text:
    Eric A. NORSWORTHY, Petitioner, v. Thomas O. CASTLEN, Special Judge, Ohio Circuit Court, Respondent. and Commonwealth of Kentucky, Real Party in Interest.
    No. 2010-CA-001117-OA.
    Court of Appeals of Kentucky.
    Aug. 12, 2010.

      David A. Lambertus, John Tim McCall, Louisville, EY, petition for Eric A. Nor-sworthy.
    Timothy R. Coleman, Commonwealth’s Attorney, Morgantown, KY, response for Commonwealth.
    Before TAYLOR, Chief Judge; ACREE and KELLER, Judges.
   OPINION AND ORDER

An Ohio County Grand Jury returned an indictment against the petitioner, Eric A. Norsworthy, a physician practicing medicine in Beaver Dam, Kentucky, charging him with 13 counts of unauthorized disclosure of prescription records from the Kentucky All-Schedule Prescription Records (KASPER) system and one count of intentional disclosure of those prescription records. The indictment is based upon allegations from an investigation by the Kentucky State Police and the Kentucky Board of Medical Licensure that Norswor-thy, or someone acting on his behalf, accessed the KASPER system for the improper and unlawful purpose of using that information to defend himself in a complaint filed before the Kentucky Board of Medical Licensure by a former patient. The findings of the investigations allege that Norsworthy improperly obtained and shared the patient’s KASPER records with Mr. David Lambertus, his counsel, during the administrative hearing concerning the complaint filed before the Board of Medical Licensure.

During the course of the underlying criminal proceeding in the Ohio Circuit Court, the Commonwealth filed a motion for in camera review of certain attorney-client communications between Mr. Lam-bertus and Norsworthy. Specifically, the motion for in camera review alleged that Norsworthy and members of his staff illegally accessed KASPER reports related to a former female patient and her family after the patient reported alleged sexual misconduct by Norsworthy to the Kentucky State Police and the Kentucky Board of Medical Licensure. According to the motion for in camera review, Norswor-thy’s alleged misuse of the KASPER system came to light when Mr. Lambertus, responding to a motion to quash a subpoena during the administrative proceedings before the Board of Licensure, referred to the patient’s purchase history and dosage of alparzolam. On March 3, 2010, the Commonwealth issued a subpoena to Mr. Lambertus requiring his appearance “to testify” and to bring the following documents:

Any and all filed and other documents pertaining to Mr. Lambertus’s representation of Dr. Eric Norsworthy before the Kentucky Board of Medical Licensure in Administrative Action No. 07-KMBL-0511, including, but not limited to, any and all communications between Mr. Lambertus (and his employees and representatives) and Dr. Norsworthy (and his employees and representatives) regarding any copies of, references to, or information contained in [C.F.] ’s KAS-PER report, medical records and other documents regarding medical treatment of [C.F.], and the source of any patient-specific pharmaceutical references in Mr. Lambertus’s file or pleadings before the KBML.

Norsworthy filed a motion to quash this subpoena. In his motion to quash, Nor-sworthy argued that the communications with his attorney are absolutely privileged and directly related to the matter for which Norsworthy sought legal advice. In response to the motion to quash, the Commonwealth asserted a crime/fraud exception to the attorney-client privilege contained in KRE 503(d)(1).

On April 9, 2010, the respondent, Special Judge Thomas 0. Castlen, participated in a conference call with the parties and with Mr. Lambertus’s attorney. Following this conference call, the Ohio Circuit Court entered an order on April 12, 2010, directing Mr. Lambertos to submit to the court under seal for in camera inspection copies of all documents within his possession and control, including correspondence, reports, memoranda, and notes, which reference the patient’s KASPER reports, pharmaceutical use or history or the patient’s pharmacist. In response to the April 12, 2010, order, Mr. Lambertos only submitted documents that were already in the public domain. On April 28, 2010, the Commonwealth issued another subpoena to Mr. Lambertos that was identical to the subpoena previously issued on March 3, 2010. Upon receipt of the April 28, 2010, subpoena, Norsworthy filed a second motion to quash the subpoenas. On June 2, 2010, the Ohio Circuit Court entered an order which stated:

IT IS HEREBY ORDERED AND ADJUDGED that Hon. David Lambertos shall produce to the Court for in camera review any and all documents, notes, computer files, and other records regarding communications between Defendant Norsworthy (and/or his agents) and Mr. Lambertos (and/or his agents) which relate to C.F.’s medical treatment or pharmaceutical history. The purpose of the Court’s in camera review is to determine whether any such evidence is protected by attorney-client privilege (KRE 503) or subject to the crime/fraud exception.

On June 14, 2010, Norsworthy filed this original action petitioning this Court for a writ prohibiting the Ohio Circuit Court from enforcing the June 2, 2010, order. In his petition for a writ of prohibition, Norsworthy argues that the records and testimony sought by the subpoena are absolutely privileged under the Sixth Amendment to the United States Constitution and KRE 503. In response to the petition for a writ of prohibition, the Commonwealth argues that Stidham v. Clark, 74 S.W.3d 719 (Ky.2002), authorizes a court to conduct an in camera review of the communications between Norsworthy and Mr. Lambertos to determine if any evidentiary privileges apply.

A writ of mandamus and/or prohibition will be granted only in the most exceptional of circumstances. Shobe v. EPI Corp., 815 S.W.2d 395, 397 (Ky.1991). Generally, a writ will be granted only if (1) the lower court is proceeding or about to proceed outside of its jurisdiction or (2) the lower court is about to act incorrectly, although within its jurisdiction, and there exists no adequate remedy by appeal or otherwise and great injustice and irreparable injury would result. Hoskins v. Maride, 150 S.W.3d 1 (Ky.2004). A writ must be granted where failing to do so would subject the defendant to great injustice and irreparable injury for which there is no adequate remedy. Chamblee v. Rose, 249 S.W.2d 775 (Ky.1952).

Norsworthy presents this matter to this Court as a writ of the second class. He argues that the Ohio Circuit Court acted erroneously within its jurisdiction by ordering his former counsel to disclose privileged communications and that no adequate remedy by appeal or otherwise exists, and that he will be subjected to irreparable injury and great injustice if forced to disclose any information claimed to be confidential under the attorney-client privilege. Norsworthy is correct that he would possess no adequate remedy by appeal because “there will rarely be an adequate remedy on appeal if the alleged error is an order that allows discovery.” Grange Mutual Ins. Co. v. Trade, 151 S.W.3d 803, 810 (Ky.2004). Moreover, taking as true Nor-sworthy’s claim of privilege, “there is no adequate remedy on appeal because the privileged information cannot be recalled once it has been disclosed.” Wal-Mart Stores, Inc. v. Dickinson, 29 S.W.3d 796, 800-01 (Ky.2000).

KRE 503(d)(1), Furtherance of Crime or Fraud, provides in pertinent part as follows:

There is no privilege under this rule: (1) If the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud[.]

“The attorney-client privilege is generally considered to be absolute as to communications made by or to a person advising with an attorney as to past transactions and offenses.” Steelvest, Inc. v. Scansteel Service Center, Inc. 807 S.W.2d 476, 487 (Ky.1991). “However, the rule does not apply to future transactions when the person seeking the advice is contemplating the committing of a crime or the perpetration of a fraud.” Id. In Standard Fire Ins. Co. v. Smithhart, 183 Ky. 679, 211 S.W. 441 (1919), the former Court of Appeals explained it is the professional character of a lawyer to give advice upon crimes or frauds that have already been committed.

In this matter, the Commonwealth has alleged that Norsworthy unlawfully accessed the female patient’s KASPER records and provided those records to Mr. Lambertos as part of the preparation of his defense to the administrative charges before the Board of Medical Licensure in violation of KRS 218A.202. The Commonwealth further argues that it provided sufficient evidence warranting an in camera review to determine whether the crime/ fraud exception to the attorney-client privilege applies.

The Supreme Court of Kentucky established the framework for in camera review in Stidham v. Clark, 74 S.W.3d 719, 727-28 (Ky.2002). In Stidham, the Court concluded that, “[a] bare allegation of a criminal purpose is insufficient to warrant an in camera review,” as such a standard would permit “ ‘opponents of the privilege to engage in groundless fishing expeditions with [trial] courts as their unwitting (and perhaps unwilling) agents.’ ” (quoting United States v. Zolin, 491 U.S. 554, 571, 109 S.Ct. 2619, 2630, 105 L.Ed.2d 469 (1989)). However,' a lesser evidentiary showing is needed to trigger in camera review than is required to overcome the privilege. Id. In quoting Zolin, 491 U.S. at 574-75, 109 S.Ct. at 2632, the Court further concluded that:

[B]efore a ... court may engage in in camera review at the request of the party opposing the privilege, that party must present evidence sufficient to support a reasonable belief that in camera review may yield evidence that establishes the exception’s applicability....
[T]he threshold showing to obtain in camera review may be met by using any relevant evidence, lawfully obtained, that has not been adjudicated to be privileged.

Id. Thus, the party opposing the privilege must first persuade the trial court by a preponderance of the evidence that the desired information either falls outside the scope of the privilege, or that an exception to the privilege exists.

