source: Caselaw Access Project

author: TAYLOR, Judge.

license: Public Domain

text:
    KENTUCKY RETIREMENT SYSTEMS, Appellant, v. Debra FRYREAR, Appellee.
    No. 2008-CA-001300-MR.
    Court of Appeals of Kentucky.
    Sept. 11, 2009.
    As Corrected Dec. 4, 2009.
    Discretionary Review Denied by Supreme Court Aug. 18, 2010.

      Katherine Rupinen, Frankfort, KY, for appellant.
    Jonathan G. Hieneman, Campbellsville, KY, for appellee.
    Before CLAYTON and TAYLOR, Judges; KNOPF, Senior Judge.

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

   OPINION

TAYLOR, Judge.

Kentucky Retirement Systems (Retirement Systems) brings this appeal from a June 11, 2008, Opinion and Order of the Franklin Circuit Court reversing a final order of the Board of Trustees of the Kentucky Retirement Systems (Board of Trustees) which voided the retirement benefits of Debra Fryrear. This appeal involves the circuit court’s application of the doctrine of equitable estoppel to prevent the Retirement Systems from utilizing Kentucky Revised Statutes (KRS) 61.637 to void Fryrear’s retirement benefits. We affirm.

Fryrear was employed by the Camp-bellsville Independent School District (District) for some twenty-five years. During her employment with the District, Fryrear supplemented her income through temporary employment with the Taylor Circuit Clerk’s Office (Clerk’s Office). In June 2005, Fryrear was offered a full-time position as a deputy clerk with the Clerk’s Office. Fryrear decided she would retire from the District and would accept the position with the Clerk’s Office. As Fryr-ear was unfamiliar with the technicalities surrounding retirement from her position with the District and acceptance of a position with the Clerk’s Office, she turned to the Retirement Systems for assistance. The Retirement Systems is statutorily charged with administering both the Kentucky Employees Retirement System (KERS) and the County Employees Retirement System (CERS).

At the Retirement Systems’ office in Frankfort on June 21, 2005, Fryrear met with a Retirement Systems’ benefits counselor, Jennifer Devine. At them meeting, Fryrear was clearly confused concerning her membership in either KERS or CERS as an employee of the District and concerning her future membership in either KERS or CERS as an employee of the Clerk’s Office. Fryrear was also admittedly confused as to the relationship between the Clerk’s Office and the Administrative Office of the Courts (AOC); Fryrear even related to Counselor Devine the erroneous belief that the Clerk’s Office was “part of’ AOC.

As for Counselor Devine’s understanding of these issues, we only have Fryrear’s testimony as Devine was no longer employed by the Retirement Systems at the time of the administrative hearing and did not testify. In any event, Fryrear stated that Counselor Devine affirmatively represented to Fryrear that through her employment with the District she was a member of CERS and that through her new employment with the Clerk’s Office she would become a member of KERS. As Fryrear believed she was moving from membership in CERS as an employee of the District to membership in KERS with her new position in the Clerk’s Office, Fryrear completed the appropriate documentation and retired from her employment with the District on June 30, 2005. Upon Fryrear’s retirement with the District, she immediately began receiving retirement benefits from CERS. On July 11, 2005, Fryrear began full-time employment as a deputy clerk with the Clerk’s Office.

Subsequently, by letter dated September 23, 2005, the Retirement Systems informed Fryrear that her retirement benefits were “voided” for violation of KRS 61.637(10). Specifically, the Retirement Systems advised:

Your retirement account has been voided in accordance with Kentucky Revised Statutes 61.637(10) due to your reemployment. “If a member is receiving a retirement allowance, and is employed within one (1) month of the member’s initial retirement date in a position that is required to participate in the same retirement system from which the member retired, the member’s retirement shall be voided and the member shall repay to the retirement system all benefits received.” Our records indicate you were terminated from Camp-bellsville Independent Schools (CERS) on June 30, 2005 and you were hired with Taylor County Circuit Clerk’s (CERS) with a start date of July 11, 2005.

We have stopped the electronic transfer of funds for your October 2005 benefit. A check in the amount of $3,320.33, which represents the net amounts you received for July, August and September 2005, is due upon receipt of this letter. Please make check payable to the Kentucky State Treasurer and mail it to us in the enclosed envelope.

According to the letter, Fryrear’s retirement benefits were “voided” because she began employment with the Clerk’s Office (which actually participated with CERS) within one month of retiring from the District (which also participated with CERS) in violation of KRS 61.637(10). Under KRS 61.637(10), a member receiving retirement benefits from CERS must wait at least one month before starting employment with an employer who also participates in CERS. As Fryrear only waited some eleven days after retiring from the District (which participated with CERS) to begin employment with the Clerk’s Office (which also participated with CERS), the Retirement Systems voided her retirement benefits under KRS 61.637(10).

Following receipt of the letter, Fryrear requested a hearing before the Board of Trustees to challenge the voiding of her retirement benefits. The matter initially went before a hearing officer. At the evi-dentiary hearing, Fryrear pointed out that on June 21, 2005, she met with Counselor Devine concerning her retirement from the District. Fryrear testified that “she was misled by the Retirement Systems’ [Counselor [Devine], who had advised ... that, following her retirement, she could immediately move to employment with the Taylor Circuit Clerk’s Office with no adverse affects on her retirement.” Fryrear stated she would have waited one month after retiring from the District before beginning her new position with the Clerk’s Office if she had been informed that both employers participated in the same retirement system (CERS). As previously pointed out, Counselor Devine was not employed by the Retirement Systems at the time of the hearing and did not testify.

Following the hearing, the hearing officer rendered a report and recommended order on June 22, 2006. Therein, the hearing officer concluded that the Retirement Systems properly voided Fryrear’s benefits. Also, the officer noted:

The claim of equitable estoppel has been preserved by [Fryrear]. However, based on this record, it does not appear that an exception to the limited application of equitable estoppel against public agencies could be overcome.

Thereafter, on August 21, 2006, the Board of Trustees rendered a final order which wholly adopted the hearing officer’s recommended order voiding Fryrear’s retirement benefits.

Fryrear subsequently filed a petition for judicial review of the Board of Trustees’ final order in the Franklin Circuit Court. KRS 18A.100. In a June 11, 2008, opinion and order, the circuit court reversed the Board of Trustees’ final order that voided Fryrear’s retirement benefits. In so doing, the circuit court relied upon the doctrine of equitable estoppel to prevent the Retirement Systems from voiding Fryr-ear’s benefits. Being dissatisfied with the circuit court’s decision, the Retirement Systems brings this appeal.

The Retirement Systems contends that the circuit court erroneously reversed the Board of Trustees’ final' order that voided Fryrear’s retirement benefits. In particular, the Retirement Systems claims that the circuit court’s application of equitable estoppel against the Retirement Systems was improper. We disagree.

Judicial review of an administrative agency’s decision is concerned with arbitrariness. Vance v. Ky. Office of Ins., 240 S.W.3d 675 (Ky.App.2007). Arbitrariness has many facets; among such facets are whether the administrative agency’s decision is supported by a sufficient quantum of evidence and whether the agency correctly applied the law. Baesler v. Lexington-Fayette Urban County Gov’t, 237 S.W.3d 209 (Ky.App.2007); Competitive Auto Ramp Servs., Inc. v. Ky. Unemployment Ins. Comm’n, 222 S.W.3d 249 (Ky. App.2007).

Resolution of this appeal revolves around application of the doctrine of equitable estoppel. In this Commonwealth, it has been recognized that equitable estop-pel is generally applicable where a party relies in good faith and to his detriment upon representations of another party. Rice v. Rice, 243 Ky. 837, 50 S.W.2d 26 (Ky.1932). Recently, our Supreme Court outlined the elements necessary to prove a claim of equitable estoppel:

The essential elements of equitable es-toppel are[:] (1) conduct which amounts to a false representation or concealment of material facts, or, at least, which is calculated to convey the impression that the facts are otherwise than, and inconsistent with, those which the party subsequently attempts to assert; (2) the intention, or at least the expectation, that such conduct shall be acted upon by, or influence, the other party or other persons; and (3) knowledge, actual or constructive, of the real facts. And, broadly speaking, as related to the party claiming the estoppel, the essential elements are (1) lack of knowledge and of the means of knowledge of the truth as to the facts in question; (2) reliance, in good faith, upon the conduct or statements of the party to be estopped; and (3) action or inaction based thereon of such a character as to change the position or status of the party claiming the estoppel, to his injury, detriment, or prejudice.

Weiand v. Bd. of Trs. of Ky. Ret. Sys., 25 S.W.3d 88, 91 (Ky.2000) (quoting Elec. and Water Plant Bd. of City of Frankfort v. Suburban Acres Dev., Inc., 513 S.W.2d 489, 491 (Ky.1974)). Also, equitable estop-pel may only be invoked against a governmental entity “in unique circumstances where the court finds exceptional and extraordinary equities involved.” Weiand, 25 S.W.3d at 91. Regardless of whether the prospective estopped party is a governmental entity or a private citizen, “[w]hat must not be overlooked ... is that estoppel is a doctrine of equity, to be invoked when equity demands it.” Smith v. Ash, 448 S.W.2d 51, 53 (Ky.1969).

