author: Justice SCOTT.

text:
    Erin HANEY, Appellant, v. Biljana MONSKY (as Next Friend of Max Zager, a Minor Child), Appellee.
    No. 2008-SC-000337-DG.
    Supreme Court of Kentucky.
    April 22, 2010.
    As Corrected May 7, 2010.

      Stephen Perry Durham, Assistant Jefferson County Attorney, Louisville, KY, for Appellant.
    Robert L. Heleringer, Louisville, KY, for Appellee.
   Opinion of the Court by

Justice SCOTT.

This is an appeal from an opinion of the Court of Appeals affirming the decision of the Jefferson Circuit Court that denied Appellant, Erin Haney, summary judgment on the grounds that she is not entitled to qualified official immunity from the negligence claims that Appellee, Biljana Monsky, as next friend of Max Zager, asserts against her. For reasons that Haney’s duties were discretionary in nature so as to entitle her to the defense of qualified official immunity as a matter of law, we hold that the trial court improperly denied her motion for summary judgment. We, therefore, reverse the decisions of the Court of Appeals and the Jefferson Circuit Court and remand this matter to the trial court for further proceedings consistent with this opinion.

I. Background

In early 2005, Erin Haney was twenty-one years old and completing her junior year at Centre College when she learned of a summer job opportunity serving as a full-time children’s camp counselor at the Louisville Zoo. The zoo’s summer camp was a popular annual program and was designed to be an enriching and educational experience for children, teaching them the diversity of plants and animals and also engaging them in a variety of complementary learning activities. Haney applied for a position and, once accepted, was to work with small groups of six to eight year old children.

Just prior to the camp’s opening in May of that year, Haney and the summer camp counselors received on-site training in assorted topics. As a group, the counselors learned, among other things, about the zoo, its animals, and environments; zoo safety, rules and regulations; CPR and first aid measures; behavioral problems and developmental needs of children; and, several games, crafts, and activities. The training involved lectures, hands-on activities, animal handling, and behind-the-scenes tours.

One of the activities the counselors learned to conduct with the children was commonly called “Night Hike.” The Night Hike activity was intended to teach the children that vision is a sense that is taken for granted and that other animals heavily rely upon non-visual senses in navigating their environments. In Night Hike, the children form a single file line upon a short, clear, and level trail path. From there, all children but the line leader wear a blindfold and place one or both hands upon the shoulders of the child directly in front of them — so as to link the line together. The line leader then slowly proceeds along the path as the camp counsel- or walks behind and observes. As they walk, the counselor reminds the children to feel the ground beneath them and to listen to the sounds around them so they can better anticipate and navigate the path. When the children reach the end of the path, they may exchange turns being line leader and walk the path again.

The activity was a popular one. The counselors received 10 to 15 minutes of training on how to conduct Night Hike, should they later choose to do so, including instructions to select a path free from debris and one away from noise and distraction. The counselors participated in a demonstration of the activity themselves to better understand it.

In late June of 2005, seven-year-old Max Zager attended the Louisville Zoo summer camp and was assigned to Haney’s group, comprised of ten (10) seven and eight year olds. On Wednesday, Haney decided to conduct the Night Hike activity with the children, including Max. Prior to doing so, she took the children aside and explained to them the purpose of activity and the importance of remaining quiet and attentive while they were walking along the path. Haney then selected an appropriate path and led the group along it four times without blindfolds so that they would be familiar with its direction.

The activity then began and the children shared leader responsibilities approximately six times successfully negotiating the trail. On the seventh or eighth trip, however, when the line leader began to veer in a direction that would have led off of the path, Haney, watching from behind, cautioned the group that they were getting too close to the path’s edge. At that point, some of the children began to suddenly trip on one another and Max and two others fell down upon the path. When Max got back to his feet, he was holding his arm in pain. As it turned out, he had suffered a fractured shoulder.

Appellee, as next friend of Max, subsequently filed suit against Haney and alleged that she was negligent in her supervision. At the conclusion of discovery, Haney moved the trial court for summary judgment and argued that, as a public employee, the complained of actions or inactions were discretionary in nature which rendered her immune from suit. The trial court, however, found the conduct at issue to be ministerial in nature and overruled Haney’s motion. Haney then filed an interlocutory appeal, and the Court of Appeals affirmed the decision of the trial court. This Court granted Haney’s motion for discretionary review.

II. Standard of Review

“Summary judgment procedure authorized by CR 56.01 et seq. is intended to expedite the disposition of cases and if the grounds provided by the rule are established, it is the responsibility of the trial judge to render an appropriate decision.” Pile v. City of Brandenburg, 215 S.W.3d 36, 39 (Ky.2006). Summary judgment is generally appropriate where “the pleadings, depositions, answers to interrogatories, stipulations and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” CR 56.03. This Court has also held that summary judgment is proper “where the movant shows that the adverse party could not prevail under any circumstances.” Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 480 (Ky.1991). In either case, “a party opposing a properly supported summary judgment motion cannot defeat that motion without presenting at least some affirmative evidence demonstrating that there is a genuine issue of material fact requiring trial.” Hubble v. Johnson, 841 S.W.2d 169, 171 (Ky.1992). A “trial court must then view the record ‘in a light most favorable to the party opposing the motion for summary judgment and all doubts are to be resolved in his favor.’” Rowan County v. Sloas, 201 S.W.3d 469, 474 (Ky.2006) (quoting Steelvest, 807 S.W.2d at 480).

In the context of qualified official immunity, “[sjummary judgments play an especially important role”, as the defense renders one immune not just from liability, but also from suit itself. Sloas, 201 S.W.3d at 474 (citing Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)). Here, the material facts have been resolved, and thus our review is one of law, focusing on whether the moving party, Haney, was entitled to the defense of qualified official immunity and, consequently, judgment as a matter of law. See Pile, 215 S.W.3d at 39-40; Sloas, 201 S.W.3d at 475.

III. Qualified Official Immunity

As this Court thoroughly explained in Yanero v. Davis, when an officer or employee of the state or county (or one of its agencies) is sued in his or her individual capacity, that officer or employee enjoys qualified official immunity, “which affords protection from damages liability for good faith judgment calls made in a legally uncertain environment.” 65 5.W.3d 510, 522 (Ky.2001) (emphasis added) (citing 63C Am. Jur. 2d Public Officers and Employees § 309 (1997)). Application of the defense, therefore, “rests not on the status or title of the officer or employee, but on the [act or] function performed.” Id. at 521 (citing Salyer v. Patrick, 874 F.2d 374 (6th Cir.1989)).

Indeed, the analysis depends upon classifying the particular acts or functions in question in one of two ways: discretionary or ministerial. Qualified official immunity applies only where the act performed by the official or employee is one that is discretionary in nature. Id. Discretionary acts are, generally speaking, “those involving the exercise of discretion and judgment, or personal deliberation, decision, and judgment.” Id. at 522 (citing 63C Am. Jur. 2d § 322). It may also be added that discretionary acts or functions are those that necessarily require the exercise of reason in the adaptation of means to an end, and discretion in determining how or whether the act shall be done or the course pursued. Discretion in the manner of the performance of an act arises when the act may be performed in one or two or more ways, either of which would be lawful, and where it is left to the will or judgment of the performer to determine in which way it shall be performed. Upchurch v. Clinton County, 330 S.W.2d 428, 430 (Ky.1959). On the other hand, ministerial acts or functions — for which there are no immunity — are those that require “only obedience to the orders of others, or when the officer’s duty is absolute, certain, and imperative, involving merely execution of a specific act arising from fixed and designated facts.” Yanero, 65 S.W.3d at 522 (citing Franklin County v. Malone, 957 S.W.2d 195, 201 (Ky.1997)).

In spite of these often quoted guidelines, determining the nature of a particular act or function demands a more probing analysis than may be apparent at first glance. In reality, few acts are ever purely discretionary or purely ministerial. Realizing this, our analysis looks for the dominant nature of the act. For this reason, this Court has observed that “an act is not necessarily taken out of the class styled ‘ministerial’ because the officer performing it is vested with a discretion respecting the means or method to be employed.” Up-church, 330 S.W.2d at 430 (emphasis added). Similarly, “that a necessity may exist for the ascertainment of those [fixed and designated] facts does not operate to convert the [ministerial] act into one discretionary in its nature.” Id. (emphasis added). Moreover, a proper analysis must always be carefully discerning, so as to not equate the act at issue with that of a closely related but differing act. Cf. Shas, 201 S.W.3d at 478 (“[T]he the portions of the investigative responsibilities as set out in the regulations ... were particular in their directive, but we noted that others, which required the exercise of judgment, were not.... The first part was ministerial, but what followed was held to be discretionary”) (emphasis in original) (citing Stratton v. Commonwealth, 182 S.W.3d 516, 521 (Ky.2006)). With these considerations in mind, we turn to the issue before us.

IV. Issue Presented

The issue that we confront on this appeal is a relatively narrow one: whether Haney’s supervision of the children in the Night Hike activity was a discretionary or ministerial function. Appellee broadly argues that Haney negligently placed the children in a dangerous activity and that she conducted the activity in a negligent manner. We review these allegations and focus on the nature of the acts or functions implicated.

V. Analysis

At the outset, we believe that there can be no viable contention that Haney’s act in choosing to conduct the Night Hike activity was not a discretionary function. The affidavit of Marcelle Gianelloni, curator of the Louisville Zoo Education Department, establishes that Haney and other camp counselors were allowed to choose whether to use the Night Hike activity from a number of pre-approved activities. Gianelloni explained that

[e]very week, the counselors fill out a program outline of what they are going to do. This is given to one of our counselors, who review the weeklong program to make sure everything is age appropriate. The counselors were allowed to choose whether to use the ‘Night Hike/Practice Makes Perfect’ activity, where to conduct the activity ... and how often the activity could be used.

