author: KEM THOMPSON FROST, Justice.

text:
    Luis G. TAYLOR, Appellant, v. FIRST COMMUNITY CREDIT UNION, Appellee.
    No. 14-09-00051-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    July 29, 2010.

      J.B. Whittenburg, Beaumont, for appellant.
    Frederick L. Unger, Houston, for appel-lee.
    Panel consists of Justices FROST, BOYCE, and SULLIVAN.
   OPINION

KEM THOMPSON FROST, Justice.

The primary issue in this appeal is the applicability of the “relation back” doctrine under sections 171.252 and 171.255 of the Texas Tax Code governing director and officer liability for a corporation’s debts when corporate privileges are forfeited for failure to file a required report. An officer and director of an automobile dealer appeals the trial court’s judgment holding him liable for the dealer’s debts to a credit union. We affirm.

I. Factual and Procedural Background

This case was tried on an agreed statement of facts, which are set forth herein.

Texan Automotive Inc. (“Automotive”), an automobile dealer, was a corporation chartered under the laws of the State of Georgia in March 2003, and authorized to do business in Texas in April 2003. The company’s State of Texas franchise tax report was due on September 7, 2004. That report was never filed and on September 8, 2004, the company became delinquent in filing this report. Automotive’s corporate privileges were forfeited in January 2005 for failure to satisfy franchise tax requirements and were never revived. Automotive’s corporate certificate was forfeited on May 6, 2005. A few months later, the corporation was dissolved in the State of Georgia.

Appellant Luis G. Taylor served as a director of Automotive from its inception through and after May 6, 2005. Taylor was also an officer of the company, serving initially as its secretary and then as its president, an office he held through and after May 6, 2005.

Automotive entered into a dealer agreement, dated November 10, 2003, with Cen-trix Financial, LLC (the “Dealer Agreement”). Under the Dealer Agreement, appellee First Community Credit Union (“First Community”) was granted the right to purchase retail installment contracts from Automotive; Centrix was to act as First Community’s agent for the procurement, credit assessment, collection, and servicing of automobile loans. Pursuant to the Dealer Agreement, First Community purchased four retail automobile installment contracts in December 2004 and January 2005 and paid the amounts financed under the contracts to Automotive.

Automotive breached its contractual obligations to First Community by failing to provide good title to the motor vehicles Automotive sold to its customers under the installment contracts as assigned to First Community. The failure to provide good and marketable title to each vehicle purchaser and a title with a valid lien in favor of First Community not only breached Automotive’s obligations to both the vehicle purchaser and lender, but also provided the vehicle purchaser with a defense against the credit union as the holder of the retail installment agreement. Under the four contracts purchased from Automotive, certificates of title were never delivered as agreed.

Automotive also breached its warranties, under paragraph 3.1(b) of the Dealer Agreement, requiring that a valid first lien would be obtained in favor of First Community on any vehicles sold and transferred under the retail installment contracts and that the contract would not be subject to any claims or defenses of vehicle purchasers. Automotive further breached section 3.2 of the Dealer Agreement, providing that if any listed warranty or agreement were breached, Automotive would repurchase the contracts from First Community for the remaining balances due under the contracts within five days of demand.

After default, and allowing for all credits and offsets, there remained due an unpaid aggregate balance of $54,741.18 from the four installment contracts. In March 2007, First Community demanded that Automotive repurchase the defaulted retail installment contracts for the amounts due; as of the date of trial, Automotive had failed to do so. Taylor, as president of the company, received the demand but neither he nor any other person on behalf of Automotive responded.

First Community brought suit against Automotive and Taylor seeking judgment for $54,741.18 in actual damages, attorney’s fees, court costs, and prejudgment and postjudgment interest. First Community claimed that Taylor should be held personally liable for these debts under section 171.255 of the Texas Tax Code. Automotive failed to appear and answer. After considering the parties’ agreed statement of facts, the trial court rendered judgment that First Community recover the sums requested from Automotive and Taylor jointly and severally. Taylor now appeals from the trial court’s judgment.

II. Issues and Analysis

A. Did the trial court reversibly err by not filing findings of fact and conclusions of law?

As a threshold matter, Taylor asserts in his first issue that the trial court erred by failing to file findings of fact and conclusions of law despite his timely request. Although the record in this case contains an agreed and undisputed statement of facts, upon which the parties held a trial on the merits, the record does not contain an agreed statement certified by the trial court to be correct. See Tex.R. Civ. P. 268 (requiring a signed agreed statement to be certified by the court to be correct). Texas Rule of Civil Procedure 263 governs the submission of matters in controversy on an agreed statement of facts. See id. Strict compliance with this rule is not required. See Abbott v. Blue Cross & Blue Shield of Tex., Inc., 113 S.W.3d 753, 757 (Tex.App.-Austin 2003, pet. denied). When, as in this case, the record indicates that the trial court heard the case on stipulated facts, a reviewing court may treat the case as one involving an agreed statement of facts under Rule 263. See id.; State Farm Lloyds v. Kes-sler, 932 S.W.2d 732, 735 (Tex.App.-Fort Worth 1996, writ denied). In an appeal from a trial court’s judgment on an agreed case, the only issue on appeal is whether the trial court properly applied the law to the agreed facts. Abbott, 113 S.W.3d at 757. As to the facts, this court is limited in its consideration to the agreed facts. See id. We conclude that the trial court did not reversibly err by failing to file findings of fact and conclusions of law. See id. Therefore, we overrule Taylor’s first issue.

B. Did the trial court err by concluding that the director and officer is personally liable?

In his second issue, Taylor asserts that the trial court erred by holding him personally liable under section 171.252, entitled “Effects of Forfeiture,” and section 171.255, entitled “Liability of Directors and Officers.” Under section 171.252, if the corporate privileges of a corporation are forfeited, “each director or officer of the corporation is liable for a debt of the corporation as provided by section 171.255 of this code.” See Tex. Tax Code Ann. § 171.252(2) (Vernon 2008). As relevant in this case, section 171.255 provides,

If the corporate privileges of a corporation are forfeited for the failure to file a report or pay a tax or penalty, each director or officer of the corporation is liable for each debt of the corporation that is created or incurred in this state after the date on which the report, tax, or penalty is due and before the corporate privileges are revived....

Tex. Tax Code Ann. § 171.255(a) (Vernon 2008).

Taylor and First Community stipulated that Automotive’s franchise tax report was due on September 7, 2004, was never filed, and that corporate privileges were never revived. See id. Therefore, Taylor, as director and officer of Automotive, is liable for each “debt” of the corporation that was created or incurred after September 7, 2004, the date on which the franchise tax report was due. See id. As relevant to this case, a “debt” under section 171.255(a) is defined as “any legally enforceable obligation measured in a certain amount of money which must be performed or paid within an ascertainable period of time or on demand.” Act of May 30, 1987, 70th Leg., R.S., ch. 324, § 1, 1987 Tex. Gen. Laws 1734,1735 (defining “debt” as used in chapter 171), repealed by Act of May 2, 2006, 79th Leg., 3rd C.S., ch. 1, § 5, 2006 Tex. Gen. Laws 1, 23 (effective January 1, 2008).

Taylor stipulated that Automotive breached the Dealer Agreement after September 7, 2004, resulting in the damages awarded by the trial court. Taylor, however, asserts that these breach-of-contract damages “relate back” to November 2003, when Automotive executed the Dealer Agreement. Therefore, Taylor argues, this debt was not “created or incurred” after September 7, 2004, and Taylor cannot be liable under sections 171.252 and 171.255. This “relation back” doctrine is the only argument Taylor asserts under his second issue. Taylor cites three cases in support of this argument, and we now examine the holdings in these cases. See Schwab v. Schlumberger Well Surveying Corp., 145 Tex. 379, 198 S.W.2d 79, 81-82 (1946); Serna v. State, 877 S.W.2d 516, 519 (Tex.App.-Austin 1994, writ denied); Curry Auto Leasing, Inc. v. Byrd, 683 S.W.2d 109, 110-12 (Tex.App.-Dallas 1984, no writ).

In Schwab, the Supreme Court of Texas held that corporate officers and directors were not individually liable under a predecessor statute to section 171.255. See Schwab, 198 S.W.2d at 81-82. The issue under that statute was whether the corporate “debt” was “created or incurred” after a particular date. See id. The Schwab court held that the terms “created” and “incurred” are unambiguous. See id. at 81. The unambiguous meaning of “create” is “to bring into existence something which did not exist,” and the unambiguous meaning of “incur” is “brought on,” “occasioned,” or “caused.” See id. The Schwab court did not address the meaning of the statutory term “debt.”

In Schwab, the corporation executed an original promissory note as evidence of a debt owed to Schlumberger Well Surveying Corporation. See id. at 80. The corporation then executed a series of six renewal notes, after which the corporation forfeited its right to do business in Texas. See id. After this forfeiture, the corporation executed another renewal note for the same indebtedness. See id. The issue in Schwab was whether the debt in question was created or incurred after the forfeiture date because the final promissory note was executed after this date. See id. The Schwab court stated that the statute in question was penal in nature and should be strictly construed so that it is not extended beyond the clear import of its language. See id. at 81. Significantly, the Schwab court did not articulate any “relation back” doctrine; instead, the high court looked to Texas law regarding promissory notes. See id. at 81-82. Under that law, a renewal note does not create a new debt; rather, the renewal note is new evidence of the existing debt that is being renewed. See id. Therefore, the Schwab court held that, even though the renewal note was executed after the forfeiture date, that note created no debt but was new evidence of the debt that was created before the forfeiture date. See id. The Schwab court held that because the debt made the subject of the suit was created before the forfeiture date, the officers and directors were not individually liable. See id. We conclude that in Schwab the Supreme Court of Texas did not speak to and did not establish the “relation back” doctrine upon which Taylor relies.

