author: THOMPSON, Judge.

text:
    HIGHLANDS HOSPITAL CORPORATION, Appellant/Cross-Appellee, v. Jessica PREECE, Appellee/Cross-Appellant.
    Nos. 2008-CA-000371-MR, 2008-CA-000484-MR.
    Court of Appeals of Kentucky.
    Feb. 19, 2010.
    Discretionary Review Denied by Supreme Court Nov. 10, 2010.

      Vincent Candiello (argued), Harrisburg, PA, Thomas M. Smith, Prestonsburg, KY, for appellant.
    Earl M. McGuire (argued), Prestons-burg, KY, for appellee.
    Before CLAYTON and THOMPSON, Judges; LAMBERT, Senior Judge.

      . Senior Judge Joseph E. Lambert sitting as Special Judge by assignment of the Chief Justice pursuant to Section I10(5)(b) of the Kentucky Constitution and KRS 21.580.

   OPINION

THOMPSON, Judge.

Jessica Preece commenced this action in the Floyd Circuit Court alleging that her employer, Highlands Hospital Corporation (HHC), interfered with the exercise of her rights provided under the Family and Medical Leave Act of 1993, 29 U.S.C. § 2615 (FMLA). She also alleged that HHC intentionally inflicted emotional distress. The circuit court granted HHC’s motion for partial summary judgment in regard to the intentional infliction of emotional distress claim but denied HHC’s motion as it applied to the FMLA claim. A jury returned a verdict in favor of Preece, finding that HHC interfered with the exercise of her rights under the FMLA and awarded $35,000 for lost wages. Because the jury also found that HHC acted in bad faith pursuant to 29 U.S.C. § 2617(a)(1), the trial court doubled the jury’s award in the amount of $35,000 and awarded $27,000 in front pay.

HHC asserts four issues on appeal: (1) whether the trial court improperly admitted the testimony of Mary Jarvis, a former HHC employee; (2) whether the trial court erred when it denied its motion for directed verdict on the basis that prior to her termination, Preece received her entitlement under the FMLA; (3) whether Preece was entitled to double damages and front pay; and (4) whether the jury instructions properly stated the applicable law. In her cross-appeal, Preece raises three errors; however, because we affirm the jury’s verdict, it is only necessary to discuss her assertion that the trial court erroneously granted HHC summary judgment on her claim for intentional infliction of emotional distress. Because we reject the parties’ arguments, we affirm.

FACTS

Preece began employment with HHC as a Certified Nursing Assistant on July 3, 2000. Her annual salary was $18,969.60, and she worked twelve-hour shifts, including one unpaid hour for lunch. Her regular schedule required that she work three shifts one week followed by four shifts the following week for a total of seven shifts every two weeks.

In April 2004, Preece discovered that she was pregnant and, after several months, began to have physical difficulties attributable to her pregnancy. Because she anticipated that she would require time off work, Preece approached Tamara Clark, the human resources department manager, regarding intermittent family medical leave. At that time, Preece was informed that she had twelve weeks of leave available under the FMLA. However, Preece testified that she was neither told how the twelve weeks would be calculated nor informed that she could use her accumulated vacation and sick days instead of FMLA leave. Further, Clark did not inform her that intermittent leave would be calculated on an hourly basis rather than the days missed. Although there was a poster displayed at HHC that informed employees regarding FMLA leave, it stated only that twelve weeks would be granted and did not detail HHC’s method of calculating the leave period.

After signing the necessary papers, Preece took her initial day of intermittent leave on June 16, 2004, and did so periodically until the birth of her child on October 21, 2004, which according to HHC’s records totaled seventy-seven hours. However, Preece had no means to track the number of days or hours that HHC counted toward her FMLA leave.

Preece testified that after her release from the hospital following the birth of her child, on October 28, 2004, she and her husband went to HHC for the purpose of adding the child to her health insurance policy. At that time, she received a FMLA form from HHC, which she signed. However, when she later received a copy of the signed form in the mail, it stated that her FMLA leave commenced on October 21, 2004, and ended on December 30, 2004. She testified that she was unaware that her FMLA application would be backdated to a week prior to her signature. Based on information Preece allegedly received from Clark, Preece testified that she did not take twelve continuous weeks of FMLA leave and reserved two additional weeks as a contingency following her child’s birth. Preece returned to work on December 30, 2004. Due to a temporary illness, she missed work on January 18, 2005, and on February 15, 2005, was absent because of postpartum depression.

Pursuant to HHC’s policy, excessive absenteeism, excused or not, could lead to disciplinary action, including dismissal. Because prior to taking her FMLA leave Preece had received verbal and written warnings for absenteeism, HHC took the position that Preece’s absences in January and February of 2005 were not covered under the FMLA. Although Preece had seven hours of leave time remaining pursuant to HHC’s leave policy at the time of her last absence on February 24, 2005, Preece was notified that she was terminated from her employment because of excessive absenteeism.

Additional facts will be developed as necessary for our discussion of the issues, including the testimony offered by Tamara Clark and Mary Jarvis, a former HHC employee.

FMLA CLAIMS

The FMLA permits eligible employees of a covered employer to be absent from work for twelve weeks during a twelve-month period for specified reasons, including the birth of a child. Upon return to employment, the employee is entitled to be restored to the same or an equivalent position. 29 U.S.C. § 2614(a). Under the Act, an employee who exceeds the leave time afforded is not entitled to be restored to his or her former position. Austin v. Fuel Systems, LLC, 379 F.Supp.2d 884 (W.D.Mich.2004).

The FMLA provides that it is “unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter.” 29 U.S.C. § 2615(a)(1). However, the FMLA does not create a cause of action to enforce voluntary employer practices that exceed its requirements. Dolese v. Office Depot, Inc. 231 F.3d 202 (5th Cir.2000).

If an employee alleges that her FMLA rights were denied, the employee must demonstrate by a preponderance of the evidence that he or she was entitled to leave. King v. Preferred Tech. Group, 166 F.3d 887, 891 (7th Cir.1999). Thus, to prevail on her FMLA interference claim, Preece was- required to establish that: (1) she was an eligible employee; (2) HHC was an employer; (8) she was entitled to leave under the FMLA; (4) she gave notice of her intention to take leave; and (5) HHC denied her FMLA benefits to which she was entitled. Fisher v. Rizzo Bros. Painting Contractors, Inc., 403 F.Supp.2d 593 (E.D.Ky.2005).

Because it is undisputed that Preece was an eligible employee, that HHC was an eligible employer, and that Preece’s leave was requested and granted to accommodate her pregnancy, the contested element of Preece’s FMLA claim was whether HHC interfered with the amount of FMLA leave to which Preece was entitled. Her claim focused on HHC’s failure to give her sufficient information regarding the calculation of her benefits and the time used prior to her 2005 absences.

Under the FMLA, “[a]n employer is permitted to choose any one of the following methods for determining the ‘12-month period’ in which the 12 weeks of leave entitlement ... occurs.”

(1) The calendar year;
(2) Any fixed 12-month “leave year,” such as a fiscal year, a year required by State law, or a year starting on an employee’s “anniversary” date;
(3) The 12-month period measured forward from the date any employee’s first FMLA leave under paragraph (a) begins; or,
(4) A “rolling” 12-month period measured backward from the date an employee uses any FMLA leave....

29 C.F.R. § 825.200(b). If an employer fails to choose an option specified, the court must measure the twelve-month period by the option that provides the most beneficial outcome for the employee. 29 C.F.R. § 825.200(e).

The method chosen by the employer can have significant consequences as demonstrated by HHC’s position. It maintains that it chose the rolling method to calculate its employee’s leave time. Under that method, “each time an employee takes FMLA leave the remaining leave entitlement would be any balance of the 12 weeks which has not been used during the immediately preceding 12 months.” 29 C.F.R. § 825.200(c). According to HHC, Preece used the entire twelve weeks of her entitled leave prior to 2005; thus, she was not entitled to any additional leave after January 2005 until she completed an additional twelve months of employment. However, if HHC utilized the calendar year method, Preece would not have utilized her entire twelve weeks prior to January 2005 and, thus, was terminated in violation of the FMLA. 29 C.F.R. § 825.200(c); Austin, 379 F.Supp.2d at 890.

A requirement that the employer inform an employee of the method chosen to calculate leave is more obscure and not found in the FMLA or its implementing regulations. Yet, because the calculation method chosen is often determinative of the amount of leave available, courts have imposed upon the employer an obligation to inform the employee of the method selected. To effectuate the purpose of the FMLA, we are persuaded that the employer’s obligation includes informing the employee of the method selected to calculate leave.

In Bachelder v. America West Airlines, Inc., 259 F.3d 1112 (9th Cir.2001), the Court examined the regulations and found it to be implicit that “an employer’s ‘selection’ of a calculating method must be an open rather than a secret act, necessarily carrying with it an obligation to inform its employees thereof.” Id. at 1128 (footnote omitted). We agree with this common sense approach. An employee who is not fully informed of her available FMLA leave can unknowingly be lured into absences beyond that to which she is entitled and suffer termination. Such an adverse consequence cannot flow from the exercise of a statutory right. Thus, we agree with the reasoning in Bachelder that the failure to inform the employee of the method selected is the same as if no selection of method had been made, which pursuant to regulations, requires that “the option that provides the most beneficial outcome for the employee” be used. Id., quoting 29 C.F.R. § 825.200(e).

In addition to providing information regarding the method selected, the employer is required to inform the employee of leave designated as FMLA leave. See Downey v. Strain, 510 F.3d 534, 538 (5th Cir.2007).

Although we agree that the employer must inform an employee of the calculation method selected and of designated FMLA leave, we are also aware that a breach of those obligations does not result in strict liability. The United States Supreme Court has clarified that the employee must demonstrate that she was prejudiced by the employer’s violation to recover under the FMLA. Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 90-91, 122 S.Ct. 1155, 1162, 152 L.Ed.2d 167 (2002).

