author: CYNTHIA L. MARTIN, Judge.

text:
    STATE of Missouri, Respondent, v. Steven Arthur RIOS, Appellant.
    No. WB 70581.
    Missouri Court of Appeals, Western District.
    June 29, 2010.

      Ellen H. Flottman, Columbia, MO, for appellant.
    Shaun J. Mackelprang and Daniel N. McPherson, Jefferson City, MO, for respondent.
    Before Division One: KAREN KING MITCHELL, Presiding Judge, LISA WHITE HARDWICK, Judge and CYNTHIA L. MARTIN, Judge.
   CYNTHIA L. MARTIN, Judge.

Steven Rios (“Rios”) appeals from the trial court’s judgment finding him guilty of murder in the second degree and armed criminal action after a jury trial. Rios alleges that the trial court: (1) abused its discretion in denying a new trial based on juror separation; (2) abused its discretion in refusing to admit “use of force” reports; (3) plainly erred in permitting the testimony of the medical examiner on the cause or means of death; and (4) plainly erred in failing to declare a mistrial after a reference was made by a witness to a polygraph examination. We affirm.

Factual and Procedural History

On June 5, 2004, college student Jesse Valencia (“Valencia”) was found murdered in a field outside his apartment. Valencia’s throat had been slit. Valencia had been involved in a sexual relationship with Rios just prior to his death. During the relationship with Valencia, and at the time of Valencia’s murder, Rios was employed as a Columbia, Missouri, police officer.

In 2005, Rios was tried and convicted of murder in the first degree and armed criminal action. The conviction was reversed, and the case remanded for a new trial in State v. Rios, 234 S.W.3d 412 (Mo. App. W.D.2007), due to the trial court’s error in admitting two hearsay statements made by Valencia.

In December 2008, Rios was re-tried by a jury and found guilty of murder in the second degree and armed criminal action. The jury recommended sentences of life imprisonment ■ for murder in the second degree and twenty-three years imprisonment for armed criminal action. On January 16, 2009, the trial court imposed the sentences recommended by the jury and ordered that they be served consecutively. Rios appeals.

Point I

For his first point, Rios contends that the trial court abused its discretion in denying Rios’s motion for a new trial based on juror separation because two jurors discussed the evidence outside the presence of the other jurors while in a restroom. The trial court found that the facts and circumstances alleged by Rios did not constitute juror separation. We agree.

Standard of Review

We review the trial court’s denial of a motion for new trial for abuse of discretion. State v. Stephens, 88 S.W.3d 876, 881 (Mo.App. W.D.2002). “The trial court abuses its discretion when its ruling is clearly against the logic of the existing circumstances and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration.” Id. The findings of the trial court when ruling on a motion for new trial on the grounds of juror misconduct are given great weight and will not be disturbed on appeal unless the trial court abused its discretion. Grab ex rel. Grab v. Dillon, 103 S.W.3d 228, 241 (Mo.App. E.D.2003).

Analysis

Section 547.020(2) provides that the trial court may grant a new trial “[w]hen the jury has been separated without leave of the court, after retiring to deliberate upon their verdict, or has been guilty of any misconduct tending to prevent a fair and due consideration of the case.” If after the case has been submitted to the jury for deliberation and before a verdict has been reached, there is an opportunity that improper influence can be used on any juror, then a new trial is required. State v. Cooper, 648 S.W.2d 137, 140 (Mo.App. W.D.1983). The purpose of this statute is to “prevent any opportunity for misconduct by the juror or any suspicions of improper influences upon them.” Id. at 139. “A ‘sensible’ and ‘substantial’ compliance must be considered sufficient to satisfy the statute.” Id. at 140 n. 5.

Rios contends that juror separation as envisioned by section 547.020(2) occurred when two jurors, Alyssa Mitchell and Jane Newberry, spent five minutes together in a restroom outside the presence of the other jurors after Rios’s case had been submitted. Rios contends that during this five minute interlude, Ms. Mitchell and Ms. Newberry discussed some of the evidence in the case, and that Ms. Newberry commented that she was confident that by virtue of her prayers, God was leading her in the right direction.

Rios’s allegation first required the trial court to determine whether “juror separation” occurred. If separation did not occur, then section 547.020(2) was not implicated. If separation did occur, then the State was obligated to present evidence to overcome the rebuttable presumption of prejudice. State v. Chambers, 891 S.W.2d 93, 101 (Mo. banc 1994).

In considering whether the alleged conduct of jurors Mitchell and Newberry constituted “juror separation,” the trial court heard testimony offered by the State from court marshal, Leslie Werner. Werner testified that the jury deliberation room contained two restrooms, which could only be accessed from within the jury deliberation room. Werner stated that the juror deliberation room was twelve by twenty feet and that the two bathrooms were at one corner of the room. Werner testified that he and his other officers were stationed outside the entry to the jury deliberation room for the entire six hours that the jury deliberated. Werner stated that no one else had contact with the jury during deliberations and that no jurors left the room during deliberations except for one smoke break. During the smoke break, one officer accompanied the jurors who wanted to smoke, one stayed with the jurors left in the deliberation room, and one officer stayed with the alternate jurors in a different room.

Rios wanted to call juror Mitchell to testify. Rios acknowledged that the law prohibits juror testimony offered to impeach a jury verdict. Strong v. State, 263 S.W.3d 636, 643 (Mo. banc 2008). There is an exception to this rule, however, permitting juror testimony relating to juror misconduct occurring outside the jury room. Id. at 644. Rios argued that even though the restrooms were located adjacent to, and were only accessible from, the jury-deliberation room, the restrooms were nonetheless “outside” the jury room. The trial court rejected this argument and found that the restrooms used by the jurors during deliberations were inside the jury deliberation room. Rios does not contest this finding on appeal.

Rios also argued that notwithstanding the general rule prohibiting such testimony, jurors should be permitted to testify about conduct inside the jury deliberation room for the limited purpose of establishing “separation.” Rios offers no legal support for this proposition and offers no meaningful rationale for distinguishing such testimony from other testimony impeaching the jury’s verdict. The trial court concluded that juror testimony about conduct within the jury deliberation room was not admissible, even if offered for the limited purpose of establishing juror separation. We agree with this conclusion. In any event, Rios does not contest this conclusion on appeal.

The only conclusion Rios contests on appeal is the trial court’s determination that a trip by two jurors, at the same time, to a bathroom inside a jury deliberation room does not constitute juror separation. Toward this end, Rios made an offer of proof as follows:

Alyssa Mitchell would testify that she entered the women’s restroom; that shortly thereafter, another juror we believe is Jane Newberry, from what we know about the jurors, but she just referred to her as Jane, entered after her; that they were alone in the women’s restroom for nearly five minutes; that during that five minutes, they discussed the evidence of the case and how, specifically, the hair evidence and the probative value ... and that even at one time ... Jane told Alyssa Mitchell that she had prayed on it, and that as a result of her prayers, she was confident that God had — is leading her in the right direction.

Rios argues that these circumstances constitute “juror separation,” relying on State v. Jones, 363 Mo. 998, 255 S.W.2d 801 (1953). Jones held that communication with a juror by the sheriff, who was also a witness, was improper and prejudicial. Id. at 806.

It is true that separation, of the jury is generally deemed to have occurred when a third party communicates with a juror outside the presence of the rest of the jury. In Jones, for example, the court concluded that “ ‘[pjrivate communications, possibly prejudicial, between jurors and third person, or witnesses, or the officer in charge, are absolutely forbidden, and invalidate the verdict, at least unless their harmlessness is made to appear.’ ” Id. (quoting Mattox v. United States, 146 U.S. 140, 150, 13 S.Ct. 50, 36 L.Ed. 917 (1892)).

In contrast, however, it has been recognized that physical separation of jurors from one another does not violate section 547.020(2) as long as the jurors remain in custody and under surveillance. State v. Murray, 445 S.W.2d 296, 297 (Mo.1969); see also State v. VanSickel, 675 S.W.2d 907 (Mo.App. W.D.1984) (separation which occurred when one sheriffs vehicle carrying three jurors from motel to court fell behind other three vehicles by half a block not “true separation”); State v. Cooper, 648 S.W.2d 137, 140 n. 5 (Mo.App. W.D. 1983) (“[sjeparations as for use of the elevator, for sleeping arrangements, and use of toilet facilities must not be viewed as separations.”)

Here, the State presented testimony that the jurors remained together in the jury room under custody and surveillance. There was no contact with any juror by a third party, and no contact among jurors outside the jury deliberation room. The trial court did not abuse its discretion in finding that no juror separation occurred. The trial court’s ruling does not offend the logic of the circumstances, nor was it arbitrary or unreasonable. Though it may not be optimum for jurors to engage in conversations within the jury deliberation room that fail to include all jurors, it is implausible to suggest that every utterance by every juror in the jury deliberation room is heard by every other juror. We simply cannot conclude that conversations among some but not all jurors within the confínes of the jury deliberation room rise to the level of juror separation. Point one is denied.

Point II

For his second point, Rios asserts that the trial court abused its discretion in sustaining the State’s objection to Rios’s attempt to offer into evidence “use of force” reports. Rios asserts that the trial court’s ruling prevented him from presenting a defense because the State presented evidence that Rios had been trained in the use of the unilateral vascular neck restraint, the means of restraint other evidence suggested might have been used to immobilize Valencia before his neck was slashed. Rios argues the use of force reports would have shown that Rios had never used the restraint technique as a part of his official duties as a police officer.

Standard of Review

The trial court has broad discretion to admit or exclude evidence at trial. State v. Forrest, 183 S.W.3d 218, 223 (Mo. banc 2006). “ ‘The trial court abuses its discretion when its ruling is clearly against the logic of the circumstances then before the court and is so unreasonable and arbitrary that the ruling shocks the sense of justice and indicates a lack of careful deliberate consideration.’ ” Nelson v. Waxman, 9 S.W.3d 601, 604 (Mo. banc 2000) (citation omitted). The trial court’s evidentiary ruling will be affirmed “unless there is a substantial or glaring injustice.” Romeo v. Jones, 144 S.W.3d 324, 332 (Mo.App.2004). Moreover, we review the trial court’s ruling for prejudice, not mere error, and will reverse only if the error was so prejudicial that it deprived Rios of a fair trial. State v. Johnson, 245 S.W.3d 288, 292 (Mo.App. W.D.2008).

