author: CLAYTON, Judge.

text:
    ALLIANCE FOR KENTUCKY’S FUTURE, INC.; Donald and Marion Stites; Mary Swiggum, Appellants, v. ENVIRONMENTAL AND PUBLIC PROTECTION CABINET; Sanitation District No. 1 of Campbell, Kenton, and Boone Counties, Appellees.
    No. 2007-CA-001186-MR.
    Court of Appeals of Kentucky.
    Oct. 10, 2008.
    Ordered Published May 8, 2009.
    As Modified May 8, 2009.
    Discretionary Review Denied by Supreme Court Jan. 13, 2010.

      W. Henry Graddy, IV, Midway, KY, for appellant.

      Sharon R. Vriesenga, Frankfort, KY, for appellee Environmental and Public Protection Cabinet.
    Gerald F. Dusing, Covington, KY, John C. Bender, Lexington, KY, for appellee Sanitation District # 1 of Campbell, Kenton and Boone Counties.
    Before CLAYTON and STUMBO, Judges; GRAVES, Senior Judge.

      . Senior Judge John W. Graves 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

CLAYTON, Judge.

Alliance for Kentucky’s Future (Alliance) appeals the Franklin Circuit Court decision upholding the Environmental and Public Protection Cabinet’s (Cabinet) administrative decision approving the Regional Facility Plan (RFP) of Sanitation District # 1 of Boone, Campbell, and Kenton Counties (District) for the building of the new Western Regional Waste Water Treatment Plant. The administrative regulations governing RFPs are found at 401 Kentucky Administrative Regulations (KAR) 5:006; they address wastewater planning requirements as mandated by the Clean Water Act. We affirm.

PROCEDURAL AND FACTUAL BACKGROUND

The controversy in this case involves the planning by the District for a new waste-water treatment plant for Boone, Campbell, and Kenton counties in Northern Kentucky. The plan addresses wastewa-ter treatment in the District’s service area. It calls for two wastewater treatment plants — the Western Regional Wastewater Treatment Plant and the Eastern Regional Wastewater Treatment Plant. The only plant at issue in this appeal is the Western Regional Wastewater Treatment Plant.

Until 1994, the District primarily ran a single wastewater treatment plant, Dry Creek Wastewater Treatment Plant, which served various cities in Campbell and Kenton counties. In the late 1990’s, after consolidation of numerous municipal jurisdictions and wastewater districts, the District became responsible for the operation and management of the sewer and drainage system for Boone, Campbell, and Kenton counties. The District is a publicly-owned treatment works and subject to 401 KAR 5:006, the administrative regulation that governs wastewater planning requirements for regional areas.

Regional planning agencies are required to submit RFPs under 401 KAR 5:006. RFPs are regional water quality management plans for addressing and controlling point sources of water pollution within designated planning areas through the Commonwealth. The regulation sets forth when the RFP must be submitted or updated, the entities responsible for developing an RFP or an RFP update, and the required contents of such a plan. The general language of the controlling regulation requires planning over a two-decade period and updates to address certain major planning developments. As a result of the time period itself — twenty years in the regulation — the only way to meet its requisites is through broad-based planning. Furthermore, during this planning period, the District is also mandated to follow specific Kentucky Division of Water programs including construction and discharge permits for new regional wastewa-ter treatment plants, construction activity, sewer extensions and other activities and initiatives necessary to implement an RFP.

At the conclusion of the planning process, the administrative regulation states that the Kentucky Division of Water may approve an RFP or RFP update when it finds the plan “has been properly submitted and is in the best interest of the environment and the public.” 401 KAR 5:006 Section 6. Additionally, an RFP is required when a new wastewater treatment facility is proposed. Therefore, because both twenty years had elapsed and a new treatment plant was needed, the District began developing the RFP, which ultimately demonstrated the need for the Western Regional Wastewater Treatment Plant.

For five years, 1996 through 2001, the District completed extensive research, analysis, and review of the RFP by nationally credentialed engineering and environmental consultants, and with multiple state and federal agencies. The final version fills seven large binders. As required by 401 KAR 5:006, the District studied the region’s existing facilities, evaluated the need for new or modified facilities, and assessed the cost of alternative solutions to meet the area’s existing and future needs for wastewater treatment. In August 2001, it submitted its RFP to the Cabinet. At this point, the Cabinet issued its State Planning and Environmental Assessment Report (“SPEAR”), which is the environmental assessment required by 401 KAR 5:006 Section 6. Furthermore, the RFP was subject to review and comment by the public as well as other agencies.

On November 11, 2002, the Kentucky Division of Water approved the RFP as mandated by the procedures in 401 KAR 5:006. The RFP included recommendation for two wastewater treatment plants - an Eastern and a Western Regional Waste-water Treatment Plant. Here, as previously noted, the only plant at issue is the Western Regional Wastewater Treatment Plant.

The site upon which the Boone County plant was to be built belonged to Donald and Marion Stites, who are two of three listed members of the Alliance for Kentucky’s Future, Inc., the appellant. While originally the Stiteses approached the District to sell them the land for the new plant, they later refused to do so, and the District had the property condemned pursuant to Kentucky Revised Statutes KRS 220.280. The Stiteses contested the condemnation, but this Court ruled in the District’s favor in the unpublished decision, Garriga v. Sanitation District No. 1, 2003 WL 22871550 (Ky.App.2003).

Following the Kentucky Division of Water’s decision, the Alliance challenged the RFP by filing a petition for hearing with the Cabinet. A twenty-one day evidentiary hearing commenced on August 19, 2003. The hearing officer entered a 415-page report and issued a recommended order on June 1, 2005. He recommended that the secretary uphold the Kentucky Division of Water’s approval of the RFP, but suggested a number of conditions, including miti-gative measures and studies, updates of certain parts of the RFP, and preparation of supplemental environmental assessment reports.

All parties filed exceptions to the hearing officer’s report and recommended order. The Alliance objected to the recommendation that the RFP be approved and the District and Cabinet objected to some recommended conditions. On December 16, 2005, the deputy secretary of the Cabinet (acting upon the Cabinet secretary’s recusal) issued a final order, which upheld the Kentucky Division of Water’s approval of the RFP and adopted some of the hearing officer’s recommendations. Thereafter, the Alliance appealed, pursuant to KRS 224.10-470, to the Franklin Circuit Court. The Franklin Circuit Court entered its order on May 8, 2007, upholding the final order of the deputy secretary of the Cabinet. The Alliance’s appeal is taken from this order.

STANDARD OF REVIEW

When a court reviews the agency’s final order, the court may only overturn the agency’s decision if the agency acted arbitrarily or outside its scope, if the agency applied an incorrect rule of law, or if the decision itself is not supported by substantial evidence on the record. Kentucky State Racing Commission v. Fuller, 481 S.W.2d 298, 300-01 (Ky.1972).

Arbitrariness is the focus of the court’s review of an administrative decision. American Beauty Homes Corp. v. Louisville and Jefferson County Planning and Zoning Commission, 379 S.W.2d 450, 456 (Ky.1964). This landmark case outlines the parameters for judicial review of an administrative agency. It provides that the judicial review is not a de novo review of factual determinations made by an administrative agency but rather a review by the court of whether there was substantial evidence to support the agency’s conclusion, whether the parties were afforded due process, and whether the agency acted with its established authority. Id. Substantial evidence means “evidence of substance and relevant consequence having the fitness to induce conviction in the minds of reasonable men.” Owens-Corning Fiberglas v. Golightly, 976 S.W.2d 409, 414 (Ky.1998).

Further, this Court is authorized to review issues of law on a de novo basis. Mill Street Church of Christ v. Hogan, 785 S.W.2d 263, 266 (Ky.App.1990). Finally, statutory guidance for judicial review of the Cabinet’s final order is found in KRS 224.10-470. Thus, in essence, on review the function of the Court is to ensure that the agency’s decision is based on substantial evidence of fact in the record and that the agency did not apply an incorrect rule of law. Kentucky Unemployment Insurance Commission v. King, 657 S.W.2d 250 (Ky.App.1983). Under this standard, the Court must uphold the agency’s factual findings even if the record shows that there is evidence contrary to those factual findings. 500 Associates, Inc. v. Natural Resources and Environmental Protection Cabinet, 204 S.W.3d 121, 132 (Ky.App.2006). Furthermore, in the case at hand, the reviewing Court must also consider the administrative regulation in question, 401 KAR 5:006, which contains the deferential “best interest” standard:

If the cabinet finds that the regional facility plan has been properly submitted and is in the best interest of the environment and the public, the cabinet will approve the plan.

401 KAR 5:006 Section 6(2).

ANALYSIS

The Alliance challenges the Cabinet’s approval of the RFP on numerous grounds. Each issue will be discussed separately.

1. Deputy secretary’s decision was not supported by substantial evidence because the rejection of the hearing officer’s report was arbitrary.

The hearing officer submitted a 415-page report, which included a recommended order. Of this 415-page report, the deputy secretary adopted approximately 80 percent of its recommendations. But as KRS 224.10-440(1) states:

All hearings under this chapter shall be held before a qualified hearing officer. ... After the conclusion of the hearing, the hearing officer shall make to the secretary a report and recommended order which shall contain a finding of fact and a conclusion of law.... The secretary shall consider the report, exceptions, and recommended order and decide the case.... The secretary’s decision shall be served by mail upon all parties and shall be a final order of the cabinet.

The deputy secretary considered the entire record, the 415-page report, and decided. The decision stands on its own merits and cannot be ruled arbitrary because he did not adopt the hearing officer’s report verbatim.

2. Franklin Circuit Court mischaracter-ized the controversy and misinterpreted 401 KAR 5:006.

An RFP must comply with 401 KAR 5:006, which became effective as a matter of law in 1997, to establish the process by which the Commonwealth shall comply with sections 201, 205, 208 and 303(e) of the Clean Water Act. Both the Cabinet and the Franklin Circuit Court correctly recognized that the Alliance’s claims are based on their interpretation of the requirements of the administrative regulation. The Alliance believes that RFPs, under 401 KAR 5:006, must contain detailed plans, assess all future water projects, and address water quality issues within the region, including package treatment plants, Sanitary Sewer Overflows (SSO) elimination, Combined Sewer Overflows (CSO) planning, and sewer line routes for the twenty-year planning process.