We now turn to the issues presented.

MARY JARVIS’S TESTIMONY

We have chosen to first address HHC’s assertion that Mary Jarvis’s testimony was irrelevant. The significance of her testimony will become apparent within our discussion of the issues presented regarding the denial of HHC’s directed verdict motion and the award of double damages and front pay.

We review a trial court’s ruling on the admissibility of evidence for abuse of direction. Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 577 (Ky.2000). HHC contends that the trial court abused its discretion when it permitted Mary Jarvis to testify.

Jarvis was employed at HHC for twenty-three years, the last twelve years as the budget manager. In that capacity, she prepared the annual budget for the corporation, monthly manager reports, and worked closely with management, including HHC’s CEO. Jarvis was familiar with the administration of FMLA because of her employment duties and her own experience with taking FMLA leave. She testified that she was required to return to work prior to the expiration of her FMLA leave and eventually was persuaded to resign. She explained that HHC planned to eliminate senior employees to reduce costs and the costs associated with FMLA leave, such as employee replacement.

HHC contends that Jarvis’s testimony was not relevant to Preece’s FMLA action. The employer’s motive is relevant to establish that the employer acted in bad faith for the purpose of liquidated damages. Arban v. West Pub. Corp., 345 F.3d 390, 407 (6th Cir.2003). Jarvis had personal knowledge of HHC’s procedures and practices regarding the FMLA, and her testimony was relevant to the issue of HHC’s good faith in implementing the FMLA. We find no error.

HHC’S MOTION FOR DIRECTED VERDICT

Our standard of review of a trial court’s refusal to grant a directed verdict is whether “the verdict rendered is palpably or flagrantly against the evidence so as to indicate that it was reached as a result of passion or prejudice.” Gersh v. Bowman, 239 S.W.3d 567, 571-72 (Ky.App.2007), citing Brooks v. Lexington-Fayette Urban County Hous. Auth., 132 S.W.3d 790, 797-98 (Ky.2004). The prevailing party is entitled to all reasonable inferences that can be drawn from the evidence. Id.

In support of its motion for directed verdict, HHC repeated its argument presented in its motion for summary judgment that because Preece exhausted her FMLA leave prior to her 2005 absences, she could not succeed on her FMLA interference claim. Although Preece had seven hours remaining under HHC’s leave policy at the time of her termination, HHC pointed out that its voluntary leave policy was outside the scope of the FMLA and could not provide the basis for a FMLA action. Dolese, 231 F.3d at 203.

We conclude that when viewed most favorably to Preece, the evidence was sufficient to overcome HHC’s directed verdict motion.

Preece testified that she was not informed that HHC had selected the rolling method of calculation or that her intermittent leave would be calculated on an hourly basis. Thus, she asserted that she was not fully informed of her FMLA rights and, therefore, she was entitled to have her leave calculated using the calendar year method and that her termination in February 2005 interfered with the exercise of her remaining leave. Moreover, she was not aware that her request for FMLA leave had been back-dated.

Mary Jarvis testified that HHC planned to reduce the costs associated with FMLA leave and that employees, including herself, had been required to return to work prior to the expiration of her FMLA leave.

Tamara Clark testified that HHC’s Human Resource Policy and Procedure Manual did not detail the rights and obligations under the FMLA or the method used to calculate leave. The union contract referenced the FMLA but parroted only that the FMLA “shall be administered in accordance with its terms” and that the employees agreed to comply with the provisions of the Act and its regulations. Although a poster on HHC’s premises informed employees that they had twelve weeks of leave under the FMLA, it gave no other specific information.

Clark further verified that she only informed Preece that she had twelve weeks of available FMLA leave time. Moreover, HHC’s responses to interrogatories read into evidence by Clark revealed that HHC did not calculate the leave by Preece based on a typical work week but did so based on her hourly work schedule, resulting in a confusing and difficult computation.

When Preece took continuous leave between October 21, 2004, and December 30, 2004, the time was calculated on a weekly basis for a total of ten weeks. However, intermittent leave taken prior to the birth was based on her average twelve weeks prior to the beginning of her leave. Clark’s testimony reveals the complexity:

Plaintiffs intermittent leave began on June the 16th, 2004. Each of the twelve (12) preceding weeks of work reflected the following: week ending (W/E June the 9th 2004 (39.4 hours worked); W/E 6/2/2004 44.25 hours worked; W/E 5/26/04 33 hours worked; W/E 5/19/04 44 hours worked; W/E 5/12/04 33 hours worked; W/E 5/5/04 11 hours worked; W/E 4/28/04 33 hours worked; W/E 4/21/04 44 hours worked; W/E 4/14/04 33 hours worked; W/E 4/7/04 44 hours worked; W/E 3/31/04 32 hours worked; and 3/23/03 44 hours worked. The total hours worked during those twelve weeks was 434.75 hours. When an average is derived, the Plaintiffs normal hours worked in a work week was 36.2 hours. 434.75 divided by 12 equals 36.2 hours/ week. Therefore, for the intermittent leave purposes, whenever Plaintiff took off 36.2 hours, she consumed a week of FMLA. For purposes of intermittent leave, days are not counted.

Based on HHC’s calculations, Preece was entitled to 434.4 hours of FMLA leave.

HHC certifies that the calculation of intermittent leave requires that the employee’s work week be converted into work hours. However, it ignores that Clark testified that Preece was not informed regarding how the leave would be calculated or the amount to which she was entitled.

The confusion surrounding the amount of FMLA time remaining after Preece returned to work in January 2005 was magnified by HHC’s failure to notify Preece whether her absences were counted as FMLA leave, sick days, or holidays. For instance, HHC’s time-scheduling records revealed that she was to work on July 25, 2004, but the punch detail records show that this was on a paid holiday, yet, her absence was calculated as FMLA leave.

Our review of the voluminous record convinces this Court that there was sufficient evidence that HHC failed not only to inform Preece of the method used to calculate her FMLA leave but failed to keep accurate records so that the used leave could be determined. Thus, a jury question existed as to whether HHC interfered with Preece’s FMLA rights.

Assuming it failed to adequately inform Preece of her FMLA rights, HHC makes the argument that she was not prejudiced. It asserts that Preece failed to demonstrate that had she been aware that her FMLA leave expired, she would not have missed work in January and February 2005. Moreover, it points out that she did not seek FMLA leave in 2005 until after her termination.

HHC’s contention is contradicted by the record. Had Preece been aware that her FMLA time was about to expire, there was evidence that she was capable of returning to work prior to January 2005 and, at the time of termination, was in the process of obtaining a physician’s certificate for FMLA leave. There was sufficient evidence to support the finding that Preece was prejudiced by HHC’s violations of the FMLA.

THE AWARD OF LIQUIDATED DAMAGES AND FRONT PAY

The FMLA provides specific statutory relief when its provisions are violated. 29 U.S.C. § 2617(a)(1) states that an employer who violates the Act is liable to its employee:

(A) for damages equal to—
(i) the amount of—
(I) any wages, salary, employment benefits, or other compensation denied or lost to such employee by reason of the violation; or
(II) in a case in which wages, salary, employment benefits, or other compensation have not been denied or lost to the employee, any actual monetary losses sustained by the employee as a direct result of the violation, such as the cost of providing care, up to a sum equal to 12 weeks (or 26 weeks, in a case involving leave under section 2612(a)(3) of this title) of wages or salary for the employee;
(ii) the interest on the amount described in clause (i) calculated at the prevailing rate; and
(iii) an additional amount as liquidated damages equal to the sum of the amount described in clause (i) and the interest described in clause (ii), except that if an employer who has violated section 2615 of this title proves to the satisfaction of the court that the act or omission which violated section 2615 of this title was in good faith and that the employer had reasonable grounds for believing that the act or omission was not a violation of section 2615 of this title, such court may, in the discretion of the court, reduce the amount of the liability to the amount and interest determined under clauses (i) and (ii), respectively; and (B) for such equitable relief as may be appropriate, including employment, reinstatement, and promotion.

Although termed a liquidated damage provision, the doubling of the jury’s award is premised upon a finding that the employer acted in bad faith and that it did not have objectively reasonable grounds for its act or omission. Hoge v. Honda of Am. Mfg., Inc., 384 F.3d 238, 251 (6th Cir.2004). The Act explicitly provides that upon a finding that the employer acted in bad faith and unreasonably, the court is to award damages equal to the monetary amount denied or lost to the employee by reason of the employer’s violation. 29 U.S.C. § 2617(a)(1).

Liquidated damages are appropriate unless the employer sustains its “burden of proving that its failure to obey the statute was both in good faith and predicated upon such reasonable grounds that it would be unfair to impose upon it more than a compensatory verdict.” Arban, 345 F.3d at 408 (internal quotations and citations omitted). It must present substantial evidence of at least an honest intention to ascertain what the Act re quires and to comply with the Act. Reich v. Southern New England Telecommunications Corp., 121 F.3d 58, 70-71 (2nd Cir. 1997). Although a court’s decision on liquidated damages is reviewed for abuse of discretion, that discretion must be exercised consistently with the strong presumption in favor of doubling. Elwell v. Univ. Hosps. Home Care Servs., 276 F.3d 832, 840 (6th Cir.2002).

There was evidence presented to the jury that Preece was misled by HHC’s human resources department as to the calculation of her FMLA time and supported by Preece’s testimony that her FMLA application was back-dated. Moreover, there was evidence that HHC failed to comply with the FMLA notice requirements and did not accurately track Preece’s FMLA leave. Mary Jarvis’s testimony was further evidence of HHC’s bad faith.

Based on the evidence presented, the jury found that HHC acted in bad faith and that its violation of the FMLA was not based on objectively reasonable grounds. The trial court’s award of liquidated damages in the amount of $35,000 and prejudgment interest was not an abuse of discretion.