Once this showing is made by a preponderance of the evidence:

the decision whether to engage in in camera review rests within the sound discretion of the trial court, considering such factors as the volume of materials the court is asked to review, the relative importance of the alleged privileged materials to the case, and the likelihood that the evidence produced by an in camera review, together with other available evidence then before the court, will establish that the privilege has been waived or that the communication or material is either outside the scope of the privilege or within a specified exception to the privilege.

Id.

We note that the privilege at issue in Stidham was not the attorney-client privilege, but rather the application of KRS 218A.280 to the psychotherapist-patient privilege. However, in relying on Zolin, which involved the crime/fraud exception to the attorney-client privilege, the Court in Stidham noted that it discerned no conceptual difference between the issue in Zolin and the application of KRS 218A.280 to the psychotherapist-patient privilege. Id. at 726. Thus, the standard for in camera review set forth in Stidham applies to the instant case.

With respect to this matter, the Ohio Circuit Court has not made any findings as to whether the Commonwealth has actually proven by a preponderance of the evidence that an exception to the attorney-client privilege would apply. Without any initial determination by the trial court that the Commonwealth has proven by a preponderance of the evidence that an exception to KRE 503 applies, an. in camera review would be premature.

Therefore, having considered the petition for a writ of prohibition filed herein by the petitioner, the response filed thereto by the real party in interest, and being otherwise sufficiently advised, this Court ORDERS that the petition for a writ of prohibition be, and it is hereby, GRANTED. The Ohio Circuit Court is hereby PROHIBITED from enforcing the June 2, 2010, order. This Court hereby DIRECTS the Ohio Circuit Court to conduct an evidentiary hearing to determine whether the exception to the attorney-client privilege of KRE 503(d)(1) would apply. Should the Ohio Circuit Court determine that an exception under KRE 503(d)(1) applies after making findings of fact under CR 52.01, it may then order an in camera review. The petitioner would then be entitled to request review of any order granting in camera review to this Court by means of an original action.

ALL CONCUR.

ENTERED: Aug. 12, 2010.

/s/ Michelle M. Keller JUDGE, COURT OF APPEALS

      . No record of this conference call was provided to this Court by the parties to this original action.


source: Caselaw Access Project

author: HARRIS, Senior Judge:

license: Public Domain

text:
    Melinda Suzanne COLEMAN, Appellant, v. Nicholas Bertram COLEMAN, Appellee.
    No. 2010-CA-000277-ME.
    Court of Appeals of Kentucky.
    Oct. 1, 2010.
    Theodore H. Lavit, Joseph R. Stewart, Lebanon, KY, for appellant.
    E. Gregory Goatley, Springfield, KY, for appellee.
    Before ACREE and NICKELL, Judges; HARRIS, Senior Judge.

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

   OPINION

HARRIS, Senior Judge:

This appeal is from the Washington Circuit Court’s order denying Melinda Coleman’s motion to modify the joint custody of her and Nicholas Coleman’s minor children. For the reasons stated herein, we vacate and remand.

Nicholas and Melinda Coleman were divorced by a decree entered January 9, 2004. Pursuant to the decree, the parties had joint custody of their minor children, ages seven and ten. Under the arrangement, each parent had the children four days a week and three days on alternate weeks.

Melinda filed a motion and affidavit for a change of custody. In the affidavit, Melinda stated that it would be in the best interests of the children if they resided primarily with Melinda. Melinda also made allegations in the affidavit that Nicholas drank excessively in the presence of the children, and that the children had bruises from the whippings administered by Nicholas. Nicholas subsequently filed an affidavit denying the allegations. The local social services office investigated Melinda’s claims and found them to be unsubstantiated.

Thereafter, a lengthy hearing was held at which Melinda testified that since the divorce she has had several different jobs, has had two domestic partners living with her in the presence of her children, and has moved to several different residences in two different counties.

After the trial court had heard Melinda’s testimony, she requested to call her ten-year-old daughter to testify in the case. The trial court denied Melinda’s request, stating his concerns about the girl’s age and the pressure that testifying would put on her. The trial judge also expressed concerns about putting a child of that age in the position of having to choose between her parents.

Counsel for Melinda then requested that the trial court permit the testimony of the child by avowal, which the trial court also denied. Finally, Melinda’s counsel requested that the trial court interview the child in chambers and outside of the presence of the parties or counsel, which request was also denied.

In a subsequent order, the trial court denied Melinda’s motion to modify custody, finding that the children were performing adequately in school and that they appeared to be well cared for under the existing arrangements. The trial judge found that Melinda had failed to meet the burden of proof of a change of circumstances so substantial and continuing as to justify a modification of custody. This appeal followed.

Melinda argues that the trial court committed palpable error by not permitting the testimony of the child by avowal, and that the trial court abused its discretion when it declined to interview the child in chambers.

Melinda cites the cases of Noel v. Commonwealth, 76 S.W.3d 923 (Ky.2002), and Commonwealth v. Ferrell, 17 S.W.3d 520 (Ky.2000), for the proposition that the trial court erred in not taking the testimony of the child by avowal or interviewing the child. However, unlike in criminal and other civil cases, the decision whether to interview the child is discretionary with the court. KRS 403.290(1); Brown v. Brown, 510 S.W.2d 14, 16 (Ky.1974). KRS 403.290 states that the Court may interview the child in chambers to ascertain the child’s wishes as to custody. The language of the statute is permissive and is left to the sound discretion of the trial judge. Therefore, we do not find that the trial court’s decision refusing to interview the child in chambers was an abuse of discretion.

Melinda also argues that the trial court erred in excluding the child from being called as a witness. Under Kentucky Rule of Evidence (KRE) 601(a), all persons are qualified to testify as a witness and are presumed competent unless the trial court makes a specific determination of incompetency pursuant to the rule. Specifically, the trial court must determine whether the witness: “(1) Lacked the capacity to perceive accurately the matters about which he proposes to testify; (2) Lacks the capacity to recollect facts; (3) Lacks the capacity to express himself so as to be understood, either directly or through an interpreter; or (4) Lacks the capacity to understand the obligation of a witness to tell the truth.” KRE 601(b)(1)-(4).

In Leahman v. Broughton, 196 Ky. 146, 244 S.W. 403 (1922), the Court found that it was reversible error for the trial court to exclude the testimony of an eight-year-old girl when the trial court made no determination as to the child’s competency. Specifically, the Court stated that:

understanding and intelligence, rather than age, is the test to be applied in determining the competency of an infant to testify as a witness in either civil or criminal cases, and ... it is common practice to admit the testimony of children 8 and 9 years of age where they seem to understand the obligation of an oath.

Id. at 404. (Internal quotations omitted). This case makes clear that anyone may testify as long as they are deemed to be competent.

However, under KRE 611(a)(3), the trial court retains discretion to “exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to ... [p]roteet witnesses from harassment or undue embarrassment.” KRE 611(a)(3).

In this case, it does not appear that Nicholas challenged the child’s competency as a witness, nor does it appear that the trial court made a determination as to the child’s competency as a witness. Rather, the trial court based its decision on concerns about the young age of the child and the potentially lasting effects resulting from the child testifying.

We believe that it was error to exclude the child’s testimony without a preliminary examination by the trial judge to determine her competency and, therefore, remand the case for further proceedings. We note that if an issue is raised on remand regarding the child’s competency, the trial court may determine the competency of the child under KRE 601, and the trial court has the authority under KRE 611(a)(3) to protect the child from harassment or undue embarrassment.

For the foregoing reasons, the order of the Washington Circuit Court is vacated and this case is remanded to Washington Circuit Court for further proceedings on Melinda’s motion to modify the joint custody consistent with this opinion.

ALL CONCUR.

      . We sometimes refer to the parties by their given names for the sake of clarity and with no disrespect intended.


text:
    Edward J. LADD, as Death Trustee of the Ladd Living Trust, dated June 23, 1997; and as Executor of the Estate of Jesse R. Ladd, Deceased, Appellant, v. Mary A. LADD, Appellee.
    No. 2009-CA-001630-MR.
    Court of Appeals of Kentucky.
    Oct. 1, 2010.

      Robert William Goff (argued), Paducah, KY, for appellant.
    Kerry D. Smith (argued), Paducah, KY, for appellee.
    Before MOORE and WINE, Judges; HARRIS, Senior Judge.

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

   OPINION

HARRIS, Senior Judge:

Edward J. Ladd, as death trustee of the Ladd Living Trust, and executor of the estate of Jesse R. Ladd, appeals from a McCracken Circuit Court declaratory judgment in favor of the appellee, Mary A. Ladd. After a careful review of the record and briefs and consideration of counsels’ oral arguments, we affirm in part, reverse in part, and remand for further proceedings.

On June 23, 1997, four months prior to his marriage to Mary, Jesse created the Ladd Living Trust (the “Trust”). On the same day, Jesse signed his Last Will and Testament (the “Will”) and an Assignment and Nominee Agreement (the “Assignment Agreement”).