Yet, the hearing officer, the Cabinet, and the Franklin Circuit Judge rejected this approach because they believe that the RFP is a broad-based planning document for the purpose of regional wastewa-ter planning. In addition, 401 KAR 5:006 is not the only administrative or statutory guidance in the area of wastewater planning. Both the hearing officer and the deputy secretary found that detailed requirements for dealing with water quality are established in the Clean Water Act and the Kentucky Division of Water’s regulations. Contrary to the arguments of the Alliance, this administrative regulation is not the exclusive provision relating to the issue of clean water nor must it address every eventuality or contingency.

Not only are there other statutory and administrative guidelines for water quality and planning, the tenets of statutory construction are important. The Alliance is asking that the 401 KAR 5:006 be interpreted as a comprehensive regulatory scheme. Significant, however, in the interpretation of the administrative regulation, 401 KAR 5:006 and all regulatory statutes, is that “in the construction and interpretation of administrative regulations, the same rules apply that would be applicable to statutory construction and interpretation.” Revenue Cabinet, Com. v. Gaba, 885 S.W.2d 706, 708 (Ky.App.1994) (citing Revenue Cabinet v. Joy Technologies, Inc., 838 S.W.2d 406 (Ky.App.1992)). And the most commonly stated rule in statutory interpretation is that the “plain meaning” of the statute controls. Moreover, Kentucky courts have steadfastly adhered to the plain-meaning rule “unless to do so would constitute an absurd result.” Executive Branch Ethics Commission v. Stephens, 92 S.W.3d 69, 73 (Ky.2002). Additionally, the plain-meaning rule is consistent with directions provided by the legislature on how to interpret the statutes enacted by it. KRS 446.015.

3. The site selection process for the Western Regional Wastewater Treatment was not supported by substantial evidence.

The Alliance also argues that the site selection process for the Western Regional Wastewater Treatment Plant was arbitrary despite findings by the hearing officer and the deputy secretary that the process used by the District was appropriate and the site selected was proper. While the Franklin Circuit Court concurred with the hearing officer and deputy director’s assessment of the site selection process, it supported its decision by reference to the doctrine of res judicata and held that the issue had already been decided by this Court in the previously cited unpublished decision, Garriga, 2003 WL 22871550. Therein, this Court affirmed the decision of the Kenton and Boone County Circuit Courts, and held that the approval of the Judge Executive’s Committee was “based on a professional, impartial, and comprehensive analysis.” Id.

To ascertain the efficacy of the court’s decision, it is necessary to examine the pertinent legal doctrine. Res judicata actually involves two distinct subparts: “claim preclusion,” which embodies the typical definition of res judicata, and “collateral estoppel” or “issue preclusion.” Yeoman v. Commonwealth, Health Policy Board, 983 S.W.2d 459, 464-5 (Ky.1998). “Claim preclusion bars a party from re-litigating [sic] a previously adjudicated cause of action and entirely bars a new lawsuit on the same cause of action.” Id. at 465. In contrast, “[i]ssue preclusion bars the parties from relitigating any issue actually litigated and finally decided in an earlier action. The issues in the former and latter actions must be identical.” Id. The general rule of issue preclusion is “[w]hen an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim.” Restatement (Second) of Judgments § 27. Given that Gar-riga dealt with the District’s right to condemn 144 acres of the Stites’ farm under the Kentucky Eminent Domain Act, we do not believe that the issues in the two cases are identical, and therefore, res judicata is not applicable here.

Nevertheless, we find that the Franklin Circuit Court also noted that there were specific findings by both the hearing officer and the deputy director that the process implemented by the District was proper and the site ultimately selected was an appropriate one. Indeed, the RFP guidelines regarding site selection, found in 401 KAR 5:006 Section 4, were determined by the circuit court judge to be fully supported by the record. Furthermore, the record, on appeal, contains abundant evidence supporting the reasonableness of the site selection process. 500 Associates, 204 S.W.3d at 133. (Court can review entire record to determine agency based its decision on substantial evidence.)

4. The RFP was not properly submitted under 401 KAR 5:006 because it lacked important information.

According to Alliance, the RFP did not contain all the information required by the administrative regulation 401 KAR 5:006. Based on the Alliance’s interpretation of the administrative regulation, the RFP must include detailed plans for all waste-water management projects over a twenty-year period to meet the water quality goals of the Clean Water Act. Consequently, Alliance contends that the RFP must contain water quality goals for the elimination or re-permitting of package plants, address the procedure for leaking septic tanks to hook up to sewers, determine the elimination of SSOs, and include plans in the SPEAR to deal with growth aspects to ascertain whether an environmental impact statement is necessary. This broad interpretation was properly rejected by both the deputy secretary and the Franklin Circuit Court.

Certain information must be provided in the content of the plan so that established water quality goals may be met. See 401 KAR 5:006 Section 4. The record clearly demonstrates by exhibits and by testimony of engineers that each element necessary was provided for in the RFP. In fact, the administrative guidelines for an RFP cannot be so distorted that broad-based planning is transformed into a planning that must cover every possible detail and eventuality related to wastewater treatment and water quality. At some point reading more and more detailed requirements into an administrative regulation destroys the very purpose for which the regulation was designed—managing wastewater treatment issues.

a. SPEAR

The Alliance contends that, because the Cabinet may approve the SPEAR for the RFP, once the SPEAR has been vetted by the State Clearinghouse, without any judicial review of the SPEAR, the process is arbitrary. Simply put, the administrative regulation mandates “[a]n environmental assessment report will be written by the cabinet which summarizes the regional facility plan.” 401 KAR 5:006 Section 6(1). Thereafter, the environmental assessment is submitted to the State Clearinghouse for review and comments. If required, mitigative measures may be necessary to address negative comments.

To analyze whether the process is arbitrary, we first observe that the SPEAR itself is merely one requirement for the RFP. It is used by the Cabinet to assess the environmental impact and assist the Cabinet in its determination of whether to approve the RFP. Second, as noted above, the SPEAR is vetted by the State Clearinghouse and changes are made if necessary before it is approved. And the SPEAR, as part of the RFP, is subject to scrutiny by the public, other agencies, and the judicial system. Hence, the decision to approve the SPEAR itself was not arbitrary because it was based on substantial evidence, vetted by the State Clearinghouse, and ultimately must be approved during the RFP process.

Furthermore, the Alliance argues that the standard “best interest of the environment and the public,” found in 401 KAR 5:006 Section 6(2), is vague and overbroad and therefore, unconstitutional. They argue this standard in reference to the SPEAR but in actuality this standard applies to the entire RFP, not just this one section of the administrative regulation. In fact, the Cabinet will only approve an RFP if it has been properly submitted and is in the best interests of the public and the environment. Before approval, the RFP (and SPEAR) must meet all the requirements and standards under 401 KAR 5:006.

When an administrative regulation is assessed for vagueness, it must be read as a whole not piecemeal. County of Harlan v. Appalachian Regional Healthcare, Inc., 85 S.W.3d 607, 611 (Ky.2002). All the factors provided in 401 KAR 5:006, which guide the Cabinet in its determination whether or not the RFP is in the best interest of the environment and the public, must be considered. Given the extensive and voluminous record of this case, this particular RFP, and its SPEAR, are supported by substantial evidence and have been the subject of much review. Therefore, the decision was not arbitrary and the “best interest” standard is not vague or overbroad in this context.

b. Package Treatment Plants and Failing Septic Systems

The Alliance argues that the RFP fails to adequately deal with package treatment plants and failing septic systems. Simply put, this statement is erroneous. The RFP, as written, contains general plans to eliminate a number of package treatment plants and failing septic systems consistent with growth throughout the planning area. The circuit court’s decision noted that the deputy secretary’s determination on this point was supported by substantial evidence.

c. Sanitary Sewer Overflows and Combined Sewer Overflows

Again, the Alliance argues that the RFP fails because it does not provide a mechanism in the plan for elimination of SSOs and CSOs. The hearing officer, the deputy secretary, and the Franklin Circuit Court Judge, however, all found that detailed requirements for assessing SSOs and CSOs are not established under 401 KAR 5:006 but rather are found in the Clean Water Act and the Kentucky Division of Water Regulations. Moreover, a reading of 401 KAR 5:006 Section 4 does not specifically mention these issues. Thus, returning to the principles of statutory construction, it is inappropriate for courts to add new requirements to an approved regulation. Under basic principles of statutory construction, we assume that the

“[legislature] meant exactly what it said, and said exactly what it meant.” Revenue Cabinet v. O’Daniel, 153 S.W.3d 815, 819 (Ky.2005) (citing Stone v. Pryor, 103 Ky. 645, 45 S.W. 1136, 1142 (1898) (Waddle, S.J.dissenting)). “Consequently, the intention of the administrative agency is found in the words used in the regulation and not from surmising an intention that is not expressed.” Flying J Travel Plaza v. Commonwealth of Ky., Transportation Cabinet, Department of Highways, 928 S.W.2d 344, 347 (Ky.1996) (citing Kentucky Association of Chiropractors, Inc. v. Jefferson County Medical Society, 549 S.W.2d 817 (Ky.1977)).

Alliance for Kentucky’s Future, Inc. v. Environmental and Public Protection Cabinet, 310 S.W.3d 681, 2008 WL 4531018 (Ky.App.2008).

Notwithstanding that these factors are not specifically cited by the administrative regulation, the RFP itself did address the issue of SSOs, CSOs, and sewer rehabilitation. Both the seven-volume facility plan and the testimony of many engineers show that part of the facility planning process dealt with these issues. Additionally, the Franklin Circuit Court, following the deputy secretary’s finding that the RFP did not have to include specific details of SSO and CSO control and remediation plans, held that it was not necessary to render a decision about appellees’ argument concerning the consent decree because the issue was mooted by the finding that specifics concerning SSOs and CSOs do not have to be included in the RFP.

d. Federal Involvement

With regards to the requirements for the SPEAR as well as the entire RFP, the Alliance contends the Cabinet’s approval was contrary to law because it did not comply with 40 Code of Federal Regulations (CFR) 35.3140 and 40 CFR 6.506 nor with the capitalization agreement between the Cabinet and the Environmental Protection Agency (EPA). But the Cabinet found these assertions to be inaccurate because no federal involvement attended this wastewater treatment proposal.