Although 29 U.S.C. § 2617 does not mention front pay, the federal courts have held it is a viable equitable remedy. Arban, 345 F.3d at 406. It is a remedy to be awarded in addition to liquidated damages and its award is within the trial court’s discretion. Walther v. Lone Star Gas Company, 952 F.2d 119, 127 (5th Cir.1992).

Generally, reinstatement is considered the preferable remedy but front pay is appropriate as an alternative when reinstatement is not feasible, such as where neither party seeks reinstatement. Downey, 510 F.3d at 544. The factors to be considered when determining front pay include:

[A]n employee’s duty to mitigate, the availability of employment opportunities, the period within which one by reasonable efforts may be re-employed, the employee’s work and life expectancy, the discount tables to determine the present value of future damages and other factors that are pertinent on prospective damage awards.

Roush v. KFC Nat. Management Co., 10 F.3d 392, 399 (6th Cir.1993) (internal quotations and citations omitted).

The trial court awarded Preece twelve-months front pay in the amount of $27,000, representing her yearly wages and benefits. Its refusal to order reinstatement was based on its finding that neither of the parties had expressed an interest or willingness to continue an “unpleasant” employment relationship. Because it eliminated reinstatement as a remedy, the trial court focused upon Preece’s entitlement to front pay and its amount. It considered that she attempted to mitigate her damages by seeking employment and that while unemployed, her nurse’s aide certificate had expired and required recertification.

HHC contends that the front pay award was actually to compensate Preece for the cost of her future educational goals. See Shore v. Federal Exp. Corp., 777 F.2d 1155, 1160 (6th Cir.1985). While we agree that the cost of placing an employee in a better position should not be imposed on the employer, this is not the result of the trial court’s award. The one-year front pay was directly related to Preece’s wages and benefits. The award of one-year front pay was not an abuse of discretion.

THE JURY INSTRUCTIONS

Our standard of review of alleged errors in jury instructions is de novo. Hamilton v. CSX Transportation, Inc., 208 S.W.3d 272, 275 (Ky.App.2006).

Instructions must be based upon the evidence and they must properly and intelligibly state the law. The purpose of an instruction is to furnish guidance to the jury in their deliberations and to aid them in arriving at a correct verdict. If the statements of law contained in the instructions are substantially correct, they will not be condemned as prejudicial unless they are calculated to mislead the jury.

Id. at 275 (internal quotations and citations omitted).

The instructions propounded included a description of the FMLA and the obligations of HHC. The jury was instructed that Preece was entitled to twelve-weeks leave during a twelve-month period that commenced on June 16, 2004, and that her intermittent leave was required to be converted to hours. The trial court also instructed the jury that HHC was required to provide written notice of Preece’s rights and obligations under the FMLA. Finally, it instructed that the jury find in Preece’s favor if it believed that HHC interfered with Preece’s FMLA rights.

HHC does not allege error in the instructions given but complains that the trial court erroneously denied its proposed additional instruction which stated:

The FMLA provides that it does not ‘diminish the obligation of an employer to comply with ... any employment benefit program or plan that provides greater family or medical leave rights’ than the FMLA. 29 U.S.C. § 2652(a); see also 29 C.F.R. § 825.700(a). It further provides that the FMLA should not be interpreted to ‘discourage employers from adopting or retaining leave policies more generous that any policies that comply with ... the Act....’ 29 U.S.C. § 2653. The FMLA does not create a federal cause of action to enforce voluntary employer policies that exceed the requirements of the FMLA.

Because of the omitted instruction, HHC maintains that the jury was permitted to conclude that Preece was entitled to FMLA leave in January and February 2005, even though she was entitled only to leave under HHC’s more generous leave policy, which does not afford her relief under the FMLA.

HHC’s challenge to the instructions is nothing more than a reiteration of its previous contention and ignores the basis of Preece’s claim. She did not claim that she was denied leave under HHC’s leave policy. The evidence presented and the factual questions to be resolved by the jury related to the notice of the FMLA leave granted, the calculation of leave time, and how much FMLA leave she had used at the time of her termination. Thus, whether she had seven hours of HHC-provided leave was not a question to be resolved.

PREECE’S CLAIM FOR INTENTIONAL INFLICTION OF EMOTION- . AL DISTRESS

On a motion for summary judgment, the court is required to view the facts most favorably to the opposing party. It may grant the motion only when there is no genuine issue of material fact and the non-moving party cannot prevail at trial. Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476 (Ky.1991).

The trial court denied Preece’s claim for intentional infliction of emotional distress on the basis that the claim was preempted by the FMLA, which expressly limits damages to: (1) compensatory damages equal to the amount of any wages, salary, employment benefits or other compensation which was denied or lost by reason of the violation; (2) interest on compensatory damages; and (3) liquidated damages. 29 U.S.C. § 2617. No additional remedies are available, including punitive damages. Xin Liu v. Amway Corp., 347 F.3d 1125, 1133 n. 6 (9th Cir.2003). As a result, a claim for intentional infliction of emotional distress is not sustainable under the FMLA. Settle v. S.W. Rodgers Co., Inc., 998 F.Supp. 657, 666 (E.D.Va.1998).

Preece attempts to avoid the constraints of the FMLA by arguing that her claim for intentional infliction of emotional distress is based on state law and arises from her termination, not from the FMLA violations. Even if her claim can be separated and constitute a distinct tort, the facts cannot support her claim.

“Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and, to be regarded as atrocious, and utterly intolerable in a civilized community.” Humana of Kentucky, Inc. v. Seitz, 796 S.W.2d 1, 3 (Ky.1990) (quoting Restatement (Second) of Torts § 46, Comment d.) (emphasis original). Termination from employment, even if for discriminatory reasons, is insufficient to constitute outrageous conduct sufficient to support a claim for intentional infliction of emotional distress. Benningfield v. Pettit Environmental Inc., 183 S.W.3d 567, 572 (Ky.App.2005).

In this case, there is no evidence that HHC intended to cause emotional distress when it terminated Preece or that it acted recklessly. Her wrongful termination alone is insufficient to support a claim for intentional infliction of emotional distress.

Based on the foregoing, the judgment of the Floyd Circuit Court is affirmed.

ALL CONCUR.

      . We stress that liquidated damages and front pay are distinct awards. Whether the trial court properly made this distinction and awarded the amount of the jury award as liquidated damages and an additional amount as front pay is not presented by Preece.

      . In Arban, the Court held that the amount of any front pay is a jury question; however, the propriety of an award of front pay is a matter for the Court. Arban, 345 F.3d at 406. Neither party has objected to the consideration of both issues by the trial court, therefore, we decline to further address the issue.


source: Caselaw Access Project

author: COMBS, Judge:

license: Public Domain

text:
    Stefanie GUFFEY, Appellant, v. Roger GUFFEY, Appellee.
    No. 2009-CA-000932-MR.
    Court of Appeals of Kentucky.
    Sept. 24, 2010.
    Randy J. Blankenship, Erlanger, KY, for appellant.

      Karen E. McCracken, Erlanger, KY, for appellee.
    Before CAPERTON and COMBS, Judges; LAMBERT, Senior Judge.

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

   OPINION

COMBS, Judge:

Stefanie Guffey appeals a decree of dissolution issued by the Boone Family Court. After our review, we affirm in part, reverse in part, and remand for further findings.

Roger (Sam) and Stefanie Guffey married in July 2002. It was Sam’s fourth marriage and Stefanie’s second. They had one minor child, A.G. Sam worked as a database administrator during the marriage, and at the time of hearing, he was employed by the same company as a project manager. Stefanie was either unemployed or held temporary jobs during the marriage and divorce proceedings. Sam filed a petition for dissolution in October 2007.

Between the filing of the petition and May 2008, the parties filed numerous motions relating to division of property, child support, and visitation with A.G. The court ordered the parties to sell the marital home and ordered Sam to make the payments on its two mortgages until the sale occurred. The house had been owned by Sam prior to the marriage, and its title was held in his name only. Despite the fact that the house was Sam’s premarital property, Sam and Stefanie could not agree on a selling price, and the house never went on the market. Instead, Sam ceased making payments on the mortgages and filed for bankruptcy. The mortgage lender foreclosed on the house, and Sam anticipates a deficiency judgment on the mortgages. On May 19, 2008, the trial court set the final pre-trial hearing for June 28,2008.

On May 27, 2008, Stefanie received notice of Sam’s bankruptcy filing. She then asked the court to stay the proceedings and to issue an order for Sam to show cause as to why his failure to pay the mortgages was not contempt. The record indicates that the parties appeared in court on June 30, 2008, and the court reserved ruling on Stefanie’s motion to show cause and her motion to continue the proceedings.

On January 13, 2009, Sam’s bankruptcy petition was dismissed. He filed a motion to set a trial date on January 16, 2009. On March 4, the court set a final hearing for April 23, 2009. Approximately four weeks prior to the hearing, on March 23, the court granted the motion of Stefanie’s counsel to withdraw from the case. Stefanie testified that she contacted the judge’s office and Sam’s counsel to ask that the hearing set for April 23 be continued. However, Sam’s counsel did not consent to the continuance, and the trial judge did not grant Stefanie’s request for a continuance. Stefanie represented herself at the hearing. The court entered its findings and decree of dissolution on May 4, 2009. Stefanie filed this appeal.

Stefanie’s first argument is that the family court abused its discretion when it denied her a continuance of the final hearing. We disagree.

The court permitted Stefanie’s counsel to withdraw four weeks before the hearing. (The record does not indicate why Stefanie’s counsel withdrew.) Stefanie testified that the weekend before the hearing, she called the court’s office to ask that the hearing be postponed. The staff advised her to contact Sam’s counsel. Sam’s counsel was unwilling to agree to continue the hearing. Stefanie next attempted to request a continuance during the hearing. Stating that the court was not aware of any previous request for a continuance, the judge denied a continuance during the course of the hearing. Stefanie now claims that she was prejudiced by the court’s denial of her request to postpone the hearing.