In the Byrd case, a corporation, as lessee, entered into a motor vehicle lease on December 1, 1980. See Byrd, 683 S.W.2d at 110. Before the relevant forfeiture date, the lessee corporation breached the lease, and the lessor terminated the lease and repossessed the leased vehicle. See id. After the forfeiture date, the lessor sold the vehicle, resulting in a deficiency amount, for which the lessor sued the lessee and its officers. See id. at 111. In Byrd, the Fifth Court of Appeals had to decide whether the lessors’ damages constituted a debt that was created or incurred after the forfeiture date for the purposes of the version of Chapter 171 that was then in effect. See id. at 110-11. The Byrd court cited Schwab and relied on Schwab’s statement that such statutes should be strictly construed. See id. at 112. The Byrd court stated that “the statute does not impose liability on the officers of [the lessee corporation] if the obligations ... that create or incur the debt in question pre-existed the forfeiture.” Id. The Byrd court then concluded “that performance or implementation of the contractual provisions relate back to and are authorized at the time of execution of the contract.” Id.

Though the Byrd court noted that the lessee breached the lease and the lessor terminated the lease before the forfeiture date, the court emphasized that the debt in question related back to the execution of the lease on December 1, 1980 and therefore was created and incurred before the forfeiture date. See id. Similarly, Taylor asserts on appeal that, even though the installment contracts were executed after September 7, 2004, and even though Automotive breached the Dealer Agreement and caused First Community’s damages after this date, the debt in question relates back to the execution of the Dealer Agreement on November 10, 2008. The Byrd case supports Taylor’s argument.

Though not cited by either party on appeal, we address this court’s opinion in River Oaks Shopping Center v. Pagan. See 712 S.W.2d 190 (Tex.App.-Houston [14th Dist.] 1986, writ refd n.r.e.). In Pagan, a corporation, as lessee, executed a lease on April 11, 1978. See id. at 191. The lessee forfeited its right to do business in Texas on September 15, 1979, and the breach of the lease upon which the lessor sued did not occur until August 1980. See id. Nonetheless, a prior panel of this court adopted the “relation back” doctrine from Byrd, concluding that the debt from the post-forfeiture breach and damages related back to April 11, 1978, the execution date of the lease. See id. at 191-92. Therefore, the Pagan court concluded that, under section 171.255, the corporate debt was created and incurred on April 11, 1978, and the officers of the lessee corporation were not individually liable. See id. The Pagan case supports Taylor’s argument under the “relation back” doctrine.

Absent a decision from a higher court or this court sitting en banc that is on point and contrary to the prior panel decision or an intervening and material change in the statutory law, this court is bound by the prior holding of another panel of this court. See Chase Home Fin., L.L.C. v. Cal W. Reconveyance Corp., 309 S.W.3d 619, 630 (Tex.App.-Houston [14th Dist.] 2010, no pet.). Research has revealed no contrary decision from a higher court or from this court sitting en banc. However, a year after the Pagan opinion issued, the Texas Legislature enacted a definition of “debt” as used in section 171.255. See Act of May 30, 1987, 70th Leg., R.S., ch. 324, § 1, 1987 Tex. Gen. Laws 1734, 1735 (defining “debt” as used in chapter 171) (repealed effective 2008). Under this definition, which applies to the case now before this court, a “debt” is “any legally enforceable obligation measured in a certain amount of money which must be performed or paid within an ascertainable period of time or on demand.” Id. The Schwab court stated that a statute like section 171.255 should be strictly construed so that it is not extended beyond the clear import of its language. See Sclmab, 198 S.W.2d at 81. However, the clear import of the definition added in 1987 was that a debt is a legally enforceable obligation measured in a certain amount of money. Under the “relation back” doctrine, the execution of the Dealer Agreement on November 10, 2003, would create a debt under section 171.255, even though no party had breached the agreement and even though there was no money owed under the agreement at that time. This result would conflict with the statutory definition of “debt” enacted by the legislature in 1987. The legislative addition of this definition conflicts with the relation back doctrine followed by the Pagan court and constitutes an intervening and material change in the statutory law. Therefore, we are not bound to follow the prior panel decision in Pagan. See Chase Home Fin., 309 S.W.3d at 630.

The “relation back” doctrine is not required by Schwab or Byrd and is inconsistent with the unambiguous language of the applicable definition of “debt” in Chapter 171. Therefore, we conclude that the “relation back” doctrine should not be applied in this case. Inasmuch as Taylor’s only argument under his second issue is premised on the applicability of the “relation back” doctrine and this doctrine does not apply, we overrule Taylor’s second issue.

In his third issue, Taylor asserts that the evidence is legally and factually insufficient to support a finding that Taylor is personally liable under sections 171.252 and 171.255. However, Taylor’s only argument as to why the evidence is legally and factually insufficient is premised on the applicability of the “relation back” doctrine, which we already have held does not apply. Presuming for the sake of argument that Taylor can assert legal and factual insufficiency arguments on appeal from a judgment on an agreed statement of facts, Taylor’s argument fails for the same reasons given under our analysis of the second issue. Accordingly, we overrule Taylor’s third issue.

III. Conclusion

The trial court did not reversibly err by failing to file findings of fact and conclusions of law. Under the applicable version of Chapter 171, the “relation back” doctrine does not apply to this case. Accordingly, we affirm the trial court’s judgment,

      . See TexR. Civ. P. 263 ("Parties may submit matters in controversy to the court upon an agreed statement of facts filed with the clerk ... and such agreed statement signed and certified by the court to be correct and the judgment rendered thereon shall constitute the record of the cause.").

      . Centrix Financial, LLC was not a party at trial and is not a party on appeal.

      . Unless otherwise noted, all references to a "section” or a "chapter” pertain to the Texas Tax Code.

      . Taylor also cites the Serna case, in which the court describes the "relation back” doctrine from the Byrd case. See Serna, 877 S.W.2d at 519. However, the Serna court held that the "relation back” doctrine did not aPPly 1° the case before that court, which involved debts arising from statutory liability. See id. Therefore, the parts of Serna upon which Taylor relies are obiter dicta.

      . Previously, the Texas Legislature had not defined this term.

      . In any event, the trial court did not err in impliedly concluding that the debts in question were created or incurred after September 7,2004, and that Taylor is liable for these debts under section 171.255.


source: Caselaw Access Project

author: Justice NOBLE.

license: Public Domain

text:
    COMMONWEALTH of Kentucky, CABINET FOR HEALTH AND FAMILY SERVICES, Appellant, v. L.J.P.; M.J.P.; and D.J.P., a Child, Appellees.
    No. 2008-SC-000950-DGE.
    Supreme Court of Kentucky.
    May 20, 2010.
    Rehearing Denied Aug. 26, 2010.

      Cynthia Kloeker, Cabinet for Human Resources, Covington, KY, Counsel for Appellant.
    Michael Ryan Voorhees, Voorhees & Levy, LLC, Cincinnati, OH, Counsel for Appellees, L.J.P. and M.J.P.
    Mary Miller Salyer, Covington, KY, Counsel for Appellee, D.J.P., a Child.
   Opinion of the Court by

Justice NOBLE.

This case involves a termination of parental rights action in which the court denied the paternal grandparents’ motion to intervene. The grandparents, before us as Appellees, appealed the order denying their motion to the Court of Appeals, which reversed and held that the grandparents could intervene as a matter of right under CR 24.01. Appellant, the Cabinet for Health and Family Services, sought discretionary review, which this Court granted. For the reasons set forth below, the Court of Appeals is reversed.

I. Background

Appellees, L.J.P. and M.J.P., are the paternal grandparents of D.J.P., a boy born on August 28, 2005. Soon after D.J.P.’s birth, on October 4, 2005, his birth parents lost custody of him and his two half-siblings in a dependency, neglect, and abuse action. D.J.P. has since resided in foster care.

On November 15, 2006, the Cabinet filed a petition for involuntary termination of parental rights. About four months later, on March 9, 2007, the parents filed a petition to voluntarily terminate their parental rights, conditioned on D.J.P. being placed for adoption with Appellees. That same day, Appellees moved to intervene, claiming “The filing of the Petition for Voluntary Termination of Parental Rights by [the birth parents] gives [them] the right to intervene in this proceeding.” They also requested custody.

The family court denied Appellees’ motion to intervene. The court reasoned that the parents’ petition for voluntary termination, the document which purported to give Appellees standing, was invalid because the Cabinet had previously filed a petition for involuntary termination. Ap-pellees appealed this decision to the Court of Appeals, which held that they could intervene as a matter of right based on the “elevated status” given to grandparents in custody determinations. This Court then granted the Cabinet’s motion for discretionary review.

II. Analysis

A. Timeliness

The family court first concluded that the parents could not be heard on their petition for voluntary termination “[s]ince the Petition for Involuntary Termination was filed by the Cabinet over three months before the birth parents filed their Petition.” Thus, the court reasoned, this petition was untimely and could not give Appellees standing. The court reached this conclusion because it thought the effect of the Cabinet previously filing a petition for involuntary termination was that the parents had lost “the right to be free from state interference in deciding who shall have custody of the[ir] minor child.”

The petition for involuntary termination could not have had this effect, however, because it was merely pending. Although it is clear that if the court granted the petition parental rights would be terminated, see KRS 625.090(6)(a), it is equally clear that if the court denied the petition parental rights would be unaffected, see KRS 625.090(6)(b). That is, the filing of the petition, by itself, cannot affect parental rights. The parents retain whatever rights to their child they had before the petition was filed.

Among these rights is the right to be heard on a proper petition for voluntary termination. Unless a court actually terminates their rights, the parents have an interest in directing the care, custody, and upbringing of their child, see Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), and so long as all statutory requirements were met, could consent to the adoption of their child and to voluntarily terminate their parental rights. Their rights are not affected by the mere filing of a petition, which contains only the Cabinet’s allegations and argument; that can only be done by a valid court order terminating their rights, which contains “findings of fact, conclusions of law, and a decision as to each parent-respondent.” KRS 625.090(6). Here, the trial court had in fact removed the children from the parents, and placed temporary custody with the Cabinet, but the effect on parental rights came from the order of the court for removal, not the mere filing of a petition.

Consequently, the fact that an involuntary termination of parental rights action was pending did not prevent the parents from filing a petition for voluntary termination of parental rights, nor did it take away their right to consent to adoption. The fact that they did file their petition before their parental rights were terminated makes their voluntary petition timely. Nonetheless, this does not alone give the Appellees standing to adopt D.J.P. or the right to intervene in the termination proceeding.