The Alliance makes a vague reference to Section 208 of the Clean Water Act and states that it necessitates a broad interpretation of 401 KAR 5:006. But Section 208 of the Clean Water Act provides for the creation of Regional Water Quality Management Plans. In the 1970s, the United States EPA designated the Ohio-Kentucky-Indiana Regional Council of Governments (OKI) as the Section 208 area-wide waste treatment management agency. This plan has not been updated since that time and is not applicable to the regional planning agencies of Kentucky.

Also, the Alliance suggests that 401 KAR 5:006 should be construed to require an environmental assessment process based on National Environmental Policy Act (NEPA) standards; but, the record does not support such an assertion. First, NEPA standards only apply in federal actions. Still no federal involvement has occurred in the review, development, or approval of the RFP. But, even if there had been federal involvement, there is still no basis for extending the administrative language of 401 KAR 5:006 to encompass such a requirement. Neither NEPA nor NEPA standards are mentioned, and therefore, there is no basis to insert this requirement into the process. Thus, we find, relying again on the plain meaning of the administrative regulation, that the deputy secretary and the Franklin Circuit Court Judge correctly interpreted 401 KAR 5:006.

Based on the administrative language in 401 KAR 5:006 and the Franklin Circuit Court’s decision that more specific plans for addressing package treatment plants, septic systems, SSOs and CSOs, and other detailed wastewater infrastructure design is reasonable, we uphold the trial court’s decision. And the extensive record in the case provides substantial evidence that the RFP in question contained the mandated information for the proposed Western Regional Wastewater Treatment Plant to comply with 401 KAR 5:006, and thus, was not arbitrary.

CONCLUSION

After reviewing the entire record before us, we conclude that the circuit court’s affirmance of the deputy secretary’s final order was proper. The record reveals that the Cabinet acted within its powers granted by statute, no evidence was provided that any party’s due process rights were violated, substantial evidence existed to support the Cabinet’s decision, and the correct rule of law was applied.

In sum, we hold that the substantial evidence supported the Franklin Circuit Court’s determination that the RFP in question met the requirements of 401 KAR 5:006. The Western Regional Wastewater Treatment Plant has been approved since 2002 after thorough and extensive litigation at the preliminary stages. We, however, disagree with the appellee, Sanitation District # 1 that the appellant’s challenge to the RFP is moot. The RFP has been reviewed by a hearing officer, a deputy secretary, a circuit court, and now by us. We affirm the decision of the Franklin Circuit Court.

ALL CONCUR.


source: Caselaw Access Project

author: WINE, Judge.

license: Public Domain

text:
    Allen W. HATCHER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2008-CA-001569-MR.
    Court of Appeals of Kentucky.
    March 12, 2010.
    As Modified April 23, 2010.

      Allen W. Hatcher, West Liberty, KY, pro se.
    Jack Conway, Attorney General of Kentucky, Wm. Robert Long, Jr., Assistant Attorney General, Frankfort, KY, for ap-pellee.
    Before KELLER and WINE, Judges; LAMBERT, Senior Judge.

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

   OPINION

WINE, Judge.

Allen Hatcher, pro se, appeals from the denial of a Kentucky Rules of Criminal Procedure (“RCr”) 11.42 motion. Hatcher argues on appeal that he received ineffective assistance of counsel because of trial counsel’s alleged failure to challenge the jury instructions, to object to amendment of the charges, to adequately investigate the prosecution’s witnesses, and to raise double jeopardy as an issue. Upon careful review of the record, we reverse the trial court’s order of July 16, 2008, denying Hatcher RCr 11.42 post-conviction relief; vacate Hatcher’s conviction and sentence for murder; and remand for a new trial on the charge of murder.

Background

On the evening of November 6, 2003, Edward Tankersley and Chris Sexton met at a bar where they drank several beers. The pair also smoked marijuana and used cocaine. While at the bar, Tankersley suggested to Sexton that they go to meet a girl he knew. Once the bar closed, the pair traveled to the home of Hatcher in the early hours of the morning of November 7, 2003. Before entering the residence, the pair allegedly “did a line” of cocaine together. Further, Tankersley allegedly asked Sexton, “Have you got my back?” before they entered the residence. As Tankersley lmocked on the door of Hatch-er’s home, Sexton went back to the car to get a beer. Tankersley entered the residence and allegedly began speaking with Paula Beckner — the young lady they had driven to see.

Sexton testified at trial that, upon entering the residence, he observed Tankersley speaking to Beckner. Sexton testified that the pair sat next to a tray containing a large quantity of marijuana. Sexton further testified that he observed Hatcher suddenly appear and yell at Tankersley, “I told you to get out of my house.” He testified that Hatcher went to the back room of the residence and re-emerged with a gun. Hatcher allegedly shouted at Tankersley, “I told you to get the f_out of my house” before shooting him in the leg. Sexton ran out of the house in fear after seeing Hatcher shoot Tankersley. However, fearing for Tankersley, Sexton allegedly ran back to retrieve him. As Sexton was attempting to drag Tankersley from the doorway of the home, he claims that Hatcher walked up and shot Tankers-ley in the head.

Sexton testified that as he began dragging Tankersley to his vehicle, James Rodney Gross approached and helped him carry Tankersley to the vehicle. He testified that Gross also attempted to give him directions to the hospital. Thereafter, Sexton drove Tankersley to the nearest trailer to get help. The occupants of the trailer called 911, and police were called to the scene. Tankersley died shortly thereafter. Police searched Hatcher’s residence within hours of the shooting. They found evidence of the shooting as well as evidence that someone had attempted to clean up the area where Tankersley had been shot. In addition, methamphetamine and over eight ounces of marijuana were found, as well as numerous other items of drug paraphernalia and a methamphetamine precursor.

On December 15, 2003, an Edmonson County Grand Jury indicted Hatcher, Beckner, and Gross for Tankersley’s murder as well as for several other drug-related charges. All of the indicted offenses stemmed from the events occurring in the early morning hours of November 7, 2003.

At trial, Hatcher, Beckner, and Gross all testified to the events of the evening of November 6, 2003. Their testimony differed in important respects from Sexton’s testimony. They testified that Tankersley pushed his way into the house when Gross answered the door, knocking Gross backwards. Gross testified that he had never seen Tankersley before. Hatcher testified that he had not seen Tankersley for about a year and a half since Tankersley allegedly stole some tools from Hatcher’s wood shop. Hatcher further testified that he asked Tankersley to leave, but Tankersley said, “I’ll go when I’m f_ing ready.” Gross testified that Tankersley stated, “You can’t make me leave.” Hatcher testified that he went to the bedroom to get his gun, returned with the gun, and again told Tankersley to leave. He testified that the first shot he fired from the gun (which hit Tankersley in the leg) was not meant to hit Tankersley — only to scare him into leaving. Both Hatcher and Gross testified that Tankersley was apparently unphased by being shot in the leg.

Hatcher testified that Sexton ran up to the door behind Tankersley and noticed that Tankersley had been shot in the leg. Gross testified that Sexton ran back off the porch after exclaiming that he had firearms in his vehicle and would kill them all and “cut the house in half.” Gross and Hatcher both testified that Sexton appeared moments later, running onto the porch again. Hatcher testified he believed that Sexton handed Tankersley a gun at this point and that he then shot Tankers-ley in self defense.

Gross testified that after initially fleeing the house in fear, he observed Hatcher’s dogs behaving as if they were going to attack Sexton and Tankersley while Sexton was attempting to drag Tankersley to the car. Gross helped Sexton carry Tankers-ley to the car. He further testified that Beckner gave him towels to use in aiding Tankersley and he wrapped Tankersley’s head in towels to slow the bleeding. Gross further testified that Beckner gave him a phone to give to Sexton so that he could call 911. Gross testified that he thought 911 had been called and therefore directed Sexton to begin driving in the direction of the hospital so that he could meet the ambulances on the roadway.

Another witness at trial, Kenneth Bell— a jailhouse informant for the Commonwealth — also testified to the events of that evening. He testified that he became acquainted with Hatcher in jail and that Hatcher told him that he shot Tankersley because of a dispute over money, claiming Tankersley owed him money from a prior drug transaction. Bell testified that Hatcher never mentioned he was acting in self-protection or that he believed Tank-ersley had a gun.

The jury convicted Hatcher of murder, trafficking in marijuana (more than eight ounces), possession of drug paraphernalia while in possession of a firearm, possession of a methamphetamine precursor while in possession of a firearm, tampering with physical evidence, and trafficking in a controlled substance while in possession of a firearm. The jury recommended a total sentence of thirty years’ imprisonment, which was imposed by the Edmonson Circuit Court.

Hatcher appealed as a matter of right to the Kentucky Supreme Court, and the judgment was affirmed on August 24, 2006. Hatcher then initiated federal habe-as proceedings in the Western District of Kentucky. The District Court found that Hatcher had failed to exhaust his state court remedies and is currently holding the matter in abeyance for Hatcher to pursue post-conviction relief in state court (prompting the action herein). On May 8, 2008, Hatcher filed an RCr 11.42 motion with the trial court. The motion was denied by the trial court on July 16, 2008. Hatcher now appeals from the denial of his RCr 11.42 motion.

Analysis

On appeal Hatcher argues that his trial counsel’s performance was deficient because of counsel’s alleged failure (1) to challenge the indictment; (2) to adequately investigate the prosecution’s witnesses; (3) to raise a double jeopardy challenge; and finally, (4) to object to the jury instructions.

In order to prevail on a claim of ineffective assistance of counsel, a defendant must show that his trial counsel’s performance was deficient and that such deficiency prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), as adopted by Gall v. Commonwealth, 702 S.W.2d 37 (Ky.1985). Thus, under Strickland, the petitioner must show both incompetence and prejudice. The standard for counsel’s competence is whether “counsel’s representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688, 104 S.Ct. 2052. The standard for prejudice is whether “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052.

Fatal Variance from the Indictment

First, Hatcher challenges two variances between the indictment and the instructions given to the jury. He contends that there was a “fatal variance” between the murder instruction given to the jury and the murder charge contained in the indictment and that the jury instruction constructively amended the indictment. While the caption on the indictment stated “Murder,” citing KRS 507.020, the language in the charging instrument stated as follows:

COUNT ONE: That on or about November 6, 2003 in Edmonson County, Kentucky, the above-named defendant, Allen Hatcher, alone or in complicity with Paula Beckner and James Gross, committed the offense of Murder, when he intentionally caused the death of Edward Tankersley, Jr.

(Emphasis added.)