With respect to the denial of a continuance, our standard of review is whether the court abused its discretion. Stallard v. Witherspoon, 306 S.W.2d 299, 300 (Ky.1957). The court’s discretion has been described as “a liberty or privilege allowed to a judge, within the confínes of right and justice, to decide and act in accordance with what is fair, equitable, and wholesome as determined by the peculiar circumstances of the case[.]” City of Louisville v. Allen, 385 S.W.2d 179, 182 (Ky.1964) (overruled on other grounds by Nolan v. Spears, 432 S.W.2d 425 (Ky.1968)) (quoting In re Welisch, 18 Ariz. 517, 163 P. 264, 265 (1917)).

Our Supreme Court has set forth various factors for us to consider when reviewing the denial of a continuance. Snodgrass v. Commonwealth, 814 S.W.2d 579, 581 (Ky.1991) (overruled on other grounds by Lawson v. Commonwealth, 53 S.W.3d 534 (Ky.2001)). At the threshold, the Court first admonishes that “[w]hether a continuance is appropriate in a particular case depends upon the unique facts and circumstances of that ease.” Id. (quoting Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 849, 11 L.Ed.2d 921 (1964)). The factors are:

1) length of delay;
2) previous continuances;
3) inconveniences to litigants, witnesses, counsel, and the court;
4) whether the delay is purposeful or is caused by the accused;
5) availability of other competent counsel;
6) complexity of the ease; and
7) whether denying the continuance will lead to identifiable prejudice

Id.

Because Snodgrass is a criminal case, the question arises as to whether we may apply its factors to a civil case. Our court has dealt with this issue and has reached inconsistent conclusions when choosing whether or not to apply Snodgrass. These opinions have all been unpublished, and the Supreme Court of Kentucky has remained silent as to the distinction.

In cases where we have declined to apply the Snodgrass factors to a civil case, the reasoning turned on the fact that Snodgrass was based on protecting a defendant’s right to counsel. In civil cases, Snodgrass could only apply in the rare event that a party to a civil case might face potential imprisonment. See Cissell v. Cissell, 2008 WL 1757550 (Ky.App. Apr. 18, 2008); Snardon v. Snardon, 2009 WL 2059094 (Ky.App. Jul. 17, 2009); Cooper v. Cooper, 2010 WL 1328656 (Ky.App. Apr. 2, 2010).

Our court has also rendered opinions in which it has opted to apply the Snodgrass criteria in a civil context. See Jones v. Fenley, 2005 WL 3006073 (Ky.App. Nov. 10, 2005); Wooldridge v. Wooldridge, 2008 WL 820923 (Ky.App. Mar. 28, 2008); Martin v. Weaver, 2009 WL 3321245 (Ky.App. Oct. 16, 2009). Particularly persuasive is the reasoning set forth in a footnote authored by Judge Wine:

While a civil case may require a different application and analysis of the Snod-grass factors, we conclude that the factors themselves are relevant in the trial court’s exercise of its discretion in considering a motion for a continuance.... [WJhile our review of the trial court’s discretionary decisions is deferential, the trial court must have some legal framework in which to exercise its discretion. Otherwise, this Court could not provide any meaningful appellate review. The Snodgrass factors are not expressly conditioned on the existence of a right to counsel. Rather, they merely set out a framework in which a trial court may exercise its discretion to grant a continuance. Furthermore, the Snodgrass factors are similar to the factors set out in Ward v. Houseman [sic], which also addresses a matter involving an exercise of discretion. Hence, we conclude that the Snodgrass factors apply to civil litigation regarding continuances.

Martin, supra at n. 3.

Ward v. Housman, 809 S.W.2d 717 (Ky.App.1991), provides six factors for trial courts to consider upon a motion for an involuntary dismissal of a civil suit based on failure to comply with an order. They are:

1) the extent of the party’s personal responsibility;
2) the history of dilatoriness;
3) whether the attorney’s conduct was willful and in bad faith;
4) meritoriousness of the claim;
5) prejudice to the other party, and
6) alternative sanctions.

Id. at 719. We agree that these factors are quite analogous to the Snodgrass criteria. The lists in both cases address the parties’ responsibilities for creating the situation, whether bad faith conduct was a factor, past behavior, the possibility of prejudice, and alternative solutions.

Furthermore, our Supreme Court has recently refined Ward in Jaroszewski v. Flege, 297 S.W.3d 24 (Ky.2009). In Flege, the high court emphasized the factors of Ward to be used as a framework of analysis encompassing as well “all relevant facts and circumstances.” Id. at 37. We are persuaded that it is wholly appropriate to apply the Snodgrass factors to analyze a civil motion for a continuance while taking into account all the relevant facts and circumstances.

Therefore, applying the Snodgrass factors and considering the totality of the circumstances of the case at hand, we do not believe that the family court abused its discretion.

First, a continuance could have resulted in a significant length of delay in a case that had been pending for more than one and one-half years. Sam’s attempt to declare bankruptcy had already delayed the proceedings. A continuance would have been inconvenient for the court, Sam, and his counsel. The court’s docket had been arranged for the hearing, and a delay and re-appearance would have resulted in extra attorney’s fees for Sam. Stefanie had known for four weeks that she needed to retain counsel. Nevertheless, she did not begin her attempt to request a continuance until a few days before the hearing.

Although Stefanie claims that she was prejudiced by the denial of a continuance, the Snodgrass factors demand a showing of identifiable prejudice. Stefanie has not explained how a later hearing in which she might have had representation would have rendered results different from the hearing at which she acted pro se. She mentions an inequitable division of debt (which we address later in this opinion). However, she cannot demonstrate that the division of debt would have been different if she had been represented by counsel, and we cannot conclude that she was prejudiced by the denial of a continuance.

Based on the Snodgrass criteria, we conclude that the court did not abuse its discretion when it declined to grant a continuance. While litigants may perceive the need to act pro se as a handicap, in reality a court makes an extra effort to compensate for the lack of representation by affording special courtesy and attention to the pro se litigant. And, as we determined from recourse to the Snodgrass factors, the court’s decision to deny the continuance was fair and equitable under the circumstances.

Stefanie next contends that the court erred in its division of marital debt, including the anticipated deficiency judgment resulting from the foreclosure of the marital home. We agree.

Although Kentucky Revised Statute[s] (KRS) 403.190 creates a presumption that property acquired during a marriage is marital, no such presumption exists for debt acquired during a marriage. Bodie v. Bodie, 590 S.W.2d 895, 896 (Ky.App.1979). When assigning marital debt, trial courts should consider:

1) whether the debt was incurred purchasing marital assets; 2) whether it was necessary for maintenance and support of the family; 3) economic circumstances of the parties; 4) extent of participation and receipt of benefits.

Neidlinger v. Neidlinger, 52 S.W.3d 513, 523 (Ky.2001) (citations omitted).

In this case, the family court ordered that approximately $4500 of credit card debt and the expected deficiency judgment regarding the marital home would be divided equally between the parties. In its findings, it did not apply any of the Neid-linger factors. In light of the disparity between the parties’ financial situations (Sam earns approximately 81% of their combined income), we are persuaded that the family court abused its discretion when it divided the marital debts equally.

Stefanie did not have any means of mitigating the foreclosure of the marital home. Sam had been ordered by the court to make payments on the mortgages. His failure to comply with that order resulted in dire economic consequences for which Stefanie was not responsible and which she could not avoid.

Accordingly, we affirm the family court’s denial of Stefanie’s motion for a continuance but reverse its division of the marital debt. We remand this matter to the family court for additional findings consistent with this opinion.

ALL CONCUR.


text:
    ELLIOT ELECTRIC/KENTUCKY, INC., Appellant, v. KENTUCKY OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and Department of Labor, Environmental and Public Protection Cabinet, Appellees.
    No. 2009-CA-001997-MR.
    Court of Appeals of Kentucky.
    Sept. 24, 2010.

      Jeffrey S. Walther, Lexington, KY, for appellant.

      Frederick G. Huggins, Frankfort, KY, for appellee, Review Commission.
    Before CAPERTON and COMBS, Judges; LAMBERT, Senior Judge.

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

   OPINION

COMBS, Judge:

Elliot Electric/Kentucky, Inc., appeals an opinion and order of the Franklin Circuit Court dismissing for lack of jurisdiction its appeal of a decision of the Kentucky Occupational Safety and Health Review Commission (the Commission). After our review, we affirm.

Following its investigation of a workplace fatality, the Kentucky Department of Labor, Environmental and Public Protection Cabinet, issued a citation and notification of penalty to the employer, Elliot Electric, on September 13, 2004. Elliot Electric contested the issuance of the citation and the imposition of a penalty. Pursuant to the provisions of Kentucky Revised Statutes (KRS) Chapter 338, the Kentucky Occupational Safety and Health Review Commission conducted a hearing to consider the employer’s challenge.

After reviewing the pleadings, testimony, and exhibits, the Commission’s hearing officer concluded that Elliot Electric had indeed violated an established federal workplace standard that tragically resulted in the electrocution and death of its employee. The hearing officer also concluded that the penalty proposed by the Department of Labor should be affirmed. Finally, the hearing officer recited that her recommended order “may be called for further review by the Commission within a forty day period following issuance.” Findings of Fact, Conclusions of Law, and Recommended Order, Notice of Appeal Rights at 10.

The recommended order of the hearing officer was conditionally affirmed by the Commission and was served on the parties on May 30, 2006. In its separate order, the Commission described a forty-day review period and advised the parties that any petition for discretionary review had to be submitted within 25 days; any opposition to a petition for discretionary review was to be filed within 35 days. The Commission’s order specifically provided that the hearing officer’s recommended order “is adopted and affirmed as the Decision, Findings of Fact, Conclusions of Law and Final Order of this Commission unless it is called for review and further consideration ... within 10 days of [May 30, 2006].” (Emphasis added).

