      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

                                      NO. 03-06-00240-CV

                   Robert Langguth and Claudia L. Langguth, Appellants

                                                v.

                    JAT Enterprises, Ltd. and William K. Neils, Appellees

     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT
       NO. D-1-GN-03-000093, HONORABLE DARLENE BYRNE, JUDGE PRESIDING

                            MEMORANDUM OPINION

               After purchasing the McNeil Car Wash and Lube from appellees JAT Enterprises,

Ltd. and William K. Neils, appellants Robert and Claudia L. Langguth sued appellees for

common law and statutory fraud, see Tex. Bus. & Com. Code Ann. § 27.01 (West 2002), and

violations of the Texas Deceptive Trade Practices-Consumer Protection Act. See id. §§ 17.41-.63

(West 2002 & Supp. 2006). The trial court granted summary judgment in favor of appellees. On

appeal, the Langguths argue that the trial court improperly granted summary judgment because: (1)

there was sufficient evidence to create a material fact issue on whether the Langguths relied on

financial statements provided by appellees; and (2) the Langguths produced more than a scintilla of

evidence to support each of the elements of their fraudulent inducement claim. For the reasons

discussed below, we affirm the trial court’s judgment.
                        FACTS AND PROCEDURAL BACKGROUND

               William K. Neils is the president of the corporate general partner of JAT Enterprises,

Ltd. JAT operated the McNeil Car Wash and Lube located in Austin. In March 2001, real estate

broker Jim Krebs contacted Neils regarding a potential sale of the business. Krebs informed Neils

that he knew of several people who might be interested in purchasing the car wash and lube and

asked for permission to try and sell it. Neils agreed.

               Thereafter, Krebs encountered Robert Langguth at a commercial real estate brokers

meeting. Krebs told Langguth about the McNeil Car Wash and Lube, and Langguth requested

financial information so that he could analyze the business for the possibility of purchasing it. Krebs

sent nine pages of information about McNeil Car Wash and Lube to Langguth’s real estate agent,

Barry S. Winkle. Included in this information were three income statements: one for the year

ending December 31, 2000; one for the three-month period ending March 31, 2001; and one for the

three-month period ending June 30, 2001. Also included was information regarding another car

wash that was offered for sale through Krebs and a summary page from an internet marketing

service regarding McNeil Car Wash and Lube. Printed at the bottom of the summary page was the

following statement:

       This information has been secured from sources we believe to be reliable, but we
       make no representation or warranties, express or implied, as to the accuracy of the
       information. All references to age, sq. footage, income, and expenses are
       approximate. Buyers should conduct their own independent investigations and rely
       only on those results.

                                                  2
In November 2001, Krebs faxed the Langguths another income statement provided by appellees for

the three-month period ending September 30, 2001.

                 The parties entered into a real estate contract for the Langguths to purchase the

McNeil Car Wash and Lube for $1.4 million in December 2001.1 Section 11 of the contract states:

       11.     PROPERTY CONDITION. Other than provided herein, seller hereby
       disclaims, and purchaser hereby waives, any and all warranties of any nature
       regarding the property. Seller has not made and does not make any representations,
       warranties or covenants of any kind or character whatsoever, whether express or
       implied, with respect to: the income, expenses, profit, losses or other aspects of the
       operation of the property; the square footage of the property; the quality or condition
       of the property; the suitability or safety of the property for any activities and uses
       which purchaser may conduct thereon; compliance by seller and/or the property with
       any laws, rules, ordinances, or regulations of any applicable governmental authority,
       including subdivision and zoning ordinances and building codes; or the habitability,
       merchantability, or fitness of the property for a particular purpose. . . . [T]he
       provisions contained in this paragraph shall survive delivery of the deed. Purchaser
       shall accept the property “as is”, “where is”, and with all faults. Purchaser shall make
       its own independent inspection of all aspects of the property and shall have no
       recourse whatsoever against seller in the event of discovery of any defects of any
       kind, latent or patent.2

Section 11 continues:

              The Warranty Deed by which Seller conveys title to the Purchaser shall
       contain appropriate “as is” language, similar to the language above. The Warranty
       Deed will also provide that Seller’s limitation of warranties and Purchaser’s waiver
       of warranties shall survive closing.

       1
            The record reflects that only Robert Langguth, and not Claudia, signed the purchase
contract.
       2
            In the original contract, this paragraph of section 11 was typed in all capitalized letters.

                                                    3
               The contract also provided Langguth with a 45-day period in which to conduct his

investigation and inspection of the property. In relevant part, section 6 of the contract states:

       6.      FEASIBILITY PERIOD. For a period of forty five (45) days after the
       Effective Date (the “Feasibility Period”), Purchaser shall have the right of
       investigation and inspection of the Property to determine whether or not Purchaser
       desires to proceed with the purchase of the Property. . . . If Purchaser determines, in
       Purchaser’s sole judgment and discretion, that the Property is not suitable for
       Purchaser’s intended use, Purchaser shall give Seller written notice of such fact on
       or before the end of the Feasibility Period. Within five days of receipt of such
       written notice, Seller shall instruct the Escrow Agent to refund the Escrow Deposit
       to Purchaser, and both parties shall be released from all further obligations under this
       Contract.

After the 45-day due diligence period expired, the parties agreed to extend the closing to allow

Langguth more time to obtain financing.

               The record reflects that, prior to signing this contract, Langguth had extensive

experience buying and selling real estate and businesses. Langguth had acquired other real property

under terms similar to those provided in the contract at issue here. He had previously purchased

ongoing businesses, including a book store and a homebuilding company. The record also reflects

that Langguth had experience assessing the value of business operations and analyzing business

financial statements. Langguth further represented to Krebs that he was a businessman who had

bought and sold many companies.

               It is undisputed that Langguth was represented by competent and able counsel

throughout the transaction. After appellees proposed the initial form of the contract, Langguth and

his attorney reviewed the draft and requested several changes, all of which were incorporated into

                                                  4
the final contract. Langguth agreed that the final executed contract “contained everything in it” that

Langguth and his attorney wanted.

                Eight months after closing, the Langguths sued appellees asserting claims of

common law and statutory fraud and DTPA violations. Appellees moved for summary judgment

on the ground that the Langguths failed to establish a genuine issue of material fact because they

were barred as a matter of law from relying on any representations made by appellees prior to

December 14, 2001, based on the express disclaimer of reliance in the contract. See Tex. R. Civ. P.

166a(c). Appellees also moved for a no-evidence summary judgment on the ground that the

Langguths provided no evidence to support three elements of their fraudulent inducement claim. See

Tex. R. Civ. P. 166a(i). The trial court granted both of appellees’ motions for summary judgment.

                                             ANALYSIS

                In two issues, the Langguths appeal the trial court’s grant of summary judgment in

favor of appellees.3 First, the Langguths assert that the trial court erred in granting appellees’ motion

for summary judgment because there was a material issue of fact on whether the Langguths relied

on appellees’ representations. Second, the Langguths assert that the trial court erred in granting

appellees’ no-evidence motion for summary judgment because the Langguths produced sufficient

evidence to create a genuine issue of material fact on the challenged elements of their fraudulent

inducement claim.

        3
         The Langguths appeal only from the trial court’s grant of summary judgment on their fraud
claims. They do not appeal the grant of summary judgment on their claim alleging DTPA violations.

                                                   5
Standard of Review

               We review the trial court’s decision to grant summary judgment de novo. Valence

Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). Appellees moved for summary

judgment on both no-evidence and rule 166a(c) summary judgment grounds; however, because we

conclude that appellees satisfied the burden for summary judgment under rule 166a(c), we discuss

only that standard of review. To prevail on a summary judgment motion, the movant must

demonstrate that there are no genuine issues of material fact and that it is entitled to judgment as a

matter of law. Tex. R. Civ. P. 166a(c); American Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425

(Tex. 1997).     In deciding whether there is a disputed material fact issue precluding

summary judgment, we must take evidence favorable to the nonmovant as true, indulge every

reasonable inference in favor of the nonmovant, and resolve any doubts in the nonmovant’s favor.

Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d

546, 548-49 (Tex. 1985).

Reliance

               In their first issue, the Langguths contend that the trial court erred in granting

summary judgment because there was a genuine issue of material fact regarding whether the

Langguths relied on appellees’ representations made prior to entering the contract. Appellees

counter that the Langguths agreed to purchase the car wash and lube “as is” and expressly

disclaimed reliance on any representations made by appellees prior to signing the contract on

December 14, 2001.

                                                  6
               As a general rule, Texas law provides that an “as is” agreement negates the causation

essential to recovery on claims of DTPA violations, fraud, and negligence. See Prudential Ins. Co.

of Am. v. Jefferson Assocs., 896 S.W.2d 156, 161-62 (Tex. 1995). However, “[a] buyer is not bound

by an agreement to purchase something ‘as is’ that he is induced to make because of a fraudulent

representation or concealment of information by the seller.” Id. at 162. To determine whether an

“as is” agreement is enforceable, a reviewing court must consider “the nature of the transaction and

the totality of the circumstances surrounding the agreement.” Id. Where an “as is” clause is included

as an important part of the basis of the bargain and not as an incidental or “boiler-plate” provision,

and the contract is entered into by parties of relatively equal bargaining power, a buyer’s declaration

and agreement that he is not relying on representations of the seller should be upheld. Id.

               An important principle of Texas contract law allows a party to disclaim reliance on

representations. Schlumberger Tech. Corp. v. Swanson, 959 S.W.2d 171, 179 (Tex. 1997).

Moreover, even in the face of a fraudulent inducement claim, courts will uphold such a disclaimer

where the party’s intent is clear and specific. Id.

