author: Justice MORRIS.

text:
    The CITY OF RICHARDSON, Appellant, v. Lisa A. JUSTUS, Appellee.
    No. 05-10-00185-CV.
    Court of Appeals of Texas, Dallas.
    Nov. 16, 2010.

      Stephen R. Marsh, David Kosterboer & Associates, Richardson, TX, for Appellant.
    James Matthew Sikes, Stanford Purser, K & L Gates, LLP, Dallas, TX, for Appel-lee.
    Before Justices MORRIS, MOSELEY, and MYERS.
   OPINION

Opinion By

Justice MORRIS.

In this interlocutory appeal, the City of Richardson challenges the trial court’s denial of its plea to the jurisdiction in a lawsuit filed by Lisa A. Justus after she tripped and fell on a public sidewalk. The City contends the trial court erred in denying its plea because the condition of the sidewalk as alleged by Justus was not a special defect, the City had no knowledge of the alleged defect, and Justus’s separate negligence cause of action based on a City employee’s failure to repair or warn of the alleged defect is subsumed under her premises liability claims. For the reasons that follow, we reverse in part the trial court’s order and render judgment dismissing Justus’s special defect and negligence claims for lack of subject matter jurisdiction. We affirm the trial court’s order in all other respects.

I.

In October 2008, while taking a walk in her Richardson neighborhood, Justus suffered personal injuries when she tripped and fell on a portion of raised and uneven sidewalk in front of 1004 Hillsdale Drive. She alleged a vertical separation in the sidewalk of at least three inches. She sued the City for damages asserting separate causes of action for (1) a premises defect, (2) a special defect, and (3) negligence. The City responded with a plea to the jurisdiction asserting the trial court lacked subject matter jurisdiction over Justus’s claims because they did not fall within the limited waiver of immunity afforded under The Texas Tort Claims Act. The trial court disagreed and denied the City’s motion. The City then brought this appeal.

II.

An assertion of governmental immunity from suit challenges the trial court’s exercise of subject matter jurisdiction in the matter and is properly asserted in a plea to the jurisdiction. See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex.2004). When deciding a plea to the jurisdiction, a trial court is not limited to the pleadings but may consider evidence and must do so when necessary to resolve the jurisdictional issues raised. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex.2000). Whether a pleader has alleged facts that affirmatively demonstrate a trial court’s subject matter jurisdiction is a question of law that we review de novo. Miranda, 133 S.W.3d at 226. Likewise, whether undisputed evidence of jurisdictional facts establishes a trial court’s jurisdiction is also a question of law. Id. In some cases, however, disputed evidence of jurisdictional facts that also implicate the merits of the case may require resolution by a fact finder. Id.

Under the Texas Tort Claims Act, the legislature has expressly waived governmental immunity for damage claims caused by (1) the operation or use of publicly-owned vehicles or equipment or (2) a condition or use of tangible personal or real property. Tex. Civ. Prao. & Rem.Code Ann. §§ 101.021(1)(A) & (2); 101.025 (West 2005). Accordingly, to sue a governmental entity for a tort, the pleadings must state a claim under the Act. Texas Dep’t of Transp. v. Jones, 8 S.W.3d 636, 639 (Tex.1999). When the claim arises from the condition of real property, the duty owed by the governmental entity depends on whether the complained-of condition is an ordinary premises defect or a special defect as that term is used in the Act. Tex. Civ. Prac. & Rem.Code Ann. § 101.022 (West Supp.2009).

We begin with the City’s challenge to Justus’s negligence cause of action based on City employee Jim Dulac’s alleged failure to have the sidewalk repaired or marked as a dangerous hazard. The City correctly asserts that Justus’s claim of negligence is subsumed within her premises liability claims and its governmental immunity has not been waived for a general negligence claim under the Act. A plaintiff injured by a premises defect on governmental property is limited to asserting a premises liability claim as provided by the Act. See Stephen F. Austin State Univ. v. Flynn, 202 S.W.3d 167, 173 (Tex.App.-Tyler 2004, rev’d on other grounds, 228 S.W.3d 653 (Tex.2007)). To the extent Justus attempts to assert a claim based on any negligence of Dulac separate and apart from her premises liability claims, the Act does not waive the City’s governmental immunity for such a claim. Accordingly, the trial court erred in denying the City’s plea to the jurisdiction on the negligence cause of action.

III.

We next address the City’s jurisdictional challenges to Justus’s premises liability claims. The City initially contends the sidewalk condition of which Justus complains is not a special defect under the Act. As noted above, the Act provides a limited waiver of immunity to suits for tort claims against the City arising from ordinary premises defects and special defects. See Tex. Civ. Prao. & Rem.Code Ann. § 101.022. The difference between the claims based on special defects and ordinary defects is the duty of care owed by the governmental entity. Id. The determination of whether an alleged condition is a special defect is a question of law for the court. See City of Chapevine v. Roberts, 946 S.W.2d 841, 843 (Tex.1997). Examples of special defects include “defects such as excavation or obstructions on highways, roads and streets.” Tex. Civ. Prac. & Rem. Code Ann. § 101.022(b). Although the defects identified in the statute are not exclusive, courts must construe “special defects” to include defects of the same kind or class as those expressly set forth in the statute. Roberts, 946 S.W.2d at 843. Traditionally, the Texas Supreme Court has distinguished special defects from ordinary defects by some unusual quality outside the ordinary course of events. See City of Dallas v. Reed, 258 S.W.3d 620, 622 (Tex.2008). In Roberts, the Texas Supreme Court held that a partially cracked and crumbled sidewalk step was not a special defect within the meaning of section 101.022(b). Id. Likewise, in City of El Paso v. Bernal, the supreme court held that the eroded or abraded area in the sidewalk with a depth of three inches at its lowest point was not a special defect as a matter of law. 986 S.W.2d 610, 611 (Tex.1999). Based on the allegations and evidence presented, we conclude the sidewalk separation here is not in the same kind or class as an excavation or obstruction, nor is it an unexpected or unusual danger to ordinary sidewalk users. Accordingly, Justus has not presented a viable special defect claim and the trial court erred in denying the City’s jurisdictional challenge to that cause of action.

In light of our conclusion that the condition of the sidewalk was not a special defect, we must now decide whether Jus-tus has asserted a cognizable cause of action under the Act for an ordinary premises defect. To assert a claim based on an ordinary premises defect under the Act, Justus had to plead that a condition of the sidewalk created an unreasonable risk of harm, the City had actual knowledge of the condition, she lacked actual knowledge of the condition, the City failed to exercise ordinary care to protect her from the danger, and the City’s failure was a proximate cause of her injury. See State Dept. of Hwys. v. Payne, 838 S.W.2d 235, 237 (Tex.1992).

The City does not argue that Justus failed to plead sufficient facts to demonstrate her suit falls within the scope of the Act’s limited waiver of immunity. Instead, the City contends that it lacked actual knowledge of the sidewalk condition. In support of its position, the City primarily relies on the affidavit of Jim Dulac, a City senior project engineer who states 1004 Hillsdale is in an area that, in 2007 through early 2008, had been inspected and all sidewalks with three-inch hazards were repaired. He further indicated that the area homeowners’ association did not list the location of the incident as a three-inch hazard that needed to be repaired. The City also presented its discovery responses indicating it found no instance of any other injuries occurring as a result of the alleged sidewalk condition.

Justus responds that City records indicating 1004 Hillsdale Drive was listed as a “priority one” sidewalk repair in 2003 and part of the “2007 Severe Trip Hazard Repair Program,” combined with the lack of any evidence the condition was ever repaired, creates a fact issue with respect to the City’s actual knowledge of the defect. Indulging every reasonable inference and resolving any doubts in Justus’s favor, we conclude the evidence creates a fact issue with respect to whether the City had actual knowledge of the defective condition at the time of the accident.

In reaching this conclusion, we necessarily reject the City’s contention that we are limited to considering the City’s last inspection to determine the City’s actual knowledge. The City relies on City of Dallas v. Reed for its position. 258 S.W.3d 620. Reed involved a two-inch drop-off in between traffic lanes in the roadway. Id. at 621. The evidence revealed the street inspector was aware of the drop-off and reported her findings to the City. Id. at 623. Her report, however, did not indicate the drop-offs potential danger and instead rated the road condition as “fair.” The Texas Supreme Court held that the inspector’s acknowledgment in a deposition after the accident that the road could likely receive a poor “D” rating was insufficient to show the City’s knowledge of the dangerous condition at the time of the accident. , Id. Here, unlike Reed, we have City documents indicating the sidewalk at 1004 Hillsdale was identified as a priority one hazard in 2003 and included in the 2007 Severe Trip Hazard Program. Additionally, Dulac indicated that 1004 Hillsdale was inspected by Robert Walker, who found two trip hazards of less than two inches each. There is no evidence that the sidewalk in question was repaired after the City’s 2003 designation. Contrary to the City’s assertions, the later City inspections that failed to reveal a three-inch hazard, along with the area homeowners’ association’s failure to identify 1004 Hillsdale as a three-inch trip hazard, do not establish its lack of knowledge of the alleged dangerous condition at the time of the accident. Accordingly, we reject the City’s argument that there was no waiver of its immunity because it had no knowledge of a three-inch trip hazard. The trial court did not err in denying the City’s plea to the jurisdiction on Justus’s ordinary premises defect claim.

IV.

In conclusion, because we have determined that the Act does not waive the City’s immunity in this case for a claim based on general negligence and the condition of the sidewalk as alleged by Justus was not a special defect as a matter of law, we reverse the trial court’s order denying the City’s plea to the jurisdiction on Jus-tus’s general negligence and special defect claims. We partially grant the City’s plea to- the jurisdiction and render judgment dismissing those claims for want of subject matter jurisdiction. In addition, because we conclude the jurisdictional evidence presented raises a fact issue with respect to the City’s actual knowledge of an ordinary premises defect, we affirm the trial court’s denial of the City’s plea to the jurisdiction on Justus’s cause of action based on an ordinary premises defect.