Analysis

The State put on evidence that Rios was trained to employ a technique known as the unilateral vascular neck restraint. The State also put on evidence that the bruises on Valencia’s body were consistent with a rough application of this technique. The State’s witness, Lieutenant John White, testified on cross-examination that had Rios ever used this technique during the course of his official duties, it would have been documented in a use of force report. The State’s witness, Sergeant Lloyd Simons, testified on cross-examination that, as Rios’s immediate supervisor, he would have been notified had Rios used force during the exercise of his official duties and that a use of force report would have been generated. Sergeant Simons testified that he had never seen a report indicating that Rios had used the unilateral vascular neck restraint.

During the cross-examination of Sergeant Simons, Rios then sought to admit the actual use of force reports. The State objected to admission of the reports, arguing that the actual reports were irrelevant as Rios had already made his point that his supervisor had never seen a report indicating Rios’s use of the subject restraint technique. In sustaining the objection, the trial court stated that the reports had “nothing to do with this case” and that it failed to see any relevance to the reports. The trial court advised Rios that he could ask the witness any question that he wanted. Rios resumed cross-examination on a different subject.

Rios complains that the trial court excluded relevant evidence. Evidence must be both logically and legally relevant to be admissible. State v. Ross, 292 S.W.3d 521, 527 (Mo.App. W.D.2009). Logically relevant evidence “ ‘tends to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence, or ... tends to corroborate evidence which itself is relevant and bears on the principal issue, of the case.’ ” Id. at 527-28 (citation omitted). “Evidence is legally relevant if its probative value outweighs the dangers of unfair prejudice, confusion of the issues, misleading the jury, undue delay, waste of time, or cumulativeness.” Id. at 528.

Rios relies on State v. Ray, 945 S.W.2d 462 (Mo.App. W.D.1997). In Ray, the trial court excluded evidence of events leading up to the day of a shooting at a drug house. The excluded evidence involved harassing telephone calls and threats from the victim and other men at the drug house within the forty-eight hours preceding the shooting. Id. at 466. This court reversed, finding that the evidence of prior harassment explained why Ray went to the drug house with a gun. Id. at 470. Ray is clearly distinguishable from the present case. In Ray, the prior events involved the parties and their actions leading up to the shooting. In this case, the excluded evidence bore no relationship to Valencia or to the events leading up to his death.

In any event, it is unnecessary to address the relevance of the use of force reports in this case, as they were merely cumulative of other evidence already before the jury. State v. Radford, 646 S.W.2d 366, 367 (Mo.App. W.D.1982) (stating this court need not address relevancy where excluded evidence merely cumulative). “The trial judge has discretion over the admission of cumulative evidence, and this exercise of discretion will not be disturbed on review unless an abuse of discretion is clearly shown.” Id. The record is clear that the testimony of Lieutenant White and Sergeant Simons provided the information Rios sought from the reports — that Rios had apparently never used the subject restraint technique in the performance of his official duties on the police force.

Similar to this case is State v. Gateley, 907 S.W.2d 212, 222 (Mo.App. S.D.1995), where the defendant in a sexual abuse case sought to admit the victim’s diaries and school records, which made no reference to abuse, to suggest that the victim had not experienced any problems or trauma. However, the victim had already testified that she did not keep any written record of the abuse and that she made good grades. Id. at 222. On appeal, the Southern District held that the trial court did not abuse its discretion in refusing to admit the evidence as it was cumulative. Id. at 222-23.

Here, the use of force reports duplicated evidence already admitted through the cross-examination testimony of Sergeant Simons and Lieutenant White. The evidence in the excluded reports was cumulative. As such, the trial court did not abuse its discretion in sustaining the State’s objection to admission of the reports. Point two is denied.

Point III

In point three, Rios claims that the trial court plainly erred in allowing the medical examiner, Dr. Valerie Rao, to testify that Valencia’s wounds were consistent with someone employing a unilateral vascular neck restraint that rendered Valencia unconscious, dragging Valencia to the place where his body was found, and then cutting Valencia’s throat while he was lying on the ground. On appeal, Rios complains that this testimony improperly opined about the ultimate issue of the cause of death and invaded the province of the jury. Rios did not, however, object to this testimony at trial.

Standard of Review

Rule 30.20 authorizes us to review, in our discretion, “plain errors affecting substantial rights ... when the court finds that manifest injustice or miscarriage of justice has resulted there from.” Under Rule 30.20, plain error review involves a two-step process. State v. Dudley, 51 S.W.3d 44, 53 (Mo.App. W.D.2001). First, we determine whether or not the claimed error “facially establishes substantial grounds for believing that ‘manifest injustice or miscarriage of justice has resulted[.]’ ” State v. Brown, 902 S.W.2d 278, 284 (Mo. banc 1995). We must determine “whether, on the face of the claim, plain error has, in fact, occurred.” Dudley, 51 S.W.3d at 53. Errors are plain if they are evident, obvious, and clear. State v. Hawthorne, 74 S.W.3d 826, 829 (Mo.App. W.D. 2002). In the absence of such error, we should decline to exercise our discretion to review the claimed error under Rule 30.20. If we find plain error on the face of the claim, we may proceed, at our discretion, to the second step to consider whether or not a miscarriage of justice or manifest injustice will occur if the error is left uncorrected. Dudley, 51 S.W.3d at 53.

Analysis

At trial, Dr. Rao testified that Valencia’s throat had been cut and blood was running down both sides of his neck. Dr. Rao testified that the blood flow indicated that Valencia was lying on his back when his throat was cut. The neck wound was about four inches long and was so deep that it nicked the spine. Dr. Rao testified that Valencia also suffered numerous bruises on his head, his right arm and wrist, his left wrist, his back, his chest, both shoulders, his left hip and groin area, and his right buttock and leg. Dr. Rao testified that Valencia had petechial hemorrhaging in his eyes consistent with being choked. Valencia had no defensive wounds. When asked whether the bruising and other injuries to Valencia’s body were consistent with Valencia being rendered unconscious by a rough application of the unilateral vascular restraint technique, being dragged to the place where his body was found, and having his throat cut while he was lying on the ground, Dr. Rao answered affirmatively.

Expert testimony is admissible where “ ‘it is clear that the subject of such testimony is one upon which the jurors, for want of experience or knowledge, would otherwise be incapable of drawing a proper conclusion from the facts in evidence.’ ” State v. Calhoun, 259 S.W.3d 53, 58 (Mo.App. W.D.2008) (citation omitted). An expert in a criminal case may testify concerning her opinion on an ultimate issue, but the testimony must aid the jury and may not invade the jury’s province. Id.

The essential test of the admissibility of expert testimony is whether such testimony will be helpful to the jury. A guiding principle in applying this test is that expert testimony is proper ‘[i]f the subject is one with which lay jurors are not likely to be conversant.... On the other hand, if the subject is one of everyday experience, ... then opinion testimony is properly rejected.’ In ruling on the admissibility of expert testimony, the trial court considers whether such testimony assists the jury or if it unnecessarily diverts the jury’s attention from relevant issues.

State v. Hayes, 88 S.W.3d 47, 61 (Mo.App. W.D.2002) (citations omitted) (internal quotation marks omitted).

Rios argues that Dr. Rao’s testimony invaded the province of the jury because she drew a conclusion that was reserved for the jury. Presumably, the conclusion to which Rios is referring is the cause or means of Valencia’s death. However, Rios fails to argue or establish that the jurors were conversant based on everyday knowledge on the subject of the cause or means of death or that Dr. Rao’s testimony failed to aid the jury on this subject. Rios has not established, therefore, that the average juror would be able to determine whether Valencia’s wounds were consistent with application of the unilateral vascular neck restraint, being dragged on the ground, and having his throat cut while lying on the ground. See Calhoun, 259 S.W.3d at 59 (stating no plain error in allowing expert testimony where not evident or clear that the average person would be able to apply the generalized knowledge of gravity to the facts of the case and draw the same conclusions as the expert); State v. Harris, 305 S.W.3d 482, 491 (Mo.App. E.D. 2010) (stating expert testimony regarding amount of force required to inflict injuries such as those sustained by victim admissible as outside common experience of jurors and did not comment on defendant’s responsibility for those injuries).

Rios relies on State v. Clements, 789 S.W.2d 101 (Mo.App. S.D.1990), for the proposition that a State’s witness cannot be permitted to testify as to the ultimate issue of an element of the crime. Clements dealt with erroneous expert testimony opining about whether the defendant deliberated prior to committing his crime. Id. at 109-10. Clements is neither controlling nor persuasive. Dr. Rao offered no testimony suggesting that Rios was the person who engaged in the conduct which Dr. Rao affirmed could have been the means of Valencia’s death. Therefore, Dr. Rao did not testify regarding an ultimate issue of an element of the offenses with which Rios was charged — i.e. whether Rios caused Valencia’s death or knew his conduct was practically certain to cause Valencia’s death. Consequently, Rios has not demonstrated any error associated with Dr. Rao’s testimony. We thus decline to exercise plain error review. Point three is denied.

Point IV

For his fourth and final point, Rios claims that the trial court plainly erred in failing to sua sponte declare a mistrial when Captain Monticelli testified that he asked Rios to submit to a polygraph examination. As this claim of error was not preserved at trial, the plain error standard of review discussed in response to Rios’s third point on appeal applies equally to our discussion of this point.

Analysis

On direct examination, the State elicited the following testimony from Captain Monticelli:

[THE STATE]: Was there any more conversation at that point or was it pretty well over?
[CAPT. MONTICELLI]: At that time, no. I escorted — I told them that we — we would get back with them on the second interview when we could set it up. [Rios] said that would be fíne. I also asked him — I may be asking him to take a polygraph with the Missouri State Highway Patrol, and he told me there would be no problem with that.

After a few more questions, the trial court took a recess during which the following conversation took place outside the hearing of the jury:

THE COURT: I don’t want to hear anymore about polygraphs.
[THE STATE]: I know, Your Honor.
THE COURT: Do you understand me?
[THE STATE]: I had met with him four years ago and told him don’t mention it, and then I forgot to remind him again.
THE COURT: Let’s don’t talk about it again.
[DEFENSE COUNSEL]: Well, Your Honor, aren’t I allowed to reaffirm my guy consented to it and I’m allowed—
THE COURT: If you want to bring it up, I don’t care if you bring it up.
[DEFENSE COUNSEL]: Okay.
[THE STATE]: I apologize, Your Honor. I should have reminded him again.
THE COURT: But I don’t want the State bringing it up anymore. I don’t think — I mean, the way it came up—
[DEFENSE COUNSEL]: [The State] had no idea — I know he was caught by surprise too.
THE COURT: If you want to bring it up, that’s your business. I wouldn’t.