In Haney’s affidavit, she, too, stated that she was “free to select the daily activities”, and (in her deposition), added that, “[w]e did not have to do these activities. These were just activities that they were gonna help us to make our schedules!!]” That Haney was “encouraged” to use the popular Night Hike activity and, in fact, never conducted an activity that was not designed by the camp does not alter our conclusion that she ultimately retained complete discretion as to whether to conduct the activity at all.

Moving on, we address Appellee’s primary argument. In asserting that her suit implicates Haney’s ministerial acts or functions as camp counselor, Appellee contends that Haney’s training was such that her supervision over the children in conducting the Night Hike activity could not be a discretionary function. In other words, Appellee argues that the training Haney received from the camp in how to conduct the Night Hike activity was sufficiently comprehensive, detailed, and definite so as to constrain her “exercise of discretion and judgment” and thus transform her act of supervising the activity into a ministerial duty that was “absolute, certain, and imperative, involving merely execution of a specific act arising from fixed and designated facts.” Yanero, 65 S.W.3d at 522. Yet, in holding up Appellee’s specific allegations of negligent supervision against the training Haney actually received, this Court cannot agree.

Appellee first argues that Haney failed to “keep the children in the middle of the path” on which the Night Hike activity was conducted and that her failure to do so constituted a violation of a known rule or order. Thus, similar to the baseball coach in Yanero, Appellee believes that Haney’s failure to enforce a known rule indicates that her duty was inherently ministerial for which she has no immunity.

However, because the counselors necessarily retained significant discretion in its enforcement, we believe that the instruction at issue here is fundamentally different from that considered in Yanero. In Yanero, the rule requiring that student athletes wear helmets during batting practice represented an essentially objective and binary directive. That is to say, the children were plainly wearing their helmets during batting practice or they were not. There is no substantial compliance with such an order and it cannot be a matter of degree: its enforcement was “absolute, certain, and imperative, involving merely execution of a specific act arising from fixed and designated facts.” Id. at 522.

Here, on the other hand, we are confronted with a single oral instruction to “keep the children in the middle of the path” given during a 10 to 15 minute training session on how to conduct the Night Hike activity. Though the aim of the instruction was, like Yanero, to ensure the safety of the activity, we cannot say that its enforcement was similarly ministerial because, here, it was a general and continuing supervisory duty to keep the children on the middle of the path which depended upon constantly changing circumstances — indeed, the continuing moment-by-moment, worm-like movement of all the children upon the path. Moreover, its enforcement was largely subjective and “left to the will or judgment of the performer”, as keeping the children in the middle of the path could certainly “be performed in one of two or more ways, either of which would be lawful[.]” Upchurch, 330 S.W.2d at 430. The instruction did not in any way specify how to “keep” the children in the middle of the path should they suddenly stray from it. This is not to say that every rule or order must be exhaustively specific to make a general supervisory duty a ministerial function, but it must, at least, be sufficiently specific to restrict significant discretion in its enforcement. That cannot be said here.

For similar reasons, we cannot agree that the ministerial nature of Haney’s duties was evidenced by her failure to place the children into smaller groups before conducting the Night Hike activity. Appellee places great weight on a particular handout the counselors were given during their training and argues that it created a defined rule which Haney had no choice but to enforce. However, an examination of the one page handout shows that its intended audience was children who desired to conduct the Night Hike activity themselves. As such, its instructions do not impose absolute duties upon the counselors. Gianelloni’s affidavit confirms this, as she clearly stated that the counselors “were allowed to choose ... how many people to include in a single line.” Because there is no evidence showing that the terms of the handout were intended to be any more than suggestions and were simply distributed in conjunction with the brief training on the activity, we do not believe that the handout required Haney to break the children into smaller groups.

We also find unpersuasive Appellee’s arguments that Haney was required to stop the children in the event that they strayed from the middle of the path while conducting the Night Hike activity. Similar to contentions we have already addressed, Appellee claims that Haney’s failure to comply with such a requirement indicates the ministerial nature of her role in supervising the activity. Again, if the requirement actually existed, we could perhaps agree. In her deposition, Haney specifically negated Appellee’s assertion:

Q. Had you been taught by the — during the training that one of the safety measures that you might consider taking if they [the children] got too close to one edge or the other was to have them stop what they were doing?
A. It never — Yes, I mean, it never came across that way. It never — I mean, we never went through that point.
Q. During the training?
A. No.

Though Appellee claims that Haney had an affirmative duty to immediately stop the children in that scenario, Appellee identifies no instruction on the issue in any form from Haney’s training or otherwise. In the absence of any instruction on the matter, we believe Haney’s response was one left to her discretion. Here, she chose to caution the children that they were getting too close to the path’s edge. Unexpectedly, this apparently created a chain reaction of tripping behind the leader.

In reviewing Appellee’s specific allegations, we think it evident that Haney’s duties in supervising the Night Hike activity were discretionary in nature. In general, supervising the physical activity of others is often a passive function in that an individual is broadly charged with ensuring the safety of the participants. Though Haney did receive some training so that she might know how to conduct the Night Hike activity should she later choose to do so, many of the activity’s finer points were only briefly addressed and some not at all. It would have, indeed, been difficult for the training program here to foresee the many concerns and potential dangers that could arise during the counselors’ supervision of the children in the numerous activities they could conduct. For that matter, it seems that few systems are capable of comprehensively training employees and officers and promulgating rules and regulations so as to anticipate supervisory uncertainties and thereby require certain actions in certain situations.

By way of contrast, we have held that a claim of negligent supervision may go to a ministerial act or function in the public school setting. In Yanero, batting practice was a specific and recurring activity where helmets were provided for their required use in maintaining the student athletes’ safe participation. The coaches appeared widely aware of that rule and, in fact, informed Yanero of its requirement. 65 S.W.3d at 528 (‘Yanero had been playing organized baseball for eleven years prior to his injury. He admits that every coach along the way, including Davis and Becker, had told him that he was required to wear a batting helmet during batting practice.”). Also, in Williams, this Court rejected the notion that the failure of teachers and school administrators to supervise their students in the face of known and recognized misbehavior was a discretionary act. 113 S.W.3d at 150. There, we noted that KRS 161.180(1) required them to “hold pupils to strict account for their conduct on school premises, on the way to and from school, and on school sponsored trips and activities.” Id. (quoting KRS 161.180(1)).

But outside of that setting, we have found that supervising the conduct of others is a duty often left to a large degree— and necessarily so — to the independent discretion and judgment of the individual supervisor. In Sloas, we held that a deputy jailer’s act of supervising inmates engaged in a voluntary work program was “as discretionary a task as one could envision”, observing that

[o]ne man, ... [was] in charge of this crew. He has to watch them, and try as best he can to anticipate what they might do, correct them as necessary, determine their capabilities, sometimes by asking them forthright whether they can or can’t do the job, assign the duties and see that the work is performed.

201 S.W.3d at 480 (emphasis in original). We view as similar Haney’s role as camp counselor and her duty to supervise the safety of the children’s physical activities. When it came to ensuring the safe participation of the children in the Night Hike activity, Haney’s training was largely silent on the matter and, to the extent that she was offered relevant instruction, it was broadly defined and not mandatory. Where her training and instruction were silent, her duties, like the deputy jailer in Sloas, were those generally imposed to exercise reasonable care under the circumstances. Taken alone, we do not believe those duties to be ministerial in nature and, indeed, should not be, lest we transform all general duties into ministerial acts and functions, thus eviscerating the doctrine of qualified official immunity. In this respect, it is worth remembering that a motivating policy of qualified official immunity is that officials who happen to be charged with duties that call for the exercise of their judgment and discretion should not be held personally liable to an individual for damages because such a result would “deter independent action and impair the effective performance of their duties.” 67 C.J.S. Officers § 255 (2009). Indeed, we do not think it appropriate for the threat of liability to be imposed upon Haney where, in many instances, she was essentially asked to supervise the safety of the children to the best of her ability in an event that occurred in an unpredictable manner.

This is not to say, however, that an employee or official must necessarily contravene a particular statute or regulation for his or her act or function to be deemed ministerial. While, indeed, a statute or regulation may create or impose a duty upon an employee or official, the question ultimately depends upon the nature of the duty. Cf. Upchurch, 330 S.W.2d at 430 (“KRS 258.195(1) provides in part that the fiscal court of each county in this state shall on or before July 1, 1954, employ a dog warden, and shall on or before July 1, 1955, establish and conduct a dog pound.”) (emphasis in original). Because it is the nature of the duty that controls the analysis, we have also recognized that a common law duty — if specific and affirmative in its command — could render an act or function essentially ministerial in the absence of any statute or regulation on point See Sexton, 256 S.W.3d at 33 (“In some situations, an act may be ministerial even if that act is not specifically covered by applicable statutes, or administrative regulations. For example, ... if a state entity has actual notice of the existence of a dead or dangerous tree on property owned by that state entity, inspecting or removing the tree may be a ministerial act.”). In either case, therefore, what tends to demonstrate the ministerial nature of an act or function is whether the alleged action or inaction is an identifiable deviation from an “absolute, certain, and imperative” obligation — whatever its source — such that it requires “only obedience” or “merely execution of a specific act from fixed and designated facts.” Yanero, 65 S.W.3d at 522.

Finally, we cannot accept, as Appellee suggests, that the reasoning in Jones v. Lathram, 150 S.W.3d 50 (Ky.2004) should similarly apply here. Driving a motor vehicle is clearly one of the most intensely regulated, trained, tested, and supervised activities that an individual may perform. See generally KRS Title XVI (motor vehicles). Aside from the basic instructions to Night Hike and its brief demonstration to the counselors, there can be no legitimate argument that even vaguely similar regulatory, training, testing, or supervisory systems were in place here so as to limit or define Haney’s decision-making in supervising the children’s activity.