In the case sub judice, the Board of Trustees erroneously believed that it lacked the authority to pass upon a claim of equitable estoppel. See Bd. of Trs., Ky. Ret. Sys. v. Grant, 257 S.W.3d 591 (Ky.App.2008)(holding that the Board of Trustees was authorized and required to determine a claim of equitable estoppel). Even though it perceived a lack of such authority, the Board of Trustees, nevertheless, engaged in an analysis of Fryrear’s equitable estoppel claim and ultimately determined that her claim was without merit. Having reviewed the final order, we think the Board of Trustees’ consideration of the claim essentially fulfilled its responsibility as an administrative agency to determine issues of fact and to pass upon the merits of equitable estoppel. See Grant, 257 5.W.3d 591. Our review proceeds accordingly.

In the final order, the Board of Trustees concluded that Fryrear was not entitled to relief under the doctrine of equitable estoppel. The Board’s conclusion was premised primarily upon two alternative bases: (1) the evidence did not support a finding that Fryrear was “misled” by Counselor Devine; and (2) even if Fryrear were misled by Counselor Devine, it was the result of a mutual “misunderstanding.” We address each basis separately.

At the administrative hearing, Fryrear was the sole witness to testify. It was Fryrear’s uncontradicted testimony that Counselor Devine affirmatively represented to Fryrear that through her employment with the District she was a member of CERS and that through her new employment with the Clerk’s Office she would become a member of KERS. Fryrear further testified that Counselor Devine advised Fryrear that she could “immediately move to employment with the Taylor Circuit Clerk’s Office with no adverse affects on her retirement.”

Apart from Fryrear’s testimony, the only other evidence consisted of documents entered into the administrative record as exhibits by both parties. These exhibits, however, did not directly contradict Fryr-ear’s testimony concerning the advice given by Counselor Devine at their June 21, 2005, meeting. Considering the evidentia-ry record before us, it must be recognized that this is a unique case where the evidence compels a finding that Counselor Devine advised that Fryrear could “immediately move to employment with the Taylor Circuit Clerk’s Office with no adverse effects on her retirement.” See Bourbon County Bd. of Adjustment v. Currans, 873 S.W.2d 836 (Ky.App.1994). Thus, the Board of Trustees’ finding that the evidence did not support a finding that Fryr-ear was misled by Counselor Devine was clearly erroneous. We now address the Board of Trustees’ second basis for denying Fryrear relief under the doctrine of equitable estoppel — even if Fryrear were misled by Counselor Devine, it was the result of a “mutual misunderstanding.”

Upon the second basis supporting its decision, the Board of Trustees specifically found that “[cjlearly, this case was in a state of confusion during the meeting of June 21, 2005” that took place between Fryrear and Counselor Devine. In particular, the Board of Trustees was troubled by Fryrear’s apparent quandary concerning whether the Court Clerk’s Office was affiliated with the Administrative Office of the Courts:

While Ms. Fryrear contends that she was misled, it is clear from the testimony that she made reference to the Taylor Circuit Clerk’s Office, and she also made reference to AOC. Furthermore, she even indicated on a form signed on June 30, 2005[sic] that the Taylor Circuit Clerk’s Office was a state agency.

It is uncontroverted that Fryrear was admittedly confused as to whether the Clerk’s Office was part of the AOC and/or a state agency. Moreover, it is clear that Fryrear possessed little independent knowledge concerning the myriad complexities surrounding entitlement to retirement benefits under either CERS or KERS. In fact, it is Fryrear’s undisputed testimony that she was unsure whether she was a member of CERS or KERS as an employee of the District or as an employee of the Clerk’s Office. And, while Fryrear was confused upon whether the Clerk’s Office was part of AOC or some other state agency, she asserted very clearly that her new position was ultimately with the Clerk’s Office.

Every year in this Commonwealth, state, county, and city employees retire as members of CERS and KERS. Because of the immense intricacies associated with both retirement systems, members must navigate an often abstruse and baffling course to obtain retirement benefits. To assist members with benefits and to manage the retirement funds of CERS and KERS, the General Assembly has provided for the Kentucky Retirement Systems. And, the General Assembly has specifically imposed particular “duties” upon employees of the Retirement Systems through enactment of KRS 61.650(l)(c):

(1) (c) A trustee, officer, employee, or other fiduciary shall discharge duties with respect to the retirement system:
1. Solely in the interest of the members and beneficiaries;
2. For the exclusive purpose of providing benefits to members and beneficiaries and paying reasonable expenses of administering the system;
3. With the care, skill, and caution under the circumstances then prevailing that a prudent person acting in a like capacity and familiar with those matters would use in the conduct of an activity of like character and purpose;
4. Impartially, taking into account any differing interests of members and beneficiaries;
5. Incurring any costs that are appropriate and reasonable; and
6. In accordance with a good-faith interpretation of the law governing the retirement system.

Of particular interest herein is KRS 61.650(l)(c)(3). It imposes upon every employee within the Retirement Systems the duty of utilizing the “care, skill, and caution” of a “prudent person” in like circumstances and acting in like capacity.

According to the Board of Trustees in its final order, there existed a “mutual misunderstanding” and a “state of confusion” during the meeting between Fryrear and Counselor Devine. Although Fryrear reported to Counselor Devine that her new employment was with the Clerk’s Office, Fryrear also erroneously told Counselor Devine that the Clerk’s Office was a part of AOC. Counselor Devine allegedly opined that Fryrear’s new employment with the Clerk’s Office was under KERS and not CERS. As stated by the Board of Trustees, “the fact of the matter is that, if there was any misunderstanding or misrepresentation, it was a combined effort by both [Fryrear] and [Counselor Devine].”

The Board of Trustees, however, ignores KRS 61.650(l)(c)(3) and concomitantly disregards that Fryrear and Counselor De-vine were not in pari delicto. Fryrear was a lay person and unfamiliar with the technicalities surrounding retirement benefits. Conversely, Counselor Devine was statutorily required to perform her duties with the care, skill, and caution of a prudent person acting in like capacity under similar circumstances and was held out as a professional counselor possessing the aptitude and knowledge necessary to navigate the statutory maze of entitlement to retirement benefits. The distinction is pivotal. While Fryrear was certainly confused upon whether the Clerk’s Office was part of AOC and whether employees of the Clerk’s Office participated in KERS or CERS, a prudent counselor employed by the Retirement Systems should have certainly possessed such knowledge.

Consequently, it was error for the Board of Trustees to reject Fryrear’s claim of equitable estoppel. Rather, we conclude that Fryrear was entitled to the remedy of equitable estoppel as exceptional equities are certainly present and, thus, the Retirement Systems should be estopped from voiding Fryrear’s retirement benefits. In so concluding, we adopt the circuit court’s erudite analysis of equitable estoppel to the particular facts of this case:

It is clear to the Court that [Fryrear] has met all the necessary elements for equitable estoppel to apply. First, there was obviously a representation made by [the Retirement Systems] to [Fryrear] that she needed not wait a full month before accepting a position with the Taylor Circuit Clerk’s Office. This is evidenced by the handout received by [Fryrear], which had an asterisk next to the paragraph noting that a retiree could immediately return to work for an agency that was a member of a different retirement system[.] Although [Counselor] Devine was unable to testify in the hearing, it is obvious from the facts that there was some confusion regarding the retirement system of which the Circuit Clerk’s Office was a memberf.] The record establishes that [Fryrear] sought out consultation with the Retirement Systems in order to receive some guidance in terms of new employment and that the Retirement Systems made a representation to her in this respect[.] Whether the Circuit Clerk’s Office was a member of CERS or KERS was a material fact because that fact determined whether [Fryrear] was required to wait a month before returning to work[.]
Second, it is clear that the party to be estopped was aware of the facts. If anyone is in a position to know which system the Circuit Clerk’s Office is a member of, it is the Retirement Systems. The fact that [Counselor] Devine was mistaken, and did not intentionally mislead [Fryrear], is immaterial because it is the responsibility of the Retirement Systems to administer retirement programs, and it must be held accountable when it errs. [Fryrear] sought out advice on her reemployment after retiring, and [the Retirement Systems] is charged with providing accurate information to prospective retirees.
Next, the retirement systems membership of the Circuit Clerk’s Office was unknown to [Fryrear]. This is at least part of the reason it was necessary for her to meet with [the Retirement Systems] for a retirement consultation.
In addition, the Retirement Systems acted with the intention that its representation would be relied upon. [The Retirement Systems] routinely offers retirement advice to prospective retirees, and thus is aware that the retirees usually have little knowledge of the organization of the Retirement Systems. Thus, when [the Retirement Systems] gives retirement advice, it can expect that the participant will act based on its assertions.
Finally, [Fryrear] in this action did in fact rely to her detriment on the information she received from [the Retirement Systems], Had [Fryrear] been given the correct information, namely that the Taylor Circuit Clerk’s Office was a CERS member, she could have waited the requisite one month before accepting employment there. However, [Fryrear] relied on statements from [Counselor] Devine and returned to work before the one month waiting period had expired. As a consequence, [Fryrear] not only lost her entire retirement, but she was actually billed for the retirement benefits that had been paid to her.
While the Court recognizes that [the Retirement Systems] did not intentionally deceive the [Fryrear], it is troubled by the consequences [Fryrear] has been forced to endure because of [the Retirement Systems] mistake. The Retirement Systems’ makes much of the fact that [Fryrear] used the terms Circuit Clerk’s Office and AOC interchangeably. The Court cannot agree that this excuses the mistake, as it is the duty of [the Retirement Systems] to make sure that it gives retirees accurate information regarding their retirement, as this information is crucial to those retirees in planning for their future.
Because all the elements of equitable estoppel have been met, the Court must estop the Kentucky Retirement Systems from voiding [Fryrear’s] retirement benefits ....