The Trust document stated that Jesse was unmarried and had three children, Jesse J. Ladd, Edward J. Ladd, and David 0. Ladd. The Trust further stated that Jesse was assigning all of his presently owned and after-acquired property to the Trust, and provided that upon Jesse’s death, all of his assets would be distributed to his children, other than a 1994 Cadillac El Dorado Coupe, which would go to Mary. On the date that he signed the Trust, Jesse conveyed seven parcels of real estate, including his marital residence, from himself, individually, to the Trust. Jesse never expressly transferred or titled his remaining assets, neither assets he presently owned nor assets that he subsequently acquired, to the Trust. No reason was given as to why he failed to do so.

Jesse and Mary were married in October 1997. Mary contributed property and bank accounts to the marriage, and Jesse and Mary titled their bank accounts either jointly or in Jesse’s name, rather than in the name of the Trust. Moreover, Jesse and Mary paid their marital bills from joint bank accounts that they maintained throughout their marriage.

Thereafter, in August 2005, Jesse amended his Trust to provide that his primary residence, which he had previously deeded into the Trust, would be distributed to Mary upon Jesse’s death. Jesse made no other amendments to the Trust.

Jesse died on March 6, 2008, and Edward was appointed executor of Jesse’s estate. Edward took the position that all of Jesse’s assets belonged to the Trust rather than the estate. As a result, Edward asserted that the assets should be distributed to him and his brothers as death beneficiaries of the Trust, other than the residence addressed in Jesse’s only amendment to the Trust.

Mary never expressly relinquished her dower rights before or during the marriage and she filed a renunciation of the Will on May 29, 2008. Additionally, Mary filed this action seeking a declaratory judgment concerning the Trust, stating that she did not contest the terms of the Trust, but sought a ruling as to whether certain assets belonged in Jesse’s estate, where she would be a joint beneficiary, or in the Trust, where Edward and his brothers would be the sole beneficiaries.

Mary moved for a declaratory judgment on May 21, 2009. Although it appears that a hearing was scheduled for June 9, 2009, no record of a hearing was provided to this Court, and the trial court did not state in its findings of fact that a hearing occurred. On June 23, 2009, the trial court issued findings of fact, conclusions of law, and a judgment in favor of Mary. This judgment became final pursuant to the trial court’s order entered on August 10, 2009. Edward subsequently filed for a motion to alter, amend or vacate, which the trial court denied. This appeal followed.

I. THE APPLICABLE STANDARD OF REVIEW

Edward argues that the correct standard of review is the standard applicable to summary judgments, while Mary argues that the correct standard of review is the “clearly erroneous” standard. Kentucky Rules of Civil Procedure (CR) 52.01 provides that “[i]n all actions tried upon the facts without a jury ... [fjindings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” Conclusions of law, however, are reviewed de novo. Baza v. Rees, 217 S.W.3d 207, 209 (Ky.2006).

Alternatively, summary judgment serves to end litigation before a trial when there is no issue of material fact and the moving party is entitled to summary judgment as a matter of law. CR 56.03. On a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party, and summary judgment should be granted only if it appears impossible that the nonmoving party will be able to produce evidence at trial warranting a judgment in its favor. Steelvest, Inc. v. Scansteel Service Ctr., Inc., 807 S.W.2d 476, 480 (Ky.1991). Summary judgment “is only proper where the movant shows that the adverse party could not prevail under any circumstances.” Id. (citing Paintsville Hosp. Co. v. Rose, 683 S.W.2d 255, 256 (Ky.1985)). The party opposing summary judgment must present “at least some affirmative evidence showing that there is a genuine issue of material fact for trial.” Steelvest, 807 S.W.2d at 482.

The standard of review on appeal when a trial court grants a motion for summary judgment is “whether the trial court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law.” Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky.App.1996). Because summary judgment involves only legal questions and the existence of any disputed material issues of fact, “an appellate court need not defer to the trial court’s decision and will review the issue de novo.” Lewis v. B & R Corp., 56 S.W.3d 432, 436 (Ky.App.2001).

Edward argues that this Court should use the standard of review applicable to summary judgments because the trial court utilized the summary judgment standard in its findings of fact, conclusions of law, and judgment, and because no bench trial was ever conducted. Summary judgment may be granted in a declaratory judgment action. CR 56.01; Schmidt v. Hatpin, 351 S.W.2d 57, 58 (Ky.1961). Pursuant to CR 56.01, “[a] party seeking to ... obtain a declarator judgment may, at any time ... move with or without supporting affidavits for a summary judgment in his favor....” (Emphasis added). In cases where a summary judgment has been granted in a declaratory judgment action and no bench trial held, the standard of review for summary judgments is utilized. Godman v. City of Fort Wright, 234 S.W.3d 362, 368 (Ky.App.2007).

In this case, the trial court recognized that although Mary’s motion was styled a “Motion for Declaratory Relief,” it was procedurally a motion for summary judgment in the declaratory action. This recognition is evidenced by the trial court’s recitation of the summary judgment standard in its findings of fact, conclusions of law, and judgment. Moreover, although Mary argues in her brief that she was seeking a declaration of law and not summary judgment, a Stipulation and Agreed Order, drafted by Mary’s counsel and establishing the briefing schedule on Mary’s “Motion for Declaratory Relief,” identified the pending motion as a motion for summary judgment. Even more tellingly, the record does not reflect that a trial of any sort was held in the matter. We are persuaded that the judgment under review is a summary judgment; accordingly, we review it by analyzing the standard stated above, to wit, whether the trial court correctly found that there were no genuine issues of material fact and that the movant was entitled to judgment as a matter of law, with no deference to the trial court’s decision.

II. PROPERTY ALLEGEDLY TRANSFERRED TO THE TRUST AT THE TIME OF ITS CREATION

Edward argues that the trial court erred in determining that Jesse did not transfer all of his assets into the Trust, since the Trust documents indicated that Jesse intended for all of his property to be transferred into the Trust and that none remain outside of the Trust. Mary contends that a written declaration of trust is insufficient, by itself, to create a revocable living trust in real property, and that Jesse was required to have expressly transferred the property to the Trust or to himself as trustee.

Edward argues that the language of the Trust document and the Assignment Agreement confirm that Jesse intended to transfer all of his property to the Trust. In Article Two, Section 1 of the Trust, Jesse provided:

I hereby assign, convey, transfer and deliver to my Trustee all property set forth on Schedule “A,” attached hereto, and made a part of my Trust Estate.

Schedule A includes the following property:

Other than any property the transfer of which would cause taxable income or violate any agreements restricting transfer or ownership, any and all properties of all kinds, whether presently owned or hereafter acquired including, without limitation, the following....

Schedule A also contains a list of general items, which includes mutual and money market funds, securities, stocks, and accounts held at brokerage firms, and a list of specific items of property, including life insurance policies and all real property located in Paducah, McCracken County, Kentucky.

The Trust document further states that: All assets titled in the name of my Trust or in the name of my Trustee, but not listed on Schedule “A,” shall be considered a part of my Trust Estate as if they had been set forth on the attached Schedule.

Section 5 of the Trust document addresses “Property Held as Nominee,” stating:

For administrative convenience it is contemplated that certain assets may be added to my Trust Estate from time to time with the possession and control thereof retained by or redelivered to me. Notwithstanding such control or redelivery, such assets shall be assets of my Trust Estate and held by me as the nominee of my Trustee.

The Assignment Agreement executed simultaneously with the Trust document states:

Nominee intends to have transferred all property owned by Nominee to the Trust, including but not limited to the property identified on Schedule “A,” whether real or personal, tangible or intangible....

The Assignment Agreement further provides “Nominee intends that any Property presently owned or acquired hereafter by any means shall be owned by the Owner.” Furthermore, the Assignment Agreement provides:

The parties expressly acknowledge that Nominee is holding title to the Property as nominee for Owner(s) to the full extent of the interest therein. Nominee expressly acknowledges that Nominee has no interest whatsoever in the property and agrees that upon demand Nominee will convey possession of the property to the Owner(s).

Alternatively, Mary points to language contained on the first page before the body of the Trust document, which states:

IMPORTANT REMINDER
Your Living Trust will only control property which has been transferred into the name of the Trust. If property is not in the name of your Trust, it may be subject to ... probate court proeeed-ings and may not pass according to your Estate Plan....

Mary emphasizes the fact that Jesse did not transfer all of his property into the Trust, even though the Trust document contained the reminder, and even though Jesse did transfer some of his property to the Trust on the day that he signed the Trust documents.

Mary also points to the fact that Jesse received a subsequent reminder from his attorney to transfer any property that he wanted to become a part of the Trust. Nearly contemporaneously with the Trust’s creation, Jesse’s attorney gave him a letter instructing him to follow through with the transfer of his personal assets into the Trust, stating: “As you know, your Living Trust will only protect those assets that have had title formally changed to the [T]rust name.”

Notwithstanding Mary’s assertions, no authority appears to require that a set-tlor, who also names himself as trustee of a revocable living trust, must convey his property to the trust by separate instrument. To the contrary, all of the authorities support the conclusion that a declaration by the settlor that he holds the property in trust for another, alone, is sufficient.