On cross-examination, defense counsel asked Captain Monticelli, “So essentially [Rios] consented to pretty much anything you asked of him? He consented to search of his house, search of his car. He did two CVSAs for you. He — he stripped down for Detective Lederle.”

Rios never requested a mistrial, never asserted an objection, and never asked the trial court to instruct the jury to disregard Captain Monticelli’s mention of the polygraph. To the contrary, it is clear from the record that Rios intended to use Captain Monticelli’s inadvertent reference to the polygraph as an opening to elicit testimony to show that Rios was cooperative and complied with all requests. Notwithstanding this strategic decision, Rios now argues that he was irreparably prejudiced by Captain Monticelli’s reference to the polygraph and that such prejudice could not be remediated, necessitating a mistrial. Rios contends that the trial court should have declared a mistrial sua sponte. We disagree.

Polygraph examination results are inadmissible. State v. Biddle, 599 S.W.2d 182, 191 (Mo. banc 1980). However, the mere inadvertent reference to a polygraph examination does not by itself constitute prejudice warranting a mistrial. See State v. Stewart, 265 S.W.3d 309, 316 (Mo.App. S.D.2008) (finding that witness’s confusion by question which resulted in inadvertent reference to polygraph did not constitute prejudice warranting a mistrial); State v. Weston, 912 S.W.2d 96, 101 (Mo.App. S.D.1995) (finding that no prejudice where police witness inadvertently referred to polygraph test when asked when he got involved in the investigation); State v. Williams, 654 S.W.2d 215, 218 (Mo.App. E.D.1983) (finding that no prejudice where police officer refers to polygraph examination but not to results, and where no inference could be drawn as to whether defendant took, or refused to take, a polygraph examination).

Here, it is clear from the record that the State did not intend for Captain Monticelli to reference the polygraph examination. In addition, there was no reference to polygraph results. Finally, Rios does not contend that an inference could be drawn as to whether Rios took, or refused to take, a polygraph examination.

Moreover, Rios did not object to, or seek any relief from, Captain Monticelli’s testimony, opting instead to employ the strategy of converting the miscue into an opportunity to highlight Rios’s cooperation with all requests made of him by the police. As such, Rios has waived plain error review. See State v. Johnson, 284 S.W.3d 561, 582 (Mo. banc 2009) (concluding that plain error review is waived when defendant affirmatively makes strategic decision not to object to the admission of the statement or states that it has no objection; plain error review is only available where no objection is made due to inadvertence or negligence).

The trial court did not plainly err in failing to sua sponte declare a mistrial. Point four is denied.

Conclusion

We affirm the trial court’s judgment.

All concur.

      . The facts are viewed in the light most favorable to the verdict. State v. Donahue, 280 S.W.3d 700, 701 (Mo.App. W.D.2009).

      . All statutory references are to RSMo 2000 as supplemented unless otherwise indicated.

      . Rios and the State stipulated that if called, the other four marshals who participated in monitoring jury deliberations would establish each marshal's role during the deliberation process, that each made sure no third parties had contact with the jurors during deliberations, that each made sure no jurors spoke to one another during smoke breaks outside the jury room, and that no marshal was inside the jury room to prevent jurors from going into the bathroom together.

      . In Fleshner v. Pepose Vision Institute, 304 S.W.3d 81, 89-90 (Mo. banc 2010), the Supreme Court recognized another very limited exception to the general rule prohibiting a juror’s testimony impeaching a jury verdict where a juror makes statements during deliberations that reflect an ethnic or religious bias or prejudice. Rios does not allege that this exception is applicable.

      . Rios contends only that the jury could have inferred that Captain Monticelli thought Rios was lying.


source: Caselaw Access Project

author: GARY D. WITT, Judge.

license: Public Domain

text:
    In the Interest of: J.J.B; D.A.B. and K.S.B., Respondents, v. J.A.V.C., Appellant.
    No. WD 71911.
    Missouri Court of Appeals, Western District.
    June 29, 2010.

      Jill M. Katz, Kansas City, MO, for appellant.
    Michael J. Mann, Kansas City, MO, Independence, MO, for respondents.
    Before Division Three: JAMES M. SMART, JR., Presiding Judge, JOSEPH M. ELLIS, Judge and GARY D. WITT, Judge.
   GARY D. WITT, Judge.

J.A.V.C. (Mother) appeals the circuit court’s judgment terminating her parental rights over her son J.J.B., and permitting D.A.B. and K.S.B. (Adoptive Parents) to adopt J.J.B. without Mother’s consent. The circuit court found that grounds for termination of Mother’s parental rights existed under 211.447.5(3). Because we have determined that substantial evidence supports the circuit court’s finding that termination was justified on the basis of Mother’s mental conditions under § 211.447.5(3)(c), we affirm.

Factual Background

J.J.B., born on January 28, 2004, was removed from Mother’s home and was placed in foster care under the jurisdiction of the Jackson County Family Court on December 14, 2006, based on findings by the court that J.J.B. was without proper care, custody, and support pursuant to Section 211.031. Specifically, the Juvenile Officer’s Petition alleged and the Court found that “[M]other exhibits a pattern of neglecting and failing to properly supervise the child ... who is 2 years of age [and this pattern] has resulted in at least three instances in which the child has left the home and wandered the streets, alone and without adult supervision.” Moreover, the court found that the “actions of the mother place the child at risk of further harm or neglect absent the intervention of this Court.” J.J.B. has remained in foster care since that time.

Beginning in December of 2006 and during the course of nearly three years, Mother was offered a host of social services designed to allow Mother to regain custody and control of J.J.B. Further details pertaining to Mother’s participation in these services, or lack thereof, will be outlined as relevant in the analysis section herein.

In May of 2007, J.J.B. was placed in the foster care of Adoptive Parents. On April 21, 2008, Adoptive Parents filed the instant Petition for Adoption, which alleged grounds not only to adopt J.J.B. but also alleged grounds to terminate Mother’s parental rights over J.J.B.

On November 13, 2009, an evidentiary hearing was held before the Family Court Commissioner, with both Adoptive Parents and Mother presenting evidence. On November 17, 2009, the Commissioner issued its Findings and Recommendations for Decree of Adoption, which were adopted and confirmed as a final Judgment of the Circuit Court on November 23, 2009.

Mother now appeals.

Standard of Review

“The trial court’s termination of parental rights must be affirmed unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or misapplies the law.” In the Interest of C.J.G., 75 S.W.3d 794, 797 (Mo.App. W.D.2002). “We review the facts and all reasonable inferences therefrom in the light most favorable to the trial court’s judgment.” Id.

Analysis

In Point One, Mother argues that the trial court erred in terminating her parental rights over J.J.B. “without her consent pursuant to Section 453.040(7) because [she] had not willfully substantially and continuously neglected to provide the child with necessary care and protection in the six months prior to the filing of the Petition in that [Mother] regularly attempted and did have regular contact with the minor child, consistently provided food and toys for the child and substantial evidence showed [Mother] provided substantial and continuous care and protection between the filing of the pleading and the trial date.”

At the outset, we must note that Mother is mistaken when she asserts that her parental rights were terminated “pursuant to Section 453.040” because here her parental rights were expressly terminated by the circuit court pursuant to Section 211.447. Nonetheless, because Mother’s termination of parental rights argument in this Point is predicated solely on Section 453.040, we turn to that statute, which authorizes the adoption of a child without the consent of the natural parents. Specifically, Section 453.040 sets forth eight alternative and independent grounds to establish when the parent’s consent to an adoption is not required. Id.; see also In re Adoption of N.L.B. v. Lentz, 212 S.W.3d 123, 126 (Mo. banc 2007) (“On the face of these statutes, the grounds for an adoption are the ‘welfare of the person sought to be adopted,’ as provided in section 453.030.1, and either proof of ‘written consent’ as provided in section 453.030.2 and .3 or proof that the parent(s) falls in one of the eight categories for which consent is not required as provided in section 453.040.”).

The two grounds of Section 453.040 applicable to the instant litigation are the following:

(7) A parent who has for a period of at least six months, for a child one year of age or older, or at least sixty days, for a child under one year of age, immediately prior to the filing of the petition for adoption, willfully abandoned the child or, for a period of at least six months immediately prior to the filing of the petition for adoption, willfully, substantially and continuously neglected to provide him with necessary care and protection;
(8) A parent whose rights to the child may be terminated for any of the grounds set forth in section 211.447, RSMo, and whose rights have been terminated after hearing and proof of such grounds as required by sections 211.442 to 211.487, RSMo. Such petition for termination may be filed as a count in an adoption petition.

Section 453.040.

Here, Mother’s argument focuses solely on subsection 7 of the statute. Mother’s argument ignores that subsection 8 of the statute provides another statutory basis that, if proven, would be sufficient to demonstrate that her consent to the adoption need not be obtained. Specifically, Section 453.040.8 provides that if Mother’s parental rights are terminated pursuant to “any of the grounds set forth in section 211.447,” then Mother’s consent to the adoption need not be obtained. Id. (Emphasis added.) Section 211.447.9, in turn, provides that “[i]n actions for adoption pursuant to chapter 453, RSMo, the court may hear and determine the issues raised in a petition for adoption containing a prayer for termination of parental rights filed with the same effect as a petition permitted pursuant to subsection 2, 4, or 5 of this section.”

In this case, the trial court terminated Mother’s parental rights over J.J.B. pursuant to Section 211.447.5(3), which states the following:

The child has been under the jurisdiction of the juvenile court for a period of one year, and the court finds that the conditions which led to the assumption of jurisdiction still persist, or conditions of a potentially harmful nature continue to exist, that there is little likelihood that those conditions will be remedied at an early date so that the child can be returned to the parent in the near future, or the continuation of the parent-child relationship greatly diminishes the child’s prospects for early integration into a stable and permanent home. In determining whether to terminate parental rights under this subdivision, the court shall consider and make findings on the following:
(a) The terms of a social service plan entered into by the parent and the division and the extent to which the parties have made progress in complying with those terms;
(b) The success or failure of the efforts of the juvenile officer, the division or other agency to aid the parent on a continuing basis in adjusting his circumstances or conduct to provide a proper home for the child;
(c) A mental condition which is shown by competent evidence either to be permanent or such that there is no reasonable likelihood that the condition can be reversed and which renders the parent unable to knowingly provide the child the necessary care, custody and control;
(d) Chemical dependency which prevents the parent from consistently providing the necessary care, custody and control over the child and which cannot be treated so as to enable the parent to consistently provide such care, custody and control!.]

