author: Justice GARZA.

text:
    CITY OF CORPUS CHRISTI, Appellant, v. FRIENDS OF the COLISEUM, Appellee.
    No. 13-10-00229-CV.
    Court of Appeals of Texas, Corpus Christi-Edinburg.
    May 6, 2010.

      Carlos Valdez, City Atty., Corpus Christi, for Appellant.
    Frank Gilstrap, Lessie Fitzpatrick, Hill & Gilstrap, Jonathan D.F. Nelson, Arlington, for Appellee.
    Before Justices YÁÑEZ, RODRIGUEZ, and GARZA.
   OPINION

Opinion by

Justice GARZA.

Appellant, the City of Corpus Christi (the “City’), appeals the trial court’s temporary injunction restraining the City from demolishing the Corpus Christi Memorial Coliseum (the “Coliseum”). By a single issue, the City argues that the trial court’s order granting the temporary injunction fails to meet the requirements of Texas Rule of Civil Procedure 683. See Tex.R. Civ. P. 683. We reverse and remand.

I. BACKGROUND

The Coliseum, constructed in 1954, is a public arena owned by the City and dedicated as a memorial to the residents of Nueces County who died during World War II. At the time it was built, the Coliseum was architecturally significant because of its unsupported 224-foot steel roof. For many years, the Coliseum hosted various sports, performing arts, and community events. In recent decades, however, the building has fallen into disrepair. The City, unwilling or unable to refurbish or repurpose the Coliseum, decided to demolish it. In response, a group of citizens formed a non-profit organization called Friends of the Coliseum (“Friends”) in an effort to preserve the building.

Friends, appellees in the instant case, filed suit in Travis County to enjoin the City from demolishing the Coliseum. Friends obtained a temporary restraining order from the Travis County court, and the court then transferred the matter to Nueces County pursuant to the Citys request. On or about April 5, 2010, Friends filed an application for temporary and permanent injunctive relief with the trial court. In its application, Friends argued that it was entitled to equitable injunctive relief and that the City’s various acts and omissions violated certain statutes, including chapter 442 of the Texas Government Code and chapter 191 of the Texas Natural Resources Code. See Tex. Gov’t Code Ann. § 442.001-.075 (Vernon Supp.2009) (establishing the Texas Historical Commission); Tex. Nat. Res.Code Ann. § 191.001-.174 (Vernon Supp.2009) (the Texas Antiquities Code).

After a hearing, the trial court granted the temporary injunction and rendered an order enjoining the City from “directly or indirectly taking any actions to demolish or cause the demolition” of the Coliseum and setting a trial date of January 10, 2011. The order also stated the following:

[T]he Court finds and concludes that Friends ... [is] entitled to the preservation of the status quo pending trial on the merits.
The Court finds and concludes that unless the City ... is immediately enjoined, said City will take action to demolish the Memorial Coliseum ... prior to a final hearing of this cause.
The Court finds that the demolition of said Memorial Coliseum will cause immediate and irreparable harm to Friends ... and that Friends ... would have no adequate remedy at law.

This accelerated interlocutory appeal followed. See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(4) (Vernon 2008); Tex.R. App. P. 28.1(a).

II. Discussion

Rule 683 of the Texas Rules of Civil Procedure states that every order granting an injunction must “set forth the reasons for its issuance” and “be specific in its terms.” Tex.R. Civ. P. 683. That is, the order must provide a “detailed explanation of the reason for the injunction’s issuance.” Adust Video v. Nueces County, 996 S.W.2d 245, 249 (Tex.App.-Corpus Christi 1999, no pet.). This requirement is mandatory and must be strictly followed. InterFirst Bank San Felipe, NA. v. Paz Const. Co., 715 S.W.2d 640, 641 (Tex.1986); Monsanto Co. v. Davis, 25 S.W.3d 773, 788 (Tex.App.-Waco 2000, pet. denied); Big D Props., Inc. v. Foster, 2 S.W.3d 21, 22-23 (Tex.App.-Fort Worth 1999, no pet.). If an order fails to comply with these requirements, it is void and should be dissolved. InterFirst Bank, 715 S.W.2d at 641; Monsanto Co., 25 S.W.3d at 788.

When a temporary injunction is based in part on a showing that the applicant would suffer irreparable harm if the injunction is not issued, Rule 683 requires the order to state precisely why the applicant would suffer irreparable harm. See Monsanto Co., 25 S.W.3d at 788 (finding a temporary injunction order to be void under Rule 683 because it stated only that plaintiffs “will suffer probable injury in the event that such writ of temporary injunction is not issued”); Byrd Ranch, Inc. v. Interwest Sav. Assoc., 717 S.W.2d 452, 453-55 (Tex.App.-Fort Worth 1986, no writ) (same where order stated only that plaintiff “will suffer irreparable harm for which it has no adequate remedy at law”); Univ. Interscholastic League v. Torres, 616 S.W.2d 355, 358 (Tex.Civ.App.-San Antonio 1981, no writ) (“Even though there were allegations in the appellee’s petition for injunction which may have justified the issuance of the writ, the mere recital of ‘no adequate remedy at law’ and ‘irreparable harm’ in the order lacks the specificity required by Rule 683.”); Gen. Homes, Inc. v. Wingate Civic Assoc., 616 S.W.2d 351, 353 (Tex.Civ.App.-Houston [14th Dist.] 1981, no writ) (finding that a temporary injunction order did not satisfy Rule 683 “because it only states the trial court’s conclusion that immediate and irreparable harm will result if the injunction is not granted, with no specific reasons supporting the conclusion”); Stoner v. Thompson, 553 S.W.2d 150, 151 (Tex.Civ.App.-Houston [1st Dist.] 1977, writ ref'd n.r.e.) (finding a temporary injunction order insufficient under Rule 683 and noting that “[t]he conclusion [in the order] that the situation is harmful [to the plaintiff] is not a reason why injury will be suffered if the interlocutory relief is not ordered”); see also Cornelison v. Offshore Entm’t Corp., No. 13-02-00452-CV, 2002 WL 34231619, at *1-2, 2002 Tex.App. LEXIS 8618, at *4-5 (Tex.App.-Corpus Christi Dec. 5, 2002, no pet.) (not designated for publication) (find ing a temporary injunction order void under Rule 683 where order stated only that “[t]he Court finds that immediate and irreparable injury, loss or damage as alleged will result to plaintiff unless Defendant is forthwith restrained as requested”).

Here, the trial court merely stated in its order that “the demolition of said Memorial Coliseum will cause immediate and irreparable harm to Friends.” The City contends that the order therefore fails to comply with Rule 683 and should be declared void. Friends raises two arguments in response. First, it argues that the order satisfies Rule 683’s specificity requirement by stating that “unless the City ... is immediately enjoined, said City will take action to demolish the Memorial Coliseum.” According to Friends, this statement was sufficient to establish a “reason” for the issuance of the temporary injunction because, in general, “conduct which results in the destruction of property causes an irreparable injury which justifies interlocutory injunctive relief.” Craft v. Freeport Oil Co., 563 S.W.2d 866, 868 (Tex.Civ.App.-Amarillo 1978, no writ) (citing Speedman Oil Co. v. Duval County Ranch Co., 504 S.W.2d 923, 929 (Tex.Civ.App.-San Antonio 1973, writ ref'd n.r.e.)). We disagree. The cases cited by Friends are inapposite because they involved injunction applicants that actually owned the property threatened with destruction. See Craft, 563 S.W.2d at 867; Speedman Oil Co., 504 S.W.2d at 925. Friends does not have any ownership interest in the Coliseum; accordingly, the mere recitation that the Coliseum would be demolished in the absence of an injunction is not sufficient to establish a “reason” for the injunction’s issuance as required under Rule 683.