As should now be clear, the question of whether a particular act or function is discretionary or ministerial in nature is and, indeed, shoúld be, inherently fact-sensitive. Both the trial court and the Court of Appeals simply concluded that Haney’s supervisory duties in conducting the Night Hike activity were made ministerial by virtue of her being trained. Yet, without more, this should not halt further analysis and, to be sure, if it did, potentially all public employees and officials could be subject to suit. Rather, a court must continue on and examine the training imparted as it related to the acts or functions alleged as tortious or directly causing the event, all in an effort toward determining whether the training actually left the employee or official with significant discretion regarding the act or function at issue.

VI. Conclusion

For the foregoing reasons, the decisions of the Court of Appeals and the Jefferson Circuit Court are hereby reversed and this matter is remanded to the trial court for further proceedings consistent with this opinion.

All sitting. ABRAMSON, CUNNINGHAM, NOBLE, and VENTERS, JJ., concur.

MINTON, C.J., concurs in the result reached by the majority consistent with his separate concurring opinion in Caneyville Volunteer Fire Dept. v. Green’s Motorcycle Salvage, 286 S.W.3d 790 (Ky.2009), and SCHRODER, J., joins.

      . Upon payment, children were enrolled in a week-long program, lasting from 9:00am to 4:00pm daily. The campers returned home in the evenings.

      . The zoo taught the counselors several activities, though the counselors were free to design their own activities in forming their own weekly schedules. Every week, the counselors completed a program outline of what activities they intended to do with the children and a zoo educator reviewed the outline to ensure that the selected activities were age appropriate.

      .Max is a Florida resident and was visiting Appellee, his grandmother, that summer when she enrolled him in one of the zoo's week-long camps. Appellee is a resident of Louisville, Kentucky.

      . Because it was slightly elevated, the trail path's edge dropped off about a foot to the ground below.

      . At the outset, we must emphasize that we have not re-addressed here the question of whether the Louisville City Zoo or its parent entity, the Louisville/Jefferson County Metro Government, were entitled to sovereign immunity — an analytical predicate to the foregoing discussion, see Comair, Inc. v. Lexington-Fayette Urban County Airport Corp., 295 S.W.3d 91, 99 (Ky.2009) (''[A]n entity’s immunity status depends to some extent on the immunity status of the parent entity.”), Autry v. Western Kentucky University, 219 S.W.3d 713, 719 (Ky.2007) (An agent "derives its immunity status through” the principal.), Yanero v. Davis, 65 S.W.3d 510, 522 (Ky.2001) (“[A]n officer's or employee's actions are afforded the same immunity, if any, to which the agency, itself, would be entitled.”) — as it was not before this Court for reasons that the trial court, on motion of the county attorney, dismissed Zager’s suit against the Louisville/Jefferson County Metro Government on grounds of sovereign immunity. No party challenged that determination.

      . We do note, however, that this maxim is too often divorced from its facts so as to raise more caution than is perhaps necessary. In Upchurch, a farm owner brought suit against Clinton County and its fiscal court members after losing several of his sheep to a number of dogs. 330 S.W.2d at 429. In his complaint, Upchurch asserted that, "pursuant to the terms of KRS 258.195(1), each county was mandatorily required to employ a dog warden ... and to establish a dog pound” and that the defendants had "wilfully failed and neglected, up to the present time, to consummate their official duties in this respect." Id. The trial court, however, found the duties to be discretionary in nature and dismissed the complaint for failure to state a claim on which relief could be granted. Id. at 430. On appeal, our predecessor Court disagreed and concluded that ”[t]he duty required to be performed under [KRS 258.195] was not of a discretionary nature; it was ministerial in character. The law states that a dog warden shall be appointed and a dog pound shall be established and maintained.” Id. Though the statute did not “set forth the qualifications, the salary, the duties and the term of office of the dog warden,” the Court explained that
      [t]hese features are mere details or side issues which do not change the ministerial aspect of such an appointment.... KRS 258.195(1) made the naming of a dog warden and the setting up of a dog pound ministerial when it placed upon the fiscal court members the imperative duty to appoint such an officer and provide for the care of impounded dogs. The necessity to do such acts is still imposed and must be carried out, although some discretion must be resorted to as regards the means to be employed in the execution of the acts."

        Id. (emphasis added).

      . While, to be sure, qualified official immunity applies only where there is also a showing that the act or function was performed in good faith and within the scope of the employee’s authority, Yanero, 65 S.W.3d at 522, these elements of the defense have remained undisputed in Haney’s favor. We thus devote our analysis to only one the defense’s three requirements and the issue that the lower courts have primarily addressed here: that the act or function be discretionary in nature.

      . Though Appellee asserts in her complaint that Haney was negligent "by placing the children in a dangerous situation in which they were blindfolded as they traversed uneven, unfamiliar terrain” and by failing to warn the children of an "inherently dangerous” situation, both allegations sound in breach of her duty of supervision in the Night Hike activity.

      . In Yanero, a minor engaged, in batting practice without a helmet and was later injured when struck in the head with an errant pitch. 65 S.W.3d at 517. The child asserted a claim of negligent supervision against the assistant junior varsity baseball coach and this Court held that the coach was not entitled to the defense of qualified official immunity because the performance of his supervisory duties "in this instance” were ministerial in nature "in that it involved only the enforcement of a known rule requiring that student athletes wear batting helmets during baseball batting practice.” Id. at 529.

      . The only evidence that Appellee points to in claiming the existence of the instruction is Haney’s admission that an oral instruction to that effect was given during her training in the activity.

      . The handout was simply a copied page from a children’s activity book, Night Science for Kids by Terry Krautwurst, titled "Practice Makes Perfect/Night Hike." Haney was not provided a copy of the book.

      . The language that Appellee relies upon here, in relevant part, reads: "When you get back, choose a leader. Everyone else gets a blindfold. No fair peeking under or over the bandana! (If there are lots of kids, separate into groups of no more than four, a leader and three hikers each).” Haney rightly counters that "lots” was not a defined term, either in the handout or during her training, and that a lack of instruction on that point indicates that it was a determination left to the discretion of the counselors, based upon the particular facts before them such as the age and ability of the participants.

      . In addition, student misconduct was further defined through a Code of Conduct adopted by the local Board of Education (pursuant to KRS 160.290) and "charged the teachers with the responsibility to 'enforce rules and regulations of the Board of Education.’ " Williams, 113 S.W.3d at 150-51.

      . In Sloas, a Rowan County Jail inmate was injured after being hit by a falling tree during a voluntary roadside clearing project. 201 S.W.3d at 472-73. Sloas brought suit against the deputy jailer overseeing the work project, alleging negligent supervision.

      . In Jones, this Court held that a police officer’s response "to an emergency call for assistance from a fellow officer" was a ministerial act. Id. at 53. Jones held that "the act of safely driving a police cruiser, even in an emergency, is not an act that typically requires any deliberation or the exercise of judgment”, as "driving a police cruiser requires reactive decisions based on duty, training, and overall consideration of public safety.” Id. This Court has since reaffirmed the holding in Jones. See Pile, 215 S.W.3d at 40; see also Com., Transp. Cabinet, Dept. of Highways v. Sexton, 256 S.W.3d 29, 33 (Ky.2008).


source: Caselaw Access Project

author: /s/ John D. Minton, Jr. CHIEF JUSTICE

license: Public Domain

text:
    KENTUCKY BAR ASSOCIATION, Movant, v. Jennifer Sue WHITLOCK, Respondent.
    No. 2010-SC-000027-KB.
    Supreme Court of Kentucky.
    May 20, 2010.
   OPINION AND ORDER

The Board of Governors of the Kentucky Bar Association has recommended that Jennifer Sue Whitlock, who was admitted to practice law in Kentucky on April 16, 1998, whose Bar Roster Address is P.O. Box 171, 1401 Winchester Avenue, Suite 526, Ashland, Kentucky 41105, and whose KBA Member Number is 87562, be suspended for one year.

Roy L. Crawford hired Whitlock in 2007 to represent him in a lawsuit against Bres-ter Homes of Kentucky. On December 17, 2007, Crawford sent her a check for $2,500, which she deposited in her account.

Crawford did not receive any information thereafter about the extent of Whit-lock’s work, nor did he receive any bills. In May 2008, Crawford unsuccessfully tried to contact Whitlock by phone and email to obtain an update on his case. He emailed her again three times in July 2008 but still received no reply. In September 2008, Crawford sent a letter to Whitlock by certified mail asking for his records, his file, a detailed bill and a response to his requests for information. Whitlock did not respond.

Crawford subsequently filed a bar complaint, a copy of which was personally served on Whitlock in October 2008. No response was filed, so Bar Counsel mailed a reminder letter in November 2008, which was personally signed for by Whitlock. On January 14, 2008, Whitlock emailed Bar Counsel stating that she would file a response within 24 hours, but no response was filed.

The Inquiry Commission issued a formal charge containing five counts on February 13, 2009. The charge alleged violations of (1) SCR 3.130-1.3 for failing to act with reasonable diligence and promptness in representing a client; (2) SCR 3.130-1.4 for failing to respond to the client’s requests about the status of the case; (3) SCR 3.130-1.5(b) for failing to return the unearned portion of a fee to her client and failing to render an accounting of work performed when asked to do so; (4) SCR 3.130-1.16(d) for failing to return the client’s documents and files and to provide a detailed billing statement on request; and (5) SCR 3.130-7.1(b) for failing to respond to the bar complaint.

On March 13, 2008, Whitlock filed her response to the charge, admitting the factual allegations. She submitted documentation of some services performed for Crawford and an itemization of her time spent thereon. The response was not filed, however, because it was untimely. It was returned to Whitlock with a note directing her to file a motion for leave to file a late pleading. No such motion was ever filed.