In sum, we hold that the circuit court properly reversed the Board of Trustees’ final order and correctly invoked the doctrine of equitable estoppel against the Retirement Systems to prevent it from voiding Fryrear’s retirement benefits. We do so neither capriciously nor cavalierly. However, in light of the exceptional nature of the facts presented, equity demands that Fryrear be afforded judicial relief.

For the foregoing reasons, the Opinion and Order of the Franklin Circuit Court is affirmed.

ALL CONCUR.

      . Pursuant to KRS 61.645, the Board of Trustees of the Kentucky Retirement Systems is statutorily obligated to administer the Kentucky Employees Retirement Systems (KERS), the County Employees Retirement Systems (CERS), and the State Police Retirement System.

      . KRS 61.637 was amended effective June 27, 2008. Relevant to this appeal is the version of KRS 61.637 in effect in 2005. Thus, this opinion will reference the prior version of KRS 61.637.

      . Although irrelevant herein, KRS 61.637(10) also requires a member, who is receiving retirement benefits from KERS, to wait one month before starting employment with an employer who also participates in KERS.

      . Upon this issue, the Board of Trustees of the Kentucky Retirement Systems specifically held:

        The Hearing Officer will note that counsel for the [Retirement Systems] is correct that the theory of equitable estoppel is not something that can be ruled upon by an administrative hearing officer. It is a court issue.

      . We specifically point out Exhibit 14. Exhibit 14 consisted of "electronic folder comments” prepared by various employees of the Kentucky Retirement Systems. Of particular interest is a September 25, 2005, comment prepared by an employee of the Retirement Systems named "S. Miller.” The comment reflected that Miller spoke with Counselor Devine regarding her June 21, 2005, meeting with Fiyrear. According to Miller's comment, Counselor Devine stated she could not "recall” anything specific about the meeting with Fryrear. Counselor Devine reflected that she would normally make a folder comment concerning a member's prospective reemployment after retirement. But, Counselor Devine also acknowledged that no such folder comment existed in Fryrear’s case. Most importantly, Counselor Devine positively stated that she possessed no independent recollection of the meeting or of her conversation with Fryrear.

      . If the Taylor Circuit Clerk's Office were a state agency or under the Administrative Office of the Courts, the parties apparently agree that its employees would be covered by KERS and not CERS. Thus, the provisions of KRS 61.637 would be inapplicable, and Debra Fryrear’s retirement benefits would not have been "voided.”


author: CAPERTON, Judge.

text:
    James CAMPBELL, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2008-CA-001881-MR.
    Court of Appeals of Kentucky.
    Oct. 30, 2009.
    Rehearing Denied Dec. 17, 2009.
    Discretionary Review Denied by Supreme Court Aug. 18, 2010.

      James K. Campbell, Lexington, KY, pro se.
    Jack Conway, Attorney General of Kentucky, Joshua D. Farley, Assistant Attorney General, Frankfort, KY, for appellee.
    Before CAPERTON, DIXON and TAYLOR, Judges.
   OPINION

CAPERTON, Judge.

James Campbell appeals the denial by the Fayette Circuit Court of his Kentucky Rules of Civil Procedure (CR) 60.02 motion to correct his sentence in light of the recent Kentucky Supreme Court opinion of Peyton v. Commonwealth, 253 S.W.3d 504 (Ky.2008). Campbell argues that he was entitled to relief and an evidentiary hearing under CR 60.02 as his sentence is now in error because the trial court followed the Devore interpretation of KRS 533.060(2), now overruled by Peyton. He also argues that the trial court wrongfully denied his motion for additional findings of fact and conclusions of law under CR 52.04, filed after the trial court overruled his current CR 60.02 motion. The Commonwealth disagrees. After a review of the parties’ arguments, the record, and the applicable law, we find no error in the denial of either Campbell’s CR 60.02 motion nor his CR 52.04 motion by the Fay-ette Circuit Court and, accordingly, we affirm.

Campbell was convicted of third-degree burglary and theft by a jury over twenty years ago. While the jury recommended Campbell be sentenced to three years on each count, Campbell was found to be a persistent felony offender and each sentence was enhanced to fifteen years. At Campbell’s final sentencing, the Commonwealth informed the trial court that Campbell was a parolee and as such the sentences had to run consecutively pursuant to Devore and its interpretations of KRS 533.060 and KRS 532.110. Campbell’s sentences were then set consecutively for a total of thirty years.

Campbell’s conviction and his sentence were affirmed on direct appeal. Thereafter, Campbell filed numerous post-conviction motions similar to his current CR 60.02 motion, all of which were denied by the trial court. Those that were appealed were affirmed. When Campbell presented the trial court with his current CR 60.02 motion, the trial court stated that it was overruling this motion for the same reasons as set out in its prior orders denying Campbell’s multiple similar post-conviction motions. Campbell then moved the trial court for findings of fact and conclusions of law under CR 52.04, which the trial court overruled. It is from the denial of these motions that Campbell now appeals.

On appeal Campbell makes three arguments. First, that the trial court abused its discretion when the court summarily overruled his current CR 60.02(f) motion because his sentence is now contrary to the law in Peyton. Second, that Campbell was entitled to an evidentiary hearing on his latest CR 60.02(f) motion. Third, that the trial court abused its discretion when it failed to enter findings of fact and conclusions of law pursuant to CR 52.04 upon Campbell’s written request after the denial of his current CR 60.02(f) motion.

In contrast, the Commonwealth argues that the trial court did not abuse its discretion in overruling the current CR 60.02 motion for six reasons. First, Campbell’s claim is not properly within the purview of the present CR 60.02 motion, as relief under CR 60.02 is an extraordinary remedy and Campbell’s claimed errors do not merit relief. Second, the current motion relitigates issues that have been previously raised on direct appeal and in prior post-conviction motions. Third, the motion falls outside the time parameters of CR 60.02, as it was filed over twenty years after Campbell’s conviction became final. Fourth, even if the current motion was timely filed, it would not entitle him to relief, as Campbell is bound by the law of the case doctrine from the litigation of his prior appeals and motions. Fifth, retroactive application was not addressed by the Kentucky Supreme Court in Peyton. Sixth, the trial court stated that it was overruling the current motion because of the reasons set forth in its prior orders. Nothing more was required and as such the trial court did not err.

Campbell responds to the Commonwealth’s arguments and claims that he must reraise the issues presented in the case sub judice, as he has no other avenue in which to pursue the sentencing error. Campbell further argues that while his motion was filed over twenty years after his conviction, it was timely filed as the Kentucky Supreme Court has now corrected its mistaken interpretation and that if it did not desire a retroactive application of Peyton, the Court would have said so.

In light of the aforementioned arguments, we now turn to our established jurisprudence. We review the denial of a CR 60.02 motion under an abuse-of-discretion standard. White v. Commonwealth, 32 S.W.3d 83, 86 (Ky.App.2000); Brown v. Commonwealth, 932 S.W.2d 359, 361 (Ky. 1996). The test for abuse of discretion is whether the trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles. Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.1999) (citing 5 Am. Jur. 2d Appellate Review § 695 (1995)). Therefore, we will affirm the lower court’s decision unless there is a showing of some “flagrant miscarriage of justice.” Gross v. Commonwealth, 648 S.W.2d 853, 858 (Ky.1983).

Campbell seeks relief on appeal pursuant to CR 60.02(f). Relief may be granted under CR 60.02(f) for any reason of an extraordinary nature justifying relief. A CR 60.02(f) motion must be made within a reasonable time. See CR 60.02 and Gross at 858. An evidentiary hearing, is not required to assess the reasonable time restriction inherent in CR 60.02 motions as such is left to the discretion of the Court. Id.

