in the Interest of L.R.S. and C.M.S., Children

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-09-00244-CV
IN THE INTEREST OF L.R.S. AND
C.M.S., CHILDREN
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FROM THE 325TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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I. Introduction
Appellant Zaida Basora appeals the trial court’s order in this post-divorce
modification and enforcement suit filed against her by Mark Swanson. Basora
contends in five issues that the trial court abused its discretion by excluding her
trial evidence for failure to sufficiently answer interrogatories, by finding that she
overcharged Swanson for health and dental insurance premiums, by failing to
1
See Tex. R. App. P. 47.4.
find that Swanson breached his contractual obligation to pay fifty percent of their
daughter’s college expenses, by failing to find that Swanson owed additional
arrearages of $2,100 plus interest, and by denying her request for attorney’s
fees. We affirm.
II. Background
Basora and Swanson have four daughters. Their two oldest daughters are
twins, and one of the twins is hearing-impaired. Basora and Swanson divorced,
and the trial court signed the agreed divorce decree in September 1995. Basora
was appointed sole managing conservator, Swanson was appointed possessory
conservator, and Swanson agreed to pay child support and to provide health
insurance until the youngest child became emancipated. In addition, the agreed
divorce decree included the following contractual obligation:
Education Beyond High School
The parties have AGREED that each party will be responsible
for and will pay fifty (50) percent of any and all reasonable education
expenses incurred to send the parties[’] children, . . ., either to
college or to technical, vocational, or business school, provided the
child is a full-time student . . . and maintains at least a ―C‖ or
equivalent grade-point average toward the completion either of a
college bachelor’s degree or of a technical, vocational, or business
school diploma. This obligation will include tuition, activities fees,
laboratory fees, books, room and board, and other charges normally
related to such education. This obligation will terminate at the time
each child reaches the age of 25 years.
Beginning in 1996, Basora carried the children on her employer-provided
health insurance plan, and Swanson made payments to Basora to reimburse her
2
for the cost. In 2007, Basora and Swanson’s twin daughters graduated from high
school and made arrangements to attend college.
In December 2007, Swanson filed a petition to modify the parent-child
relationship. Swanson’s live pleading at the time of the hearing sought a
decrease in child support payments, requested that any decrease be applied
retroactively, alleged that Basora had overcharged him for health and dental
insurance premiums, and requested judgment for the excessive health and
dental insurance payments. Basora filed a counter-petition and motion to confirm
child support arrearages in March 2008, and her live pleading at the time of the
hearing sought a retroactive increase in Swanson’s child support obligation and
judgment for Swanson’s alleged cumulative arrearage and failure to pay fifty
percent of college expenses for their two oldest daughters.
The trial court conducted a hearing on the petition and counter-petition to
modify the parent-child relationship on March 4, 2009. At the hearing, the trial
court sustained Swanson’s numerous objections to Basora’s exhibits and
testimony because the trial court determined that Basora had not adequately
responded to several interrogatories. After the hearing, the trial court signed an
order that retroactively reduced Swanson’s child support obligation, reduced
Swanson’s future child support obligations, required Swanson to continue
providing health insurance for the children, found that Swanson had overpaid
Basora for past health and dental insurance premiums in the amount of
$16,228.18, found that Swanson was in arrears in the amount of $792.66,
3
awarded Swanson $15,991.23 as reimbursement for the health and dental
insurance premium overpayments, ordered Basora to pay Swanson’s attorney’s
fees, and expressly denied Basora’s breach of contract claim for nonpayment of
college expenses. This appeal followed.
III. Exclusion of Evidence
In her first issue, Basora contends that the trial court abused its discretion
by excluding her trial evidence as a discovery sanction based on her failure to
sufficiently answer interrogatories propounded by Swanson. Specifically, Basora
argues that she offered exhibits and attempted to elicit cross-examination
testimony from Swanson at the hearing relating to the cost of health insurance for
the children, how much Swanson paid for the children’s health insurance each
month, and the college expenses Basora had incurred for their daughters but that
the trial court excluded the exhibits and testimony.
The penalty under rule 193.6 for a party’s failure to respond to a discovery
request is the mandatory exclusion of the evidence requested. See Alvarado v.