B. The Substance of the Parents’ Petition

Whether the Appellees have the right to intervene in the voluntary termination of parental rights proceeding must be determined based on their statutory rights toward D.J.P., or the parents, if any.

To make this determination, this Court must look to the allegations of the petition for voluntary termination. The substance of what the parents attempted to do through their petition for voluntary termination is consent adoption. The petition stated that they would voluntarily terminate their parental rights, but “if and only if” parental rights were vested in the Ap-pellees, the paternal grandparents. This petition thus attempts to do more than merely voluntarily terminate parental rights. While the parents clearly could voluntarily terminate their parental rights, even in an involuntary termination proceeding, the real question is whether given the status of their case, they could go further and consent to adoption in a voluntary termination proceeding.

As an initial matter, a determination as to whether consent adoption applies in this case must be made. This Court has previously noted that

adoption only exists as a right bestowed by statute and, furthermore, ... there must be strict compliance with the adoption statutes. The law of adoption is in derogation of the common law. Nothing can be assumed, presumed, or inferred and what is not found in the statute is a matter for the legislature to supply and not the courts.

Day v.Day, 937 S.W.2d 717, 719 (Ky.1997) (citing Wright v. Howard, 711 S.W.2d 492 (Ky.App.1986), and Coonradt v. Sailors, 186 Tenn. 294, 209 S.W.2d 859 (1948)). The statutory requirements for adoption are determinative.

In most “consent” adoptions, a parent agrees to allow a new spouse, or some other relatives, to adopt his or her child. The parent retains parental rights when the party seeking adoption is the parent’s spouse, but must normally terminate parental rights when the child is adopted by non-spousal parties. That is what the parents attempted to do here.

If the parents retain parental rights to their children, then KRS 199.500 states that an adoption shall not be granted without voluntary and informed consent of the parents. However, merely retaining parental rights does not compel that a child be permitted to be adopted on the parents’ consent alone. Obtaining the consent of parents who retain their parental rights is but the first step of a consent adoption. Thereafter, all the rest of the statutory provisions governing adoption proceedings apply.

Pursuant to KRS 199.470(3), Appellees, as parties, could not petition to adopt D.J.P. unless the child had been placed with them by the Cabinet or other appropriate agency, or “until [he] has resided continuously in [ their] home ... for at least ninety (90) days immediately prior to the filing of the adoption petition.” In this case, D.J.P. was placed in foster care by the Cabinet, and has resided in foster care since shortly after his birth, in order to protect his safety. The record does not reflect that D.J.P. has at any time resided with Appellees, and thus certainly not for 90 days consecutively. Hence, Appellees would not have been able to adopt D.J.P. when the petition for involuntary termination was filed.

The 90-day residency requirement “is a prerequisite to the trial court’s exercise of jurisdiction to hear the petition for adoption. If the requirement is not satisfied, the trial court does not have the authority to hear the matter and any order conferred would be void.” Day, 937 S.W.2d at 719 (citing Cabinet v. McKeehan, 672 S.W.2d 934 (Ky.App.1984) and Bd. of Adjustments v. Flood, 581 S.W.2d 1 (Ky.1978)). As the family court jurisdiction had not been properly invoked by Appellees in this case, they cannot bypass the statutory requirements and require the family court to entertain essentially the same petition in an improper form presented by other parties.

Further, the petition for voluntary termination is so equivocal that it is hardly a proper pleading, being replete with conditional language. For example, the parents stated that they “wish to release and relinquish all parental rights regarding [D.J.P.] to [L.J.P.] and [M.J.P.], and to no one else but [L.J.P.] and [M.J.P.J.” (Emphasis added.) In addition, the concluding paragraph of the petition reads:

Petitioners believe an adoptive placement with [L.J.P.] and [M.J.P.] is in the best interest of [D.J.P.] and that a supporting order terminating the parental rights of the biological parents is in the best interest of [D.J.P.], if and only if all 'parental rights to [D.J.P.] are vested in [L.J.P.] and [M.J.P.] and not in the Cabinet or any other person.

(Emphasis added.) The family court could not grant the parents’ requested relief of voluntary termination under this petition without also placing D.J.P. for adoption with Appellees.

Likewise, the intent of Appellees to bypass statutory requirements is made clear by their “Motion to Intervene and Request for Custody.” In this motion, they stress that there is “a preference for relative placement in adoption proceedings.” (Citing Baker v. Webb, 127 S.W.3d 622, 625 (Ky.2004)). They also point out that Article VII of the Interstate Compact on the Placement of Children would not apply as this involves D.J.P. “be[ing] adopted by his grandparents.” In addition, they argue that the Cabinet does not need to approve their request because “this is a grandparent adoption.” (Emphasis added.) While all that may be true, that does not make the parents’ voluntary termination action an adoption proceeding. Appellees were unable to petition for adoption under KRS 199.470(3) due to the 90-day residency requirement, and they may not now by fíat make a termination proceeding an adoption proceeding.

In short, the parents’ petition was an improper attempt to make an end-run around the requirements of the adoption statute. If the petition had been a proper petition for consent adoption, then Appel-lees would have had to invoke the family court’s jurisdiction to proceed, and they cannot meet the statutory grounds to do so. The Appellees thus lack standing to go forward in an adoption proceeding.

If the Appellees have no standing to go forward in their own right to adopt D.J.P., then can they intervene in the termination proceedings? There are two ways a party may intervene: First, if “a statute confers an unconditional right to intervene.” CR 24.01(l)(a). And second, if “the applicant claims an interest ... which is the subject of the action and is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless that interest is adequately represented by existing parties.” CR 24.01(l)(b). To be sufficient, the applicant’s “interest relating to the transaction must be a present substantial interest in the subject matter of the lawsuit, rather than an expectancy or contingent interest.” Baker, 127 S.W.3d at 624 (internal quotation omitted). In this case, neither of these two situations applies.

With respect to whether a statute confers an unconditional right to intervene, nowhere in the termination statutes is intervention mentioned. No party has cited any other statute that could confer on Appellees an unconditional right to intervene here.

In fact, the parties to the termination proceedings are specifically enumerated. For involuntary terminations, they are the child, the petitioner, the Cabinet (if not the petitioner), the birth parents, and qualifying putative fathers. KRS 625.060. For voluntary terminations, they are “the parent seeking termination” and “a guardian ad litem to represent the best interest of the child.” KRS 625.041. Nobody else is listed as possible parties. In addition, KRS 625.070 does not require non-parental relatives or potential custodians to be given notice of involuntary termination proceedings. To put it simply, non-parental relatives or potential custodians such as Appellees are not mentioned or considered in the termination statutes, and thus it cannot be said that a statute confers an unconditional right to intervene.

Despite this, the Court of Appeals concluded that Appellees had substantial interest in this case, giving them a right to intervene under CR 24.01. They based this conclusion on KRS 625.100, which does not require Cabinet approval for certain relative placement; KRS 405.021, which provides for grandparent visitation post-termination; and Baker v. Webb, 127 S.W.3d 622 (Ky.2004), which held that second cousins could intervene in an adoption proceeding. But these authorities do not create a substantial interest in a termination proceeding.

A termination proceeding concerns the relationship between parent and child, and not any other party. The Appellees, as grandparents, simply have no cognizable rights to protect or enforce in a termination proceeding. As the Court of Appeals aptly stated in an unpublished opinion:

Understandably, movants are concerned that if ... parental rights are terminated, this legal result could jeopardize (or result in the severing of) the bond between grandparent and child[]. If the legislature permitted extended family members, grandparents, aunts, uncles, adult siblings, cousins, and others to intervene in [termination of parental rights] cases, however, the goals and policies of the Adoption and Safe Families Act (AFSA) and Kentucky law, to provide efficient and timely justice for children and their families and to facilitate children’s rights to a safe, healthy childhood with a nurturing, permanent family would be severely delayed.

D.P. v. Commonwealth, 2005 WL 3246168, at *3 (Ky.App.2005) (unpublished opinion).

To the extent that Appellees’ interest is in receiving custody post-termination, it would not be a “present substantial interest” but merely “an expectancy or contingent interest,” Baker, 127 S.W.3d at 624, and thus insufficient to warrant their intervention as a matter of right. The family court is obligated, upon issuing an order terminating parental rights, to “vest care and custody of the child in such person, agency, or cabinet as the court believes best qualified.” KRS 625.100(1). Thus, Appellees would be entitled to custody only if the court finds they are the “best qualified” among all potential custodians, something which is purely speculative at this point, especially since parental rights have not been terminated.

At that point in time, Appellees have further options. The record indicates that much of the procedural problems in this case arose because the Cabinet did not consider the Appellees for relative placement, or the Appellees did not proceed under the appropriate statutes to seek custody of D.J.P. This Court takes no position as to whether placing D.J.P. with his grandparents would be in the best interest of the child, for that is a question best determined on proper hearing by the trier of fact. Here, it suffices to say that Appel-lees, being the only party on appeal, do not at present meet the statutory requirements to have standing to adopt D.J.P. nor do they have a right to intervene in the parents’ termination proceedings.

III. Conclusion

Given that the proceeding before the court was for termination, and not adoption, Appellees’ motion to intervene was correctly denied, and they have no statutory standing to proceed with an adoption at this point. For these reasons, the Court of Appeals is reversed, and the order of the Family Court is reinstated.

All sitting. All concur.

      . Should an adoption proceeding be later initiated in a proper manner by the other parties, Appellees would have a right to intervene in that proceeding. Cf. Baker v. Webb, 127 S.W.3d 622, 625-26 (Ky.2004). In Baker, a child's second cousins moved to intervene in an adoption proceeding initiated by the child’s non-relative foster parents. This Court held that the second cousins could intervene because the Cabinet's policies and regulations, which gave relatives priority for adoption, vested them with a "sufficient, cognizable legal interest in the adoption.” Id. at 625; see also 922 KAR 1:100, at § 3(a).


author: Chief Justice MINTON.

text:
    COMMONWEALTH of Kentucky, Appellant, v. Wanda COMBS, Appellee.
    No. 2009-SC-000143-DG.
    Supreme Court of Kentucky.
    May 20, 2010.
    Rehearing Denied Aug. 26, 2010.