The burden of proof falls squarely on the movant to “affirmatively allege facts which, if true, justify vacating the judgment and further allege special circumstances that justify CR 60.02 relief.” McQueen v. Commonwealth, 948 S.W.2d 415, 416 (Ky.1997) citing Gross at 856. To justify relief, the movant must specifically present facts which render the “original trial tantamount to none at all[.]” Brown at 361.

Given this jurisprudence, we turn to the arguments of the parties. In the case sub judice Campbell’s first argument is conclusive of this appeal. Accordingly, we give Campbell’s second and third arguments only brief consideration.

Campbell’s first argument is that Peyton should be applied retroactively. We have concluded that Peyton, as decided by our Supreme Court, was not intended to be applied retroactively.

Recently, our Kentucky Supreme Court discussed the retroactive application of Martin v. Commonwealth, 207 S.W.3d 1 (Ky.2006), in Leonard v. Commonwealth, 279 S.W.3d 151 (Ky.2009).

In Leonard, the Court concluded that the new procedural rule applicable to Kentucky Rules of Criminal Procedure (RCr) 11.42 proceedings announced in Martin could not be applied retroactively to a collateral attack on a judgment that was final when Martin was decided. Leonard is instructive in deciding the case sub judi-ce. Like Campbell, Leonard had previously appealed his conviction and had previously been denied post-conviction relief many years before a subsequent court decision changing the interpretation of the law. Campbell is now, as was Leonard then, seeking to “avoid the general rule against retroactive application of a decision.” Leonard at 161.

Our Supreme Court stated in Leonard at 161-162, that:

Appellant claims that this Court’s own procedural rules allow him to avoid the general rule against retroactive application of a decision. He first argues that the purpose of CR 60.02, under which the motion giving rise to this appeal was filed, is to allow a court to correct a mistake. Thus, he claims barring retroactive application would undermine the purpose and language of the rule. This is incorrect. As Appellant correctly notes, CR 60.02 replaced the common law writ of coram nobis. That writ, however, was aimed at correcting factual errors, not legal errors. Barnett v. Commonwealth, 979 S.W.2d 98 (Ky. 1998). Appellant is not seeking remediation of a factual error; rather, he is seeking to correct the legal decision that his ineffective assistance claims were procedurally barred, a decision that was correct under the case law in existence at the time.
A change in the law simply is not grounds for CR 60.02 relief except in “aggravated cases where there are strong equities.” Reed v. Reed, 484 S.W.2d 844, 847 (Ky.1972). This is not such a case. Appellant has received significant direct and collateral review at the state and federal levels since his conviction some 25 years ago. His previous sentence has been reduced by gubernatorial order. The equities do not weigh in favor of using CR 60.02 to apply Martin’s change in the law to Appellant’s case.

(Emphasis supplied).

In comparing Leonard to the current case, we note that Campbell, as did Leonard, filed a CR 60.02 motion many years after his conviction was final. Campbell, as did Leonard, seeks to correct a legal decision and not a factual error, the former being an improper use of CR 60.02 while the latter is a proper use. Procedurally, Campbell and Leonard are in the same posture. Our Supreme Court found that Leonard could not properly challenge his sentence by means of a CR 60.02 motion and, necessarily, that the facts in Leonard, did not rise to the level necessary to grant relief as they were not exemplary of an aggravated case with strong equities. Reed at 847.

If Leonard’s twenty-five-year-old conviction, challenged multiple times with post-conviction motions, was found by our Supreme Court to not be such a case, then Campbell’s twenty-year-old conviction which has been the subject of multiple post-conviction motions is, likewise, not such a case.

The proscription against “applying new rules retroactively once a judgment is final on direct review makes sense, given the interest in finality of judgments.” Leonard at 160. The retroactive application of Peyton is, thus, proscribed. To permit otherwise would wholly vitiate the finality of judgments in that each change in the law would allow or require relitigation of the facts and law of every case.

In considering Campbell’s second argument that he was entitled to an evi-dentiary hearing, we must consider the purpose of an evidentiary hearing which is to determine facts which are not discerna-ble from the record. The issue of whether Peyton is retroactive is a legal conclusion and what few facts, if any, that would be necessary to determine if it should be applied retroactively in Campbell’s case are easily discernable from the record. Therefore, an evidentiary hearing was unnecessary.

In considering Campbell’s third argument that he was entitled to additional findings of fact and conclusions of law under his CR 52.04, we must understand that CR 52.04, by its own terms, addresses an additional finding of fact on an issue essential to the judgment. In contrast, Campbell presents a legal argument; there were no facts to be found. Moreover, CR 52.01 specifically provides that “[fjindings of fact and conclusions of law are unnecessary on decisions of motions under- Rules 12 or 56 or any other motion except as provided in Rule 41.02.” The denial of CR 60.02 relief does not fall within the purview of CR 52.04 and, thus, does not require written findings and conclusions. This is particularly so when there are no facts to be found and any legal conclusion regarding the retroactive interpretation of Peyton would be reviewed de novo.

Thus, Campbell was not entitled to CR 52.01 findings of fact and conclusions of law, and the trial court did not err in denying Campbell’s motion for additional findings of fact and conclusions of law.

In light of the aforementioned reasons, we find no error in the trial court’s denial of either Campbell’s CR 60.02 or CR 52.04 motion. We affirm.

ALL CONCUR.

      . Peyton, in overruling Devore v. Commonwealth, 662 S.W.2d 829 (Ky.1984), interpreted Kentucky Revised Statutes (KRS) 533.060(2) to mean that felonies committed while on parole shall serve consecutively to the felony sentence for which paroled but may serve concurrently to one another.

      . Campbell made two secondary arguments that do not merit relief and as such we only briefly address them. First, we do not find Campbell's argument that the trial court was not bound by the doctrine of stare decisis to be relevant to the appeal at hand, as the trial court was bound to follow established appellate precedent under Supreme Court Rules (SCR) 1.040(5). Second, while Campbell is correct that more lenient standards apply to prisoners filing pro se, we have not interpreted this as an abandonment of our rules of procedure or jurisprudence. See Brooks v. Commonwealth, 447 S.W.2d 614, 618 (Ky.1969).

      . Campbell also filed a writ of mandamus with this Court which was denied as the issues raised in the writ could be brought upon appeal. We note that the ruling on the writ did not preclude our deciding the merits of Campbell’s claimed errors and simply established that, procedurally, the issues raised could be brought forth on appeal.


author: NICKELL, Judge:

text:
    Brenda CLINE and Melissa Whitaker, Individually and as Personal Representatives of the Estate of LaKeesha Cline, Appellants, v. SPECTRUM CARE ACADEMY, INC., Appellee.
    Nos. 2008-CA-002329-MR, 2008-CA-002330-MR.
    Court of Appeals of Kentucky.
    July 2, 2010.

      Stephen L. Hixson, Bowling Green, KY, for appellant.
    Michael A. Goforth, London, KY, for appellee.

      Before NICKELL and STUMBO, Judges; WHITE, Senior Judge.

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

   OPINION

NICKELL, Judge:

Brenda Cline and Melissa Whitaker, both individually and as representatives of the Estate of LaKeesha Cline, appeal from orders entered by the Adair Circuit Court sealing the court record in two consolidated cases. For the reasons that follow, we reverse and remand for further proceedings and entry of an order consistent with this opinion.

This case results from the death of sixteen-year-old LaKeesha Cline after she fled from Spectrum Care Academy, Inc., a psychiatric residential treatment center for teenaged girls, and was struck and killed by two vehicles. The sole issue on appeal is whether the trial court properly sealed the record on Spectrum’s motion. We hold it did not.

We begin with a brief statement of the facts. After being treated at Spectrum for bipolar disorder for eight months, LaKee-sha’s psychiatrist ordered her to be discharged in October of 2004. LaKeesha bid farewell to Spectrum staff and residents when unexpectedly, and without alerting LaKeesha’s psychiatrist, Spectrum’s clinical director, Brandy Hancock, cancelled her release. LaKeesha contemplated suicide and three weeks later, after exiting her dormitory through a window under the cover of darkness, she intentionally ran in front of a car at a busy intersection. The driver narrowly missed hitting her.

LaKeesha asked to be hospitalized after the suicide attempt, but Hancock said she was just trying to get attention and returned her to Spectrum without contacting LaKeesha’s psychiatrist. Her psychiatrist testified by deposition that had he learned of the suicide attempt, he would have admitted LaKeesha to a children’s psychiatric hospital. Spectrum originally documented the incident as an attempted suicide by a runaway, but substituted new pages into the report to indicate LaKee-sha had simply run away from the facility without incident and hospitalization was not required. The original pages of the report were destroyed. Two nights later, LaKeesha committed suicide when she again intentionally ran into traffic. This time she was struck by two vehicles and died of massive injuries on the highway in front of her Spectrum dormitory.

An investigation by the Cabinet for Health and Family Services concluded Spectrum was insufficiently staffed and could not provide the close supervision LaKeesha had required. Spectrum, however, characterized LaKeesha’s death as an accident no one could have predicted.