On June 26, 2006, Elliot Electric filed a timely petition for discretionary review of the recommended order. On July 5, 2006, the Department of Labor filed a timely response in opposition to the petition. However, the Commission did not act, and the forty-day review period expired.

On August 1, 2006, the Commission suddenly issued an order purporting to grant Elliot Electric’s petition for review. The Department of Labor declined to comply with the Commission’s request for briefs, arguing that the Commission lacked jurisdiction over the matter since the forty-day review period had expired. The Department of Labor contended that the hearing officer’s decision had duly become the Commission’s final order.

In response, Elliot Electric conceded that the forty-day review period had expired before the Commission decided to act. However, it observed as follows:

if the Department of Labor is correct in its position that the Commission lacks jurisdiction over this matter and [the employer’s] time for appeal of the decision has passed, [the employer] will be left without a mechanism to challenge the hearing officer’s erroneous decision.

Motion for Waiver of Rules at 2. On September 12, 2006, the employer requested the Commission to waive the forty-day review period and to reopen the matter.

On October 3, 2006, the Commission withdrew its decision to grant the employer’s petition for review as having been improvidently granted. After reviewing its own regulations, the Commission concluded that it lacked the jurisdiction necessary to grant the employer’s petition for discretionary review because the petition had been denied by operation of law as of July 10, 2006.

On October 10, 2006, Elliot Electric filed an appeal in Franklin Circuit Court, alleging that the decisions of the Department of Labor and the Commission were arbitrary and capricious and were otherwise not in accordance with the law. Elliot Electric contended that its appeal was filed pursuant to the provisions of KRS 388.091, requiring an appeal within thirty days of the Commission’s final order, and it sought dismissal of the citation and penalty.

The Commission answered the complaint and alleged that Elliot Electric had failed to state a claim upon which relief could be granted. The Department of Labor filed a motion pursuant to Kentucky Rules of Civil Procedure (CR) 12.02 to dismiss for lack of subject matter jurisdiction.

In its memorandum in support of the motion to dismiss, the Department of Labor argued that the Commission’s failure to act on the employer’s petition for discretionary review within the forty-day review period necessarily meant that the hearing officer’s recommended decision had become the Commission’s final order by operation of law on July 10, 2006. “The intervening order of the Commission granting discretionary review had no legal effect because the hearing officer’s decision had already become a final order nearly a month earlier.” Memorandum in Support of Motion to Dismiss at 6. The Department of Labor argued that the employer’s only recourse after the review period had ended was to file a timely appeal to the Franklin Circuit Court. Referring to the provisions of KRS 338.091, which permits an appeal within thirty days of the Commission’s final order, the Department of Labor contended that the employer’s appeal should have been filed on or before August 9, 2006 (30 days following the finality of the order by operation of law on July 10, 2006).

The Commission observed that strict compliance with a statute is required in order to confer jurisdiction in a matter involving a court’s review of an administrative action. Where the conditions for the exercise of power by a court have not been met, judicial power cannot be lawfully invoked. Apparently in recognition of the harshness of the outcome that it proposed, the Commission noted that the employer had been on notice that the hearing officer’s decision would become final unless it was called for review by the Commission within the forty-day review period. Once the forty-day review period had expired on July 10, 2006, the Commission observed, the employer knew that its right to appeal to the circuit court would expire in thirty days’ time. Since the employer had failed to appeal within thirty days following July 10, 2006, the circuit court’s jurisdiction could not now be invoked.

On November 30, 2006, Elliot Electric filed a memorandum in opposition to the Department of Labor’s motion to dismiss. While the employer conceded that the provisions of KRS 338.091 grant any party adversely affected or aggrieved by a final order of the Commission thirty days within which to appeal to the Franklin Circuit Court, it observed that the Kentucky Occupational Safety and Health Act “does not specify or impose any requirements pertaining to when an order of the [Commission] shall be deemed to be final or when [the Commission] loses jurisdiction over a case.” Memorandum in Opposition to Dismiss at 7.

Elliot Electric argued that its petition for discretionary review prevented the hearing officer’s recommended order from becoming a final order of the Commission and contended that the Commission did not intend (nor was it at liberty) to divest itself of jurisdiction following the forty-day review period. Elliot Electric argued that the Commission was within its authority to reconsider the hearing officer’s recommended order by virtue of its inherent power to review its own orders and that it was empowered by the provisions of 803 KAR 50:010 § 59 to waive it own 40-day review rule. The employer argued further that it had been barred from appealing to the circuit court during the period before the Commission withdrew its decision to grant its petition for discretionary review because it had not yet exhausted its administrative remedy. Finally, Elliot Electric argued that the statutory thirty-day period for appeal to the Franklin Circuit Court is not jurisdictional and had been equitably tolled by the Commission’s decision to grant the petition for discretionary review.

On December 21, 2006, the Commission responded to the Department of Labor’s motion to dismiss. The Commission conceded that the hearing officer’s recommended order had become the Commission’s final order on July 10, 2006 — before the Commission purported to grant the employer’s petition for discretionary review and that it had lost jurisdiction over the matter before it attempted to grant the petition. It agreed that the circuit court’s jurisdiction had not been properly invoked because of the untimeliness of Elliot Electric’s appeal. However, the Commission conceded that its “untimely call for review may have led [the employer] to decide it need not file a timely appeal of the recommended order.” Response to Motion to Dismiss at 14. Consequently, it requested the court to deny the Department of Labor’s motion to dismiss “on the narrow point that [the employer] may not have known its time to appeal to Franklin [Circuit [Court] was running out.” Id. In the alternative, the Commission requested that the court remand the matter “to enable the commission to review the recommended order entered by the hearing officer.” Id.

On September 29, 2009, the Franklin Circuit Court’s opinion and order were entered. The court concluded that pursuant to the Commission’s regulations, its hearing officer’s recommendation became the Commission’s final order on July 10, 2006. The court observed that the employer had plainly failed to file its appeal within the allotted thirty days thereafter. Finally, the circuit court noted that an appeal from an administrative agency is a matter of legislative grace and that strict compliance with the statute providing for an appeal is required. The court held that its jurisdiction had not been properly invoked, and it dismissed the proceeding. This appeal followed.

The Commission is specifically directed by the General Assembly to hear and rule upon appeals from citations issued by the Department of Labor. KRS 338.071. It was also specifically directed by the General Assembly “to adopt and promulgate rules and regulations with respect to the procedural aspect of its hearings.” KRS 338.071(4). Pursuant to these duly adopted rules and regulations:

The recommended order of the hearing officer may be called for review by any Commission member or by the Commission as a whole at any time within a forty (40) day period. If the recommended order is not ordered for further review, it shall become the final order of this Commission forty (10) days after the date of issuance.

803 KAR 50:010 § 47. (Emphasis added).

In this case, the hearing officer’s recommended order was adopted and affirmed by the Commission, and it became the Commission’s “final order” forty days after it was issued on May 30, 2006 — as Elliot Electric acknowledges. However, Elliot Electric argues that the final order “ceased to be a final order ... when the [Commission] issued its [order granting discretionary review]” and that “the new final order date was now the date that the [Commission] withdrew its direction for review [October 3, 2006].” Appellant’s Brief at 15 and 16. We disagree.

The recommended order of the Commission’s hearing officer was the Commission’s final order after the passage of forty days. Following expiration of the forty-day review period, the issues were regarded as finally disposed of and nothing remained for any future determination. See Hubbard v. Hubbard, 303 Ky. 411, 197 S.W.2d 923 (1946). Pursuant to its regulations, the Commission’s failure to call for a review of the hearing officer’s recommended order within the forty-day period indicated to the parties that the administrative proceeding had come to its end.

We are not aware of any provision in the enabling statutes that authorizes the Commission to reconsider its final decision or to extend the period of time for taking an appeal of its final order. Once the Commission’s order became final, it did not retain jurisdiction to withdraw any previous orders and issue new ones. See Secretary, Labor Cabinet v. Boston Gear, Inc., 25 S.W.3d 130 (Ky.2000). The employer refers to the provisions of 803 KAR 50.010 § 49(1), which permits any party aggrieved by a final order of the commission to file a motion for stay, “while the matter is within the jurisdiction of the commission.”

However, this regulation speaks only to the powers of an agency “to enforce its validly entered orders, and its standing authority to retain enforcement jurisdiction of the same.” Brighty v. Brighty, 883 S.W.2d 494, 496 (Ky.1994). We do not interpret this rule to confer any authority upon the Commission to modify or alter its final order. “An administrative agency does not have any inherent or implied power to reopen or reconsider a final decision.... ” Kentucky Bd. of Medical Licensure v. Ryan, 151 S.W.3d 778, 780 (Ky.2004) (citing Phelps v. Sallee, 529 S.W.2d 361, 365 (Ky.1975)). Finality cannot become anything other than finality for purposes of additional litigation or adjudication. The Commission’s putative granting of Elliot Electric’s petition for discretionary review did not repeal its final order because it lacked any authority necessary to do so.

In the alternative, Elliot Electric argues that the doctrine of equitable tolling should have been applied to suspend the running of the thirty-day period for the filing of an appeal in Franklin Circuit Court. The employer contends that the limitations period created by the provisions of KRS 338.091 is non-jurisdictional and can be set aside under the unusual circumstances presented by this case.

KRS 338.091(1) provides the exclusive means for contesting the Commission’s final decisions. It provides as follows:

Any party adversely affected or aggrieved by a final order of the review commission may appeal within thirty (30) days to the Franklin Circuit Court on the record for a review of such order.