      . We note that when addressing this negligence claim in both her amended petition and her appellate brief, Justus cites to section 101.021(1) of the Act for her assertion that the city owed her a duty to exercise reasonable care. Section 101.021(1) provides that a governmental entity is liable for damages and injuries caused by the negligence of an employee acting within the scope of his employment if the damage or injury arises from the operation or use of a motor vehicle and the employee would be personally liable to the claimant according to Texas law. Tex. Civ. Prac. & Rem Code Ann § 101.021. This section has no applicability in the present case.

      . Our record also contains a document about the City’s annual hazardous sidewalk program defining a priority one repair as “Sections of sidewalk hav[ing] a vertical separation of greater than three inches, or hav[ing] broken up more than 80%.”

      . City documents indicate that vertical separations (trip hazards) between two and three inches were a "priority two” repair and those between one and two inches were a "priority three" repair.


source: Caselaw Access Project

author: Justice RODRIGUEZ.

license: Public Domain

text:
    In the Interest of L.J.N., A Minor Child.
    No. 13-09-00522-CV.
    Court of Appeals of Texas, Corpus Christi-Edinburg.
    Nov. 23, 2010.

      Rick Holstein, Corpus Christi, for Appellant.
    William J. Kelly, Corpus Christi, for Ap-pellee.

      Before Chief Justice VALDEZ and Justices RODRIGUEZ and VELA.
   OPINION

Opinion by

Justice RODRIGUEZ.

Appellant L.N. challenges the trial court’s termination of his parental rights to L.J.N., a minor child. See Tex. Fam. Code Ann. § 161.001 (Vernon Supp. 2010). By two issues, L.N. argues that no evidence, or in the alternative, insufficient evidence, supported the trial court’s findings that L.N. had failed to support L.J.N. in accordance with his ability. We reverse and render.

I. Background

Since December 2006, Ted Ike Stanfield, appellee, and Ann Whitley, L.J.N.’s great-uncle and grandmother, have been the joint managing conservators of L.J.N. L.N. is LJ.N.’s biological father and was named possessory conservator. L.N. was ordered to pay child support in the amount of $295 per month. L.N. made three child support payments: $204.24 on April 23, 2007; $272.32 on May 8, 2007; and $272.32 on June 4, 2007. All three payments were withheld from L.N.’s paycheck.

In May 2007, L.N. was arrested for drug possession. He was convicted of the charged offense and sentenced to a term of incarceration that began in June 2007. He remained incarcerated throughout the following proceedings in the trial court.

On July 10, 2008, Stanfield filed his original petition to terminate L.N.’s parental rights and adopt L.J.N. In his petition, Stanfield alleged that L.N. failed to support L.J.N. “in accordance with his ability during a period of one year ending within six months of the date of the filing of this petition.” Stanfield also alleged that termination of the parent-child relationship between L.N. and L.J.N. was in the best interest of the child.

L.N., acting pro se, answered Stanfield’s petition, requested the appointment of an attorney, and because he was incarcerated at the time, moved for a bench warrant so that he could be present for any hearing on the matter. L.N. also filed two documents titled “Declaration of Inability to Pay Cost”; one was filed on August 9, 2008, and one was filed August 25, 2008. In both documents, L.N. stated that he was “unable to pay the Court costs in this civil action” and declared, in relevant part, that: “I have no source of income or spousal income”; “I currently have $0 credited to me in the Inmate Trust Fund”; “[djuring my incarceration in the Texas Department of Criminal Justice I have received approximately $10.00 per month as gifts from relatives and friends”; and “[m]y monthly expenses are approximately $9.00.” At the conclusion of the documents, L.N. “verified] and declare[d] under the penalty of perjury that the foregoing statements] are true and correct.” Counsel was thereafter appointed for L.N.

On February 12, 2009, the trial court held its first hearing on the termination petition. L.N. appeared by telephone. Both Stanfield and L.N. testified. Stan-field testified that L.J.N. came to live with him when she was three years old. He stated that she was now six years old and had lived with him continuously since December 2006. Stanfield testified that L.N. had made three child support payments; the disbursement receipts from the office of the attorney general for those three payments were admitted into evidence. L.N. testified that he had been continuously incarcerated since May 2007, and made no support payments since he has been in prison. He testified that, aside from twenty to thirty dollars he received from his family for his commissary fund, he has had no source of income since his incarceration. He testified that he had no property to sell to earn funds to provide support for L.J.N., was unable to borrow money, and has had no opportunity to work for pay while he was in prison. The trial court then took the case under advisement on the statutory ground for termination, requesting that the parties find and deliver to the court case law regarding the effect of L.N.’s incarceration on his ability to pay support.

On July 20, 2009, the trial court held a second hearing on the termination petition. L.N. again appeared by telephone. Stan-field asked the trial court to take judicial notice of its file and the evidence it admitted at the previous hearing; the court granted this request. L.N. testified that he had — several months after the February 12, 2009 hearing — received thirty dollars from his mother. L.N. also testified that he had recently made arrangements with the office of the attorney general to withhold twenty percent of whatever funds are put into his commissary account for support for L.J.N. As of the date of the current hearing, however, no funds had been extracted from L.N.’s account and transferred to Stanfield for L.J.N.’s support.

In closing, Stanfield argued, in part, that:

L.N. has filed affidavits with the Court, pursuant to his indicating his indigency. And in those affidavits he indicated a monthly income, although be it a small income. He testified similarly, that he has received money while in jail. To-date, since June of '07, he has provided none of that money for the support of his child. As per our trial brief the obligation is not to support the child as ordered by the Court, but rather, to support the child commensurate with your ability, which we believe would be 20 percent of whatever money he was receiving. He provided zero percent of the money he received as gifts while he was incarcerated.... We believe that constitutes a basis for terminating his parental rights.

Counsel for L.N. argued that Stanfield failed to produce evidence that L.N. received money and had the ability to pay support “each and every month” of the statutory twelve-month period.

After argument concluded, the trial court made the following finding:

I am going to find that [L.N.] has failed to support his child in accordance with his ability for the period of ... June of '07, until the present time, and in accordance with the statute ... as a condition for involuntary termination. And I am going to find that it is in the best interests of this child that the parent/child relationship be terminated between [L.N.] and the child ... and that is [sic] the grounds that I find for termination.

The trial court then ordered termination of the parental relationship between L.N. and L.J.N. and granted the adoption of L.J.N. by Stanfield. This appeal followed.

II. Standard op Review and Applicable Law

Involuntary termination of parental rights involves fundamental constitutional rights and divests the parent and child of all legal rights, privileges, duties, and powers normally existing between them, except for the child’s right to inherit from the parent. Holick v. Smith, 685 S.W.2d 18, 20 (Tex.1985); see In re D.S.P., 210 S.W.3d 776, 778 (Tex.App.-Corpus Christi 2006, no pet.). “Consequently, termination proceedings must be strictly scrutinized, and ‘involuntary termination statutes are strictly construed in favor of the parent.’ ” In re D.S.P., 210 S.W.3d at 778 (quoting Holick, 685 S.W.2d at 20).

Due process requires that termination be supported by clear and convincing evidence. In re E.M.E., 234 S.W.3d 71, 72 (Tex.App.-El Paso 2007, no pet.) (citing In re J.F.C., 96 S.W.3d 256, 263 (Tex.2002)); In re D.S.P., 210 S.W.3d at 778; see Tex. Fam.Code Ann. § 161.001. This intermediate standard falls between the pi’eponderance of the evidence standard of civil proceedings and the reasonable doubt standard of criminal proceedings. In re E.M.E., 234 S.W.3d at 73. It is defined as the “measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.” Tex. Fam.Code Ann. § 101.007 (Vernon 2008).

In reviewing the legal sufficiency of the evidence supporting parental termination, we must look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have “formed a firm belief or conviction about the truth of the matter on which the movant in a termination proceeding bore the burden of proof.” In re D.S.P., 210 S.W.3d at 778 (citing In re J.F.C., 96 S.W.3d at 266). We must assume that the fact finder resolved disputed facts in favor of its finding if it was reasonable to do so and must disregard all evidence that a reasonable fact finder could have disbelieved or found to be incredible. Id.; In re E.M.E., 234 S.W.3d at 73. “This does not mean we must disregard all evidence that does not support the finding, but if we determine that no reasonable fact finder could have formed a firm belief or conviction that the matter to be proven is true, then the evidence is legally insufficient.” In re E.M.E., 234 S.W.3d at 73.

In reviewing the evidence for factual sufficiency, we must give due deference to the fact finder’s findings and not supplant its judgment with our own. In re H.R.M., 209 S.W.3d 105, 108 (Tex.2006). We must determine whether, on the entire record, a fact finder, could reasonably form a firm conviction or belief about the truth of the matter on which the movant bore the burden of proof. In re C.H., 89 S.W.3d 17, 28 (Tex.2002); In re T.B.D., 223 S.W.3d 515, 517 (Tex.App.-Amarillo 2006, no pet.). If, in light of the entire record, the disputed evidence that a reasonable fact finder could not have credited in favor of the finding is so significant that a fact finder could not reasonably have formed a firm belief or conviction in the truth of its finding, then the evidence is factually insufficient. In re H.R.M., 209 S.W.3d at 108.

Before terminating parental rights, the trial court must find (1) that the parent committed ■ an act prohibited by section 161.001(1) of the family code, and (2) that termination is in the best interest of the child. Tex. Fam.Code Ann. § 161.001; In re N.A.F., 282 S.W.3d 113, 115 (Tex.App.Waco 2009, no pet.). The fact finder must find that both elements are established by clear and convincing evidence; proof of one element does not relieve the movant of the burden of proving the other. In re N.A.F., 282 S.W.3d at 115-16 (citing Holley v. Adams, 544 S.W.2d 367, 370 (Tex.1976)) (other citations omitted).