Id.

Here, the trial court made the following findings and conclusions “pursuant to section 211.447.5.(3)(a-d)” in terminating Mother’s parental rights:

(a)The Respondent, [Mother], has made no progress in complying with the services directives of Missouri Children’s Division and this Court in the past 36 months. A service plan was entered into by the Respondent and Missouri Children’s Division on or about December 6, 2006 and several times thereafter, including November 20, 2007, but the Respondent did not comply, and
(b) Numerous services have been offered to the Respondent to aid her in adjusting her circumstances and conduct so as to enable her to care for the child. These services included Drug Court & DRAGNET, intense case management and supervision by Missouri Children’s Division, two psychological evaluations with recommendations, parenting assessment with recommendations, individual therapy with Westport Counseling, parenting class and housing referrals, supervised visits and parent aid services with Family First Services.
(c) [Mother] has a mental condition that has been shown by the competent testimony of Dr. Mary Richardson to be permanent in that her brain injuries and cognitive thinking are impaired long term, and also, is of such a nature that there is no reasonable likelihood that her conditions can be reversed and the Court finds that said conditions make [Mother] unable to knowingly provide for the care of the child.
(d) The Court has found that [Mother] had drug and alcohol issues in the past and the same have not been corrected. However, due to her mental condition the Court finds this section (d) otherwise inapplicable.

“It is sufficient for termination of parental rights, under § 211.447.5, if one of the statutory grounds set forth in that section for termination is adequately pleaded and proved.” In the Interest of B.J.K., 197 S.W.3d 237, 243 (Mo.App. W.D.2006). “Hence, we must affirm a judgment terminating parental rights, pursuant to § 211.447, if the record supports termination on any one of the statutory grounds set forth in § 211.447.5.” Id:

Mother does not challenge the above findings of the trial court in Point One. Point One is denied.

In Point Two, Mother argues that the trial court erred in terminating her parental rights over J.J.B. pursuant to Section 211.447.5(3) because there was insufficient evidence to support the trial court’s findings and conclusions that Mother failed “to remediate the issues that brought the child to the Court’s attention [and] no evidence was presented regarding the existence of ‘conditions of a potentially harmful nature’” for J.J.B. We disagree.

As outlined above in Point One, the trial court terminated Mother’s parental rights over J.J.B. pursuant to Section 211.477.5(3), and in doing so the Court made detailed findings of fact and conclusions of law in order to support its judgment order. In arguing that there was insufficient evidence to support the trial court’s judgment that terminated her parental rights, Mother chooses to focus only on those few facts that support her argument on appeal and ignores the vast bulk of evidence that supported the trial court’s judgment order. Simply put, Mother’s argument herein fails to acknowledge that the “trial court’s termination of parental rights must be affirmed unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or misapplies the law.” C.J.G., 75 S.W.3d at 797.

“Termination of parental rights is allowed when a statutory ground for termination is supported by clear, cogent, and convincing evidence, and termination is determined to be in the best interests of the child by a preponderance of the evidence.” In the Interest of A.M.S., 272 S.W.3d 305, 308 (Mo.App. W.D.2008).

The trial court made the requisite findings under Section 211.447.5(3) “as to the four conditions specified in subparagraphs (a) through (d).” A.M.S., 272 S.W.3d at 308 (citing § 211.447.4(3) (a)-(d)) . “Proof of one of these factors is sufficient to support termination of parental rights.” Id. (emphasis added); see also In the Interest of N.M.J., 24 S.W.3d 771, 778 (Mo.App. W.D.2000).

Here, Mother’s failure to meaningfully dispute the findings and conclusions by the trial court as it pertains to her permanent “mental condition” is dispositive of this Point. Section “211.447.4(3)(c) providefs] that a mental or emotional condition must be analyzed in three prongs to make an adequate finding: (1) documentation-whether the condition is supported by competent evidence; (2) duration-whether the condition is permanent or such that there is no reasonable likelihood that it can be reversed; and (3) severity of effect-whether the condition is so severe as to render the parent unable to knowingly provide the child necessary care, custody and control.” In the Interest of K.W., 167 S.W.3d 206, 211 (Mo.App. E.D.2005) (quot-mg In the Interest of K.A.W., 133 S.W.3d 1, 13 (Mo. banc 2004)).

The trial court found the following pursuant to Section 211.447.5(3)(c):

[Mother] has a mental condition that has been shown by the competent testimony of Dr. Mary Richardson to be permanent in that her brain injuries and cognitive thinking are impaired long term, and also, is of such a nature that there is no reasonable likelihood that her conditions can be reversed and the Court finds that said conditions make [Mother] unable to knowingly provide for the care of the child.

Mother’s sole argument on appeal that these specific findings and conclusions were not supported by substantial evidence is that Dr. Richardson, when asked if, based upon her evaluation of Mother, “that there’d be no way that [Mother] could make changes in the future’, Dr. Richardson testified that she ‘couldn’t say •with a hundred percent certainty.’ ” But the relevant inquiry in determining whether to terminate parental rights is if there is “clear, cogent and convincing evidence,” not if there is evidence that removes any and every doubt. A.M.S., 272 S.W.3d at 308. Dr. Richardson’s testimony supported the trial court’s conclusion that “there is no reasonable likelihood that her conditions can be reversed” because Dr. Richardson testified that “with a certain degree of certitude, that it’s a permanent situation.”

Dr. Richardson, a licensed psychologist, gave detailed testimony to support the trial court’s conclusion that Mother’s mental conditions were irreversible and, therefore, made her unable to knowingly provide for the care of the child. Mother was diagnosed by Dr. Richardson of having a litany of mental conditions including “mental illness due to a brain trauma,” “posttraumat-ie stress disorder,” “depression,” “borderline intellectual functioning,” and “organic personality disorder.”

Based on these various conditions, Dr. Richardson opined that she was doubtful if Mother would be able to care for herself and ruled out the possibility that Mother would be able to care for J.J.B. on her own. Dr. Richardson based this conclusion on a host of factors, including Mother’s “serious cognitive impairment” that would prevent her from reasoning through crises, understanding the needs of a young child, and could even ultimately lead to “role reversals” with the child. Moreover, Dr. Richardson noted that Mother had demonstrated an inability to protect herself from abusive relationships and that her serious mental conditions would prevent her from protecting the child.

Dr. Richardson testified at length about Mother’s bizarre and unusual behavior during her interview of Mother. For example, when she was asked the name of her children, Mother called her children by the name of hotels including “Alameda,” “Hyatt Regency,” “Sheridan” and “Har-rah’s Casino.” Furthermore, Dr. Richardson testified that a psychiatrist prescribed Seroquel, Celexa, Zoloft, and Diazepam to Mother for her mental conditions. Mother also told Dr. Richardson that she had “panic attacks,” “is worried about germs,” and “feels very violated when friends take pictures of her with camcorders and cell phones.” Mother also told a “bizarre story about visiting a lady who wanted to kidnap her.”

Because the trial court’s finding of a permanent “mental condition” under Section 211.447.5(3)(c) was supported by substantial evidence for all of the aforementioned reasons, we need not address the sufficiency of the evidence as to the other conditions pursuant to the statute. N.M.J., 24 S.W.3d at 778.

Even though offered multiple services to assist her in regaining custody of her son, Mother does not dispute that there was ample evidence that she “failed” in complying with the social service plan by going “AWOL” for months at a time, engaging in illegal drug use, and failing to maintain secure housing or employment. Yet Mother persists on contending that merely because she visited J.J.B. and “provided food and toys” for him after the Petition was filed, that this somehow demonstrates that the trial court had insufficient evidence to terminate her parental rights. “Evidence of short-term improvements in a parent’s circumstances occurring after the filing of the termination petition is not necessarily compelling, as the parent’s conduct subsequent to a petition for termination is not the sole consideration in the trial court’s determination.” In the Interest of S.L., 140 S.W.3d 208, 212 (Mo.App. S.D.2004).

Point Two is denied.

In Point Three, Mother argues that the trial court “erred in terminating the parental rights of [Mother] pursuant to Section 211.447.5(6) because [Mother] did not commit a consistent pattern of specific abuse.”

This Point is without merit because the trial court made clear in its judgment that it was terminating Mother’s parental rights pursuant to Section 211.447.5(3), not Section 211.447.5(6). Because the trial court did not invoke the legal principles of Section 211.447.5(6), it goes without saying that the Court could not have erred, as Mother alleges in Point Three, in not applying these legal principles.

Furthermore, the fact that the trial court did not err in terminating Mother’s parental rights pursuant to 211.447.5(3), for the reasons explained at length in Point Two, is also dispositive of this issue on appeal. “It is sufficient for termination of parental rights, under § 211.447.5, if one of the statutory grounds set forth in that section for termination is adequately pleaded and proved.” 197 S.W.3d at 243. “Hence, we must affirm a judgment terminating parental rights, pursuant to § 211.447, if the record supports termination on any one of the statutory grounds set forth in § 211.447.5.” Id.

Point Three is denied.

Conclusion

The judgment of the circuit court, which terminated Mother’s parental rights over J.J.B., is hereby affirmed.

All concur.

      . All statutory citations are to RSMo 2000 as updated through the 2009 Cumulative Supplement, unless otherwise indicated.

      . In light of the fact that the trial court adopted the Commissioner’s findings and recommendations, we will refer to them hereafter as the trial court's judgment.

      . Because Father is not a party to this appeal, we will not address the termination of his parental rights.

      . In its Judgment the trial court used the mother's name. In order to protect the identity of the minor child we have substituted the designation of "Mother” throughout this opinion.

      . Mother does not contest the sufficiency of the evidence as to the "best interest” prong of the termination of parental rights.

      . We noted in In the Interest of A.M.S. that "Section 211.447 was amended effective August 28, 2007, which added a subsection but did not otherwise change the statute,” and we cited to the RSMo 2000 version because it "was in effect when the petition was filed” in that case. 272 S.W.3d at 307 n. 2. Because we refer to the amended version in the instant case, one will notice that although we refer to the same statutory language, the current citation is to Section 211.447.5(3) and opposed to Section 211.447.4(3).