On April 6, 2009, the Inquiry Commission issued an amended charge (to correct typographical errors). When a copy was attempted to be served, the deputy sheriff found that Whitlock’s office was vacant. Service was subsequently completed on the Executive Director of the KBA as the designated agent for service of process.

On July 29, 2009, this matter was consolidated with another disciplinary matter against Whitlock, apparently due to a mistaken belief that she had filed an answer to this charge. When the mistake was discovered, Bar Counsel attempted to contact Whitlock by phone, leaving several messages in August 2009. Whitlock did not return any of the calls, and eventually the two disciplinary matters were severed.

The matter proceeded to the Board of Governors, which noted that Whitlock formally failed to respond to the charge against her but also took notice of the untimely response she filed. The response asserted that medical and mental health issues played a role in the underlying matters. The Board voted to find Whitlock guilty of all five counts of the charge and recommended that she be suspended for one year, refund the unearned portion of the fee to her client, attend Bar Counsel’s remedial ethics program, and consult with and possibly agree to monitoring by the Kentucky Lawyers Assistance Program.

In so concluding, the Board also took into account Whitlock’s prior discipline, which included: (1) a private admonition in August 2008, (2) a 30-day suspension in December 2008, with the requirement that she attend the Ethics and Professionalism Enhancement Program presented by Bar Counsel in April 2009, (3) a 181-day suspension for misconduct related to two cases in March 2009, and (4) a private admonition in May 2009. The record also shows a second private admonition in September 2009, though the Board did not mention it in its recommendation.

Neither Whitlock nor Bar Counsel has filed a notice for this Court to review the Board’s decision as allowed under SCR 3.370(8). Because the Board’s findings and conclusions are supported by the record and the law, and because the sanction recommended by the Board is appropriate in light of Respondent’s history of prior discipline, her failure to respond formally to the charges against her, and the seriousness of the charges, this Court elects not to review the recommendation of the Board as allowed under to SCR 3.370(9). The decision of the Board is therefore adopted pursuant to SCR 3.370(10).

ACCORDINGLY, IT IS HEREBY ORDERED THAT:

(1) Respondent, Jennifer Sue Whitlock, is suspended from the practice of law in the Commonwealth of Kentucky for one year from the date of this Order.

(2) Respondent shall refund $1,275 in unearned fees to her client Roy Crawford.

(3) Respondent shall attend and complete the Ethics and Professionalism Enhancement Program presented by the Office of Bar Counsel within one year if she has not already done so.

(4) Respondent shall consult with and, if indicated, agree to monitoring by the Kentucky Lawyer’s Assistance Program.

(5) In accordance with SCR 3.450, Respondent is directed to pay all costs associated with these disciplinary proceedings against her, said sum being $314.01, for which execution may issue from this Court upon finality of this Opinion and Order.

(6) Pursuant to SCR 3.390, Respondent shall, within ten days from the entry of this Opinion and Order, notify all clients in writing of her inability to represent them, and notify all courts in which she has matters pending of her suspension from the practice of law, and furnish copies of said letters of notice to the Director of the Kentucky Bar Association, assuming that this is necessary given that she was already suspended from the practice of law. Furthermore, to the extent possible and necessary, Respondent shall immediately cancel and cease any advertising activities in which she is engaged.

All sitting. All concur.

ENTERED: May 20, 2010.

/s/ John D. Minton, Jr. CHIEF JUSTICE

      . The Rules of Professional Responsibility contained in SCR 3.130 have since been renumbered and substantially amended. Thus, the rules cited herein may not correspond to the rules currently in force.


text:
    KENTUCKY BAR ASSOCIATION, Movant, v. Stephen C. KESSEN, Respondent.
    No. 2010-SC-000083-KB.
    Supreme Court of Kentucky.
    May 20, 2010.
   OPINION AND ORDER

The Board of Governors of the Kentucky Bar Association has recommended to this Court that Respondent, Stephen C. Kessen, KBA Member No. 88668, be permanently disbarred as a result of converting funds that belonged to his law firm to his own use. Kessen was admitted to practice law in Kentucky on April 17, 2001, and his last known bar roster address is 3981 Harburg Avenue, Cincinnati, OH 45209. We agree with and adopt the Board’s recommendation.

FINDINGS OF FACT

In 2002, Kessen was a member of both the Kentucky and Ohio Bar Associations and was employed as an associate by Martin and Bailey, a Cincinnati law firm. In 2002 and 2003, Kessen converted checks intended for his firm that had been issued by the clerks of two Ohio courts. During this same time, Kessen personally accepted fifteen checks from a client in payment for legal services when those checks should have been delivered to his law firm. In total, he converted funds totaling $7,650.00 for his own use. These circumstances led to Kessen’s resignation from the Ohio Bar.

Upon learning of this resignation, the Kentucky Bar Association’s Office of Bar Counsel wrote to Kessen asking for an explanation of his resignation. On March 6, 2005, Kessen wrote a letter to Bar Counsel in which he acknowledged that he asked a client to pay him directly for work that he had performed, and that he did keep those funds and did not deliver them to his law firm.

In October 2005, the Kentucky Bar Association’s Inquiry Commission issued a complaint against Kessen. Repeated attempts to serve Kessen were unsuccessful. Pursuant to SCR 3.175(2), the Office of Bar Counsel then served the Executive Director of the Kentucky Bar Association as Kessen’s agent for service of documents. Kessen never responded to the requests for additional information after his March 6, 2005 letter.

On September 21, 2009, the Inquiry Commission issued a three count charge against Kessen. Count I charged Kessen with making a false statement in his letter dated March 6, 2005, in violation of SCR 3.140-8.1(a) “when he stated that his resignation was due to health problems and issues stemming from his divorce, rather than his accepting fees that belonged to his employer”. Count II charged Kessen with violating SCR 3.140-8.1(b) when he “knowingly” failed to respond to a lawful demand for information from a disciplinary authority. As previously stated, Kessen never provided any of the information the Kentucky Bar Association requested. The record reflects that Kessen knew there was an investigation into his alleged misconduct, but he made no effort to aid in the investigation as required by SCR 3.130 — 8.1(b). Count III charged Kessen with violating SCR 3.130-8.4(c) when he engaged in conduct involving dishonesty, fraud, deceit or misrepresentation by virtue of his conversion of funds that belonged to his law firm.

On January 27, 2010, the Board of Governors reviewed the charges against Kes-sen. On Count I the Board found Kessen not guilty by a vote of eighteen to zero. The Board concluded that the record reflected that the March 6, 2005 letter did adequately inform the Kentucky Bar Association that he resigned “rather than go through another investigation.” Thus, the Board determined that Kessen did not make a false statement.

On Count II the Board found Kessen not guilty by a vote of sixteen to two because Kessen was never personally served with the letters requesting information, but was instead provided constructive service through SCR 3.175. Thus, the Board believed that he did not “knowingly” fail to respond to the disciplinary authority because he never received actual notice.

On Count III the Board of Governors found Kessen guilty by a vote of sixteen to two. The Board agreed that there was sufficient evidence to support the charge that Kessen converted money intended for his law firm for his own personal use.

Based on the seriousness of Count III, which Kessen was found guilty of, the Board of Governors recommended by a vote of sixteen to two to permanently disbar him. See Kentucky Bar Association v. Hawkins, 260 S.W.3d 337 (Ky.2008); Kentucky Bar Association v. Steiner, 157 S.W.3d 209 (Ky.2005); and Kentucky Bar Association v. Allen, 32 S.W.3d 765 (Ky.2000).

CONCLUSION

“The findings of fact by the trial commissioners and the Board of Governors in a disciplinary proceeding are advisory only.” Kentucky Bar Ass’n v. Berry, 626 S.W.2d 632, 633 (Ky.1981). “Final decisions of guilt and punishment can only be made by the Supreme Court, and it is done on the basis of a de novo consideration of pleadings and trial review.” Kentucky Bar Ass’n v. Jones, 759 S.W.2d 61, 64 (Ky.1988). Upon reviewing the record, we adopt the Board of Governors’ findings that Kessen is not guilty of Count I, and guilty of Count III, but disagree with the Board’s finding that Kessen is not guilty of Count II.

The record reflects that Kessen was well aware that the Kentucky.Bar Association was investigating the alleged conversion of funds from his former law firm. Kessen pledged to aid with the investigation, but never accepted actual service of any of the letters sent to him requesting additional information. He was then provided constructive service per SCR 3.175(2). Constructive service under this provision was sufficient to place Kessen on notice for all related purposes. Thus, it cannot be said that he did not “knowingly” fail to respond to the disciplinary authority, and we accordingly find Kessen guilty of Count II.

Thus it is ORDERED that:

1) Respondent, Stephen C. Kessen, KB A Member No. 88668, 3981 Harburg Avenue, Cincinnati, OH 45209, is permanently disbarred;

2) In accordance with SCR 3.450, Respondent must pay all costs associated with these disciplinary proceedings against him, the sum being $394.84, for which execution may issue from this Court upon finality of this Opinion and Order;

3)Under SCR 3.390, Respondent must, within ten (10) days from entry of this Opinion and Order, (a) to the extent possible, cancel and cease any advertising activities in which he is engaged; and (b) notify all clients, in writing, of his inability to represent them; notify all courts in which he has matters pending of his disbarment from the practice of law; and furnish copies of said letters of notice to the Director of the Kentucky Bar Association.

All sitting. All concur.

ENTERED: May 20, 2010.

