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The opinion of the court was delivered by Valentine, J.: Martin Flinn commenced two actions in the district court of Doniphan county against the Atchison & Nebraska railroad company, for damages alleged to have been sustained by himself and daughter on account of personal injuries received by the latter. Both of these actions arise out of the same transactions, and are founded upon the same facts. One of them was commenced by Martin Flinn in his own name, and the other was commenced by him in his daughter’s name, as her next friend. In the first, he claimed $5,500 damages; in the second, $25,000 damages. In the first, a demurrer was interposed by the defendant to the plaintiff’s petition, which demurrer was overruled by the court, and the defendant excepted. No judgment seems to have been rendered. In the second, a trial was had before the court and a jury, and a verdict and judgment were rendered in favor of the plaintiff and against the defendant, for $12,500 damages. The defendant now brings both cases to this court, and asks for a reversal in each of them. We shall first consider the Sue' Flinn case. In this case (the Sue Flinn case) the facts, as they appear from the pleadings, the evidence and the findings of the jury, (especially the evidence,) are substantially as follows: On October 5, 1877, the time when the accident occurred, and prior thereto and since, the defendant railroad company was and has been a common carrier of passengers and freight between Atchison, Kansas, and Lincoln, Nebraska, and between all intermediate points, including White Cloud and Iowa Point, in Doniphan county, Kansas. Sue Flinn, at that time, was a little girl, aged four years, seven months and ten days; Martin Flinn was her father, and Mrs. Sophie E. Armstrong wajS her aunt. Minnie Dutton was also an aunt to Sue Flinn, but she was only a little girl, eleven years old, small of her age, but little larger than Sue Flinn, feeble, nervous, and had been afflicted with the Saint Vitus’s dance. At about the hour of noon, or shortly afterward, a passenger train of cars belonging to the defendant, while on its way from Lincoln, Nebraska, to Atchison, Kansas, stopped at White Cloud, and Mrs. Armstrong put these two little girls upon the train, and on a passenger car, and the little girls went inside and took seats therein. Neither of the girls had any ticket, nor any money with which to pay fare; and it was not intended by Mrs. Armstrong or the girls that either of them should pay fare. It does not appear that any employé of the railroad company had notice that the little girls were put upon the train, and they were not placed in the care or custody of any person. In the car in which these little girls were placed were other persons, who were therein in the capacity of passengers. The little girls sat on a seat, with their faces turned toward the rear of the car. Shortly after they took their seats, a man, with whom they were acquainted, by the name of George Painter, came into the car, and took a seat immediately in front of and facing them, and entered into conversation with them. The train passed on toward Iowa Point. The conductor passed through the car in which the little girls and Painter and others were seated, and took fare from Painter, but took no notice of the little girls. It was a rule of the company not to take fare from children under five years of age, who were in company with some adult person, and the conductor sometimes allowed even older children to ride free under such rule; but small children like the. plaintiff were not allowed to be on the train, except in the care or custody of some older person, competent to take care of them. Painter intended .to get off the train at Iowa Point, and there was one other passenger on the train, by the name of Oliver Davis, wbo also intended to get off at that place. When the train arrived at Iowa Point it stopped. Painter and Davis got off, and other passengers got on. Prior Plank and wife, and Miss Josephine Parker, for instance, got on. The train stopped a few seconds only, and then started. About the time that it started, the two little girls left their seats as though they desired to get off the train. Mr. F. J. Starr, a passenger on the train, who had got on at Lincoln, and who had sat near the little girls on the way from White Cloud down to Iowa Point, left his seat.to help them. They went to the front end of the car. This was the rear car of the train. When they arrived at the front platform of the car, the train was in motion. Minnie Dutton stepped from the platform of the car upon the station platform in safety, and then stood there. Mr. Starr then helped Sue Flinn off; but when her feet touched the station platform, she fell forward, with her head toward the engine, and rolled off the platform, upon the ground between the car and the platform, and in her struggles, threw her legs across the nearest rail of the railroad track, and the hind trucks of the car ran over her legs, and crushed them so badly, [one just above the knee and the other below,) as to make amputation necessary. The car passed on a few feet further, and was stopped. It appears from the evidence that it was the intention of Mrs. Armstrong and of the little girls that they should stop at Iowa Point, but it does not appear that this intention was ever communicated to any other person until after the little girls left their seats in the car for the purpose of getting off, and then only, by their actions. One witness testified that when Mr. Starr helped Sue Flinn off the car, she clung to his arm, or he to her, and the witness could hardly tell which. The station platform was slightly inclined downward, at the rate of about a half an inch to the foot from the station house toward the railroad track. Another witness testified that the little girl fell off the platform between the forward trucks of the car and the platform, and that.“had she lain still, she would have been perfectly safe.” Probably, however, she fell off the platform further back than the forward trucks. From the evidence, it also appears that, from the time the child fell until after she was injured, all was confusion. Different signals were given to the engineer in quick succession, to stop the train and to move ahead, and he did not know what to do. He did not know and could not tell what was actually transpiring. When the little girl fell, the conductor and brakeman signaled the engineer to stop the train, and the engineer by the use of the air brakes checked the train and nearly stopped it. But immediately there came another signal to the engineer to move the train ahead, and he obeyed this signal. This signal, however, was given by a passenger, ■ and was given by means of the passenger’s pulling the bell-rope. The engineer, however, supposed it was from the conductor. Whether this signal was given before or after the injury to the little girl, cannot now be told. Other signals, however, immediately following this signal to stop the train, the engineer stopped it as soon as it could be stopped. It was stopped by the use of the air brakes. The train moved about forty feet or more after the first signal was given before it was finally stopped. And then the train-men, seeing that the accident had already occurred, put