               In this case, the Langguths contend that they agreed to purchase the McNeil Car Wash

and Lube only after they were induced by misrepresentations about the average monthly revenue and

income of the business. As part of the contract, however, the Langguths expressly disclaimed

reliance on any representations made by appellees prior to signing the contract. We must examine

the contract and the circumstances surrounding its formation to determine whether this disclaimer

is binding. See id. at 180. We conclude that the well-established rules of contract interpretation

                                                  7
govern whether the Langguths “gave the requisite clear and unequivocal expression of intent

necessary to disclaim reliance on these specific representations” by the appellees. See id. at 179.

               Here, as in Schlumberger, both parties to the agreement were sophisticated business

persons and possessed relatively equal bargaining power. The record reflects that Mr. Langguth had

extensive experience buying and selling real estate. He had previously purchased commercial real

estate as well as ongoing commercial businesses. Mr. Langguth had experience evaluating business

financial statements and assessing the value of business operations, and the summary judgment

evidence shows that he had purchased real estate under terms similar to those at issue here. The

Langguths were represented by counsel throughout the transaction, and all of the Langguths’

requested changes were incorporated into the final contract.

               Section 6 of the contract provided the Langguths with an opportunity to conduct

their own due diligence investigation before becoming bound to complete the purchase. Had the

Langguths been dissatisfied within the due diligence period, the contract allowed them to walk

away without any obligation to appellees. The record reflects that, although they requested an

extension of the due diligence period, the Langguths ultimately agreed to complete the purchase

without the extension.

               In section 11 of the contract, the Langguths expressly acknowledged and agreed that

“seller has not made and does not make any representations, warranties or covenants of any kind or

character whatsoever, whether express or implied, with respect to: the income, expenses,

profit, losses or other aspects of the operation of the property.” The Langguths further agreed in

section 11 that they would rely exclusively on their own investigation and assessment of the

                                                 8
purchase: “Purchaser shall make its own independent inspection of all aspects of the property and

shall have no recourse whatsoever against seller in the event of discovery of any defects of any

kind, latent or patent.”4

                By the inclusion of the clear language of this section in the final contract, we conclude

the Langguths unequivocally disclaimed reliance upon any representations by appellees regarding

the income and revenue of the car wash and lube. The record reflects that the Langguths could have

requested appellees to modify this contract provision. Although the Langguths did request changes

to the contract, they did not request modification of this provision.

                Because courts are to assume that the parties intended every contractual provision to

have some meaning, we must presume that, by their inclusion of section 11, the parties contemplated

that the Langguths would not rely upon any representations made by appellees regarding the

income and revenue of the car wash and lube. See id. at 180. Although we recognize that such a

disclaimer will not always bar a claim of fraudulent inducement with respect to the disclaimer

itself, we conclude that, on this record, the disclaimer of reliance in section 11 conclusively

negates as a matter of law the element of reliance on representations about the income and revenue

of the car wash and lube needed to support the Langguths’ claim of fraudulent inducement. See id.

at 181. Accordingly, we overrule the Langguths’ first issue, and we conclude that the trial court

        4
          In the original contract, these two quoted provisions of section 11 were typed in all
capitalized letters.

                                                   9
properly granted appellees’ motion for summary judgment under rule 166a(c). Because we conclude

the trial court properly granted summary judgment under rule 166a(c), we do not reach the

Langguths’ second issue.

                                       CONCLUSION

               Having overruled the Langguths’ issue on appeal, we affirm the judgment of the

trial court.

                                            __________________________________________

                                            Jan P. Patterson, Justice

Before Chief Justice Law, Justices Patterson and Puryear

Affirmed

Filed: February 6, 2007

                                              10


	NO. 07-07-0183-CV

	IN THE COURT OF APPEALS

	FOR THE SEVENTH DISTRICT OF TEXAS

	AT AMARILLO

	PANEL C

	JULY 2, 2008

	______________________________

	TEXAS DISPOSAL SYSTEMS LANDFILL, INC.,

Appellant

	v.

	TEXAS COMMISSION ON ENVIRONMENTAL QUALITY

and IESI TX LANDFILL, L.P.,

Appellees

	_________________________________

	FROM THE 353
RD
 DISTRICT COURT OF TRAVIS COUNTY;

	NO. D-1-GN-05-000606; HON. LORA LIVINGSTON, PRESIDING

	_______________________________

      Opinion

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

If pigs had wings, they could fly.  All may be possible in this ever changing world, but what is probable is the theme underlying the case before us.  We are asked to determine whether an entity operating a garbage disposal company in Travis County,
i.e.
 Texas Disposal Systems Landfill, Inc. (Texas Disposal), has standing to complain about an administrative decision pertaining to the operation of another garbage company,
i.e.
 IESI Texas Landfill, L.P. (IESI), some 200 miles away from the area serviced by Texas Disposal.  The trial court said no and granted the motions to dismiss of IESI and the Texas Commission on Environmental Quality (the Commission).  We agree with the trial court.

Background

IESI operates a landfill that it acquired from the City of Weatherford in 2003.  After acquiring the business, it sought a permit modification from the Commission.  The executive director of the Commission granted the modification on October 27, 2004.  Yet, Texas Disposal had a problem with the administrative procedures culminating in the director’s decision.  Though it operated a landfill near Austin and some 200 miles from Weatherford, it nonetheless moved to overturn the director’s ruling.  After a public hearing, the Commission itself issued an order on January 28, 2005, upholding the executor director’s determination.  Thereafter, Texas Disposal filed in Travis County seeking judicial review of the Commission’s January 28 order.

The Commission and IESI, which intervened in the Travis County lawsuit, filed pleas to the jurisdiction of the trial court.  They alleged, among other things, that Texas Disposal lacked standing to complain since it was not a direct competitor of IESI with respect to the Weatherford landfill.  After a hearing, the trial court granted those pleas finding that Texas Disposal lacked standing.  And, as previously mentioned, the trial court found their contentions correct.

 Law on Standing

Standing, a component of subject matter jurisdiction, is essential to a court’s power to hear a case.
Texas Ass’n of Business v. Texas Air Control Board,
852 S.W.2d 440, 444-45 (Tex. 1993).  As old timers say, the complainant must have a “dog in the hunt.”  And, if he has no such dog, then he cannot object to things occurring in the “hunt.”

Next, to become a member of a “hunt” encompassing decisions of the  Commission’s executive director, one must be personally aggrieved or affected by the decision.
Nootsie, Ltd. v. Williamson County Appraisal Dist.,
925 S.W.2d 659, 661 (Tex. 1996).  Those two terms are synonymous for purposes of standing and relate to the need for a complainant to show a “justiciable interest.”
Hooks v. Texas Dep’t of Water Resources,
611 S.W.2d 417, 419 (Tex. 1981).  And, to have such an interest, the complainant must show that a concrete, particularized, actual or imminent injury faces him due to the decision; a hypothetical or speculative injury is not enough.
DaimlerChrysler Corp. v. Inman,
No. 03-1189, 2008 Tex.
Lexis
91 at *13 (Tex. February 1, 2008)
accord, Bonham State Bank v. Beadle,
907 S.W.2d 465, 467 (Tex. 1995) (stating that a justiciable controversy exists when there is a real and substantial conflict of tangible interests and not merely a theoretical dispute).

Application of Law

That the Weatherford landfill is not a direct competitor of the dump operated by Texas Disposal in Travis County is beyond question.
(footnote: 1)  Nonetheless, Texas Disposal believes that it can contest the regulatory decision because the manner in which the  permit was modified  “potentially” jeopardizes the trust relationship that exists between it and its neighbors in Austin, and that, in turn, “potentially” interferes with the normal operations of its landfill.  In other words, it “may” no longer be able to compete with other landfills if they too receive permit modifications via the procedure utilized by IESI.

As can be seen, Texas Disposal’s injury is couched in terms of potentialities or events that “may” happen.  All is dependent upon whether 1) some entity with a permit to operate a landfill within an area serviced by Texas Disposal, 2) attempts to modify its permit, 3) in a way that exposes Texas Disposal to economic or other loss, 4) through use of the procedures applied to the IESI permit modification.
(footnote: 2)  At least these four, if not more, conditions must arise before there is any chance that the IESI ruling and procedure could impact Texas Disposal or its operations in or around Austin.  More importantly, we are cited to neither allegation nor evidence that even begins to suggest that any of the four appear anywhere on the horizon.  So, like the chance of a pig growing wings, the purported injury that may befall Texas Disposal is mere speculation, and as such, it falls short of establishing a justiciable interest and standing.  Finally, without a sufficient interest of its own to assert, it cannot invoke the public’s interest to fill the void.
See El Paso Community Partners v. B&G/Sunrise Joint Venture,
24 S.W.3d 620, 625-27 (Tex. App.
–
Austin 2000, no pet.).

Our holding with respect to the issue of standing relieves us from having to address the other arguments of Texas Disposal.  We affirm the trial court’s order of dismissal.

Brian Quinn

          Chief Justice

FOOTNOTES
1:Texas Disposal does contend it is an economic competitor in the same regulated sector in which there are only approximately seven corporations that either operate or own significant landfills.

2:Interestingly, at least two commissioners acknowledged at the hearing on the motion to overturn that the procedure used in addressing IESI’s modification request would have no precedential value in future requests.