/s/ John D. Minton, Jr. CHIEF JUSTICE

      . We note that the record indicates Kessen had a phone conversation with Bar Counsel, Caty B. Howard, at some point between November 14 and December 16, 2005, in which Kessen indicated he moved to a new address. However, all correspondence sent to the new address was unclaimed and Kessen provided no additional information to the Kentucky Bar Association outside of the March 6, 2005 letter.


text:
    KENTUCKY BAR ASSOCIATION, Movant, v. Jamal A. KOURY, Respondent.
    No. 2010-SC-000119-KB.
    Supreme Court of Kentucky.
    May 20, 2010.
   OPINION AND ORDER

The Kentucky Bar Association (KBA) Board of Governors has moved this Court to adjudicate Jamal A. Koury, whose KBA member number is 91224, guilty of violating SCR 3.130-1.3, SCR 3.130-1.4(a), SCR 3.130-1.16(d), and SCR 3.130-8.4(c), and to order that he be suspended from the practice of law for a period of one year to run consecutive to the 181-day suspension ordered by this Court last month on April 22, 2010. Kentucky Bar Association v. Koury, 308 S.W.3d 217 (Ky.2010). Koury was admitted to practice law in the Commonwealth of Kentucky on May 1, 2006, and his bar roster address is 7809 Warwick Avenue, Louisville, Kentucky 40222. Based upon the findings and conclusions of the Board of Governors, we adjudicate Koury guilty of the charged offenses and impose the recommended sanction.

This disciplinary proceeding stems from Koury’s failure to adequately represent and communicate with Trevor Kelso. Kelso, a resident of England, hired Koury in September of 2006 to represent him concerning a speeding ticket that Kel-so received while visiting the United States. Kelso was traveling through Colorado when he received the speeding ticket, but was set to return to England prior to his court date. Kelso hired Koury, giving him a $1,500.00 retainer. Subsequently, Koury sent Kelso an email stating that Koury had gotten the case continued until a certain date and that he would be back in touch with Kelso.

When Kelso did not hear back from Koury, he sent him a couple of emails inquiring about the case, but received no response. Since Kelso was planning another trip to the United States and had not heard back from Koury, Kelso proceeded to contact the Clerk of Delores County, Colorado, to inquire about the status of the case. Kelso was informed that Koury had never been in contact with the Court on his behalf and that an arrest warrant had been issued for Kelso’s failure to appear for his initial court date. In April of 2007, Kelso, still unable to reach Koury, worked with the Delores County Court Clerk, arranged a court appearance by telephone, during which Kelso pleaded guilty to a lesser charge and agreed to pay a fíne of $88.50. Consequently, the warrant for his arrest was cancelled. However, the $1,500.00 retainer Kelso paid to Koury was never returned.

In December of 2007, Koury was served with a copy of Kelso’s complaint. Koury filed a response. However, the subsequent Complaint issued by the Inquiry Commission was returned, marked “moved, left no address, unable to forward.” Pursuant to SCR 3.175, the KBA Executive Director was served. The Director’s attempt to serve Koury was unsuccessful and Koury never filed a response to the complaint.

Ultimately, the Inquiry Commission charged Kouiy with violating SCR 3.130-1.3 (lack of reasonable diligence); SCR 3.130-1.4(a) (lack of communication), SCR 3.130-1.16(d) (failure to protect client’s interest upon termination by not refunding the unearned fee) and SCR 3.130-8.4(e) (conduct involving dishonesty, fraud, deceit and misrepresentation). Service of the charges was unsuccessful and Koury has not filed an answer to the charges or otherwise contested the facts as represented by the KBA. As a result, Koury’s case came before the Board of Governors as a default case pursuant to SCR 3.210. The Board of Governors unanimously found Koury guilty of the charges.

We adopt the recommended findings of fact and conclusions of law, and given Koury’s disciplinary history, we approve of the recommended sanction. Specifically, Koury was suspended from the practice of law in February 2007 for failure to pay bar dues. However, upon receiving information that Koury was continuing to practice law, Koury was charged with failure to comply with a court order, failure to respond to a demand for information from a disciplinary authority, and engaging in the unauthorized practice of law. As in the matter at hand, Koury made an initial response, but then could not be located. These charges led to the 181-day suspension ordered by this Court on April 22, 2010. Accordingly, we impose the recommended sanction in the instant case of a one-year suspension to run consecutive to the previously imposed 181-day suspension.

Therefore, it is hereby ORDERED that:

1. Jamal A. Koury is adjudicated guilty of violating SCR 3.130-1.3, SCR 3.130-1.4(a), SCR 3.130-1.16(d) and SCR 3.130-8.4(c).

2. Koury is suspended from the practice of law in the Commonwealth of Kentucky for a period of one year to run consecutive to the 181-day suspension ordered by this Court on April 22, 2010. Should Koury, thereafter, seek to have his license restored, he must be processed by the Character and Fitness Committee. Further, the Character and Fitness Committee will have an opportunity, should it be appropriate, to impose any requirements regarding the Kentucky Lawyer’s Assistance Program (KYLAP) prior to restoration.

3. In accordance with SCR 3.390, Koury is ordered to send letters to all Courts in which he has matters pending and all clients for whom he is actively involved in litigation within ten days of this Order notifying them of his inability to continue to represent them and advising them of the necessity of retaining new counsel. Koury shall also provide a copy of such letters to the Director of the KBA. Furthermore, to the extent possible, Koury shall immediately cancel and cease any advertising activities in which he is engaged.

4. Koury is ordered to pay restitution to Mr. Kelso in the amount of $1,500.00.

5. Pursuant to SCR 3.450, Koury is ordered to pay all costs associated with these disciplinary proceedings, said sum being $386.85, and for which execution may issue from this Court upon finality of this Opinion and Order.

All sitting. All concur.

ENTERED: May 20, 2010.

/s/ John D. Minton, Jr. CHIEF JUSTICE


author: CLAYTON, Judge.

text:
    John Matthew WOOLDRIDGE, Appellant, v. Kathryn L. ZIMMERER, Appellee.
    No. 2009-CA-001786-ME.
    Court of Appeals of Kentucky.
    April 23, 2010.
    Larry D. Simon, Louisville, KY, for appellant.
    Kathryn L. Zimmerer, pro se, Louisville, KY for appellee.
    Before CLAYTON, TAYLOR, and THOMPSON, Judges.
   OPINION

CLAYTON, Judge.

John Matthew Wooldridge appeals from the September 8, 2009 order of the Jefferson Family Court extending a domestic violence order (DVO) for an additional three years. We vacate and remand for additional proceedings consistent with this opinion.

On August 17, 2006, Kathryn Zimmerer filed a domestic violence petition against John M. Wooldridge. Following a hearing, the court entered a DVO, which was effective until August 28, 2009. Almost three years later on August 27, 2009, Zim-merer filed another domestic violence petition against Wooldridge. An emergency protective order (EPO) was entered, which was effective until September 8, 2009. At the resulting hearing held on September 8, 2009, after both parties testified, the family court judge concluded that Zimmerer’s new allegations were insufficient for the entry of a second domestic violence order. The family court judge, however, while denying the motion for a new DVO, ordered that the original DVO was to be extended for another three years from the date the original order expired, thereby making the original DVO effective until August 28, 2012. The family court judge held that, since Zimmerer had filed a new petition for another DVO prior to the expiration of the original DVO, the family court still had jurisdiction. The family court judge opined that the filing of a “petition” rather than a motion to amend the DVO was merely a technicality and that it could be viewed as a motion to extend the current DVO. This appeal followed.

The sole basis for Wooldridge’s appeal is his contention that the family court lacked jurisdiction to extend the original 2006 DVO. He reasons that at the September 8, 2009 hearing on the new petition, the original DVO had expired and, therefore, could not be extended. Wooldridge bolsters this contention by noting that Zimmerer filed a petition for a new DVO and did not file a motion to amend the original DVO. In sum, the issue on appeal is whether the family court had jurisdiction on September 8, 2009, to extend the August 29, 2006 DVO against Wooldridge for an additional three-year period.

The trial judge’s handwritten notation on the court’s docket sheet says:

While this is not a motion per se (but a new EPO) all allegations in petition refer to old DVO and continuing its protection. P[etitioner] is clearly afraid of Respondent] and she believes DVO has kept him away from her. Petitioner] testified to believing Respondent] will resume trying to contact her — she said he called her a month ago.
Extend DVO — (new case states “Motion” to Extend is okay as long as filed before DVO expires).
New “petition” was filed on 8/27 and DVO did not expire until 8/28.
DVO extended for 3 years.

According to Kentucky Revised Statutes (KRS) 403.750(1), a court may enter a DVO “if it finds from a preponderance of the evidence that an act or acts of domestic violence and abuse have occurred and may again occur [.]” The next section of the statute, KRS 403.750(2), instructs as to the reissuance of a DVO. Specifically, this section provides that

Any order entered pursuant to this section shall be effective for a period of time, fixed by the court, not to exceed three (3) years and may be reissued upon expiration for an additional period of up to three (3) years. The number of times an order may be reissued shall not be limited. With respect to whether an order should be reissued, any party may present to the court testimony relating to the importance of the fact that acts of domestic violence or abuse have not occurred during the pendency of the order.

Although, as argued by Zimmerer in her brief, this Court in Kingrey v. Whitlow, 150 S.W.3d 67 (Ky.App.2004), held that a DVO could be reissued even where no additional violence or abuse had occurred during the pendency of the DVO, that is not the issue presented to us. Indeed, the issue here is not evidentiary but jurisdictional.

In that vein, we observe that Kingrey has been distinguished by Fedders v. Vogtr-Kilmer, 292 S.W.3d 905 (Ky.App.2009). Fedders clarifies that, even though proof is presented to a court that a DVO could be reissued, the court must still have jurisdiction to extend an order.

In fact, our specific issue is not addressed in Fedders. In that case, the parties filed a motion to extend the DVO and not a petition for another DVO. We observed in that opinion:

On September 1, 2006, Vogt-Kilmer moved to amend the prior order to extend it for three years....
On January 16, 2008, Vogt-Kilmer filed a motion to amend the prior DVO.

Id. at 906.