      . On appeal, Mother complains that the Children's Division failed to obtain any information from the psychiatrist regarding her progress. But Mother fails to explain how obtaining this information would have been illuminating to the trial court in determining whether to terminate Mother’s parental rights. Mother was free to call the psychiatrist as a witness at the hearing, and Mother’s failure to do so created a reasonable inference that her psychiatrist’s testimony would not have supported the conclusion that she was able to provide and care for J.J.B. in light of her mental conditions.

      . The above examples are not an exhaustive list of Dr. Richardson’s relevant findings as it pertained to Mother’s mental conditions because to compile such a list would be impractical for the purposes of ruling on the merits of this appeal. Mother complains on appeal that the trial court failed to consider Mother’s condition at the time of the trial in November 2009 and made its findings based upon her condition at the time of the original assumption of jurisdiction or upon other orders of disposition in the action. We disagree. Dr. Richardson's evaluation of Mother occurred on March 20, 2009, which was only a matter of months prior to the trial on November 13, 2009.


author: KENNETH M. ROMINES, Chief Judge.

text:
    Latoya COPHER, Claimant/Appellant, v. GUNDAKER COMMERCIAL GROUP, INC., and Division of Employment Security, Respondents.
    No. ED 94728.
    Missouri Court of Appeals, Eastern District, Division Five.
    June 29, 2010.
    Latoya Copher, Warrenton, MO, pro se.
    Gundaker Commercial Group, Inc., Chesterfield, MO, pro se.
    Michael Pritchett, (Div. of Employment Security), Jefferson City, MO, for respondents.
   KENNETH M. ROMINES, Chief Judge.

Latoya Copher (Claimant) appeals the Labor and Industrial Relations Commission’s (Commission) decision denying her application for unemployment benefits. We dismiss the appeal.

A deputy of the Division of Employment Security (Division) concluded that Claimant was eligible for unemployment benefits. Her employer then appealed to the Appeals Tribunal of the Division, which reversed the deputy’s decision and concluded Claimant was disqualified from receiving benefits. Claimant then filed an application for review with the Commission, which issued an order affirming the Appeals Tribunal’s decision. Claimant filed a notice of appeal to this Court. The Division has filed a motion to dismiss Claimant’s appeal, asserting it is untimely.

Claimant has not filed a response to the motion.

Section 288.210, RSMo 2000, requires that a claimant file a notice of appeal to this Court from the Commission’s decision within twenty days of the decision becoming final. The Commission’s decision becomes final ten days after it is mailed to the parties. Section 288.200.2, RSMo 2000. Here, the Commission mailed its decision to Claimant on March 2, 2010. Therefore, the notice of appeal to this Court was due on or before April 1, 2010. Sections 288.200.2, 288.210.

Claimant mailed her notice of appeal to the Commission. Under section 288.240, RSMo 2000, a notice of appeal that is mailed to the Commission is “deemed to be filed as of the date endorsed by the United States post office on the envelope.... ” Here the date endorsed by the United States post office was April 15, 2010. As a result, Claimant’s notice of appeal is untimely under section 288.200.

Unemployment benefits are solely a creature of statutory provision. Martinez v. Lear-Ed, Inc., 155 S.W.3d 809, 810 (Mo.App. E.D.2005). The unemployment statutes do not provide for the late filing of the notice of appeal and do not recognize any exceptions for filing out of time. McCuin Phillips v. Clean-Tech, 34 S.W.3d 854, 855 (Mo.App. E.D.2000).

The Division’s motion to dismiss is granted. The appeal is dismissed.

NANNETTE A. BAKER, J. and ROY L. RICHTER, J., concur.


text:
    Kanessha ROBINSON, Claimant/Appellant, v. NATIONAL ARCHIVES AND RECORDS ADMINISTRATION and Division of Employment Security, Respondents.
    No. ED 94710.
    Missouri Court of Appeals, Eastern District, Division Five.
    June 29, 2010.
    Kanessha Robinson, St. Louis, MO, pro se
    National Archives & Records, c/o UC Express, St. Louis, MO, Michael Pritchett, (Div. of Employment Security), Jefferson City, MO, for respondents.
   KENNETH M. ROMINES, Chief Judge.

Kanessha Robinson (Claimant) appeals the Labor and Industrial Relations Commission’s (Commission) decision regarding her application for unemployment benefits. We dismiss the appeal.

A deputy of the Division of Employment Security (Division) concluded that Claimant was ineligible for unemployment benefits. She appealed to the Appeals Tribunal of the Division, which dismissed her appeal. Claimant then filed an application for review with the Commission, which dismissed her application for review. Claimant filed a notice of appeal to this Court. The Division has filed a motion to dismiss Claimant’s appeal, asserting it is untimely. Claimant has not filed a response to the motion.

Section 288.210, RSMo 2000, requires that a claimant file a notice of appeal to this Court from the Commission’s decision within twenty days of the decision becoming final. The Commission’s decision becomes final ten days after it is mailed to the parties. Section 288.200.2, RSMo 2000. Here, the Commission mailed its decision to Claimant on February 17, 2010. Therefore, the notice of appeal to this Court was due on or before March 18, 2010. Sections 288.200.2, 288.210.

Claimant mailed her notice of appeal to the Commission. Under section 288.240, RSMo 2000, a notice of appeal that is mailed to the Commission is “deemed to be filed as of the date endorsed by the United States post office on the envelope.... ” Here the date endorsed by the United States post office was April 10, 2010. As a result, Claimant’s notice of appeal is untimely under section 288.200.

Unemployment benefits are solely a creature of statutory provision. Martinez v. Lear-Ed, Inc., 155 S.W.Sd 809, 810 (Mo.App. E.D.2005). The unemployment statutes do not provide for the late filing of the notice of appeal and do not recognize any exceptions for filing out of time. McCuin Phillips v. Clean-Tech, 34 S.W.3d 854, 855 (Mo.App. E.D.2000).

The Division’s motion to dismiss is granted. The appeal is dismissed.

NANNETTE A. BAKER, J. and ROY L. RICHTER, J., concur.


text:
    Michael WILLIAMS, Claimant/Appellant, v. REUTHER CHRYSLER-JEEP SALES, INC., and Division of Employment Security, Respondents.
    No. ED 94484.
    Missouri Court of Appeals, Eastern District, Division Five.
    June 29, 2010.
    Michael Williams, St. Louis, MO, pro se.
    Reuther Chrysler-Jeep Sales, Inc., St. Louis, MO, pro se.
    Michael Cook Pritchett, Div. of Employment Security Jefferson City, MO, for respondents.
   KENNETH M. ROMINES, Chief Judge.

Michael Williams (Claimant) appeals the Labor and Industrial Relations Commission’s (Commission) decision denying his application for unemployment benefits. We dismiss the appeal.

A deputy of the Division of Employment Security (Division) concluded that Claimant was ineligible for unemployment benefits. Claimant appealed to the Appeals Tribunal of the Division, which affirmed the deputy’s decision. Claimant then filed an application for review with the Commission, which issued an order affirming the Appeals Tribunal’s decision. Claimant filed a notice of appeal to this Court. The Division has filed a motion to dismiss Claimant’s appeal, asserting it is untimely. Claimant has not filed a response to the motion.

Section 288.210, RSMo 2000, requires that a claimant file a notice of appeal to this Court from the Commission’s decision within twenty days of the decision becoming final. The Commission’s decision becomes final ten days after it is mailed to the parties. Section 288.200.2, RSMo 2000. “Section 288.200 RSMo does not provide for late filing and does not recognize any exceptions for filing out of time.” McCuin Phillips v. Clean-Tech, 34 S.W.3d 854, 855 (Mo.App. E.D.2000).

Here, the Commission mailed its decision to Claimant on January 25, 2010. Therefore, the notice of appeal to this Court was due on or before February 24, 2010. Sections 288.200.2, 288.210. Claimant mailed his notice of appeal to the Commission. Under section 288.240, RSMo 2000, a notice of appeal that is mailed to the Commission is “deemed to be filed as of the date endorsed by the United States post office on the envelope....” Here the date endorsed by the United States post office was February 27, 2010. As a result, Claimant’s notice of appeal is untimely.

Unemployment benefits are solely a creature of statutory provision. Martinez v. Lear-Ed, Inc., 155 S.W.3d 809, 810 (Mo.App. E.D.2005). The unemployment statutes do not provide for the late filing of the notice of appeal and do not recognize any exceptions for filing out of time. McCuin Phillips v. Clean-Tech, 34 S.W.3d 854, 855 (Mo.App. E.D.2000).

The Division’s motion to dismiss is granted. The appeal is dismissed.

NANNETTE A. BAKER, J. and ROY L. RICHTER, J., concur.


author: PER CURIAM.

text:
    Jerry M. HUNTER, Petitioner/Appellant/Cross-Respondent, v. Yvonne Brown HUNTER, Respondent/Cross-Appellant.
    No. ED 92998.
    Missouri Court of Appeals, Eastern District, Division Three.
    June 29, 2010.
    Richard J. Eisen, Jennifer Growe Sosh-nik, Growe, Eisen, Karlen, Eilerts & Ruth, LLC, St. Louis, MO, for petitioner/appellant/eross-respondent.
    Maia Brodie, Erin Marie Zielinski, Keffe & Brodie, St. Louis, MO, for respondent/cross-appellant.
    Before GLENN A. NORTON, P.J., and MARY K. HOFF, J., and ROY L. RICHTER, J.
   ORDER

PER CURIAM.

Jerry M. Hunter (Husband) appeals from the trial court’s amended judgment and decree of dissolution of marriage (amended judgment) dissolving his marriage to Yvonne Brown Hunter (Wife). Husband appeals on the issues of division of marital property, maintenance, and child support. Wife cross-appeals on the issue of maintenance.