Turning to the procedural history of the case, the Estate filed a wrongful death suit against Spectrum alleging negligence. After gathering more facts, the Estate filed a second wrongful death action around the one-year anniversary of LaKeesha’s death. Named as defendants in the second complaint were Spectrum and its sister corporation, Assured Health Properties, Inc.; Hancock; and Ben Arnold, the sole owner of Spectrum. The second complaint alleged negligence, conspiracy, fraud, conflict of interest, false imprisonment, violation of consumer protection statutes, and tampering with physical evidence. It also sought to pierce Spectrum’s corporate veil and demanded both compensatory and punitive damages.

In the midst of the litigation, the Supreme Court of Kentucky granted the Estate’s petition for a writ of mandamus on a consolidation issue. Estate of Cline v. Weddle, 250 S.W.3d 330 (Ky.2008). Thereafter, a mediated settlement was reached in the two actions in September of 2008 and the cases were dismissed with prejudice by agreed order of dismissal entered on October 21, 2008. The order stated simply, “This matter is hereby dismissed with prejudice. Parties are to bear their own costs and fees. This is a final order.”

On October 27, 2008, Spectrum moved to amend the order of dismissal to seal the record and prohibit access except upon court order. The motion stated it was being “made due to confidential and personal information contained within the file including information about residents/patients and employees and officers of Spectrum Care Academy, Inc.” This was Spectrum’s first mention of its desire for the court record to be sealed. No other defendants joined the motion. The Estate opposed sealing the record and sought sanctions against Spectrum and its attorney for filing a motion it believed “was made in bad faith, is frivolous, is unsupported by fact or law (or a good faith argument to extend, modify or reverse existing law), and was made to harass, cause unnecessary delay, or cause needless increase in the cost of litigation.” The Estate moved the court to order Spectrum to reimburse the Estate in the amount of $3,987.40, a figure representing the cost of all expenses and legal fees incurred by the Estate in defending the motion to seal the court file.

At a hearing on November 25, 2008, Spectrum alleged the record should be sealed because it contained financial records sought by the Estate in its attempt to pierce Spectrum’s corporate veil, discussion of an employee’s salary and bonus structure, resident names and employee information that should not be “available just for the public.” After asking counsel for the Estate why he would object to the file being sealed, the trial court interrupted his response saying he was familiar with the procedural history of the case and, “I’ve got a big docket today, Mr. Hixson. Why do you object to these records of this company being sealed?” Counsel responded that while judicial records are not subject to the open records act, everyone “in Adair and surrounding counties has the right under the constitution and the laws of the United States and the Commonwealth of Kentucky to see these public records,” to which the trial court stated in relevant part,

So somebody has called the newspaper and they’ve come in and copied the file. But the information that Mr. Goforth has spoken about here, I see no reason why that shouldn’t be closed to the general public. I’ve read your motions, and I’m going to sustain [the motion to seal the record].

When counsel for the Estate asked to be heard, the trial court told him, “[s]ubmit it in writing, please.” Additional requests by the Estate’s attorney to be heard were refused by the trial court who ultimately stated, “I said submit it in writing or take it up to the higher court and reverse me again. You go right ahead and do what you want to do.... I’ve heard all I’m going to hear. Thank you.” The entire proceeding lasted less than four minutes.

That same day, November 25, 2008, an “Order Amending Order of Dismissal” was signed and entered by the court stating:

This matter came on for hearing pursuant to motion of defendant Spectrum Care Academy, Inc., to amend order of dismissal entered herein on October 21, 2008 to add provisions providing for sealing of this record, the Court being sufficiently advised orders as follows:
The motion of defendant, Spectrum Care Academy, Inc., to seal this court record is hereby SUSTAINED. No access shall be permitted to this file without court order. This is a final order.

The following day, November 26, 2008, the trial court signed an order stating it had granted Spectrum’s motion to seal the record and for the fírst time explained the rationale for its action:

[t]his was done due to personal and confidential information in the court record including: copies of financial documents which include income tax returns; employee personnel file information which includes income information of certain employees; and names of other patients/residents. This Court has the authority to seal the record where there are interests favoring nondisclosure of court file materials. A court may deny access to its records and documents to ensure that records are not used to satisfy private spite, promote public scandal or to serve as a(sic) reservoirs of libelous statements for press consumption. Roman Catholic Diocese of Lexington v. Noble, 92 S.W.3d 724, 730-731, 734 (Ky.2002). The Court has been advised by court personnel that subsequent to motion of defendant Spectrum to seal this record, one or more newspaper representatives have made copies of materials in this file. The Court further notes that a confidential settlement agreement was reached by the parties. All of the above makes it appropriate that this court record be sealed at this time, and so plaintiffs’ motions for sanctions against the defendant Spectrum and its counsel for seeking sealing of the record are overruled. This is a final order.

While this order was signed in November, it was not entered by the Adair Circuit Court Clerk until December 16, 2008, several days after the Estate had filed a notice of appeal on December 9, 2008. The Estate then moved the trial court to set aside the December 16 order due to its having lost jurisdiction when the appeal to this Court was filed. On January 5, 2009, the Lexington Heraldr-Leader filed motions to intervene in the case to contest the sealing of the record and to unseal the record.

At a hearing on January 13, 2009, counsel for the Estate asked the court to remand its motions to access the record to prepare its appellate brief and to set aside the December 16 order because the trial court had lost jurisdiction due to the Estate’s filing of a Notice of Appeal. Citing Young v. Richardson, 267 S.W.3d 690 (Ky.App.2008), the trial court found it lacked jurisdiction to entertain the Estate’s motions and remanded them, concluding the “order entered December 16, 2008 is a nullity because the matter was on appeal when the order was entered.” Because the case was before the Court of Appeals, the trial court also denied the Herald-Leader's motions to intervene and to unseal the record. This appeal, solely between the Estate and Spectrum, followed.

The narrow question before us is whether the trial court erred in sealing the record. At the outset we admit there is little settled law on this precise issue and the trial court has asked for guidance. “[J]udicial documents are presumptively available to the public, but may be sealed if the right to access is outweighed by the interests favoring nondisclosure.” United States v. McVeigh, 119 F.3d 806, 811 (10th Cir.1997), cert. denied sub nom Dallas Morning News v. U.S., 522 U.S. 1142, 118 S.Ct. 1110, 140 L.Ed.2d 163 (1998) (citing Nixon v. Warner Communications, Inc., 435 U.S. 589, 602, 98 S.Ct. 1306, 1314, 55 L.Ed.2d 570, 582 (1978) (wherein Supreme Court of United States recognized public’s general right to inspect and copy records, including judicial records)). Kentucky courts, and the Sixth Circuit Court of Appeals, have also recognized the public’s right to inspect and copy court records and documents. Courier-Journal and Louisville Times Co. v. Peers, 747 S.W.2d 125, 128 (Ky.1988); Brown & Williamson Tobacco Corp. v. Federal Trade Commission, 710 F.2d 1165, 1176-77 (6th Cir.1983), cert. denied, 465 U.S. 1100, 104 S.Ct. 1595, 80 L.Ed.2d 127 (1984). “The balancing test between a court’s inherent right to control access and the public’s presumptive right of access is ‘left to the sound discretion of the trial court, a discretion to be exercised in light of the relevant facts and circumstances of the particular ease.’ ” Noble, 92 S.W.3d at 731 (quoting Warner Communications, 435 U.S. at 599, 98 S.Ct. at 1312-13, 55 L.Ed.2d at 580).

Kentucky courts utilize a sliding scale to determine how much presumptive weight of access should be given to a record or piece of evidence. Noble, 92 S.W.3d at 731-32 (analyzing United States v. Amodeo, 71 F.3d 1044, 1048 (2nd Cir.1995)). Documents used to determine a litigant’s substantive rights receive the greatest weight and can be sealed only for the “most compelling” of reasons while documents having little bearing on a litigant’s rights receive little weight. Noble, 92 S.W.3d at 732 (citations omitted). The sliding scale is an imperfect fit in this instance since the underlying causes of action were settled via mediation.

Before sealing any part of a trial court record, a court must first convene a hearing at which the party asking that the record be sealed bears the burden of proving sealing the record is necessary. Warner Communications; Peers; Lexington Herald-Leader Co., Inc. v. Meigs, 660 S.W.2d 658, 661 (Ky.1983). In the case sub judice, the trial court convened a hearing; appeared to erroneously place the burden on the Estate to prove that sealing the record was improper, but then refused to allow counsel for the Estate to be heard; and made no findings of fact before granting Spectrum’s request to seal the record. The trial court attempted to provide the basis for its action, but only after the trial court had lost jurisdiction due to the Estate’s filing of its notice of appeal. Young. Therefore, we will not consider the order entered on December 16, 2008.