So, therein, motions were filed asking the court to extend the existent DVO. The significant factor was that the January 16, 2008 motion was filed some time after the expiration of the pertinent DVO, which had only been extended to December 12, 2007. Clearly, the second motion in Fed-ders was made after the expiration of the DVO’s effective date. Notwithstanding the motion occurring after the expiration of the DVO, the family court in Fedders extended the DVO. On appeal, we held that

There are no published cases addressing this issue. This may well be because it seems so obvious that once a DVO has expired, then the petitioner would not seek an extension but rather simply file for a new DVO. Even in this case, Vogt-Kilmer filed two new petitions for DVOs once the previous DVO had expired or was about to expire. Vogt-Kilmer did not file for extensions as she did in January 2008. While neither party addressed this issue to the court, we believe that once the DVO expired on December 12, 2007, that case was concluded and no further action could be based upon a DVO that had expired. By waiting until January 16, 2008 (some 35 days later), Vogt-Kilmer lost the ability to file to amend the order and should have filed a new domestic violence petition.

Id. at 908. Thus, in the above-discussed case, the family court lost its jurisdiction over the DVO because it had expired.

Here, the issue is somewhat different because Zimmerer filed another action, a petition for a DVO, the day before her original DVO expired. But because she filed a petition for another DVO, Zimmerer’s original DVO still expired on August 28, 2009. On that date, she no longer was protected by the DVO but was now under the protection of a newly issued EPO. Indeed, the entire procedural actions attendant upon the filing of a petition for a DVO followed her filing of the petition. Zimmerer was granted an EPO and a hearing on the allegations in the EPO. Inopportunely for Zimmerer, however, at the hearing the family court judge held that the allegations in the EPO were not sufficient for the granting of another DVO. Given the level of discretion that is afforded a trial court on its evidentiary conclusions, we are unable to hold that the trial court abused its discretion in its conclusion about the entry of another DVO.

In retrospect, Zimmerer makes a case that the filed petition was intended as a motion to extend the 2006 order. A reading, however, of the actual petition does not use the words “motion” or “extend.” Moreover, the 2009 petition is numbered differently than the original 2006 petition and DVO. And finally, the family court judge starts the hearing for the purposes of determining whether a new DVO should be issued and not to ascertain whether the original DVO should be extended. The family court judge only extends the original DVO after determining that there is insufficient evidence for another DVO.

Further, we are not persuaded by Zim-merer’s other arguments. Her discussion of “notice pleading” is inapposite here. In addition, Zimmerer’s argument regarding the lack of Administrative Office of the Courts (AOC) forms is also incorrect. In other cases regarding extensions of existing DVOs, our Court has referred to the motion to amend as an appropriate form to use. For example, in our unpublished case, Rogers v. Rogers, 2007 WL 2332561 (Ky.App.2007), in dicta is stated “[t]he Petitioner has filed a motion to amend the Domestic Violence Order dated 4-21-04[.]” Id. at *2. And in Fedders, we say that “Vogt-Kilmer filed a motion to extend the prior DVO.” Fedders, 292 S.W.3d at 906. In fact, there is no case where a petition for an EPO/DVO is used as a motion to extend a DVO.

We recognize the family court’s concern for Zimmerer and its recognition that Zim-merer is still in fear of Wooldridge. And we acknowledge that the legislative policy behind the domestic violence statutes is to protect victims of domestic violence. Nonetheless, the DVO statutes establish the jurisdictional prerequisites for extending a DVO and we must maintain these jurisdictional parameters to maintain the efficacy of these statutes. And, even though caselaw has held that an extension of a DVO has a different evidentiary standard than the entry of a DVO, the issue here is not evidentiary but jurisdictional. It is a consequential precept that courts cannot alter or contradict the plain meaning of statutes. Hence, the trial judge, while well-meaning, does not have the authority to re-characterize a “petition” for a DVO as a motion for an extension of a DVO. Legally, they are not the same thing.

For the foregoing reason, we vacate the amended DVO entered by the Jefferson Family Court and remand this matter for dismissal.

ALL CONCUR.


author: PER CURIAM:

text:
    STATE of Missouri, Respondent, v. James Joseph HAMILTON, Appellant.
    No. WD 69404.
    Missouri Court of Appeals, Western District.
    Oct. 27, 2009.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 22, 2009.
    Appellant acting pro se.
    Shaun J. Mackelprang and Jayne T. Woods, Jefferson City, MO, for respondent.
    Before ALOK AHUJA, P.J., JAMES M. SMART, JR., and LISA WHITE HARDWICK, JJ.
   Order

PER CURIAM:

James Joseph Hamilton appeals the judgment denying his post-conviction motion for DNA testing and release of sentence pursuant to section 547.035. The judgment is affirmed pursuant to Rule 84.16(b).


author: KAREN KING MITCHELL, Judge.

text:
    CITY OF GREENWOOD, Missouri, Respondent, v. MARTIN MARIETTA MATERIALS, INC., and Hunt Martin Materials, LLC, Appellants.
    No. WD 70495.
    Missouri Court of Appeals, Western District.
    Feb. 9, 2010.
    As Modified March 30, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 30, 2010.
    Application for Transfer Denied May 25, 2010.

      Edward D. Robertson, Jr., Mary D. Winter, and Anthony L. DeWitt, Jefferson City, MO, Brian J. Madden, R.B. Miller, III, and R. Kent Sellers, Kansas City, MO, H. Waynes Phears, Atlanta, GA, for Appellants.
    Steven E. Mauer and Heather S. Esau Zerger, Kansas City, MO, Brian C. Walsh, St. Louis, MO, for Respondent.
    Before Division III: JAMES EDWARD WELSH, Presiding Judge, and MARK D. PFEIFFER and KAREN KING MITCHELL, Judges.
   KAREN KING MITCHELL, Judge.

This is an appeal from a judgment of the Circuit Court of Jackson County, Missouri (“trial court”), granting a permanent injunction to the City of Greenwood, Missouri (“Greenwood”), prohibiting trucks transporting rock from a quarry run by Appellants Martin Marietta Materials and Hunt Martin Materials (collectively, “Quarry”) from using a particular road route through Greenwood to Missouri Highway 150. We reverse the judgment of the trial court.

Factual and Procedural Background

Greenwood is a fourth-class city of approximately 4,000 residents located in southern Jackson County, Missouri. Quarry has been in operation just south of Greenwood for more than fifty years. There are two routes available for trucks transporting rock from Quarry to Highway 150, the main east-west route in the area. The route in dispute in this case runs from 150 Highway south along Second Avenue and a few other side streets to Quarry. This route, known as the Second-Avenue route, is a narrow country road that passes through a residential area and a commercial area on the eastern edge of Greenwood. Prior to June of 2006, Greenwood designated Second Avenue as its only permitted truck route.

In June of 2006, due to concern over high-volume truck traffic, Greenwood enacted an ordinance that limited the weight of trucks that could use Second Avenue. On January 26, 2007, the ordinance was declared to be inconsistent with Missouri law and thus invalid by the United States District Court for the Western District of Missouri (“federal court”). Martin Marietta Materials, Inc. v. City of Greenwood, No. 06-0697-CV-W-DW, 2007 WL 5198731 (W.D.Mo. Jan. 26, 2007).

In February of 2007, Greenwood passed another ordinance that prohibited all commercial vehicles from using Greenwood streets unless a street had been designated a “Commercial Use Route” (“new ordinance”). At that point, no Greenwood street was designated as a Commercial Use Route. Quarry brought an action in federal court seeking to enjoin enforcement of the new ordinance alleging that Greenwood, in enacting the ordinance, breached a 1991 contract between Quarry and Greenwood and violated the Commerce Clause of the United States Constitution.

Greenwood brought its own action in the Circuit Court of Jackson County for declaratory judgment, seeking a declaration that the new ordinance was valid under Missouri law. Quarry removed Greenwood’s state case to federal court, but it was remanded because the federal court found that, while asserting a defense to a federal action in a parallel state court case normally supports removal, a simple declaratory judgment action brought by a state entity to uphold the state constitutionality of its actions is not within the federal question jurisdiction of the federal court. Thus, based on the limited relief sought in the initial petition, the federal court remanded this case to the state court. City of Greenwood v. Martin Marietta Materials, Inc., 2007 WL 1859192 (W.D.Mo. June 26, 2007).

Greenwood subsequently amended its state court pleading to add two counts for public nuisance (based on the high volume of truck traffic on Second Avenue); a count for trespass; and a count for negligence (based on Quarry’s prior attempts to repair Second Avenue). Greenwood’s petition asked for money damages and punitive damages in addition to the declaratory judgment sought in count I. Nowhere in the petition did Greenwood request injunc-tive relief. Greenwood also did not allege irreparable harm or inadequate legal remedies. The petition did include a general prayer for such other relief as the court deemed just and proper.

On June 26, 2007, the federal court granted Quarry a preliminary injunction against enforcement of the new ordinance on the grounds that it violated the Commerce Clause of the United States Constitution. Quarry trucks began using Second Avenue again on July 1, 2007.

On March 5, 2008, a jury trial commenced in state court on Greenwood’s negligent repair, nuisance, and trespass claims. On March 14, 2008, the jury returned verdicts for Greenwood for $1.9 million in compensatory damages and $10 million in punitive damages on the claims of negligent repair and public nuisance. The jury found for Quarry on the trespass claim. The trial court entered judgment on counts II through V on March 17, 2008, in accordance with the jury verdicts. Quarry filed motions for judgment notwithstanding the verdict or for new trial, which were denied in two documents also denominated as judgments on May 6, 2008. On May 16, 2008, Quarry filed a notice of appeal of the May 6 judgment.

Meanwhile, on April 1, 2008, Greenwood filed a motion for a permanent injunction in the state case, asking the trial court to prohibit Quarry truck traffic on Second Avenue.