                                                                                06/25/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                 March 19, 2019 Session

                STATE OF TENNESSEE v. EARLY REYNOLDS

                   Appeal from the Circuit Court for Maury County
                       No. 25527 Stella L. Hargrove, Judge
                      ___________________________________

                            No. M2018-00988-CCA-R3-CD
                        ___________________________________

A Maury County jury convicted the Defendant, Early Reynolds, of unlawful possession
of a firearm after a prior felony conviction involving use, or attempted use, of force,
violence, or a deadly weapon. The trial court sentenced the Defendant as a career
offender to serve fifteen years in the Tennessee Department of Correction. On appeal,
the Defendant asserts that: (1) the trial court erred when it denied his motion to suppress
statements made to the police after he invoked his right to remain silent; (2) the trial court
improperly admitted a photograph of the Defendant holding a gun; and (3) the evidence is
insufficient to support his conviction. After review, we affirm the trial court.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which NORMA MCGEE
OGLE and J. ROSS DYER, JJ., joined.

Brandon E. White, Columbia, Tennessee, for the appellant, Early Reynolds.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Assistant
Attorney General; Brent A. Cooper, District Attorney General; and S. Scott Speer,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                         OPINION
                                          I. Facts

        This case arises out of the Defendant’s charges for aggravated domestic assault
and violation of an order of protection after he made repeated phone calls to his ex-
girlfriend, Alvanette Caldwell, and sent her a text message with a photograph of him
holding a revolver. At the time of his arrest, the Defendant gave consent for the police to
search his residence and officers found a revolver wrapped in a rag near a storage shed.
Consequently, a Maury County grand jury indicted the Defendant for unlawful
possession of a firearm after a previous conviction for a felony involving force, violence,
or a deadly weapon. The Defendant filed a motion to suppress his statement to police
and a motion to exclude the photograph of him holding the revolver. After both motions
were heard and denied, the case proceeded to trial.

                                  A. Pretrial Motions
                           1. Motion to Suppress Statements

       At the suppression hearing, the Defendant argued that Sergeant Michael Kash,
Columbia Police Department officer, failed to honor his right to remain silent by
proceeding with the interview after the Defendant requested that the interview stop. He
further claimed that Sergeant Kash threatened him by telling him that he would report to
the district attorney his lack of candor and dishonesty during the interview. The State
responded that Sergeant Kash was honest with the Defendant about the procedures he
followed and that the Defendant did not unequivocally terminate the interview.

       A recording of the interview is included in the record on appeal. Our review of
the interview is summarized as follows: Sergeant Kash entered the interview room and
reviewed Miranda with the Defendant. He then confirmed the Defendant’s cell phone
number with him and asked if law enforcement could retrieve information from the cell
phone. The Defendant declined to allow law enforcement to conduct a “dump” of the
information on the phone, and Sergeant Kash told him that he would seek a search
warrant for the phone. The Defendant then gave consent for a search of the phone.

       Initially, the Defendant denied calling Ms. Caldwell, asserting that she had called
him. As Sergeant Kash and the Defendant talked, the Defendant admitted to calling Ms.
Caldwell. The Defendant denied being at Ms. Caldwell’s home on two separate days and
further denied sending her a photograph via text message. Sergeant Kash began
questioning some of the Defendant’s responses as inconsistent with the police report.
Sergeant Kash stated, “I didn’t have to bring you here, you could have been arrested.” In
response, the Defendant stood up and said, “Come on, arrest me!” and “Take me to jail.”
As the Defendant made these statements, Sergeant Kash continued talking over the
Defendant about the police report and how he was trying to give the Defendant an
opportunity to tell his side of the story. The Defendant stated, “I’m through talking,” but
sat down in the interview room chair. He then said, “You know what? It’s not going to
help the judge with nothing.” Sergeant Kash responded that the district attorney received
copies of the interviews and that Sergeant Kash included information about whether an
interviewee was cooperative or lying. The Defendant expressed his belief that he would
receive jail time “anyway.”

                                           -2-
       The Defendant then returned to the topic of the photograph and asked Sergeant
Kash, “She showed the officer the picture of me?” Sergeant Kash confirmed that Ms.
Caldwell had shown the photograph to an officer, and the Defendant inquired why his
probation officer had not mentioned it to him when they met the day before. Sergeant
Kash explained that the probation officer likely did not have the police report at the time
the Defendant met with the probation officer.

       The Defendant admitted sending the picture to Ms. Caldwell and, after some
discussion, admitted that he owned and had fired the revolver. He stated that he bought
the revolver “a day ago.”

       On the morning of trial1, the trial court heard additional testimony from Sergeant
Kash about his interview with the Defendant. Sergeant Kash testified that he recalled
talking with the Defendant about the fact that Sergeant Kash did not believe the
Defendant was being forthcoming and the Defendant’s response that Sergeant Kash
should “take [him] to jail.” Sergeant Kash recalled that he and the Defendant were
talking over each other at the time but that he believed the Defendant made statements
about arresting him or taking him to jail “a few times.” Sergeant Kash stated that he did
not recall the Defendant saying, “I’m through talking.” He agreed that he had reviewed
the video recording and heard the Defendant make the statement during the review but, at
the time of the interview, both men were speaking loudly and over one another so that he
did not hear the statement.

        Sergeant Kash testified that during his eleven years as a detective, if a suspect
stated they wanted a lawyer or did not want to talk, he ceased all questioning. Sergeant
Kash explained, “[I]f somebody says, ‘Take me to jail,’ but continues to talk to me,
they’re telling me they really don’t want to go to jail. They’re just saying that they want
to talk to me, as [the Defendant] did that day.” About his statement to the Defendant that
he would provide information to the district attorney about his interaction with the
Defendant, Sergeant Kash said that he advised all interviewees that he always conveyed
to the district attorney the interviewee’s demeanor during the interview. Sergeant Kash
denied that he used this practice as “a tool to threaten anybody.” He clarified that he
never advised the district attorney about what punishment to seek but only included
information about the interview. He stated that he would answer any questions a
prosecutor may have but that how the State proceeded on any given case was at the
district attorney’s discretion.

        1
           According to the Defendant’s brief, after the January 8, 2018 suppression hearing but before the
January 10, 2018 trial, the Defendant’s attorney requested that he be allowed to supplement the record
with testimony from Sergeant Kash about whether Sergeant Kash had heard Mr. Reynolds’s statement
terminating the interrogation. The trial court agreed; thus there was additional evidence presented after
the trial court’s denial of the motion to suppress on January 8, 2018.
                                                   -3-
       Sergeant Kash summarized the interaction with the Defendant, explaining that he
was attempting to convey to the Defendant that he wanted to hear the Defendant’s “side
of the story,” and the Defendant responded that he did not think it would “matter.” The
Defendant then initiated the discussion about the photograph of him holding a gun.

        On cross-examination, Sergeant Kash testified that, when an interviewee invoked
a right, he had never failed to honor their invocation of the right to counsel or to remain
silent. Sergeant Kash reiterated that he did not hear the Defendant’s statement about
being “done talking” during the interview. Sergeant Kash stated that the Defendant took
no actions consistent with a statement that he no longer wished to speak to Sergeant Kash
but resumed the conversation about the victim’s allegations.

       The trial court denied the Defendant’s motion to suppress. In so doing, it noted
the Defendant’s criminal history and his familiarity with the criminal justice system and
police interviews. The trial court identified various acts of compliance during the
interview that indicated that the Defendant “knows how to do this.” The parties then
played excerpts from the recording for the trial court. The trial court agreed that the
Defendant stated that he was “done talking”; however, the trial court observed that the
Defendant then sat back down without being told to do so. The trial court stated, “[I]t’s a
pretty equivocal situation when he says ‘I’m through,’ and yet he sits down and continues
to ask really the next pertinent question himself.” The trial court concluded:

       It’s not unequivocal. He doesn’t - - he doesn’t really stop the interview.”

              He is no stranger to interviews in the criminal justice system. He
       sits back down immediately. The officer makes no advancements or
       movements towards him. He is calm. And then we know what happens
       next with those two issues and then the question on the part of [the
       Defendant].”

                           2. Motion to Exclude Photograph

       The Defendant asserted that the photograph of him holding a revolver should be
excluded based on relevance and lack of authentication. The photograph was obtained
when an officer spoke with the victim about the alleged aggravated assault and violation
of an order of protection. The victim showed the officer a photograph on her cell phone
that she alleged the Defendant sent to her via text message. The photograph depicted the
Defendant holding a revolver. The text message was sent December 11, 2016, but the
photograph itself only showed the date of December 11 with no indication of the year.
The Defendant argued that the photograph could have been taken outside the four-year
                                           -4-
statute of limitations for this offense and thus should be excluded from evidence due to
insufficient authentication. The State responded that the photograph was relevant to
show the Defendant in possession of the same revolver found at his residence. The State
asserted that it would introduce the gun and officer testimony for authentication.

       Upon further questioning by the trial court, the State elaborated on the proof it
intended to present at trial. The State planned to introduce the gun, the photograph of the
Defendant holding the gun, and excerpts from the recorded interview that included the
Defendant identifying himself and the gun in the photograph, while also admitting
ownership of the gun and admitting he had purchased the gun the day before. The trial
court denied the Defendant’s motion, finding that the photograph was relevant to the
issue of possession and that the Defendant’s statements to the police provided a sufficient
timeline for the Defendant’s possession of the gun. The trial courtalso concluded that the
probative value of the photograph was not substantially outweighed by the danger of
unfair prejudice. 2

                                              B. Trial

       Ryan Webb, a Columbia Police Department (“CPD”) officer, testified that, on
December 14, 2016, he investigated an incident that occurred on Stonebridge Way in
Columbia, Tennessee. During the course of the investigation, he reviewed “a number of
text messages.” More specifically, one of the text messages contained a photograph of an
individual that Officer Webb recognized as the Defendant. Officer Webb drafted a report
of the victim’s complaint against the Defendant and attached the photograph from the
text message of the Defendant holding a revolver. The report also included the cell
phone number associated with the photograph. Officer Webb identified the photograph
of the Defendant that the victim showed him. Officer Webb confirmed that, after
submitting his police report, the case was assigned to a detective for further investigation.