Hatcher contends that he should not have been tried for wanton murder when the indictment stated that he “intentionally” killed Edward Tankersley. His argument is not well-taken. The language in the indictment put him on notice that he was charged with murder under KRS 507.020. See e.g., Thomas v. Commonwealth, 931 S.W.2d 446, 449 (Ky.1996) (“An indictment is sufficient if it fairly informs the accused of the nature of the charged crime ... ”). Intentional murder and wanton murder are the same offense under Kentucky law. KRS 507.020. See also, Schambon v. Commonwealth, 821 S.W.2d 804, 810 (Ky.1991); and Evans v. Commonwealth, 45 S.W.3d 445 (Ky.2001). In addition, pursuant to RCr 6.16, a court may permit an indictment “to 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.” (Emphasis added.) No new evidence was required to prove wanton murder. As such, counsel was not ineffective for failing to object to this constructive amendment of the indictment. Furthermore, as we are remanding for a new trial on the murder charge for the reasons set out below, Hatcher can suffer no prejudice from the variance.

Hatcher’s second argument alleges that counsel was ineffective for failing to challenge the indictment on the grounds that he was convicted of trafficking in marijuana when he was only indicted for possession of marijuana. The caption of the indictment stated that Hatcher was being charged with trafficking in marijuana under KRS 218A.1421(3), yet the count in the indictment described the offense as possession rather than trafficking. Although the variance between the offense as charged and the offense presented to the jury is significant, we find that Hatcher was not unfairly prejudiced. To begin, had trial counsel objected to the constructive amendment of the indictment, the Commonwealth could have moved to amend the indictment under RCr 6.16. Indeed, there is no evidence that Hatcher’s substantial rights would have been prejudiced by such an amendment as the trafficking charge stemmed from possession of a large enough quantity of marijuana that trafficking was presumed. As such, the facts to prove both were the same. Given the overwhelming evidence concerning drugs in this case, and the fact that the caption in the indictment notified the defendant of the charge, there is no reasonable probability, under the second prong of Strickland, supra, that the outcome would have been different.

Denial of Adequate Investigation

Hatcher further argues that he was denied the opportunity to adequately investigate the prosecution’s witness when the trial court refused to continue the trial when the Commonwealth waited to disclose a jailhouse informant until roughly one week before trial. However, we fail to see how Hatcher’s trial counsel was deficient for the trial court’s refusal to continue the case. Hatcher concedes in his brief that trial counsel objected to any testimony by Bell, the jail inmate, because the information had been divulged just one week prior to trial. “The granting of a continuance is in the sound discretion of a trial judge, and unless from a review of the whole record it appears that the trial judge has abused that discretion, this court will not disturb the findings of the [trial] court.” Williams v. Commonwealth, 644 S.W.2d 335, 336-337 (Ky.1982).

This is an issue which Hatcher should have raised on direct appeal, and as such, we do not need to reach this issue herein. Brown v. Commonwealth, 788 S.W.2d 500, 501 (Ky.1990); Thacker v. Commonwealth, 476 S.W.2d 838, 839 (Ky.1972).

Double Jeopardy

Next, Hatcher claims that he received ineffective assistance of counsel because his trial counsel failed to raise double jeopardy. Hatcher claims that counsel should have realized that the charges for trafficking in marijuana, trafficking in methamphetamine, and possession of a methamphetamine precursor all arose from the same conduct, thus implicating double-jeopardy.

Hatcher’s reliance on Commonwealth v. Grubb, 862 S.W.2d 883 (Ky.1993) is misplaced. Grubb was convicted of multiple counts of drug trafficking for two drugs of the same schedule where all counts arose from the same transaction. Further, Grubb relies on the “single impulse”/“single conduct” test for double jeopardy adopted in Ingram v. Commonwealth, 801 S.W.2d 321 (Ky.1990). The Kentucky Supreme Court has overruled Ingram and adopted the “distinct element” test of Blockburger v. U.S., 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). See also Commonwealth v. Burge, 947 S.W.2d 805 (Ky. 1997). Hatcher was convicted of trafficking in marijuana, more than eight ounces but less than five pounds (firearm en-hancedXKRS 218A.1421(3)); first-degree trafficking in a controlled substance (firearm enhanced)(KRS 218A.1412); and possession of a methamphetamine precursor (firearm enhanced)(KRS 218A.1437), each requiring proof of different elements and each stemming from the possession of a different substance or precursor (marijuana, methamphetamine, and a methamphetamine precursor), and each involving a different subsection of KRS 218A. Thus, those convictions could not have violated the double jeopardy clause of the Fifth Amendment. Trial counsel was not ineffective for failing to raise a double jeopardy challenge.

Failure to Challenge Jury Instructions

Hatcher’s final argument for ineffective assistance of counsel is that trial counsel failed to object to the combination instruction for murder which allegedly contained “mandatory inferred conclusory presumptions,” rather than “permissive inferences.”

Jury Instruction No. 5, the instruction for murder, read as follows:

You will find the Defendant, Allen Hatcher, guilty of Murder under this instruction, if and only if, you believe from the evidence beyond a reasonable doubt all of the following:
A. That in this county on or about November 6, 2003, and before the finding of the Indictment herein, he killed Edward Tankersley by shooting him;
AND
B. That in so doing;
(1) He caused the death of Edward Tankersly [sic] intentionally and not while acting under the influence of extreme emotional disturbance;
OR
(2) He was wantonly engaging in conduct which created a grave risk of Death to Edward Tankersly [sic] under circumstances manifesting an extreme indifference to human life.
AND
C That in so doing he was not privileged to act in self-protection.

The term “wantonly” was separately defined for the jury. However, the phrases “under circumstances manifesting an extreme indifference to human life” and “extreme emotional disturbance” were not defined for the jury. There was no separate instruction or definition for self-protection.

Hatcher argues that the instruction improperly required the jury to infer a presumed fact based upon proof of a predicate fact. He argues that the predicate fact is “wantonness” and that the presumed fact is “under circumstances manifesting extreme indifference.” Hatcher alleges that this presumption effectively allowed the jury to evaluate the case under the standard for second degree manslaughter (■wantonness), yet convict for wanton murder (wantonness plus extreme indifference ).

Hatcher’s argument is without merit. We begin by noting that this instruction is the exact model instruction from Cooper’s Kentucky Instructions to Juries. While not binding on our Courts, we have often found this instruction to be persuasive. 1 Cooper, Kentucky Instructions to Juries (Criminal) § 3.24. Further, our Courts have approved of the use of this same instruction in numerous circumstances, provided there is evidence for both intentional murder and wanton murder. See, e.g., Parker v. Commonwealth, 241 S.W.3d 805, 810 (Ky.2007) and Hudson v. Commonwealth, 979 S.W.2d 106 (Ky.1998). Moreover, we note that the Kentucky Supreme Court has previously held that it is not error to provide the jury with alternate instructions for both wanton and intentional murder when the defendant is claiming self-protection. Allen v. Commonwealth, 5 S.W.3d 137 (Ky.1999). Accordingly, while we find no fault with trial counsel’s failure to object to the combination instruction, we reiterate a point which the Kentucky Supreme Court has strongly emphasized — that the preferred practice is for the trial court to include a form verdict that allows the jury to state whether they are finding the defendant guilty of intentional murder or wanton murder. Benjamin v. Commonwealth, 266 S.W.3d 775, 785 (Ky.2008). See also, Hudson v. Commonwealth, supra. Such separate verdict forms are especially appropriate when, as in this case, the evidence arguably may not support either intentional or wanton conduct.

We now turn to Hatcher’s next argument, that counsel failed to object to the jury instructions on the grounds that they did not include a definition or separate instruction for extreme emotional disturbance (“EED”) or self-protection. We agree that when a murder instruction includes a reference to EED, the jury must be given a definition of extreme emotional disturbance to accompany that instruction. See, e.g., 1 Cooper, Kentucky Instructions to Juries (Criminal) § 3.21 (Comment Section). Otherwise (as occurred in the present case), the jury is left to determine whether a defendant did or did not act under such disturbance without any legal ground upon which to base such determination. As such, counsel should have objected to the murder instruction because it stated the defendant could not be found guilty of murder if he were operating under EED but then failed to define the term for the jury. Further, we agree that self-protection should have been defined by a separate instruction, as the jury was left to determine whether Hatcher acted in self protection with no legal basis upon which to decide the question.

Further, Hatcher argues that his counsel was deficient for failing to request an instruction on imperfect self-protection. This argument concerns the “wanton or reckless belief qualification” to a defendant’s subjective belief in the need for self-protection as described in Commonwealth v. Hager, 41 S.W.3d 828, 841 (Ky.2001). Namely, Hatcher contends that counsel was deficient for failing to demand an instruction on both perfect and imperfect self-protection.

It is a bedrock principle of law in this Commonwealth that the trial court must instruct the jury on “the [whole] law of the case,” including every theory of the case deducible therefrom. RCr 9.54(1). See also, Lee v. Commonwealth, 329 S.W.2d 57, 60 (Ky.1959) and Manning v. Commonwealth, 23 S.W.3d 610, 614 (Ky.2000). Indeed, a criminal defendant is entitled to have the jury instructed on self-protection if it is “supported to any extent by the testimony.” Thomas v. Commonwealth, 170 S.W.3d 343, 349 (Ky.2005) (Emphasis added). Additionally, we reiterate the long-standing principle that the doctrine of self-protection turns upon a defendant’s subjective belief of the need to use force, rather than the trial court’s interpretation of whether such a belief was objectively reasonable. See, e.g., Hayes v. Commonwealth, 870 S.W.2d 786, 787-88 (Ky.1994), and Commonwealth v. Hager, 41 S.W.3d at 842. See also Kentucky Revised Statute (“KRS”) 503.050. As such, the argument advanced by the Commonwealth that Hatcher was not entitled to a separate self-protection instruction because there was “little evidence” of self-protection, or that the only evidence of self-protection was the testimony of Hatch-er and his two co-defendants, is unpersuasive.