Friends’s second argument is that a showing of irreparable harm was unnecessary to obtain an injunction in this case— and the order’s lack of specificity as to why irreparable harm would be suffered therefore does not offend Rule 683 — because the injunction was granted pursuant to specific statutory authorization. See Tex. Gov’t Code Ann. § 442.012(a) (“The attorney general or any resident of this state may file suit in district court to restrain and enjoin a violation or threatened violation of this chapter or Chapter 191, Natural Resources Code....”); Tex. Nat. Res.Code Ann. § 191.173(a) (“A citizen of the State of Texas may bring an action in any court of competent jurisdiction for restraining orders and injunctive relief to restrain and enjoin violations or threatened violations of this chapter....”). Friends is correct that the equitable requirements for obtaining an injunction— such as the requirement that an applicant show it would suffer irreparable harm if the injunction is not issued — are inapplicable when a right to injunctive relief is granted specifically by statute. Town of Palm Valley v. Johnson, 17 S.W.3d 281, 286 (Tex.App.-Corpus Christi 2000, pet. denied) (en banc) (showing of irreparable injury not required where injunction authorized by section 65.015 of the civil practice and remedies code); West v. State, 212 S.W.3d 513, 519 (same where injunction authorized by Texas Deceptive Trade Practices Act); cf. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 210 (Tex.2002) (“The general rule at equity is that before injunc-tive relief can be obtained, it must appear that there does not exist an adequate remedy at law. This limitation, however, has no application where the right to relief is predicated on a statutory ground other than on the general principles of equity.”); State v. Tex. Pet Foods, Inc., 591 S.W.2d 800, 805 (Tex.1979) (“The doctrine of balancing the equities has no application to this statutorily authorized injunctive relief.”). However, the order in the instant case does not state that the temporary injunction was issued pursuant to statutory authority, nor does it state what violations or threatened violations of statutory law purportedly justified injunctive relief under those statutes. See Tex. Gov’t Code ANN. § 442.012(a); Tex. Nat. Res.Code Ann. § 191.173(a). Therefore, even if we were to assume that injunctive relief was in fact granted pursuant to specific statutory authorization, we cannot say that the order sets forth a “detailed explanation of the reason for the injunction’s issuance.” Adust Video, 996 S.W.2d at 249.

We conclude that the trial court’s order granting the temporary injunction requested by Friends fails to comply with the specificity requirements of Rule 683. See Tex.R. Civ. P. 683. Accordingly, it is void and of no effect. See InterFirst Bank, 715 S.W.2d at 641; Monsanto Co., 25 S.W.3d at 788. The City’s issue is sustained.

III. Conclusion

We reverse the judgment of the trial court and remand for further proceedings consistent with this opinion.

      . The American G.I. Forum ("A.G.I.F.”), a veterans' organization, was also named as a plaintiff in the Travis County and Nueces County suits. According to the City, A.G.I.F. intends to non-suit its claims against the City. In any event, A.G.I.F. is not a party to this appeal.

      . On April 23, 2010, we granted in part the City’s “Motion for Immediate Submission and Decision (Without Briefs) in Accelerated Appeal” and allowed the case to be submitted without briefs and on the original papers forwarded by the trial court, or on sworn and uncontroverted copies of those papers. See Tex.R.App. P. 28.1(e). We ordered Friends to file any response related to the merits of the appeal; Friends did so on May 3, 2010. Friends also filed uncontroverted, sworn copies of various documents appearing in the trial court record. Our opinion herein is based solely on the City’s motion, Friends's response, and the uncontroverted record as provided by Friends. See id.

      . We note that, at present, the Coliseum is not designated as a state landmark entitled to protection under the Texas Antiquities Code. See Tex. Nat. Res.Code Ann. § 191.093 (Vernon 2001) (stating that landmarks designated under the antiquities code may not be altered or destroyed without permission from the Texas Historical Commission). Moreover, although Friends included with its injunction application a letter from the executive director of the Texas Historical Commission stating that the Coliseum is "eligible for listing in the National Register of Historic Places,” it did not allege that the Texas Historical Commission has instituted proceedings to determine whether the Coliseum is a state landmark. See id. § 191.098(b) (Vernon 2001) (stating that, if the Texas Historical Commission "institutes proceedings” to determine whether a building is a state landmark, a state agency must obtain permission from the Commission prior to beginning alteration or demolition of the building).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Robert Leon JENKINS, Jr., Appellant, v. The STATE of Texas, Appellee.
    Nos. 10-09-00233-CR, 10-09-00248-CR.
    Court of Appeals of Texas, Waco.
    May 12, 2010.
    Clint F. Sare, Bryan, for Appellant.
    Bill R. Turner, Brazos County Dist. Atty., Bryan, for Appellee.
    Before Chief Justice GRAY, Justice REYNA, and Justice DAVIS.
   ORDER

PER CURIAM.

Robert Leon Jenkins was convicted of the offenses of forgery and failure to identify. Tex. Penal Code Ann. §§ 32.21; 38.02 (Vernon Supp. 2009). He appealed both convictions. Counsel for Jenkins filed an Anders brief in each appeal. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396,18 L.Ed.2d 493 (1967).

Initially we note that counsel admitted in his Anders brief that he has not reviewed the entire record in these appeals because the reporter’s record (one record for both convictions) is incomplete. Apparently, exhibits which were introduced into evidence at trial have not been made a part of the reporter’s record. Reviewing the entire record is a basic premise of the Anders-type procedure. We must be satisfied that counsel has reviewed the entire record for any arguable claim that might support Jenkins’ appeals. McCoy v. Court of Appeals, 486 U.S. 429, 442, 108 S.Ct. 1895, 1903-04, 100 L.Ed.2d 440 (1988). When the record is incomplete, counsel could not have reviewed the entire record. For this same reason, counsel was granted a thirty day extension to file his brief. Rather than notifying us in another motion for an extension of time that his request for a supplemental reporter’s record has not been fulfilled, counsel simply filed his Anders brief.

Accordingly, the Court makes the following orders.

Bkief Stricken

Counsel’s Anders brief is ORDERED stricken. All briefing deadlines are suspended, including the deadline for Jenkins’s pro se response, until the matter with the supplemental reporter’s record is resolved.

Record Due

It is the joint responsibility of this Court and the trial court to ensure that the appellate record is timely filed. Tex.R.App. P. 35.3(c). Further, this Court may enter any order necessary to ensure the timely filing of the appellate record. Id. Accordingly, the supplemental reporter’s record is ORDERED to be filed no later than 7 days from the date of this order.

Failure to file the reporter’s record as herein ordered will result in an abatement order for the trial court, the Honorable Steve Smith of the 361st District Court, to determine, working with the official reporter, Felix Thompson, a date certain by which the supplemental reporter’s record will be filed.


author: G. ALAN WALDROP, Justice.

text:
    Robert Alan YOUNG, Appellant, v. The STATE of Texas, Appellee.
    No. 03-09-00043-CR.
    Court of Appeals of Texas, Austin.
    May 21, 2010.

      Susan Schoon, Zamora & School, P.L.L.C., New Braunfels, TX, for Appellant.
    Samuel B. Katz, Assistant Criminal District Attorney, New Braunfels, TX, for Ap-pellee.
    Before Chief Justice JONES, Justices PEMBERTON and WALDROP.
   OPINION

G. ALAN WALDROP, Justice.

A jury convicted appellant Robert Alan Young for failure to comply with statutory sex offender registration requirements, see Tex.Code Crim. Proc. Ann. art. 62.055 (West Supp.2009), 62.102 (West 2006), and the district court assessed punishment at ten years in prison. Young appeals based on his contention that, because the jury was charged disjunctively on two separate offenses, his conviction was based on a non-unanimous jury verdict in violation of both the Texas and United States constitutions. We affirm the judgment of conviction.

On June 22, 2001, Robert Alan Young was convicted of sexual assault, a reportable offense under chapter 62 of the Texas Code of Criminal Procedure. For six years after his conviction, Young complied with all reporting requirements.

In 2008, Young was living with his girlfriend, Vicki Dees, in an apartment in Canyon Lake, Texas. He had registered this address with local authorities, as required by statute. On January 29, 2008, the owners of the apartment complex, having learned of his sex offender status, delivered a “Notice to Quit and Vacate,” requesting that Young vacate the premises by February 15, 2008. Young moved his belongings to the residence of a friend, Colleen Zulyevie, and began staying with her a few nights a week. Although Young had moved his belongings out of the Canyon Lake apartment, he occasionally stayed with Dees at the apartment until the end of February 2008.

In early April 2008, a neighbor of Zu-lyevic learned of Young’s sex offender status, determined by reviewing the attorney general’s website that Young had not registered his current'address, and reported him to the police. The police obtained an arrest warrant for Young. He was arrested on May 24, 2008, following a traffic stop.

Young was indicted for failure to comply with sex offender registration requirements in that he (1) failed to notify the Comal County Sheriffs office of his intention to move seven days before the intended move, and (2) failed to provide proof of identity and proof of residence no later than seven days after his move. The jury was charged disjunctively as to the two means by which Young allegedly failed to register. The jury found Young guilty as charged, and the district court assessed punishment at ten years in prison. Young appeals, arguing that the jury charge allowed a conviction based on a non-unanimous jury verdict in violation of both the Texas and United States constitutions.

When reviewing allegations of charge error, an appellate court must undertake a two-step review: first, the court must determine whether error actually exists in the charge, and second, the court must determine whether sufficient harm resulted from the error to require reversal. Abdnor v. State, 871 S.W.2d 726, 731-32 (Tex.Crim.App.1994). Where, as here, no timely objection was made at trial, any error found will not warrant reversal unless the error is so egregious that the defendant was not given a fair and impartial trial. See Almanza v. State, 686 S.W.2d 157,174 (Tex.Crim.App.1984).