      On cross-examination, Officer Webb agreed that the photograph was dated
“December 11,” the same day it was sent but that the photograph date did not display a
year. Officer Webb further agreed that he had no personal knowledge of when the
photograph of the Defendant holding the revolver was taken.

       Matt Thomas, a State of Tennessee law enforcement officer, testified that he
participated in a search of the Defendant’s residence on December 15, 2016. When he
arrived at the residence with other law enforcement officers, he observed the Defendant
walk out into the front yard from the back of the house. The Defendant provided consent

       2
          On the day of trial, before the jury was selected, the trial court added this finding to the
prior ruling to deny the motion to exclude the photograph of the gun.
                                                -5-
for a search of his property, and the officers spread out to search the house while the
Defendant sat on a couch in the living room. After five to ten minutes of searching inside
the house, Officer Thomas exited the house through the back door to search a shed in the
backyard. Next to the shed was a riding lawnmower that was covered with a tarp.

      Officer Thomas testified that the shed was elevated, so he lowered himself to the
ground to look underneath the shed. While on the ground, he noticed a blue rag lying
underneath the riding lawnmower. Officer Thomas testified that he retrieved the blue rag
from underneath the lawnmower and found a loaded revolver wrapped inside the rag. He
confirmed that the Defendant’s yard was not fenced.

       Brian Stoker, a CPD detective, testified that he was reviewing a case assigned to
him and noticed that the case included information about a photograph of the Defendant
holding a firearm. Detective Stoker was familiar with the Defendant and believed that
the Defendant had a felony conviction. Detective Stoker reported this information to
Sergeant Kash and then Detective Ervin. As a result, Detective Stoker and other officers
went to the Defendant’s residence.

       Detective Stoker testified that, when he arrived at the residence, he observed the
Defendant walking from the left back side of the house to the front to meet the officers.
Detective Stoker confirmed that he heard the Defendant consent to a search of his
property. After searching inside the residence, Detective Stoker and several other
officers searched the backyard. After a few minutes, Officer Thomas summoned
Detective Stoker to a lawnmower located next to the shed and showed him a revolver
wrapped in a “blue thing.” Detective Stoker notified his supervisor, Sergeant Kash.
Upon further inspection, Detective Stoker observed that the revolver could hold nine
bullets but that there were only eight live rounds and one spent casing inside the cylinder.

       Allan Ervin, a CPD detective, testified about the December 15, 2016 search of the
Defendant’s residence. He recalled that the Defendant met the officers in front of the
residence when they arrived and that the Defendant provided consent to a search of his
property. Detective Ervin stayed in the living room area with the Defendant while the
other officers conducted the search. At some point, Detective Stoker informed Sergeant
Kash “there was something outside.” Sergeant Kash asked Detective Ervin to retrieve his
camera and photograph a revolver found near a shed. Detective Ervin identified
photographs of the area where the revolver was found and the revolver.

      Detective Ervin testified that, at a later time, Sergeant Kash asked him to return to
the Defendant’s residence for the purpose of confirming whether there was a “gunshot
through the window, rear of the residence.” Detective Ervin observed what appeared to
be a bullet hole through the lower half of one of the windows. He also observed some
                                           -6-
damage to a tree, approximately three or four feet from the window, consistent with
damage caused by a bullet.

       Detective Ervin testified that a week before the trial, the district attorney’s Office
contacted him and requested that he take the revolver recovered from the Defendant’s
property and confirm whether it was operational. Detective Ervin and Sergeant Kash
took the revolver to the gun range and fired a round from the revolver.

       Sergeant Kash testified that he assigned Detective Stoker a case involving the
Defendant. In the case file was a photograph of the Defendant holding a revolver.
Detective Stoker provided Sergeant Kash with some additional information regarding the
Defendant and, as a result, Detective Ervin, Detective Stoker, Officer Thomas, and
Officer Stone went to the Defendant’s residence in Columbia, Tennessee. With the
Defendant’s permission, the officers searched the property and found a revolver wrapped
in a blue rag. The Defendant was transported to the police department where Sergeant
Kash interviewed him.

       Sergeant Kash testified that the interview was approximately an hour and a half
long and that the Defendant initially denied that he was the man holding the revolver in
the photograph. Ultimately, however, he admitted sending the photograph of himself
holding the revolver. The Defendant also claimed ownership of the gun and disclosed
that he had fired the gun. The State played relevant portions of the recorded interview for
the jury. Sergeant Kash agreed that during the interview, the Defendant first claimed that
he fired the gun in a creek at a squirrel but then admitted firing the gun through a window
of his house. The Defendant told Sergeant Kash, “Go out and look at [his] window.”
Sergeant Kash sent Detective Ervin to confirm the Defendant’s story.

       Sergeant Kash testified that, during the interview, the Defendant admitted that he
bought the revolver the previous day “on the street.” He further admitted that he put the
gun in the backyard by the lawnmower. Sergeant Kash recalled that he also confirmed
the Defendant’s cell phone number with him during the interview. The cell phone
number the Defendant identified as his own was the same cell phone number displayed
on the text message containing the photograph of the Defendant holding the revolver.

       The Defendant stipulated that on May 12, 2015, he was convicted of a felony
involving the use or attempted use of force, violence, or a deadly weapon, which was the
required predicate conviction pursuant to Tennessee Code Annotated section 39-17-
1307(b)(1)(A).

        Based upon this evidence, the jury convicted the Defendant of unlawful possession
of a firearm after a prior felony conviction involving the use or attempted use of force,
                                            -7-
violence, or a deadly weapon. The trial court sentenced the Defendant as a career
offender to serve fifteen years in the Tennessee Department of Correction. It is from this
judgment that the Defendant appeals.

                                       II. Analysis

        On appeal, the Defendant asserts that: (1) the trial court erred when it denied his
motion to suppress statements made to the police after he invoked his right to remain
silent; (2) the trial court improperly admitted a photograph of the Defendant holding a
gun; and (3) the evidence is insufficient to support his conviction.

                           A. Motion to Suppress Statements

        The Defendant asserts that the trial court erred when it denied his motion to
suppress his statements during a police interview. He argues that his invocation of his
right to remain silent was not equivocal and that the evidence preponderates against the
trial court’s finding that Sergeant Kash’s testimony was credible. The State responds that
the Defendant did not make an unequivocal request to stop the interview; therefore, the
trial court properly denied the motion. We agree with the State.

        Our standard of review for a trial court’s findings of fact and conclusions of law
on a motion to suppress evidence is set forth in State v. Odom, 928 S.W.2d 18 (Tenn.
1996). Under this standard, “a trial court’s findings of fact in a suppression hearing will
be upheld unless the evidence preponderates otherwise.” Id. at 23. As is customary, “the
prevailing party in the trial court is afforded the ‘strongest legitimate view of the
evidence and all reasonable and legitimate inferences that may be drawn from that
evidence.’” State v. Carter, 16 S.W.3d 762, 765 (Tenn. 2000) (quoting State v. Keith,
978 S.W.2d 861, 864 (Tenn. 1998)). Nevertheless, this Court reviews de novo the trial
court’s application of the law to the facts, without according any presumption of
correctness to those conclusions. See State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001);
State v. Crutcher, 989 S.W.2d 295, 299 (Tenn. 1999). The trial court, as the trier of fact,
is able to assess the credibility of the witnesses, determine the weight and value to be
afforded the evidence, and resolve any conflicts in the evidence. Odom, 928 S.W.2d at
23. In reviewing a trial court’s ruling on a motion to suppress, an appellate court may
consider the evidence presented both at the suppression hearing and at the subsequent
trial. State v. Henning, 975 S.W.2d 290, 299 (Tenn. 1998).

       The privilege against self-incrimination guaranteed by both the Fifth Amendment
to the United States Constitution and article I, section 9 of the Tennessee Constitution,
affords criminal defendants the right to remain silent. State v. Climer, 400 S.W.3d 537,
556-57 (Tenn. 2013); State v. Blackstock, 19 S.W.3d 200, 207 (Tenn. 2000); State v.
                                           -8-
Crump, 834 S.W.2d 265, 268 (Tenn. 1992). An accused who wishes to rely on the
constitutional right to remain silent, however, must unambiguously invoke it. Berghuis v.
Thompkins, 560 U.S. 370 (holding that the defendant’s prolonged silence in the face of
police questioning did not amount to an unambiguous invocation of the right to remain
silent). A court must determine from an objective viewpoint whether “a responsible
police officer in the circumstances would understand the statement to be a request [to
remain silent].” Id. at 381.

        Before the police must scrupulously honor a suspect’s right to remain silent, the
suspect must clearly articulate that right so that a reasonable police officer under the
circumstances would understand the suspect’s words and conduct to mean that the
suspect wants to exercise his right to cut off further questioning. See State v. John E.
Turner, No. M2002-02454-CCA-R3-CD, 2003 WL 22970970, at *2 (Tenn. Crim. App.
Dec. 18, 2003) (citing State v. William M. Hukowicz, No. M1999-00073-CCA-R9-CD,
2000 WL 1246430, at *2 (Tenn. Crim. App., at Nashville, Aug. 18, 2000), no perm. app.
filed). This requirement prevents law enforcement officers from having to make
“difficult decisions about an accused’s unclear intent and face the consequence of
suppression ‘if they guess wrong.’” Berghuis, 560 U.S. at 382 (quoting Davis v. United
States, 512 U.S. 452, 459 (1994).