Further, we note that although self-protection turns on the defendant’s subjective belief in the need to use force, a defendant may be mistaken in his belief that force is required. Hager, supra. Indeed, a defendant may be so sorely mistaken in his belief in the need to use force that his mistaken belief itself may “constitute wantonness or recklessness with respect to the circumstance then being encountered.” Id. at 842. This is precisely the “wanton or reckless belief’ qualification to a defendant’s belief in the need for self-protection that is discussed in Hager. In situations where such a belief is wantonly or recklessly held, self-protection is unavailable as a defense to all offenses having a mens rea of wantonness or recklessness. KRS 503.120(1). See also, Elliott v. Commonwealth, 976 S.W.2d 416, 422 (Ky.1998), and Hager, supra. In these situations, however, self-protection can still be used to negate an intentional mental state, such as that required for intentional murder. Id. See also, Abramson, Kentucky Practice, Vol. 10, Substantive Criminal Law, 2d Ed., 2000 (Pocket Part § 5.31). Indeed,

[A]ll KRS 503 justifications, including self-protection, are premised upon a defendant’s actual subjective belief in the need for the conduct constituting the justification and not on the objective reasonableness of that belief.... [However], the statute recognizes that a defendant may be mistaken in his belief and that the mistaken belief, itself, may be so unreasonably held as to constitute wantonness or recklessness with respect to the circumstance then being encountered. If so, the statute provides that the justification, e.g., self-protection, is unavailable as a defense to an offense having the mens rea element of wantonness, e.g. second-degree manslaughter, or recklessness, e.g., reckless homicide, “as the case may be.”
Thus, while a wantonly held belief in the need to act in self-protection is a defense to an offense having the mens rea element of intent, it supplies the element of wantonness necessary to convict of second-degree manslaughter; and while a recklessly held belief in the need to act in self-protection is defense to an offense requiring either intent or wantonness, it supplies the element of recklessness necessary to convict of reckless homicide.

Id. at 842 (internal citations omitted).

Hager outlines the effect that a wanton or recklessly-held belief in the need for self-protection has on the various degrees of homicide, as follows:

1. Intentional murder or first-degree manslaughter
a. Actual belief not wantonly or recklessly held = acquittal.
b. Wanton belief = second-degree manslaughter, because it constitutes a defense to intentional conduct, the mens rea element of both intentional murder and first-degree manslaughter, but it is unavailable as a defense to wantonness, the mens rea element of second-degree manslaughter.
c. Reckless belief = reckless homicide, because it constitutes a defense to intentional conduct, the mens rea element of both intentional murder and first-degree manslaughter, and to wantonness, the mens rea element of second-degree manslaughter, but is unavailable as a defense to recklessness, the mens rea element of reckless homicide.
2. Wanton Murder
a. Actual belief not wantonly or recklessly held = acquittal.
b. Wanton belief = second-degree manslaughter, because it negates the aggravating element of “extreme indifference to the value of human life” necessary to convict of wanton murder, but is unavailable as a defense to wantonness, the mens rea element of second-degree manslaughter.
c. Reckless belief = reckless homicide, because it negates the element of “extreme indifference to the value of human life” necessary to convict of wanton murder, and constitutes a defense to wantonness, the mens rea element of second-degree manslaughter, but is unavailable as a defense to recklessness, the mens rea element of reckless homicide.

Id. at 843 (Other degrees of homicide omitted). Thus, if the jury had been properly instructed on both perfect self-protection (an actual belief in the need for self-protection) and imperfect self-protection (a wanton or reckless belief in the need for self-protection), it is possible that the jury could have believed that Hatcher held either an actual or wanton belief in the need for self-protection, thus resulting in either an acquittal or the result that intentional or wanton murder would have been reduced to a lesser degree of homicide. Regardless, it is clear that the failure to instruct the jury on perfect and imperfect self-protection was prejudicial.

However, this action is before us on the denial of an RCr 11.42 motion. Although we are persuaded that Hatcher did not receive a fair trial because of the failure to instruct the jury on the whole law of the case, the question is whether counsel’s representation fell below an objective standard of reasonableness and whether such failure prejudiced Hatcher’s case. We can most certainly say that the second prong of Strickland is met as there is a reasonable probability that the result would have been different but for these errors. The only question left is whether the actions taken by counsel were deficient, falling below an objective standard of reasonableness.

We note that Hatcher’s counsel did request that the jury be instructed on self-protection before the instructions were drafted. However, he made no objection to the instructions once written, despite the fact that the instructions only fleetingly referenced self-protection in the murder instruction and no separate self-protection instruction was included. Further, counsel did not request an instruction on imperfect self-protection. In all fairness to defense counsel, he had already been in court for nearly 13 hours by the time the court asked him to state his objections to the instructions. Nevertheless, the assistance he provided fell below an objective standard of reasonableness.

Hatcher was provided ineffective assistance of counsel because counsel failed to object that there was no separate self-protection instruction, failed to object that self-protection was not even defined for the jury despite the lack of instruction (the jury being left with no legal basis upon which to decide whether Hatcher acted in self-protection), failed to request an imperfect self-protection instruction, and failed to request that EED be defined for the jury. Moreover, although not raised by Hatcher in this action, defense counsel also failed to object to the instructions on the grounds that there should have been an instruction on second-degree manslaughter as a lesser-included offense to wanton murder. Parker, supra. Finally, although not necessarily objectionable, it would have been preferable for counsel to request that form instructions be used for the combination instruction on intentional and wanton murder so as to distinguish between whether the jury was finding Hatcher guilty of intentional murder or wanton murder. Benjamin v. Commonwealth, supra.

Thus, under the atypical circumstances presented to us in this case, we hold that the record establishes that both prongs of Strickland, supra have been met and an evidentiary hearing is not required.

Conclusion

For the foregoing reasons, we reverse the trial court’s order of July 16, 2008, denying Hatcher post-conviction relief under RCr 11.42, vacate Hatcher’s conviction and sentence for murder, and remand for a new trial solely on the charge of murder and its lesser included offenses. Each of Hatcher’s other convictions is unaffected.

On retrial, form instructions should be used to distinguish between intentional and wanton murder. Moreover, second-degree manslaughter must be instructed upon as a lesser included offense of wanton murder. Further, EED must be defined for the jury, and the jury must be instructed that it is not applicable to wanton murder. Finally, separate instructions on both perfect and imperfect self-protection and their effects on the various degrees of homicide are required and should model the instructions offered by the Kentucky Supreme Court in Hager, supra.

ALL CONCUR.

      . The instruction is verbatim except for prong "C," which is not explicitly called for in Cooper’s, but is, nonetheless, proper under Allen v. Commonwealth, 5 S.W.3d 137 (Ky.1999) and Wallen v. Commonwealth, 657 S.W.2d 232 (Ky.1983).

      . However, although this issue was not raised by Hatcher in this action, the Kentucky Supreme Court has directed that when wanton murder is instructed upon, there must also be an instruction on second-degree manslaughter as a lesser included offense. Parker, supra. It does appear that counsel should have objected to the failure to instruct upon second-degree manslaughter.

      . Moreover, as a combination instruction was used for intentional and wanton murder, the jury should have been instructed that EED is not applicable to wanton murder, but only to intentional murder, as EED is not a mitigating element to crimes having a mens rea of wantonness. See, e.g., Todd v. Commonwealth, 716 S.W.2d 242, 246 (Ky.1986).

      .Importantly, as the jury was never advised that self-protection is to be analyzed from a defendant's subjective perspective, the jury may well have determined that Hatcher did not act in self-protection based upon their own interpretation of whether the belief was objectively reasonable. This is but one of many mistakes the jury could have made in determining whether Hatcher acted in self-protection, given that they were provided absolutely no guidance as to how to analyze whether Hatcher acted in self-protection.

      . On Thursday, July 7, 2005, before adjourning for the day, the trial judge made known his intention that the trial would be completed the next day. On the morning of July 8, 2005, court reconvened at 8:52 a.m. By the time the trial court asked defense counsel whether he had any objections to the instructions, it was 9:35 p.m. at night (some twelve hours and forty-three minutes since court had reconvened that morning). Tellingly, one attorney could be heard to exclaim only minutes later: “I wish we could come back tomorrow.” (What is more remarkable — although not relevant to the issues raised in the present appeal — is that the jury was not excused until 5:36 a.m. on Saturday morning, some twenty-one hours after they arrived in court).

      . Under Fraser v. Commonwealth, 59 S.W.3d 448 (Ky.2001), an evidentiary hearing is not required unless there is a "material issue of fact that cannot be conclusively resolved, i.e., conclusively proved or disproved, by an examination of the record.” Id. at 452. In the present case, it is apparent on the face of the record that counsel did not object to the jury instructions on any of the grounds noted herein, nor did he tender his own instructions or request an instruction for imperfect self-protection, thus depriving the jury of the ability to decide by the appropriate legal standards whether Hatcher acted under EED, in perfect self-protection, or in imperfect self-protection.


author: PER CURIAM.

text:
    William Fitzgerald HARRISON, Appellant, v. STATE of Missouri, Respondent.
    No. WD 70761.
    Missouri Court of Appeals, Western District.
    March 30, 2010.
    Kent Denzel, Assistant State Public Defender, Columbia, MO, Attorney for Appellant.
    Chris Koster, Attorney General, Jayne T. Woods, Assistant Attorney General, Jefferson City, MO, Attorneys for Respondent.
    Before Division III: JAMES E. WELSH, Presiding Judge, and MARK D. PFEIFFER and KAREN KING MITCHELL, Judges.
   Order

PER CURIAM.

William Fitzgerald Harrison appeals the Circuit Court of Callaway County’s denial of his Rule 29.15 motion in which he alleged that he received ineffective assistance of counsel. On appeal, Harrison presents four points. We affirm in this per curiam order. Rule 84.16(b).


author: PER CURIAM:

text:
    David P. LEONARD, Appellant, v. Steven FRISBIE, et al., Respondent.
    No. WD 70421.
    Missouri Court of Appeals, Western District.
    March 30, 2010.

      David P. Leonard, Appellant, pro-se.
    Theodore A. Bruce, for Respondent.
    Before Division Two: JOSEPH M. ELLIS, Presiding Judge, VICTOR C. HOWARD, Judge and JAMES E. WELSH, Judge.
   PER CURIAM:

David Leonard appeals from the circuit court’s judgment dismissing his petition for “Writ of Mandamus, Judicial Enforcement Under 610.027, MSL [Missouri Sunshine Law], FOIA [Freedom of Information Act] and Brady.” After a hearing, the circuit court dismissed Leonard’s petition and held that Leonard had previously litigated the same issues and was unsuccessful. We dismiss Leonard’s appeal.