      Jack Conway, Attorney General of Kentucky, James Coleman Shackelford, Assistant Attorney General, Office of Criminal Appeals, Frankfort, KY, Counsel for Appellant.
    Barbara Anderson, F.J. Anderson, Lexington, KY, Counsel for Appellee.
   Opinion of the Court by

Chief Justice MINTON.

This case asks us to determine whether a trial court may properly instruct a jury on complicity to first-degree trafficking in a controlled substance and on first-degree trafficking in a controlled substance as the principal actor when the defendant has been formally charged with only complicity to first-degree trafficking in a controlled substance. We hold that if the evidence at trial would support a finding of guilt under both complicity and principal actor theories, the answer is yes.

I. FACTUAL AND PROCEDURAL HISTORY.

In a controlled drug buy, an informant approached a car occupied by Wanda Combs and a passenger. The informant gave Combs money, and Combs handed the informant an oxycodone (Oxycontin) tablet. The informant was unsure if Combs ultimately gave the passenger the money or if the passenger had handed the pill to Combs to give to the informant.

Combs was indicted for one count of first-degree trafficking in a controlled substance. On Friday before trial was scheduled to begin on Monday, the Commonwealth sought to amend the indictment to charge Combs only with complicity to first-degree trafficking in a controlled substance with “Debbie Last Name Unknown .... ” Combs objected to the proposed amendment. On the day the trial was set to begin, the trial court held a hearing on the motion to amend, during which the Commonwealth stated that it had only recently discovered the identity of Debbie Bach, the passenger in the car with Combs during the controlled drug buy.

The trial court ordered the trial to proceed and asked the Commonwealth which indictment should be read to the jury. Despite Combs’s protests that she was not prepared for a trial based on a complicity theory, the trial court complied with the Commonwealth’s request by reading to the jury the indictment charging guilt by complicity.

After the Commonwealth presented its case-in-chief, Combs moved for a directed verdict based upon her contention that the Commonwealth had not proven the existence and guilt of a principal actor, which Combs believed was a prerequisite for her to be convicted of guilt by complicity. The trial court denied the motion for directed verdict. Combs then called Bach and another witness to testify on Combs’s behalf, but both witnesses invoked their Fifth Amendment rights and declined to testify. Combs then rested, and the Commonwealth elected not to call any rebuttal witnesses. Combs’s renewed motion for a directed verdict was denied, after which a discussion of jury instructions ensued.

The Commonwealth tendered jury instructions based on both principal actor and complicity theories of guilt. Combs objected, arguing that the amended indictment charged her only under a complicity theory of guilt. Nevertheless, the trial court submitted both principal actor and complicity instructions to the jury. The jury found Combs guilty of trafficking in a controlled substance under the principal actor theory and recommended a sentence of eight years’ imprisonment. The trial court sentenced Combs in accordance with the jury’s recommendation, after which Combs filed a matter-of-right appeal with the Kentucky Court of Appeals.

The Court of Appeals held that it was not error for the trial court to permit the Commonwealth to amend the indictment to charge Combs with being guilty under a complicity theory. But the Court of Appeals held that Combs was “substantially prejudiced” and “was never permitted the opportunity to defend herself as a principal because she was not charged as a principal once the indictment was amended.” So the Court of Appeals reversed Combs’s conviction and remanded the matter to the circuit court “for a new trial.”

We granted the Commonwealth’s motion for discretionary review in order to consider whether a trial court may instruct a jury on theories of both principal actor and complicity when the evidence would support either theory of guilt, but the defendant is formally charged only with guilt by complicity. Having fully considered the issue, we hold that dual instructions are proper under those circumstances.

II. ANALYSIS.

As stated previously, Combs was originally indicted for first-degree trafficking in a controlled substance by “KNOWINGLY AND UNLAWFULLY SELLING OXYCONTIN, A CONTROLLED SUBSTANCE CLASSIFIED IN SCHEDULE II.” Before trial, the Commonwealth successfully asked to amend the indictment to charge Combs with complicity to first-degree trafficking in a controlled substance “by aiding, counseling, or attempting to aid, Debbie [Bach], in selling Oxycontin....”

This first amendment of the indictment was proper. Kentucky Rules of Criminal Procedure (RCr) 6.16 provides that an indictment may “be amended any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced.” It is clear under our precedent that “amending the indictment to include an allegation that the defendant is guilty of the underlying charge by complicity does not constitute charging an additional or different offense.” This is true because, as we have explained, “KRS 502.020 does not create a new offense known as complicity. [0]ne who is found guilty of complicity to a crime occupies the same status as one being guilty of the principal offense.”

Regardless of her protests to the contrary, we conclude that Combs was not improperly prejudiced by this amendment. The essential facts of the complicity offense were the same as those underlying the principal actor offense, and Combs was already obviously aware of Bach’s existence because Combs had subpoenaed Bach to testify at trial.

Having determined that the amendment was proper, we now turn our attention to whether the trial court properly instructed the jury on both principal and complicity theories of guilt. Although better practice would likely have been for it to seek leave of Court to do so, the Commonwealth did not seek to amend the indictment at the close of the evidence to conform to the proof. So the real question before us is whether the jury instructions were at variance with the proof presented at trial.

“[Ujnder modern rules the essential question when examining variance between the indictment and the proof is whether the defendant in fact had fair notice and a fair trial.” Although the Court of Appeals mistakenly seized upon this point, we have abandoned any presumption that a defendant is unduly prejudiced when an indictment is amended to charge guilt by complicity. Of course, it must be borne in mind that “[tjhe jury must be instructed on all theories which are deducible from the evidence.”

In the case at hand, since there was no definitive evidence regarding whether Bach was the principal actor or a complicitor assisting Combs, there was ample evidence from which a reasonable juror could have concluded that Combs was guilty of trafficking in a controlled substance as either a pi’incipal actor or as a complicitor with Bach. The trial court acted properly by conforming the jury instructions to the proof. Although not cited by the Court of Appeals, we recently reiterated in Pate v. Commonwealth that our precedent holds that “where evidence is sufficient to support a conviction as either an accomplice or as a principal, an instruction in the alternative is proper.” This case falls squarely within our holding in Pate.

And we conclude that Combs had a fair trial. Again, the operative facts were the same regardless of whether the Commonwealth’s theory of the case involved complicity. In fact, Combs was ultimately convicted of the same offense and the same method of committing that offense for which she was originally indicted, trafficking in a controlled substance in the first degree under a principal actor theory.

Combs’s argument is unavailing that she was prejudiced and her trial rendered unfair by the principal actor jury instruction. First, to reiterate, trafficking in a controlled substance, like other offenses, is an offense capable of being committed as either a principal actor or as a complicitor. After all, a person who is “guilty of complicity to a crime occupies the same status as one being guilty of the principal offense.” So the shifting from principal actor to complicity theories of guilt and back again is not as radical a change in the Commonwealth’s theory of the case despite Combs’s argument. We recently held in an analogous unpublished case that a trial court did not commit palpable error when it instructed a jury on both a principal actor and accomplice theory when a defendant had only been indicted under a complicity theory of guilt. Although the issue in this case is better preserved, we reach the same conclusion— the defendant is not entitled to relief.

Next, Combs is unable to point to any identifiable prejudice she suffered in this case. Although a defendant should be aware beforehand whether the Commonwealth seeks to convict based upon a complicity theory alone, a principal actor theory alone, or an either-or combination theory, the fact remains that the underlying criminal offense is the same. A defendant in need of clarification of the Commonwealth’s theory of guilt may file a motion for a bill of particulars. Importantly, in the case at hand, the operative facts underlying both theories of guilt were the same.

Combs contends that the flip-flop in the Commonwealth’s theory of guilt was prejudicial because she relied to her detriment upon her belief that the Commonwealth had failed to prove that another person committed the offense (ie., identified the principal actor) in order to convict her of guilt by complicity. Combs generically argues in her brief that if she “had received notice she was also being charged as a principal, she would have called witnesses and put on a defense to that charge.” Likewise, during oral argument, Combs’s counsel merely said that she could “only speculate” as to what would have been done differently at trial if she had had more notice that the Commonwealth would be seeking a jury instruction on a principal actor theory of guilt.

But Combs has not detailed what new defense she would have mounted or which specific witnesses she would have called. A vague claim that some unspecified evidence could have been presented to defend against a principal actor theory of guilt is insufficient to show demonstrable prejudice. As the Commonwealth astutely notes, since Combs “had prepared to defend her case as a principal until the morning of trial, it is hard to imagine what additional evidence she would have presented.” Combs’s claim that she was unable to present some unspecified new evidence is at odds with the fact that she did not even specifically ask the trial court to re-open the proof.

The Commonwealth did present evidence sufficient for a reasonable juror to conclude that another person — Bach—was guilty of being a principal actor. Intent of course, may be inferred from the relevant circumstances. And, as explained before, a reasonable juror could have, contrary to Combs’ argument, found under these circumstances that Combs was guilty of complicity to trafficking in a controlled substance when Combs acted as a conduit between Bach and the informant as they exchanged the money for the Oxycontin pill. So even under a complicity theory, the Commonwealth satisfied its “burden of proving the commission of the charged offense by another person and of proving that the defendant participated in that offense.” A jury instruction on a complicity theory of guilt was proper.

We also reject Combs’ contention that she is entitled to relief under our holding in Wolbrecht v. Commonwealth. In Wol-brecht, the defendants were charged with complicity to murder; and the indictment specified that one of the defendants was the murderer. Five days into trial, the trial court permitted the indictment to be amended to charge that the murderer was an unknown person. Deeming this amendment to be a “dramatic, 180[-]degree turn in the case[,]” we reversed because the defendants “were unduly and unfairly surprised near the conclusion of the Commonwealth’s case with a new charge that they each had engaged in a conspiracy with some anonymous coconspirator....”

There was no similar “dramatic, 180[-]degree turn” in the case against Combs because, as stated before, “amending the indictment to include an allegation that the defendant is guilty of the underlying charge by complicity does not constitute charging an additional or different offense.” The Commonwealth’s theory was always that the cooperating witness handed Combs money and received Oxycontin in return. Unlike in Wolbrecht, no mystery offender was interjected into the case during trial.