It is well settled that “[w]hen grace to appeal [a decision of an administrative body to the circuit court] is granted by statute, a strict compliance with its terms is required.” Board of Adjustments of City of Richmond v. Flood, 581 S.W.2d 1, 2 (Ky.1978). “Where the conditions for the exercise of power by a court are not met, the judicial power is not lawfully invoked.” Id. (citing Kentucky Utils. Co. v. Farmers Rural Elec. Co-op. Corp., 361 S.W.2d 300 (Ky.1962); Roberts v. Watts, 258 S.W.2d 513 (Ky.1953)). The Supreme Court of Kentucky has recently reaffirmed this principle in the strongest of terms. See Belsito v. U-Haul Co. of Kentucky, 313 S.W.3d 549 (Ky.2010); Sajko v. Jefferson Co. Bd. of Ed., 314 S.W.3d 290 (Ky.2010); and Louisville Gas and Electric Co. v. Hardin & Meade Co. Property Owners for Co-Location, 319 S.W.3d 397 (Ky.2010)(where court held that circuit court lacked jurisdiction to enlarge the time for filing the designation of the record beyond the ten-day period prescribed for the timely filing of the action despite the fact that KRS 278.420(2) permitting the enlargement of time does not contain an express time limit within which the motion must be made).

When Elliot Electric appealed the Commission’s decision to the Franklin Circuit Court three months after it became final rather than within the allotted thirty days, it failed to meet the single condition precedent to the court’s jurisdiction. Because the appeal failed to comply with the requirements of KRS 338.091(1), jurisdiction of the circuit court could not be invoked. Consequently, the appeal was properly dismissed

The order of the Franklin Circuit Court is affirmed.

ALL CONCUR.

      . 803 KAR 50:010 § 48 provides in part that the "[f]ailure to act on any petition for discretionary review in the review period shall be deemed a denial thereof.”


author: THOMPSON, Judge:

text:
    Solomon RICHARDSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2006-CA-001568-MR.
    Court of Appeals of Kentucky.
    Oct. 1, 2010.

      Julia K. Pearson, Assistant Public Advocate, Department of Public Advocacy, Frankfort, KY, for appellant.
    Gregory D. Stumbo, Attorney General of Kentucky, Kristin N. Logan, Assistant Attorney General, Frankfort, KY, for appel-lee.
    Before THOMPSON and WINE, Judges; HENRY, Senior Judge.

      . Senior Judge Michael L. Henry sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.

   OPINION

THOMPSON, Judge:

This appeal is before us on remand from our Supreme Court for reconsideration in light of its decision in Commonwealth v. Alleman, 306 S.W.3d 484 (Ky.2010). Upon reconsideration, we affirm.

The facts underlying this case were stated in our previous opinion as follows:

On September 30, 2004, Richardson was indicted by a Campbell County grand jury for second-degree forgery and for operating a motor vehicle on a suspended or revoked driver’s license. Subsequently, he pled guilty, and on January 26, 2005, he was sentenced to three years’ imprisonment which was probated for five years. Soon thereafter, Richardson’s probation was transferred to Hamilton County, Ohio.
On May 31, 2006, Tara Giust, a Kentucky probation officer, signed an affidavit stating that Richardson had violated a condition of his probation by threatening his Ohio landlord, Jeff Lewis. Consequently, on July 6, 2006, a probation revocation hearing was held in Campbell County, Kentucky. The Commonwealth presented two witnesses to establish that Richardson had violated a condition of his probation by threatening his landlord. After calling one witness in his defense, Richardson testified on his own behalf.
Several days after the revocation hearing, the trial court issued an order that provided, in pertinent part;
This matter was before the Court on July 7, 2006 for hearing to revoke Defendant’s probation and on Defendant’s Motion to Dismiss. Counsel for the parties and the Defendant were present. Based upon the testimony adduced, argument of counsel and a review of the record herein, the Court finds as a matter of fact that the Defendant has violated the terms and conditions of his probation and, thus, concludes as a matter of law that the Defendant’s probation should be revoked. Accordingly;
IT IS ORDERED that the defendant’s probation is revoked.

In an opinion rendered on August 17, 2007, this Court reversed and remanded the probation revocation order of the trial court. We concluded that the trial court’s failure to adequately set out the evidence relied on and the reasons for revoking Richardson’s probation violated his due process rights. After the Commonwealth petitioned the Kentucky Supreme Court for discretionary review, our Supreme Court ordered the petition to be held in abeyance pending the outcome of another appeal. Subsequently, on March 18, 2010, our Supreme Court rendered Commonwealth v. Alleman, 306 S.W.3d 484 (Ky.2010), and then remanded the instant case to us for reconsideration in light of its decision in Alleman.

In Alleman, our Supreme Court held that oral findings and reasons for revocation stated by the trial court from the bench satisfy a probationer’s due process rights under Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), which had been previously interpreted to require written findings. Id. at 484-85, 92 S.Ct. 2593. Additionally, the court held that an untranscribed videotape recording, containing oral findings made from the bench, is constitutionally sufficient, “at least where, as here, [a reviewing court possesses] a video record that is sufficiently complete to allow the parties and [court] to determine ‘the evidence relied on and the reasons for revoking probation.’ ” Id. at 487, 92 S.Ct. 2593 (quoting Black v. Romano, 471 U.S. 606, 612, 105 S.Ct. 2254, 85 L.Ed.2d 636 (1985)).

Here, the trial court issued a written revocation order providing that Richardson violated “the terms and conditions of his probation.” While the revocation order did not contain any reference to the specific probation term or condition violated or to the violative conduct, the trial court’s written findings and the untran-scribed videotape recording of the revocation proceeding are sufficiently complete to permit the parties and this Court to determine the evidence relied on and the reasons for revoking Richardson’s probation.

From a review of the videotape recording of the revocation proceeding, the Commonwealth moved to revoke Richardson’s probation because it believed that he committed the crime of aggravated menacing under Ohio law. As a condition of his probation, he was to refrain from violating the laws of Kentucky, any other state, and the United States. According to testimony at the hearing, he threatened to kill his landlord, which violated Ohio Revised Code (O.R.C.) § 2903.21(A). Under this menacing statute, “[n]o person shall knowingly cause another to believe that the offender will cause serious physical harm to the person or property of the other person, the other person’s unborn, or a member of the other person’s immediate family.” Therefore, the evidence relied on and the basis of the revocation are clear from the record.

Moreover, our conclusion in this case is consistent with the holdings in Morishita v. Morris, 702 F.2d 207 (10th Cir.1983), and United States v. Smith, 767 F.2d 521 (8th Cir.1985), which were expressly embraced by our Supreme Court in Alleman. Id. at 487, 92 S.Ct. 2593. In the federal eases, the courts were more willing to reject constitutional due process challenges when only one probation violation was alleged, which permitted the reviewing court to determine the basis of the trial court’s decision to revoke probation. Morishita, 702 F.2d at 209-10; Smith, 767 F.2d at 524. Therefore, because only one probation violation was alleged in this case, the record is even more permitting of review to determine the basis of the trial court’s decision to revoke probation.

Accordingly, we conclude that the un-transcribed videotape recording and the trial court’s written findings, especially considering the fact that only one probation violation was alleged, are sufficient to satisfy Richardson’s constitutional due process rights in light of the Kentucky Supreme Court’s decision in Alleman.

For the foregoing reasons, the judgment of the Campbell Circuit Court is affirmed.

ALL CONCUR.

      . The hearing was held on July 6, 2006.


author: JAMES M. SMART, JR., Judge. ALOK AHUJA, Judge,

text:
    Bernardo O. COSTA, Appellant, v. Arthur E. ALLEN, Respondent.
    No. WD 71055.
    Missouri Court of Appeals, Western District.
    June 8, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied July 27, 2010.
    Application for Transfer Denied Nov. 16, 2010.
    Appellant acting pro se.
    Shaun Maekelprang and Kathleen Robertson, Jefferson City, MO, for respondent.
    Before LISA WHITE HARDWICK, P.J., JAMES M. SMART, JR., and ALOK AHUJA, JJ.
   JAMES M. SMART, JR., Judge.

Bernardo Costa appeals the trial court’s judgment dismissing his tort action for damages against the attorney representing him in his motion for post-conviction relief. Costa asserted claims of breach of fiduciary duty and legal malpractice. The judgment is affirmed.

Procedural Background

Costa was convicted of the first-degree statutory rape of his daughter. See State v. Costa, 11 S.W.3d 670 (Mo.App.1999). The conviction was affirmed on appeal. Id. Costa filed a motion for post-conviction relief under Rule 29.15. See Costa v. State, 85 S.W.3d 758 (Mo.App.2002). The denial of that motion was affirmed. Id.

Thereafter, Costa brought a civil action for legal malpractice against Arthur E. Alien, the public defender who represented Costa in his Rule 29.15 proceeding. Cos-ta’s petition was dismissed with prejudice. Costa appealed. After opinion in this court, the Missouri Supreme Court accepted transfer. See Costa v. Allen, 274 S.W.3d 461, 462 (Mo. banc 2008). Ater holding that Costa failed to state a cause of action, the Court nevertheless remanded the case to the trial court because the court had denied Costa the opportunity to file an amended petition. Id. at 463-64. Upon remand, Costa filed an amended petition.

Allegations of the Amended Petition

In his petition, Costa alleged that at the time of his post-conviction proceeding, he directed Mr. Allen, as post-conviction counsel, to secure the attendance of Dr. Alen Scott at the motion hearing. Dr. Scott had testified in the criminal trial as to the size of the victim’s hymenal opening. Costa wished to employ certain documents to demonstrate the falsity of Dr. Scott’s testimony. Costa also wanted to show at the motion hearing that Dr. Lori Frasier did not measure the hymenal opening, but simply relied on Dr. Scott’s false measurements. Costa further wanted to show that Dr. Frasier did not even review pertinent photographs, although the photographs were available to her. Costa wanted to compel the attendance of Loletta Combs for the same purpose. Costa also alleged that he told counsel to secure the attendance at the post-conviction hearing of Melissa Welpman, along with Loletta Combs, to introduce their notes in order to prove that their trial testimony and that of another person, Lee Rear, was false. Costa also wanted to prove that an insect in his daughter’s vaginal area was misidentified as a public crab and that his daughter’s statements were prompted by leading questions. Costa wanted to show that the behaviors allegedly acted out by Costa’s daughter did not occur and that any testimony to that effect was false testimony presented by the family of Lee Rears.

