facts and circumstances of non-resident guarantor cases, some courts have reached the conclusions that a forum state has personal jurisdiction, while other courts have found no personal jurisdiction. Mellon Bank, 960 F.2d at 1225 n. 4 (finding personal jurisdiction); U.S. v. Rollinson, 629 F.Supp. 581, 587 (D.D.C.1986) (finding personal jurisdiction); Bond Leather Co. v. Q.T. Shoe Mfg. Co., 764 F.2d 928, 935 (1st Cir.1985) (finding lack of personal jurisdiction). In Arkansas Rice Growers Coop. Ass’n. v. Alchemy Indus., Inc, the Eighth Circuit recognized three instances in which courts have found personal jurisdiction over a non-resident guarantor:

there has been [1] substantive identity of the guarantors and the corporation whose obligation they guarantee, [2] evidence that the beneficiary of the guarantee contract would not have entered into the transaction without the guarantees of specific individuals, or [3] a provision in the guarantee contract or the underlying contract stating that the law of the forum state would control.

797 F.2d 565, 573-74 (8th Cir.1986). Arkansas Rice Growers illustrates when additional factors surrounding the guaranty can create a situation in which it is proper to exert personal jurisdiction over a nonresident guarantor.

Arkansas Rice (Growers lists inducement to renew the loan as a circumstance to determine if a court properly asserted jurisdiction over a non-resident guarantor. In this case, the evidence shows that, without Mr. Frazee’s guaranty, Peoples Bank would not have executed a new promissory note with Stephen and Jennifer; instead, it would have called the previous loan. Mr. Frazee’s guaranty induced Peoples Bank to renew the underlying loan. The language of the guaranty expressly states that Mr. Frazee’s guaranty induced Peoples Bank to renew Stephen and Jennifer’s loan. The first line of guaranty agreement contains the following provision:

To induce the Lender to extend credit to the Debtor and for other good and valuable consideration, the receipt of which is acknowledged, and for the purpose of enabling the Debtor to obtain or renew loans, credit or other financial accommodation from the Lender named above, each of the undersigned as a primary obligor, jointly and severally and unconditionally: (1) guarantees to the Lender that Debtor -will fully and promptly pay or otherwise discharge all indebtedness and other obligations ... upon which Debtor now is or may later ... become obligated to Lenderf.]

Other courts have found similar provisions to be “express evidence” that the party would not have entered into an underlying contract without the executed guaranty. Kimball Int’l Inc. v. Warmack, 1989 WL 432179 *6 (S.D.Ind. March 22, 1989). In this case, the fact that Mr. Frazee’s execution of the guaranty induced Peoples Bank to extend credit to Stephen and Jennifer and Mr. Frazee’s active role in the process is sufficient to justify an exercise of personal jurisdiction over the non-resident guarantor.

In addition to the evidence that Mr. Frazee’s guaranty induced the renewal of the underlying loan, this is not a case of “a single isolated transaction which involved the unilateral activity of [an] Oklahoman.” Hough v. Leonard, 867 P.2d 438, 444 (Okla.1993). Mr. Frazee’s contact with Oklahoma is not in the form of an incidental provision in a contract. Rather, the record shows that Mr. Frazee purposefully directed activity into the forum state, Oklahoma.

As a threshold issue, Mr. Frazee was aware, or at least should have been aware, that he was dealing with an Oklahoma bank. He knew Stephen lived in Oklahoma, and the guaranty signed by Mr. Frazee lists an Oklahoma post-office box for the lender’s address. Mr. Frazee spoke with Stephen and Mr. Burnett on the telephone and voluntarily signed the guaranty, which was drafted in Oklahoma and controlled by Oklahoma law. He voluntarily called Mr. Burnett after he spoke to Stephen. In that conversation, he requested that the guaranty be mailed to him. He then mailed the guaranty back to Oklahoma. Mr. Frazee knew that he was signing a guaranty, a guaranty that obligated him to cover Stephen’s loans if Stephen defaulted. Mr. Frazee maintained an active role in the guaranty process.