We have reviewed the briefs of the parties, the legal file, and the record on appeal, and find the claims of error to be without merit. No error of law appears. An extended opinion would have no prece-dential value. We affirm the judgment pursuant to Rule 84.16(b). The parties have been furnished a memorandum for their information only, setting forth the reasons for the order affirming the judgment pursuant to Rule 84.16(b).


text:
    Michael HOOD, Appellant, v. STATE of Missouri, Respondent.
    No. ED 93711.
    Missouri Court of Appeals, Eastern District, Division Two.
    June 29, 2010.
    Jessica Hathaway, Assistant Public Defender, St. Louis, MO, for appellant.
    Shaun J. Mackelprang, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before SHERRI B. SULLIVAN, P.J., ROBERT G. DOWD, JR., J., and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Michael Hood (Movant) appeals the judgment of the Circuit Court of the City of St. Louis denying his Rule 29.15 motion for post-conviction relief. Movant claims that the motion court erred in denying without an evidentiary hearing his claims that his trial counsel was ineffective in: (1) failing to object to legally and logically irrelevant evidence about an unrelated domestic incident; and (2) submitting improperly drafted verdict directors for third-degree assault and third-degree domestic assault. We affirm.

We have reviewed the briefs of the parties and the record on appeal and find the motion court’s decision was not clearly erroneous. An extended opinion would have no precedential value. We have, however, provided a memorandum opinion only for the use of the parties setting forth the reasons for our decision.

We affirm the judgment pursuant to Rule 84.16(b).


text:
    Thomas BOPP, Claimant/Appellant, v. STAFFING SOLUTIONS SOUTHWEST, INC., Employer/Respondent, and Division of Employment Security, Respondent/Respondent.
    Nos. ED 94083, ED 94085.
    Missouri Court of Appeals, Eastern District, Division One.
    June 29, 2010.
    John J. Ammann, Saint Louis University Law Clinic, St. Louis, MO, for appellant.
    Gregory D. Ballew, Christopher R. Howard, Fisher & Phillips LLP, Kansas City, MO, for respondent Staffing Solutions.
    Larry R. Ruhmann, Jefferson City, MO, for respondent Missouri of Labor and Industrial Relations, Division of Employment Security.
    Before KATHIANNE KNAUP CRANE, P.J., CLIFFORD H. AHRENS, J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

In this consolidated appeal, claimant, Thomas Bopp, appeals from two orders of the Labor and Industrial Relations Commission (the Commission). The first order disqualified him from receiving unemployment benefits and affirmed the decision of the Appeals Tribunal of the Division of Employment Security (the Appeals Tribunal) that claimant left work voluntarily without good cause attributable to the work or his employer. The second order affirmed the decision of the Appeals Tribunal that claimant was overpaid benefits. The orders of the Commission are supported by competent and substantial evidence on the whole record. A written opinion reciting the detailed facts and restating the principles of law would have no precedential value. However, the parties have been furnished with a memorandum opinion, for their information only, setting forth the facts and reasons for this order.

We affirm the orders of the Commission pursuant to Rule 84.16(b).


text:
    In re the MARRIAGE OF Ruth A. CARPENTER and Tyrone D. Carpenter. Ruth A. Carpenter n/k/a Harris, Petitioner/Appellant, v. Tyrone D. Carpenter, Respondent/Respondent.
    No. ED 93710.
    Missouri Court of Appeals, Eastern District, Division One.
    June 29, 2010.
    Lester H. Goldman, St. Louis, MO, for appellant.
    Kimberly J. Bettisworth, Bettisworth & Associates, LLC, St. Louis, MO, for respondent.
    Brian Dunlop, St. Louis, MO, Guardian Ad Litem.
    Before KATHIANNE KNAUP CRANE, P.J., CLIFFORD H. AHRENS, J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Mother appeals from the judgment of the trial court entered on father’s motion to modify the child custody, support, and visitation provisions of a previously modified dissolution decree. The trial court’s judgment is supported by substantial evidence and is not against the weight of the evidence. No error of law appears. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). An opinion reciting the detailed facts and restating the principles of

law would have no precedential value. However, the parties have been furnished with a memorandum opinion for their information only setting forth the facts and reasons for this order.

The judgment is affirmed in accordance with Rule 84.16(b).


author: PER CURIAM:

text:
    Andre OLIVER, Appellant, v. STATE of Missouri, Respondent.
    No. WD 71418.
    Missouri Court of Appeals, Western District.
    July 13, 2010.
    Susan L. Hogan, Esq., Kansas City, MO, for appellant.
    Shaun J. Mackelprang, Esq., and Mary H. Moore, Esq., Jefferson City, MO, for respondent.
    Before: MARK D. PFEIFFER, P.J., and VICTOR C. HOWARD and ALOK AHUJA, JJ.
   ORDER

PER CURIAM:

Andre Oliver appeals the denial, without an evidentiary hearing, of his motion for post-conviction relief pursuant to Supreme Court Rule 24.035. Following a guilty plea, Oliver was sentenced to fifteen years in prison for second-degree murder, § 565.021, RSMo, and ten years for second-degree robbery, § 569.030, RSMo, with the sentences to be served concurrently. In his post-conviction relief motion, Oliver contends that his guilty plea was not entered knowingly, intelligently, or voluntarily because he was assured by counsel that he would be sentenced to a total of ten years’ imprisonment. We affirm. Because a published opinion would have no precedential value, a memorandum setting forth the reasons for this order has been provided to the parties. Rule 84.16(b).


text:
    Arthur WHITAKER, Appellant, v. STATE of Missouri, Respondent.
    No. WD 70523.
    Missouri Court of Appeals, Western District.
    July 13, 2010.
    Matthew Ward, Esq., Columbia, MO, for appellant.
    Shaun J. Mackelprang, Esq., and Daniel N. McPherson, Esq., Jefferson City, MO, for respondent.
    Before: MARK D. PFEIFFER, P.J., and VICTOR C. HOWARD and ALOK AHUJA, JJ.
   ORDER

PER CURIAM:

Arthur Whitaker appeals the denial of his motion for post-conviction relief pursuant to Supreme Court Rule 24.035. Following a guilty plea, Whitaker was sentenced to five years’ imprisonment for driving while intoxicated pursuant to §§ 577.010 and 577.023, RSMo. Whitaker claims that he was improperly sentenced as an aggravated offender because the State failed to prove that he had three prior convictions for intoxication-related traffic offenses. We affirm. Because a published opinion would have no prece-dential value, a memorandum setting forth the reasons for this order has been provided to the parties. Rule 84.16(b).


author: PATRICK A. PIRTLE, Justice.

text:
    David BLOCK, Appellant, v. Kimberly MORA, Appellee.
    No. 07-08-0092-CV.
    Court of Appeals of Texas, Amarillo, Panel C.
    Jan. 7, 2009.

      Rob Hamilton, LaFont, Tunnell, Form-by, LaFont & Hamilton, LLP, Plainview, TX, for Appellant.
    J. David Nelson, Nelson & Nelson, Lubbock, TX, for Appellee.
    Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
   OPINION

PATRICK A. PIRTLE, Justice.

Appellant, David Block, appeals from a judgment rendered in favor of Appellee, Kimberly Mora, following a jury trial of his personal injury cause of action arising out of a collision between the vehicle being driven by Mora and Block’s pickup truck. Block presents five points of error, restated in three issues: (1) Was the evidence legally and factually sufficient to support the jury’s verdict?; (2) Did the trial court erroneously charge the jury on comparative fault?; and (3) Did Block conclusively establish Mora’s negligence and his damages? Finding error in the submission of the court’s charge, we reverse and remand.

Factual Background

Block’s petition alleged he was driving westbound on Olton Road near an intersection with Wal-Mart’s parking lot in Plainview, Texas, when Mora’s vehicle collided with his pickup truck after she exited the parking lot onto Olton Road. In response, Mora filed a general denial and asserted two affirmative defenses — contributory negligence and, alternatively, unavoidable accident.

Block’s claim was tried in a two day, jury trial. The testimony at trial indicated that, before leaving his house for work the day of the accident, Block placed a spare tire atop four, five gallon buckets of hydraulic oil in the bed of his pickup truck. He did not secure the tire. Later that day, while returning home from work via Olton Road, Block was driving approximately forty-five miles per hour. As he approached the intersection of Olton Road and the Wal-Mart parking lot, Mora pulled her vehicle in front of him, causing her vehicle to collide with the front end of his pickup truck. On impact, the spare tire flew forward, knocking out the pickup truck’s rear window and striking Block in the back of the neck and shoulder while pushing him against the steering wheel. Block, his wife, and an expert damages witness testified as to the nature and extent of his injuries.

Mora testified that, when the accident occurred, she was driving her mother’s vehicle without permission and had not obtained a driver’s license. She admitted that the accident was her fault. After Block rested his case-in-chief, Mora put on a single witness to rebut Block’s damages evidence and rested.

At the jury charge conference, the trial court proposed submission of the Texas Pattern Jury Charges standard broad form, joint submission of negligence and proximate cause as Question No. 1, and proportionate responsibility as Question No. 2. Furthermore, the trial court proposed the use of the term injury in both questions. Block’s counsel objected to the submission of the two questions, asserting that Mora had admitted fault and there was no evidence that he was contributorily negligent in causing the accident. In lieu thereof, Block proposed an instruction that stated: “Kimberly Mora has admitted that her negligence proximately caused the occurrence in question.” Alternatively, Block requested that the term occurrence be substituted for the term injury in Question No. 1.

The trial court overruled his objections, denied the alternative instruction, and charged the jury, in pertinent part, as follows:

JURY QUESTION NO. 1
Did the negligence, if any, of those named below proximately cause the injuries, if any, to David Block?
Answer ‘Tes” or “No” for each of the following:
a. Kimberly Mora_
b. David Block_

Because, in answering Question No. 1, the jury answered “no” to subpart “a” and “yes” to subpart “b,” the jury was not required to answer Question No. 2. When asked in Question No. 3, “[wjhat sum of money, if paid in cash, would fairly and reasonably compensate David Block for his injuries, if any, that resulted from the collision,” the jury awarded no damages. Thereafter, the trial court entered a judgment that Block take nothing by his suit and awarded costs to Mora. In Block’s subsequent motion for judgment notwithstanding the verdict, he re-urged his objections made during the jury charge conference. The trial court denied his motion and this appeal followed.

Discussion

Block asserts that the evidence at trial supported judgment in his favor because Mora’s negligence was established as a matter of law, and there was no evidence indicating he was contributory negligent and/or proximately caused the accident or his injuries. As such, he asserts the trial court erred in giving comparative fault instructions to the jury and/or denying his motion for judgment notwithstanding the verdict. Block preserved his legal sufficiency issues for appeal by timely objecting to the submission of the comparative fault instructions and filing his motion for judgment JNOV. See Dunnagan v. Watson, 204 S.W.3d 30, 45 (Tex.App.-Fort Worth 2006, pet. denied).