Farah Mfg. Co., 830 S.W.2d 911, 914 (Tex. 1992); F & H Invs., Inc. v. State, 55
S.W.3d 663, 669 (Tex. App.—Waco 2001, no pet.). A party who fails to make,
amend, or supplement a discovery response in a timely manner may not
introduce in evidence the material or information that was not timely disclosed
unless the court finds that (1) there was good cause for the failure to timely
disclose or (2) the failure will not unfairly surprise or prejudice the other parties.
Tex. Mun. League Intergovernmental Risk Pool v. Burns, 209 S.W.3d 806, 817
4
(Tex. App.—Fort Worth 2006, no pet.) (citing Tex. R. Civ. P. 193.6(a)). The trial
court has discretion to determine whether the offering party has met its burden,
Id. (citing Alvarado, 830 S.W.2d at 914), but any ―finding of good cause or of the
lack of unfair surprise or unfair prejudice must be supported by the record.‖ Tex.
R. Civ. P. 193.6(b). Moreover, parties have a duty to amend or supplement
discovery responses ―reasonably promptly‖ after discovering the need to amend
or supplement, and ―it is presumed that an amended or supplemental [discovery]
response made less than 30 days before trial was not made reasonably
promptly.‖ Tex. R. Civ. P. 193.5(b).
Here, the trial court excluded Basora’s exhibits and testimony relating to
the cost of the children’s health insurance, the amount Swanson paid for the
children’s health insurance and the college expenses Basora incurred because
Basora did not adequately respond to interrogatories. Concerning health
insurance, Swanson’s interrogatory had requested that Basora state the cost of
the health insurance that she provided for the children, the amount she
requested that Swanson pay, and the amount that Swanson paid each month for
the insurance. Basora’s responses, subject to a relevancy objection, were that
the amounts ―varied annually,‖ ―varied annually over the past 13 years,‖ and
―varied annually over the last 13 years‖ and that she did not have documents
containing the information. Concerning college expenses, Swanson’s
interrogatory asked Basora to describe the expenses incurred, state the total
amount of each expense, and the date each expense was incurred and paid.
5
Basora’s answer did not include an objection and referred Swanson to ―bank
statements and statements of amount due‖ that were produced in response to
requests for production.
Basora first argues that Swanson waived his objections to her interrogatory
response by failing to request a hearing on his motion to compel and obtain a
ruling on her objection.2 Either party can request a hearing on discovery
objections. See Tex. R. Civ. P. 193.4(a). The issue here is not Basora’s
relevancy objection but, rather, her failure to provide any information in response
to the interrogatory subject to the objection. Basora’s answer merely stated that
she did not have documents and that the health insurance amounts ―varied
annually.‖ However, Basora admittedly received and possessed documents
containing information responsive to the interrogatory before trial, but she did not
supplement her response to the interrogatory in compliance with her obligations
to fully respond to non-objectionable parts of the interrogatory and to supplement
reasonably promptly. See Tex. R. Civ. P. 193.2(b), 193.5. Thus, the issue is not
one of waiver by Swanson but is one of automatic exclusion unless Basora, who
had the burden, established good cause or the lack of surprise or prejudice as a
result of her failure to supplement her interrogatory answer. See Tex. R. Civ. P.
193.6(a), (b).
2
This argument relates only to the health insurance interrogatory because
Basora did not object to the college expense interrogatory.
6
Basora contends that Swanson was not surprised by her failure to answer
the interrogatories concerning the health insurance and college expenses
because she produced documents to Swanson containing the information
requested in the interrogatories. Rule 197.2(c) allows a party to specify or
produce the documents containing the information requested in an interrogatory
if the burden of deriving or ascertaining the answer is the same for both parties.
See Tex. R. Civ. P. 197.2(c). However, Basora did not argue to the trial court
and does not argue on appeal that the burden of ascertaining the answers to the
interrogatories was the same for both parties. Further, there is no indication in
the record as to when Basora produced the documents to Swanson, and we
cannot determine whether Basora complied with her obligation to amend or
supplement her discovery responses reasonably promptly after discovering the
need to do so. See Tex. R. Civ. P. 193.5(b). Moreover, the appellate record
does not contain the documents Basora produced to Swanson, so we are unable
to determine whether the information requested in the interrogatories was in fact
provided in response to the requests for production. Therefore, on this record,
we hold that Basora has not established an abuse of discretion because she has
failed to show good cause or the lack of unfair surprise or prejudice. See Tex. R.