Although Mr. Burnett may have made the initial call to Mr. Frazee, “[t]he fact that someone else initiated the first contact does not mean that the entire course of conduct is considered unilateral.” Bryant, 310 S.W.3d at 235 (relying on federal law). Even if Peoples Bank first called Mr. Frazee, this fact does not negate all of the other facts and circumstances surrounding the guaranty’s execution that amount to Mr. Frazee having minimum contacts with Oklahoma. See id.

Mr. Frazee argues that a state may not exercise personal jurisdiction over a nonresident guarantor unless the guarantor could derive a pecuniary gain from the executed guarantee. Mr. Frazee argues that a non-resident guarantor must make a purposeful decision to participate in the forum’s economy in order to avail itself to the benefits and protections of the forum. He derives this argument from Bond Leather Co. v. Q.T. Shoe Mfg. Co., 764 F.2d 928 (1st Cir.1985).

In Bond Leather, the First Circuit applied the “contract plus” approach suggested by the Supreme Court’s decision in Burger King to its personal jurisdiction inquiry involving non-resident guarantors. Id. at 933. The First Circuit found that “[t]he inquiry must narrow to whether the commercial action taken, in light of the contacts with the forum state it entailed, amounts to a purposeful decision by the non-resident to ‘participate’ in the local economy and to avail itself of the benefits and protections of the forum.” Id. at 933-34. The First Circuit then looked to the supplemental contacts linking the guarantor to the forum; whether the guarantor’s role was active or passive; whether the guaranty created contract rights that could be enforced in the forum, which represents an intent of the guarantor to reap the benefits and protections of the forum; and any commercial benefits that resulted from the guaranty. Id. at 934. The First Circuit found that the guarantor had “absolutely no supplemental contacts” with the forum, the guarantor’s role was passive, the guaranty did not create any contract rights, and the guarantor reaped no commercial benefits from the guaranty. Id. On these grounds, the First Circuit held that the forum did not have personal jurisdiction over the non-resident guarantor. Id. at 935.

Mr. Frazee focuses on only one factor in the First Circuit’s analysis — commercial or pecuniary gain of the guarantor. Bond Leather does not stand for the proposition that a non-resident guarantor must reap a pecuniary or commercial gain from the execution of the guaranty for the forum to properly exercise personal jurisdiction over the non-resident guarantor. The Bond Leather analysis shows that the First Circuit, like many other jurisdictions, looked at all of the facts and circumstances surrounding the guaranty and made a determination based on the totality ’of the circumstances.

Applying the Bond Leather analysis, the facts in this case present a stronger argument than the facts surrounding Bond Leather's guarantor for Oklahoma having personal jurisdiction over Mr. Frazee. Mr. Frazee took an active role in the guaranty process whereas, in Bond Leather, an intermediary completed the negotiations and the guarantor took a completely passive role in the guaranty’s execution. The record shows that Mr. Frazee engaged in telephone conversations with Peoples Bank and that he also mailed the guaranty back to Oklahoma.

Contrary to Mr. Frazee’s assertion that a non-resident guarantor must reap a pecuniary gain, other courts have found that a personal financial benefit or pecuniary gain by the guarantor is unnecessary to exercise personal jurisdiction over the nonresident guarantor. E.g., Mellon Bank, 960 F.2d at 1225 n. 4; Rollinson, 629 F.Supp. at 587; Keelean v. Central Bank of the South, 544 So.2d 153, 157-58 (Ala.1989) overruled for other reasons by Prof. Ins. Corp. v. Sutherland, 700 So.2d 347 (Ala.1997). A personal financial benefit to or a pecuniary gain by Mr. Frazee is not necessary for Oklahoma to constitutionally exercise personal jurisdiction over him because a pecuniary gain by the defendant is not required for the defendant to purposefully avail himself to the laws of the forum state or to purposefully direct activity into the forum.