I. Jury Charge Error

We will first address Block’s contentions pertaining to jury charge error because that issue is potentially dispositive of the appeal. See Tex.R.App. P. 47.1.

A. Standard of Review

The standard of review applicable to a complaint pertaining to an alleged error in submission of the court’s charge to the jury depends upon the particular aspect of the charge about which the complaint is being made. See W. Wendell Hall, Standards of Review in Texas, 38 St. Mary’s L.J. 195-200 (2006). In this case, Block is contending that the evidence was not legally sufficient to support the trial court’s decision to submit comparative negligence to the jury. Alternatively, he contends that the trial court erred in submitting the comparative negligence question using the term injuries, when it should have submitted the question using the term occurrence. Because the determination of whether or not a legal duty exists under a given set of facts to warrant the submission of a comparative negligence question is essentially a question of law, it is reviewable de novo. See Murray v. Murray, 276 S.W.3d 138, 142 (Tex.App.-Fort Worth, Dec. 18, 2008, pet. dism’d); Webb v. City of Lubbock, 380 S.W.2d 135, 136 (Tex.Civ.App.-Amarillo 1964, writ ref' d n.r.e.).

When conducting a de novo review, an appellate court exercises its own judgment and redetermines each issue of fact and law. Quick v. City of Austin, 7 S.W.3d 109 (Tex.1998). In such a review, the appellate court accords the trial court no deference. See State v. Heal, 917 5.W.2d 6, 9 (Tex.1996). Accordingly, the issue is, given the facts and circumstances of this case, was the evidence sufficient to support the submission of a comparative negligence question to the jury?

B. Broad Form Submission

Rule 277 of the Texas Rules of Civil Procedure requires a trial court, whenever feasible, to submit a claim or cause of action upon broad form questions. Furthermore, the court is required to submit such instructions and definitions as are necessary and proper to enable the jury to render a verdict based upon the appropriate law and the evidence presented. See Tex.R. Civ. P. 277, 278.

C. Comparative Fault

Because comparative responsibility involves measuring the parties’ comparative fault in causing plaintiffs injuries, it necessitates a preliminary finding that the plaintiff was in fact contributorily negligent. Kroger Co. v. Keng, 23 S.W.3d 347, 351 (Tex.2000). See Moore v. Kitsmiller, 201 S.W.3d 147, 151 (Tex.App.-Tyler 2006, no pet.); Howard v. Bachman, 524 S.W.2d 414, 416 (Tex.Civ.App.-Eastland 1975, no writ). Contributory negligence contemplates an injured person’s failure to use ordinary care in regard to his or her own safety, Parker v. Highland Park, Inc., 565 S.W.2d 512, 520 (Tex.1978), and requires proof that the plaintiff was negligent and that the negligence was the proximate cause of his or her injuries. See Brown v. Edwards Transfer Co., 764 S.W.2d 220, 223 (Tex.1988). The standards and tests for determining contributory negligence are the same as those for determining negligence and the rules of law applicable to the former are applicable to the latter. Moore, 201 S.W.3d at 151.

Submission to the jury of a comparative fault question is not allowed “without sufficient evidence to support the submission.” See Tex. Civ. Prac. & Rem. Code Ann. § 33.003(b) (Vernon 2006). As discussed in footnote one, there is no question that the evidence was sufficient to support the submission of Mora’s negligence. The question is, was there sufficient evidence to support the submission of Block’s negligence? To determine whether legally sufficient evidence supported the submission of Block’s negligence to the jury in a comparative fault question, we must first examine the record for evidence supporting his negligence and ignore all evidence to the contrary. See Elbaor v. Smith, 845 S.W.2d 240, 243 (Tex.1992).

Block’s Negligence and Proximate Cause

Mora contends Block was negligent in placing his spare tire atop the hydraulic oil cans in the bed of his pickup truck and that such negligence proximately caused his injuries when the spare tire struck him during the collision. In support, she cites Block’s testimony that he failed to secure the tire on the truck bed when he left home for work the day of the accident. As a result, she contends that, while Block may not have caused the collision, he was contributorily negligent in causing his injuries. At trial, the defendant bears the burden of proving that the plaintiff was contributorily negligent by a preponderance of the evidence. McDonald v. Dankworth, 212 S.W.3d 336, 340 (Tex.App.-Austin 2006, no pet.).

Mora failed to meet that burden by failing to establish that, by placing the unsecured spare tire in the back of his truck, Block committed an intrinsically harmful act or breached a legal duty to Mora or to the public at large. See Elbaor, 845 S.W.2d at 245. Block’s omission cannot constitute contributory negligence in the absence of a breach of some legal duty. See Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex.2006); May v. Barton’s Pump Service, Inc., 153 S.W.3d 469, 476 (Tex.App.-Amarillo 2004, no pet.). Furthermore, there was no evidence that Block was cited for any traffic violation due to the collision, nor did Mora cite any traffic law violated by Block. The uncontrovert-ed testimony at trial indicated Block had driven his pickup truck with the fifteen pound spare tire in its bed to and from work at forty-five miles per hour without incident until Mora collided with his pickup truck. Under these circumstances, it cannot be said that Block engaged in a negligent act by placing the spare tire in the bed of his pickup truck.

Furthermore, proximate cause is comprised of two elements — cause in fact and foreseeability. Leitch v. Hornsby, 935 S.W.2d 114, 118-19 (Tex.1996); City of Gladewater v. Pike, 727 S.W.2d 514, 517 (Tex.1987). A “negligent act or omission is not a cause in fact unless ‘but for the conduct the accident would not have happened.’ ” Williams v. Steves Indus., Inc., 699 S.W.2d 570, 575 (Tex.1985) (quoting Kerby v. Abilene Christian College, 503 S.W.2d 526, 528 (Tex.1973)). If the accident would have occurred even if the injured party had taken the required precautions, his failure to do so cannot be a substantial factor in bringing about the accident. RESTATEMENT (SECOND) OF TORTS § 432(1) cmt. b (1965). Cause in fact is established when the act or omission was a substantial factor in bringing about the occurrence, and without it, the event would not have occurred. See IHS Cedars Treatment Center of DeSoto, Texas, Inc. v. Mason, 143 S.W.3d 794, 799 (Tex.2003).

Block’s failure to secure the spare tire did not cause the vehicular collision; nor did it cause the spare tire to suddenly fly forward and crash into the cab of his pickup truck. The unsecured spare tire merely provided a scenario in which Block’s injuries were potentially enhanced or increased. Mora failed to produce any evidence that but for Block’s conduct the accident would not have happened. Having failed to establish that Block’s conduct was a cause in fact, Mora failed to establish proximate cause.

Here, regardless of whether Block secured the spare tire, the accident would have occurred. Having failed to preliminarily establish that Block was contribu-torily negligent in causing the accident, Mora was not entitled to the submission of a comparative negligence question. Accordingly, the trial court erred in submitting Question Nos. 1 and 2.

II. Enhanced or Increased Injuries

Mora contends the trial court did not err in submitting Question Nos. 1 and 2 because Block’s conduct caused his injuries to be enhanced or increased. Whether Block’s failure to secure the tire in the pickup truck’s bed enhanced or increased his injuries suffered in the accident is of no moment as to the issue of comparative negligence. Under Texas law, the concept of comparative negligence has “no application to a plaintiffs actions which antedate the defendant’s negligence.” See King Son Wong v. Carnation Company, 509 S.W.2d 385, 387 (Tex.App.-Houston [14th Dist.] 1974), aff'd, 516 S.W.2d 116 (Tex.1974) (holding that persons whose negligence did not contribute to an automobile accident should not have the damages awarded to them reduced or mitigated because of their failure to wear available seat belts).

In Kerby, 503 S.W.2d at 527, a linen truck driver appealed a jury verdict wherein he was found to be thirty-five percent at fault for his injuries because, on impact with a school bus, he was thrown through an open sliding door of the truck and, then, the truck toppled over him. Reversing the trial court and court of appeals, the Supreme Court held that the truck driver’s conduct of driving with the door open did not constitute contributory negligence because it did not contribute to the accident; rather, it only provided a scenario in which the injuries suffered in the accident were enhanced or increased. Id. at 528. Finding that the trial court had no authority to submit comparative negligence issues to the jury and no evidence supported the jury’s answers favoring the defendant, the Kerby Court stated:

[W]e draw a sharp distinction between negligence contributing to the accident and negligence contributing to the damages sustained. Contributory negligence must have the causal connection with the accident that but for the conduct the accident would not have happened. Negligence that merely increases or adds to the extent of the loss or injury occasioned by another’s negligence is not such contributory negligence as will defeat recovery.

Id. at 528 (emphasis added). See also Elbaor, 845 S.W.2d at 244-45 (post-accident conduct aggravating plaintiffs injuries); Haney Electric Company v. Hurst, 624 S.W.2d 602, 611 (Tex.App.-Dallas 1981, writ dism’d) (purported negligence in carrying a gasoline can in trunk of a car is a circumstance enhancing damages rather than a circumstance causing the accident and, therefore, not an appropriate ground of contributory negligence).

III. Pattern Jury Charge

Mora further contends there was sufficient evidence demonstrating that Block’s negligence was “injury-causing” or “injury-enhancing” to support the trial court’s submission of Question No. 1. In support, she relies on comments to PJC 4.1, the broad form instruction upon which the trial court based Question No. 1. The comments for PJC 4.1 provide, in pertinent part, as follows:

Use of “occurrence” or “injury.” The use of “occurrence” or “injury” in this question, as well as in PJC 4.3, could affect a case in which there is evidence of the plaintiffs negligence that is “injury-causing” or “injury-enhancing” but not “occurrence — causing”: for example, carrying gasoline in an unprotected container, which exploded in the crash, greatly increasing the plaintiffs injuries (preaccident negligence), or failing to follow doctor’s orders during recovery, thereby aggravating the injuries (postac-cident negligence). In such a case the jury should not consider this negligence in answering PJC 4.1 and 4.3 if “occurrence” is used, while it should consider the negligence if “injury” is used.

Comm. On Pattern Jury Charges, State Bar of Texas, Pattern Jury Charges PJC 4.1 cmt. (2008).