Civ. P. 193.6(a), (b); F & H Invs., Inc., 55 S.W.3d at 670–71 (refuting argument of
no unfair surprise based on contention that party had discussions with opponent
and produced responsive documents). We overrule Basora’s first issue.
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IV. Overcharges, College Expenses, and Arrearage
In her second, third, and fourth issues, Basora contends that the trial court
abused its discretion by granting judgment to Swanson for health and dental
insurance overcharges because there is no evidence to support that award; by
failing to award her judgment for Swanson’s nonpayment of their daughter’s
college expenses; and by failing to find Swanson in arrears by an additional
$2,100 plus interest.
A. Standard of Review
In a trial to the court in which no findings of fact or conclusions of law are
filed, the trial court’s judgment implies all findings of fact necessary to support it.
Pharo v. Chambers County, 922 S.W.2d 945, 948 (Tex. 1996); In re Estate of
Rhea, 257 S.W.3d 787, 790 (Tex. App.—Fort Worth 2008, no pet.). But when a
reporter’s record is filed, these implied findings are not conclusive, and an
appellant may challenge them by raising issues challenging the sufficiency of the
evidence. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex.
2002); Estate of Rhea, 257 S.W.3d at 790. In family law cases, however, the
abuse of discretion standard of review overlaps with the traditional sufficiency
standard of review. Boyd v. Boyd, 131 S.W.3d 605, 611 (Tex. App.—Fort Worth
2004, no pet.).
Accordingly, to determine whether there has been an abuse of discretion
because the evidence is legally or factually insufficient to support the trial court’s
decision, we engage in a two-pronged inquiry: (1) whether the trial court had
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sufficient evidence upon which to exercise its discretion and (2) whether the trial
court erred in its application of discretion. Id. The applicable sufficiency review
comes into play with regard to the first question. Id. We then proceed to
determine whether, based on the elicited evidence, the trial court made a
reasonable decision. Id. In determining whether there is legally sufficient
evidence to support the finding under review, we consider evidence favorable to
the finding if a reasonable factfinder could and disregard evidence contrary to the
finding unless a reasonable factfinder could not. Cent. Ready Mix Concrete Co.
v. Islas, 228 S.W.3d 649, 651 (Tex. 2007); City of Keller v. Wilson, 168 S.W.3d
802, 807, 827 (Tex. 2005).
B. Health Insurance Overcharges
Basora argues in her second issue that the trial court abused its discretion
by finding that she overcharged Swanson for health and dental insurance
premiums because there is no evidence of the amounts charged to Swanson for
the years 1995 through 2002; because the trial court impermissibly applied a
2007 statute to Swanson’s pre-2002 obligations; because Swanson’s claim is
barred by the statute of limitations, estoppel, laches, or waiver; and because the
trial court had no authority to require reimbursement of the alleged overcharges.
1. Sufficient Evidence of Overcharges
Basora contends that there is no evidence of the amounts charged to
Swanson for the children’s health insurance for the years 1995 through 2002.
However, Swanson testified at the hearing about the amounts he paid for the
9
children’s health insurance for the years 1996 through 2007 and that his
overpayment totaled $16,228.18. In addition, Swanson’s exhibits nine, ten, and
thirteen were admitted into evidence without objection. Exhibit nine is a table
setting forth the health and dental insurance premiums Swanson owed for each
year from 1996 through 2007, the amounts Swanson paid for health and dental
insurance premiums for each of those years, and a calculation of Swanson’s
overpayment for health and dental insurance premiums. Exhibit ten contains the
documents received from Basora’s employer (in response to Swanson’s
subpoena) relating to the children’s health and dental benefits. Although the
documents reflecting the actual benefits provided prior to 2002 were no longer
available—and thus not included within exhibit ten—Basora’s employer did
provide enrollment forms containing the various available elections and a
summary of benefits and rates for active employees for the years before 2002.
Exhibit thirteen is an e-mail from Basora to Swanson stating that she divided the
total health insurance premium by six and then multiplied the result by four to
determine the amount Swanson owed each month for his four daughters.3
However, exhibit thirteen also states that Basora did not deduct any amount
unique to her personal health insurance premium before dividing the total
monthly health insurance premium by six.