Because the record shows that Mr. Frazee purposely availed himself to the forum, this Court must determine whether the exercise of personal jurisdiction over the nonresident defendant is reasonable. Asahi, 480 U.S. at 113, 107 S.Ct. 1026. This Court’s reasonableness inquiry will focus on the burden on Mr. Frazee, the interests of Oklahoma, and the Peoples Bank’s interest in obtaining relief, as well as the policy reasons for exercising jurisdiction over non-resident guarantors. Id.

The burden on the defendant largely involves the foreseeability of defending a lawsuit in that forum. WorldWide Volkswagen, 444 U.S. at 297, 100 S.Ct. 559. The foreseeability of defending a lawsuit can be construed as “contemplated future consequence” of a contract. See Burger King, 471 U.S. at 479, 105 S.Ct. 2174. Mr. Frazee should have known that he was subjecting himself to possible litigation in Oklahoma by agreeing to guaranty the Oklahoma loan that was already in default. A guaranty is a continuing obligation to pay to the lender if the debtor defaults on the underlying loan. “When a non-resident deliberately ... creates continuing obligations between the non-resident and the residents of the forum, the nonresident submits to the jurisdiction of the state.” Hough, 867 P.2d at 442. Mr. Frazee knew that the debtors, who defaulted once, as well as the lender, Peoples Bank, were all residents of Oklahoma. In light of the fact that Stephen and Jennifer had defaulted on the loan and could not obtain a renewal without his guaranty, Mr. Frazee reasonably should have expected that they might default again. Mr. Frazee should have contemplated the potential for consequences in Oklahoma and the possibility of being haled into an Oklahoma court to defend a lawsuit if the loan was called. Moreover, if Peoples Bank had impermissibly called the loan, Mr. Frazee would have been protected by Oklahoma law.

Reasonableness also involves an inquiry into the interest of the forum state, Oklahoma, and the interests of the plaintiff in obtaining relief. Burger King Carp., 471 U.S. at 477, 105 S.Ct. 2174. Oklahoma has a strong interest in being able to enforce guaranty agreements that its citizens draft and then rely on to extend credit. Peoples Bank has a strong interest in obtaining relief after it was induced to renew a defaulted loan. Peoples Bank would not have renewed the loan if Mr. Frazee had not executed the guaranty agreement. Its risk was minimized by the guaranty.

There are also sound policy reasons for exercising jurisdiction over nonresident guarantors. “[T]he Due Process Clause may not readily be wielded as a territorial shield to avoid interstate obligations that have been voluntarily assumed.” Mellon Bank, 960 F.2d at 1222. In this case, Mr. Frazee voluntarily assumed the obligation of guaranteeing Stephen’s note. He knowingly contracted with an Oklahoma bank on behalf of Oklahoma residents. Mr. Frazee’s actions induced Peoples Bank to extend credit to Stephen and Jennifer. Mr. Frazee, who purposefully directed activity into the forum and purposefully availed himself to the protections of the Oklahoma, should not be able to avoid his interstate obligation by asserting that lack of personal jurisdiction.

Conclusion

Because of the strong presumption of validity of foreign state judgments, Mr. Frazee had the burden to establish that the judgment was irregular or that Oklahoma lacked personal jurisdiction over him. Every personal jurisdiction case involves a fact-specific inquiry; it does not lend itself to categorical determinations. Id. at 1225. Under the facts and circumstances surrounding Mr. Frazee’s execution of the guaranty, Mr. Frazee had the required minimum contacts with Oklahoma. Therefore, the Oklahoma court’s exercise of personal jurisdiction over Mr. Frazee comports with Oklahoma’s longarm statute and due process. Moreover, the Oklahoma’s court’s assertion of personal jurisdiction was reasonable. The circuit court’s judgment is reversed, and the case is remanded.

All concur.