The jury was charged as follows:
A person commits the offense of failure to comply with sex offender registration requirements if the person is required to register and intentionally or knowingly fails to comply with a requirement of the sex offender registration program under Chapter 62 of the Code of Criminal Procedure.
Article 62.055 of Chapter 62 of the Code of Criminal Procedure requires that, if a person who is required to register under Chapter 62 of the Code of Criminal Procedure intends to change address, the person shall, no later than the seventh day before the intended change, report in person to the local law enforcement authority and provide the authority with the person’s anticipated move date and new address.
Article 62.055 of Chapter 62 of the Code of Criminal Procedure also requires that, if a person who is required to register under Chapter 62 of the Code of Criminal Procedure changes address, the person shall, not later than the seventh day after changing the address or the first date the applicable local law enforcement authority by policy allows the person to report, report in person to the local law enforcement authority in the municipality or county in which the person’s new residence is located and provide the authority with proof of identity and proof of residence.
[I]f you find from the evidence beyond a reasonable doubt that on or about the 15th day of February, 2008, or any time within three years before the filing of the indictment, in Comal County Texas, Robert Alan Young did then and there intentionally or knowingly fail to comply with Code of Criminal Procedure, Chapter 62, Article 62.055, setting out the required conditions concerning address changes for a person with a reportable conviction, to-wit: the said Robert Alan Young did move to 355 Shady Ridge, Canyon Lake, Texas, and failed to notify the Comal County Sheriffs Office not later than the seventh day before his intended change of address and that said Robert Alan Young had a reportable conviction requiring registration under Chapter 62 of the Texas Code of Criminal Procedure ... or if you find from the evidence beyond a reasonable doubt that on or about the 15th day of February, 2008, or at any time within three years before the filing of the indictment, in Comal County Texas, Robert Alan Young did then and there intentionally or knowingly fail to comply with the Code of Criminal Procedure, Chapter 62, Article 62.055, setting out the required conditions concerning address changes for a person with a reportable conviction, to-wit: the said Robert Alan Young did move to 355 Shady Ridge, Canyon Lake, Texas, and the said Robert Alan Young failed to provide the Comal County Sheriffs Office with proof of identity and proof of residence not later than the seventh day after changing his address and the said Robert Alan Young had a reportable conviction requiring registration under Chapter 62 of the Texas Code of Criminal Procedure.

Young argues that the jury charge called for a non-unanimous verdict because the two paragraphs in the charge setting out the requirements of article 62.055 set out two separate and distinct offenses. The State contends, on the other hand, that the two paragraphs set out two different ways in which Young could have committed a single offense — the offense of failure to comply with registration requirements under article 62.102 of the code of criminal procedure.

While we agree with the State that the indictment alleged a single offense, that single offense is found in article 62.055, not article 62.102. Article 62.102 provides that “[a] person commits an offense if the person is required to register and fails to comply with any requirement of this chapter.” Tex.Code Crim. Proc. Ann. art. 62.102. One means of committing that offense — failure to report a change of address — is set out by article 62.055. Article 62.055 provides:

If a person required to register under this chapter intends to change address, regardless of whether the person intends to move to another state, the person shall, not later than the seventh day before the intended change, report in person to the local law enforcement authority designated as the person’s primary registration authority by the department and to the juvenile probation officer, community supervision and corrections department officer, or parole officer supervising the person and provide the authority and the officer with the person’s anticipated move date and new address. If a person required to register changes address, the person shall, not later than the later of the seventh day after changing the address or the first date the applicable local law enforcement authority by policy allows the person to report, report in person to the local law enforcement authority in the municipality or county in which the person’s new residence is located and provide the authority with proof of identity and proof of residence.

Id. art. 62.055(a).

The jury charge set out the two requirements found in section (a) of article 62.055 — failure to notify within seven days before an intended change of residence and failure to notify within seven days after a change of address — the requirements with which Young allegedly failed to comply. See id. The single offense described by both article 62.055 and by the jury charge is the offense of failing to report a change of address. This offense can be violated by failing to report the change in advance, afterwards, or both. Those variations are evidentiary, not separate and distinct elements of an offense.

In determining whether separate legal theories comprise separate offenses,a “handy, though not definitive, rule of thumb is to look at the statutory verb defining the criminal act. That verb ... is generally the criminal act upon which all jurors must unanimously agree.” Huffman v. State, 267 S.W.3d 902, 906 (Tex.Crim.App.2008) (quoting Ngo v. State, 175 S.W.3d 738, 745 (Tex.Crim.App.2005)). Here, the statutory verb defining the criminal act is “report.” Thus, in this case, it is the act of reporting — or the failure to do so — upon which all jurors must agree. This single act of failing to report may be committed in multiple ways, including — of relevance here — failing to notify authorities before a move or failing to notify authorities after a move.

In Huffman v. State, the Court of Criminal Appeals held that the failure of a driver involved in an accident resulting in injury or death to another to “immediately stop,” “immediately return,” and “remain at the scene” are three means of committing the single offense of failing to stop and render aid. Id. at 905-09; see Tex. Transp. Code Ann. § 550.021 (West Supp. 2009). The focus of the offense, the court explained, was the particular accident, not the various means by which the driver could fail to stop and render aid. Huffman, 267 S.W.3d at 909. Similarly, in Villanueva v. State, 257 S.W.3d 527, 528 (Tex.App.-Austin 2008, no pet.), Villanueva, who had been convicted of a reportable offense under chapter 62 of the code of criminal procedure, was indicted for six counts of failure to register as a sex offender based on his failure to register for six months following a move. We held that neither article 62.051 nor article 62.055 supported the State’s decision to allege a new offense for the same action on a monthly basis. Id. at 530. Rather, these provisions allow the State to charge a defendant with the single offense of changing his address without registering the change. Id.

Young relies on Ngo v. State. In that case, the defendant was charged with credit card abuse under section 32.31 of the penal code. 175 S.W.3d at 740. The indictment alleged three statutorily different acts — stealing a credit card, receiving a stolen credit card with the knowledge that the card had been stolen, and presenting the credit card for payment with the knowledge that it was not with the effective consent of the cardholder. Id. at 744. Each offense was set out in the statute as a separate and distinct offense, under the heading “A person commits an offense if.” See Tex. Penal Code Ann. § 32.31 (West Supp.2009). Because the State sought one conviction for the commission of one credit card abuse offense by proving any of these three different and distinct criminal acts, the court of criminal appeals found charge error. See Ngo, 175 S.W.3d at 745. The court explained that permitting the jury to convict for a general offense of credit card abuse by finding the defendant guilty of any of the three distinct offenses allowed for a non-unanimous jury verdict. See id.

While, in Ngo, the defendant was charged with committing three specific and distinct statutory criminal acts, here, as explained, the single statutory criminal act alleged was failure to report a change of address. The focus of the offense, here, is the duty to notify of a change in address, though there are multiple means by which a person can fail to comply. Failure to comply with any one of the specific requirements set out in article 62.055 is the manner or means by which a person could fail to report a change of address. Ngo, which describes three separate criminal acts, each of which has a distinct focus— stealing, receiving, or presenting for payment — is distinguishable.

While each element of an offense must be proved beyond a reasonable doubt, an indictment may set forth alternate manners and means of committing a single offense, and the jury may return a general verdict for that offense if the evidence supports a conviction under any one of the manners or means alleged. Kitchens v. State, 823 S.W.2d 256, 258 (Tex.Crim.App.1991). Here, the jury charge set out a single offense — failure to report a change in address — and two means of committing that offense — failure to notify of an intent to move and failure to notify of a new address. Thus, it was not error for the court to instruct the jury that it could convict for the single offense of failure to report a change in address by finding either that Young failed to notify authorities of an intent to move or that Young failed to notify authorities of his new address once he had already moved.

Having found no charge error, we overrule Young’s issue on appeal and affirm the judgment of conviction.


author: /s/ Will T. Scott

text:
    KENTUCKY BAR ASSOCIATION, Movant, v. Mark Cameron CHESNUT, Respondent.
    No. 2010-SC-000129-KB.
    Supreme Court of Kentucky.
    May 20, 2010.
   OPINION AND ORDER

The Kentucky Bar Association (KBA) Board of Governors, has requested this Court to enter an order permanently disbarring Mark Cameron Chesnut from the practice of law and requiring him to pay restitution pursuant to a judgment against him in Tennessee. Pursuant to SCR 3.210, this matter was treated as a default case. Chesnut, KBA No. 11828, was admitted to practice law in the Commonwealth of Kentucky in 1984 and his last known bar roster address is 2131 Mt. Victor Road, Bowling Green, Kentucky 42103. He was suspended from practice on May 28, 1998 for failure to pay bar dues and his membership has not been restored since.