Here, the only statutory ground under which L.N.’s rights were terminated was section 161.001(1)(F), which provides that termination may be ordered if the trial court finds by clear and convincing evidence that the parent “failed to support the child in accordance with the parent’s ability during a period of one year ending within six months of the date of the filing of the [termination] petition.” Tex. Fam. Code Ann. § 161.001(1)(F). One year means twelve consecutive months, and there must be proof the parent had the ability to support during each month of the twelve-month period. In re N.A.F., 282 S.W.3d at 116; In re E.M.E., 234 S.W.3d at 72; In re T.B.D., 223 S.W.3d at 518; In re D.S.P., 210 S.W.3d at 779; In re R.M., 180 S.W.3d 874, 878 (Tex.App.-Texarkana 2005, no pet.). “The burden of proof is on the party seeking termination to prove by clear and convincing evidence that the parent had the ability to pay during each of the months.” In re N.A.F., 282 S.W.3d at 116 (citing Morris v. Barnes, No. 03-02-00546-CV, 2004 WL 792201, at *3 (Tex.App.-Austin Apr. 15, 2004, no pet.) (mem. op.) (citing In re Z.W.C., 856 S.W.2d 281, 283 (Tex.App.-Fort Worth 1993, no writ))).

III. Discussion

By his first issue, L.N. argues that the evidence was legally insufficient to support termination of his rights on the relied-upon statutory ground. L.N. complains that the evidence at trial failed to establish that he had the ability to pay support for L.J.N. for each of the twelve months of the period considered by the trial court. Stanfield responds that L.N.’s sworn assertions in his declarations of inability to pay costs that he received ten dollars a month from family or friends suffice to prove that he had the ability to pay at least a nominal amount in support of L.J.N. Stanfield argues that these sworn assertions conflict with L.N.’s testimony at trial that he had no source of income or ability to pay support and that, on appeal, the reviewing court should not second-guess the trial court’s determination on this conflicting evidence.

Stanfield bore a heavy burden to establish by clear and convincing evidence that L.N. had the ability to pay support during each month of the twelve-month period considered by the trial court. See In re N.A.F., 282 S.W.3d at 115-16. In attempting to satisfy that burden, the only evidence advanced by Stanfield was L.N.’s declarations of his inability to pay the costs associated with defending against the termination petition, in which L.N. stated that he “received approximately $10.00 per month as gifts from relatives and friends.” We do not believe this declaration alone was legally sufficient to support termination under the heightened burden required in these cases.

In order to conclude that L.N. had the financial ability to make support payments to L.J.N., Stanfield asks this Court to rely on the very documents L.N. filed with the trial court to prove his indigence, i.e., his inability to pay. See Mayfield v. Smith, 608 S.W.2d 767, 770 (Tex.Civ.App.-Tyler 1980, no writ) (rejecting argument by ap-pellees “that appellant, while confined in prison, could have sent for child support part of such funds as were sent to him by his family for toilet articles not furnished by the State” and because there was no other evidence of ability to pay, the evidence was insufficient to support the trial court’s finding in that regard). No other evidence was offered by Stanfield of L.N.’s ability to pay support from June 2007 to the date of the second hearing, which was the period of non-support considered by the trial court in its findings. Aside from the statements in L.N.’s indigency declarations, the only evidence in the record regarding L.N.’s ability to pay child support is L.N.’s testimony that he has had no source of income since his incarceration, he has no property to sell to earn funds, he was unable to borrow money, and he has had no opportunity to work for pay while in prison. Although L.N. did testify that he has received twenty to thirty dollars from friends and relatives for his commissary fund, there was no testimony or other evidence that he received that assistance regularly or consistently, and as such, we do not find it to be evidence of his ability to pay support during each month of the relevant twelve-month statutory period. See In re E.M.E., 234 S.W.3d at 73 (holding that the petitioner failed to prove ability to pay for twelve consecutive months where appellant testified that “he had not paid any child support as a result of his incarceration,” that “[h]e did not have any income while in prison[,] and received only $20 a month from his family for personal hygiene products”); see also In re N.A.F., 282 S.W.3d at 116 (holding that there must be proof of ability to support during each month of the twelve-month period); In re E.M.E., 234 S.W.3d at 72 (same); In re T.B.D., 223 S.W.3d at 518 (same); In re D.S.P., 210 S.W.3d at 779 (same); In re R.M., 180 S.W.3d at 878 (same).

It is our obligation to strictly scrutinize termination proceedings and strictly construe the statute in favor of the parent. In re D.S.P., 210 S.W.3d at 778 (citing Holick, 685 S.W.2d at 20). Thus, even viewing 'the evidence in the light most favorable to the trial court’s finding, we cannot conclude that it was reasonable for the court to resolve the disputed facts surrounding L.N.’s ability to pay in favor of termination. See id. (citing In re J.F.C., 96 S.W.3d at 266-67); see also In re E.M.E., 234 S.W.3d at 73; Mayfield, 608 S.W.2d at 770. To resolve the dispute in favor of termination, the trial court used the very documents that L.N. filed to show his inability to pay against him; construing those documents as some statement of ability and then, in the absence of any other evidence, crediting that over L.N.’s testimony at the hearings that he had no ability to make support payments was unreasonable. See In re E.M.E., 234 S.W.3d at 73; Mayfield, 608 S.W.2d at 770. Stan-field’s burden was a heavy one, and we conclude that he failed to produce clear and convincing evidence in support of the requisite statutory ground to meet that burden. See In re N.A.F., 282 S.W.3d at 115-16 (citing Holley, 544 S.W.2d at 370) (holding that the fact finder must find that both the best-interest and statutory elements are established by clear and convincing evidence and that proof of one element does not relieve the movant of the burden of proving the other). In other words, based on L.N.’s declarations of in-digency alone, no reasonable fact finder could have formed a firm belief that the matter to be proved by Stanfield — a consecutive twelve-month period in which L.N. both had the ability to pay and failed to pay — was true. See In re E.M.E., 234 S.W.3d at 73. The evidence supporting the only statutory ground for termination was therefore legally insufficient, and the trial court erred in terminating L.N.’s parental rights on this basis. See id. L.N.’s first issue is sustained,

IV. CONCLUSION

We reverse the trial court’s order and render judgment denying termination of the parental relationship between L.N. and L.J.N.

      . The record does not indicate whether L.N. remains incarcerated as of the date of this opinion.

      . L.J.N.'s biological mother is deceased.

      . After the first hearing, Stanfield amended his petition to add an additional statutory ground for termination. In his amended petition, in addition to the original failure-to-support ground, he alleged that L.N. "knowingly engaged in criminal conduct that has resulted in his conviction of an offense and confinement or imprisonment and inability to care for the child for not less than two years from the date of the filing of this Petition.” See Tex. Fam.Code Ann. § 161.001(1)(Q) (Vernon Supp. 2010). However, because the trial court terminated L.N.'s parental rights on the basis of the failure-to-support ground alone, we do not address this additional ground on appeal.

      . We note that, in the same declaration, L.N. also states that his monthly expenses are nine dollars.

      . See, e.g., Tuck v. State, 215 S.W.3d 411, (Tex.Crim.App.2007) (defining "indigent defendant” as one who cannot pay or give security for the record) (citing Tex.R.App. P. 20.2).


author: LESLIE B. YATES, Justice.

text:
    In the Interest of M.C.G., a child.
    No. 14-09-00644-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Dec. 2, 2010.
    William M. Thursland, Houston, for appellant.
    Sandra D. Hachem, Houston, for appel-lee.
    Panel consists of Chief Justice HEDGES and Justices YATES and BOYCE.
   SUPPLEMENTAL OPINION ON REHEARING

LESLIE B. YATES, Justice.

Appellant moved for rehearing, contending that our opinion relied on improper evidence in affirming the termination of his parental rights to M.C.G. based on failure to provide support. We overrule appellant’s motion and issue this supplemental opinion on rehearing to respond to some of his arguments.

Despite extensive references to such testimony in his appellate brief, appellant’s primary argument on rehearing is that we erred in considering testimony from prior hearings, rather than only the termination trial, in assessing the evidence regarding failure to support M.C.G. Testimony from a prior hearing can be used at trial only if the testimony is admitted into evidence. See In re C.L., 304 S.W.3d 512, 514-16 (Tex.App.-Waco 2009, no pet.); Garza v. State, 996 S.W.2d 276, 280 (Tex.App.-Dallas 1999, pet. ref d); Escamilla v. Estate of Escamilla, 921 S.W.2d 723, 726 (Tex.App.-Corpus Christi 1996, writ denied). That did not happen in this case. The evidence at the termination trial shows that appellant paid no support, but it does not establish whether he had means to provide support during the relevant time frame. Thus, based solely on the evidence admitted at trial, the evidence is insufficient to support the trial court’s finding that termination was warranted based on failure to support.

However, based solely on the evidence admitted at the termination trial, the trial court’s termination order is supportable on another ground. The trial court also terminated appellant’s parental rights based on his failure to complete his family services plan. It is undisputed that appellant did not complete one requirement in the family services plan: to undergo individual therapy. The caseworker testified at trial that appellant was accepted into individual counseling and that she gave him the necessary information but appellant did not attend and was therefore terminated from the program. Appellant argues that this failure is excused because the caseworker admitted she made a mistake in the paperwork referring him to counseling and he has never been notified that the mistake has been corrected. However, the evidence regarding this mistake is contained in testimony from a prior hearing, which was not admitted into evidence at the termination trial. Further, the Family Code does not provide for excuses for failure to comply in assessing a statutory violation. See In re J.S., 291 S.W.3d 60, 67 (Tex.App.-Eastland 2009, no pet.); Wilson v. State, 116 S.W.3d 923, 929 (Tex.App.-Dallas 2003, no pet.). Rather, any excuse for failing to complete a family services plan goes only to the best interest determination, which appellant does not challenge on appeal. See In re T.N.F., 205 S.W.3d 625, 631 (Tex.App.-Waco 2006, pet. denied); see also Holley v. Adams, 544 S.W.2d 367, 371 (Tex.1976); In re S.K.S., 648 S.W.2d 402, 404 (Tex.App.-San Antonio 1983, no writ).