      . The record is unclear as to whether Stephen Frazee is H.L. Frazee's son or grandson. Their specific familial relationship is irrelevant to this Court's analysis. This opinion will refer to Stephen Frazee as "Stephen." No disrespect is intended by the use of a party's first name.

      . Mr. Burnett's affidavit indicates that he does not know whether he or Mr. Frazee initiated the call. Peoples Bank's suggestions in opposition to the motion to quash registration of the foreign judgment state that "H.L. Frazee was called."

      . Under Okla. Stat. tit. 12 § 2004(C)(2)(c) (1993), refusal of certified mail by a defendant is valid service of process.

      . Article IV, section 1, the Full Faith and Credit Clause of the United States Constitution, states, "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.” Rule 74.14 and section 511.760, RSMo 2000, detail the procedure to be followed when registering a foreign judgment.

      . The only material question of fact that arose in the circuit court was created by a conflict or ambiguity in Peoples Bank's evidence regarding whether Peoples Bank or Mr. Frazee initiated the call to discuss guaranteeing Stephen and Jennifer’s promissory note. The circuit court found that Peoples Bank initiated the call, but its resolution of this factual issue was based on its mistaken assignment of the burden of proof. In its judgment, the circuit court stated that, because the bank had the burden of proving Mr. Frazee had sufficient contacts with Oklahoma, it resolved the ambiguity in Mr. Frazee's favor and assumed that Peoples Bank initiated contact with Mr. Frazee. As previously discussed, however, Mr. Frazee had the burden of proof, not the bank. Although the circuit court did not properly adjudicate the conflicting evidence on this fact, it will be explained below why this fact is not dispositive of the issue of personal jurisdiction.

      . Personal jurisdiction can be general or specific. Helicópteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n. 8-9, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984). A court has general jurisdiction over a non-resident defendant if the defendant has “continuous and systematic" contacts with the forum not necessarily related to the cause of action. Id. at 414 n. 9 & 416, 104 S.Ct. 1868. A court has specific jurisdiction over a non-resident defendant when the suit "aris[es] out of or [is] related to the defendant’s contacts with the forum.” Id. at 414 n. 8, 104 S.Ct. 1868. Peoples Bank's claim of personal jurisdiction over Mr. Frazee is a claim of specific jurisdiction because its suit for breach of guaranty obligation arises out of Mr. Frazee’s contacts with the state when he executed the guaranty.

      . In Arkansas Rice Growers, the Eighth Circuit also stated that if the guarantors stood to profit from the contract, “the assertion of jurisdiction over the non-resident guarantors comports with due process in some cases.” 797 F.2d at 573. (emphasis added).

      . In Mr. Burnett's affidavit, he states that Mr. Frazee was aware that he was doing business with an Oklahoma bank on behalf of “his son” who lived in Oklahoma. Mr. Frazee's affidavit does not admit or dispute this allegation.


author: VICTOR C. HOWARD, Judge.

text:
    MISSOURI PUBLIC SERVICE COMMISSION, Appellant, v. ONEOK, INC., et al., Respondents.
    No. WD 70666.
    Missouri Court of Appeals, Western District.
    Dec. 8, 2009.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Feb. 2, 2010.
    Application for Transfer Sustained April 20, 2010.
    Case Retransferred Sept. 21, 2010.
    Court of Appeals Opinion Readopted Sept. 24, 2010.

      Jennifer L. Heintz, for Appellant.
    Jerome T. Wolf, for Respondent Duke Energy Trading & Marketing, LLC.
    William J. Foland, Jr., for Respondents RRI Energy, Inc. and RRI Energy Services, Inc.
    Martin McCormick Loring, for Respondents Aquila, Inc., Aquila Merchant Services, Inc., El Paso Corporation and El Paso Merchant Energy L.P.
    Brant M. Laue, for Respondents Oneok Energy Services Co., L.P. and Kansas Gas Marketing Co.
    Spencer J. Brown, for Respondents Xcel Energy. Inc. and E Prime, Inc.
    Richard Nelson Bien, for Respondents CMS Field Services, Inc. and CMS Energy Resources Management Co.
    James Richard Eiszner, for Respondent Coral Energy Resources, L.P.