the train in motion and passed on toward Atchison. The train could have been stopped within ten feet, according to the testimony of one witness, if all the appliances for stopping the train had been persistently used. Probably, however, this • could not have been done. There were several persons at the station at the time the accident occurred, but they did not, and indeed could not, do much, if anything, to save the child, for they did not know of the danger until the child fell, and then it was too late. Everything that transpired, from the time when the child first left the car until it was run over, and injured, occupied but a few seconds of time — less time, probably, than it takes to tell what happened. The railroad track at that station was slightly curved, and the car leaned slightly over the station platform. The principal question in this case is, whether the forego ing facts constitute any cause of action in favor of .the plaintiff and against the defendant. The question was. raised in the court below, in various ways: by a demurrer to the plaintiff’s petition, by a demurrer to the plaintiff’s evidence, by a motion for judgment for the defendant on the special findings of the jury, and by a motion for a new trial. Upon the foregoing question the court below held in the affirmative, but upon just what ground or grounds it so held, it is difficult for us to tell. Among others, the court gave the jury the following instructions: “2. That upon the evidence in this ease the court instructs the jury that the plaintiff, Sue Flinn, was not a passenger on •defendant’s train at the time of the alleged injury. “ 3. That the defendant was not bound to stop its said train at all at Iowa Point, as to the said plaintiff, to allow her to get off from such train. “4. Nor would it be negligence of itself in defendant that its said train was not stopped at Iowa Point before the plaintiff, Sue Flinn, attempted to get off from said train.” From other instructions given and refused, it seems that the court below did not consider that the plaintiff at any time sustained that high and peculiar relation toward the defendant which we usually designate by the word “passenger ; ” and the court held that she was not, in fact, entitled to any of the rights or privileges of a passenger, but further held that she did sustain a relation toward the defendant, which required it and its employés, at all times, from the time when she first entered its car until she was finally injured at Iowa Point, to exercise that degree of care and diligence which is usually denominated ordinary care. And from the fact that the court below overruled the defendant’s demurrer to the plaintiff’s evidence, and sustained a verdict and findings against the defendant, and rendered a judgment against the defendant on such verdict and findings, the court below must have considered that the defendant, at some time, did not exercise ordinary care, and that its failure to do-so caused the injury complained of. Or, in other words, the •court below must have considered that the defendant, at some time, was guilty of ordinary negligence, which contributed directly and proximately to the final injury of which the plaintiff now complains. But just where the court below would locate this negligence we cannnot tell, and probably it cannot well be told. The defendant carried the plaintiff safely from White Cloud to Iowa Point, and whether we consider her strictly as a passenger or as an innocent little girl on the train, with no particular rights there, but still innocently there, or whether we consider her as on the train in the nature of a tramp, attempting to steal a ride, still, certainly no negligence can be imputed to the defendant prior to the time when its employés first perceived that the plaintiff was in actual danger. The defendant did not know that the plaintiff wanted to get off the train at Iowa Point. And by the word “defendant,” we here intend to include, not only the defendant proper, but also every one of its agents and employés. And as to the plaintiff, the defendant was not bound to know that she wanted to get off the train at Iowa Point. As to her, it was not bound to stop the train at that place, or to have a station there, or a platform there, or indeed any other accommodation. And if it did stop the train at Iowa Point, it was under no obligation to the plaintiff to wait for any particular length of time. It was under no obligation to the plaintiff to wait for a .single second of time, or for any conceivable portion of a second. Indeed, it was under no obligation to the plaintiff to know, or even to suppose, that she wanted to get off the train at that place. A railroad company is not bound to stop a train at a station, even for a passenger, unless the passenger wants either to get off’ the train at such station, or to get on, and unless the company has received proper notice thereof. But in the present case, the train was stopped a sufficient length of time at Iowa Point for all passengers to get off and to get on safely, and it was only the tardiness of the little girls that delayed their getting off until the train was dangerously in motion. When the conductor passed through the car collecting fare, he had a right to suppose that they were in the care of Mr. Painter. And when he and the other employés of the defendant saw Mr. Starr helping them to get off the car, he and the other employés of the defendant had a right to suppose that they were in the care of Mr. Starr. And at all times, the train-men had a right to suppose that they were in the care and custody of some person competent and able to take care of them. Indeed, no person ought to be required to suppose that a little girl, of the age of the plaintiff, would be put on a train ot cars without her safety being first insured, by placing her in the care and custody of some person able to take care of her. Now Mr. Starr was a man fifty-five years of age, and apparently competent to take ample care of them; and the trainmen, and others standing near by, were, from appearances, amply justified in supposing that they needed no other help than his. If Mr. Starr had stepped off the car platform and upon the station platform with the plaintiff, probably she would not have fallen; and if she had not fallen, the accident certainly would not have occurred. No danger was apparent until she fell, and then it was too late for help. As soon as she touched the station platform she fell, and rolling off, and throwing her legs in front of the hind trucks, they were immediately crushed. As soon as the danger became apparent, it was of course the duty of the train-men, and of all others standing near the plaintiff, to save her if they could. But probably nothing could then have saved her. The conductor signaled to stop the train, and the engineer, who in fact did not know what had happened, obeyed all signals. Unfortunately, however, a passenger, by mistake, pulled the bell-rope, so as to signal the engineer to go ahead, which created some confusion. But probably the injuries could not have been prevented if no mistake had been made. And it is not shown that any of the defendant’s employés made any mistake. They in fact did all they could to prevent the accident. Now upon what ground can it be held that the'defendant is liable? Actions