Leonard was convicted of two counts of selling a controlled substance by the St. Charles County Circuit Court and received a sentence of fifteen years’ imprisonment. State v. Leonard, 157 S.W.3d 331 (Mo.App. E.D.2005). On August 1, 2008, Leonard filed the current petition. In his petition, Leonard claimed that the Respondents, the Missouri Highway Patrol (MHP) and Attorney General’s office, continuously refused to comply with his requests for documents and audio recordings in their possession that Leonard claimed would exonerate him. The Respondents filed a motion to dismiss, contending that the petition should be dismissed because Leonard previously litigated the same claims. The circuit court held a hearing on November 7, 2008, and dismissed Leonard’s petition, finding that Leonard had a full and fair opportunity to previously litigate his claim.

On appeal, Leonard’s argument is extremely convoluted but appears to be that the circuit court relied on false and misleading information when it dismissed Leonard’s petition and that the circuit court violated his constitutional rights by not requiring the respondents to produce the requested documents. However, we are unable to conduct meaningful appellate review because of the inadequacies and insufficiencies of Leonard’s appellate brief and the lack of a sufficient record on appeal.

Leonard has failed to furnish us with a transcript of the proceedings from which he appeals, although claiming a hearing was conducted. “On appeal, a trial court judgment is presumed valid, and the burden is on appellant to show the incorrectness of the judgment. It is essential that this court have all the evidence necessary to decide the questions presented.” In re Estate of Abbott, 944 S.W.2d 279, 284 (Mo.App. S.D.1997) (internal quotation and citations omitted). Without the transcript, we have no way of knowing what evidence, if any, was presented. Accordingly, we are unable and unwilling to convict the trial court of error without knowing what was presented to it. Kennco Contractors, Inc. v. Duncan, 53 S.W.3d 557, 559 (Mo.App. S.D.2001).

Leonard’s brief also fails to comply with Rule 84.04 in virtually every respect and renders his claims largely incomprehensible. Rule 84.04 sets forth various requirements for appellate briefs and compliance with these requirements is “mandatory in order to ensure that appellate courts do not become advocates by speculating on facts and on arguments that have not been made.” Browm v. Ameristar Casino Kansas City, Inc., 211 S.W.3d 145, 147 (Mo.App. W.D.2007) (internal quotation omitted). “Violations of Rule 84.04 are grounds for a court to dismiss an appeal.” Shochet v. Allen, 987 S.W.2d 516, 518 (Mo.App. E.D.1999). In this case, Leonard’s violations of Rule 84.04 conjoined with his failure to provide us with a sufficient record on appeal go beyond impeding our ability to dispose of the appeal on the merits. They actually prevent us from reaching the merits.

First, Leonard’s jurisdictional statement is merely an assertion that jurisdiction lies with this court. Such bare recitals “are insufficient as jurisdictional statements.” Rule 81.01(b).. “The jurisdictional statement shall set forth sufficient factual data to demonstrate the applicability of the particular provision or provisions of Article V, section 3, of the Constitution whereupon jurisdiction is sought to be predicated.” Id. Leonard’s jurisdictional statement does not set forth facts regarding the nature or claims of the underlying case to indicate that jurisdiction is proper in this Court.

Second, Leonard’s statement of fact fails to provide us with “an immediate, accurate, complete and unbiased understanding of the facts of the case.” McCullough v. McCullough, 195 S.W.3d 440, 442 (Mo.App. S.D.2006). Rather, Leonard’s statement of fact is unclear, biased, and argumentative. Pursuant to Rule 84.04(c), Leonard was to provide a “fair and concise statement of the facts relevant to the questions presented for determination without argument.” Leonard fails to provide us with such a statement. Moreover, Leonard’s statement of facts improperly references matters outside what was presented to us in the record on appeal. See Pattie v. French Quarter Resorts, 213 S.W.3d 237, 239 (Mo.App. S.D.2007).

Third, Leonard’s points relied on fail to comply with the requirements of Rule 84.04(d)(1) in that the points must “identify the trial court ruling or action that the appellant challenges; ... state concisely the legal reasons for the appellant’s claim of reversible error; and ... explain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error.” Although Leonard followed the “roadmap” outlined by Rule 84.04(d)(1), Leonard’s points are largely unintelligible and fail to state any legal reasons for his claims of reversible error.

Finally, a gratuitous review of the judgment, briefs, and record before us, to the extent that we can even identify what Leonard complains of, suggests that he was convicted of two counts of sale of controlled substance and sentenced to two terms of fifteen years’ imprisonment. In this suit, he is apparently trying to obtain records he claims the Respondents have and withheld from him during his prosecution. From the record on appeal Leonard filed in this case, it appears that he previously filed another “Petition for Writ of Mandamus” in the Circuit Court of Cole County, case number 07AC-CC00212, seeking the same records, and that petition was dismissed on February 4, 2008. According to the Respondents’ brief, this lawsuit “is the third of three separate suits in which [Leonard] claims that there were police reports relating to his criminal case in existence that were never disclosed to him or his attorney during his criminal trial.” In any event, the trial court held a hearing in this case on November 7, 2008, and dismissed Leonard’s petition, finding that Leonard had a full and fair opportunity to previously litigate his claim.

The doctrine of res judicata, or claim preclusion, “prevents a party from relit-igating facts or questions that have been settled by judgment on the merits in a previous action.” Healthcare Servs. of the Ozarks, Inc. v. Copeland, 198 S.W.3d 604, 612 (Mo. banc 2006). To invoke res judicata, “a final judgment on the merits must have been rendered involving the same claim or issue sought to be precluded in the cause in question.” Lomax v. Sewell, 50 S.W.3d 804, 809 (Mo.App. W.D.2001) (quotation marks and citation omitted). Collateral estoppel, or issue preclusion, “precludes relitigation of an issue previously decided and incorporated into an earlier judgment.” Sexton v. Jenkins & Assocs., Inc., 152 S.W.3d 270, 273 (Mo. banc 2004). “The doctrine requires that the issue was fully and fairly litigated, that the issue was essential to the earlier judgment, and that the earlier judgment be final and binding on the party against whom it is asserted.” Id.

City of Kansas City v. Chung Hoe Ku, 282 S.W.3d 23, 32 (Mo.App. W.D.2009).

The record that Leonard has provided to us does not contain the transcript, judgments, and related court documents that would be necessary to enable us to determine whether the trial court correctly reached its decision. And we will most certainly “not convict a trial court of error when there is no evidence in the record from which to substantiate an appellant’s claim.” Thomas v. Dir. of Revenue, 874 S.W.2d 427, 429 (Mo.App. W.D.1994). As can be seen, the net effect is that we have no way to conduct meaningful appellate review.

For the foregoing reasons, Leonard’s appeal is dismissed.

All concur.


author: ALOK AHUJA, Judge.

text:
    Jerry JACKSON, Appellant, v. STAHL SPECIALTY CO., Respondent.
    No. WD 70909.
    Missouri Court of Appeals, Western District.
    March 30, 2010.

      Rick E. Koenig, Esq., Sedalia, MO, for appellant.
    Anne Wickliffe, Esq., Kansas City, MO, for respondent.
    Before LISA WHITE HARDWICK, P.J., and JAMES M. SMART, JR, and ALOK AHUJA, JJ.
   ALOK AHUJA, Judge.

Jerry Jackson filed a motion to approve a settlement of his workers’ compensation claim against Stahl Specialty Company. An Administrative Law Judge (“ALJ”) in the Division of Workers’ Compensation denied the motion, concluding that he lacked authority to resolve the parties’ dispute as to whether they had in fact agreed to a final and binding settlement. The Labor and Industrial Relations Commission dismissed Jackson’s application for review on the ground that it lacked statutory authority to review the ALJ’s order. Jackson appeals. Because we lack appellate jurisdiction over the Commission’s interlocutory ruling, we dismiss.

Factual Background

Jerry Jackson was injured in an on-the-job accident in August 1999, while working for Stahl. Following a hearing in 2003, Jackson was awarded temporary total disability benefits and medical treatment as needed. Jackson, who is now fifty-eight years old, continues to receive those benefits. He also receives Social Security disability benefits.

The parties entered into mediation in June 2006 and continued to negotiate into early 2007. Jackson claimed that the parties agreed to settlement terms, and a proposed stipulation was drafted. At that point, Jackson said, Stahl stated that it would not go forward with the settlement the parties had discussed.

On August 24, 2007, Jackson’s attorney filed a motion with the Division to approve the purported settlement pursuant to § 287.390. An ALJ held a hearing on the motion in January 2009. At the outset, the ALJ expressed doubts that he had authority to resolve a dispute as to a purported settlement agreement.

Off the record, I had indicated to all counsel that I believe under [§ ] 287.390 there is no settlement because the language of the statute indicates that a settlement is only a settlement once the Administrative Law Judge signs and approves that settlement. There being no such agreement or document, ... I have represented to counsel I don’t believe I have jurisdiction to entertain the motion since there, to my knowledge, is no motion practiced in Division of Workers’ Compensation.

Despite the stated reservations, the ALJ permitted the hearing to proceed to allow Jackson to make a record in the event he sought further review.

Described generally, Jackson’s evidence indicated that, on or about March 14, 2007, Stahl had agreed to settle his claim for $200,000, plus one half of the Medicare set-aside trust amount, which the parties anticipated would total $8,610.72. Stahl would continue to pay temporary total disability benefits until an ALJ approved the agreement. All authorized medical expenses incurred to date would be paid by Stahl, and Jackson would reimburse Medicare for any unauthorized medical payments. The parties agreed to wait for Medicare approval of the set-aside trust before submitting the agreement to the ALJ for approval. After a stipulation memorializing the agreement had been drafted, Stahl’s attorney called Jackson’s attorney and said Stahl would not follow through with the agreement. The stipulation was accordingly never executed. In November 2007, Jackson sought Medicare’s approval of the set-aside trust amount. Medicare approved the set-aside trust, in the amount the parties had anticipated (rounded to the nearest whole dollar).

Following the hearing the ALJ issued an Order Denying Claimant’s Motion to Approve Settlement. Consistent with the ALJ’s comments at the outset of the hearing, the Order concluded that:

the Claimant has no basis to request the [ALJ] to enforce a settlement for which there had been no executed documents by the parties themselves for ... a judge to approve and there has been no approval of said proposed settlement by an [ALJ] to enforce.

The ALJ further found Jackson’s motion to be frivolous under § 287.560, and ordered costs assessed against Jackson and his attorney.