Based upon the authority previously cited in this opinion, we reverse the trial court’s sealing of the record and remand the matter for further proceedings and entry of an opinion consistent with this opinion. The trial court is directed to convene a hearing at which Spectrum shall be required to prove sealing the entire court record is necessary. To satisfy its burden, Spectrum shall identify and eliminate less onerous alternatives such as redaction, use of initials, and the sealing of individual documents as opposed to the entire record. Thereafter, counsel for the Estate shall be afforded ample opportunity to argue its position and to refute claims advanced by Spectrum before the trial court makes written findings of fact and conclusions of law either granting or denying the motion to seal the record or specified parts thereof.

For the foregoing reasons, the orders sealing the records in Adair Circuit Court Civil Actions No. 05-CI-00120 and 05-CÍ-00252 are reversed and remanded for proceedings consistent with this opinion.

ALL CONCUR.

      . Hancock was paid a cash bonus for ensuring all Spectrum beds were filled with income-generating residents at all times. A significant amount of Spectrum's funding is received from Medicaid. The Estate alleged Hancock delayed LaKeesha’s discharge on multiple occasions to avoid having an empty bed. Spectrum carries no liability insurance.

      . Identical orders were entered in both case numbers.


author: THOMAS H. NEWTON, Chief Judge.

text:
    Robert PARADISE, Respondent, v. MIDWEST ASPHALT COATINGS, INC., Appellant.
    No. WD 70944.
    Missouri Court of Appeals, Western District.
    March 16, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 27, 2010.
    Application for Transfer Denied Aug. 31, 2010.

      Bruce MeCurry, Springfield, MO, for Appellant.
    George E. Kapke, Lee’s Summit, MO, for Respondent.
    Before: THOMAS H. NEWTON, C.J., LISA WHITE HARDWICK, and CYNTHIA L. MARTIN, JJ.
   THOMAS H. NEWTON, Chief Judge.

Midwest Asphalt Coatings, Inc. (Midwest) appeals the trial court’s decision denying its requests for an injunction against Mr. Robert Paradise and for payment of attorney fees. Mr. Paradise sought a declaratory judgment to void the non-compete agreement that he had signed with Midwest, claiming the agreement was unreasonable and against public policy. In a counterclaim, Midwest asked the trial court to find the agreement valid and enforceable or modify it for enforceability. Midwest also requested an injunction against Mr. Paradise and contractual attorney fees. After a bench trial, the trial court modified the agreement, declared it enforceable as modified, and refused to grant an injunction against Mr. Paradise or to award attorney fees to Midwest. We affirm.

Factual and Procedural Background

In 1999, Mr. Joe Manzardo opened Midwest Asphalt Coatings (Midwest), a business providing asphalt paving and asphalt maintenance. Mr. Manzardo employed Mr. Paradise as the general manager and the sole salesperson. Thereafter, Mr. Paradise signed a non-compete agreement with Midwest. As the company’s general manager, Mr. Paradise developed goodwill for Midwest, built customer relationships, and promoted Midwest’s business with the public. As a salesperson, he obtained repeat customers, generated customer lists, and executed Midwest’s bidding procedure with those customers. Subsequently, additional salespersons and another general manager were hired and trained by Mr. Paradise.

After working at Midwest for about seven years, Mr. Paradise resigned and opened a similar business. Mr. Paradise sued Midwest for unpaid sales commissions, attorney fees, and a declaration that the non-compete agreement was unenforceable. Midwest counterclaimed, asking the trial court to deny Mr. Paradise’s requests, declare the agreement valid or modify the agreement to be valid, grant an injunction against Mr. Paradise prohibiting him from breaching the agreement, and award Midwest contractual attorney fees.

After a bench trial, the trial court found that Mr. Paradise did not satisfy the burden for a claim of unpaid sales commissions and denied the claim seeking voi-dance of the non-compete agreement. The trial court found that the time restriction and attorney fees provisions in the non-compete agreement were unreasonable and, thus, unconscionable. Next, it exercised its discretion and modified the agreement by changing the time restriction and striking the attorney fees provision. The trial court found the agreement to be “valid and enforceable, for a modified period of twenty-six (26) months from January 15, 2008,” but denied the injunction. Instead, it stated that Mr. Paradise would not violate the non-compete in any manner during the modified time period. Midwest appeals, challenging the trial court’s denial of the injunction and attorney fees.

Standard of Review

We review the trial court’s judgment under the standard set forth in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Osage Glass, Inc. v. Donovan, 693 S.W.2d 71, 73 (Mo. banc 1985). We will affirm unless there is no substantial evidence to support the decision, the decision is against the weight of the evidence, or the trial court erroneously declares or applies the law. Murphy, 536 S.W.2d at 32.

Legal Analysis

In its first point, Midwest argues that the trial court erred in denying the injunction because the law required the trial court to grant the injunction based on its findings. The trial court found that the modified non-compete agreement was enforceable, that Midwest had “a protectable interest in its customer contacts and repeat customers,” and that Mr. Paradise could use his contacts with customers to Midwest’s disadvantage. It denied the injunction because Mr. Paradise had not solicited customers or contacts for asphalt business; nor had he intentionally, willfully, or systematically violated the terms of the non-compete agreement.

An injunction should be granted against a former employee when the covenant is lawful and the employer shows a legitimate business interest at stake, unless there is a substantial reason to relieve the former employee of its “voluntary obligation.” Osage Glass, 693 S.W.2d at 75. Missouri recognizes two legitimate business interests: trade secrets and customer contacts. AEE-EMF, Inc. v. Passmore, 906 S.W.2d 714, 719 (Mo.App. W.D.1995). Protection of the business and not punishment of the former employee is “the essence of the law.” Id. at 720.

Consequently, once the trial court exercised its discretion to modify the non-compete agreement to be enforceable and found that Midwest had a protectable interest in its customer contacts and that Mr. Paradise had the opportunity to use those contacts, it was required to grant the injunction. Its finding that Mr. Paradise had not solicited any customers or intentionally violated the terms of the non-compete agreement was irrelevant in deciding whether to grant an injunction. An employer is not required to show actual solicitation or a willful violation of the non-compete agreement. See Osage Glass, 693 S.W.2d at 75 (reversing trial court because former employer proved that its customer contacts were at stake even though the former employee had not solicited any of the customers). Thus, requiring proof of an actual solicitation before an injunction could be granted was an erroneous declaration of the law and denying the injunction was an erroneous application of the law. Midwest’s first point is granted.

In its second point, Midwest argues that the trial court erred in overruling its objection to questions concerning the uncon-scionability of the attorney fees provision because Mr. Paradise did not plead as an affirmative defense that the specific provision was unconscionable. Midwest further argues that absent a finding of unconscion-ability, its contractual attorney fees should be granted as a matter of law because it was the prevailing party. Because the issue of whether Midwest was the prevailing party is dispositive, we do not address the pleading issue.

Notwithstanding any affirmative defense, a party requesting payment of contractual attorney fees must be the prevailing party. See Miller v. Gammon & Sons, Inc., 67 S.W.3d 613, 625 (Mo.App. W.D.2001); see also Porter v. Lake Waukomis Ass’n, 687 S.W.2d 237, 239-40 (Mo.App. W.D.1985) (refusing to grant attorney fees to association because it did not prevail even though there was no requirement in contract that it had to prevail, but only that it had to commence suit for the enforcement of its restrictions). A “prevailing party” is the litigant “who successfully prosecutes the action or successfully defends against it, prevailing on the main issue, even though not necessarily to the extent of its original contention.” Corley v. Corley, 128 S.W.3d 521, 526 (Mo.App. W.D.2003) (internal quotation marks and citation omitted).

Midwest argues that it was the prevailing party because the trial court declared the non-compete agreement enforceable. Midwest’s main issue at trial was that the non-compete agreement was reasonable and should be enforced. Mr. Paradise sought the invalidation of the non-compete agreement because the time restriction was unreasonable. Mr. Paradise succeeded in challenging the reasonableness of the non-compete agreement because the trial court determined that the time restriction of three years was unreasonable. Based on this finding, the trial court could have invalidated the non-compete agreement rather than modifying it. See Payroll Advance, Inc. v. Yates, 270 S.W.3d 428, 437 (Mo.App. S.D.2008) (stating the trial court is granted broad discretion in whether it modifies a non-compete).

Although we determined that an injunction should have been granted, the granting of an injunction is only a remedy. See Bates v. Webber, 257 S.W.3d 632, 635 (Mo.App. S.D.2008) (“Issuance of an injunction is an equitable remedy.”). An injunction cannot be granted without first finding that the non-compete agreement is valid. See Osage Glass, 693 S.W.2d at 75. Consequently, an injunction is not the main issue but the remedy. Our determination that an injunction should have been granted is based on the judicial modification. Accordingly, the discretionary modification is being enforced rather than the agreement the parties signed. Consequently, Midwest did not prevail on its main issue (i.e. the validity of the original non-compete agreement) and is not entitled to attorney fees. See Corley, 128 S.W.3d at 526-27. Therefore, the trial court did not err in denying Midwest attorney fees. See Miller, 67 S.W.3d at 626 (denying attorney fees because recovery would not be based on the contract). Midwest’s second point is denied.