In summary, although it is one offense, trafficking in a controlled substance can be committed as either a principal actor or as a complicitor. Combs was originally indicted as a principal actor, and the jury was instructed on that method of committing the offense. Combs’s amended indictment charged her under a complicity theory of guilt, and the jury was instructed on that method of committing the offense. Both the complicity and principal actor theories of guilt were supported by the evidence. So the trial court fulfilled its obligation to instruct the jury in accordance with the evidence. Accordingly, under these facts, Combs’s trial was fundamentally fair; and she was not unfairly prejudiced when the trial court instructed the jury on both principal actor and complicity theories of guilt.

III. CONCLUSION.

For the foregoing reasons, the opinion of the Court of Appeals is reversed; and the judgment of conviction entered by the trial court is reinstated.

All sitting. All concur.

      . The Commonwealth's belated discovery of Bach's identity is curious, at least on first impression, because the record reflects that Combs had subpoenaed Bach as a witness approximately three weeks before trial. We note that the subpoena spells Bach’s surname as "Back.”

      . This question is puzzling because there was only one indictment against Combs, the only difference being whether that one-count indictment charged Combs with guilt by complicity or guilt as a principal actor.

      . Of course, an appellate court may not absolutely require a new trial to be held on remand. A new trial is among the permissible dispositions of the case after a remand to the trial court. An appellate court should merely remand a case for further proceedings consistent with its opinion.

        .See Kentucky Revised Statutes (KRS) 21SA. 1412(1) (“A person is guilty of trafficking in a controlled substance in the first degree when he knowingly and unlawfully traffics in: a controlled substance, that is classified in Schedules I or II which is a narcotic drug...."). Although it does not appear to be specifically listed in KRS 218A.070's list of Schedule II controlled substances, oxycodone is specifically listed as being a Schedule II controlled substance in 902 Kentucky Administrative Regulations (KAR) 55:020 § 4(14). In fact, we have referred to oxycodone as a Schedule II substance. Commonwealth v. Welch, 864 S.W.2d 280, 280 (Ky.1993) (“Connie Welch was arrested on November 7, 1989, when police, while executing a warrant at the home of a suspected drug dealer, found Welch in possession of oxycodone, a Schedule II narcotic....").

      . See KRS 502.020(1) (providing, in relevant part, that a person is guilty of complicity to an "offense committed by another person when, with the intention of promoting or facilitating the commission of the offense, he ... (b) [a]ids, counsels, or attempts to aid such person in planning or committing the offense....’’).

      . Commonwealth v. McKenzie, 214 S.W.3d 306, 307 (Ky.2007).

      . Parks v. Commonwealth, 192 S.W.3d 318, 326-27 (Ky.2006) (internal citations and quotation marks omitted).

      .Such a second amendment could have charged Combs with guilt as a principal actor or guilt by acting in complicity with Bach. Cf. Fields v. Commonwealth, 219 S.W.3d 742, 746-47 (Ky.2007) (finding no error in amending indictment at close of evidence to reflect complicity theory of guilt). As will be discussed, however, the Commonwealth's failure to seek a second amendment of the indictment, although procedurally deficient, does not afford Combs relief. Robards v. Commonwealth, 419 S.W.2d 570, 573 (Ky.1967) ("The indictment could and should have been amended at the conclusion of the testimony, but it cannot reasonably be held that a failure in that respect affected the defendant's substantial rights.”). As we recently held in an analogous unpublished case, an instruction permitting a jury to find a defendant guilty under an alternative theory not contained in the indictment was not a palpable error because the jury instruction "was a de facto or constructive amendment of the indictment, which would not be erroneous so long as the conditions for a formal amendment existed.” Evans v. Commonwealth, No.2006-SC-000912-MR, 2009 WL 1451935, at *4 (Ky. May 21, 2009). Although the issue is better preserved in this case, we come to a similar conclusion because the lack of conclusive evidence regarding Bach's role in the drug transaction provided the conditions for a formal amendment of the indictment.

      . Johnson v. Commonwealth, 864 S.W.2d 266, 272 (Ky.1993).

      . McKenzie, 214 S.W.3d at 308.

      . Commonwealth v. Duke, 750 S.W.2d 432, 433 (Ky.1988).

      . Again, the informant testified at trial that he gave the money to Combs and received the oxycodone tablet from her. The informant testified that Combs and Bach were engaged in some sort of activity, but the informant was unsure if Combs gave Bach the money or Bach gave Combs the pill since the informant could not see all of the interaction between Combs and Bach. But Combs admits in her brief that the video of the transaction shows the passenger (Bach) counting the money received from the informant. And the informant testified at trial that Bach and Combs seemed to confer when the informant asked if he could call a certain third person if he needed more pills. So a juror could certainly have concluded that Bach took the lead role in the drug transaction or that Bach took a role in which she merely assisted Combs. In fact, a jury could have found under these facts that both Bach and Combs were principal actors.

      . 243 S.W.3d 327, 334-35 (Ky.2007).

      . Wilson v. Commonwealth, 601 S.W.2d 280, 286 (Ky.1980).

      . Evans, 2009 WL 1451935 at *4-5.

      . See RCr 6.22.

      . At oral argument, Combs's counsel referred to "other witnesses” who could have been called if Combs had known sooner that she would be charged under both principal and complicity theories; but counsel demurred at making any specific references to these witnesses as being an improper reference to matters outside the record. Combs’s counsel is correct in stating that attorneys at oral argument should refrain from discussing matters outside the record. But the only reason the specifics of this alleged additional evidence are outside the appellate record is Combs’s failure to inform the trial court in detail what additional evidence Combs could present to defend the principal actor theory of guilt.

      . The only subpoena in the record was directed to Bach.

      . Combs contends that asking for a continuance is the equivalent of asking for a re opening of proof because ”[w]hen a continuance is granted ... additional evidence may be introduced.” To the contrary, a mere continuance only delays the proceedings; it does not necessarily change the procedural stance of the case. In other words, had a continuance alone been granted, the trial would have begun at the same precise procedural point after the continuance ended (i.e., presentation of closing arguments). So if she really wanted to present more evidence, Combs should have asked the trial court for leave to re-open the proof.

      . Commonwealth v. Wolford, 4 S.W.3d 534, 539 (Ky.1999).

      . Harper v. Commonwealth, 43 S.W.3d 261, 265 (Ky.2001).

      . 955 S.W.2d 533 (Ky.1997).

      . Id. at 537.

      . McKenzie, 214 S.W.3d at 307.

      . The parties argue over the proper standard of review. Admittedly, our precedent on the proper standard by which we review jury instruction-related issues seems to be inconsistent. Compare Ratliff v. Commonwealth, 194 S.W.3d 258, 274 (Ky.2006) ("We review a trial court’s rulings regarding instructions for an abuse of discretion.”) with Skaggs v. Commonwealth, No.2007-SC-000007-MR, 2009 WL 1830807 at *4 (Ky. June 25, 2009), citing Hamilton v. CSX Transportation, Inc., 208 S.W.3d 272, 275 (Ky.App.2006) ("alleged errors regarding jury instructions are questions of law and must be examined using a de novo standard of review.”). But we need not resolve the apparent inconsistency in this case because we would reverse the Court of Appeals and reinstate the judgment of the trial court under either standard.


author: MOORE, Judge.

text:
    William H. RILEY and Janet A. Riley, Appellants, v. FLAGSTAR BANK, FSB, Appellee.
    No. 2008-CA-000174-MR.
    Court of Appeals of Kentucky.
    March 27, 2009.
    Rehearing Denied June 2, 2009.
    Discretionary Review Denied by Supreme Court Aug. 18, 2010.

      James R. Golden, Middlesboro, KY, for appellant.
    David S. Strite, Andie Brent Camden, Louisville, KY, for appellee.
    Before CLAYTON, MOORE, and STUMBO, Judges.
   OPINION

MOORE, Judge.

William H. Riley and Janet A. Riley appeal the Whitley Circuit Court’s order granting a directed verdict against them. After a careful review of the record, we reverse the circuit court’s order and remand for further proceedings.

I. FACTUAL AND PROCEDURAL BACKGROUND

In October 2002, the Rileys mortgaged their home in the amount of $112,500. Debra Armstrong, a Vice President of Flags-tar Bank, FSB, testified at trial that the original lender for the mortgage was TriCounty Mortgage. Ms. Armstrong attested that the mortgage was assigned to Flagstar through Mortgage Electronic Registration Systems, Inc., (MERS) within three days of the date that the mortgage originated. Thus, Ms. Armstrong testified that Flagstar was the proper party to release the mortgage once it was paid in full.

On December 1, 2003, the Rileys paid off the balance of this original mortgage on their home after re-financing the mortgage through Tri-County Mortgage, which arranged for Flagstar to provide the financing behind the re-financed mortgage. According to Flagstar, it first tried to release the original lien on March 18, 2004.

In June 2004, Amber Noell, the closing processor at the law office of Darrell Saunders, where the re-financing of the mortgage was handled, discovered that the original mortgage had not yet been released. Ms. Noell testified that on June 11, 2004, she called Flagstar, spoke with a woman named “Edwina,” and informed Edwina that a lien needed to be released. Ms. Noell told Edwina that if Edwina would give her Flagstar’s fax number, then Ms. Noell would send the information about the mortgage to Flagstar. Edwina provided a fax number and Ms. Noell faxed a letter containing that information to Flagstar at that fax number, with Darrell Saunder’s signature affixed to the bottom of the letter by a signature stamp. The letter that Ms. Noell faxed was a form letter she had saved on her computer that she had used in other cases to send to other lienholders, and she simply changed the information in the letter to include the information specific to the Rileys’ original-mortgage. After sending the fax, Ms. Noell testified that the fax machine she used printed out a fax transmittal sheet stating that the fax had been successfully sent to the fax number at Flagstar provided by Edwina.

Flagstar contended that it did not receive the fax from Ms. Noell. In fact, Ms. Armstrong submitted an affidavit attesting that the fax number provided to Ms. Noell was “not the correct telephone number with which to request a lien release.” However, the fax number that was provided to Ms. Noell was a fax number associated with Flagstar, even if it was not the Flagstar fax number specifically associated with lien releases. It is important to note that Flagstar acknowledged in its response to the Rileys’ motion for summary judgment that its “daily report of lien releases, as well as the additional payoff processing reports, show a second attempt to discharge the lien on June 11, 2004,” and that happened to be the date that Ms. Noell testified she sent the fax.