Kentucky cases have specifically stated that one who is both the settlor and trustee of a trust need not transfer the legal title of the trust corpus. Specifically:

When a settlor is possessed of the legal title to the subject-matter of the settlement, he may create a valid trust thereof, either by a declaration that he holds the property in trust, or by a transfer of the legal title to the property to a third party upon certain trusts.... If he makes himself the trustee, no transfer of the subject-matter is necessary.

Reynolds v. Thompson, 161 Ky. 772, 171 S.W. 379, 383 (1914) (emphasis added). Further, “[o]ne voluntarily and without valuable consideration can completely divest himself of legal oumership of property without an actual transfer of the legal title by creating a valid trust and constituting himself as trustee for the beneficial owner.” DeLeuil's Ex’rs v. DeLeuil, 255 Ky. 406, 74 S.W.2d 474, 476 (1934) (emphasis added).

A review of pertinent sections of the Restatement (Second) of Trusts further illustrates our point. The Restatement echoes Reynolds by providing that a trust may be created by “(a) a declaration by the owner of property that he holds it as trustee for another person; or (b) a transfer inter vivos by the owner of property to another person as trustee for the transfer- or or for a third person.... ” Restatement (Second) of Trusts § 17 (1959). The comment to clause (a) states: “If the owner of property declares himself trustee of the property, a trust may be created without a transfer of title to the property.” Id.

To the same effect, Bogert in his treatise on trusts and trustees observes:

It is sometimes stated that the transfer by the settlor of a legal title to the trustee is an essential to the creation of an express trust. The statement is inaccurate in one respect. Obviously, if the trust is to be created by declaration there is no real transfer of any property interest to a trustee. The settlor holds a property interest before the trust declaration, and after the declaration he holds a bare legal interest in the same property interest with the equitable or beneficial interest in the beneficiary. No new property interest has passed to the trustee. The settlor has merely remained the owner of part of what he formerly owned.

George Gleason Bogert and George Taylor Bogert, The Law of Trusts and Trustees § 141 (2d ed., West 1979).

We conclude that the trial court erred to the extent that it based its determination of whether an asset belonged to the Trust solely on whether or not Jesse had transferred legal title to the Trust. Significant issues of fact exist to preclude summary judgment on the issue of what assets were transferred to the Trust at the time of its creation.

III. PROPERTY ACQUIRED AFTER CREATION OF THE TRUST

Property acquired after the creation of the Trust should not be considered as part of the Trust unless Jesse reaffirmed his intent to make it such. When a trust is created, the trust property's identity must be sufficiently definite. The Court of Appeals has explained that “[t]he property must then have been in existence and its identity definite so that it could be ascertained as to just what was set aside.” DeLeuil 74 S.W.2d at 477 (emphasis added). Where one declares a trust in property to be later acquired, and upon or after acquiring the property confirms his prior manifested intent to create the trust or repeatedly manifests such an intent, a trust is then created in the property. 8 A.L.R.3d 1416 § ll[a]-ll[b] (1965); Restatement (Second) of Trusts § 86 cmt. c (1959). Although no Kentucky law on the subject has been cited to us or found by our own efforts, the position of the Restatement concerning whether the settlor’s mere silence at the time of the acquisition of the property establishes his continuing intention to have the property be property of the trust is that resolution of the question depends upon the circumstances of the particular case. Restatement (Second) of Trusts § 26 (1959) and § 86 cmt. c (1959).

For illustration, and without limitation, the inclusion of both Jesse’s and Mary’s name on any after-acquired property is evidence of Jesse’s intent that the property not be included in the Trust as after-acquired property. We conclude that significant issues of material fact exist with respect to property allegedly acquired after the Trust was created, and summary judgment was not warranted concerning such property.

IV. MARTS DOWER RIGHTS

Significant factual issues also exist concerning the extent to which Mary’s dower rights affected the determination of which assets were Trust assets. These issues involve Mary’s knowledge of the terms of the Trust prior to her marriage to Jesse, and whether she consented to these terms, which would bar any claim of fraud on dower. See Mathias v. Martin, 87 S.W.3d 859, 861-62 (Ky.2002) (reasoning that “[i]gnorance of certain facts, known to the other party, but concealed, or misrepresented, is an essential ingredient to constitute fraud. If all the facts are known, there can be no deception; and if there be no imposition or deception, there cannot be any fraud”).

Material factual issues also exist regarding Jesse’s intent in transferring the property to the Trust, and whether or not he intended to defraud Mary of her dower rights. See Harris v. Rock, 799 S.W.2d 10 (Ky.1990); Rowe v. Ratliff, 268 Ky. 217, 104 S.W.2d 437 (1937). Summary judgment was inappropriate on these issues.

V. TRANSFER OF ASSETS OUT OF THE TRUST

Edward argues that the circuit court erred in determining that no issue of material fact existed with respect to whether certain assets were acquired with proceeds of Trust assets. We disagree. In Article Two, Section 3 of the Trust document, Jesse provided that:

All property transferred by me into my Trust shall retain its character. All such property transferred, and income thereon or withdrawals thereof, shall be my Trust Estate.

Edward claims that he was able to trace proceeds from Trust assets into certain brokerage accounts that are listed on the inventory of the estate. Therefore, Edward argues that because Jesse intended for the proceeds of Trust assets to retain their character as Trust assets, an issue of material fact existed with respect to Edward’s ability to trace the proceeds of Trust assets.

However, the Trust document itself permitted Jesse to utilize the Trust corpus during his lifetime for property over which he still exercised possession and control. The Trust document states that “[f]or administrative convenience it is contemplated that certain assets may be added to my Trust Estate from time to time with the possession and control thereof retained by me.” The document further provides that:

I may receive directly and devote to my own use and benefit any dividends, interest, income, or proceeds or distributions from or upon such assets and neither I nor my Trustee shall have any duty of accounting to the other or to any other person with regard thereto.

Moreover, “[a]ny sale, exchange, or other transfer of such assets by me shall constitute a withdrawal of such assets from the Trust Estate and my Trustee shall have no further interest therein.”

Here, Jesse maintained possession and control over all of the property prior to his death. Therefore, he was free to transfer the assets, and after such withdrawal of the assets, they were no longer a part of the Trust. The trial court was correct in its finding that there was no issue of material fact concerning this issue, and summary judgment was proper.

VI. THE IN TERROREM CLAUSE

Finally, Edward argues that Mary violated the Trust’s no-contest clause because her purpose was to invalidate or ignore Jesse’s intent as expressed through the terms of the Trust. We disagree. Generally, no-contest clauses are “construed strictly.” Hurley v. Blankenship, 267 S.W.2d 99, 100 (Ky.1954). Under Kentucky law, where one asks for a legal interpretation of the effect of a trust document, then he or she is not challenging the trust terms but instead is seeking a construction of those terms, and does not breach the no-contest clause. Dravo v. Liberty Nat’l Bank & Trust Co., 267 S.W.2d 95, 99 (Ky.1954).

In this case, Mary has pled and argued that she is not contesting the validity of the Trust, and the record confirms this to be true. Instead, she is seeking a determination that the assets that Jesse did not transfer into the Trust, or which he eventually withdrew from the Trust, be declared to be non-Trust assets which, pursuant to Dravo, does not implicate the no-contest clause. Therefore, the trial court did not err in granting summary judgment on this issue.

Accordingly, we affirm the McCracken Circuit Court’s conclusion that there was no issue of material fact with respect to whether certain assets were acquired with proceeds of Trust assets. Further, we affirm the trial court’s conclusion that Mary did not violate the terms of the Trust’s no-contest clause. All other portions of the trial court’s judgment are reversed and remanded for further proceedings.

ALL CONCUR.

      . We sometimes refer to the parties by their given, names for the sake of clarity and with no disrespect intended.

      . Pursuant to the law at the time that the parties were married, the parties’ marriage revoked the Will under KRS 394.090 and, therefore, nothing would pour over into the Trust by virtue of the Will. Thus, Mary was technically entitled to a share of Jesse’s non-Trust assets under KRS 392.020. However, Mary elected to treat the Will as valid and instead renounced the Will and claimed a share of the non-Trust assets under KRS 392.080.

      . The Court is unclear why the page containing this language was omitted from the Trust document attached in the appendix to Edward’s brief.

      . Kentucky courts have applied other sections of the Restatement (Second) of Trusts in Compton v. Compton, 435 S.W.2d 76, 78 (Ky.1968), and Hurst v. First Kentucky Trust Co., 560 S.W.2d 819, 821 (Ky.1978), indicating a willingness to apply the Restatement (Second) in this area of the law.


author: LAMBERT, Senior Judge:

text:
    AUTO OWNERS INSURANCE COMPANY, Appellant, v. CONSUMERS INSURANCE USA, INC., Appellee.
    No. 2009-CA-000955-MR.
    Court of Appeals of Kentucky.
    Oct. 8, 2010.