are founded only upon wrongs. A cause of action can exist only where some right has been violated. A cause of action founded upon negligence can exist only where the defendant owes some duty to the plaintiff, and wrongfully fails to perform that duty. Now what rights had "the plaintiff, which the defendant violated? What duty did the defendant owe the plaintiff, which it failed to perform? What obligation was the defendant under to the plaintiff, which it disregarded? There can certainly be no room to claim that prior to the plaintiff’s fall, the defendant owed her any duty, or was under any obligation to her which it failed to perform. Up to that time it infringed upon no rights of hers, and committed no breach of duty or of obligation; and up to that time it could not have anticipated that any such accident as that which did occur, was likely to occur. The defendant was always under obligation to the plaintiff not to injure her if it could possibly avoid it. We are all under such an obligation to one another. But being under such an obligation does not render us liable for accidents which we could not anticipate, and which we could not avoid. When the danger to the plaintiff became apparent, it was the duty of the defendant to avoid all injury if it possibly could; and if it did not then put forth every reasonable exertion to avoid the injury, it is liable; but if it did then put forth such exertion, it is not liable nor responsible, either in morals or in law. The operation of a railroad in a legal and proper manner is a lawful and legitimate business. A railroad company cannot be made responsible merely because an accident occurs in the operation of its road. The proper and legitimate •exercise of a lawful business can never furnish the basis of a cause of action. No person can be held responsible for an unforeseen accident which incidentally occurs while he is in the rightful and proper exercise of his lawful business. As we have before stated, every cause of action must be founded upon a wrong; and it has never yet been held that the mere ■operation of a railroad is wrong. With these views, we cannot think that the defendant is liable in this ease. We do not think that any wrong has been •shown on the part of the railroad company. Its employés did -everything that could reasonably have been done to avoid the .accident that occurred. It could not anticipate that the plain •tiff would fall'as she did, and after she fell the railroad company could not save her. As we have before stated, it was not the fault of the railroad company that the little girl was .alone, or rather in company with another little girl, without any competent protector to take care of her, or to see her ■safely off the train, and at the right time. If the foregoing views are correct, it follows that the court ■below committed error. We think that it committed error in overruling the defendant’s demurrer to the plaintiff’s evidence, and that nothing afterward transpired to cure this error. We also think that it erred materially in some of its ■other rulings. No cause of action was proved at any time in the case. The court below should have sustained the defendant’s demurrer to the plaintiff’s evidence; but failing in that, the jury should have found a verdict in favor of the ■defendant and against the plaintiff. The general verdict and some of the special findings of the jury were clearly against the evidence,' and they should not have been allowed to stand. For instance, the jury found that no person, other than an ■employé of the defendant, pulled the bell-rope, so as to give .a signal to the engineer to go ahead. This finding was .against all the evidence upon the subject. Other special findings are fully as bad. The jury, however, conceded that the •conductor took the usual course to stop the train, and that Mrs. Armstrong was negligent in putting the little girls on the train without any person to take care of them. The judgment of the court below will be reversed, and the cause remanded for further proceedings; and while perhaps it would be proper for us to order judgment to be rendered in favor of the defendant, and against the plaintiff, for costs, yet we are not entirely clear upon that question, and giving the plaintiff the benefit of our doubts, we have concluded to order that a new trial be granted in the case, as asked for by the defendant. In the Martin Flinn case, the ruling of the court must be affirmed; but the defendant should be allowed to answer if it desires to do so. All the Justices concurring.	[ -80, 104, -75, -97, 62, 104, 34, 24, 97, -95, -92, 83, -55, -55, 5, 125, -18, -83, -47, 106, -14, -73, 7, -94, -110, -109, 115, -60, -75, 72, 100, -42, 76, 50, 74, 93, 102, 74, -59, 28, -116, 4, -87, -32, 27, -118, 56, 123, 66, 79, 113, 42, -13, 43, 28, -61, 41, 47, -1, 41, -62, -15, -117, 7, 117, 18, 3, 4, -98, 3, 72, 62, -104, 49, 74, -8, 115, -96, -126, -11, 105, -23, 12, 102, 103, 33, -99, -81, 108, -100, 47, 119, -83, -25, -102, 24, 43, 69, -74, -103, 53, 84, 7, -6, -18, 13, 12, 60, 0, -117, -106, 9, 111, 50, -109, 23, -21, -93, 50, 113, -39, -78, 77, 70, 56, -103, -105, -66 ]
The opinion of the court was delivered by Horton, C. J.: On the 23d day of February, 1872, the Lawrence & Topeka Railway Company instituted proceedings to condemn a right of way over land belonging to D. M. Moore, the defendant in error. On May 28th, 1872, the report of the commissioners was filed in the office of the county clerk of Douglas county, and thereby $125 was awarded for the land sought to be taken. On June 3d, 1872, Moore filed an appeal bond, and duly appealed from the award of the commissioners to the district court. In order that the railway company might take possession of and use the land pending the appeal, it filed a counter bond as provided for by the statute, on September 31, 1872. At the November term of 'court, and on December 7th, 1872, the parties appeared in court, and by stipulation, entered of record, agreed that Moore should receive from the treasurer of Douglas county the condemnation-money deposited for his benefit, without prejudice to the action then pending, but said amount was to be held as a payment on any judgment thereafter rendered in his favor. On May 28, 1877, the district court of Douglas county ordered the venue in the cause changed to Leavenworth county; on June 29, 1877, the clerk of the district court of Douglas county made out what purports to be a transcript of the case, and in this transcript included the copy of a petition filed in the district court of Douglas county on November 17,1872, by one Mary A. E. Moore against the railway company, and an answer thereto filed by the company, April 24, 1877. The said petition alleged that Mary A. E. Moore was, on April 1,1872, had previously been and has ever since continued to be, seized of the land sought to be taken by the company; that proceedings had been taken by the company to condemn the same, and she demanded judgment for damages in the sum of $5,500. The answer stated four sep arate defenses, as follows: First: A general denial. Second: Set up the proceedings to condemn; the award to D. M. Moore, and the payment of this sum to the county treasurer; that the plaintiff received said sum so awarded and paid to the treasurer, and that by reason of such payment, she has no