File No. 17356

Chesnut prepared income tax returns for small businesses and individuals in Tennessee. He apparently told his clients that he was an attorney, but no longer practiced law. He deposited his clients’ checks made payable to the U.S. Treasury into an account he set up for a dummy corporation and then stole money from said account. Due to these activities, he was indicted in the Criminal Court of Davidson County, Tennessee (Case No. 2007-D-2898) on five counts of forgery, four counts of money laundering, and one count of theft of property in 2007. In 2009, he pled guilty to one count of forgery ($10,000 to $60,000) and one count of theft ($60,000 or more). He received a sentence of eight years in prison, which was probated, and was ordered to pay restitution in the amount of $76,429.77 over a seven-year period. He is now on probation in California. Due to his felony convictions, Ches-nut was automatically suspended from the practice of law pursuant to SCR 3.166 on February 5, 2009.

The Inquiry Commission issued a complaint against Chesnut on April 7, 2009 and mailed it to his bar roster address. The complaint was returned, marked undeliverable. It was only after a probation officer from Tennessee provided a California address that service was completed by certified mail. The complaint notified Chesnut that he had twenty days to file a response and that failure to do so could subject him to additional proceedings and allegations pursuant to SCR 3.130-8.1(b). He did not respond.

The Inquiry Commission issued a three-count charge against Chesnut on October 1, 2009: Count I alleges he violated SCR 3.130-8.1(b) (failure to respond to a lawful demand for information in connection with a disciplinary matter) when he failed to respond to the Inquiry Commission’s complaint; Count II alleges that he violated SCR 3.130-8.3(b) (commission of “a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects”) when he pled guilty to criminal charges of forgery and theft; and Count III alleges that he violated SCR 3.130-8.3(c) (engaging in “conduct involving dishonesty, fraud, deceit or misrepresentation”) when he engaged in criminal acts by committing felony forgery and theft.

The Inquiry Commission attempted to notify Chesnut of its charges against him by sending him a letter by certified mail to both his bar roster address and his California address; it also sent reminder letters to both addresses. All correspondence concerning the charge was returned as undeliverable and this case proceeded as a default pursuant to SCR 3.210.

The Board found Chesnut guilty of all three charges by a preponderance of the evidence by a vote of 18-0. After reviewing his prior discipline and taking into consideration the fact that he has been suspended since May 1998 for nonpayment of dues, the Board voted (again 18-0, with one member abstaining) that he be permanently disbarred from the practice of law in the Commonwealth of Kentucky, be ordered to make restitution as required by the Tennessee judgment against him, and be required to pay all costs associated with all disciplinary proceedings against him.

ACCORDINGLY, the Court ORDERS:
1. Respondent, Mark Cameron Ches-nut, is found guilty of the ethical violations described above;
2. Chesnut is permanently disbarred from the practice of law in Kentucky;
3. Chesnut must make full restitution in accordance with the Tennessee judgment described above;
4. In accordance with SCR 3.450, Chesnut is directed to pay all costs associated with these disciplinary proceedings against him, said sum being $192.45, for which execution may issue from this Court upon finality of this Opinion and Order; and
5. Pursuant to SCR B.390, Chesnut shall, within ten (10) days from the entry of this Opinion and Order, notify all clients in writing of his inability to represent them, and notify all courts in which he has matters pending of his disbarment from the practice of law, and furnish copies of said letters of notice to the Director of the KBA. Furthermore, to the extent possible and necessary, Chesnut shall immediately cancel and cease any advertising activities in which he is engaged.

ABRAMSON, CUNNINGHAM, NOBLE, SCHRODER and VENTERS, JJ., concur.

MINTON, C.J., not sitting.

ENTERED: May 20, 2010.

/s/ Will T. Scott

Deputy Chief Justice


author: /s/ John D. Minton Jr.

text:
    Robert N. TRAINOR, Movant, v. KENTUCKY BAR ASSOCIATION, Respondent.
    No. 2010-SC-000201-KB.
    Supreme Court of Kentucky.
    May 20, 2010.
   OPINION AND ORDER

Robert N. Trainor, KBA No. 71335, was admitted to the practice of law on October 1, 1976, and his bar roster address is 618 Washington Street, Covington, Kentucky 41011. He moves this Court to impose the sanction of a thirty-day suspension from the practice of law to be probated for one year provided that he incur no other disciplinary charges during that period and that he attend the entire KBA Ethics and Professionalism Enhancement Program for which he will claim no CLE credit. The KBA has no objection to the motion, as the parties have agreed to a negotiated sanction pursuant to SCR 3.480(2).

KBA File 10677

Trainor’s client, Dianna O’Keefe, an independent contractor, was injured when she was struck by a tow motor while she inspected a shipment for export at North American Refractories on October 1,1998. Trainor initially sought to recover from O’Keefe’s automobile policy insurer under the Motor Vehicle Reparations Act. However, on November 18, 1998, the insurance company denied the claim, stating that O’Keefe’s injuries were not covered under the MVRA, as the act does not define a “tow motor” as a “motor vehicle.” Trainor informed the insurance company that he disagreed with its denial of the claim on November 27, 1998, but took no further action under the MVRA.

In March 1999, Trainor sent a letter to the adjuster for the Refractories’ insurance company with a copy of her medical release and a letter to O’Keefe notifying her of said correspondence. Trainor took no further action on the case until September 27, 2000, when he filed suit in Pendle-ton County Circuit Court (where venue was improper) which was dismissed with prejudice on the ground that the suit was filed after the expiration of the one-year statute of limitations for a non-MVRA personal injury case.

The KBA charged Trainor with violating SCR 3.130-1.3 for failing to “act with reasonable diligence and promptness in representing a client” for his failure to diligently prosecute O’Keefe’s action.

Trainor also failed to maintain adequate professional liability insurance as required by SCR 3.024 from 2002-2005. As a result, the KBA charged him with violating SCR 3.130-3.4(c) for “knowingly or intentionally disobeying] an obligation under the rules of a tribunal.... ”

KBA File 13148

Another of Trainor’s clients, Tracy Stanley, delivered a stillborn baby on May 1, 2000. Trainor represented Stanley as administratrix of her stillborn child’s estate. He filed a medical malpractice suit against Dr. Jean Burchell on April 23, 2001 which was voluntarily dismissed by agreement of the parties on October 22, 2002. Almost a year later, on September 25, 2003, Trainor again filed a medical malpractice suit against Dr. Burchell on behalf of Stanley. Dr. Burchell defended this suit alleging a lack of probable cause and the expiration of the one-year statute of limitations and the suit was voluntarily dismissed with prejudice by agreement of the parties on November 26, 2003.

In Count I, the KBA charged Trainor with violating SCR 3.130-3.1, which provides that “[a] lawyer shall not knowingly bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous .... ” Trainor violated this rule when he brought a frivolous action against Dr. Burchell. Count II charged him of violating SCR 3.130-3.4(c) which provides that a lawyer shall not “knowingly or intentionally disobey an obligation under the rules of a tribunal except for an open refusal based on a assertion that no valid obligation exists.” He violated this rule when he disobeyed Civil Rule 11 by filing the medical malpractice suit against Dr. Burchell significantly beyond the statute of limitations.

Negotiated Sanction

Trainor admits that his misconduct in these matters constituted a violation of SCR 3.130-1.3, SCR 3.130-3.1 and two counts of SCR 3.130-3.4(c). He and the KBA have agreed to a negotiated sanction pursuant to SCR 3.480(2) and he now requests this Court to impose a thirty-day suspension from the practice of law to be probated for one year provided he incurs no other disciplinary charges during that period and conditioned upon his attendance at the entire KBA Ethics and Professionalism Enhancement Program for which he will claim no CLE credit.

In its response, the KBA contends that the recommended discipline is appropriate and supported by Kentucky case law. For example, in Kentucky Bar Association v. Leadingham, 269 S.W.3d 419 (Ky.2008), the attorney filed an appeal for a client, but failed to file a brief (as he had also done in another case). Leadingham informed the Court of Appeals that the case had been settled and indicated that he would tender an agreed order of dismissal, but failed to do so. The action was dismissed. While Leadingham signed the receipt for the certified mailings of a disciplinary complaint, a reminder letter, and his charges, he neither provided any information nor filed a response in the disciplinary matter. The Court found him guilty of violating SCR 3.130-3.4(c) and SCR 3.130-8.1(b) and suspended him from the practice of law for thirty days, probated on the condition that he attend EPEP.