In its third and fourth points, Midwest argues that the trial court erred in finding the attorney fees provision unconscionable. Because we have decided that Midwest was not the prevailing party, these contentions are moot. Thus, Midwest’s third and fourth points are denied.

Conclusion

In conclusion, Midwest was entitled to an injunction. However, the period for an injunction expired on March 15, 2010, so the relief cannot be granted and is moot. See Corken v. Workman, 231 Mo.App. 121, 98 S.W.2d 153, 155 (1936). Midwest was not entitled to attorney fees because it was not the prevailing party. Therefore, we affirm.

HARDWICK and MARTIN, JJ., concur.

      . The modified term of twenty-six months for which Midwest was entitled to enjoin Mr. Paradise from competing against it has passed. Thus, an injunction cannot be granted.

      . Midwest’s request for attorney fees on appeal is also denied.


author: KAREN KING MITCHELL, Judge.

text:
    Nathan REIZ, et al., Appellants, v. BOARD OF ZONING ADJUSTMENT OF KANSAS CITY, Missouri, et al., Respondents.
    No. WD 70925.
    Missouri Court of Appeals, Western District.
    March 23, 2010.
    Application for Transfer Denied Aug. 31, 2010.

      Gordon D. Gee, Kansas City, MO, for Appellants.
    Galen P. Beaufort, City Attorney, M. Margaret Sheahan Moran, Senior Associate City Attorney, Kansas City, MO, for Respondents Board of Zoning Adjustment of Kansas City Missouri, and City of Kansas City, Missouri.
    Before Division III: JAMES EDWARD WELSH, Presiding Judge, and MARK D. PFEIFFER and KAREN KING MITCHELL, Judges.
   KAREN KING MITCHELL, Judge.

This is an appeal from the judgment of the Circuit Court of Jackson County, Missouri (“trial court”), affirming the determination by Respondent Board of Zoning Adjustment of Kansas City, Missouri (“BZA”), that a billboard erected on property belonging to Appellant Nathan Reiz (“Reiz”) and leased to Appellant Porlier Outdoor Advertising Co. (“Porlier”) was illegal, as it was within 150 feet of the curb line of property used as a public park. We affirm the judgment of the BZA.

Factual and Procedural Background

On February 27, 2006, Porlier’s predecessor in interest, Pinnacle Management Group, LLC (“Pinnacle”), filed an application with Respondent City of Kansas City, Missouri (“City”), for an outdoor advertising sign permit to erect a billboard on property owned by Reiz at 1001 Locust Street. The property was being used as a surface parking lot at the time, although a publicized proposal was underway to convert the lot and surrounding properties into a mixed-use development including residences and a new headquarters for an area construction company. The application for the billboard included plans that had been prepared by a registered land surveyor. The plans showed that the proposed billboard would be located exactly 150 feet from the right-of-way setback line on the property being used as Ilus W. Davis Park. On the same day the application was filed, a City representative inspected the site for the proposed billboard and issued a pre-permit inspection form which provided that “permission for the above described work is hereby granted.” On March 1, 2006, City issued a permit granting permission to install the billboard.

On May 23, 2006, Pinnacle commenced construction of the billboard. On May 25, 2006, with construction nearly completed, the City inspector who initially approved the billboard returned to the property and delivered a stop work order to Pinnacle that stated, “[y]ou are ordered to stop, Construction of Outdoor Advertising sign Section 6-76 Height Limits within Airport height zones immediately. The work ordered stopped is contrary to Section 18-19(d)(2) Sign Permit in that the erection of the sign is violation of Chapter 6 Section 76 of the Code of Ordinances.”

The next day, May 26, 2006, City sent a letter to Pinnacle’s representative that read, in pertinent part:

Please be advised that the above referenced permit is hereby suspended and that all work related to the construction must cease at the job site immediately. This action is being taken due to the fact that the site plan provided with the permit application indicated that the proposed sign is to be located exactly 150 feet from the public park to the east and dimensions this distance from the east line of Lot 8, Block 2, Smart’s Second Addition. This distance is required to be measured from the public park, which begins at the west curb line of Locust Street. Therefore, the information provided in the application is incorrect due to the fact that the proposed sign is within 150 feet of the public park. Additionally, this property is located within the horizontal control surface of the Downtown Airport as defined by Chapter 6, Code of Ordinances. The horizontal control surface elevation is 908 feet above sea level and the top of the proposed sign is approximately 1021 feet above sea level. Section 6-76 prohibits structures in excess of the horizontal control surface elevation except those structures which have been determined to be no hazard to air navigation by the Federal Aviation Administration. No documentation related to this issue was provided with the application for sign permit.

On June 13, 2006, Pinnacle filed its application to the BZA appealing City’s suspension of the permit for the billboard, and the BZA held a hearing on August 22, 2006. At the conclusion of the hearing, the BZA determined to uphold City’s suspension of the permit. Written notice of the BZA’s decision was sent to Pinnacle on August 30, 2006.

On September 21, 2006, Reiz and Porlier, as successor to Pinnacle (to all of whom this opinion will hereinafter collectively refer as “Porlier”), filed a petition for review, injunction, and writ of certiorari with the trial court. The petition was subsequently amended and the parties filed their briefs before the trial court.

On February 7, 2008, the property on which the billboard had been erected was condemned in the case captioned Tax Increment Financing Commission of Kansas City v. Ten Oak Center, Ltd,., et al., Case No. 0716-CV30164, also in the Circuit Court of Jackson County. On April 10, 2008, a panel of three appointed Commissioners filed a report assessing damages to Porlier on the condemnation of the billboard at $110,000. Exceptions to the Commissioners’ award were filed, and the award was paid into the court. The billboard and parking lot were then dismantled and removed by the new property owner.

On June 3, 2008, Porlier filed with the trial court additional suggestions in support of the petition to reverse the decision of the BZA, requesting the trial court to dismiss the action as moot. Porlier did not voluntarily dismiss its petition. On November 3, 2008, a hearing was held in the trial court wherein Porlier attempted to introduce additional evidence as to the merits of the petition. The court refused to admit the evidence. On February 9, 2009, the trial court entered an order affirming the decision of the BZA. This appeal follows.

Standard of Review

When a party appeals a trial court’s ruling on the propriety of an administrative decision, we review the decision of the Board, not of the trial court. State ex rel. Teefey v. Bd. of Zoning Adjustment, 24 S.W.3d 681, 684 (Mo. banc 2000). We review zoning board decisions to determine whether they are supported by competent and substantial evidence on the record as a whole, or whether they are arbitrary and capricious, unreasonable, unlawful, or in excess of the Board’s jurisdiction. Id.

Legal Analysis

For its first point on appeal, Porlier claims that the trial court erred in refusing to dismiss Porlier’s own petition for certio-rari on the grounds that it had become moot. Specifically, Porlier contends that since the billboard had been dismantled and removed, there was no longer a justiciable controversy between Porlier and the BZA or the City, and therefore the action should have been dismissed by the trial court. Porlier contends that our review of the trial court on this matter is de novo. However, as stated above, this court does not review the decision of the trial court but, instead, reviews the decision of the BZA. Id. Therefore we would not in any case review the trial court’s refusal to dismiss the matter but would, necessarily, review the decision of the BZA instead.

Moreover, we need not reach the issue of mootness before the trial court, because if the action had been moot before the trial court, it would necessarily also be moot here. Mootness is a threshold issue in any appellate proceeding, and so it may be considered by an appellate court sua sponte. Hihn v. Hihn, 235 S.W.3d 64, 67 (Mo.App. E.D.2007). A determination of mootness usually warrants dismissal by the appellate court outright, without having first passed on the propriety of the actions taken by the trial court. See State ex rel. Claudia Lee & Assocs., Inc. v. Bd. of Zoning Adjustment, 297 S.W.3d 107, 111-12 (Mo.App. W.D.2009). An action that would otherwise be moot may be considered by an appellate court, however, in several situations: (1) where the action becomes moot after it has been argued and submitted; (2) where the issue is one of general public interest and importance, which is capable of recurring and likely to evade appellate review, id. at 111 n. 6; or (3) where the court or administrative decision being appealed could have significant collateral consequences for one or more of the parties to the appeal. Glover v. Michaud, 222 S.W.3d 347, 351 (Mo.App. S.D. 2007). We may consider facts established outside the record-on-review in determining whether a matter is moot. Claudia Lee, 297 S.W.3d at 111.