The Family Code does not provide for substantial compliance with a family services plan. See In re J.S., 291 S.W.3d at 67; In re T.T., 228 S.W.3d 312, 319-20 (Tex.App.-Houston [14th Dist.] 2007, pet. denied). Appellant did not fully comply, and thus the trial court could have properly concluded' that appellant’s sufficiency challenge as to the termination of his parental rights for failure to do so lacked a substantial basis in law or fact and was thus frivolous. Accordingly, we overrule appellant’s first issue relating to M.C.G. on this basis.

      . Appellant also contends that our opinion contains factual errors. Most of the alleged factual errors relate to the failure to support argument, upon which we no longer rely. One error involves a mistyped date, which all parties agree was stated correctly earlier in the opinion and did not affect our disposition. The date referred to in the fourth paragraph of the section in our original opinion entitled "Parental Rights to M.C.G.” should be September 4, 2008, rather than September 4, 2009.

      . The Family Code provides that parental rights may be terminated if the parent "failed to comply with the provisions of a court order that specifically established the actions necessary for the parent to obtain the return of the child who has been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services for not less than nine months as a result of the child's removal from the parent under Chapter 262 for the abuse or neglect of the child.” Tex. Fam.Code Ann. § 161.001(1)(0) (West Supp.2009).

      . Appellant stated in his brief that the record contains no family services plan. The record has since been supplemented to include the plan, and the record already contained a finding in a trial court status hearing order, dated a few days after the family services plan was filed, that appellant understood the order and had been advised that failing to comply could lead to termination of his parental rights.


author: PER CURIAM. JIM GUNTER, Justice,

text:
    2009 Ark. 380
    Stephen JACKSON, Appellant, v. Cathy JACKSON, Appellee.
    No. 09-595.
    Supreme Court of Arkansas.
    June 25, 2009.
    James L. Tripcony, Little Rock, for appellant.
    Guy R. Satterfield, for appellee.
   MOTION FOR RULE ON CLERK

PER CURIAM.

| j Appellant Stephen Jackson, by and through his attorney James L. Tripcony, has filed a motion for rule on clerk to file his record and have his appeal docketed. The record was tendered by Mr. Jackson on May 29, 2009. However, he was notified by the Arkansas Supreme Court Clerk that the order granting an extension of time did not comply with the language of Arkansas Rule of Appellate Procedure— Civil 5(b)(1)(C), which provides:

(1) If any party has designated steno-graphically reported material for inclusion in the record on appeal, the circuit court, by order entered before expiration of the period prescribed by subdivision (a) of this rule or a prior extension order, may extend the time for filing the record only if it makes the following findings:
(C) All parties have had the opportunity to be heard on the motion, either at a hearing or by responding in writing.

While we note that the appellee, Ms. Jackson, has filed a response to Mr. Jackson’s ^motion, stating that she has no objection to his request to lodge the record, we decline to grant Mr. Jackson’s request. This court has held that we expect strict compliance with the requirements of Rule 5(b) and that we do not view the granting of an extension as a mere formality. Wyre v. Wyre, 2009 Ark. 245, 307 S.W.3d 30 (per curiam). Where an order fails to comply with Rule 5(b), we may remand the matter to the circuit court for compliance with the rule. Id.

Upon a remand for compliance with Rule 5(b)(1), the circuit court shall determine whether the rule was complied with at the time the original motion for extension of time was filed and granted. Id. The circuit court should not permit the parties the opportunity to correct any deficiencies, but instead should make the findings required by the rule as if they were being made at the time of the original motion. Id. Should the requirements not have been met at the time of the initial motion for extension and order, the circuit court’s order upon remand should so reflect and be returned to this court. Id. Because the order of extension in this case makes no reference as to whether “all parties have had the opportunity to be heard on the motion,” and because there must be strict compliance with the rule, we remand the matter to the circuit court for compliance with Rule 5(b)(1)(C).

Motion for rule on clerk remanded.

GUNTER, J., dissents.

JIM GUNTER, Justice,

dissenting.

I would grant the motion. In the instant case, we are ^remanding to the circuit court for a determination of whether, under Rule 5, the parties have had an opportunity to be heard. However, it is apparent from the response that respondent waives any right to a hearing on the issue of extending the time to file the record. The interest of justice would be best served by granting the motion for rule on clerk.


author: /s/ John D. Minton, Jr, Chief Justice

text:
    KENTUCKY BAR ASSOCIATION, Movant, v. Charles C. LEADINGHAM, Respondent.
    No. 2010-SC-000673-KB.
    Supreme Court of Kentucky.
    Jan. 20, 2011.
   OPINION AND ORDER

Charles C. Leadingham, KBA Member Number 82296, was admitted to the practice of law in the Commonwealth of Kentucky on October 30, 1987. His Bar Roster address is 215 15th Street, P.O. Box 387, Ashland, Kentucky 41105. Before the Court is the Board of Governors’ Findings of Fact, Conclusions of Law and Recommendations of October 18, 2010, which found the Respondent guilty, by default, of Charge No. 18277 and Charge No. 18335. The Board of Governors consolidated the charges for purposes of considering appropriate discipline and recommended that Respondent be permanently disbarred from the practice of law. Both Charges include five counts each and were before the Board of Governors by default, and are before this Court pursuant to SCR 3.370(10) (no request for review nor issuance of a notice of review). Therefore, we adopt the decision of the Board of-Governors.

KBA File No. 18277

The first Charge before us involved five counts against the Respondent. In December of 2008, Respondent was paid $3,500.00 to represent a defendant who was facing felony charges in Boyd County. The fee was paid by the defendant’s parents. Respondent made an initial court appearance to waive the defendant’s case to the grand jury. Subsequently, Respondent was suspended from the practice of law by this Court (on March 19, 2009). Respondent did not notify the client of his suspension and of the fact that he could no longer represent the client. Numerous phone calls to the Respondent were unanswered. After the defendant was indicted, Respondent had another attorney cover the arraignment. Respondent never withdrew his representation nor did he address a refund or an accounting to determine how much of the retainer was earned before the suspension.

The defendant filed a Bar Complaint against the Respondent on December 9, 2009. Respondent was served by certified mail on December 23, 2009, with the complaint and a letter from the Disciplinary Clerk requesting additional information under the threat of an additional charge or count if Respondent failed to answer. Respondent failed to respond to the complaint or to the request for additional information. Based on the above facts, Respondent was issued a charge by the Inquiry Commission on July 16, 2010. Count I charged Respondent with a violation of SCR 3.130-1.3 (which requires a lawyer act with reasonable diligence and promptness), for his failure to do any work on the case from December 2008, until his suspension, and for his failure to promptly withdraw from representation when he was suspended. Count II charged Respondent with a violation of SCR 3.130-1.4(a) (which requires a lawyer keep a client reasonably informed about the status of his case and to promptly reply to requests for information), for not returning the defendant’s or the defendant’s parents’ phone ealls-or otherwise communicating with them. Count III charged Respondent with a violation of SCR 3.130-1.15(b) (which requires refunding any advance fee not earned), for not refunding the fee. Count IV charged Respondent with a violation of SCR 3.130-1.16(d) (which requires that upon termination of the representation, the lawyer take reasonable steps to protect a client’s interest, such as giving reasonable notice to the client, allowing time to employ other counsel, surrendering client property and papers, and returning unearned fees). It is alleged that Respondent did not notify the client or the court of his suspension, did not return papers nor return any unearned fee. Count V charged Respondent with a violation of SCR 3.130-8.1(b) (which requires a lawyer to respond to a lawful demand for information from a disciplinary authority), for failing to answer the Charge or the request for additional information.

Respondent could not be personally served because he had moved to Florida. The Charge was forwarded to the KBA Director for service pursuant to SCR 3.175(2). When no response was received, a reminder letter was sent on August 16, 2010, to Respondent’s Bar Roster address. Again, Respondent did not respond, and the Board of Governors found the Respondent guilty of all counts in this charge by default.

KBA File No. 18335

In the second Charge before us, the Respondent was paid $7,500.00 on December 28, 2006, by a woman to represent her son in an attempt to obtain post-conviction relief from a federal conviction. Respondent visited the son in prison in Hazelton, West Virginia, one time, on April 17, 2007. Respondent did not enter an appearance or file any documents in any court on behalf of this defendant. The son wrote to Respondent multiple times but only received one response. Likewise, the mother was not provided with any information on the case except to say Respondent visited the son twice, when in fact it was once. Again, the Respondent was suspended from the practice of law by this Court on March 19, 2009. On March 25, 2009, Respondent sent the mother a letter informing her that he was under suspension and could not represent her son. No such letter was sent to the son. Later, Respondent did tell the mother that he would resume work on her son’s case following the end of his suspension. Respondent was never reinstated, and did not return any unearned fee. The mother believes the Respondent may have earned $1,000.00 of the fee she paid.

A Bar Complaint was filed against the Respondent. He was personally served with the Bar Complaint on March 12, 2010, along with a letter from the Disciplinary Clerk that the Inquiry Commission required additional information from him concerning the complaint, and that failure to respond could result in additional charges. Respondent failed to respond and was served with a reminder letter and the Complaint at an address other than his bar roster address. Respondent did not respond to the reminder letter with the same information request, nor answer the Complaint.

A Charge was issued by the Inquiry Commission against the Respondent on August 11, 2010. This Charge also contained five counts. Count I charged Respondent with a violation of SCR 3.130-1.3 (which requires a lawyer act with reasonable diligence and promptness in representing a client), for his failure to do any of the work on the son’s case for which he was hired to perform. Count II charged Respondent with a violation of SCR 3.130-1.4(a) (which requires a lawyer keep a client reasonably informed about the status of his case and to promptly reply to requests for information), for not returning the mother’s or the son’s phone calls-or otherwise communicating with them. Count III charged Respondent with a violation of SCR 3.130-1.15(b) (which requires refunding any advance fee not earned), for not refunding the fee. Count IV charged Respondent with a violation of SCR 3.130-1.16(d) (which requires that upon termination of the representation, the lawyer take reasonable steps to protect a client’s interest, such as giving reasonable notice to the client, allowing time to employ other counsel, surrendering client property and papers, and returning unearned fees). Count V charged Respondent with a violation of SCR 3.130 — 8.1(b) (which requires a lawyer to respond to a lawful demand for information from a disciplinary authority), for failing to answer the Charge or the request for additional information.