      James A. Sigler, James R. Coltharp, Jr., Paducah, KY, for appellant.
    Michael D. Hallyburton, Madisonville, KY, for appellee.
    Before DIXON and KELLER, 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

LAMBERT, Senior Judge:

Auto Owners Insurance Company (“Auto Owners”) appeals from the April 30, 2009, judgment of the Hopkins Circuit Court which granted summary judgment to Consumers Insurance USA, Inc. (“Consumers”) in the underlying civil action between the parties. Upon our conclusion that the trial court erred in holding that it lacked personal jurisdiction over Consumers, we reverse and remand.

The underlying circuit court civil action arose from an automobile accident on November 20, 2000, in Hopkins County, Kentucky. Marilyn Stafford, a Kentucky resident, was injured due to the negligence of Sharon Sweatt, a Tennessee resident, who was operating her automobile in Kentucky. As a result of Ms. Stafford’s injuries, her insurer, Auto Owners, paid her $10,000 pursuant to its policy and Kentucky law in basic reparations benefits (“BRB”)/personal injury protection (“PIP”).

On November 19, 2002, Auto Owners filed suit in the Hopkins Circuit Court against Ms. Sweatt, the party at fault, seeking recovery of its payment to Ms. Stafford. Ms. Sweatt moved for summary judgment which was granted. However, the trial court later reversed itself and returned the case to its active docket. On May 18, 2007, Auto Owners amended its complaint to include Ms. Sweatt’s insurer, Consumers, alleging bad faith for Consumers’ failure to reimburse Auto Owners for its payment to Ms. Stafford.

Consumers is domiciled in Tennessee and at the time of the accident, Consumers was not authorized to do business nor doing business in Kentucky.

Auto Owners sought summary judgment against Ms. Sweatt for the sums it had paid its insured, Ms. Stafford. Its motion was granted on February 15, 2008, and judgment was entered in favor of Auto Owners against Ms. Sweatt in the amount of $10,000, plus costs, prejudgment interest, and post-judgment interest. Next, Consumers, Ms. Sweatt’s insurer, sought summary judgment. In that motion, Consumers asserted that it did not conduct business in Kentucky, and further maintained that its policy with Ms. Sweatt did not provide PIP coverage to a Kentucky resident for an accident that occurred in Kentucky. Auto Owners again amended its complaint seeking to enforce its judgment against Ms. Sweatt from her insurer, Consumers. Consumers’ motion for summary judgment was denied and discovery was ordered by the trial court. Consumers then filed a motion to dismiss for lack of personal jurisdiction. On April 30, 2009, the trial court granted summary judgment to Consumers on grounds that the Hopkins Circuit Court lacked jurisdiction. This appeal followed.

The standard of review, when examining a trial court’s issuance of summary judgment, is well established in Kentucky law.

The standard of review on appeal when a trial court grants a motion for summary judgment is whether the trial court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law. The trial court must view the evidence in the light most favorable to the nonmoving party, and summary judgment should be granted only if it appears impossible that the nonmoving party will be able to produce evidence at trial warranting a judgment in his favor. The moving party bears the initial burden of showing that no genuine issue of material fact exists, and then the burden shifts to the party opposing summary judgment to present at least some affirmative evidence showing that there is a genuine issue of material fact for trial.

Suter v. Mazyek, 226 S.W.3d 837, 841 (Ky.App.2007) (quotations and citations omitted). See also CR 56.03. Because the determination of whether a court possesses jurisdiction over a party is a legal question, we will review the issue de novo.

On appeal Auto Owners first argues that Kentucky possesses personal jurisdiction over Consumers based on its minimum contacts with Kentucky. Consumers concedes that as a result of the November 20, 2000, accident between Ms. Stafford and Ms. Sweatt, Consumers utilized the services of an independent adjusting service to assess the damage done to the vehicles; an independent medical damage assessor to assess injuries suffered by Ms. Stafford; and a Kentucky attorney, Michael Hally-burton, to defend the personal injury claim which arose as a result of the collision. However, Consumers maintains that it never transacted business within Kentucky and has not subjected itself to the jurisdiction of Kentucky courts.

In a proper case, Kentucky courts may exercise personal jurisdiction over non-resident defendants through KRS 454.210, otherwise known as the Kentucky long-arm statute. That statute grants personal jurisdiction over a party acting directly, or by agent, as to a claim arising from various actions of a party within the Commonwealth of Kentucky. Qualifying actions include business transactions; contracts for services or goods; tortious injury; use or ownership of real property; contracting to insure; committing sexual intercourse; or making telephone solicitations. See KRS 454.210(2)(a).

This Court has held that personal jurisdiction did not exist over a Tennessee-based insurance company whose insured was involved in an automobile accident in Kentucky, where the company had never conducted business in Kentucky and its only contact with Kentucky was to obtain a police report, examine the insured vehicle, and arrange for the vehicle to be picked up. Tennessee Farmers Mutual Insurance Co. v. Harris, 833 S.W.2d 850 (Ky.App.1992). However, the facts of Harris are distinguishable from those before this Court. The plaintiffs in Harris were first-party insureds suing their own insurance carrier. In this case, the claim is by a third party and her insurer seeking recovery of sums paid pursuant to insurance coverage mandated by Kentucky law. In Harris, recovery was sought under contract theory. As such it was not unreasonable to require the plaintiff to sue in the courts of the defendant’s domicile. In contrast, this case arises from a tort claim where a Kentucky resident sought recovery for personal injuries she suffered in Kentucky at the hands of a Tennessee resident who was insured by a Tennessee insurer. Ms. Stafford was a stranger to the contract between Ms. Sweatt and Consumers. Her right to use the courts of her state of residence should not be circumscribed by the contractual relationship of others. Accordingly, Hams is not controlling in this case.

Although Harris is distinguishable, it nonetheless offers guidance as we attempt to ascertain whether Consumers is subject to the jurisdiction of Kentucky courts. The Court in Harris set out three criteria for ascertaining personal jurisdiction under the Kentucky long-arm statute.

First, the defendant must purposefully avail himself of the privilege of acting in the forum state or causing a consequence in the forum state. Second, the cause of action must arise from the defendant’s activities there. Finally, the activities of the defendant or consequences caused by the defendant must have a substantial enough connection with the forum state to make the exercise of jurisdiction reasonable.

Id. at 852 (citations omitted).

Applying these criteria to the facts before us, we are persuaded that Consumers is subject to Kentucky jurisdiction. By its automobile insurance contract with Ms. Sweatt, Consumers invested her with the right to drive lawfully in Kentucky and states other than her home state of Tennessee. By express language, the policy territory was identified as “The United States of America, its territories or possessions; Puerto Rico; or Canada.” Consumers knew or should have known that its insured Ms. Sweatt, would likely operate a motor vehicle outside the borders of Tennessee. Certainly nothing in the insuring agreement prohibited Ms. Sweatt from driving in the other forty-nine states. It was precisely to the contrary. Citizens are entitled to travel freely throughout this nation. State lines are not barriers. Accordingly, we have no doubt that Consumers availed itself of the privilege of acting in Kentucky by writing an automobile insurance policy in an adjoining state with which Kentucky shares hundreds of miles of border. Continuing with the Harris factors, the cause of this tort action, an automobile accident, arose from Consumers’ insured’s activity in Kentucky. Finally, commission of an automobile tort by the insured of a non-resident insurer is a sufficiently substantial connection to the forum state to make the exercise of jurisdiction reasonable.

Our view in this regard is fortified by the public policy of Kentucky as set forth in KRS 304.39-010. As noted in Bishop v. Allstate, 623 S.W.2d 865 (Ky.1981), enactment of the Motor Vehicle Reparations Act established a system of compulsory insurance for the owners and operators of motor vehicles in Kentucky. The Act established a comprehensive system for the adjustment of automobile tort claims. An essential feature of the system established was prompt payment of basic reparation benefits and the recovery of such sums from the party at fault or his insurer. Upon this public policy, Bishop v. Allstate held that an exclusionary clause in an insurance contract, which reduced it below the legal minimum or eliminated the coverage, rendered the driver uninsured to the extent of the reduction or elimination. Holding that such a reduction or elimination contravened the purpose and policy of the Act, the Court invalidated family or household exclusionary clauses. If Consumers succeeds on its lack of jurisdiction claim, the insured, Ms. Sweatt, will have been an uninsured driver in Kentucky with the result that the public policy of Kentucky will have been entirely frustrated.