      James F. Mauze, for Respondents American Electric Power Co., Inc. and AEP Energy Services, Inc.
    Thomas Peter Schult, for Respondents The Williams Companies, Inc., Williams Merchant Services Co., Inc., and Williams Gas Marketing, Inc.
    Before Division Two: JOSEPH M. ELLIS, Presiding Judge, VICTOR C. HOWARD, Judge and CINDY MARTIN, Judge.
   VICTOR C. HOWARD, Judge.

The Missouri Public Service Commission (“the Commission”) appeals the trial court’s judgment granting a motion to dismiss the Commission’s petition for lack of standing. On appeal, the Commission claims that the trial court erred in dismissing the petition because the Commission had the authority to accept assignments of claims from local distribution companies and to file a petition asserting those claims. The judgment is affirmed.

Factual and Procedural Background

On May 7, 2008, the Commission filed its petition against the defendants (“Suppliers”), a group of companies that marketed and sold natural gas to local distribution companies (“LDCs”) in Missouri. The Commission filed its petition after several LDCs assigned their claims against Suppliers to the Commission.

In the petition, the Commission alleged that the prices Suppliers charged the LDCs for natural gas were based on natural gas price indexes that appeared in various trade publications. Natural gas marketers and sellers, such as Suppliers, provided the trade publications with the price and volume information that was used to create the price indexes. The Commission pled that Suppliers conspired to provide false information to the trade publications with the intent of manipulating price indexes and causing the price of natural gas to rise. Finally, the Commission claimed that, as a result of Suppliers’ actions, price indexes for natural gas were artificially inflated and Suppliers thereafter overcharged the LDCs for natural gas. Based on these allegations, the Commission pled violations of Missouri antitrust law, and counts of fraud and unjust enrichment, and sought damages based on the injuries to the LDCs.

Suppliers collectively filed a motion to dismiss the Commission’s petition for lack of standing. Suppliers argued that the Commission did not have standing to bring the petition because it does not have statutory authority to accept an assignment of a private damages claim from an LDC and file a lawsuit in which it seeks to recover damages sustained by an LDC. The trial court granted the motion to dismiss. The court stated that, although it was inclined to find that the claims were assignable, there was no statute authorizing the Commission to bring the action. Therefore, the court found that the Commission did not have standing and dismissed the action with prejudice. This appeal by the Commission followed.

Standard of Review

We review a trial court’s dismissal of a petition for lack of standing de novo. White v. White, 293 S.W.3d 1, 8 (Mo.App.W.D.2009). We will determine the issue of standing “ ‘as a matter of law on the basis of the petition, along with any other non-contested facts accepted as true by the parties at the time the motion to dismiss was argued, and resolve the issue as a matter of law on the basis of the undisputed facts.’ ” Id. (quoting State ex rel. Dep’t of Soc. Servs., Family Support Div. v. K.L.D., 118 S.W.3d 283, 287 (Mo.App.W.D.2003)).

Discussion

In its first point on appeal, the Commission contends that the trial court erred in dismissing the Commission’s petition for lack of standing because it had the authority to accept assignments of and assert the LDCs’ claims. The Commission claims that this authority is derived from section 386.040, RSMo 2000.

As a creature of statute, the Commission’s “powers are limited to those conferred by statute, either expressly, or by clear implication, as necessary to carry out the powers specifically granted.” Utilicorp United Inc. v. Platte-Clay Elec. Coop., Inc., 799 S.W.2d 108, 109 (Mo.App.W.D.1990). Accordingly, whether the Commission’s actions are lawful “depends directly on whether it has statutory power and authority to act.” State ex rel. Gulf Transp. Co. v. Pub. Serv. Comm’n of State, 658 S.W.2d 448, 452 (Mo.App.W.D.1983). Neither convenience, nor expediency, nor necessity is a proper matter to consider in determining whether the Commission’s actions are authorized by statute. State ex rel. Mo. Cable Telecomms. Ass’n v. Mo. Pub. Serv. Comm’n, 929 S.W.2d 768, 772 (Mo.App.W.D.1996).