3
Basora divided the monthly premium by six because she and her son (not
Swanson’s child) were also insured under the plan. Basora then multiplied the
result by four to calculate the premium for her four daughters.
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Basora contends that Swanson’s testimony and the exhibits relating to the
amounts Swanson was charged and paid from 1996 through 2002 are no
evidence because the documents reflecting the actual costs of health insurance
for those years are no longer available and because Swanson therefore does not
have personal knowledge of that information. But Basora did not object to
Swanson’s testimony or any of the three exhibits, and she did not present any
evidence controverting Swanson’s calculation of the overcharges. See Sheldon
Pollack Corp. v. Pioneer Concrete of Tex., Inc., 765 S.W.2d 843, 847 (Tex.
App.—Dallas 1989, writ denied) (holding there was evidence to support
attorney’s fee award where summary of testimony was admitted without
objection). After reviewing the evidence admitted at trial and applying the
appropriate standard of review, we hold that the trial court had sufficient evidence
upon which to exercise its discretion. We further hold that the trial court did not
abuse its discretion by finding that Swanson paid Basora $16,228.18 more than
he should have paid for the children’s health and dental insurance premiums.
See generally Boyd, 131 S.W.3d at 610–11. We overrule this portion of Basora’s
second issue.
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2. No Retroactive Application of Statutory Standard
Basora also argues within her second issue that the trial court erred by
retroactively applying family code section 154.1824 to Swanson’s obligation to
provide health insurance for the children because the retroactive application
violated the constitutional prohibition of ex post facto laws and deprived her of a
vested right.
To preserve a complaint for appellate review, a party must have presented
to the trial court a timely request, objection, or motion that states the specific
grounds for the desired ruling, if they are not apparent from the context of the
request, objection, or motion. Tex. R. App. P. 33.1(a). If a party fails to do this,
error is not preserved, and the complaint is waived. Bushell v. Dean, 803 S.W.2d
711, 712 (Tex. 1991) (op. on reh’g).
It is not clear whether the trial court relied on section 154.182 when
determining that Basora should pay Swanson for health insurance overcharges.
But even if the trial court applied section 154.182, Basora did not present her
constitutional and vested rights arguments to the trial court and therefore failed to
preserve them for appellate review. See Tex. R. App. P. 33.1(a). Moreover, we
note that both the current and 1995 versions of section 154.182(b-1) limit the
obligor’s responsibility for health insurance to an amount equal to the ―actual
4
Basora specifically cites section 154.182(e), but section 154.182 does not
have a subsection (e). See Tex. Fam. Code Ann. § 154.182 (Vernon Supp.
2010).
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cost‖ of the health insurance for the child. See Tex. Fam. Code Ann. §
154.182(b-1); Act of April 20, 1995, 74th Leg., R.S., ch. 20, § 1 (current version at
Tex. Fam. Code Ann. § 154.182(b-1)). We overrule this portion of Basora’s
second issue.
3. Statute of Limitations, Estoppel, Laches, and Waiver
Basora also argues that Swanson’s claim for overcharges prior to 2003 is
barred by the statute of limitations, estoppel, laches, and waiver. Although
Basora pleaded these affirmative defenses in her first amended answer, she did
not raise these affirmative defenses at the hearing or in her motion for new trial.
Therefore, she failed to preserve these arguments for appellate review, and we
overrule this portion of her second issue. See Tex. R. App. P. 33.1(a).
4. Authority to Require Reimbursement
In the final part of her second issue, Basora contends that the trial court
did not have authority to order her to reimburse Swanson for the health insurance
premium overcharges. She argues that ―there is no specific statutory authority
for repayment of health insurance costs in excess of the actual cost of health
insurance paid by [Swanson]‖ and that ―it appears that the [trial court] treated the
health insurance premium reimbursement as child support[] but failed to find that
any request for reimbursement [was] premature because the child support
obligation has not terminated.‖ We disagree.
―An action for money had and received is an equitable doctrine that courts
apply to prevent unjust enrichment.‖ London v. London, 192 S.W.3d 6, 13 (Tex.