The Charge could not be served personally because Respondent moved to Florida. The Charge was forwarded to the KBA Executive Director for service pursuant to SCR 3.175(2). Service was completed on August 13, 2010, and no answer or response was ever filed. By default, the Board of Governors found Respondent guilty of all five counts in this Charge.

Prior Discipline

The Board of Governors reviewed the Respondent’s file of prior disciplines to determine the appropriate discipline in these two combined cases:

1. May 24, 2001, Respondent was issued a public reprimand for failing to respond to a client’s requests for information and failing to inform the client that he no longer represented the client.
2. November 26, 2008, Respondent was suspended for thirty days, probated on the condition that he attend the Ethics and Professionalism Enhancement Program in 2009 with costs. The suspension was for his failure to file briefs in two separate appeals and failure to respond to the bar complaint.
3. March 19, 2009 Respondent was suspended for sixty-one days for four violations of the Rules of Professional Conduct. Respondent failed to file a lawsuit after being hired to do so (SCR 3.130-1.3), failed to return his client’s telephone calls (SCR 3.130-1.4), failed to return money to the client (SCR 3.130-1.15(b)), and failed to respond to the Bar Complaint (SCR 3.130-8.1(b)).
4. January 21, 2010 Respondent was suspended from the practice of law for 120 days, retroactive to May 20, 2009, for his representation in two previous cases. The facts as found by the trial commissioner, which we adopted, found that Respondent was accepting fees from clients and not doing the work.
5. August 26, 2010 Respondent was suspended from the practice of law for 181 days, concurrent to any suspensions ordered prior to the date of this order, for failing to return an unearned fee and for failing to respond to a bar complaint. Restitution and costs were ordered.
6. August 26, 2010, Respondent received a second suspension for 181 days, consecutive to all other suspensions ordered prior to, or on the same date as this suspension. This suspension was for failing to diligently represent clients in two separate appeals, and knowingly or intentionally disobeying an obligation under the rules for failing to respond to the orders of the Court of Appeals.
7. August 26, 2010, saw a third suspension in one day for Respondent. He received a three-year suspension from the practice of law, consecutive to all other suspensions ordered prior to, or the same date as this suspension, for misconduct in two separate cases. Both cases involved Respondent accepting fees, not keeping clients informed, not doing the work, and then not returning fees. To compound the problems, Respondent would not answer the bar complaints.

Board’s Recommendation

After reviewing and considering Respondent’s prior disciplines, the Board of Governors recommended the Respondent be permanently disbarred from the practice of law in this Commonwealth, and be ordered to pay restitution for unearned fees to his clients (or to the Client Security Fund as the cases may be) and the costs of this proceeding. Respondent did not respond to the Board of Governors’ recommendation to this Court, and this Court has elected not to issue a notice of review. Therefore, under SCR 3.370(10), this Court shall enter an order adopting the decision of the Board.

ACCORDINGLY IT IS HEREBY ORDERED that:

1. Charles C. Leadingham is adjudicated guilty of all five counts in Charge No. 18277.
2. Charles C. Leadingham is adjudicated guilty of all five counts in Charge No. 18335.
3. Charles C. Leadingham is hereby permanently disbarred from the practice of law in the Commonwealth of Kentucky.
4. Pursuant to SCR 3.390, Charles C. Leadingham shall send letters to all Courts in which he has matters pending, if any, and to all clients whom he is actively representing, if any, within ten days of this Opinion and Order, notifying them of his inability to continue to represent them and advising them of the necessity of retaining new counsel. Charles C. Leadingham shall also provide a copy of such letters to the Director of the KBA and cease advertising activities, if any.
5. Charles C. Leadingham is ordered to pay restitution of the unearned fees to the above clients in each case or to the Client Security Fund.
6. Pursuant to SCR 3.450, Charles C. Leadingham shall pay the costs of this disciplinary proceeding, said sum being $576.92, for which execution may issue from this Court upon finality of this Opinion and Order.

All sitting. All concur.

ENTERED: January 20, 2011.

/s/ John D. Minton, Jr, Chief Justice

      . Kentucky Bar Ass'n v. Leadingham, 281 S.W.3d 284 (Ky.2009) (2008-SC-000934-KB).

      . All citations are to the Rules prior to the July 15, 2009, amendments.

      . Leadingham, 281 S.W.3d 284.

      . Again, all citations are to the Rules prior to the July 15, 2009, amendments.

      . Leadingham v. Kentucky Bar Ass’n, 44 S.W.3d 374 (Ky.2001) (2001-SC-000275-KB).

      . Kentucky Bar Ass’n v. Leadingham, 269 S.W.3d 419 (Ky.2008) (2008-SC-000522-KB).

      . Leadingham, 281 S.W.3d 284 (2008-SC-000934-KB).

        .Kentucky Bar Ass'n v. Leadingham, 302 S.W.3d 79 (Ky.2010) (2009-SC-000765-KB).

      . Kentucky Bar Ass'n v. Leadingham, 317 S.W.3d 583 (Ky.2010) (2010-SC-000262-KB).

      . Kentucky Bar Ass'n v. Leadingham, 317 S.W.3d 589 (Ky.2010) (2009-SC-000815-KB).

      . Kentucky Bar Ass'n v. Leadingham, 318 S.W.3d 598 (Ky.2010) (2010-SC-000420-KB).


author: THOMPSON, Judge:

text:
    PEABODY PAINTING & WATERPROOFING, INC., Appellant/Cross-Appellee, v. KENTUCKY EMPLOYERS’ MUTUAL INSURANCE COMPANY, Appellee/Cross-Appellant. and Fusting Insurance Agency, LLC, Appellant, v. Kentucky Employers’ Mutual Insurance Company, Appellee.
    Nos. 2008-CA-001914-MR, 2008-CA-001971-MR, 2008-CA-001940-MR.
    Court of Appeals of Kentucky.
    Dec. 29, 2010.

      Kristie Babbitt Walker, Gregory L. Smith, Louisville, KY, for appellant, Peabody Painting & Waterproofing, Inc.
    Katherine S. Dozier, Richard P. Schiller, Louisville, KY, for appellant, Fusting Insurance Agency, LLC.
    John W. Walters, Sarah E. Noble, Lexington, KY, for appellee.
    Before TAYLOR, Chief Judge; CLAYTON and THOMPSON, Judges.
   OPINION

THOMPSON, Judge:

This case involves a workers’ compensation insurance coverage claim between Peabody Painting & Waterproofing, Inc. and Kentucky Employers’ Mutual Insurance Company (KEMI), and Fusting Insurance Agency’s claim that it is entitled to indemnity from KEMI.

The Jefferson Circuit Court granted KEMI’s motion for summary judgment on the basis that the KEMI policy did not provide extraterritorial coverage for a Peabody employee injured in Louisiana. It subsequently denied summary judgment to Fusting Insurance Agency, finding that material issues of fact existed as to whether the agency owed a duty to Peabody and, if so, whether it breached that duty. After Fusting Insurance Agency filed a cross-claim against KEMI seeking indemnification, KEMI filed a motion to dismiss Fust-ing Insurance Agency’s cross-claim, which was granted. Peabody appealed the summary judgment granted to KEMI and KEMI filed a protective cross-appeal. Fusting Insurance Agency appealed the order dismissing its cross-claim against KEMI.

Peabody is a commercial painting company founded in May 2001 by Florida resident Kevin Smither and was incorporated in that state. Peabody contracts to paint fast food restaurants throughout the United States and, consequently, its painters do not have a “home base” and travel in company vehicles.

Initially, Smither operated the company from his home. Later, he opened a small sales office and warehouse space in Florida. He obtained workers’ compensation insurance as well as other insurance in Florida. In 2001, Smither decided to locate the company in Kentucky and hired Robert Cripe as the Chief Financial Officer of Peabody.

Cripe opened an office in Louisville and obtained a certificate for Peabody to do business in Kentucky. Among his duties, Cripe was to obtain workers’ compensation insurance from a Kentucky insurance agent to replace the Florida' policy. He contacted Donald Fusting of Fusting Insurance Agency, a licensed independent insurance agent. Cripe provided Fusting a list of all states in which Peabody’s painters worked.

After Fusting recommended that Peabody obtain insurance through KEMI, Cripe completed an insurance application for workers’ compensation insurance through KEMI. In the portion of the application requesting information of the states for which coverage was sought, the words “All States” appeared. Fusting testified that the “All States” designation was a default setting on his computer for that field and that he and Cripe did not discuss the “All States” designation. However, the application stated that Peabody had coverage in another state, that the main office was in Louisville, and the company had a sales office and warehouse in Florida. In addition, the application indicated that Peabody employees traveled out of state.

At the time the Peabody policy was written, KEMI did not offer workers’ compensation insurance coverage for losses occurring in any state other than Kentucky. Thus, upon receiving the Peabody application and noting that Peabody had operations in Florida and employees that worked outside Kentucky, KEMI’s underwriting supervisor, Mary Ross, contacted Fusting by telephone and informed him that KEMI’s workers’ compensation policy only covered Kentucky exposures. KEMI underwriter Dan Feigle followed Ross’s contact with a fax to Fusting on February 22, 2002, informing him that “KEMI will only cover KY exposures and cannot offer coverage to any employees outside the state of KY.” On March 13, 2002, he sent a letter wherein he stated:

KEMI is not authorized to provide Workers’ Compensation benefits in any other state than Kentucky. Accordingly, the workers’ compensation policy issued to our policyholder, Peabody Painting and Waterproofing, does not provide coverage in other states.