To the extent Mora asserts that these comments can be interpreted to support a trial court’s application of PJC 4.1 under circumstances such as exist in this appeal, we disagree. Proportionate responsibility questions, such as PJC 4.1 and 4.3, are appropriate when the defendant has met his burden of proof on contributory negligence. That the plaintiff engaged in conduct prior to the accident that somehow increased or added to the extent of his loss or injury does not establish contributory negligence as to the occurrence, i.e., but for his negligence, the accident would not have occurred. See Carnation Co. v. Wong, 516 S.W.2d 116, 117 (Tex.1974) (failure to wear seatbelt does not permit reduction or mitigation of plaintiffs damages); Kerby, 503 S.W.2d at 528 (driving with the van door open, thereby contributing to nature and extent of injuries, does not permit reduction of his damages); Haney, 624 S.W.2d at 611 (plaintiffs placement of a gas can in the rear of her vehicle prior to a rear-end collision is not evidence of contributory negligence). See also Goldberg v. Dicks, No. 12-02-00053-CV, 2004 WL 253250, at *15-16 (Tex.App.-Tyler February 11, 2004, pet. denied) (not designated for publication) (although plaintiff was thrown from an open truck bed on impact with defendant’s truck, plaintiff was not contribu-torily negligent); Price v. Arkansas Freightways, Inc., No. 12-01-00050-CV, 2002 WL 1065875, at *6 (Tex.App.-Tyler March 22, 2002, pet denied) (not designated for publication) (trial court erred by including a passenger riding in the trunk of a vehicle that was struck from behind in a jury instruction asking whose negligence caused the occurrence). Cf., Williams v. Steves Industries, Inc., 699 S.W.2d 570, 575 (Tex.1985) (some evidence of cause in fact where plaintiffs conduct, i.e., running out of gas in the middle of the road, contributed to the occurrence, to-wit: being struck from behind, because jury could infer that had the car not stalled in the middle of the highway, defendant would not have collided with it).

Further, to the extent the Committee on Pattern Jury Charges intended the terms “occurrence — causing” to describe a contributory negligence defense and “injury-enhancing” to represent a mitigation defense, we agree with the use of these terms in the comment to PJC 4.1. However, we find no Texas cases recognizing the use of proportionate responsibility questions where a defendant is the sole cause of an accident or occurrence but asserts the plaintiff caused his injuries, ie., “injury — causation.” If, but for the plaintiffs negligence, the accident would not have occurred then, depending upon the jury’s findings, the plaintiff either partially or wholly caused the accident and the injuries attendant thereto. Stated conversely, if the accident would have occurred regardless of the plaintiffs negligence then the plaintiff is not proportionately responsible for the accident. See Kerby, 503 S.W.2d at 528.

The comments to PJC 4.1 appear to endorse the use of a proportionate responsibility question under circumstances where a plaintiff is “carrying gasoline in an unprotected container which explodes in the crash, greatly increasing the plaintiffs injuries (preaccident negligence).” These facts are similar to those in Haney Electric Company, 624 S.W.2d at 602, where the appellate court reached the opposite result. In Haney, the appellate court determined that the preaccident placement of a gas can by plaintiff in the rear of her car prior to a multi-vehicle accident wherein her car was struck from the rear could not be relied upon by the defendant as evidence of contributory negligence. Id. at 611. Accordingly, we do not find the Committee’s comments persuasive under the circumstances presented in this appeal.

Block met his burden of proof establishing Mora was negligent in causing the collision. The evidence at trial established she had a duty to yield the right of way to Block, failed to do so and, as a result, collided with Block’s pickup truck. At trial, Mora admitted she was at fault. Thereafter, it was incumbent upon Mora to establish her affirmative defense, ie., that Block was contributorily negligent. She failed to do so. As such, Mora is liable to Block for any injuries he may have sustained resulting from her failure to yield the right of way. See 28 Tex.Jur.3d Damages § 2 (2006).

Having determined Block met his burden of proof and Mora failed to come forward with any evidence to establish Block was contributorily negligent, we sustain Block’s second and third points of error pertaining to jury charge error. Because we find the evidence supporting the submission of Block’s contributory negligence to be legally insufficient, we find the trial court erred in submitting Question Nos. 1 and 2, and we proceed with a harm analysis.

IV. Harm Analysis

When a single broad-form liability question erroneously commingles valid and invalid liability theories and an appellant’s objection is timely and specific, the error is harmful when it cannot be determined whether the improperly submitted theories formed the sole basis for the jury’s finding. Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378 (Tex.2000). Here, the trial court submitted two competing theories of liability within one broad-form liability question that asked whether the negligence of the two parties involved in the accident caused the plaintiffs injuries. The jury’s answers, finding no negligence attributable to Mora and finding Block as the only responsible party, commingled Block’s valid theory of negligence with Mora’s invalid theory of comparative negligence. Because we cannot determine whether the jury truly found that Mora was not negligent in causing the accident or Block was solely negligent in causing his injuries (both of which findings would be against the great weight and preponderance of the evidence), we find the submission of Question Nos. 1 and 2 likely caused the rendition of an improper judgment. As such, the error was not harmless. Tex.R.App. P. 44.1(a)(1).

Because our finding of error requires that this cause be reversed and remanded, and because we may not order a separate trial solely on unliquidated damages where liability is contested, Block’s remaining points of error are pretermitted. Tex. R.App. P. 44.1(b) and 47.1.

Conclusion

We reverse the judgment of the trial court and remand the cause for further proceedings in conformance with this opinion.

      . Mora's counsel conceded in voir dire, opening argument, and a sidebar conference with the trial court that Mora was an inexperienced, unlicensed driver who had a duty to yield the right of way at the intersection and failed to do so before she collided with Block. He further represented to the trial court that she did not dispute liability.

      . Texas Pattern Jury Charges (2008). References herein to the PJC are references to the 2008 Edition of Texas Pattern Jury Charges.

      . PJC 4.1 Broad Form-Joint Submission of Negligence and Proximate Cause
      QUESTION_ Did the negligence, if any, of those named below proximately cause the [occurrence ] [injury ] [occurrence or injury ] in question? Answer "Yes” or "No” for each of the following:
      a. Don Davis_
      b. Paul Payne_

      . PJC 4.3 Proportionate Responsibility
      If you answered "Yes” to Questionfs]_[ap-plicable liability questions)'] for more than one of those named below, then answer the following question. Otherwise, do not answer the following question.
      Assign percentages of responsibility only to those you found caused or contributed to cause the [occurrence ] [Injury ] [occurrence or injury ]. The percentages you find must total 100 percent. The percentages must be expressed in whole numbers. The percentage of responsibility attributable to any one is not necessarily measured by the number of acts or omissions found. The percentage attributable to any one need not be the same attributed to that one in answering another question.
      QUESTION_
      For each person you found caused or contributed to cause the [occurrence ] [Injury ] [occurrence or injury ], find the percentage of responsibility attributable to each:
      a. Don Davis %

      b. Paul Payne_%

        Total_100%

      . The charge form returned to the trial court by the jury indicates they first answered sub-part "b” by writing “100%/' then marked through the answer and wrote "yes.”

      . Evidence that a plaintiff failed to mitigate his damages may warrant a mitigation of damages instruction as opposed to a comparative negligence question. See Elbaor v. Smith, 845 S.W.2d 240, 245 (Tex.1992) (a plaintiff’s failure to follow doctor's orders post-accident entitles defendant to mitigation instruction); Moulton v. Alamo Ambulance Serv., Inc., 414 S.W.2d 444, 448-49 (Tex.1967) (mitigation instruction proper where plaintiff’s failure to follow competent medical advice aggravated or enhanced the injuries he sustained in a collision); Young v. Thota, M.D., 271 S.W.3d 822, 829-31 (Tex.App.-Fort Worth 2008, no pet. h.) (mitigation instruction proper if patient failed to follow post-admission instructions). While mitigation arises from the injured party’s separate duty to act reasonably in reducing his damages after they are incurred, contributory negligence asks whether the plaintiff was the proximate cause of the original incident upon which suit was filed. Hygeia Dairy Co. v. Gonzalez, 994 S.W.2d 220, 226 (Tex.App.-San Antonio 1999, no pet.). Mora did not plead or assert a mitigation defense.

      . That Block was not cited comports with Texas traffic law which regulates only the transportation of "loose material” defined as follows:
      Material that can be blown or spilled from a vehicle because of movement or exposure
      to air, wind currents, or other weather. The term includes dirt, sand, gravel, refuse, and wood chips but excludes agricultural product in its natural state.
      Tex. Transp. Code Ann. §§ 725.001, 725.021 (Vernon Supp.2008).

      . The Kerby Court further indicated that, "[e]ven if there were proof that the particular injury suffered would not have been suffered had Kerby avoided being thrown from his truck, it would not support the jury’s finding of percentage contribution.” 503 S.W.2d at 529.

      . Although the Price Court would have withheld from the jury the question whether plaintiff’s act of riding in the trunk caused the occurrence pursuant to the Texas Supreme Court's pronouncement in Kerby, the Price Court reached an anomalous result on causation related to plaintiff's injuries, i.e., the Price Court upheld a jury determination that plaintiff was negligent and caused his injuries. 2002 WL 1065875, at *5-6. In doing so, the Price Court did not discuss Kerby and/or its progeny; id., and the unpublished opinion has not been cited as support in any subsequent case. Unpublished cases such as Price may be cited but they have no precedential value. Tex.R.App. P. 47.7. See Associates Home Equity Services Co., Inc. v. Hunt, 151 S.W.3d 559, 562 n. 2 (Tex.App.-Beaumont 2004, no pet.); Brinker Texas, L.P. v. Looney, 135 S.W.3d 280, 285 n. 4 (Tex.App.-Fort Worth 2004, no pet.).

      . The Haney court did permit evidence of the gas can's placement to be introduced for the purpose of determining the chain of events of the mulit-vehicle collision leading to plaintiff's death, i.e., whether plaintiff’s injuries were proximately caused by a second plaintiff, the driver of a postal truck who struck her car from the rear, or by the defendant, the driver of a semi-tractor trailer who struck the postal truck from the rear. 624 S.W.2d at 608. The evidence was relevant to determine whether the driver of the postal truck or the semi-tractor trailer proximately caused plaintiff's injuries, not whether plaintiff caused her own injuries. Id. at 604 (evidence indicated that, not only was the plaintiff's vehicle afire, but the postal truck also burst into flames on being struck by the semi-tractor trailer).