13
App.—Houston [14th Dist.] 2005, pet. denied) (citing Miller-Rogaska, Inc. v. Bank
One, 931 S.W.2d 655, 662 (Tex. App.—Dallas 1996, no writ). ―The cause of
action is not premised on wrongdoing, but looks to the justice of the case and
inquires whether the party has received money that rightfully belongs to another.‖
Id. (citing Amoco Prod. Co. v. Smith, 946 S.W.2d 162, 164 (Tex. App.—El Paso
1997, no writ). The question in an action for money had and received is to which
party does the money, in equity and law, belong. Id. (citing Staats v. Miller, 150
Tex. 581, 243 S.W.2d 686, 687 (1951); Tri-State Chems., Inc. v. W. Organics,
Inc., 83 S.W.3d 189, 194–95 (Tex. App.—Amarillo 2002, pet. denied)).
In London, the husband paid child support pursuant to a court order that
was reversed on appeal, and the court of appeals held that the husband was
entitled to recover the amount he overpaid pursuant to the subsequently
reversed court order under the equitable doctrine of restitution to prevent unjust
enrichment. Id. at 13–14. Here, Swanson made payments to Basora in an effort
to comply with his support obligations under the divorce decree but discovered
that he had overpaid for health and dental insurance premiums. We hold that
Swanson is entitled, under common law principles, to seek recovery of the
amounts he overpaid to Basora for health and dental insurance premiums. See
id. We overrule the remainder of Basora’s second issue.
C. College Education Expenses
Basora contends in her third issue that the trial court abused its discretion
by failing to find that Swanson had not honored his contractual obligation to pay
14
fifty percent of his daughter’s college expenses. Swanson responds that Basora
failed to meet her burden of proof.
As set forth above, the divorce decree obligated Basora and Swanson to
each pay fifty percent of their children’s reasonable college expenses. Basora
argues that the trial court abused its discretion by excluding her evidence
concerning those college expenses, that her daughter’s college expenses are
reasonable, and that Swanson breached his contractual obligation to pay fifty
percent of those college expenses.5 However, we held above that the trial court
did not abuse its discretion by excluding Basora’s evidence. And because
Basora presented no evidence of the amount of college expenses Swanson
allegedly failed to pay, we hold that the trial court did not abuse its discretion by
failing to find that Swanson breached his contractual obligation to pay fifty
percent of his daughter’s college expenses. See generally Boyd, 131 S.W.3d at
610–11. We overrule Basora’s third issue.
D. Failure to Find Additional Arrearages
In her fourth issue, Basora argues that the trial court abused its discretion
by failing to find Swanson in arrears for an additional $2,100 plus interest.
Basora testified that Swanson was $2,100 in arrears on his child support
payments in 1997; that Swanson made a payment in 1997 through the child
5
Basora appears to argue that Swanson anticipatorily breached his
contractual obligation by telling his daughter that she might have to get a student
loan to pay for college because his resources are limited.
15
support office in that amount; and that she and Swanson agreed that she would
not negotiate the check at that time but rather that Swanson would make the
payment at a later, undetermined date. Swanson testified that he and Basora
agreed that Basora would not negotiate the $2,100 check because Basora had
taken possession of a refrigerator, playground equipment, and swing sets that
were awarded to him in the divorce decree. It is undisputed that Swanson made
the payment through the child support office, that Basora had physical
possession of the check, and that Basora did not negotiate the check.
To prevail on her claim for the additional $2,100, Basora had the burden to
prove the amount of the arrearages due. See George v. Jeppeson, 238 S.W.3d
463, 473 (Tex. App.—Houston [1st Dist.] 2007, no pet.); In re S.R.O., 143
S.W.3d 237, 248 (Tex. App.—Waco 2004, no pet.); Curtis v. Curtis, 11 S.W.3d
466, 472 (Tex. App.—Tyler 2000, no pet.). If the arrearages are proven, the trial
court has an affirmative, ministerial duty under family code section 157.253(a) to
confirm the arrearages and reduce them to judgment. See George, 238 S.W.3d
at 473. However, the trial court’s duty under section 157.253(a) does not arise
until the petitioner meets her burden to provide adequate proof to substantiate
the arrearages alleged. Id.
Basora argues that any agreement she might have had with Swanson to
reduce Swanson’s child support arrearage is void because she and Swanson are
prohibited by the family code from settling a claim for arrearages and the trial
court does not have the authority to forgive child support arrearages. See Tex.