In Kentucky Bar Association v. Quesinberry, 203 S.W.3d 137 (Ky.2006), Quesin-berry filed a notice of appeal on behalf of her clients, but failed to file a brief, resulting in the dismissal of the appeal. Quesin-berry also failed to inform her clients of the status of their appeal and failed to respond to their requests for information. The appeal was reinstated after a pro se motion by the clients asking the court to reconsider its denial of the motion to reinstate. This Court found Quesinberry guilty of: failing to act with reasonable diligence and promptness in representing a client, in violation of SCR 3.130-1.3; failing to communicate with her clients, in violation of SCR 3.130-1.4(a); and disobeying obligations to a tribunal in violation of SCR 3.130-3.4(c). The Court had issued a private reprimand against her for similar conduct in 2005. She was publicly reprimanded for her conduct and suspended from the practice of law for thirty days, probated for one year provided she attended remedial ethics training.

The KBA also considered Trainor’s pri- or disciplinary offenses as an aggravating factor. In February 2009, this Court imposed a reciprocal public reprimand on Trainor after he was publicly reprimanded in Ohio in 2006 for failing to inform a client in 2002 that his professional liability coverage had been cancelled two years earlier. While Kentucky’s Rules of Professional Conduct do not include a like provision, SCR 3.130-3.4(c) prohibits a lawyer from knowingly or intentionally disobeying an obligation under the rules of a tribunal, and Trainor disobeyed an obligation under the rules of the Ohio Supreme Court. Additionally, Trainor was charged in 2003 by Ohio’s Board of Commissioners on Grievances and Discipline with failing to maintain accurate records for client fund accounts. For this violation, the Ohio Supreme Court imposed a six-month suspension which was stayed on the condition that he occasionally provide accountings of his funds to a disciplinary counsel investigator. This Court imposed a reciprocal suspension in October 2004 which was suspended so long as Trainor obeyed the conditions of the Ohio Supreme Court.

Discipline

Agreeing that the negotiated sanction proposed in Trainor’s motion is appropriate, it is ORDERED that:

1. Robert Trainor shall be suspended from the practice of law for thirty days, probated for one year provided he incurs no other disciplinary charge during that time period;
2. Trainor shall attend the entire KBA Ethics and Professionalism Enhancement Program (EPEP), which is anticipated to be seven hours, within one year of the date of this Order;
3. Trainor will not apply for Continuing Legal Education credit of any kind for his attendance at the EPEP. He will furnish a release and waiver to the Office of Bar Counsel to review his records of the CLE Department that might otherwise be confidential, such release to continue in effect until after he completes his remedial education, in order to allow the Office of Bar Counsel to verify that he has not reported any hours to the CLE Commission that are to be taken as remedial education.
4. If Trainor fails to comply with any of the terms of discipline as set forth herein, the Office of Bar Counsel may petition the Court to impose the full thirty-day suspension; and
5. In accordance with SCR 3.450, Trai-nor shall pay all costs associated with these proceedings, said sum being $402.35, for which execution may issue from this Court upon finality of this Opinion and Order.

Ah sitting. ABRAMSON, CUNNINGHAM, NOBLE, SCOTT, and VENTERS, JJ., concur.

SCHRODER, J., dissents.

ENTERED: May 20, 2010.

/s/ John D. Minton Jr.

Chief Justice


text:
    KENTUCKY BAR ASSOCIATION, Movant, v. William Otto AYERS, Respondent.
    No. 2010-SC-000220-KB.
    Supreme Court of Kentucky.
    May 20, 2010.
   OPINION AND ORDER

Respondent, William Otto Ayers, stands accused of violating SCR 3.130-1.16(d) for failing to return a portion of a fee after his representation of a client was terminated. The trial commissioner has recommended that Ayers, who was admitted to practice law in Kentucky on October 21, 1994, whose Bar Roster Address is 821 West Main Street, Louisville, Kentucky 40202, and whose KBA Member Number is 85512, be found to have violated SCR 3.130-1.16(d) and suspended from the practice of law in this Commonwealth for thirty days. This Court, finding no reason for further review, adopts the recommendation of the trial commissioner.

On or about June 18, 2005, Frances Par-ella hired Respondent to represent her daughter, Bridget Elliott, on two criminal matters in the circuit court for a fee of $1,200. Though there was no written fee agreement, evidence showed that the fee was part of a “flat fee” arrangement intended to cover Respondent’s services for two circuit court matters.

During the course of his representation, Respondent visited the client while she was incarcerated and filed pleadings on her behalf. On or about September 18, 2005, before Ms. Elliot’s case was over, Respondent was “fired” from the representation, not because of his work performance but because of Ms. Parella’s “gut instinct.”

At that time, both Ms. Parella and Respondent agreed that $500 of the fee would be refunded. At a later date, Respondent “changed his mind,” deciding that he was entitled to the full fee and would therefore not refund any portion of it. Respondent informed Ms. Parella of his decision by telephone, not in writing.

Subsequently, a bar complaint was filed and the Inquiry Commission issued a one-count charge against Respondent alleging a violation of SCR 3.130-1.16(d), which at the time read,

Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred.

The charge indicated that the violation occurred when Respondent failed to refund the $500 to which he had agreed.

The matter was referred to a trial commissioner, who held an evidentiary hearing and received briefs from both bar counsel and Respondent. Respondent argued that he had earned the entire fee because it was a nonrefundable, “flat fee” arrangement and that SCR 3.130 — 1.16(d) applies only to where the attorney, not the client terminates the representation.

Following the hearing and review of the briefs, the trial commissioner submitted a report that included findings of fact consistent with those described above. The report also concluded that Respondent violated SCR 3.130-1.16(d) for failing to refund the $500 that he had promised to Ms. Parella, that Respondent’s legal claim of the inapplicability of SCR 3.130-1.16(d) was incorrect because subsection (a)(3) of the rule clearly contemplates situations where the “the lawyer is discharged,” and that Respondent’s refusal to return the money was particularly egregious because he had agreed to the refund and therefore had no basis for failing to make it. Finally, based on these findings and conclusions, the trial commissioner recommended that Respondent be suspended from the practice of law for thirty days and be ordered to pay the $500 refund to Ms. Parella.

The trial commissioner’s recommendation was made after considering Respondent’s prior disciplinary record, which consists of an automatic suspension under SCR 3.166 for conviction of one or more felonies on January 29, 2010, as confirmed and described in Kentucky Bar Association v. Ayers, 307 S.W.3d 122 (Ky.2010).

No appeal of the trial commissioner’s recommendation, as allowed under SCR 3.360, .365, and .370, was sought. As a result, this matter was submitted directly to this Court without going before the Board of Governors. See SCR 3.360(4). Because the trial commissioner’s findings and conclusions are supported by the record and the law, and because the recommended sanction is appropriate in light of Respondent’s history of prior discipline and the seriousness of the charges, this Court elects not to review the recommendation of the trial commissioner as allowed under SCR 3.370(9). The recommendation of the trial commissioner is therefore adopted pursuant to SCR 3.370(10).

ACCORDINGLY, IT IS HEREBY ORDERED THAT:

(1) Respondent, William Otto Ayers, is suspended from the practice of law in the Commonwealth of Kentucky for thirty days from the date of this Order.

(2) Respondent shall refund $500 in unearned fees to Frances Parella if he has not done so already. Respondent shall confirm his repayment of the unearned portion of the fee by written notice to the Office of Bar Counsel.

(5) In accordance with SCR 3.450, Respondent is directed to pay all costs associated with these disciplinary proceedings against him, said sum being $1,385.45, for which execution may issue from this Court upon finality of this Opinion and Order.

All sitting. All concur.

ENTERED: May 20, 2010.

/s/ John D. Minton Jr.

Chief Justice


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

text:
    John Shannon BOUCHILLON, Movant, v. KENTUCKY BAR ASSOCIATION, Respondent.
    No. 2009-SC-000585-KB.
    Supreme Court of Kentucky.
    May 20, 2010.
   OPINION AND ORDER

Following John Shannon Bouchillon’s application for restoration pursuant to SCR 3.500(2), the Board of Governors of the Kentucky Bar Association has recommended that this Court restore Bouchil-lon’s license to practice law in this Commonwealth. Agreeing with the Board that Bouehillon has satisfied the requirements for restoration, we adopt the Board’s recommendation and order that Bouchillon’s membership in the Kentucky Bar Association be restored.

Bouehillon, whose KBA member number is 84851 and whose bar roster address is 7920 Farm Spring Drive, Prospect, Kentucky 40059, was admitted to the practice of law in Kentucky on October 22, 1993. Bouehillon withdrew from the practice of law pursuant to SCR 3.480(1) on October 14, 2003. At the time of his •withdrawal, Bouehillon had no pending disciplinary matters. On September 21, 2009, Bouchil-lon filed with the clerk of this Court an application for restoration of membership pursuant to SCR 3.500(2), which permits any “former member who has withdrawn ... and such status has prevailed for five or more years can be restored to membership .... ” Pursuant to the requirements in SCR 3.500(2), Bouehillon included with his application a check for $500.00, which satisfied his obligation to pay a $500.00 filing fee. Bouehillon is CLE compliant for restoration as required by SCR 3.675. The Board also notes there are no disciplinary matters pending against Bouehillon, and he has not been the subject of any claims against the Client Security Fund.