Jackson filed an application for review with the Commission. Citing § 287.480, the Commission held:

The [ALJ’s] Order is not an award under the Workers’ Compensation Law. In considering a compromise agreement, the administrative law judge is not called upon to determine a dispute and render an award as provided in section 287.460 RSMo....
Because we have no statutory authority to consider the Application for Review from the administrative law judge’s order denying approval of the settlement, we dismiss the Application for Review for lack of jurisdiction.

(Citation omitted.) Jackson appeals.

Analysis

Generally, our review of a workers’ compensation award is governed by article V, § 18 of the Missouri Constitution and § 287.495. See Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 222 (Mo. banc 2003). We review the Commission’s ruling, not that of the ALJ. Roberts v. City of St. Louis, 254 S.W.3d 280, 283 (Mo.App. E.D.2008).

Stahl contends the appeal must be dismissed because § 287.495.1 authorizes appellate review only of the Commission’s “final awards.” We agree.

We have no appellate jurisdiction in workers’ compensation cases except as expressly conferred by statute. Section 287.495 states that final awards of the commission may be appealed. A final award is one which disposes of the entire controversy between the parties to the claim. Finality is found when the commission arrives at a terminal, complete resolution of the case before it. An order lacks finality where it remains tentative, provisional, contingente, or] subject to recall, revision or reconsideration by the commission.

Smith v. Semo Tank & Supply Co., 99 S.W.3d 11, 13 (Mo.App. E.D.2002) (citations omitted); see also, e.g., Doerr v. Teton Transp., Inc., 258 S.W.3d 514, 520 (Mo.App. S.D.2008); Braswell v. Mo. State Highway Patrol, 249 S.W.3d 293, 297 (Mo.App. S.D.2008).

Under this finality requirement, courts have repeatedly held — with exceptions not relevant here — that no appellate jurisdiction exists to review temporary or partial awards of benefits made pursuant to § 287.510. See, e.g., Doerr, 258 S.W.3d at 520-21; Braswell, 249 S.W.3d at 297-98. Similarly, this Court has no appellate jurisdiction to review a Commission decision which remands a workers’ compensation case to the ALJ for further factual development. See, e.g., Nisbett v. Tri-State Motor Transit, 45 S.W.3d 545, 545-46 (Mo.App. S.D.2001) (dismissing appeal where the Commission, on review of an ALJ decision denying all benefits, entered an “Order Remanding to Allow Record to be Supplemented,” to permit the claimant to depose a medical witness).

Smith v. Semo Tank applied these finality principles to the precise situation involved here. In Smith, the claimant reneged on an agreement he had previously reached with his employer to settle his workers’ compensation claim for a lump-sum payment of $135,000. Despite the claimant’s belated rejection of the settlement, the ALJ approved it over his objection. The claimant then sought review with the Commission. 99 S.W.3d at 12. The Commission ruled that the alleged settlement was a “nullity” and was not in the best interest of the claimant or in accordance with the rights of the parties. Id. at 13. It remanded the case to the ALJ. Id. The employer appealed. The Eastern District dismissed the appeal. The court held that it lacked appellate jurisdiction to review the Commission’s rejection of the claimed settlement, because the Commission’s order rejecting the settlement was not a final disposition. Id. at 13-14. The court distinguished Ayotte v. Pillsbury Co., 871 S.W.2d 139, 142 (Mo.App. S.D.1994), in which the Commission had issued a final award based on a purported settlement that had been approved, since in Ayotte the Commission’s approval of the settlement in fact finally terminated the claimant’s workers’ compensation proceeding. Smith, 99 S.W.3d at 13-14.

Under Smith and the finality principles it applies, we lack appellate jurisdiction to review the Commission order Jackson challenges. The Commission has not issued a final, complete, and terminal disposition of Jackson’s workers’ compensation claim; to the contrary, from all that appears Jackson continues to receive temporary total disability benefits and medical treatment, and his workers’ compensation claim remains pending in the Division of Workers’ Compensation. Jackson’s attempt to appeal from an interlocutory order which does not fully and finally resolve his claim must be dismissed.

Seeking to avoid this result, Jackson relies heavily on Strange v. SCI Business Products, 17 S.W.3d 171 (Mo.App. E.D.2000). Strange reviewed by appeal — and reversed — a Commission decision which refused to approve a settlement agreement. The simple answer to Jackson’s reliance on Strange is that the court did not address the basis for its appellate jurisdiction. Indeed, the first sentence of the Strange opinion states without elaboration that the employer “appeals from' a final award of the [Commission] which affirmed the award of the [ALJ] granting [claimant’s] claim for temporary or partial award” (the same order which also refused to enforce the settlement agreement). Id. at 172 (emphasis added). Under the case-law cited above, however, with limited exceptions neither a temporary or partial award of benefits, nor the refusal to approve a settlement, constitutes an immediately appealable “final award.” Yet Strange offers no justification for its statement that it was reviewing an appealable “final award.” Given its failure to identify any basis for its own jurisdiction, and in light of the later decision in Smith v. Semo Tank, Strange cannot be relied upon to establish a party’s right to immediate appellate review of a Commission decision which refuses to approve the settlement of a workers’ compensation claim.

Although we lack appellate jurisdiction, we recognize that Jackson may be able to seek a writ of mandamus to challenge the Commission’s refusal on jurisdictional grounds to review the ALJ’s order, and/or the ALJ’s underlying conclusion that he lacked statutory authority to decide whether a settlement had been reached. Cf. State ex rel. Stewart v. McGuire, 838 S.W.2d 516, 518 (Mo.App. S.D.1992) (“[W]here a circuit court, having obtained jurisdiction, refuses to proceed in the exercise thereof to a determination on the merits, and there is no adequate remedy by appeal, it may be compelled to do so by mandamus.”). We also recognize that “[i]n limited circumstances, this Court will treat improper appeals as applications for original writs.” In the Interest of N.D.C., 229 S.W.3d 602, 604 (Mo. banc 2007); see also State v. Larson, 79 S.W.3d 891, 893-94 (Mo. banc 2002). In the circumstances here, we decline to consider Jackson’s appeal as an application for a writ of mandamus. The Commission is not a party to this proceeding. We believe that Smith v. Semo Tank, and the well-established finality principles it applies, should have alerted Jackson that an appeal was not available in these circumstances. Moreover, the availability of an extraordinary writ may present its own procedural difficulties, none of which have been addressed by the parties.

Conclusion

For the foregoing reasons, we conclude that the Commission decision Jackson challenges is not a final award subject to review by appeal. Jackson’s appeal is accordingly dismissed.

All concur.

      . Statutory references are to the RSMo 2000, updated through the Cumulative Supplement 2005.

      . "A Medicare Set Aside Trust is a trust created to hold the amount Medicare would reasonably be expected to expend for the employee in question, over his or her lifetime, for the injury at issue.” Roberts v. City of St. Louis, 254 S.W.3d 280, 282 n. 1 (Mo.App. E.D.2008).

      . Section 287.480.1 provides in relevant part: "If an application for review is made to the commission within twenty days from the date of the award, the full commission ... shall review the evidence, or ... hear the parties ... and shall make an award[.]”

      . Roberts v. City of St. Louis, 254 S.W.3d 280 (Mo.App. E.D.2008), on which Jackson relies, is distinguishable for the same reasons as Ayotte: in Roberts, the Commission actually entered a final award based on a purported settlement agreement, thereby rendering a decision which resulted in a complete and terminal resolution of the proceeding, properly subject to review on appeal.

      . Based on our disposition, we do not address Jackson's further contention that the ALJ erroneously assessed costs against him and his attorney based on the finding that Jackson's motion to enforce settlement was filed "without reasonable ground" under § 287.560. Jackson presumably may request review of this ruling by the Commission, and by this Court as necessary, after a reviewable final award is entered on his workers’ compensation claim. We do not regard this attempted appeal as frivolous, and accordingly deny Stahl's motion to be awarded its costs on appeal.


text:
    Patricia D. HENSLEY, Appellant, v. URSULINE ACADEMY, Respondent, and Christina Reichardt and Linda Sampson, Defendant.
    No. ED 93360.
    Missouri Court of Appeals, Eastern District, Division One.
    March 30, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 12, 2010.
    Patricia Wilcox, St. Louis, MO, for appellant.
    Christopher Bailey, Anthony Behr, Co-Counsel, St. Louis, MO, for respondent.
    Before KATHIANNE KNAUP CRANE, P.J., CLIFFORD H. AHRENS, J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Patricia Hensley appeals from the trial court’s grant of Ursuline Academy, Kirk-wood, Missouri’s motion for summary judgment on her petition for libel and slander. This Court has reviewed the Motion taken with the case. Respondent’s Motion to Dismiss Appellant’s Appeal or Alternatively to Strike Portions of Appellant’s Brief is denied.

No jurisprudential purpose would be served by a written opinion reciting the detailed facts and restating the principles of law. The parties have been furnished with a memorandum opinion for their information only, which sets forth the facts and reasons for this order.

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


author: LAWRENCE E. MOONEY, Judge.

text:
    GLICK FINLEY LLC et al., Plaintiffs/Appellants, v. Thomas G. GLICK, Defendant/Respondent.
    No. ED 93002.
    Missouri Court of Appeals, Eastern District, Division Three.
    April 6, 2010.

      Terrance J. Good, Saint Louis, MO, for Appellants.
    John R. Gunn, Saint Louis, MO, for Respondent.
   LAWRENCE E. MOONEY, Judge.

The plaintiffs, Glick Finley LLC (the firm) and Karen Finley, appeal the November 2008 judgment entered by the Circuit Court of the City of St. Louis. In this judgment, the court accepted the receiver’s final report and ordered compensation for the receiver, distribution of cash and property, preparation and filing of articles of dissolution for the firm and corresponding publication of notices, preparation and filing of final tax returns, and payment of the receiver’s $1 bond. The court’s judgment further provided that upon the receiver’s filing of a certificate of completion of the enumerated actions, the receiver shall be discharged. The receiver filed a certificate of completion, which was unverified. When the plaintiffs sought the trial court’s review of the actions of the receiver, the trial court disclaimed any jurisdiction to review the receiver’s compliance with its various orders.

We conclude that the trial court’s judgment is not a final, appealable judgment because it is conditioned on the future completion of numerous actions. We dismiss the appeal for lack of a final judgment.