Hereinabove we discussed Tennessee Farmers Mutual Insurance Co. v. Harris, supra, and quoted the elements it set forth for the exercise of personal jurisdiction pursuant to the Kentucky long arm statute. While those elements are helpful in some cases, they may be insufficient in others. The Supreme Court of Kentucky recently decided Cummings v. Pitman, 239 S.W.3d 77 (Ky.2007), a case in which the connection between the Kentucky forum and the non-resident defendant was limited, with most of the contact between the parties having taken place in New York. Concluding that Kentucky courts had a proper basis for the exercise of jurisdiction, the Supreme Court of Kentucky stated:

As the U.S. Supreme Court has said, “[T]he Due Process Clause may not readily be wielded as a territorial shield to avoid interstate obligations that have been voluntarily assumed.” Thus, we will continue to employ the three-prong test to determine the outer limits of personal jurisdiction being always mindful of the International Shoe overarching requirement of “fair play and substantial justice,” which broadly considers the burden on the defendant in litigating in this forum; the interests of the forum; the plaintiffs interest in litigating in this forum; and our system’s interest in judicial economy. In doing so, we keep faith with constitutionally-mandated due process safeguards in asserting or declining jurisdiction. In analyzing the first prong of the test, the Supreme Court has stated, “[The] ‘purposeful availment’ requirement ensures that a defendant will not be haled into a jurisdiction solely as a result of ‘random,’ ‘fortuitous’ or ‘attenuated’ contacts.” Thus, in determining whether the purposeful availment test is satisfied, courts must look beyond formalistic measures such as physical presence in the forum and instead evaluate the nature of the contacts and the degree to which they represent a purposeful availment of the forum’s protections and benefits. The two cornerstones of this analysis are foreseeability and voluntariness.

Id. at 86. (Citations omitted.)

Under the foregoing analysis, we are convinced that a Tennessee insurer that writes a liability policy for a Tennessee resident has voluntarily assumed an interstate obligation. We discern no breach of fair play and substantial justice by requiring a non-resident insurer to defend itself and its insured in the courts of Kentucky when the injury-producing accident has occurred on Kentucky highways. As instructed by Cummings, we look “beyond formalistic measures such as physical presence” and look instead to the nature of the contact between the defendant and the forum state. Other courts have recognized that the issuance of an insurance policy is sufficient to subject an issuing company to a foreign jurisdiction in a lawsuit brought by an injured third-party. See, e.g., Payne v. Motorists’ Mutual Insurance Companies, 4 F.3d 452 (6th Cir.1993) (third-party beneficiaries sought recovery under a breach of contract theory; court applied the same three-prong test utilized by Kentucky in Harris); see also, Rossman v. State Farm Mutual Automo bile Insurance Company, 832 F.2d 282 (4th Cir.1987) (court considered the policy territory as outlined in the insurance policy and also applied the standards of “fair play and substantial justice”). If an insurance company wishes to limit the scope of its coverage, and likewise its liability, it may do so by excluding certain geographical areas from its policies. Consumers imposed no such limitation. Accordingly, Consumers subjected itself to the long-arm jurisdiction of Kentucky courts. To hold otherwise would offend due process of law and the public policy of Kentucky. We therefore hold that in this case Consumers is subject to personal jurisdiction in the Commonwealth of Kentucky.

Finally, we note the presence of genuine issues of material fact upon the bad faith claim. As such, remand is necessary. See, e.g., Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476 (Ky.1991); see also, CR 56.05.

For the foregoing reasons, the April 80, 2009, judgment of the Hopkins Circuit Court is reversed and this cause is remanded for further consistent proceedings.

ALL CONCUR.

      . Consumers registered to conduct business in Kentucky in September of 2002. However, Consumers maintains, and Auto Owners does not dispute, that it has never actually conducted business in Kentucky and has never issued an insurance policy in Kentucky or for a Kentucky garaged vehicle.

      . Kentucky Rules of Civil Procedure.


author: RICHARD B. TEITELMAN, Judge.

text:
    Steve EHLMANN, et al., Appellants, v. Honorable Jeremiah W. (Jay) NIXON, et al., Respondents.
    No. SC 90522.
    Supreme Court of Missouri, En Banc.
    Oct. 26, 2010.
    Robert E. Hoeynck and Joann Leykam, St. Charles County Counselor’s Office, St. Charles, for Appellant, St. Charles County officials.

      Patricia Redington and Cynthia Hoe-mann, St. Louis County Counselor’s Office, Clayton, for Appellant, St. Louis County.
    Robert Presson, Attorney General’s Office, Jefferson, for the state officials.
    Heidi Doerhoff Vollet, Dale C. Doerhoff, Cook, Vetter, Doerhoff & Landwehr PC, Jefferson City, for Respondents, the Missouri Sheriffs Association and a deputy sheriff.
   RICHARD B. TEITELMAN, Judge.

The issue in this case is whether House Bill (HB) 2224 passed by the 94th General Assembly violates article X, section 10(a) of the Missouri Constitution by imposing a tax on counties for a county purpose. The trial court entered a judgment holding that HB 2224 did not violate the state constitution. The judgment is affirmed.

FACTS

Plaintiffs filed a petition for declaratory judgment challenging the constitutional validity of HB 2224. HB 2224 enacted section 57.278.1, which creates in the state treasury a “Deputy Sheriff Supplementation Fund.” The fund consists of money collected from a $10 charge “for service of any summons, writ, subpoena, or other order of the court” that is in addition to the $20 charge imposed by section 57.280.1 prior to the effective date of HB 2224. Section 57.280.4. The additional $10 charge is “paid into the county treasury and the county treasurer shall make such money payable to the state treasurer,” who is required to “deposit such moneys in the deputy sheriff supplementation fund created under section 57.278.” Id. The money in the fund can be used only for supplementing the salaries and benefits of county deputy sheriffs. Section 57.278.1. The fund cannot be used to credit the state general fund, and all interest earned on the fund “shall be credited to the fund.” Section 57.278.2. The Missouri Department of Revenue has deposited into the fund money received from counties from the new $10 charge imposed by HB 2224. There have been no expenditures from the fund.

Plaintiffs filed suit and asserted that HB 2224 violated several provisions of the Missouri Constitution. The circuit court determined that HB 2224 did not violate any of the state constitutional provisions the plaintiffs identified. As pertinent to the issue on appeal, the circuit court held that money in the fund was state money and, therefore, the transfer of money from the county treasury to the state treasury did not constitute a tax on county funds in violation of article X, section 10(a). Plaintiffs appeal the circuit court’s judgment to the extent it holds that HB 2224 does not violate article X, section 10(a).

ANALYSIS

I. Standard of Review

The issue of whether a statute is unconstitutional is a question of law subject to de novo review. City of Arnold v. Tourkakis, 249 S.W.3d 202, 204 (Mo. banc 2008). Statutes are presumed to be constitutional. State v. Kinder, 89 S.W.3d 454, 459 (Mo. banc 2002). Therefore, a statute “will not be invalidated unless it ‘clearly and undoubtedly’ violates some constitutional provision and ‘palpably affronts fundamental law embodied in the constitution.’ ” Board of Educ. of City of St. Louis v. State, 47 S.W.3d 366, 368-69 (Mo. banc 2001) (internal citations omitted).

II. Article X section 10(a)

Article X, section 10(a) of the Missouri Constitution provides:

Except as provided in this Constitution, the general assembly shall not impose taxes upon counties or other political subdivisions or upon the inhabitants or property thereof for municipal, county or other corporate purposes.

Plaintiffs’ argument is premised on the assertion that the funding mechanism established by HB 2224 constitutes a tax. The money collected and distributed pursuant to HB 2224 is only a “tax” if the money belonged to the county when it was collected. If, as the circuit court held, the money collected is state money, then plaintiffs cannot establish that HB 2224 imposes a tax on counties. If there is no tax, there is no violation of article X, section 10(a).

There are two aspects of the $10 charge that demonstrate that HB 2224 does not create an unconstitutional tax on counties. First, and most importantly, the plain language of HB 2224 establishes that the $10 charge is classified as state money from the time it is collected. The money for the fund comes from the $10 charge for service of certain court documents. Section 57.280.4. The $10 charge is collected by the sheriff and paid into the county treasury. The county treasurer has no discretion with respect to the money received pursuant to section 57.280.4 and “shall make such money payable to the state treasurer.” Id. The plain language of the statutory provisions enacted by HB 2224 demonstrates that the funds collected are state money.

Second, the $10 charge is not consistent with the characteristics of a tax. Taxes are “proportional contributions imposed by the state ... for the support of government and for all public needs.” City of Jefferson v. Missouri Dept. of Natural Resources, 863 S.W.2d 844, 850 (Mo. banc 1993)(quoting Leggett v. Missouri State Life Insurance Co., 342 S.W.2d 833, 875 (Mo. banc 1960)). Taxes are not payments for a special privilege or a special sendee rendered. Id. Fees or charges prescribed by law to be paid to public officers for services rendered in connection with a specific purpose are generally not taxes, unless the purpose is to raise revenue to be paid into the general fund of the government to defray customary governmental expenditures. Id. Consistent with City of Jefferson and Leggett, the $10 charge here is collected in exchange for a specific service; the money collected cannot be used to credit the state general fund. Section 57.278.2. The $10 charge collected by the sheriffs is not a tax.

To avoid this conclusion, plaintiffs argue that this Court must interpret HB 2224 in pari materia with other statutes governing court costs and fees collected by county officers. Specifically, plaintiffs argue once the $10 charge imposed by HB 2224 is deposited into the county treasury, the money becomes county money pursuant to section 50.340. Plaintiffs further support this argument by asserting that that several statutes in chapter 488 establish that the $10 charge is a fee that must be handled pursuant to section 50.340.