        At the motion for new trial hearing, the trial court denied the motion and made the
specific finding that it found “Sergeant Kash 100 percent credible as a witness.”
Sergeant Kash testified that he did not hear the Defendant say, “I’m done talking.” The
evidence does not preponderate against the trial court’s findings in this respect. The
recording of the interview showed the two men talking loudly over one another. Much of
what was being said by both men is difficult to hear. The Defendant, of his own
choosing, sat down immediately following saying, “I’m through talking,” and continued
to engage in a conversation with Sergeant Kash. Moreover, it was the Defendant who
initiated further discussion about the photograph. The Defendant’s words and conduct
did not clearly articulate a desire to cut off further questioning. The Defendant is not
entitled to relief as to this issue.

                           B. Motion to Exclude Photograph

       The Defendant asserts that the trial court abused its discretion when it admitted
into evidence the photograph depicting the Defendant holding a revolver because the
photograph was unfairly prejudicial and was undated. The State responds that the trial
court properly admitted the photograph because it was relevant and corroborated the
Defendant’s admissions to Sergeant Kash. We agree with the State.

                                           -9-
        In Tennessee, admissibility of evidence is within the sound discretion of the trial
judge. State v. Saylor, 117 S.W.3d 239, 247 (Tenn. 2003). A photograph is admissible if
it is relevant to an issue in dispute and if its probative value is not substantially
outweighed by its prejudicial effect. Tenn. R. Evid. 403. The determination of whether
proffered evidence is relevant in accordance with Tennessee Rule of Evidence 401 is left
to the sound discretion of the trial judge, as is the determination of whether the probative
value of evidence is substantially outweighed by the possibility of prejudice pursuant to
Tennessee Rule of Evidence 403. State v. Kennedy, 7 S.W.3d 58, 68 (Tenn. Crim. App.
1999) (citing State v. Forbes, 918 S.W.2d 431, 449 (Tenn. Crim. App. 1995)); State v.
Burlison, 868 S.W.2d 713, 720-21 (Tenn. Crim. App. 1993). In making these decisions,
the trial court must consider the questions of fact that the jury will have to consider in
determining the accused’s guilt, as well as other evidence that has been introduced during
the course of the trial. State v. Williamson, 919 S.W.2d 69, 78 (Tenn. Crim. App. 1995).
We will only disturb an evidentiary ruling on appeal when it appears that the trial judge
arbitrarily exercised his discretion. State v. Baker, 785 S.W.2d 132, 134 (Tenn. Crim.
App. 1989).

        Initial questions of admissibility of evidence are governed by Tennessee Rules of
Evidence 401 and 403. These rules require that the trial court must first determine
whether the proffered evidence is relevant. Pursuant to Rule 401, evidence is deemed
relevant if it has “any tendency to make the existence of any fact that is of consequence
to the determination of the action more probable than it would be without the evidence.”
See Forbes, 918 S.W.2d at 449. In other words, “evidence is relevant if it helps the trier
of fact resolve an issue of fact.” NEIL P. COHEN, ET AL., TENNESSEE LAW OF EVIDENCE §
4.01[4], at 4-8 (4th ed.2000). After the trial court finds that the proffered evidence is
relevant, it then weighs the probative value of that evidence against the risk that the
evidence will unfairly prejudice the trial. State v. James, 81 S.W.3d 751, 757 (Tenn.
2002). If the court finds that the probative value is substantially outweighed by its
prejudicial effect, the evidence may be excluded. Tenn. R. Evid. 403. “‘Excluding
relevant evidence under this rule is an extraordinary remedy that should be used sparingly
and persons seeking to exclude otherwise admissible and relevant evidence have a
significant burden of persuasion.’” James, 81 S.W.3d at 757-58 (quoting White v.
Vanderbilt Univ., 21 S.W.3d 215, 227 (Tenn. Ct. App. 1999)).

       To be admissible, a photograph must be relevant to some issue at trial and the
danger of unfair prejudice, confusion of the issues, or misleading the jury must not
substantially outweigh its probative value. Tenn. R. Evid. 403; State v. Banks, 564
S.W.2d 947, 949 (Tenn. 1978); State v. Gallaher, No. E2001-01876-CCA-R3-CD, 2003
WL 21463017, at *2 (Tenn. Crim. App., at Knoxville, June 25, 2003). Before any
photograph can be admitted into evidence it must be verified and authenticated by a
witness with knowledge of the facts. Banks, 564 S.W.2d at 949-50. In Banks, our
                                           - 10 -
supreme court gave the trial courts guidance for determining the admissibility of relevant
photographic evidence. As relevant to this case, the trial court should consider: the
accuracy and clarity of the picture and its value as evidence; the adequacy of testimonial
evidence in relating the facts to the jury; and the need for the evidence to establish a
prima facie case of guilt or to rebut the defendant’s contentions. Id.

       In our view, the trial court did not abuse its discretion when it admitted the
photograph. A proper foundation was laid when the officer testified that the photograph
was a fair and accurate representation of a photograph sent to the victim from the
Defendant’s cell phone on December 11, 2016. Additionally, the Defendant admitted
that the revolver in the photograph was the same revolver that police recovered from his
home and that he had purchased the revolver “the day before.” Finally, the Defendant
admitted that he texted the photograph to the victim on December 11, 2016. Although
the Defendant stated to Sergeant Kash that he had bought the gun “the day before,”
which would have been after December 11, 2016, the evidence related to the gun, when
considered cumulatively, indicates that the revolver was a recent acquisition and,
therefore, relevant to the question of the Defendant’s possession of a gun at the time of
these incidents.

          As to its probative value, the photograph was probative in multiple ways: to
show the Defendant’s actual possession of the gun; to show the similarities between the
gun in the photograph and the gun recovered under the lawn mower in the Defendant’s
back yard; and to corroborate the Defendant’s testimony about his ownership, use of, and
control over the gun. This probative value of the photograph was not substantially
outweighed by any prejudice to the Defendant. Therefore, the Defendant is not entitled
to relief as to this issue.

                             C. Sufficiency of the Evidence

       The Defendant asserts that the evidence is insufficient to support his conviction for
unlawfully possessing a firearm after a previous conviction for a felony involving force,
violence, or a deadly weapon. He argues that, if this Court agrees about the improper
admission of his statement and the photograph, the evidence is insufficient; however,
since we did not conclude that the statement and photograph were improperly admitted,
we consider his alternative argument that a reasonable jury could not infer constructive
possession of the revolver because the State failed to prove that the revolver was found
on his property. The State responds that the Defendant’s statement established that he
exerted both actual and constructive possession of the revolver prior to his arrest. We
agree with the State.

                                           - 11 -
       When an accused challenges the sufficiency of the evidence, this Court’s standard
of review is whether, after considering the evidence in the light most favorable to the
State, “any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see Tenn. R.
App. P. 13(e); State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (citing State v. Reid,
91 S.W.3d 247, 276 (Tenn. 2002)). This standard applies to findings of guilt based upon
direct evidence, circumstantial evidence, or a combination of both direct and
circumstantial evidence. State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App.
1999) (citing State v. Dykes, 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990)). In the
absence of direct evidence, a criminal offense may be established exclusively by
circumstantial evidence. Duchac v. State, 505 S.W.2d 237, 241 (Tenn. 1973). “The jury
decides the weight to be given to circumstantial evidence, and ‘[t]he inferences to be
drawn from such evidence, and the extent to which the circumstances are consistent with
guilt and inconsistent with innocence, are questions primarily for the jury.’” State v.
Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (quoting Marable v. State, 313 S.W.2d 451, 457
(Tenn. 1958)). “The standard of review [for sufficiency of the evidence] ‘is the same
whether the conviction is based upon direct or circumstantial evidence.’” State v.
Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265,
275 (Tenn. 2009)).

       In determining the sufficiency of the evidence, this Court should not re-weigh or
reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App.
1990). Nor may this Court substitute its inferences for those drawn by the trier of fact
from the evidence. State v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999) (citing Liakas v.
State, 286 S.W.2d 856, 859 (Tenn. 1956)). “Questions concerning the credibility of
witnesses, the weight and value to be given the evidence, as well as all factual issues
raised by the evidence are resolved by the trier of fact.” State v. Bland, 958 S.W.2d 651,
659 (Tenn. 1997). “A guilty verdict by the jury, approved by the trial judge, accredits the
testimony of the witnesses for the State and resolves all conflicts in favor of the theory of
the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). The Tennessee Supreme
Court stated the rationale for this rule:

              This well-settled rule rests on a sound foundation. The trial judge
       and the jury see the witnesses face to face, hear their testimony and observe
       their demeanor on the stand. Thus the trial judge and jury are the primary
       instrumentality of justice to determine the weight and credibility to be
       given to the testimony of witnesses. In the trial forum alone is there human
       atmosphere and the totality of the evidence cannot be reproduced with a
       written record in this Court.

                                           - 12 -
Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d
523, 527 (Tenn. 1963)). This Court must afford the State of Tennessee the “‘strongest
legitimate view of the evidence’” contained in the record, as well as “‘all reasonable and
legitimate inferences’” that may be drawn from the evidence. Goodwin, 143 S.W.3d at
775 (quoting State v. Smith, 24 S.W.3d 274, 279 (Tenn. 2000)). Because a verdict of
guilt against a defendant removes the presumption of innocence and raises a presumption
of guilt, the convicted criminal defendant bears the burden of showing that the evidence
was legally insufficient to sustain a guilty verdict. State v. Carruthers, 35 S.W.3d 516,
557-58 (Tenn. 2000) (citations omitted).