City contends that the appeal is not necessarily moot because this court’s determination could have consequences for the collateral condemnation action. An award of damages was assessed by the three-Commissioner panel and the award was paid into the court. However, both parties have since filed exceptions to the condemnation award and the case has been stayed pending this appeal. Once exceptions are filed, the amount of damages becomes an issue and the parties are entitled to a jury trial to determine the proper award of damages. One of the issues in the calculation of damages in the condemnation case is arguably the value of the lease interest in the billboard. Because City contends and the BZA found that the sign was illegal in that it violated a City ordinance by being within 150 feet of a public park, City argues that the lease (the purpose of which was construction of and maintenance of the sign) had no value and, therefore, that the $110,000 damage award was excessive. City thus argues that this court’s ruling as to the legality of the billboard will have collateral consequences in the condemnation action, and therefore this action is not moot.

Porlier, on the other hand, contends that this court’s ruling will have no collateral consequences. It claims that once the Commissioners’ award had been made and the damages had been paid into court, the Commission took title to the property, including the billboard, and was responsible for compensating Porlier for the value of both the property and the billboard at that moment. Porlier cites State ex rel. State Highway Commission v. Volk, 611 S.W.2d 255 (Mo.App. E.D.1980).

While we agree with the premise in Volk, it does not necessarily mean that the Commissioners’ award to Porlier is unalterable. Certainly title passed while the billboard was still standing, and Porlier was not allowed to remove the billboard, so if the billboard structure had value, Porlier should be compensated for the value of the billboard structure. However, the exceptions provisions to the condemnation process allow for a challenge to the value. A jury will now determine the value of the condemned property de novo, without knowledge of any award by the Commissioners or its rationale. §§ 523.050, 523.060. Evidence of the fair market value of the property at the time of the taking might include a valuation based upon an income approach. A decision from this court addressing the validity of the BZA determination could affect the jury’s damage award. Clearly, since it stayed the case, the condemnation court felt that this court’s ruling was relevant. We find that the possibility of its relevance to the jury in the condemnation case dictates that the appeal of the BZA determination is not moot. Porlier’s first point is denied.

Porlier’s second point on appeal is that the BZA decision was arbitrary, illegal, and void in that it found that section 80 — 220(e)(1)(c) of the Kansas City Missouri Code of Ordinances requires that a billboard shall not be within 150 feet of property being used as a public park, instead of 150 feet from the park’s right-of-way setback line. At the time the application for the billboard permit at issue was filed, section 80 — 220(e)(1)(c) read, “Outdoor advertising signs shall not be located within 150 feet of a public park, playground, school, library, auditorium, stadium or other publicly owned buildings used by the general public, unless such signs, including the support structures, are not visible from the property.” The dispute centers on the City’s and BZA’s interpretation of the word “park.”

Porlier maintains that because section 80-20 of the ordinances defines public park as “any city, county, state or federal public park,” the park boundaries indisputably must be measured from what Porlier calls the property line, which is the edge of the City right-of-way. This right-of-way line is roughly twelve feet in from the curb line. The City counters, and the BZA found, that public park was more properly interpreted as land that is being used as a public park. Because the City’s parks department improved the property all the way to the curb line as part of the park development project, and the right-of-way area includes sidewalks, landscaping, lighting, granite pavers, and even a memorial for City employees who lost their lives in service to the City, City maintains that the whole right-of-way area up to the curb line is currently being used as public property, and should thus be protected by the 150-foot buffer area.

City cites State ex rel. State Highway Commission v. Wiggins, 454 S.W.2d 899, 903 (Mo. banc 1970), to support its position. In Wiggins, the applicable statute prohibited junkyards within 200 feet of a “road.” Id. at 902. The Missouri Supreme Court, in interpreting whether “road” meant the edge of the right-of-way easement, the edge of the paved portion of the right-of-way, or something else, looked first to the plain and ordinary meaning of the word. Id. at 903. Finding that unhelpful, the court looked to how the word was used in other statutes, and then, to the purpose of the statute before the court to determine the intent of the legislature. Id. The court stated that “[t]he obvious purpose of [the statute] was to require that junk yards be screened from the view of the persons using the road, or that the portion of a junk yard nearest to a road be located not less than 200 feet from persons normally using the road.” Id. It went on to say that “[a] use of a road ‘in the ordinary manner’ obviously refers to a use of that portion which has been prepared and adapted to travel [the pavement]; it would not refer to a use of the ditches, slopes, or grass-covered areas extending to what is referred to as the right-of-way line.” Id.

We find Wiggins very persuasive. We also disagree with Porlier that the ordinance’s definition of the term “public park” makes Porlier’s interpretation a foregone conclusion. The ordinance basically defines “park” as “park,” which we find is no less open to interpretation than was the word “road.” Here, as in Wiggins, the purpose of the ordinance is obviously to shield from the view of people using the park something that they might find unsightly, in this case, billboards. In Wiggins the court noted that people commonly using the road would not be down in the ditches or grassy areas that surrounded the road and were within the right-of-way, and so the more appropriate measure was from the paved area. Id. Here, people using the park could very well extend their park use into the right-of-way area, especially since the right-of-way has been improved as part of the park project and is not noticeably separate from the remainder of the park property. Indeed, the memorial, one of the park’s features, is within the right-of-way area. Accordingly, we find the BZA’s interpretation to be reasonable and not unlawful, arbitrary, or capricious.

Porlier also contends that the BZA’s interpretation would make compliance with the statute difficult if not impossible due to the uncertainty of measuring from the curb line instead of the metes-and-bounds-described right-of-way line. This apparently was not a concern for the court in Wiggins, and we do not find it to be problematic here. And while Porlier contends that curb lines can be changed, so too can the width of roads, a fact that the Wiggins court apparently did not find problematic. Any changes that could potentially cause problems for particular landowners close to the compliance lines can be addressed by the City on a case-by-case basis. We find that measurement from the curb line of the park in most if not all cases can be determined without great difficulty.

Finally, City points out that the right-of-way as a boundary to park property is particularly inappropriate when the park is a City park, because City owns the underlying fee. The right-of-way is actually an easement on the underlying property or servient tenement — the park. When a tract of land has one ownership, there can be no dominant and servient tenements. See Gardner v. Maffitt, 335 Mo. 959, 74 S.W.2d 604, 606-07 (1934). In this case, when City acquired the land to be used as Ilus W. Davis Park, the dominant tenement (right-of-way) already held by City merged with the servient tenement (park land). See Bolomey v. Houchins, 227 S.W.2d 752, 756 (Mo.App.1950). Now that City owns the whole of the park site, there is no reason to arbitrarily sever •what is defined as park land at the line of the former right-of-way easement. Porlier’s second point is also denied.

For its final point on appeal, Por-lier contends that the trial court erred in refusing to admit evidence submitted by Porlier at a hearing before the court. We review the trial court’s refusal to take evidence for abuse of discretion. Nenninger v. Dep’t of Soc. Servs., 898 S.W.2d 112, 116 (Mo.App. S.D.1995). Pursuant to section 89.110 RSMo 2000, a court reviewing a decision of an administrative board may take additional evidence if it appears necessary to the court. However, the trial court’s admission of new evidence is limited to that which would affect the procedural legality of the board’s proceeding; it is not a second chance for a party to offer evidence as to the merits of its case. See State ex rel. Remy v. Alexander, 77 S.W.3d 628, 632 (Mo.App. S.D.2002). Otherwise, court review of a board decision would effectively be a de novo review of the merits, which is not the purpose of judicial review under section 89.110. Id.

Porlier sought to introduce the testimony of two witnesses, both surveyors, to show that Porlier’s interpretation of the term “public park” was superior to that adopted by the BZA. This testimony was not presented to the BZA but to the trial court in the first instance, and it does not implicate the legality of the procedures before the BZA but goes to the merits. Accordingly, the trial court was entirely within its discretion to have excluded the evidence. Point three is denied.

Conclusion

For all of the above reasons, we affirm the decision of the Board of Zoning Adjustment of Kansas City.

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

      . Although it is unclear from the briefing, the parties represented at oral argument that the TIF Commission filed the initial objections to the Commissioners’ award and that Porlier then countered with exceptions of its own. The condemnation proceeding has been stayed pending the resolution of this appeal.

      . Volk involved a sign-owner whose lease had expired, but who was continuing to pay rent. 611 S.W.2d at 256. The terms of the lease expressly allowed for the tenant to remove the signs after termination of the lease. Id. The landowner eventually stopped accepting rent and filed an unlawful detainer against the tenant. Id. While the unlawful detainer was still pending, a condemnation petition was filed and an award was paid into the court. Id. at 258. The Eastern District of this court held that when the property was condemned, the condemning authority took title to the property as it existed at that time, including the signs on the property, and that a portion of the condemnation award was to go to the owner of the signs, regardless of whether they were properly on the land. Id. at 259.

      . As evidence of the arbitrariness of the BZA's decision, Porlier points to the two differing justifications the City had given for the stop work order, questions the motivation of City in issuing the stop work order, and directs the court to a newspaper article chastising the City for its mistake in the application process. The court notes that this article also indicates that Porlier had known about the imminent condemnation for quite some time and that the billboard was erected to increase the value of the properly. We find neither party's motives relevant to our review of the BZA’s decision.

      . The ordinance now requires a buffer of 250 feet.