further right to prosecute this action. Third: That the said D. M. Moore, who took the appeal, and the plaintiff sold and conveyed all their interest in the land to J. M, Ewing and Sarah W. Ewing on December 12, 1872, and that by reason of such sale and conveyance the plaintiff had no further right to prosecute this action; that the company transferred its franchises, rights, privileges and right of way to the Kansas Midland Railroad Company, prior to the 21st day of April, 1874; and that afterward, on the 21st day of April, 1874, the Kansas Midland Railroad Company and J. M. Ewing and Sarah W. Ewing (then owners of the land in question) entered into an agreement and arbitration, in and by which agreement the railroad company was to concede a portion of the land theretofore condemned, to the Ewings, and the compensation for the other portion so retained and appropriated was to be left to arbitrators therein named;, that if these arbitrators could not agree, the amount should be left to an umpire; that the arbitrators could not agree; that an umpire was selected; that he made an award of $75 in addition to the condemnation-money already received; a tender, and a readiness to perform the award. Fourth: Set up title in the city of Lawrence to the land sought to be taken. On May 30, 1878, the transcript was filed in the clerk’s office of the district court of Leavenworth county. At the September term of that court for 1878, and on September 16, the case, of D. M. Moore, appellant, against the Lawrence & Topeka Railway Company, appellee, was called for trial; the appellant appeared by his attorney, Lucien Baker, and the appellee failed to appear; a jury trial was had, evidence heard and instructions given; the jury brought in a verdict for $1,000; the court rendered a personal judgment against the company for that sum and costs, and awarded execution therefor. Error is alleged in the proceedings of the court below, in this: “1. That the petition ón which the case was tried shows that Mary A. E. Moore, who always owned the land, never took an appeal, nor did any one who had any interest in the land ever take an appeal; that in consequence of this failure to take an appeal, neither she nor any one else had a right to have the award of the commissioners .reviewed.' “2. That under the pleadings, the court had no right to render any judgment whatever in favor of D. M. Moore; the issues upon which alone the case could have been tried, limited a recovery to Mary A'. E. Moore, the owner of the land. By the pleadings, Mary A. E. Moore alleged herself to be the owner of the land, and so broad and sweeping were her allegations of ownership that they utterly .excluded D. M. Moore from any interest whatever in the land. The court had no more jurisdiction to make a finding in favor of D. M. Moore than in favor of anyone else. While this case might have been tried without pleadings, pleadings were, however, filed in the cause by those having authority in the cause, and by consent of court; these pleadings presented distinct issues; these issues must have been submitted to the jury, and the verdict must be in accordance with these issues, or it cannot stand. “3. The court had no jurisdiction or power to render a personal judgment against the company, this case being an attempted appeal from the award of the commissioners.” The learned counsel presenting to us these alleged errors, misinterprets (unintentionally, we suppose) the record as to objections Nos. 1 and 2. The transcript shows, that prior to the change of venue to Leavenworth county, Messrs. Thacher & Banks were the attorneys for D. M. Moore. The petition of Mary A. E. Moore was signed by Messrs. Barker. & Allen as her attorneys. The answer was filed with the consent of Barker & Allen. No pleadings in the case of D. M. Moore were ever filed. No motion was made to compel him to do so. It nowhere appears that D. M. Moore consented to the filing of the petition of Mary A. E. Moore, or the .answer thereto. It nowhere appears that the court authorized Mary A. E. Moore to intervene in the-case, or file a petition, or to be substituted as the plaintiff, or to have the appeal prosecuted in the name of D. M. Moore for her benefit. Neither is the petition of Mary A. E. Moore nor the answer of the railway company entitled in the case of D. M. Moore. The petition and answer, it is true, are on a part of the transcript in this court, and are certified to us in the case of D. M. Moore v. The Railway Company; but the district court of Douglas county did not recognize the petition of Mary A. E. Moore as affecting the case of D. M. Moore. According to the transcript, the petition was filed November 17, 1872; yet, on December 7 ensuing, the attorneys of D. M. Moore appeared in court with the attorney of the railway company and disposed of the condemnation-money without notice or consent of Mary A. E. Moore, or her attorneys. The district court of Leavenworth county entirely disregarded such petition, as it disposed of the appeal of D. M. Moore without a petition or a bill of particulars, and without reference to Mary A. E. Moore. In view of the record, we may treat the pleadings in the case of Mary A. E. Moore against the railway company as not superseding or. otherwise affecting the appeal of D. M. Moore, and the action of said appellant stands in this court, and stood in the district court of Leavenworth county, as though the petition and answer in the action of Mary A. E. Moore had never been filed. It would have been better, perhaps, if these pleadings had been stricken from the files of the case of D. M. Moore; but as they have never been permitted, by either of the district courts having jurisdiction of the matter, to interfere with the appeal of D. M. Moore, we cannot now permit these pleadings to prejudice his interests. Perhaps some order of the district courts or written agreement of the parties, or other stipulation, has been omitted from the transcript which, if presented, might materially change the character of this action and the rights of the parties connected with it, but we have no intimation of any such omissions from the counsel of the plaintiff in error, and no suggestion of any diminution of the record from him; and, therefore, as we must pass upon the proceedings before us solely on the record, we are compelled to overrule objections one and two. The third exception is well taken. It was error for the trial court to render an ordinary personal 'judgment against the railway company. The object of appellate proceedings in this class of cases, is simply to correct the assessment of the commissioners. (St. L. L. & D. Rld. Co. v. Wilder, 17 Kas. 239.) Counsel for defendant in error suggests in his brief, that the judgment has been modified to comply with the law in that regard. The record before, us does not disclose the correction, and no copy of the subsequent proceedings of the district court of Leavenworth county has been filed in this court showing any correction. . The case will be remanded to the court below, with the order that the judgment be modified in accordance with the views expressed herein. If appellant received $125 under the stipulation of December 7,1872, such sum must be credited on the judgment after its modification. The costs in this court will be divided. All the' Justices concurring.	