Having reviewed the Board’s recommendation, this Court agrees that Bouehillon has satisfied the requirements of SCR 3.500(2) and is deserving of restoration to the practice of law.

Thus, it is hereby ORDERED that:

1. Pursuant to SCR 3.500(2), John Shannon Bouchillon’s license to practice law in this Commonwealth is restored.

2. Pursuant to SCR 3.500(5), John Shannon Bouehillon is directed to pay the costs associated with this proceeding in the amount of $190.23, for which execution may issue from this Court upon finality of this Opinion and Order.

All sitting. All concur.

ENTERED: May 20, 2010.

/s/ John D. Minton, Jr.

Chief Justice

      . The Board voted 15-0, with two recusals to recommend Bouehillon be restored to the bar.


text:
    KENTUCKY BAR ASSOCIATION, Movant, v. Cletus MARICLE, Respondent.
    No. 2010-SC-000219-KB.
    Supreme Court of Kentucky.
    May 20, 2010.
   ORDER OF AUTOMATIC SUSPENSION

Pursuant to SCR 3.166, the Movant notified this Court that the Respondent, Cle-tus Maride, also known as Russell Cletus Maride, whose KBA Member Number is 43900, who was admitted to practice law in Kentucky on May 1, 1966, and whose bar roster address is 393 Circle Drive, Manchester, Kentucky, 40962, was convicted of five felony counts on March 24, 2010, in the United States District Court for the Eastern District Of Kentucky, Southern Division (at London).

SCR 3.166 requires the automatic suspension of an attorney from the practice of law upon conviction of a felony, effective the day following the finding of guilt by the jury. Accordingly:

IT IS HEREBY ORDERED that Respondent, Cletus Maride, also known as Russell Cletus Maride, be and is hereby suspended from the practice of law in this Commonwealth, effective March 25, 2010, until said order of suspension is dissolved or superseded by order of this Court.

IT IS FURTHER ORDERED that:
1.Respondent shall within ten days, notify all clients, if any, in writing of his inability to continue to represent them, and shall furnish copies of all such letters to the Director of the Kentucky Bar Association;
2. Respondent shall make arrangements to return all active files, if any, to his clients or new counsel, as well as return any unearned attorney fees and client property and shall advise the Director of such arrangements within ten days;
3. Respondent shall immediately, to the extent possible, cancel and cease any advertising activities in which he is engaged; and
4. Respondent shall pay the costs of these proceedings.

All sitting. All concur.

ENTERED: May 20, 2010.

/s/ John D. Minton, Jr.

Chief Justice

      . Criminal Action No. 6: 09-16-S-DCR.


author: VANMETER, Judge.

text:
    Randall Bennett CLARK; Sally C. Tapscott; John Tapscott; Keith Branson Clark; Kristia Clark; Susan Dobrusin; Rob Dobrusin; Jean Clark Houghton; Dan Houghton; Howard Brown Clark, Jr.; and Tami Clark, Appellants, v. BOARD OF REGENTS OF WESTERN KENTUCKY UNIVERSITY, Appellee.
    No. 2008-CA-000599-MR.
    Court of Appeals of Kentucky.
    Feb. 12, 2010.
    Discretionary Review Denied by Supreme Court June 9, 2010.

      David F. Broderick, Christopher T. Davenport, Bowling Green, KY, for appellants.
    Greg N. Stivers, Scott D. Laufenberg, Bowling Green, KY, for appellee.
    Before LAMBERT and VANMETER, Judges; HENRY, Senior Judge.

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

   OPINION

VANMETER, Judge.

Appellants (“the Clarks”) appeal from a judgment entered by the Warren Circuit Court upholding the power of the Board of Regents of Western Kentucky University (‘WKU”) to condemn certain property of the Clarks for the purpose of constructing an educational facility thereon to house WKU’s College of Education and Behavioral Sciences (“CEBS”). For the following reasons, we affirm.

Prior to entering its judgment, the trial court conducted a hearing to determine whether WKU had the right to take the Clarks’ property by eminent domain. The record reflects that WKU planned to construct a new CEBS building on the Clarks’ property, and the other seven parcels of property WKU acquired in the same vicinity. According to WKU, the construction of a new building was necessary because Tate Hall, which currently houses the CEBS, had deteriorated beyond the point of repair. However, WKU could not simply raze Tate Hall and construct a new building on the same site because no space was available on campus to temporarily relocate the more than 200 faculty and staff who occupy Tate Hall, and the thousands of students who attend classes in the building, while construction was ongoing.

After relocating faculty, staff and students to the new CEBS building, WKU planned to use Tate Hall as “swing space” during the construction of a replacement building for Grise Hall, which currently houses WKU’s College of Business. WKU then planned to raze Tate Hall so that the site could become part of the adjoining South Lawn, on which numerous campus activities take place. WKU articulated tentative future plans to expand surrounding campus buildings onto South Lawn.

With the assistance of an architectural firm, WKU researched and considered numerous sites adjacent to campus where the new CEBS building could be built. Based on factors such as location, accessibility, convenience, and construction logistics, the eastern edge of campus, where the Clarks’ property was located, was found to provide the best opportunity for future campus growth. WKU successfully negotiated the purchase of seven other properties located near the Clarks, but after eleven months of negotiation, was unable to reach an agreement with the Clarks.

The Clarks’ property was owned by eight members of the Clark family. During negotiations with WKU, the Clarks were represented, albeit informally, by Howard Brown (H.B.) Clark, who evidently had the power to accept, reject, and propose purchase sale agreements for the property. The first appraisal obtained by WKU assessed the fair market value of the Clarks’ property at $140,000 and WKU offered to pay $150,000. This offer was rejected. The second appraisal valued the property at $152,000 and WKU offered to pay approximately $167,000. This offer was also rejected. As a final alternative, WKU offered to pay the Clarks in the form of a unitrust, whereby the Clarks would receive approximately $250,000 over fourteen and a half years. The Clarks refused this offer, and instead expressed a desire to receive either $250,000 in cash or $315,000 in the form of a unitrust, based on an appraisal they received which valued the property at approximately $300,000. In adhering to its common practice of only paying a maximum of ten percent above the appraised value of any property it attempts to acquire, WKU maintained its offer of approximately $167,000.

Since the parties could not reach an agreement, WKU filed a petition for condemnation pursuant to the Eminent Domain Act of Kentucky, KRS 416.540 et seq. KRS 416.550 provides, in relevant part:

Whenever any condemnor cannot, by agreement with the owner thereof, acquire the property right, privileges or easements needed for any of the uses or purposes for which the condemnor is authorized by law, to exercise its right of eminent domain, the condemnor may condemn such property, property rights, privileges or easements pursuant to the provisions of KRS 416.550 to 416.670.

WKU’s petition alleged, in part, that “condemnation is necessary to fulfill construction of a replacement building for the WKU’s College of Education and Behavioral Sciences, in accordance with authorization of the Kentucky General Assembly and the WKU’s Facilities Master Plan.” Following the hearing on the petition, the trial court entered its findings of fact, conclusions of law, and interlocutory judgment granting WKU’s petition to acquire the Clarks’ property through eminent domain. This appeal followed.

We review the trial court’s factual findings under a clearly erroneous standard and the legal issues de novo. See God’s Ctr. Found. Inc. v. Lexington-Fayette Urban County Gov’t, 125 S.W.3d 295, 300 (Ky.App.2002) (applying the clearly erroneous and de novo standards of review to a condemnation case in which the trial court conducted a bench trial).

Factual findings are not clearly erroneous if they are supported by substantial evidence. Substantial evidence has been conclusively defined by Kentucky courts as that which, when taken alone or in light of all the evidence, has sufficient probative value to induce conviction in the mind of a reasonable person. It is within the province of the trial court as the fact-finder to determine the credibility of the witnesses and the weight given to the evidence. Although the factors of necessity and public use associated with condemnation are ultimately legal issues, resolution of those issues encompasses factual matters subject to deferential review on appeal.

Id. (internal citations omitted).

On appeal, the Clarks argue that the court’s judgment was erroneous, as WKU acted in bad faith during negotiations and, as a matter of law, WKU’s taking by eminent domain was unjustifiable. With respect to their bad faith claim, the Clarks stress that WKU’s campus expansion onto their property was not part of its “Master Plan” so as to provide notice of future growth to property owners, that WKU’s offer to purchase their property preceded the General Assembly’s approval for funding of the construction project, and that WKU failed to communicate with all Clark property owners during negotiations. The Clarks further argue that the taking was unjustifiable, as the purported need for the condemned land bore an unreasonable relation to the public interest, emphasizing that future use of the former Tate Hall site as “green space” on the South Lawn was not a reasonable public necessity so as to justify the taking.