       The Defendant was convicted of violating Tennessee Code Annotated section 39-
17-1307(b)(1)(A), which provides that a person commits an offense “who unlawfully
possesses a firearm” and “[h]as been convicted of a felony involving the use or attempted
use of force, violence, or a deadly weapon.”

       Possession of a firearm may be actual or constructive. State v. Fayne, 451 S.W.3d
362, 374 (Tenn. 2014). Actual possession “refers to physical control over an item.” Id.
at 370. On the other hand, constructive possession is established when a person has “‘the
power and intention at a given time to exercise dominion and control over [a firearm]
either directly or through others.’” State v. Shaw, 37 S.W.3d 900, 903 (Tenn. 2001)
(quoting State v. Patterson, 966 S.W.2d 435, 445 (Tenn. Crim. App. 1997)).
Constructive possession has also been defined as “‘the ability to reduce an object to
actual possession.’” State v. Williams, 623 S.W.2d 121, 125 (Tenn. Crim. App. 1981)
(quoting United States v. Martinez, 588 F.2d 495, 498 (5th Cir. 1979)). Constructive
possession depends on the totality of the circumstances in each case and may be
established through circumstantial evidence. State v. Robinson, 400 S.W.3d 529, 534
(Tenn. 2013) (citing T.C.A. § 39-17-419).

       The evidence, viewed in the light most favorable to the State, shows that the
Defendant, a convicted felon, admitted to buying a revolver and then photographing
himself holding the revolver and sending it to his ex-girlfriend. He also admitted firing
the revolver through a window of his house and placing the revolver under the lawn
mower in his back yard. The Defendant’s extrajudicial statements require corroboration.
See State v. Bishop, 431 S.W.3d 22, 58 (Tenn. 2014). These statements are corroborated
by the Defendant’s cell phone number displayed on the text with the photograph sent to
the ex-girlfriend’s cell phone; the hole in a window at the Defendant’s residence; and law
enforcement’s discovery of a revolver under the lawn mower in the Defendant’s back
yard. Based upon this evidence, we conclude that a rational jury could find the
Defendant guilty beyond a reasonable doubt of unlawful possession of the revolver. The
Defendant stipulated that he had previously been convicted of a predicate felony. The
Defendant is not entitled to relief as to this issue.
                                          - 13 -
                                   III. Conclusion

        In accordance with the aforementioned reasoning and authorities, we affirm the
trial court’s judgment.

                                           ____________________________________
                                                ROBERT W. WEDEMEYER, JUDGE

                                        - 14 -


653 So.2d 1375 (1995)
Earl Joseph PICONE
v.
Bernard LYONS, Virgil Carson, Joseph Wending, et al.
No. 94-CA-2428.
Court of Appeal of Louisiana, Fourth Circuit.
April 26, 1995.
Rehearing Denied May 19, 1995.
*1376 A. Wendel Stout, III, Marc J. Yellin and William C. Harrison, Jr., Deutsch, Kerrigan & Stiles, New Orleans, for defendants-appellees.
Michael J. Samanie, Herbert W. Barnes, Jr. and Kentley R. Fairchild, Samanie, Barnes & Allen, Houma, for plaintiff-appellant.
Before BYRNES, PLOTKIN and JONES, JJ.
BYRNES, Judge.
Plaintiff-appellant, Earl Joseph Picone, appeals a judgment dismissing his claim as abandoned pursuant to LSA-C.C.P. art. 561. We affirm.
Earl Joseph Picone was a journeyman sandblaster who on September 28, 1976, filed a claim for damages alleging the contraction of silicosis as a result of occupational exposure to silica dust from 1963 to 1974. During this 11 year period, Picone alleges that he was employed by as many as 16 different companies. However, he did not name any of these companies as defendants. Instead, he brought this action against 53 executive officers of those companies.
Defendants O.M. Gautreaux, Victor Hicks, C.B. Hakenjos, W.L. Rose, Jr. and Richard J. Ford (hereafter collectively referred to as "Gautreaux"), were named as the corporate executive officers of Williams-McWilliams Co., Inc., one of Picone's many employers. Among other defendants were Peter Kiewitt, R.D. Wilson, R.R. Clark and D.E. Baker (hereafter collectively referred to as "Kiewitt").
Judgment was rendered on September 12, 1994 dismissing plaintiff's claim with prejudice for want of prosecution pursuant to LSA-C.C.P. art. 561. Plaintiff appeals.
I. NO "STEPS" WERE TAKEN IN THE PROSECUTION OF THIS SUIT FOR OVER FIVE YEARS.
Gautreaux filed a third party demand against Employers Liability Insurance Corp., Ltd. and others on July 26, 1977. On May 1, 1986, Gautreaux filed a motion to dismiss the third party demand with prejudice. On September 14, 1986, Employers filed a motion to substitute counsel. On December 11, 1986, Fidelity filed a notice of change of address of counsel. On March 11, 1988, Picone filed a motion to substitute counsel. On October 10, 1990 Picone filed interrogatories and a request for production of documents to Employers. Employers had not been a party to the litigation for four years.
On March 24, 1992 an order of dismissal for abandonment was granted ex parte under LSA-C.C.P. art. 561 on the motion of Williams-McWilliams Co., Inc. dismissing plaintiff's claim without limitation. On motion of Gautreaux on June 2, 1992 an order of dismissal for abandonment was entered, but it stated that it was only as to *1377 Gautreaux. We must assume that this was done out of an excess of caution as the March 24, 1992 order should have been effective as to the entire litigation, including the Gautreaux defendants. Just as a "step" by any party within the five year period prevents abandonment as to all defendants including those not solidarily liable, Rollins v. Causey, 427 So.2d 1291 (La.App. 2 Cir.1983), when no "step" is taken the abandonment is effective as to all defendants. No formal order is necessary. LSA-C.C.P. art. 561. Therefore, it is not necessary for each party to obtain his or her own order of dismissal, and any such order of dismissal should not be limited to the parties presenting the order.
Apparently an order of dismissal was entered as to Kiewitt on July 2, 1992 that presumably tracks the Gautreaux order. It is referred to in briefs and in judgments of the lower court, but a copy does not appear in the record. It is not necessary to the disposition of this matter.
Picone does not contest the chronological sequence of events. Instead he argues that the interrogatories and request for production of documents he filed on a non-party constituted a step in the prosecution of this matter. Highlands Ins. Co. v. City of Lafayette, 453 So.2d 608 (La.App. 3 Cir. 1984), writ denied, 458 So.2d 119 (La.1984) and Gibson v. Valentine Sugars, Inc., 485 So.2d 620 (La.App. 4 Cir.1986), writ denied, 489 So.2d 920 (La.1986). We disagree. Those cases are inapposite. In Highlands the interrogatories were directed to a party. LSA-C.C.P. art. 1457. In Gibson the request for production of documents was directed to a party. LSA-C.C.P. art. 1461. There is no reference in the Code of Civil Procedure to interrogatories and requests for production of documents directed to non-parties. The lower court was correct in ruling that they do not constitute a "step" in the prosecution of the case.
Plaintiffs contend that even if their actions failed to constitute a "step" in the prosecution of his claim, their intention was to take a "step" in the prosecution of their claim.
Plaintiffs argue that their intention should be the controlling factor, not the nature of the "step" they took. We disagree. Although plaintiffs cite cases referring to intention, in none of those cases was intention found to be sufficient in the absence of a "step." LSA-C.C.P. art. 561 specifically requires that the parties take a "step." No reference is made to "intent." While it may be within the bounds of reasonable judicial interpretation to read "intent" into Article 561 by inference, there is no basis for reading out the clear language which specifically requires a step. Intention without a "step" is insufficient.
Cases such as Kanuk v. Pohlmann, 338 So.2d 757 (La.App. 4 Cir.1976), writ denied, 341 So.2d 420 (La.1977), are not persuasive. In Kanuk the plaintiffs filed a motion to fix the case for trial on the merits. Such a motion is a well recognized "step." In Kanuk the court found that the failure of the plaintiffs to sign the motion as required would not be fatal under LSA-C.C.P. art. 561. Kanuk and similar cases stand for the proposition that where a "step" is taken with a demonstrable intention of moving the case to trial, a defect of form may be overlooked under certain circumstances. However, in all such cases a "step" must be taken.
The record shows that the only other actions taken in the period from May 1, 1986 until March 24, 1992 were two motions to substitute counsel, including one by Picone, and a notice of change of address of counsel. These do not constitute steps in the prosecution of the case. Chevron Oil Co. v. Traigle, 436 So.2d 530 (La.1983). Therefore, the motion to dismiss the third party demand filed by Gautreaux on May 1, 1986 is the last action that could arguably be called a "step."
Picone has never disputed the fact that the previously described actions were the only ones taken. That no steps have been taken in the prosecution of this litigation by any party for a period of over five years is apparent from the face of the record.