Section 386.040, which created and established the Commission, provides that the Commission “shall be vested with and possessed of the powers and duties in this chapter specified, and also all powers necessary or proper to enable it to carry out fully and effectually all the purposes of this chapter.” The Commission’s primary function is the regulation of public utilities, and the Commission identifies its principal purpose as serving and protecting ratepayers. State ex rel. Capital City Water Co. v. Mo. Pub. Serv. Comm’n, 850 S.W.2d 903, 911 (Mo.App.W.D.1993).

For the purpose of protecting ratepayers, the Commission claims that it was necessary and proper for it to receive assignments of the LDCs’ private claims and file suit for damages allegedly inflicted on the LDCs. The Commission argues that its petition enables it to ensure that Missouri’s natural gas market is free from price manipulation and other unlawful conduct. Additionally, the Commission claims that, ultimately, ratepayers were injured by Suppliers’ unlawful conduct because the LDCs passed the overcharge on to the ratepayers. Therefore, the Commission maintains that it is necessary for it to pursue the claims in its petition for the benefit of Missouri ratepayers; otherwise, the ratepayers will be left without a remedy-

Conversely, Suppliers argue that the Commission has no statutory authority to accept assignments of the LDCs’ claims or to assert them in court. Furthermore, Suppliers assert that the Commission’s involvement in the petition is neither necessary nor a proper method of protecting Missouri ratepayers.

As for the Commission’s assertion that ratepayers will be left without a remedy if the Commission cannot assert the LDCs’ claims, it is difficult to discern from the petition and from the Commission’s argument on appeal how ratepayers will benefit under these circumstances. Although the Commission states in its brief that ratepayers were injured when the LDCs passed the overcharges on to them, there are no allegations to that effect in the petition. The only harm the Commission identifies in the petition is to the LDCs that assigned their claims to the Commission. Furthermore, the Commission has not explained how a recovery of damages would benefit ratepayers. There is nothing in the petition or the record to show that ratepayers would receive a benefit if damages were awarded in this case. Without an explanation of how a recovery of damages would benefit ratepayers, it is unclear how ratepayers would be any better off with the Commission’s involvement than if the LDCs had simply asserted their own causes of action. Therefore, we cannot conclude that the Commission’s involvement in the petition is necessary in order for it to protect ratepayers. Regardless, the “powers necessary or proper” clause in section 386.040 enables the Commission to carry out the functions specifically delegated to it by the legislature. It is not a license to engage in any conceivable activity for the protection of ratepayers. No matter how noble the cause, we must administer the law as it is, not as the Commission wishes it to be.

Aside from its attempt to characterize its actions as generally “necessary or proper,” the Commission acknowledges that no specific statute authorizes the actions it took. The Commission refers to section 386.071, but that section specifies the duties of the Commission’s general counsel and does not authorize the general counsel to bring this particular type of action. Finally, reference is made to section 386.600, which authorizes the general counsel of the Commission to bring actions to recover penalties or forfeitures for law violations. However, the Commission does not seek to recover a statutory penalty in this case but, rather, seeks to recover damages based on the difference between the prices the LDCs paid to Suppliers and the prices the LDCs would have paid if Suppliers had not manipulated the price indexes. The Commission also seeks treble damages based on the LDCs’ alleged antitrust injury. Furthermore, the action was not brought in the name of the state, as required by section 386.600.

We cast no aspersions on the Commission’s motivations and goals. However, we decline to wander down the intricate path of policy reserved for our legislature. In the absence of a statute specifically authorizing the Commission to receive the LDCs’ assignments and assert private causes of action for damages, or a showing that such actions are necessary or proper to carry out its specifically granted powers, the trial court did not err in finding that the Commission did not have the authority to maintain its action. Point one is denied.