WKU maintains that it, in good faith, negotiated extensively with the Clarks during the eleven months preceding the filing of its petition for condemnation, and provides a “negotiation timeline” documenting the parties’ communications in support of its assertion. Moreover, WKU points out that H.B. Clark was the designated representative of the Clark family and that communications with him were presumably conveyed to other family members who owned the property. WKU further asserts that selection of the Clarks’ property as the optimal site for the new CEBS building was not arbitrary and details the site selection process in support of its contention. While WKU concedes that authorization of the condemnation by its Board of Regents occurred subsequent to its negotiations with the Clarks, and that the expansion was not part of WKU’s “Master Plan,” it disputes the materiality of these issues with respect to whether the taking was an abuse of its discretion, unjustifiable, or an exercise in bad faith.

Finally, with regard to the future use of the former Tate Hall site, WKU reaffirms its plan to use the site as “swing space” during ongoing construction and to eventually integrate the site into South Lawn, onto which campus buildings may be expanded in the future. WKU avers that the taking is not for the purpose of creating “green space;” rather, the taking is necessary for the construction of a new CEBS building, although the former Tate Hall site may eventually become part of the South Lawn. WKU asserts that any uncertainty as to the future use of the former Tate Hall site beyond what is currently planned is not dispositive of the issue of whether a public necessity presently exists.

The trial court found that WKU’s selection of the site for the new CEBS building was made in the best interest of WKU and its educational mission and that no evidence of bad faith or fraud in the process utilized by WKU to identify and select the site for the project was presented. The court further found that WKU made reasonable efforts to negotiate with the Clarks for the purchase of their property prior to filing its petition for condemnation. While the court did not address the materiality of the issues concerning the timing of Board approval for funding of the project, and the project’s absence in WKU’s “Master Plan,” nonetheless, the Clarks fail to provide any authority, as required by CR 76.12, to support its contention that this action, or inaction, on behalf of WKU evinces bad faith so as to disturb the deference we afford to the court’s findings on appeal. As a result, we decline to address the merits of this claim.

As a matter of law, the court held that WKU did not act arbitrarily or in excess of its authority and that the taking was a reasonable public necessity so as to justify WKU’s exercise of its eminent domain power. No dispute exists that WKU, as a public university, has the authority to condemn property through the sovereign power of eminent domain of the Commonwealth. KRS 164.410(1). The limitations on this power are the constitutionally imposed restrictions “that the taking be for ‘public use’ and the condemnee receive ‘just compensation.’ ” God’s Center, 125 S.W.3d at 299 (citing, in n. 9, Ky. Const. §§ 13, 242; The Eminent Domain Act, KRS 416.540-680; V.T.C. Lines, Inc. v. City of Harlan, 313 S.W.2d 573 (Ky.1957); Barker v. Lannert, 310 Ky. 843, 222 S.W.2d 659, 663 (1949)). Furthermore:

The taking of private property for a non-public use may also offend due process and the prohibition on the arbitrary exercise of power in Section 2 of the Kentucky Constitution. Generally, the condemning body has broad discretion in exercising its eminent domain authority including the amount of land to be taken. A determination by the condemnor that the taking is a necessity is ordinarily conclusive, but the courts 'will review the condemning body’s exercise of discretion for arbitrariness or action in excess of its authority. The condemnor’s decision on the amount of land to be condemned will be disturbed only if it is unreasonable in relation to the public interest or welfare involved and the con-demnor may consider the future, as well as the present, needs for the taking. Kentucky courts have also imposed a duty on the condemnor to negotiate in good faith the acquisition of the property prior to seeking condemnation.

God’s Center, 125 S.W.3d at 299-300 (citations omitted).

Finally, “[t]he party challenging the condemnation ... bears the burden of establishing the lack of necessity or public use and abuse of discretion.” Id. at 300. In the present case, the Clarks have failed to meet their burden. Thus, we conclude that the factual findings made by the court in support of its rulings were supported by substantial evidence and the court did not err in concluding that WKU did not act arbitrarily or in excess of its authority in seeking condemnation.

The judgment of the Warren Circuit Court is affirmed.

ALL CONCUR.

      . The Kentucky Supreme Court has previously upheld Clark's ability to challenge the interlocutory judgment by means of an appeal under Kentucky Rule of Civil Procedure 73.02. Board of Regents v. Clark, 276 S.W.3d 819 (Ky.2009).

      . Kentucky Rules of Civil Procedure.


author: MARY R. RUSSELL, Judge.

text:
    Natalie R. ROSS, Appellant, v. DIRECTOR OF REVENUE, Respondent.
    No. SC 90317.
    Supreme Court of Missouri, En Banc.
    Feb. 9, 2010.

      Jeffrey S. Eastman, Keleher & Eastman, Gladstone, MO, for Appellant.
    Chris Roster, Atty. Gen., Jeremiah J. Morgan, Deputy Solicitor Gen., Jefferson City, MO, for Respondent.
   MARY R. RUSSELL, Judge.

At issue in this case is whether the Director of Revenue properly revoked the driver’s license of a driver who refused to submit to a breathalyzer test offered more than 90 minutes after a police officer encountered her at the scene of an accident.

Background

A police officer was sent to investigate a report of a woman standing on the shoulder of an interstate. When the officer arrived at the reported location, he observed fresh scrape marks on the roadway, but he did not immediately see the woman. He followed the scrape marks and discovered that a vehicle had traveled off the roadway and down an embankment, suffering extensive damage to its front end and driver’s side.

The officer discovered a woman and a man inside the vehicle. Natalie Ross was in the front passenger seat, and Ryan Newbury was lying across the rear seats. Neither was injured, but a strong odor of intoxicants came from the car. The officer saw a marijuana pipe in the driver’s seat of the vehicle, and the pipe contained the residue and odor of marijuana. The officer noticed that Ross’s eyes were watery and bloodshot, and her speech was also impaired. She denied that she was the woman seen walking on the shoulder of the interstate, and she also denied that she was the driver of the vehicle. She identified the driver as a friend whom she could not name.

The officer asked Ross to exit the vehicle. She was missing a shoe, and she elected to walk barefoot up the snowy embankment to the interstate shoulder. She then was arrested for possession of drug paraphernalia and placed in the officer’s patrol car.

During the officer’s investigation at the accident scene, he saw footprints in the snow from the shoulder of the roadway to the driver’s side of the vehicle. He believed the footprints were from high-heeled or female shoes. About halfway up the hillside, he found Ross’s missing shoe. He saw footprints consistent with New-bury’s shoes around the passenger side of the vehicle, but he did not see Ross’s footprints near the passenger side. The officer informed Ross she was also being arrested for careless and imprudent driving.

Because of Ross’s lack of shoes and the cold temperature, the officer chose not to administer field sobriety tests at the scene. He transported her to a detention facility, where she was given and failed a series of field sobriety tests. She then was placed under arrest for driving while intoxicated (DWI), a charge to which she later pleaded guilty. See sec. 577.010, RSMo 2000.

After her arrest for DWI, the officer read Ross the implied consent law for chemical testing. The implied consent law, section 577.020, outlines the circumstances in which a motor vehicle operator gives implied consent for chemical testing for blood alcohol or drug content (BAC). Relevant to the issues in Ross’s case, it provides for implied consent in any circumstance in which the motor vehicle operator is “arrested for any offense arising out of acts which the arresting officer had reasonable grounds to believe were committed while the person was driving a motor vehicle while in an intoxicated or drugged condition.” Sec. 577.020.1(1). After being informed of the implied consent law, Ross refused to submit to a breathalyzer test.

The timeline for the officer’s interactions with Ross is as follows:

Around 2:15 a.m. The police officer encountered Ross at the crash site.
Around 2:20 a.m. Ross was arrested for possession of drug paraphernalia, then shortly afterward also was arrested for careless and imprudent driving.
Around 3:50 a.m. Ross was tested for sobriety, was placed under arrest for DWI, and refused to submit to a breathalyzer test after being read an implied consent advisory.

Based on Ross’s refusal to submit to a breathalyzer test, the Director of Revenue sought to revoke her driver’s license pursuant to the revocation statute, section 577.041. Ross challenges the revocation of her driver’s license pursuant to subsection 4 of the revocation statute, which provides in relevant part:

If a person’s license has been revoked because of the person’s refusal to submit to a chemical test, such person may petition for a hearing before a circuit or associate circuit court in the county in which the arrest or stop occurred.... At the hearing the court shall determine only:
(1) Whether or not the person was arrested or stopped;
(2) Whether or not the officer had [r]ea-sonable grounds to believe that the person was driving a motor vehicle while in an intoxicated or drugged condition ...; [and]
(3) Whether or not the person refused to submit to the test.