The policy issued to Peabody also states that its terms applied only to the “Workers’ Compensation laws of the Commonwealth of Kentucky” and “provided no coverage for benefits under the workers’ compensation laws of any other state.”

After the KEMI policy was issued, in August 2002, an investigator from the Florida Division of Workers’ Compensation visited Peabody’s Florida office seeking information concerning Peabody’s workers’ compensation coverage for Florida employees and was concerned that the KEMI policy did not' cover those workers. A conference call occurred between Smith-er, Cripe, Fusting, and the investigator after which the investigator issued a “Stop Work and Penalty Assessment Order” to Peabody requiring it to cease all business operations until it provided proof that it had workers’ compensation insurance for Florida workers, and Peabody was fined $1,100. Instead of ceasing its operations, Peabody alleges that it relied on Fusting’s advice that the coverage was afforded under the KEMI policy.

Bogdan Klepadlo, a Florida resident, was hired in April 2002. Klepadlo interviewed in Florida with Smither and completed an application. Because Klepadlo had been recommended by current Peabody employees, his interview was brief. Following the interview, Smither faxed Klepadlo’s application and his driver’s license to Cripe in Kentucky.

Cripe’s only involvement in the liming process was to verify the authenticity of Klepadlo’s driver’s license and set up a direct deposit to receive compensation from Peabody. Smither testified that the decision to hire Klepadlo was made when the application was sent to Cripe and that the application was only a formality. After Cripe reviewed the application and checked Klepadlo’s driver’s license, Smith-er informed Klepadlo in Florida that he had been hired and Klepadlo accepted the offer in Florida.

While working for Peabody, Klepadlo worked approximately eighty-four painting jobs, fifty-two of which were in Florida. He received all work assignments in Florida and his wages were directly deposited from Peabody’s Florida bank account into Klepadlo’s Florida bank account.

Klepadlo was injured on February 10, 2003, while working for Peabody in Louisiana. Peabody informed KEMI of Klepad-lo’s injuries on February 12, 2003. After collecting further information concerning the claim, on March 4, 2003, KEMI denied the claim and, the following day, the Kentucky Department of Workers Claims sent a letter to Klepadlo informing him of his rights relative to the denial.

Klepadlo did not file a Kentucky workers’ compensation claim but filed a claim in Florida. Peabody hired Florida counsel to defend it in the proceeding and did not pursue a claim for coverage against KEMI. In a settlement hearing in August 2005, Peabody agreed to pay certain amounts to Klepadlo and agreed that the Florida Judge of Compensation Claims would retain jurisdiction.

Peabody filed an action against Fusting on October 13, 2002, alleging that Fusting was negligent in obtaining an insurance policy that did not provide coverage for workers’ compensation injuries incurred outside Kentucky. Subsequently, Peabody amended its complaint wherein it asserted that KEMI wrongfully denied coverage, bad faith, violation of the Kentucky Consumer Protection Act and the Unfair Claims Settlement Practices Act, and violation of Kentucky Revised Statutes (KRS) 304.12-235.

Peabody filed motions for summary judgment against Fusting and KEMI and KEMI filed a motion for summary judgment on all claims asserted against it. Fusting filed a cross-motion for summary judgment against Peabody. The circuit court denied the motions filed by Peabody and Fusting but concluded that the denial of coverage by KEMI was proper and granted summary judgment to KEMI.

Interpretation of an insurance policy is a question of law which we review de novo. Cinelli v. Ward, 997 S.W.2d 474 (Ky.App.1998). The applicable rules of construction were summarized in Goodman v. Horace Mann Ins. Co., 100 S.W.3d 769, 772 (Ky.App.2003):

[I]n this state doubts concerning the meaning of contracts of insurance are resolved in favor of the insured. State Auto. Mutual Ins. Co. v. Ellis, Ky.App., 700 S.W.2d 801, 803 (1985). But, in the absence of ambiguities or of a statute to the contrary, the terms of an insurance policy will be enforced as drawn. Osborne v. Unigard Indemnity Co., Ky. App., 719 S.W.2d 737, 740 (1986); Woodard v. Calvert Fire Ins. Co., Ky., 239 S.W.2d 267, 269 (1951). Unless the terms contained in an insurance policy have acquired a technical meaning in law, they “must be interpreted according to the usage of the average man and as they would be read and understood by him in the light of the prevailing rule that uncertainties and ambiguities must be resolved in favor of the insured.” Fryman v. Pilot Life Ins. Co., Ky., 704 S.W.2d 205, 206 (1986).

Because we conclude that the terms of the KEMI policy are unambiguous, we must enforce the policy as written without application of alternative rules of construction. Edwards v. Carlisle, 179 S.W.3d 257, 261 (Ky.App.2004).

The policy states that “[T]his policy covers all your workplaces in the Commonwealth of Kentucky....;” On the following page the policy states that the policy applies to bodily injury by accident or occupational disease to an employee if the employment is “necessary or incidental to your work in Kentucky.” Finally, under the extraterritorial coverage provision, it unambiguously and conspicuously states that: “This policy provides coverage for benefits as provided by the extraterritorial provisions of the Workers’ Compensation Law.”

Klepadlo was injured outside Kentucky and was a Florida resident who had never performed work in Kentucky on Peabody’s behalf. Thus, in accordance with the policy, Klepadlo could be covered by the policy only if the extraterritorial coverage provisions provided by Kentucky law apply.

The circumstances in which extraterritorial coverage applies are set forth in KRS 342.670. In relevant part, the statute states:

(1) If an employee, while working outside the territorial limits of this state, suffers an injury on account of which the employee, or in the event of the employee’s death, his or her dependents, would have been entitled to the benefits provided by this chapter had that injury occurred within this state, that employee, or in the event of the employee’s death resulting from that injury, his or her dependents, shall be entitled to the benefits provided by this chapter, if at the time of the injury:
(a) His or her employment is principally localized in this state; or
(b) He or she is working under a contract of hire made in this state in employment not principally localized in any state....

We conclude that Klepadlo’s employment was not principally localized in Kentucky nor was he working under a contract of hire made in this state.

For the purposes of extraterritorial coverage, “the employer must either lease or own a location in the state at which it regularly conducts its business affairs, and the subject employee must regularly work at or from that location.” Haney v. But ler, 990 S.W.2d 611, 617 (Ky.1999). Klepadlo received his work orders from the Florida office and had no interaction with the Kentucky office. During his Peabody employment, Klepadlo was a Florida resident and the majority of his work assignments were in Florida. Therefore, his employment was not principally located in Kentucky.

Pursuant to KRS 342.670(l)(b), coverage is available if the employee “is working under a contract of hire made in this state.” A contract is made in this state if the final act necessary for its formation occurs in this state. Trinity Universal Ins. Co. v. Mills, 293 Ky. 463, 169 S.W.2d 311, 314 (1943). We agree with KEMI’s argument that the contract of hire was made in Florida and, therefore, the extraterritorial provision in KRS 342.670(l)(b) does not apply.

Other than a routine cheek of his driver’s license by Cripe, no Peabody representative in Kentucky had contact with Klepadlo or any participation in his hiring. All conversations between Klepadlo and representatives of Peabody occurred in Florida. He completed the application in Florida and spoke with Smither in Florida. Most determinative, the offer of employment and Klepadlo’s acceptance of employment occurred in Florida. Therefore, Klepadlo’s contract of hire was made in Florida, and the extraterritorial coverage provisions of Kentucky law do not apply.

Peabody argues that even if the policy and Kentucky law do not provide coverage for Klepadlo’s injury, KEMI is estopped from denying coverage. It argues that KEMI never directly informed it that there was no out-of-state coverage and accepted premiums. It points out that after Klepadlo’s claim, KEMI audited Peabody and provided a refund for premiums paid for workers’ compensation benefits KEMI determined to be on Florida employees.

It has been stated that “it is a just rule that the insurance company, when it accepts the insured’s money for the premium, knows the facts rendering the policy void, the company so taking the money of the insured is estopped to say that the policy had no operation at all.” Glens Falls Ins. Co. v. Elliott, 223 Ky. 205, 3 S.W.2d 219, 221 (1928). Peabody contends that it paid a premium for workers’ compensation insurance but received no benefit and, therefore, KEMI is estopped from denying coverage.

Peabody ignores that KEMI does not deny that the policy provides workers’ compensation coverage for qualifying employees; thus, this is not a situation where Peabody has paid premiums but received no coverage. Moreover, the elements of estoppel simply are not present.

Estoppel is an equitable doctrine and is available when a party offers a false representation or conceals information that reasonably induces an injured party’s inaction. In order for estoppel to apply, the party estopped must have acted with the intention or expectation that the other party will rely on its conduct and the other party does so to its determent. Hitachi Automotive Products USA, Inc. v. Craig, 279 S.W.3d 123, 126 (Ky.2008).

Upon receipt of Peabody’s application for insurance, the KEMI underwriting supervisor informed Peabody’s insurance agent that the policy did not offer out-of-state coverage. Additional correspondence between KEMI and Fusting stressed that only Kentucky exposures and employees were covered under the policy and the policy unambiguously stated the same limitations. Moreover, certainly when the Florida Division of Workers’ Claims inspector issued a stop work order for the company upon finding that the KEMI policy did not cover Florida’ employees, Peabody knew it lacked coverage for employees such as Klepadlo. Therefore, estoppel is not applicable.

Because KEMI cannot be liable to Peabody under any theory alleged in the complaint, Fusting’s claim for indemnification must fail. “[B]oth indemnity and contribution depend upon liability by one or both parties to the original claimant who suffered the original loss. Without such liability, there is no independent right to indemnity or contribution.” ARA Services, Inc. v. Pineville Community Hosp., 2 S.W.3d 104, 107 (Ky.App.1999). Because KEMI cannot be held liable to Peabody, it does not have an independent right to indemnity; thus, its cross-claim for indemnification was properly dismissed.

All other issues presented are rendered moot by our conclusion that KEMI has no liability.