The plaintiff Karen Finley and the defendant Thomas Glick are attorneys who joined their solo practices to create Glick Finley LLC. After a few years with the firm, Glick notified Finley of his intended departure for a larger St. Louis-area law firm. The parties’ relationship quickly and seriously deteriorated. The firm and Finley sued for injunctive relief against Glick, which the trial court granted. Glick counterclaimed for dissolution of the firm and appointment of a receiver. Finding that the parties could not peaceably coexist in a working environment, the trial court judicially dissolved the firm and appointed a receiver. The receiver filed an interim report in September 2007, which the trial court ultimately accepted as an inventory, and the receiver filed his final report in August 2008. The parties filed numerous objections and exceptions to the final report, and the firm and Finley filed a request for findings of fact and an accounting. Without an evidentiary hearing, the trial court denied all objections and exceptions and the request for findings of fact and an accounting when it issued the November 2008 judgment.

The firm and Finley moved for a new trial and again sought findings of fact and conclusions of law. In early January 2009, the receiver “found some additional funds” that he distributed to the parties and their clients, never obtaining judicial approval or ratification. The receiver filed his report of compliance on January 26, 2009, and sought the court’s order discharging him. The court neither accepted the receiver’s report of compliance nor discharged the receiver. The firm and Finley filed objections and exceptions to the receiver’s report of compliance, again sought an inventory and an accounting, and objected that the latest tax returns were prepared incorrectly. Apparently believing he was still engaged, the receiver moved in March 2009 to quash a subpoena to the firm’s bank issued by the plaintiffs. In April 2009, the trial court denied all pending motions “for lack of jurisdiction because more than 90 days has transpired since the filing of plaintiffs motion for new trial.” The firm and Finley appeal.

In four points on appeal, the firm and Finley claim the trial court erred in denying their after-trial motions for lack of jurisdiction, in approving the receiver’s final report without evidence that it was correct and complete, in approving the receiver’s final report because the receiver failed to properly perform his duties, and in denying their requests for findings of fact.

The right to appeal is purely statutory. Oasis Car Wash, Inc. v. First North County Bank, 558 S.W.2d 683, 685 (Mo.App.St.L.1977). An aggrieved party may appeal the final judgment in the case or from any special order after final judgment. Section 512.020 RSMo. (Supp.2009). Exceptions exist for enumerated orders and interlocutory judgments.

In every appeal, this Court must determine whether we have authority to decide it on its merits. Comm. for Educ. Equal. v. State, 878 S.W.2d 446, 450 (Mo. banc 1994); Bannister v. Pulaski Fin. Corp., 255 S.W.3d 538, 541 (Mo.App. E.D. 2008). This judgment does not fall within any of the exceptions enumerated in section 512.020, including an appeal from an order refusing to revoke, modify, or change an interlocutory order appointing a receiver. Therefore, an appeal pursuant to section 512.020 depends upon a final, appealable judgment. A final, appealable judgment disposes of all issues and all parties in the case, leaving nothing for future determination. Id.; Steinmann v. Davenport, 97 S.W.3d 18, 20 (Mo.App. E.D.2002). Where the trial court fails to either resolve all the issues as to all parties or to expressly designate no just reason for delay under Missouri Supreme Court Rule 74.01(b), we must dismiss the appeal. Id.

In Oasis Car Wash, this Court determined that an order approving a receiver’s purported final accounting was not a final, appealable judgment because the successor receiver was still carrying out his duties in the continuing receivership. 558 S.W.2d at 687. And in Steinmann, we held that the judgment was not final and appealable where the trial court left something for future determination, namely an accounting, various winding-up activities, and a final report and accounting. 97 S.W.3d at 19.

Here, the November 2008 judgment does not resolve all issues. Instead, the judgment is conditioned on several actions that the receiver must complete in the future, including paying debt, distributing cash to Finley and Glick, filing articles of dissolution with the secretary of state, publishing notices of dissolution, preparing and filing federal, state, and city tax returns, depositing into the court registry the bond that the court had ordered paid eighteen months earlier, and filing a certificate of completion of the enumerated actions. The court’s judgment states that the receiver would be discharged upon the future filing of a certificate of completion.

Thus, the court’s November 2008 judgment directed the receiver to complete numerous remaining duties. The receiver’s failure to deposit the court-ordered bond until after entry of the judgment, the requirement to prepare and file tax returns in the future, the post-judgment discovery of additional assets distributed without court approval or later ratification, the absence of any review and acceptance of the receiver’s report of compliance, and the failure to discharge the receiver all lead us to conclude that the November 2008 judgment is not a final, appealable judgment.

Furthermore, due process requires that we remand the cause. The receiver’s final report and the exceptions thereto occupy the status of pleadings, with the report having the relative status of a petition and the exceptions having the corresponding status of an answer. Naslund v. Moon Motor Car Co., 345 Mo. 465, 134 S.W.2d 102, 105 (1939). The burden of proof rests on the receiver as upon a plaintiff. Id. “A report or account of a receiver is to be examined closely, but in a spirit of equity.” 75 C.J.S. Receivers sec. 455 (2002). All interested persons must be given notice and have a right to be present and to be heard on the passing of a receiver’s accounts. 75 id. sec. 456.

Here, the parties repeatedly filed objections and exceptions, but the trial court heard no evidence following the August 2008 final report. In essence, the court accepted the receiver’s report, denied the parties’ objections and exceptions, and entered what purports to be a final judgment based solely on the pleadings. See Naslund, 134 S.W.2d at 105. And despite entry of what purports to be a final judgment, the receiver undertook further actions, including discovering and distributing additional assets, preparing and filing tax returns, posting bond, reporting compliance with court instructions, and seeking discharge from his duties. The firm and Finley filed additional objections and exceptions, regarding which the court heard no evidence, and which the court ultimately rejected, based on a perceived lack of jurisdiction. Thus, the parties had no opportunity to be heard or to present evidence regarding the receiver’s final report, his later actions, or the report of compliance.

Glick maintains that the November 2008 judgment was a final, appealable judgment because it resolved all issues, leaving nothing for final determination, and that this appeal is untimely. Under Glick’s analysis, no court might ever be able to review acceptance of a receiver’s final report. The judgment could become final, and the time for appeal could lapse, before the receiver completed the ordered future actions and filed a report of compliance. Indeed, the receiver here filed his report of compliance more than sixty days after the court entered its judgment. Absent a timely, authorized after-trial motion, the judgment would become final, and the trial court would lose jurisdiction thirty days after the judgment’s entry. Rule 81.05(a). The time for filing a notice'of appeal would expire ten days after that, Rule 81.04(a), regardless of whether the receiver had completed the ordered actions or reported compliance therewith. Glick also contends that the receiver’s actions are not renewable on appeal “because they have no direct bearing on any action of the trial court.” However, the receiver is a ministerial officer and representative of the court, who is accountable to the court, and the receiver’s office is in the nature of a fiduciary. 75 C.J.S. Receivers sec. 139. In sum, under Glick’s analysis, the trial court’s actions might be unreviewable because the time for appeal could lapse and the receiver’s actions would be unreviewable because they occurred after the purported judgment.

Rule 68 establishes the proper procedure for masters and receivers. Rule 68.01 sets forth a more detailed procedure governing masters than does Rule 68.02 governing receivers. Nonetheless, the law regarding masters illustrates the limits of a court’s delegation of its authority. While a court may appoint a master to aid the judge in specific duties, a court cannot delegate or abdicate its judicial power. Hoffman v. Hoffman, 292 S.W.3d 436, 437 (Mo.App. E.D.2009). The trial court must examine and consider the evidence for itself, and determine whether the law and facts justify the judgment recommended by the master. Id. Rule 68.01(g) requires the master to file a report, and the parties have the opportunity to file written objections. If a party files objections, then the court must conduct a hearing before taking further action. Rule 68.01(g)(3); Hoffman, 292 S.W.3d at 438. Rule 68.01(g) mandates the procedure to be employed by the trial court in adopting a master’s report in order, to guarantee due process to the parties. Id. Due process in the adoption of a master’s report requires notice and an opportunity for a hearing, and a meaningful opportunity for a hearing includes a reasonable time in which to challenge the master’s report before the judge. Id. Due process commands no less when the court appoints a receiver.

We conclude that the trial court’s November 2008 judgment is not a final, ap-pealable judgment. The judgment fails to dispose of all issues in the case because it is conditioned on the future completion of numerous actions. We dismiss the appeal. After the trial court conducts a hearing resolving the parties’ objections and exceptions, the trial court may order the final distribution of all properties and discharge the receiver. Upon entry of such final, appealable judgment, any party aggrieved by the judgment may appeal.

MARY K. HOFF and ROY L. RICHTER, JJ., concur.

      . Among the pending motions was the receiver's motion for an order discharging him from his duties. Thus, the denial of “all pending motions’’ operated to deny this motion.

      . The following may also be appealed: an order granting a new trial; an order refusing to revoke, modify, or change an interlocutory order appointing a receiver or dissolving an injunction; an order granting or denying class-action certification under specified circumstances; and interlocutory judgments in partition actions that determine the parties’ rights. Section 512.020.

      . In this unusual appeal, the sole point of agreement among the parties may be that this Court has no authority to decide the appeal on its merits. The plaintiffs point to the lack of a final judgment. The defendant asserts that the plaintiffs’ notice of appeal is untimely. Despite their agreement on the proper resolution of this appeal — that the appeal should be dismissed — this Court is not relieved of its duty to determine the correct reason for the dismissal.

      . We deny Glide's motion to dismiss for failure to file a timely notice of appeal.


text:
    STATE of Missouri, ex rel. Jeremiah W. NIXON, Attorney General, State of Missouri, Respondent, v. Zachary A. SMITH, Appellant.
    Nos. WD 71040, WD 71149.
    Missouri Court of Appeals, Western District.
    April 6, 2010.
    Appellate acting pro se.
    Shaun J. Mackelprang and Laura E. Elsbury, Jefferson City, MO, for respondent.
    Before LISA WHITE HARDWICK, P.J., JAMES M. SMART, JR., and ALOK AHUJA, JJ.
   Order

PER CURIAM:

Zachary Smith appeals a judgment in favor of the State of Missouri in its action seeking reimbursement for the cost of Smith’s incarceration pursuant to the Missouri Incarceration Reimbursement Act (MIRA), sections 217.825-.841, RSMo. Affirmed. Rule 84.16(b).