PLAINTIFF'S CLAIM HAS BEEN DISMISSED WITH PREJUDICE
It is uncontested that on July 14, 1992, plaintiff appealed only the Gautreaux dismissal *1378 of June 2, 1992. On July 15, 1992, plaintiff filed a motion to vacate the Gautreaux dismissal of June 2, 1992 and the Williams-McWilliams dismissal of March 24, 1992. A contradictory hearing was held on this motion on October 2, 1992. Pursuant thereto, on October 7, 1992 the trial court rendered a judgment of dismissal with prejudice reaffirming the previous dismissals of March 24, 1992, June 2, 1992 and July 2, 1992. On April 28, 1993 this Court dismissed plaintiff's appeal of the June 2 dismissal, but stated that the question of whether the trial court had jurisdiction to render the judgment of October 7 was not properly before this Court at that time. Picone v. Lyons, 618 So.2d 475 (La.App. 4 Cir.1993).
On October 12, 1992 plaintiff was granted an appeal of the October 7 judgment, but we find no record of it having been docketed or pursued. We consider that appeal to have been abandoned.
Plaintiff waited for over one year after this Court rendered its decision in Picone to file another motion to vacate the ex parte judgment of June 2, 1992. This motion to came too late. Ex parte dismissals are not appealable. Plaintiff must seek relief by motion to vacate. Picone v. Lyons, 618 So.2d 475 (La.App. 4 Cir.1993); and Simmons v. Dixon, 306 So.2d 67 (La.App. 1 Cir.1974). Such a motion must be brought within a reasonable time. By way of analogy, anything more than the delay allowed for a devolutive appeal would be unreasonable. Regardless, for reasons set forth hereafter, the judgment of June 2, 1992 has no bearing on the outcome of this case.
The judgment of September 12, 1994 that forms the basis of this appeal refers to and cannot be properly evaluated without consideration of the judgment of March 24, 1992. The judgment of March 24, 1992 was a blanket dismissal of the entire suit at the request of Williams-McWilliams Co., Inc. Although Williams-McWilliams Co., Inc. referred to itself as a defendant in its motion to dismiss, it was not a party to the suit. Instead it should be considered an "interested person" under LSA-C.C.P. art. 561 with standing to bring the motion. Therefore, the judgment of October 7, 1992, if valid, reaffirming the judgment of March 24, 1992 effectively dismissed the entire case with prejudice.
Plaintiff argues that the judgment of October 7, 1992 which reaffirms the judgments of March 24, 1992, June 2, 1992 and July 2, 1992 is null because the trial court had no jurisdiction pending plaintiff's appeal in Picone. This Court made it clear in Picone that that appeal was limited to the judgment of June 2, 1992. That the portion of the judgment of October 7, 1992 relating to the judgment of June 2, 1992 may be null does not nullify that portion of the judgment reaffirming the judgment of March 24, 1992 and dismissing the entire suit with prejudice. As plaintiff has failed to seek timely relief from the judgment of October 7, 1992, this entire litigation was dismissed with prejudice as of that date. (There is no merit to plaintiff's contention that the trial court lacked the authority to dismiss his claim with prejudice.)
Therefore, the trial court had no further jurisdiction after that date to conduct the proceedings that resulted in the judgment of September 12, 1994 which is the subject of this appeal. Technically we could exercise the same restraint that we did the last time this case was appealed to this Court in Picone and limit our decree to one annulling the judgment of September 12, 1992 which is the only one that is the subject of this appeal. However, as the proper final disposition of this case is apparent from the face of the record; as we are mindful of the authority conferred upon this Court by LSA-C.C.P. art. 2164 to render any judgment which is just, legal, and proper upon the record on appeal; and as it is in the interest of judicial economy and the best interest of all the parties to put an end to years of fruitless procedural entanglements that can delay but cannot change the inevitable result of a case that is now over twenty years old; therefore, we render judgment annulling the *1379 judgment of September 12, 1994[1], but affirming the judgment of October 7, 1992[2] insofar as it reaffirmed the judgment of March 24, 1992 and dismissed plaintiff's suit in its entirety with prejudice.
DISMISSAL OF PLAINTIFF'S SUIT WITH PREJUDICE AFFIRMED
NOTES
[1]  By annulling this judgment we render moot plaintiff's complaint that he received no notice of the hearing upon which the judgment was based.
[2]  Technically this judgment does not appear to be a part of this record. However, copies of it have been attached by both parties to various briefs and memoranda. Its authenticity and contents are disputed by no one.


                                 NO.    91-218

            IN THE SUPREME COURT OF THE STATE OF MONTANA
                                       1992

FRANK BRISENDINE, L.D., d/b/a ROCKY
MOUNTAIN DENTURE CLINIC,
                           Plaintiff and Appellant,
           -vs-
THE STATE OF MONTANA, DEPARTMENT OF
COMMERCE, BOARD OF DENTISTRY,
                           Defendant and Respondent.

APPEAL FROM:        District Court of the First Judicial District,
                    In and for the County of Lewis & Clark,
                    The Honorable Thomas C. Honzel, Judge presiding.

COUNSEL OF RECORD:
           For Appellant:
                    James C. Bartlett;        Hash,   O'Brien   &   Bartlett,
                    Kalispell, Montana

           For Respondent:
                    Robert P. herdon, Dept. of Commerce, Helena, Montana

                                 Submitted on Briefs:     November 14, 1991
          MA Y 21 1992
                                                  ..
                                                 Decided: May 21, 1992
                                                  1

Filed:
     CLERK OF SV:"SS?,
         STATE   OF Mol%
Justice William E. Hunt, Sr., delivered the opinion of the Court.
    Appellant Frank Brisendine, a licensed denturist, appeals from
an order of the First Judicial District Court, Lewis and ClarR
County, dismissing appellant's complaint          for declaratory and
injunctive relief.   We affirm.
     We rephrase the issues before the Court as follows:
     1.    Whether   the   District    Court   erred    in   dismissing
appellant's complaint for declaratory judgment for lack of a
justiciable controversy.
     2.    Whether   the   District    Court   erred    in   dismissing
appellant's complaint for declaratory judgment because he failed to
exhaust his administrative remedies.
     Brisendine is a duly licensed denturist who practices in East
Helena.    Respondent Board of Dentistry of the Department of
Commerce   (hereinafter known     as   "Board")   is   responsible   for
regulating and licensing both the practice of dentistry and
denturitry.
     On September 14, 1990, appellant presented to the Board a
proposal regarding his intent to enter into a business association
with a dentist regarding fees and compensation.        On September 20,
1990, the Board issued a letter stating that 5          37-4-103, MCA,

allows only a licensed dentist to operate and manage a dental
office, and that if appellant went ahead with his proposal he would
be illegally practicing dentistry in violation of 5 37-4-103, MCA.
The Board apprised appellant that it was still considering his

                                  2
proposal and would let him know of its intended action in about two
weeks.     The Board warned appellant not to engage in his proposed
business association prior to its decision. If appellant failed to
heed its warning, the Board threatened to revoke or suspend his
denturist license for practicing dentistry without a license in
violation of 5 37-4-103, MCA.     The record does not contain any
final decision from the Board.
     On October 30, 1990, appellant filed a complaint in District
Court    seeking a declaratory judgment and     injunctive relief.
Specifically, appellant requested the court to decide whether he
could enter into a business association with a dentist as allowed
under 5 37-29-103, MCA.
     On December 6, 1990, the Board filed a Rule 12(b) (6) motion to
dismiss for failure to state a claim for which relief can be
granted.     On February 25, 1991, the District Court granted the
motion.     The court held that at common law it was not in the
interest of the public welfare for a denturist to own and operate
a dental clinic.      State v. Boren (Wash. 1950), 219 P.2d 566,
Worlton v. Davis (Idaho 1952), 249 P.2d 810.
     Appellant timely filed a motion to amend the District Court's
order and findings.      Appellant alleged that the complaint only
stated that he had made known to the Board his intention to enter
into a lawful agreement with a dentist pursuant to 5 37-29-103,
MCA, and not whether he intended to own, operate, and manage a
dental clinic.    On April 17, 1991, the District Court amended its

                                  3
original order and held that the complaint did not present a
justiciable controversy.      The record does not reflect if the
original order was withdrawn.      Appellant appealed the decision to
this Court.

     The first issue we consider is whether the District Court
erred in dismissing appellant's complaint for declaratory judgment
for lack of a justiciable controversy.
     The purpose of the Montana           Declaratory Judgment Act       is
remedial and is meant       "to settle and to afford relief from
uncertainty and insecurity with respect to rights, status, and
other legal relations; and it is to be liberally construed and
administered."   Section 27-8-102, MCA.           Section 27-8-202, MCA,
states in pertinent part:
     Any person  . . . whose rights, status, or other legal
     relations are affected by a statute           . . .
                                                   may have
     determined any question of construction or validity
     arising under the .     . .
                               statute .          . .
                                               and obtain a
     declaration of rights, status, or other legal relations
     thereunder.
     There are two principles this Court has adopted regarding
declaratory judgments.     First, even though all of the necessary
elements of jurisdiction exist, the district court is not required
to exercise that jurisdiction. Empire Fire         &   Marine Insurance Co.
v. Goodman    (1966), 147 Mont.         396,   401, 412 P.2d     569,   571.