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The opinion of the court was delivered by Valentine, J.: In this action, the plaintiff below, Sarah A. Wills, filed her petition in the district court, setting forth the following, among other facts: From September 15, 1872, up to December 14,1878, the plaintiff and Thomas H. Wills, were husband and wife, at which latter date, Wills died intestate, leaving the plaintiff and the defendants, Urana E. Leonard; W. L. Wills and Enola J. Grass, children of the intestate, as his sole and only heirs. During the existence of the marriage relation between the plaintiff and said Thomas H. Wills, and prior to March 14, 1874, the plaintiff furnished to her husband various sums of money which belonged to her in her own right, with a portion of which money he purchased lots number 4 and 5, in block number 16, in the city of Independence, in Montgomery county, Kansas, taking the deed therefor and the title thereto in his own name. After such purchase, the plaintiff and her husband took possession of the lots and occupied the same as their homestead, until his death, and the plaintiff still occupies the same as her homestead. On March 14, 1874, said Wills, in consideration of the foregoing facts, and of the expressed consideration of $2,000, attempted to convey to his said wife the legal title and all his right, title and interest in and to said lots, by executing and delivering to her a deed of general warranty, but failed to so convey said lots, by failing to insert in the deed of conveyance a complete and full description of the lots intended to be so conveyed. The description of the lots as inserted in the conveyance is.as follows: “All that tract or parcel of land situated in the county of Montgomery and state of Kansas, and described as follows, to wit: Lots number four (4) and five (5) in block number . . . with the appurtenances, and all the estate, title and interest of the said party of the first part [Wills] therein.” The plaintiff also states in terms in her petition, “that, at the time of the execution and acknowledgment of said deed, said Wills did not know the number of the block in said city of Independence, in which said lots are situated, and then and there instructed the notary who took said acknowledgment, to ascertain and insert the number of said block in which said lots are situated, but that the said notary negligently and carelessly neglected and omitted to do the same, and still neglects and refuses to do the same.” The plaintiff also states in her petition, that the defendants are now claiming to own an undivided one-half of said lots as the heirs of said Thomas H. Wills. The plaintiff prays in her petition that said description be reformed by inserting the number of the block and the name of the city in which said lots are situated, so as to make the description a good and complete description of the lots intended to be conveyed by said deed, and that the defendants be barred and perpetually enjoined from ever setting up any title or claim to said lots, and for such other and further relief as may be equitable and proper in the case. The defendants demurred to the plaintiff’s petition on the ground that it did not state facts sufficient to constitute a cause of action, etc. The court below overruled the demurrer, and then the defendants brought the case to this court for review. We. suppose that the only question in the case is, whether the plaintiff is entitled to any relief under the circumstances of this case. That is, is she entitled, under the circumstances, and in any manner, to have her claim to said land adjudicated and declared to be superior and paramount to that of the defendants? Is she entitled to have her said deed of conveyance reformed as she desires? Or is she entitled to a specific performance of the original parol contract entered into between herself and husband in pursuance of which contract said deed was intended to be executed, and of which contract said deed contains nearly all the terms, and is nearly full and complete evidence? Or is she entitled to.quiet her title and possession to the property as against the defendants, and to have them perpetually enjoined from ever interfering with her title or possession ? If she is entitled to any one of these remedies, we suppose the court below ruled correctly in overruling said demurrer. Is she entitled to any one of them? It would seem that she is not entitled to have her deed reformed; for the defect therein cdntained is not from accident or mistake, but from intention, with a full knowledge of all the facts. That is, the parties did not know, at the time said deed was executed, what the number of the block in which said lots are situated is, so they intentionally left said number blank, with the understanding that the blank should afterward be filled up by the notary public who took the acknowledgment of the grantor to the execution of the deed. As we understand, a deed can be reformed by a court of equity only where the parties through accident or mistake have failed to embody in the deed the exact terms and conditions which, by their previous contract, should have been embodied in the deed. We would think that the plaintiff would be entitled to a specific performance of her original contract with her husband. Originally, that contract was in parol; but when said deed was executed, all the principal terms of such contract were reduced to writing, by being embodied in said deed, and the instrument was duly signed by the party to be charged. And an instrument, void as a conveyance, is often considered sufficient, upon which to found an action for specific performance, or to grant other proper equitable relief. (Knaggs v. Mastin, 9 Kas. 548; Butler v. Kaulback, 8 Kas. 676, and authorities there cited; Welsh v. Usher, 2 Hill Ch., S. C., 168; Robeson v. Hornbaker, 2 Green Ch., N. J., 60, which is nearly exactly applicable to the case at bar; Stewart v. Brand, 23 Iowa, 477; and see authorities cited in Miller v. Davis, 10 Kas. 550, et seq.) Besides, the plaintiff has been in the actual possession of the property in controversy, occupying the same as her homestead and claiming the same as her own ever since said deed was executed, over four years of which time she occupied the same with the consent of the said.grantor, or, perhaps, rather the intended grantor. But we do not think that it is absolutely necessary that the plaintiff should have an action for specific performance in order to sustain the ruling of the court below. She being in the actual possession of, the property, and claiming title thereto, has the right to have her title quieted — provided she has a right to the title — under any rule or rules of law or equity. (Civil Code, § 594.) And that she has such right to the title to the property, we think is clear beyond all reasonable doubt. It was her money that purchased the property. It was agreed that the title should be conveyed to her. There was an attempt made to so convey the title, and the attempt failed, merely from a failure to state in the deed of conveyance the number of the block arid the name,of the city in which such property is situated. She has been in the actual possession of the property for years, occupying the same as her homestead, claiming the same as her own, and a large portion of such time with the consent of the person in whom the legal title (as contradistinguished from the equitable title) was vested. That she is entitled to the title to the property, see authorities above cited, especially the cases of Robeson v. Hornbaker, and Stewart v. Brand, and also cases cited by defendant in error. If the judgment of the court below does not correspond in form with the opinions expressed by this court, it may be modified so- that it will. In substance, however, the judgment of the court below will be' affirmed. All the Justices concurring.	