Costa alleged that Alen, for “his own reasons” and to “further the interests” of the State, did not follow his instructions to secure the attendance of the witnesses. He alleged that Alen’s actions constituted an intentionally dishonest breach of fiduciary duty and a constructive fraud, as well as a negligent breach of duty. There is no allegation that Defendant Allen was bribed by money or otherwise participated in a conspiracy to sell an innocent man “down the river” for some other personal motive. The gist of Costa’s petition is that Alen was uncooperative (dishonestly, because he did not communicate to Costa his refusal to cooperate) and chose to “further the interests” of the State by refusing to recognize the wisdom of Costa’s insights as to how to get a new trial. He alleged that Alen attempted to get pertinent documents into evidence, but that he could not because the witnesses necessary to sponsor the documents were not present. He alleged that this failure resulted in the inadmissibility of certain documents, which would have shown that he was “erroneously convicted.” Costa sought money compensation, including punitive damages, for the alleged malpractice of Mr. Allen.

Trial Court Ruling

Defendant Allen moved to dismiss the amended complaint, contending that Costa failed to state a claim for relief. He also contended that he was protected by official immunity. The trial court granted the motion, dismissing the case with prejudice. Costa appeals.

Costa’s Collateral Attack on the Conviction

Numerous issues are presented in this appeal. Many are briefed by the State. Because this appeal involves the dismissal of plaintiffs petition, and because the factual allegations of the petition are taken as true for purposes of our analysis, the issues presented are issues of law. See Nazeri v. Mo. Valley Coll., 860 S.W.2d 303, 306 (Mo. banc 1993). Although there are multiple apparent legal obstacles to Cos-ta’s pursuit of this claim, we select one as easily dispositive of this appeal: the public policy doctrine that the law does not allow a collateral attack of a valid criminal conviction.

Costa asserts in his petition that he was erroneously convicted of the statutory rape of his daughter. He alleges that witnesses were lying, that his daughter was coached, and that there was a scheme to convict him propagated by the foster family (the family of Lee Rears) with whom his daughter spent time. He thus implies, but does not expressly plead, that he is actually innocent, as opposed to legally innocent, of the crime of the statutory rape of his daughter. The distinction between implying and expressing is not insignificant, when one considers that it is possible to be framed with bogus evidence, and thus convicted, of a crime one actually did commit.

A criminal conviction is achieved only after the determination of the existence of proof beyond a reasonable doubt. The law allows and provides for appeals of the direct conviction. Missouri law further allows motions for post-conviction remedies and for appeal of the rulings thereon. Missouri law provides an opportunity for counsel at the post-conviction stage as well as at the trial stage. See sections 545.820, 547.360.5, RSMo 2000; Mo. Const., art. 1, sec. 18(a). See also Rules 29.15(e), 24.035(e).

As long as a conviction is not set aside by an appeal or a post-conviction procedure, it remains a final judgment, and it stands as presumptive proof to the entire world for all purposes that the person convicted was in fact actually guilty. While the defendant may deny guilt, the denial is entirely without legal import as long as the judgment of conviction stands. The judgment conclusively binds the defendant and precludes his assertion of a collateral claim as to which his actual innocence is an essential element. See State ex rel. O’Blennis v. Adolf, 691 S.W.2d 498, 502-04 (Mo.App.1985).

The post-conviction proceeding as to which Costa claims legal malpractice was a proceeding under Missouri Supreme Court Rule 29.15, which allows challenge of a conviction or sentence on grounds that the conviction or sentence violates the constitution or laws of this state or the United States, including claims of ineffective assistance of counsel. The rule also allows challenge on the basis that the trial court lacked jurisdiction to impose the sentence, or that the sentence was in excess of that permitted by law. Rule 29.15 is not designed to create a forum for a second opportunity to discredit the witnesses who testified at trial. It is not a retrial in itself. If, however, the post-conviction movant pleads and proves that the trial defense counsel was guilty of constitutionally ineffective assistance and that such ineffectiveness was prejudicial, the movant can obtain the relief of an entirely new trial. Then the movant, of course, can have a “do-over” as to the impeachment of the witnesses against him in the criminal trial.

Here, Costa does not allege or seem to understand that the 29.15 motion is about proving ineffectiveness of counsel at the trial level. He pleads his claim against Arthur Allen as though Mr. Allen should have proceeded as though the 29.15 case were intended to allow a chance to bring prosecution witnesses back into the courtroom and impeach them with their own notes and records — in other words, to directly cast doubt on the guilty verdict by essentially re-trying the case. But because a proceeding under Rule 29.15 is not a retrial, at best it could have indirectly cast doubt on the verdict by demonstrating ineffective assistance of trial counsel. In any event, overlooking this lapse in the pleading, we will assume for argument purposes that Costa wishes to be understood as asserting that if post-conviction counsel had done what Costa had wanted counsel to do, counsel would have been able to successfully demonstrate the constitutional ineffectiveness of trial counsel.

It is settled that a claim for relief from a valid conviction cannot be asserted in a claim of legal malpractice. See, e.g., Johnson v. Raban, 702 S.W.2d 134, 138 (Mo.App.1985). In Johnson, the convicted client, after losing his direct appeal and his post-conviction motion, sued the attorney who represented him in the criminal trial. Id. at 135. The defendant attorney moved to dismiss the action on the ground of collateral estoppel. The trial court took note of the reported cases involving the plaintiff client and held that the action was properly barred by collateral estoppel. Id. at 136. Noting that the standard for determining ineffective assistance of counsel in a post-conviction proceeding is for practical purposes identical with the standard required for submission of a legal malpractice claim, the court found that the application of the doctrine of collateral estoppel was appropriate. Id. at 137-38. The court went on, however, beyond the facts of that case, to invoke the public policy considerations that were equally applicable. The court declared that the public policy of this state dictates that a person who has “failed in his attack upon his conviction both directly and collaterally” (referring to the direct appeal and the post-conviction proceeding and appeal) should “not be permitted to recover against his attorney in a civil malpractice action for damages allegedly arising out of the attorney’s handling of his defense.” Id. at 138. The court said that it would “undermine the effective administration of the judicial system” to allow the relitigation of the issue of guilt or innocence in a subsequent action. Id.

This case, despite Costa’s use of the phrase “breach of fiduciary duty” and “constructive fraud,” is essentially a malpractice action that seeks to retry the criminal case, regardless of how the pleader wishes to describe the claim. In State ex rel. O’Blennis v. Adolf, 691 S.W.2d 498, 499 (Mo.App.1985), the client, pursuant to a plea bargain, pleaded guilty to assault with intent to kill with malice. (His earlier conviction after trial had been reversed upon direct appeal, and the case had been remanded. Id.) Later, after his guilty plea, and after the subsequent failed attempt to set it aside, he sued the defense attorney, contending that counsel failed to investigate, subpoena, and cross-examine witnesses in the earlier trial, thereby failing to establish defenses of alibi and mis-identification. Id. at 501. Trial defense counsel, at that point a defendant in the civil case, sought a writ of prohibition on the basis that the suit was barred by collateral estoppel and public policy. Id. at 503. The court issued its writ based on considerations of defensive collateral es-toppel and public policy. Id. at 504. The court recognized that plaintiff’s actual innocence (which the court called “factual innocence”) was an “indispensible” element of a malpractice claim against the attorney who represented the defendant at trial. Id. at 503. The court stated that it would be against public policy for the suit to continue in that it would “shock the public conscience, engender disrespect for courts and generally discredit the administration of justice.” Id. at 504 (quoting In re Estate of Laspy, 409 S.W.2d 725, 737 (Mo.App.1966)).

Although this case involves alleged misfeasance in connection with a post-conviction proceeding rather than a claim as to the criminal trial itself, we believe that the same principles would apply here, if not more so. If anything, applying the public policy doctrine to bar such a claim makes even more sense in this context than it does in the case in which the alleged tor-tious conduct was that of the trial defense counsel, because here the “but-for causation” as to the conviction of an innocent person is another step removed. It is impossible to quantify the damage value of the loss of an entirely new trial without there being a way to have predicted the outcome of the new trial. As noted, Costa does not plead what such an outcome would be, much less assert actual innocence, or provide us with a road map for our judicial accommodation of a concept for determining the value of merely having a new trial. The only damage pleaded here is the defeat of his effort to obtain a new trial. Even if we assume that an acquittal would result from a new trial, that only puts the case in a posture equivalent to O’Blennis, in which the court found the public policy and collateral estoppel principles to be so compelling that it granted a writ of prohibition against allowing the claim to proceed.

Also, of course, in the absence of actual innocence, which is not pleaded, Costa’s own illegal actions would be the full legal and proximate cause of his damages. Anything else would “shock the public conscience.” Id. at 504. See also 7A C.J.S. Attorney & Client, sec. 325, at 362 (2004):

A criminal defendant bringing a malpractice action fails to state a cause of action when he or she fails to allege actual innocence and fails to set forth any facts that would establish actual innocence in the underlying criminal case.

The same public policy principles should apply whether the assertion is entitled “breach of fiduciary duty” or “professional negligence.” To rule otherwise would be to undermine the state’s interest in not allowing the guilty to escape punishment in that it would allow the actually guilty to transfer all or part of the punishment to another. See id., sec. 306, at 340. As a result of public policy considerations, Cos-ta’s claim for money damages for his attorney’s alleged misdeeds is barred by the presumption of guilt imposed by the final judgment of conviction.