Based on the foregoing, the judgments of the Jefferson Circuit Court are affirmed.

ALL CONCUR.


author: MARY R. RUSSELL, Judge.

text:
    CITY OF SULLIVAN, A Missouri Municipal Corporation in Franklin and Crawford Counties, Respondent, v. Judith Ann SITES, as Trustee of the Judith Ann Sites Trust, Appellant.
    No. SC 90866.
    Supreme Court of Missouri, En Banc.
    Dec. 7, 2010.
    Rehearing Denied Jan. 11, 2011.

      Jonathan Sternberg, Sternberg Law PC, Dennis Owens, Attorney at Law, Kansas City, for Sites.
    Kevin M. O’Keefe, Stephanie E. Karr, Curtis, Heinz, Garrett & O’Keefe PC, St. Louis, Matthew A. Schroeder, Hansen, Stierberger, Downard, Melenbrink & Schroeder LLC, Union, for the City.
    Howard C. Wright Jr., Attorney at Law, Springfield, for the Missouri Municipal League, which filed a brief as a friend of the Court.
   MARY R. RUSSELL, Judge.

At issue in this case is whether the City of Sullivan can charge higher sewer connection fees for properties in areas with new sewer access. A property owner argues that the City’s sewer connection fee ordinance is a “special law” in violation of Missouri Constitution article III, section 40(30).

Because the sewer connection fee ordinance is a not an unconstitutional special law under article III, section 40(30), the trial court’s judgment upholding the ordinance is affirmed.

Background

In 1996, the City developed a plan to improve its sewer system and install new sewer lines in areas that previously had no sewer access. Pursuant to Missouri Constitution article VI, section 27, the City proposed a $3.3 million revenue bond to fund the sewer project. Before the election, voters were provided notice by mail about the sewer improvement project, which detailed the new areas that would receive sewer service and the connection fees that would be imposed in those areas. The City’s voters passed the proposed bond issue. The bonds issued were special, limited obligations of the City, secured by and payable solely from a pledge of the net revenues gained from the operation of the City’s combined sewer system and waterworks.

An ordinance outlining new sewer connection fees was included in the City’s efforts to implement the sewer improvement project. The ordinance established higher sewer connection fees for properties located in areas that did not have sewer service prior to the 1996 sewer improvement project. Sewer connection fees for these properties were set at $3,750 or $4,250, whereas sewer connection fees in previously sewered areas were set at $60 or $75.

The Judith Ann Sites Trust, administered by Judith Ann Sites as trustee, owns property located in an area that previously did not have sewer access. The City’s new sewer lines were constructed within 100 feet of Sites’s property, requiring her to connect her property to the sewer system. Sites refused to pay the costs for connecting to the City’s sewer system, which included the City’s sewer connection fee and the construction costs for a sewer line leading from her home to the City’s sewer line. The City sued Sites, seeking an order compelling her to pay the necessary costs for a sewer connection.

Sites answered by arguing that the City’s sewer connection fee ordinance is a “special law” that violates Missouri Constitution article III, section 40(30). She asserted that the ordinance wrongly created an improper subclass within the larger class of “all new sewer connections” by treating disparately sewer connections for properties located in newly sewered areas. She argued that it was unjustifiable to charge higher sewer connection fees to these properties because all new sewer connections, regardless of their location in the City, utilize comparable materials and yield the same permission to connect to the City’s sewer service.

The City moved that Sites’s answer be stricken because the City’s sewer connection fee ordinance had withstood a previous challenge in Larson v. City of Sullivan, 92 S.W.3d 128 (Mo.App.2002). Larson, however, did not address a special laws challenge to the sewer connection fee ordinance. Instead, Larson determined that the ordinance did not violate the Hancock Amendment, Missouri Constitution article X, section 22. 92 S.W.3d at 131-33. Larson further concluded that the City had the authority to establish the connection fees and that the connection fees imposed by the City were not unreasonable, arbitrary, or capricious. Id. at 133-35. The trial court overruled the City’s motion to strike Sites’s answer.

Ultimately, however, the trial court entered a judgment in the City’s favor. Sites was ordered to pay the costs for connecting her home to the City’s sewer system, and the City was granted an order permitting it to enter her property to connect it to the sewer system. The City also was awarded $3,750 in damages, the amount of Sites’s connection fee. Sites now appeals.

Standard of Review

Sites’s appeal maintains that the sewer connection fee ordinance is unconstitutional under article III, section 40(30). The constitutional validity of the ordinance is a question of law meriting de novo review. State ex rel. Sunshine Enters, of Mo., Inc. v. Bd. of Adjustment of the City of St. Ann, 64 S.W.3d 310, 314 (Mo. banc 2002). Lawmakers’ discretion in defining a class to which a law applies should be disturbed only when the created class is clearly arbitrary, unreasonable, and .unjust. See Hawkins v. Smith, 242 Mo. 688, 147 S.W. 1042, 1044 (1912).

The Sewer Connection Fee Ordinance Is Constitutional

Article III, section 40(30) provides that “[t]he general assembly shall not pass any local or special law ... where a general law can be made applicable.” This prohibition against special laws also extends to city ordinances. McKaig v. Kansas City, 363 Mo. 1033, 256 S.W.2d 815, 816 (1953). A general law is a statute that relates to persons or things as a class, whereas a special law relates to particular persons or things of a class. City of Springfield, v. Sprint Spectrum, L.P., 203 S.W.3d 177, 184 (Mo. banc 2006).

Consideration for whether a law is special or general includes examination of whether the categories created under the law are open-ended or fixed, based on an immutable characteristic. Id. But whether a law implicates a geographically fixed category is not the dispositive factor in deciding if it is an unconstitutional special law. The class at issue in the sewer connection fee ordinance is fixed according to location, but this does not render the ordinance unconstitutional unless there is was no substantial justification for creating the class. See id. at 185-86.

Where the designation of a class is substantially justified, the class avoids the “vice in special laws” referenced in Sprint Spectrum: “The vice in special laws is that they do not embrace all of the class to which they are naturally related.” Id. at 184 (internal quotations omitted). “The question in every case is whether any appropriate object is excluded to which the law, but for its limitations, would apply.” Id. (internal quotations omitted).

The record in this case provides evidence that there was substantial justification for creating a class of new sewer connections that was required to pay higher connection fees before accessing new portions of the City’s sewer system. The higher connection fees were imposed in a way that embraced all of the class to which the higher fees naturally related. Larson noted that the properties subjected to the higher connection fees derived a direct benefit from the City’s 1996 sewer improvements: “The system itself is a good or service, which is provided in return for the fee. Residents did not have the benefit of a sewer system prior to this. In return for the payment of the fee, residents now have the benefit of the system.” 92 S.W.3d at 133.

Other jurisdictions recognize that special laws prohibitions should not prevent necessary geographic classifications premised on legitimate distinguishing characteristics. See, e.g., Schrader v. Florida Keys Aqueduct Auth., 840 So.2d 1050, 1055-56 (Fla. 2003) (discussing that some laws necessarily apply only to fixed geographic classifications). The Florida Supreme Court recognizes that “[a] law relating to ... things as a class is a valid general law if the classification is based upon proper differences which are inherent in or peculiar to the class.” Id. at 1055 (emphasis added). It highlights the importance of considering the public policy implications of the classification at issue:

So long as a law materially affects the people of this state, it need not have universal application to be a general law.... This Court has upheld as legally valid general laws legislation that facially appeared to affect only a limited geographic area of the state but which had a primary purpose contemplating an important and necessary state function and an actual impact far exceeding the limited geographic area identified by its terms.

Id. at 1055-56.

The creation of the class in this case contemplated an important government function. The class’s impact extended beyond the geographic bounds of the properties in the class. The sewer connection fee ordinance was an important component of the City’s overall efforts to implement its sewer improvement project, which extended sanitary sewer services to more households and provided needed improvements to the City’s sewer infrastructure.

The imposition of higher fees for the properties connecting to the new portions of the City’s sewer system contributed to the City’s ability to fund the sewer project as a whole. The City’s code administrator testified at trial that the connection fees were included in the overall costs of the new sewer system. He stated that it was his assumption that establishing the fee amounts “was done through the cost of the project” after determination of “what it would take to pay for the project, [including] pay[ing] the bonds off.” He concurred with the City’s attorney’s statement that the City had to “spread [the] cost” for the new sewer system across the properties that were receiving new sewer access.

Considering the facts of this case, the City was justified in creating the class of new sewer connections charged higher connection fees. The trial court did not err in finding for the City in its suit against Sites. The trial court’s judgment is affirmed.

All concur.

      . This Court lias jurisdiction over this case pursuant to Mo. Const, art. V, sec. 10, as this case was taken on transfer after opinion by the court of appeals.

      . Sewer connection fees vary by the type of connection used — fees are $3,750 for a gravity connection or $4,250 for a pressure (grinder pump) connection.

      . The connection fee was $60 for a four-inch sewer tap or $75 for a sewer tap in excess of four inches. These connection fees later were raised to $500.

      . The City’s code requires that ”[t]he owner of all houses, buildings or properties used for human employment, recreation or other purposes” with property lines within 100 feet of the City's sewer system must install toilet facilities connected to the City's sewer system. Sewer connections are not required for vacant lots.


author: MICHAEL A. WOLFF, Judge.

text:
    Linn O. HOSKINS III, Appellant, v. STATE of Missouri, Respondent.
    No. SC 90695.
    Supreme Court of Missouri, En Banc.
    Dec. 7, 2010.

      Ellen H. Flottman, Public Defender’s Office, Columbia, for Hoskins.
    Richard A. Starnes, Attorney General’s Office, Jefferson City, for the State.
   MICHAEL A. WOLFF, Judge.

Introduction

When a court imposes sentences that appear to be contrary to statutory authority, can an appellate court review the offender’s claim as “plain error” if the offender does not raise the claim in a post-conviction motion under Rule 24.035?

The short and complete answer is no. There is no “plain error” review in appeals from denial of relief under Rule 24.035.