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The opinion of the court was delivered by Valentine, J.: This was a criminal prosecution for an assault with intent to kill. The State of Kansas was the plaintiff, Chas. E. Scott was the defendant, and Herman Richner was the person alleged to have been assaulted. The defendant was convicted and sentenced, and he now appeals to this court. That the defendant shot Richner with a gun, loaded with shot, there can be no doubt; but still, the defendant claims that the transaction did not under the circumstances amount to a felonious assault. Indeed, he claims, that it did not amount to any offense at all. He claims, among other things, that he did the shooting in defense of his own person; and* whether the shooting was in self-defense or not, was one of the principal questions in the case. After the prosecution had introduced its evidence, and rested, the defendant introduced . his own wife as a witness in his own behalf, and she testified as follows: “ I was at my home, on what is known as the Hile place, on the 12th of April, 1878, about noon. I was standing near the window on the west side of the house, near the southwest corner. I saw a wagon with mules drive past the west side of the house, and Herman Richner was in the wagon. He stopped, and, rising from the seat, said: ‘ Scott, I have got my land and all my property back from VanNatta, and if you do not leave here, I will kill you right here.’ Whilst he was saying this he drew a revolver and pointed toward the south side of the house. I turned from the window, where I was working some butter, and went towards the door, and as I went there I heard the report of a gun, or pistol; I do not know who shot it off. I did not see a gun in the hands of anyone. I went out of the house and there were some words passed between myself and Richner. I did not see that anything ailed him, and he soon drove off.” Witness was then asked by defendant: “Prior to this day, state when, if ever, you saw any attack made by Herman Richner in your own house with a deadly weapon upon your husband, and what threats Richner then made?” The defendant here offered to prove by the witness that some months prior to the alleged offense, Herman Richner, at the house of the defendant, did make an assault upon the defendant by means of a heavy iron rasp, a deadly weapon, did wound the said defendant over the head, threatening to kill him, and would have done so unless prevented; to which offer the plaintiff objected that it is irrelevant, and the court sustained the objection; to which ruling of the court the defendant then and there excepted, and still does except. And thereupon the defendant asked the witness: “State whether or not you know the character of Herman Richner for turbulence and violence, and the state of his feelings toward the defendant?” The defendant here offered to prove that the prosecuting wit-mess, Herman Richner, was a turbulent, violent, quarrelsome and dangerous person, who was in the habit of carrying deadly weapons, and was at enmity with the defendant of long standing; had had numerous encounters with the defendant, and made frequent threats which had been communicated to him. To this the plaintiff objected that it is irrelevant, and the court sustained the objection of the plaintiff; to -which ruling the defendant then and there excepted, and still does except. It was the defendant who fired the gun which was heard by the defendant’s wife, and it is that shooting for which the defendant is now prosecuted, and for which he is now charged with having committed an assault with intent to kill. We think the court below erred in excluding the said evidence of the defendant’s wife. Said evidence (along with the other evidence in the case, and being corroborative of much of such other evidence) was competent, not only as tending to show that Richner was in fact about to commit a felony upon the person of the defendant, (State v. Brown, 22 Kas. 222,) but also as tending to show that the defendant believed that Richner was about to commit such felony. (State v. Howard, 14 Kas. 173.) If all the facts which the defendant’s evidence tended to prove were true, the defendant undoubtedly had a right to defend himself with a gun, even to the taking of the life of Richner. In many cases, it is not competent for a defendant in a criminal prosecution to show prior transactions or prior troubles, but in this case we think it was. In this case, we think it was competent for the defendant to show the prior assaults and prior threats made by Richner with regard to himself; for such evidence not only tended to show the nature and character of Richner’s acts at the time the alleged assault was committed, but it also tended to show the nature and character of the defendant’s opinions, beliefs, and intentions. ' We think that the said excluded evidence should have been submitted to the jury. It will be noticed that no objection was urged against the form of the questions asked. The only objection made against the evidence was, that it was “ irrelevant.” We think it was relevant. We do not think that it is necessary to consider any of the other questions raised by counsel for the defendant. The judgment of the court below will be reversed, and cause remanded to the court below for a new trial. The defendant will be returned from the penitentiary, ánd delivered over to the jailer of Republic county, there to abide the order of the district court. All the Justices concurring.	[ -15, -17, -8, -97, 58, 96, -22, -72, 114, -30, -92, -13, -23, -53, 1, 105, 100, 15, 85, 105, -10, -105, 23, -95, -14, 115, 81, -43, -77, -52, -26, -57, 8, 114, 74, 85, 38, -118, 65, 92, -124, -116, -87, -32, -46, 64, 32, 123, 102, 10, 49, 46, -13, 42, 28, -41, 9, 40, 75, -68, -16, -79, -54, -105, -116, 18, -77, 34, -116, 3, -40, 58, -104, 53, 0, -4, 115, -90, -128, 116, 109, -119, 76, 102, 99, 33, 29, -56, 40, -119, 47, 114, -99, -89, 16, 72, 3, 44, -105, -101, 119, 116, 7, -10, -25, 30, 24, 108, 7, -33, -76, -103, 15, 48, -110, -8, -29, -91, 36, 97, -51, 34, 92, 65, 112, -101, -97, -74 ]