On June 13, 2008, count I (seeking declaratory judgment) was tried to the court, and on June 16, 2008, the trial court entered a judgment declaring that Greenwood’s revised quarry ordinance was valid under Missouri law. On June 80, 2008, Quarry filed a notice of appeal of the trial court’s declaratory judgment on count I and all documents the trial court had denominated as judgments.

A hearing on Greenwood’s motion for injunctive relief was initially set for July 11, 2008. Before the hearing, Greenwood sought clarification from the federal court of whether the previously granted federal preliminary injunction preventing enforcement of the new ordinance prohibited Greenwood from seeking a state court injunction regarding the same ordinance. The federal court refused to grant Greenwood an “advisory opinion” on whether proceeding with the state court injunction action would place Greenwood in contempt of the previous federal order.

In its order, the federal court indicated that it was “disturbed by the state of affairs in this dispute and increasingly frustrated by the conduct of [Greenwood].” Martin Marietta Materials, Inc. v. City of Greenwood, No. 06-0697-CV-W-DW, 2008 WL 2700062, at *1 (W.D.Mo. July 10, 2008). Responding to Greenwood’s assertion that there was a “rift” between the federal and state court, the federal court held Greenwood responsible for “splitting this cause of action and arguing inconsistent positions before each court.” Id. The federal court intimated that had Greenwood’s injunctive claim been pleaded earlier, the case would have proceeded differently.

Although this court had an opportunity to consolidate these cases when the state court action was removed, remand was required based on the record before it at the time of removal. The Court is of the opinion that if all issues and claims had been honestly presented during the early phases of this dispute, either here or in state court, the present predicament would have been avoided.

Id. The July 11 hearing in state court was continued.

On September 3, 2008, while the appeal of the state court action was pending in this court, the trial court held a status conference. At that time, Greenwood still wanted the trial court to rule on its motion for injunctive relief filed April 1, 2008. Quarry argued at the status conference that the trial court no longer had jurisdiction to offer any further relief, as judgment had been entered on each count in the amended petition and the matter was pending on appeal. In response to Quarry’s concerns, the trial court recommended that Greenwood file a new petition seeking injunctive relief. Greenwood did so on September 4, 2008. On the same day, the federal court entered a permanent injunction barring Greenwood from taking any action that prohibits all through truck traffic through the city. Martin Marietta Materials, Inc. v. City of Greenwood, No. 06-697-CV-W-DW, 2008 WL 4832638, at *8 (W.D.Mo. Sept. 4, 2008).

On September 23, 2008, Quarry removed the newly filed state injunctive action to federal court. The next day, Greenwood voluntarily dismissed that action and filed a notice of hearing on its April 1, 2008 motion for injunctive relief under the number of the state-court case pending appeal. The state trial court held a hearing on Greenwood’s motion for injunction on November 12, 2008. Quarry again objected to the trial court’s jurisdiction to decide the matter since the case was pending on appeal. On November 17, 2008, 154 days after entering judgment on the last pleaded count in Greenwood’s petition, the trial court entered judgment giving Greenwood an injunction prohibiting quarry trucks, and only quarry trucks, from using Second Avenue. This appeal follows.

Standard of Review

An action seeking injunction is an action in equity. The standard of review in a court-tried equity action is the same as for any court-tried case; the trial court’s judgment will be sustained unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carrón, 536 S.W.2d 30, 32 (Mo. banc 1976).

To the extent that a trial court’s grant of injunctive relief involves weighing the evidence presented, determining the credibility of witnesses, and formulating an injunction of the appropriate scope, this court reviews for abuse of discretion. Doe v. Phillips, 259 S.W.3d 34, 37 (Mo.App. W.D.2008). Questions of law, however, are reviewed de novo, and no deference is given to the trial court. In re Smythe v. Funk, 254 S.W.3d 895, 897 (Mo.App. S.D. 2008).

Legal Analysis

A. Sufficiency of the claim for in-junctive relief

Quarry’s first points on appeal are that the trial court erred in granting Greenwood’s request for injunctive relief because Greenwood did not affirmatively ask for injunctive relief or plead factual issues that would support injunctive relief in its amended petition. It is well established that the “powers of a court of equity to adjudicate are broad but are limited to the claim for relief and issues made by the pleadings.” Blando v. Reid, 886 S.W.2d 60, 67 (Mo.App. W.D.1994) (emphasis added). “To the extent that [a] judgment goes beyond the pleadings, it is void.” Residential & Resort Assocs., Inc. v. Wolfe, 274 S.W.3d 566, 569 (Mo.App. W.D.2009). Therefore, a trial court has the authority to grant relief only if: (1) the relief is requested, and (2) issues are raised that support the granting of such relief. In this case the trial court exceeded its authority in considering Greenwood’s motion for injunctive relief.

i. The relief sought

Quarry claims that Greenwood’s prayer for relief, which does not specifically request an injunction but does generally request other relief that is “just and proper” is insufficient to support the trial court’s grant of injunctive relief. As Greenwood notes, this court has stated that a general prayer for relief, such as Greenwood’s request for “such other relief this court deems just and proper,” is elastic enough to encompass other equitable relief, including an injunction. See City of Kansas City v. Mary Don Co., 606 S.W.2d 411, 414 (Mo.App. W.D.1980). However, courts rarely grant injunctive relief based solely upon a general prayer. In Blando we stated that the “just and proper” language “is more than mere custom” and may allow an equity court “to enter relief required to resolve the issues raised by the allegations in the cause pleaded.” 886 S.W.2d at 67. But we went on to say that such general language is “not a panacea for unpleaded causes of action” and reversed the trial court’s order of partition and sale in an equitable suit to rescind a warranty deed. Id. In this case, Greenwood never sought to amend its petition to add a prayer for injunctive relief, choosing to stand solely on its general prayer. We need not address directly whether Greenwood’s general prayer is elastic enough to encompass an injunction because the trial court’s award of injunctive relief fails for other reasons, as detailed below.

ii. Facts pleaded or tried by consent

Generally, the prayer for relief is not considered part of the petition. City of Kansas City v. N.Y.-Kan. Bldg. Assocs., L.P., 96 S.W.3d 846, 853 (Mo.App. W.D. 2002). “This rule is particularly applicable to equitable proceedings.” Id. Thus, granting relief not specifically prayed for in the pleadings is appropriate only if it resolves “issues raised by the allegations in the cause pleaded.” Blando, 886 S.W.2d at 67. Courts are restrained from deciding an unpleaded factual issue. Colbert v. State, Family Support Div., 264 5.W.3d 699, 702 (Mo.App. W.D.2008) (in case addressing the propriety of the division intercepting father’s tax return to pay child support debt, trial court exceeded its authority in ordering that the father’s child support arrearage was satisfied when the father did not pray for such relief nor put on evidence that the debt was satisfied). The relief granted must be “fully supported by facts which were either pleaded or tried by consent.” Feinberg v. Feinberg, 924 S.W.2d 328, 330 (Mo.App. E.D. 1996). Quarry contends that not all facts necessary to prove the elements of an injunction were pleaded or tried by consent. We agree.

Greenwood maintains that the grant of an injunction in this case is supported by facts pleaded and tried to establish its public nuisance claim. However, a party cannot plead an action in law and recover in equity. Carlton v. Wilson, 618 S.W.2d 731, 732 (Mo.App. S.D.1981). Because Greenwood’s public nuisance claim was a claim at law, Greenwood cannot rely on the pleading of the facts supporting the public nuisance claim to also support its motion for injunction, an equitable remedy supposedly justified by the fact that the count for declaratory judgment (its only equitable claim) was still pending at the trial court when Greenwood moved for in-junctive relief.

Even if Greenwood’s cause of action for public nuisance could support the grant of injunctive relief, each element of a claim for injunctive relief must be supported by facts that were either pleaded or tried by consent. The elements of a claim for permanent injunction include: (1) irreparable harm, and (2) lack of adequate remedy at law. N.Y.-Kan. Bldg. Assocs., L.P., 96 S.W.3d at 855. Greenwood’s amended petition does not allege irreparable harm. In addition, Greenwood acknowledges that it could not have raised irreparable harm in its petition because it did not know that the award of damages would not stop Quarry from using Second Avenue. Therefore, the only question is whether the issue of irreparable harm was tried by express or implied consent.

In this case there is no question that the issue of irreparable harm was not tried by express consent. Quarry objected to the injection into this case of issues pertaining to injunctive relief at every step of the way. Nor can the presentation of evidence in support of Greenwood’s public nuisance claim be the basis for a finding of implied consent to the litigation of irreparable harm. Application of the implied consent rule is limited to when the evidence bears only on the un-pleaded issue and not upon issues already in the case. Residential & Resort Assocs., Inc., 274 S.W.3d at 569; Rule 55.33(b). Assuming, arguendo, that Greenwood’s evidence of public nuisance proved each of the elements required for grant of an injunction, that evidence was admitted for purposes of proving public nuisance and cannot be the basis for a finding of implied consent to trial of the injunction issues including irreparable harm.

We also find that the evidence presented in support of Greenwood’s public nuisance claim is insufficient to support the grant of injunctive relief because it does not demonstrate that Greenwood had no adequate remedy at law. N.Y.-Kan. Bldg. Assocs., L.P., 96 S.W.3d at 855.

An injunction is an extraordinary and harsh remedy and should not be granted when there is an adequate remedy at law. Generally, the phrase ‘adequate remedy at law1 means that damages will not adequately compensate the plaintiff for the injury or threatened injury. Irreparable harm can be found when pecuniary remedies fail to provide adequate reimbursement for improper behavior.