In its second point, the Commission contends that the trial court erred in dismissing the underlying petition because case law demonstrates that courts must exercise great caution in dismissing antitrust claims in that the primary purpose of antitrust law is the protection of the public.

In support of its assertion, the Commission cites Defino v. Civic Center Corp., 718 S.W.2d 505 (Mo.App.E.D.1986). While that case does identify protection of the general public as an element of antitrust law, the court was citing a 1969 Eighth Circuit case which emphasized that courts are reluctant to dismiss a complaint for failure to state a claim, in the rapidly-developing area of antitrust law. Id. at 510 (quoting Great A & P Tea Co. v. Amalgamated Meat Cutters, Etc., 410 F.2d 650, 652 (8th Cir.1969)). As the Commission’s petition was dismissed for lack of standing based on the statutes establishing the Commission’s authority, the reasoning in Defino is inapplicable to the case at hand.

Finally, the Commission argues that Missouri law generally holds that a valid, absolute assignment of a claim confers standing upon the assignee and further asserts that antitrust claims in particular are assignable. However, neither case law regarding assignments between private parties nor substantive antitrust law can govern the assignment and assertion of causes of action where the assignee and petitioner is an entity created and governed by a statutory scheme which does not give it the power to engage in such actions. The trial court did not err in dismissing the Commission’s petition for lack of standing. Point two is denied.

The judgment of the trial court is affirmed.

All concur.

      . The following parties are defendants in this case: Duke Energy Trading and Marketing, LLC; RRI Energy, Inc.; RRI Energy Services, Inc.; Aquila, Inc.; Aquila Merchant Services, Inc.; Xcel Energy, Inc.; e prime, inc.; CMS Energy Resources Management Co.; CMS Field Services, Inc.; Coral Energy Resources, L.P.; American Electric Power Company, Inc.; AEP Energy Services, Inc.; The Williams Companies, Inc.; Williams Merchant Services Company, Inc.; Williams Gas Marketing, Inc.; El Paso Corporation; El Paso Merchant Energy, L.P. (now known as El. Paso Marketing, L.P.); ONEOK Inc.; ONEOK Energy Services Company, L.P.; and Kansas Gas Marketing Company.

      . The Commission received assignments from: Laclede Gas Company; Fidelity Natural Gas, Inc.; Atmos Energy Corporation; The Empire District Gas Company; Missouri Gas Energy; and Union Electric Company.

      . We note that the Commission did not provide copies of the LDCs' assignments for our review.


author: PER CURIAM.

text:
    Lonnie D. SNELLING, Appellant, v. RIVERFRONT TIMES LLC, et al., Respondents.
    No. ED 93699.
    Missouri Court of Appeals, Eastern District, Division Three.
    April 13, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 1, 2010.
    Application for Transfer Denied Sept. 21, 2010.
    Lonnie Snelling, Saint Louis, MO, for Appellant Acting pro se.
    Mark Sableman, Michael L. Nepple, St. Louis, MO, for Respondent Riverfront Times et al.
    Dennis Owens, Kansas City, MO, for Respondent Phillip I. Morse.
    Before GLENN A. NORTON, P.J., MARY K. HOFF, J. and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

Lonnie D. Snelling appeals: (1) the judgment denying his motion to reconsider the trial court’s order dismissing some counts of his first amended petition; and (2) the grant of summary judgment as to the remaining counts. Additionally, Snell-ing appeals the court’s order denying his motion to reconsider the grant of summary judgment and the court’s judgment denying Snelling’s motion for leave to file a second amended petition. No error of law appears. An extended opinion would have no precedential value. We affirm the trial court’s rulings under Rule 84.16(b).

      . Snelling’s motion to strike Respondent Phillip I. Morse's brief, which has been taken with the case, is denied.