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Fam. Code Ann. §§ 157.262 (Vernon Supp. 2010); .263 (Vernon 2008); Curtis,
11 S.W.3d at 471 (stating that ―the trial court has no authority to reduce or modify
the amount of arrearages in rendering judgment‖ and that ―parents of the child
may not settle child support claims until after the arrearages have been
confirmed and cumulated in a money judgment or until the trial court has lost
jurisdiction to enforce the unpaid child support debt.‖). These principles do not
apply, however, if the amount of arrearage is not proven. See Tex. Fam. Code
Ann. §§ 157.262, .263; George, 238 S.W.3d at 474.
The trial court heard conflicting evidence about the parties’ versions of
events relating to the payment of the $2,100. It is undisputed that Swanson
made the payment and that Basora had physical possession of the check.
Further, the trial court heard evidence that Basora and Swanson agreed that
Basora would keep certain items of personal property by paying Swanson $2,100
(i.e., not negotiating the $2,100 check she received through the child support
office). Thus, the trial court could have found that Swanson paid the $2,100 as
required by the divorce decree and that he was not in arrears for the $2,100
because of the parties’ agreement relating to the personal property. Applying the
applicable abuse of discretion standard, we defer to the trial court’s resolution of
the conflicting evidence presented and hold that the record supports the trial
court’s implied finding that Basora failed to meet her evidentiary burden to prove
Swanson’s arrearages. See George, 238 S.W.3d at 474. And because Basora
failed to meet her evidentiary burden, no section 157.263(a) duty to confirm the
17
amount of arrearages ever arose. Id. (citing Tex. Fam. Code Ann. § 157.263(a)).
We overrule Basora’s fourth issue.
V. Attorney’s Fees
Basora argues in her fifth issue that the trial court abused its discretion by
awarding attorney’s fees to Swanson and by failing to award her attorney’s fees.
She contends that Swanson failed to prove the overcharges for health and dental
insurance premiums, that the unproven overcharges cannot support an award of
attorney’s fees to Swanson, and that the trial court had a mandatory duty to
award her attorney’s fees because it found Swanson in arrears on child support
obligations but failed to make a good cause finding under family code section
157.167(c) as to why Swanson should not pay her attorney’s fees. Swanson
responds that there was no arrearage because his overpayments offset any
arrearages.
Basora first contends that the trial court erred by awarding attorney’s fees
to Swanson because he failed to prove that she overcharged him for health and
dental insurance premiums. We held above, however, that the trial court did not
abuse its discretion by finding that Basora charged Swanson $16,228.18 more
than she should have for the children’s health and dental insurance premiums.
We therefore overrule this part of Basora’s fifth issue.
Basora next argues that because she proved that Swanson was in arrears,
the trial court had a mandatory duty to award her attorney’s fees. In In re S.L.M.,
the respondent’s arrearage was $14,874.60 but his offset totaled $20,405.75.
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See 97 S.W.3d 224, 237 (Tex. App.—Amarillo 2002, no pet.). Because the
respondent’s offset exceeded his arrearage, the S.L.M. court held that the trial
court did not err by failing to award the petitioner interest, attorney’s fees, and
costs. See id. at 236–37. Here, the trial court found that Swanson was entitled
to offset his $792.66 arrearage with $16,783.89 owed to him by Basora for health
and dental insurance premium overpayments and non-covered dental expenses.
After the offset, Basora owed Swanson $15,991.23. Thus, Swanson owed no
arrearage after the offset, and the trial court was not required to make a good
cause finding under family code section 157.167(c) before denying Basora’s
request for attorney’s fees. See id.; see also Tex. Fam. Code Ann. § 157.167(a),
(c) (Vernon 2008); Beck v. Walker, 154 S.W.3d 895, 907–08 (Tex. App.—Dallas
2005, no pet.). The trial court did not abuse its discretion by failing to award
Basora attorney’s fees. See S.L.M., 97 S.W.3d at 237. We overrule the
remainder of Basora’s fifth issue.
VI. Conclusion
Having overruled each of Basora’s five issues, we affirm the trial court’s
order.
ANNE GARDNER
JUSTICE
PANEL: LIVINGSTON, C.J.; GARDNER and MEIER, JJ.
DELIVERED: March 3, 2011
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