The flaw in this argument is that the provisions of HB 2224 are clear and unambiguous. HB 2224 plainly provides that the new $10 charge for service is wholly separate from other charges received by sheriffs and other county officials. When statutes are clear and unambiguous, courts do not resort to rules of statutory construction. MC Development Co. v. Central R-3 School Dist. of St. Francois County, 299 S.W.3d 600, 604 (Mo. banc 2009). HB 2224 establishes a new charge for serving certain court documents and specifically and unequivocally directs that the money collected belongs to the fund. The county treasury is simply a conduit to the state treasury and, ultimately, the fund. Consequently, plaintiffs’ claim that HB 2224 imposes an unconstitutional tax on the county must fail as a matter of law.

The judgment is affirmed.

All concur.

      . The plaintiffs are St. Charles County; St. Louis County; Steve Ehlmann, the county executive of St. Charles ■ County; Charlie A. Dooley, the St. Louis County county executive; and Charles R. Gross, the St. Charles County director of administration.

      . Section 50.340, which provides that all "fees ... and charges imposed by law and collected by [county officers] shall be paid into the county treasury and become the property of the county.” Chapter 488 deals with charges and court costs.


author: PER CURIAM.

text:
    Michael E. JACKSON, Appellant, v. STATE of Missouri, Respondent.
    No. WD 70373.
    Missouri Court of Appeals, Western District.
    Aug. 31, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 2, 2010.
    Frederick J. Ernst, Kansas City, MO for appellant.
    Shaun J. Mackelprang and Jamie P. Rasmussen, Jefferson City, MO for respondent.
    Before LISA WHITE HARDWICK, P.J., JAMES M. SMART, JR., and ALOK AHUJA, JJ.
   Order

PER CURIAM.

Michael Jackson appeals the denial of his Rule 29.15 motion for post-conviction relief following an evidentiary hearing in which he sought to vacate his convictions for first-degree murder and armed criminal action. The judgment is affirmed. Rule 84.16(b).


author: CYNTHIA L. MARTIN, Judge.

text:
    Jerome PHILLIPS, Respondent, v. MISSOURI DEPARTMENT OF CORRECTIONS, Appellant.
    No. WD 71587.
    Missouri Court of Appeals, Western District.
    Aug. 31, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 2, 2010.

      Jerome Phillips, Appellant pro se.
    Stephen D. Hawke, Jefferson City, MO, for appellant.
    Before Division One: JAMES M. SMART, JR., Presiding Judge, MARK PFEIFFER, Judge and CYNTHIA L. MARTIN, Judge.
   CYNTHIA L. MARTIN, Judge.

The Missouri Department of Corrections (“MDOC”) appeals from a Memorandum, Order & Judgment (“Judgment”) entered by the Honorable Richard G. Callahan granting a petition for declaratory judgment filed by Jerome Phillips (“Phillips”) and denying a motion to dismiss filed by MDOC. Phillips’s petition contended that for purposes of calculating his mandatory minimum prison term under section 558.019, his life sentence should be calculated as thirty years, not fifty years. The trial court agreed and ordered MDOC to so calculate Phillips’s mandatory minimum prison term. We reverse.

Factual and Procedural Background

On February 16, 1988, Phillips was convicted following guilty pleas as a Class X offender of two counts of first degree assault, one count of unlawful use of a weapon, and one count of armed criminal action. Phillips was sentenced on the same date to life imprisonment on one of the first degree assault charges, to twenty years on the other first degree assault charge, to ten years on the unlawful use of a weapon charge, and to thirty years on the armed criminal action charge. It appears from the sparse record presented that all sentences were to run concurrently. Phillips was delivered to MDOC on March 29,1988.

At the time of Phillips’s sentencing, section 558.019 RSMo 1986 prescribed the minimum prison term Phillips would be required to serve before he would be eligible for probation, parole, conditional release or other early release (collectively, “Early Release”). According to section 558.019.2(3) RSMo 1986, a Class X offender had to serve eighty percent of his imposed sentence to be eligible for Early Release. Section 558.019.4(4) RSMo 1986 calculated a life sentence as fifty years. Thus, because Phillips was a Class X offender with a life sentence, he was required by section 558.019 RSMo 1986 to serve forty years (eighty percent of fifty years) before he would be eligible for Early Release.

In 1994, the legislature changed the calculation of a life sentence from fifty years to thirty years. Section 558.019.4(1) RSMo 1994. Section 558.019 RSMo 1994 also removed discussion of the “Class X offender” designation, and instead calculated a mandatory minimum term based upon the number of previous remands to the department of corrections for felonies. Section 558.019.2 RSMo 1994. The 1994 amendment to section 558.019 included a new subsection addressing the legislature’s intent with respect to retrospective application of the statute. Section 558.019.7 RSMo 1994 provided that “[t]he provisions of this section shall apply only to offenses occurring on or after August 28, 1994.”

In 2003, section 558.019 was repealed in its entirety, and new section 558.019 was enacted. Section 558.019 as reenacted in 2003 left the calculation of a life sentence as thirty years. Section 558.019.4(1). As it had in 1994, the legislature included a subsection expressing its intent with respect to retrospective application of the statute. Section 558.019.9 provides that “[t]he provisions of this section shall apply only to offenses occurring on or after August 28, 2003.”

On February 25, 2009, Phillips filed a petition for declaratory judgment seeking to have his eligibility for Early Release recalculated from a minimum prison term of forty years to a minimum prison term of twenty-four years (eighty percent of thirty years). Phillips’s request relied on the version of section 558.019 enacted in 2003 by Senate Bill No. 5.

Phillips’s petition for declaratory judgment was opposed by MDOC, which argued that the recalculation of a life sentence from fifty years to thirty years had actually been accomplished in section 558.019 RSMo 1994, and arguing that section 558.019.7 RSMo 1994 included express legislative guidance prohibiting retrospective application of the section to offenses occurring prior to August 28, 1994. MDOC filed a motion to dismiss Phillips’s petition raising the same arguments.

On August 26, 2009, the trial court entered its Judgment granting Phillips’s petition for declaratory judgment and denying MDOC’s motion to dismiss. The Judgment ordered MDOC to “calculate the mandatory minimum prison term for petitioner’s life sentence as 30 years, not 50 years.” The Judgment does not articulate the rationale for the trial court’s decision, other than to note that the trial court reflected upon section 558.019 RSMo.1994, and rejected MDOC’s argument that section 558.019.7 RSMo 1994 controlled disposition of Phillips’s declaratory judgment action.

MDOC appeals.

Standard of Review

The standard of review in a declaratory judgment case is the same as in any other court tried case. Guyer v. City of Kirkwood, 38 S.W.3d 412, 413 (Mo. banc 2001). The judgment will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Id. Here, the trial court granted Phillips’s request for declaratory judgment based on its review and interpretation of section 558.019. The interpretation of a statute involves a question of law. Richard v. Mo. Dep’t of Carr., 162 S.W.3d 35, 37 (Mo.App. W.D.2005). Consequently, our review of the Judgment is de novo.

Analysis

In its sole point on appeal, MDOC argues that the trial court erred in applying section 558.019 retrospectively to require the recalculation of Phillips’s life sentence for purposes of determining eligibility for Early Release because the legislature, when it amended the calculation of a life sentence from fifty years to thirty years in 1994, expressly provided that section 558.019 would only apply to offenses occurring on or after August 28, 1994.

We faced a nearly identical issue in Stone v. Missouri Department of Corrections, Probation & Parole Board, 313 S.W.3d 158 (Mo.App. W.D.2010). In Stone, an inmate convicted as a Class X offender in 1990 argued that the amendments to section 558.019 in 1994 and 1999 required his mandatory minimum prison term to be recalculated based in part on the change in calculating a life sentence from fifty years to thirty years. Id. at 159-60. In essence, the inmate argued that the legislature intended the 1994 and 1999 versions of section 558.019 to apply retrospectively. Id. at 160-61. We did not agree. We found that section 558.019.7 RSMo 1994 (which was not amended in 1999) expressly stated that “this section shall apply only to offenses occurring on or after August 28, 1994.” Id. Because of this provision, we concluded that the legislature had clearly and unambiguously directed that section 558.019 RSMo 1994 should not be retrospectively applied. Id.

Though Phillips relies on the 2003 amendment to section 558.019 instead of the amendments in 1994 and 1999 to assert an entitlement to recalculation of his life sentence, the essence of Phillips’s argument is identical to that advanced in Stone. It is true that section 558.019 RSMo 1994 as thereafter amended was repealed in 2003, and that new section 558.019 was then enacted. However, this factual distinction does not require us to reach a different conclusion from that reached in Stone. As in Stone, the version of Section 558.019 at issue in this case clearly and unambiguously expresses the legislature’s intent that the section is not to be retrospectively applied to offenses occurring before August 28, 2003. Section 558.019.9.