After June 11, 2004, no one tried to contact Flagstar again concerning its failure to release the lien. The Rileys did not learn of Flagstar’s failure to release the lien until January 2005, when Darrell Saunders notified them. Flagstar was served with the complaint in the present case on February 7, 2005, and the complaint alleged that Flagstar owed the Ri-leys penalties under Kentucky Revised Statute (KRS) 382.365, due to Flagstar’s failure to release the lien. Flagstar released the lien on April 27, 2005.

The case went to trial, and after the Rileys’ case was presented, Flagstar moved for a directed verdict. The circuit court granted Flagstar’s motion, holding that the Rileys

presented no evidence during their case in chief that would allow a jury to conclude that Flagstar Bank received written notice of its failure to timely release the lien at issue in this case. [The Ri-leys] could only point to a letter faxed to a fax number associated with Flagstar Bank. The only other evidence presented by the [Rileys] was a transmission receipt from a fax machine indicating that this fax had indeed been transmitted. Nothing in the evidence presented provided any proof of a receipt of the facsimile transmission by Flagstar Bank. Proof of a successful transmission does not equal proof of a successful receipt of a facsimile. Furthermore, the statute requires written notice which the Court interprets to be proof of something beyond a facsimile transmission.

The circuit court also reasoned that the letter faxed by the Rileys’ attorney “was not actually signed by [the attorney] but signed via a signature stamp[,]” and that this created more doubt about whether a facsimile[-]only transmission could constitute written notice. The court also stated that “the Constitutional due process that [Flagstar] was entitled to would not have been met by a faesimile[-]only transmission, but would have required some sort of certified mail at the very least.”

Further, the court reasoned that the mortgage that was not released timely

was actually a mortgage to Tri[-]County Mortgage pursuant to the wording of the mortgage document and not a mortgage to Flagstar Bank. Despite whatever arguments might be made regarding the assignment of said mortgage, the mortgage holder of record in the Whitley Circuit Court County Clerk’s office was still Tri[-]County Mortgage. There was never any notice given to Tri[-]County Mortgage of an unreleased lien, thus casting further doubt on whether the provisions of notice required by KRS 382.365 were met.

Finally, the circuit court noted that during the time the mortgage was not released, Flagstar still had “a valid and active lien on the property based on the refinance transaction carried out by the [Ri-leys] wherein they borrowed additional monies from Flagstar Bank to pay off Flagstar Bank.”

The Rileys now appeal, contending, inter alia, that there was sufficient evidence introduced that Flagstar received the written notice to get beyond a directed verdict. Thus, the circuit court erred when it granted Flagstar’s motion for a directed verdict.

II. STANDARD OF REVIEW

The standard of review for an appeal of a directed verdict is firmly entrenched in our law. A trial judge cannot enter a directed verdict unless there is a complete absence of proof on a material issue or there are no disputed issues of fact upon which reasonable minds could differ. Where there is conflicting evidence, it is the responsibility of the jury to determine and resolve such conflicts. A motion for directed verdict admits the truth of all evidence favorable to the party against whom the motion is made. Upon such motion, the court may not consider the credibility of evidence or the weight it should be given, this being a function reserved for the trier of fact. The trial court must favor the party against whom the motion is made, complete with all inferences reasonably drawn from the evidence. The trial court then must determine whether the evidence favorable to the party against whom the motion is made is of such substance that a verdict rendered thereon would be palpably or flagrantly against the evidence so as to indicate that it was reached as a result of passion or prejudice. In such a case, a directed verdict should be given. Otherwise, the motion should be denied.

Gibbs v. Wickersham, 133 S.W.3d 494, 495-96 (Ky.App.2004) (internal quotation marks and citations omitted).

III. ANALYSIS

The Rileys first argue that sufficient evidence was introduced to show that Flagstar received written notice to get beyond a directed verdict. At the time that the facsimile, which the Rileys contend constituted written notice, was allegedly transmitted, the version of KRS 382.365 that was in effect provided, in pertinent part, as follows:

(1) A holder of a lien on real property ... shall release the lien in the county clerk’s office where the lien is recorded within thirty (30) days from the date of satisfaction.
(2) A proceeding may be filed by any owner of real property ... against a lienholder that violates subsection (1) of this section....
(3) Upon proof to the court of the lien being satisfied, the court shall enter a judgment releasing the lien. The judgment shall be with costs including a reasonable attorneys fee. If the court finds that the lienholder received written notice of its failure to release and lacked good cause for not releasing the lien, the lienholder shall be liable to the owner of the real property in the amount of one hundred dollars ($100) per day for each day, beginning on the fifteenth day after receipt of the written notice, of the violation for which good cause did not exist.
(4)A lienholder that continues to fail to release a satisfied real estate lien, without good cause, within forty-five (45) days from the date of written notice shall be liable to the owner of the real property for an additional four hundred dollars ($400) per day for each day for which good cause did not exist after the forty-fifth day from the date of written notice, for a total of five hundred dollars ($500) per day for each day for which good cause did not exist after the forty-fifth day from the date of written notice. The lienholder shall also be liable for any actual expense including a reasonable attorney’s fee incurred by the owner in securing the release of real property by such violation.
(6) For the purposes of this section, “date of satisfaction” means that date of receipt by a holder of a lien on real property of a sum of money in the form of a certified check, cashier’s check, wired transferred funds, or other form of payment satisfactory to the lienholder that is sufficient to pay the principal, interest, and other costs owing on the obligation that is secured by the lien on the property.

KRS 382.365 (2004).

In 2006, after the complaint in the present case was filed, KRS 382.365 was revised concerning, in pertinent part, the written notice aspect of the statute. Specifically, the revised statute provided that the

written notice shall be properly addressed and sent by certified mail or delivered in person to the final lienholder or final assignee as follows:
(a) For a corporation, to an officer at the lienholder’s principal address or to an agent for process located in Kentucky; however, if the corporation is a foreign corporation and has not appointed an agent for process in Kentucky, then to the agent for process in the state of domicile of the corporation^]

KRS 382.365(4)(a). This 2006 version of the statute remains in effect today.

At the time that the facsimile was sent, the statute did not require “written notice” to be sent by certified mail or delivered in person. Flagstar asserts that the 2006 version of KRS 382.365, to the extent that it specifies what constitutes “written notice” and how it should be sent, should be applied retroactively in the present case because the legislature’s intent may be discerned from the fact that the legislature added language to the current version of the statute to specify how written notice should be provided to the lienholder.

Kentucky Revised Statute 446.080(3) provides that “[n]o statute shall be construed to be retroactive, unless expressly so declared.” However, legislation has been applied retroactively, “in the absence of an express declaration that the provision is to be so applied, in those instances where the courts have determined that the provision was remedial or procedural in nature and that retroactive application of the provision was consistent with the legislative intent.” Spurlin v. Adkins, 940 S.W.2d 900, 901 (Ky.1997).

In the present case, the legislature did not specify in the current version of KRS 382.365 that the provisions concerning written notice were to be applied retroactively, and we are not able to discern any legislative intent for those provisions to be so applied. Furthermore, as applied to the present case, the changed requirements concerning -written notice would constitute a substantive change as to what, exactly, “written notice” means. Therefore, we decline to apply the current version of KRS 382.365 retroactively.

Further, because the version of KRS 382.365 in effect at the time that the facsimile was transmitted did not define what constituted “written notice,” only reasonable notice was required to be provided. See Thomson v. Tafel, 309 Ky. 753, 761, 218 S.W.2d 977, 981 (1949). The circuit court held that a facsimile of a letter was insufficient to constitute written notice. However, we are unaware of any reason why a letter informing a lienholder that it had not released a lien, sent by facsimile, could not have constituted “written notice” between a property holder and a lienholder under the version of KRS 382.365 in effect at the time that the facsimile was transmitted in the present case. Courts in the Commonwealth have long held that “[tjypewriting and printing are kinds of ‘writing[J ” and that “a telegram is a writing.” Blackburn v. City of Paducah, 441 S.W.2d 395, 397 (Ky.1969). Thus, it stands to reason that a facsimile, under the circumstances presented here, may also constitute a “writing.” Therefore, the circuit court erred in holding that, in 2004, when the facsimile was transmitted in this case, a facsimile could not constitute written notice under KRS 382.365.

The circuit court also held that the attorney’s signature stamp on the facsimile cast further doubt on whether the notice was sufficient. However, “[a] rubber stamp impression may constitute a signature.” Blackburn, 441 S.W.2d at 397. Flagstar does not argue that the attorney did not sanction the use of his signature stamp on the letter sent by facsimile. Therefore, the circuit court erred in holding that the signature stamp created doubt concerning the sufficiency of the notice. This is a factual issue that the trier of fact should decide.

The court further reasoned that “the Constitutional due process that [Flagstar] was entitled to would not have been met by a facsimile[-]only transmission .... ” However, this Court has previously noted that “courts have held that violations of the Fourth Amendment and the [D]ue [PJrocess [C]lause occur only when state action is involved[.]” Marks v. Commonwealth, 698 S.W.2d 533, 534 (Ky.App.1985). Consequently, because only private parties were involved in the transmission of the facsimile, there could not have been a due process violation when the facsimile was sent to Flagstar. Thus, the circuit court erred in this holding.

The circuit court next stated the mortgage that was not timely released was a mortgage to Tri-County Mortgage, rather than Flagstar, and the Whitley Circuit Court County Clerk’s office still listed TriCounty Mortgage as the mortgage holder of record. Thus, the court reasoned that because Tri-County Mortgage was the original mortgage holder, as well as the one on record, but no notice was provided to Tri-County Mortgage concerning the failure to release the lien, Flagstar was entitled to a directed verdict.