Sec. 577.041.4.

Ross argues that her license could not be revoked based on her refusal of the breathalyzer test because the officer was untimely in arresting her for DWI under the provisions of the warrantless DWI arrest statute, section 577.039. Section 577.039 provides in relevant part:

An arrest without a warrant ... for a violation of section 577.010 or 577.012 is lawful whenever the arresting officer has reasonable grounds to believe that the person to be arrested has violated the section, whether or not the violation occurred in the presence of the arresting officer and when such arrest without warrant is made within one and one-half hours after such claimed violation occurred....

Sec. 577.039 (emphasis added).

Ross asserts that her DWI arrest violated the warrantless DWI arrest statute because it occurred more than 90 minutes after she was allegedly driving, and she argues this unlawful DWI arrest provided no basis for the breathalyzer test that she refused. She contends that the 90-minute time limitation for a warrantless DWI arrest limited the reach of the implied consent law and, therefore, negated the consequences of her breathalyzer refusal. She maintains the implied consent law language stating that implied consent is given “subject to the provisions of sections 577.019 to 577.041” means the 90-minute time limitation of section 577.039 is incorporated into the implied consent provisions. See sec. 577.020.1.

The trial court rejected Ross’s arguments that the 90-minute time limitation for warrantless DWI arrests applied to her license revocation based on a breathalyzer refusal. It upheld the revocation of her driver’s license after determining that the revocation provisions outlined in section 577.041.4 were met because Ross was arrested, the arresting officer had reasonable grounds to believe that she was driving while intoxicated, and she refused a chemical test of her breath.

Ross’s appeal asks this Court to determine whether her license was revoked properly despite the untimeliness of her DWI arrest under section 577.039.

Standard of Review

This Court reviews de novo Ross’s statutory arguments. Finnegan v. Old Republic Title Co. of St. Louis, Inc., 246 S.W.3d 928, 930 (Mo. banc 2008). “Where a statute’s language is clear, courts must give effect to its plain meaning and refrain from applying rules of construction unless there is some ambiguity.” Home Builders Ass’n of Greater St. Louis, Inc. v. City of Wildwood, 107 S.W.3d 235, 239 (Mo. banc 2003). There is no need to refer to other similar statutes where a statute’s own language is clear. See id. Words in statutes are given their plain and ordinary meaning unless there is a contrary specific statutory definition, and where the plain and ordinary meaning controls, there is no need to apply rules of statutory construction. Vance Bros., Inc. v. Obermiller Const. Servs., Inc., 181 S.W.3d 562, 564 (Mo. banc 2006).

Where statutory interpretation is necessary, the legislature’s intent must be ascertained and given effect. S. Metro. Fire Prot. Dist. v. City of Lee’s Summit, 278 S.W.3d 659, 666 (Mo. banc 2009). Statutory language is considered in context and in comparison with other sections when necessary to determine its meaning, such as when two statutory provisions covering the same subject matter are unambiguous standing separately but are in conflict when examined together. See id. Statutes that are remedial, because they are intended to protect the public, are construed so they provide the public protection intended by the legislature. See Hudson v. Dir. of Revenue, 216 S.W.3d 216, 222 (Mo.App.2007).

Revocation Was Proper

This Court must uphold the revocation of Ross’s driver’s license if the revocation statute’s requirements under section 577.041.4 were satisfied. Fick v. Dir. of Revenue, 240 S.W.3d 688, 690-91 (Mo. banc 2007) (“In a proceeding in which a person’s driver’s license is revoked for refusing to submit to a chemical test, the trial court shall determine only whether: (1) the person was arrested; (2) the arresting officer had reasonable grounds to believe that the person was driving while intoxicated; and (3) the person refused to submit to the test.”).

The only issue before this Court is Ross’s contention that her license revocation cannot be upheld because she was not “arrested” in satisfaction of section 577.041.4(1). She contends she was not “arrested” for revocation purposes because her DWI arrest was unlawful under the 90-minute time limitation of the warrant-less DWI arrest statute, section 577.039.

Ross’s arguments are not persuasive because nothing in the plain language of the warrantless DWI arrest statute, section 577.039, compels application of its 90-min-ute time limitation to the revocation statute, section 577.041. Section 577.039 is a statute applicable to criminal matters and by its own terms it applies to violations for DWI (section 577.010) and driving with excessive blood alcohol content (section 577.012). Civil license-revocation proceedings under the revocation statute are unrelated to the criminal provisions of the warrantless DWI arrest statute. The lawfulness of Ross’s DWI arrest under the provisions of section 577.039 had no impact on whether she was “arrested” in satisfaction of the revocation statute.

Ross complains that it is unfair to uphold a license revocation where a DWI arrest fails to comply with the warrantless DWI arrest statute. But it is logical that the legislature has created distinctions between the available criminal penalties for DWI and the civil driver’s license revocation procedures applied against intoxicated drivers. The legislature’s intent in formulating these provisions was to ensure that the Director of Revenue can protect the public by suspending the licenses of persons who drive drunk, even when those same persons might benefit from procedural circumstances that shield them from certain criminal sanctions. See Riche v. Dir. of Revenue, 987 S.W.2d 331, 335 (Mo. banc 1999) (noting that the purpose of license revocation proceedings is entirely distinct from criminal punishment of drunken drivers and “designed to protect the public by quickly removing drunken drivers from Missouri’s roads and highways”).

Ross maintains that this Court’s opinion in Reed v. Director of Revenue, 184 S.W.3d 564 (Mo. banc 2006), instructs that an untimely DWI arrest pursuant to the 90-minute limitation of section 577.039 provides no basis for a driver’s license revocation. But Reed was not a revocation case. Reed held that the requirements of section 577.039 apply to proceedings under section 577.037, relating to the admissibility of chemical testing results into evidence. See Reed 184 S.W.3d at 568. Nothing in Reed compels its application to Ross’s ease.

Further, regardless of Ross’s contentions about the impropriety of her arrest under the warrantless DWI arrest statute, she was also “arrested” in satisfaction of the revocation statute because she was under arrest for possession of drug paraphernalia as well as careless and imprudent driving. Section 577.041.4(2)(a) of the revocation statute required the trial court to determine if the arresting officer had reasonable grounds to believe that Ross was driving while intoxicated. But this case demonstrates that there can be facts providing the reasonable grounds that satisfy section 577.041.4(2)(a) even before or without a DWI arrest. Nothing in section 577.041.4(1) of the revocation statute requires the court to find that a person was arrested for DWI. Importantly, the implied consent law applies to any motor vehicle operator “arrested for any offense arising out of acts which the arresting officer had reasonable grounds to believe were committed while the person was driving a motor vehicle while in an intoxicated or drugged condition.” Sec. 577.020.1(1) (emphasis added). Where the arresting officer had reasonable grounds to believe that a person was driving while intoxicated, that person’s arrest for any offense committed in conjunction with the suspected DWI offense would satisfy the requirement of section 577.041.4(1) for a refusal-based license revocation.

In Ross’s case, her arrests for possession of drug paraphernalia and careless and imprudent driving arose out of acts existing simultaneously with the facts forming the arresting officer’s reasonable grounds to believe she had been driving while intoxicated. At the time of her first two arrests, the officer already knew that her car had gone off an interstate and down an embankment and that it emitted a strong odor of intoxicants. He also had reasonable grounds to believe that she was in possession of a marijuana pipe, had watery and bloodshot eyes and mumbled speech, and had lied about driving her vehicle. Consequently, the facts of Ross’s case satisfy the requirements of the revocation statute, section 577.041.4, regardless of Ross’s DWI arrest.

Because the trial court did not err in finding that Ross was “arrested” in satisfaction of section 577.041.4(1), its judgment is affirmed.

PRICE, C.J., TEITELMAN, WOLFF, BRECKENRIDGE and LAURA DENYIR STITH, JJ., and GARY M. GAERTNER, Sp.J., concur.

FISCHER, J., not participating.

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

      . All statutory references to sections 577.010 and 577.039 are to RSMo 2000. All other statutory references are to RSMo Supp.2008.

      . Section 577.039 also applies to warrantless arrests for driving with excessive BAC.

      . While Ross's briefs in this case challenge the trial court's findings as to probable cause, her attorney admitted during oral argument that there were no issues preserved as to the trial court’s determinations related to probable cause under section 577.041.4(2). Accordingly, this Court need not review the trial court’s finding that the arresting officer had reasonable grounds to believe that Ross was driving while intoxicated. There is also no need for this Court to discuss the trial court’s finding that Ross refused the breathalyzer test, as she does not dispute this fact.