We acknowledge, as we did in Stone, that there are cases where new or amended statutes affecting minimum prison terms and Early Release eligibility have been retrospectively applied. 313 S.W.3d at 161 n. 1. See, e.g. Jones v. Fife, 207 S.W.3d 614, 615, 617 (Mo. banc 2006) (construing sections 559.115.7 and 217.362.5 RSMo Cum.Supp.2004); State ex rel. Nixon v. Russell, 129 S.W.3d 867, 870-71 (Mo. banc 2004) (construing section 558.016.8 RSMo Cum.Supp.2003): Talley v. Mo. Dep’t of Corr., 210 S.W.3d 212, 215-16 (Mo.App. W.D.2006) (construing section 571.015 RSMo.1994). None of these cases, however, involved section 558.019, and none of these cases involved a statute containing express language reflecting the legislature’s intent with respect to retrospective application. The courts in the aforesaid cases, unguided by a clear expression of legislative intent, were required to consider whether section 1.160 RSMo 2000 prohibited retrospective application of the subject statute. In contrast, we are not required to go beyond the clear language of section 558.019 to con-elude that the statute is not to be retrospectively applied.

Phillips does not contest that the offense which gave rise to his life sentence occurred before August 28, 2003. Phillips’s life sentence is not, therefore, subject to recalculation under section 558.019 and remains calculated at fifty years. The trial court erred as a matter of law in granting Phillips’s petition for declaratory judgment.

Conclusion

The trial court’s Judgment is reversed. MDOC properly calculated the mandatory minimum prison term for Phillips’s life sentence as fifty years.

All concur.

      . All statutory references are to RSMo 2000 as supplanted through 2009 unless otherwise indicated.

      . At the time of Phillips’s conviction, a Class X offender was defined by section 558.019.4(3) RSMo 1986 as "one who has previously pleaded guilty to or has been found guilty of three felonies committed at different times."

      . The legislature substituted the phrase "prison commitment” for "remands” and provided a definition for the phrase in 1999. Section 558.019.2 RSMo Cum.Supp.1999.

      . The enabling legislation for section 558.019 as reenacted in 2003 was Senate Bill No. 5.

      . Section 558.019 has been amended on several occasions since 2003. However, sections 558.019.4(1) and 558.019.9 RSMo Cum.Supp. 2009 remain identical to the versions of these subsections enacted in 2003.

      . Though the Judgment actually states the trial court reflected on section 558.019 RSMo 1990, this is clearly a typographical error, as the court in the same part of the Judgment discussed MDOC's argument that the 1994 amendment to section 558.019 included a provision expressing the legislature’s intent that the section should apply prospectively only.

      . In Stone, the inmate also claimed he had only one remand or commitment unrelated to the offense for which he had been most recently convicted, and that since the 1994 and 1999 versions of section 558.019 eliminated discussion of Class X offender status, section 558.019.2(1) required use of forty percent as the benchmark to be applied to his sentence for calculating the mandatory minimum prison term. Stone, 313 S.W.3d at 159-60.

      . Section 1.160 provides in pertinent part that "[n]o offense committed ... previous to ... the time when any statutory provision is repealed or amended, shall be affected by the repeal or amendment, but the trial and punishment of all such offenses ... shall be had, in all respects, as if the provisions had not been repealed or amended.”

      . The trial judge whose decision to deny the inmate's request to recalculate his life sentence in Stone is the same trial judge who entered the Judgment ordering a recalculation of Phillips's life sentence in this case. We cannot provide with certainty an explanation for these inconsistent outcomes, but note that MDOC in this case defended Phillips’s declaratory judgment action based exclusively on a discussion of section 558.019 RSMo 1994, ignoring that this version of the statute was repealed in 2003 by Senate Bill No. 5. Though section 558.019 as enacted in 2003 was very similar to section 558.019 RSMo 1994, the provision relating to the legislature's expression regarding retrospective application had been changed to reference a different date. It is possible that the trial court felt constrained to interpret the version of section 558.019 relied on by Phillips based solely on the arguments presented to it by the parties, thus explaining the Judgment's statement that "[MDOC] contends that the 1994 change in the statute applies prospectively only. Section 558.019.7, RSMo.l990[sic], After reflection upon the statute, the court disagrees.” (Emphasis added.)


text:
    Lonnie SNELLING, Appellant, v. Bernice EVANS, Albert Johnson, Larry T. McFadden, Eufabya E. McFadden, Raynard Tate, Rico Combs, Sr., and Angela Combs, Respondents.
    No. ED 94106.
    Missouri Court of Appeals, Eastern District, Division Two.
    Aug. 31, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 18, 2010.
    Application for Transfer Denied Nov. 16, 2010.
    Lonnie D. Snelling, St. Louis, MO, for Appellant.
    Bernice Evans, Larry McFadden, Eu-fabya McFadden, Albert Johnson, Ray-nard Tate, Rico Combs, Angela Combs, St. Louis, MO, for Respondent.
    Before ROY L. RICHTER, C.J., GLENN A. NORTON, P.J., and GEORGE W. DRAPER III, J.
   ORDER

PER CURIAM.

Lonnie Snelling (hereinafter, “Appellant”) appeals the following orders and judgments of the Circuit Court of City of St. Louis and the Missouri Court of Appeals, Eastern District: (1) the May 27, 2004 trial court order, (2) the June 1, 2004 trial court order, (8) the September 16, 2004 trial court order, (4) the November 23, 2004 Court of Appeals order, (5) the November 2, 2005 trial court order and judgment, (6) the April 18, 2006 Court of Appeals order, (7) the May 5, 2009 trial court order, (8) the December 9, 2009 trial court judgment, and (9) the July 23, 2009 trial court order. Additionally, Appellant requests this Court remand the case with directions to reinstate the February 4, 2003 trial court order and judgment. Larry McFadden, Eufabya McFadden, Bernice Evans, and Albert Johnson (hereinafter, “Defendants”) were named as defendants in the orders and judgments Appellant seeks to challenge.

Appellant raises five points on appeal. In his first point, Appellant claims the trial court erred in entering a final judgment based on its denial of his Rule 74.06(b)(4), (c), and (d) motion sua sponte because Appellant had a due process right to a meaningful hearing. In his second point, Appellant claims the trial court erred in entering final judgment based on prior rulings in the case because the prior rulings and judgments, which vacated the February 4, 2003 order and judgment in Appellant’s favor, violated Appellant’s equal protection and due process rights in that the trial court treated Appellant differently than similarly situated Defendants. In his third point, Appellant claims the trial court erred in entering final judgment based on prior rulings in the case because the judgments entered after October 31, 2003, were void and unenforceable in that the trial court and this Court lacked personal jurisdiction. In his fourth point, Appellant claims the trial court erred in entering final judgment based on prior orders and judgments in the case because the trial court lacked subject matter jurisdiction and thus, this Court lacked jurisdiction. In his fifth point, Appellant claims the trial court erred in entering final judgment based on prior orders because this Court’s orders were void and unenforceable in that the original trial court orders and judgments entered on May 27, 2004, June 1, 2004, and November 2, 2005, were entered without jurisdiction.

We have reviewed the brief of the parties and the legal file. No error of law appears. An extended opinion reciting the detailed facts and restating the principles of law would have no precedential value. We have, however, provided a memorandum opinion, for the use of the parties only, setting forth the reasons for our decision. Appellant is ordered to pay $1,000 to Defendant Bernice Evans for filing a frivolous lawsuit in violation of Rule 84.19. The trial court’s December 9, 2009 judgment is affirmed pursuant to Rule 84.16(b).


author: PER CURIAM:

text:
    STATE of Missouri, Respondent, v. Arthur J. MAITLAND, Appellant.
    No. WD 70528.
    Missouri Court of Appeals, Western District.
    Sept. 7, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 2, 2010.
    Catherine A. Donnelly and Gregory W. Vleisides, Kansas City, MO, for Appellant.
    Chris Koster, Attorney General, Shaun J. Mackelprang, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before Division I: JAMES M. SMART, JR., Presiding Judge, and MARK D. PFEIFFER and CYNTHIA L. MARTIN, Judges.
   Order

PER CURIAM:

Arthur J. Maitland appeals the judgment of the Circuit Court of Jackson County in which he was found guilty of violating section 566.067, RSMo 2000, child molestation in the first degree. Maitland raises two points on appeal. He first argues that the indictment was deficient and that the evidence was insufficient to support his conviction. Maitland next argues that the trial court erroneously denied his motions to suppress videotaped confessions. Finding no error, we affirm in this per curiam, order and have provided the parties a memorandum explaining our ruling. Rule 30.25(b).


text:
    Alvin Floyd SNELLING and Katherine Louise Snelling, Respondents, v. Ursula Irene GANDER, Appellant.
    No. WD 71520.
    Missouri Court of Appeals, Western District.
    Sept. 14, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 2, 2010.

      Daniel E. Hunt, for Appellant.
    Warren S. Rives, for Respondents.
    Before Division Three: VICTOR C. HOWARD, Presiding Judge, THOMAS H. NEWTON, Judge and GARY D. WITT, Judge.
   ORDER

PER CURIAM:

Ursula Gander appeals the judgment of the trial court granting a twenty foot wide easement by prescription of ingress and egress over and across her property. In her sole point on appeal, Mrs. Gander claims that there was not sufficient evidence for the trial court to grant an easement by prescription. Because a published opinion would have no precedential value, a memorandum has been provided to the parties.

The judgment is affirmed. Rule 84.16(b).