The version of KRS 382.365 that was in effect at the time the facsimile was transmitted stated that a property owner had to give written notice only to the lienholder of its failure to release the lien, to be awarded the penalty sums provided for in that statute. In the affidavit of Debra Armstrong, Flagstar’s Vice President, Ms. Armstrong acknowledged that the lien was held by Flagstar. Thus, Flagstar was the “lienholder” of the lien on the Rileys’ property. Furthermore, because only a lien-holder of property may release a lien, and the lien on the Rileys’ property was ultimately released by Flagstar after the Ri-leys filed the present lawsuit, this further underscores the premise that Flagstar was the lienholder in the present case. Therefore, Tri-County Mortgage was not the lienholder at the time the facsimile was transmitted, and Tri-County Mortgage could not release a lien that it no longer held. Accordingly, the circuit court erred in its finding that Tri-County Mortgage should have been given written notice.

Next, the circuit court noted, but did not explain its reason for so noting, that “when the mortgage was not released, Flagstar Bank still had a valid and active lien on the property based on the re-finance transaction carried out by the [Ri-leys] wherein they borrowed additional monies from Flagstar Bank to pay off Flagstar Bank.” Again, we are uncertain why the circuit court felt compelled to note this, but regardless, KRS 382.365 did not at the time the facsimile was transmitted, nor does it currently, contain an exception to its provisions concerning penalties to be awarded for a lienholder’s failure to release a lien. In other words, the statute did not provide that penalties are unwarranted in the event that the lienholder that failed to release the lien held a subsequent lien on the property. Because the statute provided no such exception, we are not permitted to create one to apply to the present case. Accordingly, to the extent that the circuit court granted a directed verdict on the grounds that Flagstar had another, subsequent, current lien on the property at the time that the facsimile was sent, the circuit court’s reasoning was misguided.

The Rileys next argue that the circuit court erred in granting Flagstar’s motion for a directed verdict. As we previously mentioned, the facsimile of the letter that was transmitted in this case could have constituted written notice under the 2004 version of KRS 382.365, which was in effect at that time, if the facsimile was actually received by Flagstar. Evidence in the form of a transmittal sheet that Darrell Saunders’s fax machine issued to show that the facsimile was successfully sent was introduced at trial. Additionally, Ms. Noell testified that she sent the letter by facsimile to the phone number provided to her by “Edwina” from Flagstar. Evidence was submitted to show that the fax number to which Ms. Noell sent the facsimile was associated with Flagstar, even if it was not associated specifically with Flagstar’s lien release department. Furthermore, evidence was introduced to show that Flagstar attempted to release the lien on the date that Ms. Noell sent the letter by facsimile informing Flagstar of its failure to release the lien.

This evidence, when considered together, was sufficient to allow a jury to infer that Flagstar had received the facsimile and that such constituted written notice of its failure to release the hen. Therefore, the circuit court erred in granting Flags-tar’s directed verdict. This factual determination should have been left for the jury to decide.

We note that the Rileys and Flagstar make arguments for and against, respectively, the application of Kentucky’s Uniform Electronic Transactions Act, KRS 369.101 to KRS 369.120, to this ease. Specifically, the Rileys argue that, pursuant to this Act, a facsimile transmission is valid and enforceable as “written notice.” Flagstar disagrees. Regardless, because we have held, supra, that under the 2004 version of KRS 382.365, a facsimile transmission, if received by the recipient, constituted “written notice,” we decline to address the parties’ arguments concerning the applicability of Kentucky’s Uniform Electronic Transactions Act.

The Rileys also argue that the service of their summons and complaint upon Flagstar in the present case should have constituted “written notice.” However, the Rileys did not raise this issue in the prehearing statement filed with this Court. Thus, because they did not raise this issue in their prehearing statement, and they did not timely move this Court for permission to submit additional issues for “good cause shown,” this issue is not properly before this Court. Sallee v. Sallee, 142 S.W.3d 697, 698 (Ky.App.2004) (citing CR 76.03(4)(h) and (8)) (internal quotation marks removed).

Flagstar argues in its brief on appeal that a property owner must act in good faith by following up on notice sent to a lienholder to ensure that the lien was, in fact, released. This premise is supported by this Court’s decision in Union Planters Bank, N.A., v. Hutson, 210 S.W.3d 163 (Ky.App.2006). However, the determination of whether a party acted in good faith is a question of fact. See Rowan County v. Sloas, 201 S.W.3d 469, 474 (Ky.2006) (discussing Harlow v. Fitzgerald, 457 U.S. 800, 816-18, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). Therefore, this is an issue for a jury to determine in the first instance, not an appellate court.

Accordingly, the order of the Whitley Circuit Court granting Flagstar’s motion for a directed verdict is reversed, and this case is remanded for further proceedings consistent with this opinion.

ALL CONCUR.

      . Kentucky Rules of Civil Procedure.


author: ACREE, Judge:

text:
    Lann D. CARLISLE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2008-CA-001531-MR.
    Court of Appeals of Kentucky.
    July 16, 2010.
    H. Randall Redding, Henderson, KY, for appellant.
    Jack Conway, Attorney General of Kentucky, Michael L. Harned, Assistant Attorney General, Frankfort, KY, for appellee.
    Before ACREE and CLAYTON, Judges; HARRIS, Senior Judge.

      . Senior Judge William R. Harris sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Ken-lucky Constitution and Kentucky Revised Statute 21.580.

   OPINION

ACREE, Judge:

Lann D. Carlisle appeals the Henderson Circuit Court’s denial of his motion to suppress his confession given during a custodial interrogation. Because we find that the police officers involved did not scrupulously honor Carlisle’s invocation of his right to remain silent, we reverse and remand for additional proceedings.

Facts and Procedure

On November 6, 2007, Detective Brian Trimborn confronted Carlisle at his grandmother’s home regarding allegations he had raped his stepdaughter. Carlisle was transported to the police station for interrogation in a police vehicle. In the interrogation room, Detective Trimborn provided Carlisle with a written statement of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The detective ascertained that Carlisle understood his rights. He then proceeded to question Carlisle regarding his stepdaughter’s allegations.

For approximately an hour and a half, Carlisle wholly denied the rape and maintained his innocence despite Detective Trimborn’s insistence that he admit to raping his stepdaughter so he could “help [himjself.”

Because this case turns on the application of the law to the circumstances surrounding Carlisle’s interrogation, it is necessary to set forth much of that interrogation verbatim. We begin at the point Carlisle finally and clearly asserted his right to remain silent, approximately an hour and a half after interrogation began.

Carlisle: Well, Brian, I don’t want to say no more, okay?
Det. Trimborn: Let me talk to my sergeant for a second. Hang tight. I don’t want you to mess yourself up. Just think about it for a few minutes, okay? I’m going to let you sit here and think for a few minutes. I don’t know what to tell you, other than you need to help yourself. You really need to help yourself.
Carlisle: Am I under arrest?
Det. Trimborn: I said no. It’s as clear as I can be, I said no. Sit here for a few minutes[;] let me talk to my sergeant!.] I’ll be right back. Just think about it.
Carlisle: Can I walk outside and smoke a cigarette?
Det. Trimborn: No, you can’t smoke a cigarette. Just hang on tight.

Detective Trimborn then left the room.

Carlisle was alone for approximately six- and-one-half minutes when Officer Bradley Newman entered. Carlisle was apparently acquainted with Officer Newman. He did not give new Miranda warnings to Carlisle at any point in the conversation during which the following exchange occurred:

Off. Newman: What’s up, [Carlisle]?
Carlisle: What ya say, Bradley?
Off. Newman: What are you doing, man?
Carlisle: Oh, I don’t know, man.
Off. Newman: What the hell’s going on?
Carlisle: You a sergeant now?
Off. Newman: No. No. What the hell’s going on, brother?
Carlisle: Well ... I’d rather not say. Of course, you probably already know. Off. Newman: Know a little bit about it.
Carlisle: Bad situation, [Newman], Real bad situation.
Off. Newman: Well, what, what, tell me what, what happened, I mean ... or what it’s really about[.] I’m just hearing hallway talk right now.
Carlisle: My, my daughter said that I raped her.
Off. Newman: How did you supposedly rape her?
Carlisle: I don’t know, I don’t know what she’s saying. That’s just all I know. This detective, [Trimborn], come in here and told me a bunch of stuff, I mean—
Off. Newman: What’d he tell you?
Carlisle: Just told me about what, about hit and miss what, what she said. Now, I don’t, I can’t really remember right now because I’m in a sto-, uh, state of confusion.
Off. Newman: You work today?
Carlisle: No.
Off. Newman: No?
Carlisle: But I’m supposed to go in tomorrow.
Off. Newman: When’d all this sh* * supposedly happen?
Carlisle: Not last, not last night, night before last. The night that I was supposed to have went to work, Sunday night.
Off. Newman: Now, how would, how would you have raped her? I mean, I don’t, I mean, did you hold her down and do something?
Carlisle: Didn’t do nothing.
Off. Newman: Well, they sure got you in a pickle right now. You’re looking at a long time. And you know I ain’t going to bullsh* * you. I mean, you’re looking at a long time, L.D. [Carlisle]. Now, I don’t know what I can do to help you. Carlisle: Am I under arrest, Brad?
Off. Newman: Not yet. No. I’m not saying they’re not going to, I’m not going to say that they’re not going to lock you up, because I don’t know. This ain’t got nothing to do with me. I work street crimes, not this. I’m back here, but I don’t work stuff like this. But I just come back here to see if there was anything I could do to help you. Because I know, brother, that you don’t want to be gone a long time.

At this point, Carlisle asserted his right to consult with an attorney.

Carlisle: I’d rather talk to a lawyer.
Off. Newman: You want to talk to a lawyer?
Carlisle: Yeah.
Off. Newman: So you don’t want to answer any more of his questions or anything?
Carlisle: I’d rather not.
Off. Newman: Well, that’s your right, man. That’s your right. I’ll go get with him and see what he wants to do with you, okay? But if there’s anything you wanted to tell me, I could see what I could do to help you. But if you just want to talk to an attorney, I’ll go ahead and ... have at it. I’m not going to be able to help you now.
Carlisle: Huh?
Off. Newman: I’m not going to be able to help you in any way now, man. I mean, I’ve got a good, you know, I work with these guys.
Carlisle: Just, just, just on somebody’s word they can — ... ?
Off. Newman: Every day, every day, man. Every day. That’s what we do. I mean, that’s where we go[.] [Yjou’ve got somebody that says, so and so said they was going to kill me. Well, guess, what, we gotta do a report on it.
Carlisle: I don’t understand that.
Off. Newman: I don’t understand it half the damn time, but ...
Carlisle: Am I free to go?
Off. Newman: Not until he comes back in here. Like I said, I don’t know what their intentions are, but I might have been able to help you a little bit, but if you’re just, if you don’t want to talk to me, I can’t, I can’t make you talk to me ... [Pause] ... you want me to just go get him? You don’t want me to try to help you?
Carlisle: I really appreciate it, man, bub—
Off. Newman: I tried, man.
Carlisle: What can I say?
Off. Newman: All right.