Conclusion

Because Costa cannot be permitted to collaterally attack or undermine the final judgment of conviction, we hold that the trial court properly dismissed Costa’s petition with prejudice. We need not reach any of the other issues that would otherwise be present in this -appeal.

HARDWICK, concurs.

AHUJA concurs in separate opinion.

ALOK AHUJA, Judge,

concurring.

Although I agree that the dismissal of Costa’s Petition should be affirmed, I do not find it necessary to address the issue of first impression decided by the majority: namely, whether a plaintiff alleging attorney malpractice in connection with a post-conviction relief proceeding can proceed without alleging his actual innocence, and in the face of a subsisting criminal conviction. Instead, I believe Costa’s Petition suffers from defects more mundane, but nonetheless dispositive: first, the Petition fails to adequately allege that Costa would have obtained post-conviction relief but for Allen’s claimed malpractice; and second, it fails to allege damages proximately caused by Allen’s alleged malpractice, because Costa does not allege that he would have been acquitted (or received any other more favorable outcome) at the new trial he claims Allen negligently failed to secure. I accordingly concur in the result.

1. As an initial matter, Costa’s Petition fails to adequately allege that he would have achieved post-conviction relief but for Allen’s purported negligence. At the outset of his Petition, Costa alleges that the grounds on which he sought post-conviction relief were “that the prosecution knew or should have known that [testimony it presented at his trial] was false, and failed to correct it,” and that his trial counsel failed to present “exculpatory materials in the form of documents which were or should have been in his file before and at the time of trial.” Beyond these general allegations describing Costa’s underlying post-conviction relief claims, the Petition fails to plead any facts suggesting that the evidence Allen negligently failed to present would have proven that either the prosecution or defense counsel knew, or should have discovered, the alleged falsity of the testimony presented at Costa’s criminal trial. Instead, his Petition contains detailed allegations that the evidence omitted from his post-conviction proceeding would have established that the testimony presented in his criminal trial was false, and that the witnesses acted deliberately, either to aid the prosecution or from other ulterior motives.

Given the grounds on which Costa sought post-conviction relief as described in his Petition, he needed to show either that the prosecution knowingly presented false, material testimony; or that his defense counsel failed to present exculpatory evidence which either was known to defense counsel, or was discoverable through reasonable investigation. Yet Costa’s Petition does not allege that Allen failed to present evidence which would have proven either of these linchpin issues. This ground, alone, justifies dismissal.

2. Costa’s Petition suffers from another, equally fundamental defect: it fails to allege that he would have been acquitted (or received some other disposition more favorable than in his original trial) at the new trial he claims that Allen negligently failed to secure. Instead, Costa’s Petition merely alleges that he would have been awarded post-conviction relief (in these circumstances, a new trial) if Allen had acted more competently. That is not enough.

Prior Missouri decisions have recognized that, in order to establish damages proximately caused by an attorney’s negligent handling of litigation, a malpractice plaintiff must prove “that it would have prevailed in the underlying case but for [the attorney’s] actions.” Day Advertising, Inc. v. Devries & Assocs., P.C., 217 S.W.3d 362, 367 (Mo.App. W.D.2007).

The plaintiff [in a legal malpractice suit] has the burden to establish the defendant’s negligence proximately resulted in damages to the plaintiff. Because the alleged damages are based on the resolution of the underlying action ..., the plaintiff must prove a “case within a case.” The plaintiff must prove that it had a valid claim or defense.

Id. (citations and internal quotation marks omitted); see also, e.g., Stockmann v. Frank, 239 S.W.3d 650, 657 (Mo.App. E.D.2007).

While not in these precise circumstances, other litigants have made essentially the same malpractice claim as Costa does here: that their attorney negligently forfeited their right to a trial, or to a new trial, or to a trial before a particular fact-finder. As a natural outgrowth of the “case within a case” principle, courts addressing such claims have held that the forfeiture of a litigant’s procedural rights — even if caused by an attorney’s negligence — is not enough to establish a viable malpractice claim, without evidence that the proceeding the litigant wanted would have resulted in a more favorable outcome. Thus, in Kilmer v. Carter, 274 Cal.App.2d 81, 78 Cal.Rptr. 800 (1969), a malpractice plaintiff alleged that his attorney negligently failed to file an opening brief in the appeal of an adverse judgment, thereby costing the malpractice plaintiff his right to a new trial. The California Court of Appeal held that the malpractice plaintiff had failed to prove his claim because, among other things, he had failed to show that he would have achieved a more favorable outcome at the new trial to which he alleged he was entitled:

We could dispose of the claim that there would have been a reversal of the [underlying judgment], by simply pointing out that plaintiff offered no evidence of the amount of damages he would have suffered at a retrial, had there been such a reversal. We do not believe that it was defendants’ burden to go forward on that point. Plaintiff was attempting to prove damages. Mere proof of negligent failure to secure a reversal of the [underlying] judgment simply left plaintiff’s case hanging in midair, since the [underlying] case would have had to be retried on the damage issue. The fact that at such a hypothetical retrial it would have been [the underlying plaintiffs] burden to prove the amount of his damages is no reason for relieving this [malpractice] plaintiff of his duty to plead and prove the damages resulting from defendants’ neglect.

Id. at 804 (emphasis added) (citations omitted).

Another case similarly observes that, in a legal malpractice claim alleging negligence by appellate counsel,

the relevant determinations are whether, had an appeal been timely taken, plaintiff would have prevailed and, on retrial, have obtained a more favorable result. In such a case, the first issue for the trial court is to determine on the record made in the original trial, as though it were a direct appeal, whether plaintiff would have prevailed had the appeal been timely taken. If that is resolved in plaintiffs favor, the second matter before the trial court is to retry the original case on the merits to determine whether, on the facts and law, plaintiff should have prevailed.

Universal Ideas Corp. v. Linn County, 64 Or.App. 805, 669 P.2d 1165, 1166 (1983) (involving claim against trial court clerk for failing to send notice of judgment, resulting in forfeiture of appeal rights) (citations omitted); see also 4 Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice § 31:52, at 743 (2010). Other decisions reach the same result in circumstances in which a malpractice plaintiff claims that an attorney’s negligence cost the plaintiff his right to a trial: the denial of the right to trial, even if based on acknowledged negligence, is not enough to state a claim — the malpractice plaintiff must allege and prove what the results of that trial would have been. Indeed, this is essentially the result reached by the Eastern District in Stockmann, 239 S.W.3d 650, where a malpractice plaintiff claimed that her attorney’s “failure to timely refile her products liability/personal injury lawsuit ... resulted in the loss of her cause of action.” Id. at 652. In these circumstances (where the attorney had allegedly forfeited the malpractice plaintiffs right to even litigate the merits of her claim), the Court applied the general principle that, “[i]n a legal malpractice lawsuit, a plaintiffs damages are based on what a plaintiff could have recovered in the underlying lawsuit. Thus a plaintiff must prove a ‘case within a case.’ ” Id. at 657.

Here, Costa’s Petition alleges only that Allen’s alleged negligence in his post-conviction relief proceeding cost him his right to a new trial. The Petition contains no allegation that Costa would have been acquitted at such a re-trial, or that he would have received some other, more favorable outcome than in his original trial. This omission likewise justifies affirmance of the dismissal of Costa’s Petition.

Based on the pleading defects described above, I join in the affirmance of the dismissal of Costa’s Petition.

      . This court has reached the same conclusion in another pending case with a very similar context. See Kuehne v. Hogan, 321 S.W.3d 337 (Mo.App. W.D.2010), handed down contemporaneously with this case, 321 S.W.3d at 341.

        . See, e.g., State v. Albanese, 9 S.W.3d 39, 49-50 (Mo.App. W.D.1999), State v. Arndt, 881 S.W.2d 634, 637 (Mo.App. S.D.1994).

      . See, e.g., Fisher v. State, 192 S.W.3d 551, 555 (Mo.App. S.D.2006); Alhamoud v. State, 91 S.W.3d 119, 121 (Mo.App. E.D.2002).

      . See, e.g., Jones Motor Comp. v. Holtkamp, Liese, Beckemeier & Childress, P.C., 197 F.3d 1190, 1194 (7th Cir.1999) (Illinois law) (claim that counsel negligently forfeited client’s right to trial by jury, rather than to court, in underlying action; affirming summary judgment for attorney-defendant where "there is no credible evidence of what a jury might have awarded”); Law Practice Mgmt. Consultants, LLC v. M & A Counselors & Fiduciaries, LLC, 599 F.Supp.2d 355, 359 (E.D.N.Y.2009) (granting summary judgment against malpractice plaintiff where plaintiff contended that attorney negligently failed to timely oppose summary judgment motion in underlying case, because malpractice plaintiff made no showing that it would actually have prevailed in underlying case); Allied Prods., Inc. v. Duesterdick, 217 Va. 763, 232 S.E.2d 774, 775 (1977) (" 'If an attorney, in disregard of his duty, neglects to appear in a suit against his client, with the result that a default judgment is taken, it does not follow that the client has suffered damage,’ ” without evidence showing the merit of the malpractice-plaintiff's position in the underlying action), overruled on other grounds, Shipman v. Kruck, 267 Va. 495, 593 S.E.2d 319 (2004); but see Gans v. Gray, 612 F.Supp. 608, 621 n. 12 (E.D.Pa.1985) ("The challenged conduct consists of a post-trial, procedural error. It would be unreasonable under these circumstances to demand proof of success on the merits in the underlying action. The more appropriate standard would be to have the plaintiff present evidence that he would have succeeded on a motion for a new trial. To the extent that a plaintiff is deprived of the right to a trial de novo, he certainly is damaged.”).