Secondly, a motion to dismiss a declaratory judgment rests with the
sound discretion of the district court.         Emvire Fire, 412 P.2d at

                                    4
571.    We will not disturb a district court's decision that a
declaratory judgment is not proper absent an abuse of discretion.
Emvire Fire, 412 P.2d at 571.
       The Board contends that two arguments should bar appellant
from declaratory relief.    Because appellant has not suffered from
any actual harm to his license, no justiciable controversy exists.
In addition, appellant has not exhausted all of his administrative
remedies.
       Previously, we have held that a justiciable controversy
contains three elements:
            "First, a justiciable controversy requires
            that parties have existing and genuine, as
            distinguished from theoretical, rights or
            interest. Second, the controversy must be one
            upon which the judgment of the court may
            effectively operate, as distinguished from a
            debate or      argument invoking a purely
            political, administrative, philosophical or
            academic conclusion. Third, [it] must be a
            controversy the judicial determination of
            which will have the effect of a final judgment
            in law or decree in equity upon the rights,
            status or legal relationships of one or more
            of the real parties in interest, or lacking
            these qualities be of such overriding public
            moment as to constitute the legal equivalent
            of all of them.
Lee v. State (1981), 195 Mont. 1, 6, 635 P.2d         1282, 1284-85
(quoting Matter of Secret Grand Jury Inquiry (1976), 170 Mont. 354,
357, 553 P.2d 987, 990).
       on September 14, appellant appeared before the Board in what
apparently was an informal proceeding and presented his proposal.
Nothing in the record reflects what appellant proposed to the

                                  5
Board.     The Board seemed to believe that there were problems with
the proposal and sent the letter of September 20, 1990, while it
considered the proposal.       Essentially, the letter was advisory in
nature and was not intended to be construed as a final opinion from
which an appeal to the District Court could be initiated.
         We agree with the District Court that the complaint fails to
describe what type of business association appellant intends to
enter into with a dentist. All that the complaint mentions is that
appellant intends to enter into a business association with a
dentist and asks the District Court to determine whether or not
that is allowed.
         Appellant contends that if the District Court's decision is
upheld, he must first violate the law, then face an administrative
revocation hearing whereby his license could be suspended or
revoked.        Appellant overlooks the fact that he has another
administrative remedy available.              He could ask the Board for a
declaratory judgment pursuant to          §   2-4-501, MCA.   If the decision
is adverse, he could then appeal it to the District Court pursuant
to   §   2-4-506(4), MCA.   By using this approach, appellant would not
subject his license to revocation or suspension.
         By using the Declaratory Judgment Act in District Court at
this stage of the proceeding, appellant is attempting to seek an
advisory opinion       from the     court regarding his         rights under
§§   37-4-103    and   37-29-103,   MCA.        This would    constitute   an
unwarranted intrusion into the Board's regulatory authority granted

                                      6
under Title 37, Chapter 4, and Title 37, Chapter 29.               As we have
stated in an earlier case:
         "The courts have no jurisdiction to determine
    matters purely speculative, enter anticipatory judgments,
    declare social status, deal with theoretical problems,
    give advisory opinions, answer moot questions, adjudicate
    academic matters, provide for contingencies which may
    hereafter arise, or give abstract opinions.       (Citing
    cases.) 'The Uniform Declaratory Judgment Act does not
    license litigants to fish in judicial ponds for legal
    advice. ' I'
Montana Dept. of Natural Resources         &    Conservation v. Intake Water
Co. (1976) 171 Mont. 416, 440, 558 P.2d 1110, 1123 (quoting Little
v. Wachovia Bank   &   Trust Co., 252 N.C. 229, 113 S.E.2d 689).           As we

have stated previously, no final decision has been issued from the
Board. Appellant's legal rights and status have not been adversely
affected.     We hold that the District Court is correct that no
justiciable controversy exists at this time in the proceedings.
                                    I1

     The second issue presented to this Court is whether the
District Court erred in dismissing appellant's complaint for
declaratory     judgment     because       he     failed   to    exhaust     his
administrative remedies.
     We have held that "it is not the true purpose of the
declaratory judgment to provide a substitute for other regular
actions."     In the Matter of Dewar (1976), 169 Mont 437, 444, 548
P.2d 149, 154.     Generally, we have held that before a party can
seek declaratory relief, he must                exhaust all     administrative
remedies.   Mitchell v. Town of West Yellowstone (1988), 235 Mont.

                                       7
104,   108,   765   P.2d 7 4 5 , 747- 48.   However, the exhaustive doctrine
does not apply when constitutional issues are raised.               Mitchell,
765    P.2d   at 748.         Thus, when        a party   raises a bona   fide
constitutional claim, he has a right to resort to declaratory
judgment, rather than submitting himself to an ordinance or rule he
deems unconstitutional. Mitchell, 7 6 5 P.2d at 7 4 8 .         Our reasoning
is based upon the lack of authority in administrative agencies to
determine constitutional issues. Mitchell, 765 P.2d at 7 4 8 .            Such
decisions rest within the exclusive jurisdiction of the courts.
Mitchell, 7 6 5 P.2d at 7 4 8 .
       Appellant has not properly raised a constitutional issue in
this matter.        As we have stated above, the Board's letter does not
constitute a         final opinion and          appellant can   still   seek a
declaratory judgment from the Board without subjecting his license
to suspension or revocation.                We hold that appellant has not
exhausted his administrative remedies and that the District Court
did not abuse its discretion in dismissing appellant's complaint
for declaratory judgment.
       We affirm.

                                            8
We concur:

     Chief Justice

                     9
Justice Terry N. Trieweiler dissenting.
     I dissent from the opinion of the majority.
     The majority undermines the purpose of the Uniform Declaratory
Judgments Act which is to eliminate uncertainty from the law in an
expeditious and inexpensive fashion. As a result of the majority's
decision, the uncertainty regarding Frank Brisendine's rights will
be prolonged and he will be forced to incur unnecessary expense and
delay by seeking a meaningless declaratory judgment from the Board
of Dentistry which has already indicated its intention to deny him
the opportunity to associate in a business relationship with a
dentist.
     Section       27-8-102,   MCA,   provides        that   the   purpose   of
declaratory judgments is "to settle and to afford relief from
uncertainty and insecurity with respect to rights, status, and
other legal relations; and it is to be liberally construed and
administered.I t
     Declaratory judgments were intended to eliminate the exact
type of uncertainty that exists in this case.                In this case, the
plaintiff's legal relations are uncertain because of two statutes
which are apparently in conflict regarding his right to form a
business relationship with a dentist.
     Section 37-4-lOl(2) (b), MCA, provides that a person                    is
Itpracticingdentistry" if he "is a manager, proprietor, operator,
or conductor of a place where dental operations, oral surgery                or
dental services are performed         .   .. .   'I   However, 5 37-4-103 4),
                                      10
MCA, provides in relevant part that “[nlone of the regulations
contained in this chapter apply to a person engaged in the lawful
practice of denturitry.Il
     Title 37, Chapter 29, contains the statutes which specifically
regulate the field of denturitry. Section 37-29-103, MCA, further
confuses plaintiff‘s rights by allowing denturists to form business
associations with dentists. It states that “[a] licensed denturist
may enter into any lawful agreement with a dentist regarding fees,
compensation, and business association.1’
     In this case, plaintiff proposed to the Board of Dentistry
that he be allowed to enter into a business association with a
dentist as authorized under the statute pertaining to denturitry,
but was told that his activity would be prohibited under the
statute which pertained to the practice of dentistry.
     Brisendine has an apparent statutory right to enter into a
business association with a dentist.        However, he cannot exercise
that right because of disciplinary action threatened by the Board
for the unlicensed practice of dentistry. That disciplinary action
could result in the revocation of Brisendine’s license and subject
him to criminal prosecution for practicing dentistry without a
license under   §   31-4-327, MCA (1989).   The purpose of declaratory
judgments is to avoid such undesirable consequences.
     The majority concludes that Brisendine should have requested
a declaratory judgment from the board and then appealed that
decision if it was unfavorable.         However, Rule 5 1 , M.R.Civ.P.,
                                   11
provides that It[t]he existence of another adequate remedy does not
preclude a judgment for declaratory relief in cases where it is
appropriate."     It is true that 5 2-4-506(1) and   (3),   MCA, grants
authority to the Board of Dentistry to issue declaratory judgments.
However, subsection    (4)   of the same statute appears to authorize
filing of the petition for declaratory judgment directly in the
district court.
     In this case, the Board issued a letter stating that appellant
was prohibited from entering into his proposed business association
with a dentist, and threatened to revoke or suspend his license if
he entered into such a relationship. The Board stated that a final
decision would come in two weeks.          However, no decision was
forthcoming.      Brisendine's legal rights and interests remain
uncertain.   Requiring him to seek a declaratory judgment from the
Board, which apparently through its letter had already made a final
decision, does not serve the efficient, orderly, or inexpensive
administration of justice which should be this Court's primary
concern.
     Section 1-2-102, MCA, provides that "[wlhen a general and
particular provision are inconsistent, the latter is paramount to
the former, so a particular intent will control a general one that
is inconsistent with it."      For that reason, it is clear to me that
Brisendine's rights are established by the statute found in the
chapter regulating the profession of denturitry, and not in the
chapter regulating the profession of dentistry.       I would reverse
                                    12
this case and remand it to the District Court with instructions to
determine   whether   the   Board   of   Dentistry's   action   violated

5 37-29-103, MCA, which authorizes Brisendine to associate with a
dentist for the purpose of fees, compensation, or other business
association.

                                    13


934 F.2d 319Unpublished Disposition
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.Warren HACKLER, Petitioner-Appellant,v.COMMONWEALTH OF VIRGINIA, Respondent-Appellee.
No. 91-6289.
United States Court of Appeals, Fourth Circuit.
Submitted May 6, 1991.Decided May 29, 1991.

Appeal from the United States District Court for the Western District of Virginia, at Roanoke.  Jackson L. Kiser, District Judge.  (CA-91-99-R)
Warren Hackler, appellant pro se.
W.D.Va.
DISMISSED.
Before DONALD RUSSELL, WILKINSON and WILKINS, Circuit Judges.
PER CURIAM:

1
Warren Hackler seeks to appeal the district court's order refusing habeas corpus relief pursuant to 28 U.S.C. Sec. 2254.  Our review of the record and the district court's opinion discloses that this appeal is without merit.  Accordingly, we deny a certificate of probable cause to appeal and dismiss the appeal on the reasoning of the district court.  Hackler v. Virginia, CA-91-99-R (W.D.Va. Feb. 6, 1991).  We deny appellant's motions for release, to enjoin treatment, and for a stay of the briefing schedule pending ruling on his motions.  We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.

2
DISMISSED.