The opinion of the court was delivered by Valentine, J.: This was an action of replevin brought by P. J. Pretz against J. P. Partonier, for the recovery of some hogs. The action was commenced before a justice of the peace of Wyandotte county, where judgment was rendered in favor of the plaintiff. The defendant then appealed to the district court, where judgment was again rendered in favor of the plaintiff. The defendant then brought the case to this court on petition in error. . The jury that tried the case in the district court, rendered a general verdict in favor of the plaintiff below, and against the defendant below, and also made certain special findings of fact. The verdict and findings are as follows: VERDICT. We, the'jury, find for the plaintiff; and find the value of the property to be eighteen dollars. FINDINGS. 1. Did the defendant know whose hogs he had taken up at the time demand was made by the witnesses Goddard and Obermann? Answer: Yes. 2. Did the plaintiff offer to pay the.cost of taking up the hogs and expenses of keeping them over night? Ans. Yes. 3. Were the hogs in question upon premises of said defendent on or about the 1st day of August, 1878 ? Ans. Yes. 4. Did the defendant take up said hogs as strays upon his premises? Ans. Yes. 5. Did the defendant advertise said strays by posting up three printed or written notices containing a full description of said strays, in three public places in Shawnee township, Wyandotte county, Kansas, immediately upon taking up the same? Ans. Yes. <> 6. Was the plaintiff, by reason of the notices posted by the defendant and the description of the hogs therein con tained, apprised of the whereabouts of the hogs in question ? Ans. Yes. 7. Was this action commenced before M. B. Newman, justice of the peace, before the expiration of ten days after the said hogs were taken up and advertised by said defendant? Ans. Yes. 8. Did the plaintiff, before commencing this action, prove his ownership of said hogs before a justice of the peace of Wyandotte county, having first notified the defendant in writing of the time and place, when and wherl, and the justice before whom said proof would be offered? Ans. No. 9. Was the agreement between the defendant and Robert Martin, to cultivate said field and make a crop thereon, and receive as compensation for his labor a portion of said crop? Ans. It was. 10. What was the agreement between the defendant and Robert Martin concerning the cultivation of said field ? Ans. That said Robert Martin was to plow the 60 in three times and split the middles, and receive three-fifths of the crop. 11. Did the plaintiff and defendant enter into an agreement whereby it was agreéd that the partition fence between the fields of said parties should-be taken away, for the purpose of preparing the land for cultivating a hedge, and that each party should keep his stock from trespassing upon the premises of the other? Ans. Yes. 12. Was there any agreement between the plaintiff and defendant in reference to said fence, and if so, what was the agreement? Ans. There was; that the defendant was to take away the fence, preparatory to cultivating the land for a hedge. 13. Did the defendant, at the time he took up the hogs in question, know to whom said hogs belonged? Ans. Yes. The only question presented to this court is, whether the foregoing verdict and findings will support the judgment rendered. That the general verdict, if taken alone, would support and sustain the judgment, will be admitted; for in effect, it finds everything in favor of the plaintiff, and everything against the defendant. But possibly the special findings may differ from or contradict the general verdict in some particulars, and if they do, they will control and modify, or destroy, the general verdict. The real question then is, whether the special findings are so inconsistent with the gen ■eral verdict that they will overturn its effect, or destroy its force. We do not think that the special findings are thus inconsistent with the general verdict. They do not question "the plaintiff’s ownership of the hogs, and we do not think that they contradict his right to the immediate possession of the property, or that the defendant wrongfully detained the ■same. That the defendant did in fact detain the hogs, is ■clear; and we do not think that there is. anything in the special findings, or elsewhere, that shows that he detained them rightfully; and unless something can be found to,show that he detained them rightfully, the judgment of the court ■below must be considered as correct, for the general verdict found in effect that he detained them wrongfully. The special findings show that the hogs were on the premises of the defendant, that he took them up as strays, and that he advertised them in Shawnee township; but the record does •not anywhere show that the hogs strayed upon the defendant’s premises, or that they were there wrongfully, or against his will. He, or some other person at his instance, may have driven them there. He knew very well whose hogs they were, and they may not have been in any sense strays. Besides, he advertised them in Shawnee township, while there is nothing in the record to show that they were taken up, or were ever even in that township. This suit was commenced in Wyandotte City township. The most of the special findings seem to be irrelevant, for the reason, as we suppose, that nothing was put into the record to explain them. The record is very meager. There is nothing in the record to show that the defendant ever filed any pleading, and no portion of the evidence, or of the instructions of the court to the jury, has been preserved. The judgment of the court below will be affirmed. All the Justices concurring.	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The opinion of the court was delivered by Brewer, J.: The defendant having been charged with the murder of one Benjamin Ball, tried, and found guilty of murder in the second degree, brings the case here on appeal, and says the court below in the trial erred in the following particulars, as appears from the record filed in this court, to wit: “ 1st. Permitting J. W. Ady, Esq., to appear as attorney on behalf of the state. “2d. Permitting said J. W. Ady, Esq., to continue in the case after he had become deputy county attorney, and having been employed by, and received fees from, the father of the deceased. . “3d. Admitting in evidence the statement made by deceased in a preliminary examination in a different prosecution, for an offense different from the one for which he was being tried, the defendant himself not being present at said preliminary examination. “4th. In admitting the alleged dying declarations of the deceased, without sufficient foundation; without requiring the best evidence; and because deceased’s testimony under oath had been given to the jury.” The first two objections may be considered together. It appears that Mr. Ady took part in the trial of the case at the request of Mr. Reid, the county attorney, and under employment from the father of the deceased, Benjamin Ball. After the state had rested, and during the examination of defendant’s witnesses, it was disclosed that pending the trial, Mr. Ady had been appointed deputy county attorney. It does not appear that the county attorney left the case and turned it over to Mr. Ady to try, nor that he gave up any control of it, but simply that as the defendant appeared defended by three counsel, he requested Mr. Ady, whose compensation came from the father of the deceased, to assist him in the trial. Neither does the record disclose anything in the bearing and conduct of Mr. Ady ungentlemanly, unprofessional, or in any respect trespassing upon the rights of the defendant, or the proprieties of a court room. The case is rested upon the simple proposition that it is error to permit the county attorney to be assisted by counsel whose compensation comes from parties personally interested in or affected by the wrong complained of. The