Officer Newman then left the room.

Soon thereafter, Detective Trimborn and Officer Newman re-entered with paperwork and informed Carlisle he was under arrest. The interrogation continued as follows:

Det. Trimborn: Okay, Lann [Carlisle], I just got off the phone with the prosecutor. You’re under arrest. We’re going to charge you with rape.

Detective Trimborn then addressed Officer Newman, still in Carlisle’s presence.

Det. Trimborn: The prosecutor told me, Brad [Officer Newman], that when I get done with this paperwork, if he ain’t said a word to try to help himself, then there will be no deals cut whatsoever. He will give him the maximum sentence in prison as a rapist. Basically, he’s calling Lann’s [Carlisle’s] bluff.
Carlisle: What? So I will be under arrest, right?
Det. Trimborn: You are under arrest. What’s your middle initial?
Carlisle: D, for Darrell.
[Trimborn then proceeds to fill out paperwork.]
Det. Trimborn: What is rape, third?
Carlisle: Can we step outside for a few minutes?
Det. Trimborn: Who’s that?
Carlisle: Can me and you step outside for a few minutes?

Detective Trimborn agreed to Carlisle’s request and the two left the room. The conversation that next took place was not recorded; however, the circuit court concluded Carlisle confessed to committing the rape and that Trimborn neither questioned nor threatened the suspect. Upon reentering the police station, Carlisle confessed to raping his stepdaughter and gave a fairly detailed description of the offense.

Carlisle was indicted on a charge of first-degree rape. He moved to suppress the confession, arguing it had been taken in violation of his right to remain silent and his right to have an attorney present. Following a hearing, the circuit judge denied his motion, and Carlisle entered an Alford, plea conditioned on his appeal of the denial of his motion to suppress the confession.

Carlisle now argues that the circuit court erred when it concluded his confession was not taken improperly. We agree with Carlisle that the officers denied him the right to remain silent as guaranteed by the Fifth and Fourteenth Amendments to the U.S. Constitution and therefore need not address the other basis of his appeal that he was denied access to legal counsel.

Standard of review

In Miranda v. Arizona, supra, the Supreme Court of the United States ruled criminal suspects must be informed of their rights to remain silent and to have an attorney present before a custodial interrogation. Miranda, 384 U.S. at 444-45, 86 S.Ct. 1602. This rule was necessary because of the inherently coercive nature of custodial interrogation. See id., 448-55, 86 S.Ct. 1602. Statements taken in violation of these principles are inadmissible at a criminal trial. Id. at 444-45, 86 S.Ct. 1602.

Our review of a circuit court’s denial of a motion to suppress is ordinarily a two-step process. Cummings v. Commonwealth, 226 S.W.3d 62, 65 (Ky.2007) (citing Welch v. Commonwealth, 149 S.W.3d 407 (Ky.2004)). Pursuant to this process, “[t]he factual findings by the trial court are reviewed under a clearly erroneous standard, and the application of the law to those facts is conducted under de novo review.” Id. Because Carlisle does not dispute the circuit court’s findings of fact on appeal, we take them as true and proceed to de novo review of the court’s conclusion Carlisle’s right to remain silent was not •violated.

Right to remain silent

Once a suspect in custody has invoked his right to remain silent, the interrogation must cease. Edwards v. Arizona, 451 U.S. 477, 482, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) (citing Miranda, 384 U.S. at 479, 86 S.Ct. 1602). However, statements made after such an invocation are admissible provided the authorities have “scrupulously honored” the defendant’s right to remain silent. Michigan v. Mosley, 423 U.S. 96, 104, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975) (citing Miranda, 384 U.S. at 474, 86 S.Ct. 1602).

The factors identified in Michigan v. Mosley which determine whether interrogating officers have, in fact, scrupulously honored a suspect’s rights are: (1) whether the defendant was advised of his Miranda rights prior to the initial interrogation; (2) whether the detective conducting the interrogation “immediately ceased questioning [the suspect] after he invoked his right to remain silent and did not resume questioning or try to persuade [him] to reconsider his decision”; (3) the differences between the circumstances of the original and any subsequent interrogation, e.g., whether the later questioning was about a different offense, after significant time had passed, in a different location, and/or conducted by a different officer; and (4) whether the suspect was re-read the Miranda warnings prior to the subsequent interrogation. Mills v. Commonwealth, 996 S.W.2d 473, 482-83 (Ky.1999). Application of these factors to the case sub judice reveals that Carlisle’s right to remain silent was not scrupulously honored.

The officers’ questioning of Car-lisle can be viewed as three separate interrogations or three phases of the same interrogation. The first occurred when Detective Trimborn escorted Carlisle to the police station and initiated the questioning. The detective properly issued Miranda warnings prior to asking the suspect any questions and ensured he understood them. However, although Detective Trimborn asked no further questions after Carlisle invoked his right to remain silent (ie., when he said, “I don’t want to say no more[.]”), the detective continued his attempts at persuading Car-lisle to confess. By telling Carlisle, “I don’t want you to mess yourself up[,]” and encouraging him to “think about” his decision to remain silent because he needed to “help [him]self,” Detective Trimborn was continuing his effort to have Carlisle waive the right to remain silent, or to confess in spite of it. This was improper.

Carlisle was next interviewed approximately six-and-one-half minutes later, by Officer Newman.

The lapse of time is clearly relevant to the Mosley inquiry. See id. at 102, 96 S.Ct. at 826 (“To permit the continuation of custodial interrogation after a momentary cessation would clearly frustrate the purposes of Miranda by allowing repeated rounds of questioning to undermine the will of the person being questioned.”). However, “the constitutionality of a subsequent police interview depends not on its subject matter, but rather on whether the police in conducting the interview sought to undermine the suspect’s resolve to remain silent.” United States v. Schwensow, 151 F.3d 650, 659 (7th Cir.1998), cert. denied, 525 U.S. 1059, 119 S.Ct. 626, 142 L.Ed.2d 565 (1998), citing cases from other circuits holding the same.

Mills at 483. In Mills, a lapse of ten to twenty minutes between the defendant’s statement that he wished to remain silent and a subsequent interrogation caused the Kentucky Supreme Court concern. Id. A shorter lapse of time is even more analogous to that “momentary cessation” of interrogation that Mills determined frustrated the purposes of Miranda. Id.

This second interview is also independently a cause for concern because Officer Newman actually began questioning Car-lisle again about the same offense in the same location, without re-informing him of his Miranda rights. Newman also tried to convince Carlisle to waive his right to remain silent, suggesting Newman could offer help only if Carlisle did so. These factors clearly weigh in favor of finding “the police ... sought to undermine the suspect’s resolve to remain silent.” Id. (quoting United States v. Schwensow, 151 F.3d 650, 659 (7th Cir.1998), cert denied, 525 U.S. 1059, 119 S.Ct. 626, 142 L.Ed.2d 565 (1998)).

Carlisle’s final encounter with police occurred when Detective Trimborn and Officer Newman returned to the interrogation room to complete paperwork to formalize Carlisle’s arrest. The conversation between the police officers conveyed the prosecutor’s position that if Carlisle “ain’t said a word to try to help himself, then there will be no deals cut whatsoever.” It was certainly meant for Carlisle’s hearing and clearly designed to put pressure on the suspect to relinquish his right to remain silent. The detective’s comment was effectively an ultimatum: either Carlisle would confess before Detective Trimborn finished the paperwork, or the prosecutor would “give him the maximum sentence in prison as a rapist.” Additionally, and again, Detective Trimborn did not remind Carlisle of his right to remain silent upon re-entering the interrogation room, when stepping outside to permit Carlisle to smoke a cigarette, or when later recording Carlisle’s confession following the smoke break.

Given the officers’ repeated failure to comply with the requirements of Miranda and Mosley, it is clear they engaged in a pattern of behavior designed to deprive Carlisle of his right to remain silent. We conclude that this is a case “where; the police failed to honor a decision of a person in custody to cut off questioning ... by persisting in repeated efforts to wear down his resistance and make him change his mind.” Mosley, 423 U.S. at 105-06, 96 S.Ct. 321. The circuit court’s ruling to the contrary must be reversed.

Conclusion

Carlisle’s confession was taken in violation of his right to remain silent during a custodial interrogation. We therefore reverse the circuit court’s order denying Carlisle’s- motion to suppress the confession given to Detective Trimborn, vacate the defendant’s guilty plea and sentence, and remand for additional proceedings consistent with this opinion.

ALL CONCUR.

      . There has been no assertion on appeal that the interrogation was not custodial; we therefore need not recite all the facts which lead us to believe it was.

      . Detective Trimborn testified at the suppression hearing that he asked Carlisle no questions outside; instead, he claims Carlisle simply stated, "Brian, you're right. I did it.” Subsequently, the detective says he advised Carlisle that while Carlisle was free to make a statement, Trimborn could not ask questions because Carlisle had invoked his right to have an attorney present. Trimborn did not claim to re-state the full Miranda warning. The detective testified Carlisle then proceeded to give a detailed account of the rape.
      Carlisle, on the other hand, testified that once outside, Detective Trimborn continued attempting to persuade him to confess and informed him he would be charged with a lesser offense if he did so.
      The circuit court chose to believe the detective's account, and since Carlisle does not argue that the court’s findings of fact were erroneous, we continue our analysis taking the circuit court's factual findings as true.

      . Although there has been disagreement about whether these three encounters between Carlisle and police officers each constituted an interrogation, we find they are all significant for purposes of analyzing whether the officers scrupulously honored Carlisle’s invocation of the right to remain silent. Whether they were technically interrogations is not necessarily relevant to this analysis.