Rule 24.035 says that the sentenced offender must raise the claim in the Rule 24.035 motion or it is waived. But, notwithstanding the language of the rule, some cases have recognized an exception— and allowed plain error review — when the sentencing court has acted beyond its statutory authority. Some cases refer to sentencing beyond the court’s statutory authority as acting without “jurisdiction.” There is, however, no plain error review of post-conviction judgments, whether “jurisdictional” or otherwise.

Facts

Both the facts of the Hoskins’ criminal history and the law relating to sentencing make this simple case seem confusing. The pertinent facts follow:

1. Hoskins committed, three felonies prior to his initial sentencing. He was sentenced to prison terms for each of those offenses, with the execution of the sentences suspended during a five-year period of probation.
a. His first admitted criminal activity involved breaking into an apartment and stealing a television, stereo and compact discs in December 2006. He pleaded guilty to two crimes— second-degree burglary and stealing.
b. His second admitted criminal activity involved breaking into the room of a former roommate and choking her (not fatally) in January 2007. He pleaded guilty to first-degree burglary for that crime.
2. At his first sentencing, in June 2007, the circuit court sentenced him to a 15-year prison term for first-degree burglary for the January 2007 crime described in 1(b), above, and suspended execution of the sentence during a five-year probation period.
3.At his second sentencing, in July 2007, the circuit court sentenced Hos-kins to a seven-year prison term for ' second-degree burglary-and a seven-year prison term for stealing — for the December 2006 offenses listed in 1(a), above — and suspended the execution of both sentences during a five-year probation period.

Hoskins, unfortunately, did not quit crime during his probation. He was jailed and charged with stealing a motor vehicle when he took a four-wheel all-terrain vehicle (ATV) and caused property damage while driving it around. He pleaded guilty. While awaiting sentencing, Hos-kins and another prisoner allegedly constructed a fake gun out of toilet paper, painted it black and attempted to escape from custody.

For the crime of stealing the ATV, the circuit court sentenced Hoskins to seven years in prison. Because this new offense violated his previous probation, the court ordered the 15-year sentence for first-degree burglary to be executed, that is, to take effect. The court ordered that the sentence for the ATV offense be served concurrently with his 15-year sentence for first-degree burglary. The court also ordered execution of the two seven-year sentences for second-degree burglary and stealing and ordered that these sentences should run consecutively to each other and to the 15-year sentence. The court’s decision took note of the prosecutor’s agreement not to charge Hoskins with attempted escape in this exchange, recorded in the sentencing transcript:

Court: “Is the State in a position to enter an agreement not to file any charges based on the two consecutive sentences then on that?”
Mr. Koening (prosecutor): “If the Court imposed the sentences consecutive, I will not file charges against Mr. Hoskins for the attempted escape, your honor.” Court: “Do you understand that ? Does that sound like a fair resolution then?” Hoskins: ‘Yes.”

The Rule 24.035 Motion

After sentencing, Hoskins filed an amended motion under Rule 24.035, arguing that the sentencing court engaged in improper negotiations with the prosecutor. The court overruled the motion. Hoskins appeals the denial of his Rule 24.035 motion, raising one new point on appeal — that the trial court did not have statutory authority to run his seven-year sentences consecutively to each other or to his prior 15-year sentence. The state’s response is that, by failing to present this claim in his Rule 24.035 motion, Hoskins waived the alleged error and consented to serving the two seven-year sentences consecutively. After an opinion in the court of appeals, this Court granted transfer and has jurisdiction. Mo. Const, art. V, sec. 10.

Hoskins’ Argument on the Law of Sentencing

The specific statutory defect that Hoskins raises in this appeal of the denial of relief under Rule 24.035 is that the sentencing court lacked authority to make his prison terms for the three earlier sentences consecutive because they were not consecutive when first pronounced and suspended. Hoskins does not challenge the 15-year first degree burglary sentence that he is currently serving nor does he challenge the concurrent seven-year sentence imposed due to his ATV theft.

Hoskins seeks “plain error” review of the statutory authority of the sentencing court to execute the two prior seven-year sentences consecutively to each other and consecutively to his prior 15-year sentence.

Plain Error Review of a Rule 24.035 Motion?

Hoskins appeals the overruling of his Rule 24.035 motion and, as noted, raises his claims as to the statutory authority for consecutive sentences on appeal without having presented them to the motion court.

Hoskins’ original Rule 24.035 motion alleged only one point of error — that the sentencing court engaged in improper plea negotiations with the prosecutor. But Hoskins does not argue that claim of error, which he preserved, in this Court.

Hoskins now alleges a wholly different basis for reversing his sentencing — that the sentencing court erred when it executed his 15-year sentence consecutive to his two seven-year sentences and executed the two seven-year sentences consecutive to each other. To be brief, Hoskins received a term totaling 29 years but contends he only should have received 15 years.

On a post-conviction motion under Rule 24.035, the movant is required to say in the motion that “the movant waives any claim for relief known to the movant that is not listed in the motion.” Rule 24.035(d). What the movant waives is the opportunity to present such claims in the sentencing court; there is no reason to confound the clear and simple remedy available under those rules by recognizing claims on appeal that were not raised in the motion court.

Rule 84.13 authorizes “plain error” review in some instances on appeal, saying “errors affecting substantial rights may be considered on appeal, in the discretion of the court, though not raised or preserved, when the court finds that manifest injustice or a miscarriage of justice has resulted therefrom.” Rule 84.13(c).

The application of Rule 84.13 to appeals of Rule 24.035 proceedings has produced a variety of inconsistent results. Rules 24.035 and 29.15 both say they are “governed by the rules of civil procedure insofar as applicable.” (emphasis added). Rule 84.13 is a rule of civil procedure. If a rule of civil procedure conflicts with these post-conviction rules, the civil rule should not be applied. State ex rel. Nixon v. Daugherty, 186 S.W.3d 253, 254 (Mo. banc 2006).

Rule 84.13(c) allows for review of certain issues, at the discretion of the court, even if they were not preserved for review. This provision conflicts with the express wording of Rule 24.035, which requires that all issues be preserved in motions for relief under Rule 24.035 or they are waived. Plain error review, therefore, does not apply on appeal to review of claims that were not raised in the Rule 24.035 motion.

The language of Rule 24.035 does not allow an exception when the movant, on appeal, raises a new claim that the sentencing court lacked “jurisdiction” or statutory authority for its judgment.

The judgment of the circuit court is affirmed.

All concur.

      . Rule 24.035 says, in pertinent part:
      The motion to vacate shall include every claim known to the movant for vacating, setting aside, or correcting the judgment or sentence. The movant shall declare in the motion that the movant has listed all claims for relief known to the movant and acknowledging the movant's understanding that the movant waives any claim for relief known to the movant that is not listed in the motion.
      Rule 24.035(d). Rule 29.15 has parallel provisions applicable to challenging the lawfulness of conviction and sentencing following trial. See Rule 29.15.

      . This Court’s decisions in Hendrix and Wy-ciskalla, however, have had the salutary effect of confining the use of 'jurisdiction” to its constitutional context. See In re the Marriage of Hendrix, 183 S.W.3d 582 (Mo. banc 2006); Webb v. Wyciskalla, 275 S.W.3d 249 (Mo. banc 2009). These decisions about jurisdiction did not eliminate plain error review in Rule 29.15 and 24.035 cases because plain error simply was not at issue.

      . A sentencing court has the authority to suspend both the execution of a sentence as well as the imposition of a sentence. See sections 557.011.2(3) and 557.011.4(3), RSMo 2000. A suspended execution of sentence suspends the defendant’s prison time and the defendant is put on probation and has a criminal conviction on his record even if he successfully completes his probation. Edwards v. State, 215 S.W.3d 292, 295 (Mo.App.2007). A suspended imposition of sentence, however, defers the sentencing as well as the entry of a conviction on defendant's record. Id. When an offender on a suspended execution of sentence violates his probation, the court may “execute” the suspended sentence and send him to prison for the term specified at the original sentencing. Id. When an offender is on probation with a suspended imposition of sentence, the court may revoke his probation and impose any sentence within the limit set by law for the offense. Id. An offender on a suspended imposition of sentence who successfully completes probation does not have a criminal conviction on his record, whereas an offender with a suspended execution of sentence has a criminal record for that conviction regardless of whether he successfully completes probation. See Id.

      . At oral argument, Hoskins' attorney said she chose not to pursue the improper plea negotiation claim because she believes “that was not what was really going on.”

      . There is also a plain error rule for criminal proceedings, Rule 30.20, but that rule is not applicable to these post-conviction proceedings.

      . Courts have found appellate review is appropriate when a person’s substantial rights are affected. What errors courts have determined affect a person’s substantial rights has varied considerably. See, e.g., McDonald v. State, 141 S.W.3d 526, 529-30 (Mo.App.2004) (reviewing the motion court’s failure to correct a judgment); Ivy v. State, 81 S.W.3d 199 (Mo.App.2002) (reviewing the defendant’s double jeopardy claim); Searcy v. State, 981 S.W.2d 597, 598-99 (Mo.App.1999) (reviewing the plea court's jurisdiction to enter the plea); Boxx v. State, 857 S.W.2d 425, 428 (Mo.App.1993) (reviewing whether the defendant had an impartial judge); Hoffman V. State, 816 S.W.2d 930, 931-32 (Mo.App.1991) (reviewing the court’s decision in failing to vacate his convictions and sentences); Turner v. State, 784 S.W.2d 342, 343-44 (Mo.App.1990) (reviewing whether the prohibition against double jeopardy had been violated).

      .In arguing that Hoskins has no right to appellate review of claims not raised in the Rule 24.035 motion, the assistant attorney general in oral argument said that the state would not use a waiver argument — based on Hoskins’ failure .to raise the claim under Rule 24.035 — in opposing Hoskins’ claim for habe-as relief. This Court expresses no opinion as to the merits of Hoskins' claim. State ex rel. Zinna v. Steele, 301 S.W.3d 510 (Mo. banc 2010).