Id. (internal citations omitted). In this case, the jury awarded Greenwood $1.9 million in compensatory damages and $10 million in punitive damages. At trial Greenwood argued that the abatement of the nuisance would be a new road for Second Avenue. A new road would presumably alleviate the traffic and safety concerns which currently exist because of the road’s narrow width and poor condition. Greenwood did not even attempt to complete the abatement it sought and received from the jury before it sought in-junctive relief from the court. Greenwood’s monetary compensatory damage award and punitive damage award indicate that an adequate legal remedy exists. Accordingly, Greenwood neither pleaded nor tried the issues of irreparable harm and inadequate remedy at law and, therefore, injunctive relief at the time it was entered by the trial court was not proper.

B. The trial court’s jurisdiction to address Greenwood’s motion for permanent injunction

Quarry’s next point on appeal is that the trial court was without jurisdiction to grant the motion for injunctive relief because final judgment on all counts had been entered and the appeal was pending before this court when the judgment granting injunction was entered. Historically, it has been said that a trial court loses jurisdiction to take any further action in a case when the judgment becomes final. State ex rel. Wolfner v. Dalton, 955 S.W.2d 928, 930 (Mo. banc 1997); Rule 75.01. If a proper post-trial motion were filed, the trial court’s jurisdiction would be said to extend until the court ruled on the post-trial motions, or until ninety days after the entry of judgment, at which time the post-trial motions would be deemed denied. State ex rel. Eddy v. Rolf, 145 S.W.3d 429, 432 (Mo.App. W.D.2004); Rule 81.05. The only motions that could extend the trial court’s jurisdiction beyond thirty days were motions: to dismiss without prejudice after the introduction of evidence is commenced; for directed verdict; for judgment notwithstanding the verdict; to amend the judgment; for relief from judgment or order; or for new trial. Eddy, 145 S.W.3d at 433 n. 2.

Similarly, it was said that “an appeal cuts off trial court jurisdiction to exercise any judicial function in the case and vests jurisdiction in the appellate court.” Top Craft, Inc. v. Int’l Collection Sens., 258 S.W.3d 488, 490 (Mo.App. S.D.2008). In this case, both the time limits under Rules 75 and 81 had expired and the appellate court had assumed jurisdiction, so it would have been easily concluded that the trial court did not have jurisdiction to enter injunctive relief in the case.

However, in January of 2009, the Missouri Supreme Court decided Webb v. Wyciskalla, 275 S.W.3d 249 (Mo. banc 2009). Webb, citing other recent Missouri Supreme Court cases, stressed that there are really only two forms of jurisdiction: personal jurisdiction and subject-matter jurisdiction. Id. at 252. Webb holds that, if a trial court errs and a statutory or procedural requirement is not met, the trial court does not “lose” jurisdiction but has simply erred, and the appellate court must determine whether waiver of the statutory or procedural safeguard applies and, if not, whether the error is prejudicial to the aggrieved party. Id. at 254. Greenwood seems to argue that Webb somehow renders all established procedural law merely advisory and not mandatory, and that the trial court could, therefore, enter additional relief well after it would ordinarily have “lost” jurisdiction.

We find that Greenwood misapplies Webb. Webb and its contemporaries all deal with the trial court’s original jurisdiction. They do not deal with appellate jurisdiction and whether a trial court and appellate court can have concurrent jurisdiction over the same case. In this case, the appeal of the trial court’s judgment, in which Greenwood acquiesced, was already pending in this court when the trial court purported to enter additional relief in the form of an injunction. Greenwood does not challenge this court’s authority over the first appeal. We do not find, as Greenwood evidently argues, that Webb supersedes the longstanding rule against simultaneous trial and appellate court jurisdiction, which takes its authority directly from the Missouri Constitution. Rather, the appellate court’s assumption of appellate jurisdiction removes the trial court’s jurisdiction over the subject matter of the case. See Mo. Const, art. V, §§ 3 and 14. At some point a judgment must become final. At that point the trial court’s ability to act ceases and the appellate court’s ability to review commences. If that were not the case, continuing activity in a case appealed would make it unreviewable.

We find that the trial court’s jurisdiction ceased even though Greenwood’s motion for injunctive relief was filed while Greenwood’s equitable claim for declaratory judgment was still pending. In arguing that the trial court retained jurisdiction, Greenwood relies on Custom Muffler & Shocks, Inc. v. Gordon Partnership, 3 S.W.3d 811, 817 (Mo.App. W.D.1999), which states that “once a court of equity asserts its jurisdiction, it will retain jurisdiction until it decides all of the issues adequately and fairly between the parties.” Greenwood’s reliance on Custom Muffler is misplaced. As discussed in detail above, Greenwood’s claim for injunctive relief was never properly before the trial court. Therefore, unlike in Custom Muffler, in this case the only equitable issue “adequately and fairly” between the parties was Greenwood’s request for declaratory judgment, which was resolved months before the trial court heard evidence on and granted Greenwood’s motion for permanent injunction. Id. As noted above, even if Greenwood were correct that once an equitable court assumes jurisdiction it may resolve all issues between the parties in order to achieve complete justice, the court must resolve the ancillary issues at the same time that it resolves the pleaded equitable claims.

Further, Custom Muffler is distinguishable because a pleaded equitable issue remained before the court throughout that litigation. In Custom Muffler, the plaintiffs brought an action seeking both a preliminary and permanent injunction prohibiting the barricading of a parking lot (equitable relief) and a prescriptive easement (legal relief). The trial court entered a preliminary injunction and then tried the issues of permanent injunction and prescriptive easement. In arguing that the trial court erred in denying them a jury trial, the defendants claimed that if the legal (easement) claims were resolved in the plaintiffs’ favor, the permanent injunction would not be necessary. Id. Thus, defendants claimed the grant of the preliminary injunction resolved the only equitable issue in the case and equitable jurisdiction ceased at that point. The trial court disagreed, finding that the plaintiffs still sought the equitable remedy of a permanent injunction. Id. Unlike Custom Muffler, in this case the trial court resolved the only equitable issue pleaded when it granted Greenwood’s request for declaratory judgment because, as stated above, the issues and facts supporting injunctive relief were not pleaded or tried by express or implied consent. Further, there was no issue of appellate jurisdiction in Custom Muffler. Therefore, the case does not support Greenwood’s position.

Conclusion

Because we find that the trial court’s judgment granting injunctive relief was in error, we reverse the November 17, 2008 judgment of the trial court. Thus we need not decide Quarry’s other remaining points on appeal. Of course, if Second Avenue is properly repaired and the quarry traffic continues to be a nuisance, Greenwood is welcome to seek injunctive relief at a later date. However, if Greenwood files a new petition in the state trial court, the court should consider thoroughly all previous rulings in state and federal court actions between these parties reflecting on the propriety of injunctive relief prohibiting through trucks in Greenwood, and earefully balance the interests of the parties in fashioning any injunctive relief it deems appropriate.

JAMES EDWARD WELSH, Presiding Judge, and MARK D. PFEIFFER, Judge, concur.

      . Appellants are Martin Marietta Materials, Inc., a world-wide operator of quarries, and Hunt Martin Materials, LLC, a company formed in 1995 by Martin Marietta and Hunt Midwest Mining. Appellants each own fifty percent of the Greenwood quarry. The particular ownership specifics are not important on appeal. Therefore, we will simply refer to Appellants as "Quarry.”

      . The evidence is considered in a light most favorable to the decision of the trial court. Edmunds v. Sigma Chapter of Alpha Kappa Lambda Fraternity, Inc., 87 S.W.3d 21, 23 (Mo.App. W.D.2002).

      . Litigation regarding the Quarry’s use of Greenwood streets proceeded simultaneously in state and federal court. Because the issues in these cases are intertwined, in addressing the procedural background of this case, we will also address the collateral federal litigation.

      . The appeals were consolidated by this court and were affirmed on August 11, 2009.

      . Quarry asserts as point I on appeal that the trial court lacked authority to grant injunctive relief because Greenwood did not file a petition for injunction that pleaded facts supporting injunctive relief nor did it pray for injunc-tive relief. Point II was that Greenwood's prayer for “such other relief as may be deemed by this court to be just and appropriate” is insufficient to properly plead injunc-tive relief. Point IV is that Greenwood failed to allege irreparable harm as is required for an award of injunctive relief. Because all three of these points deal with the sufficiency of Greenwood's claim for injunctive relief, they will be addressed together.

      . Quarry argues that this was a calculated move on Greenwood’s part to avoid removal to the federal court.

      . Greenwood asserts that Quarry did not preserve its point that Greenwood failed to allege irreparable harm. We disagree. Quarry did object at trial that Greenwood had not pled for an injunction, and Greewood insisted that it was not seeking injunction at that time. Quarry objected to the trial court taking up the motion for injunctive relief after all counts of the petition had been decided and were on appeal. When the trial court elected to address the motion for injunction at a separate hearing, despite Quarry’s numerous objections, Quarry argued in closing that Greenwood had not proven irreparable harm. We find this sufficient to preserve the issue for appeal.

      . Although the witness for Greenwood mentioned the "new road," it appears that Greenwood intended only to repair and expand the existing road.

      . See In re Marriage of Hendrix, 183 S.W.3d 582 (Mo. banc 2006); State ex rel. State v. Parkinson, 280 S.W.3d 70 (Mo. banc 2009).

      . Article V, section 5 gives the Supreme Court the power to "establish rules relating to practice, procedure and pleading for all courts and administrative tribunals, which shall have the force and effect of law.” Supreme Court rules delineating the procedure for when and how trial court jurisdiction ends and appellate jurisdiction begins do not violate the Constitution or run afoul of the Supreme Court's holding in Webb. See Webb, 275 S.W.3d at 254.

      . The above analysis addresses Quarry’s first four points on appeal. Its final two points are that the trial court’s grant of injunctive relief was erroneous in that it did not balance all applicable factors to find the least restrictive means of abatement of the public nuisance and that it violated the terms of the Commerce Clause of the United States Constitution as found by the federal court.