statutes make it the duty of the county attorney to appear in the district court and prosecute all criminal cases. There is also this section, (Comp. Laws 1879, p.299 §140:) “No county attorney shall receive any fee or reward from, or on behalf of, any prosecutor, or other individuals, except such as are allowed by law for services in any prosecution or business to which it shall be his official duty to attend, nor be concerned as attorney or counsel for either party, other than the state or county, in any civil action depending upon the same state of facts upon which any criminal prosecution commenced, but undetermined, shall depend.” Now, that the general purpose and scope of these provisions was to substitute a public for a private prosecutor, may be conceded, but that they have the effect claimed for them by the defendant of preventing the county attorney from availing himself in the trial of a case of any assistance offered by parties personally wronged by the crime, we cannot believe. It is true th'at the supreme court of Michigan, in the case of Meister v. The People, 31 Mich. 101, seem to as sent to such a claim and take that view of the effect of statutory provisions like ours. See also 38 Mich. 250; People v. Hurst, 41 Mich. 328. Unquestionably a private individual has no longer any right to prosecute another for crime, no .right to control any criminal prosecution when once instituted. A criminal prosecution is a state affair, and the control of it is in the public prosecutor. Whether the district court may permit private counsel to appear in any case, notwithstanding the objections of the county attorney, and on the other hand, whether the court may prevent any such appearance, although requested by the county attorney, are questions not now before us. It may be that the court, having a due regard for the proper administration of the law, and to protect an accused from over-zealous prosecution or a feeble prosecutor from being overborne by wealth, talent and influence, may prevent or permit private counsel. Here, the county attorney requested and the court permitted. If such assistance be ever permissible, there was no error in permitting it in this case. Certainly such assistance is not in terms prohibited. Nothing in fact is said about it. Is it not an interpolation to read a prohibition? . Again, full force is given to the statute without any such prohibition. The purpose of a public prosecution is to prevent the use of the criminal law to gratify private malice or accomplish personal gain. This purpose is fully subserved when the control of the case is with the county attorney. As to the argument that if private counsel be permitted, the county attorney will be influenced by their wishes and defer to their views and thus in effect a private be substituted for a public prosecution, a satisfactory reply is, that if he is disposed to so yield and defer, he will be as apt to do it when those suggestions and wishes are made known to him outside the court room, and that there is less danger of wrong by permitting private counsel to appear and act openly in the presence of the court, than by shutting them out from any open participation in the trial and leaving them to their private and secret suggestions to him in his'office. Publicity prevents wrong, and the courts can alway check undue zeal. Further, public justice sometimes requires that the public prosecutor shall have assistance, and that too when the assistance can only come from private sources. The county attorney may be crowded with business, and unable to give due attention to the preparation or trial of the case. He may be young and inexperienced, and the defendant, wealthy or with wealthy friends, confronts him with a long array of the ablest and most experienced counsel. Neither he nor the court nor both together can employ counsel at the public expense. No one is expected, or will be apt to waste time and labor without compensation. Parties interested in, or affected by the crime, may stand ready to furnish him the assistance he needs. Does not public justice require that he be permitted to avail himself of such offered assistance? If the argument of defendant were correct, the county attorney, although needing and wishing assistance, could neither employ it, nor accept it when employed by others. We think the true construction is, to take the statute as it reads, as prohibiting the public prosecutor from accepting private compensation and giving him the control of all public prosecutions, leaving to him a discretion as to the matter of accepting offered assistance, subject to the power of the court to interfere and prevent any oppression of the defendant, and holding him personally responsible for any violation of the statute or malfeasance in office. It may be conceded that the same rule as to accepting compensation from private parties applies to the deputy as to the principal officer, and that the appointment of Mr. Ady as deputy should not have been made pending the trial. But is that such an error, or rather is the continuance of Mr. Ady in the trial after the appointment, such an error as compels a reversal? We think not. The appointment was probably made from a mistaken notion as to the right to - accept the services of privately-employed counsel, and to correct any error in that respect. It does not appear to have been made, or at any rate called to the attention of the court, until after the state had rested, and while the defendant was offering his testimony. No imputation of receiving private compensation is made against the county attorney, the gentleman having charge of the prosecution. His control of the case does not appear to have been questioned. To change counsel pending a trial is generally a mistake. For one to leave is often equally unfortunate. And we cannot see how the mere fact of Mr. Ady’s appointment as deputy county attorney pending the trial, can have wrought any substantial wrong to the defendant; and only substantial errors are to be regarded. We conclude, therefore, that in this respect no substantia] error appears. (The State v. Bartlett, 55 Me. 200; Commonwealth v. Knapp, 10 Pick. 478; Commonwealth v. Williams, 2 Cush. 582.) Passing now to the next error complained of, the facts are these: The deceased, Benjamin Ball, lived some two or three weeks after the injury. Defendant was at first arrested on a charge of an assault with intent to kill said Ball. Upon an examination for that offense, the testimony of Ball was desired. Being unable to move, the justice and counsel for defendant went to his room and took his testimony. The defendant was at liberty to go, but preferred not to, and was represented by his counsel. Upon the death of Ball, the charge was changed to that of murder in the second degree, and Balks testimony thus given on that preliminary examination admitted. Was this error? Of the general doctrine concerning the competency of the testimony of a deceased witness given in a former action between the same parties, counsel make no question, but they suggest three things which, as they claim, remove this from the operation of the general rule. The charge was not the same; the defendant was not present; and there was no trial, but only a preliminary examination. But we do not think that these matters affect the question. Greenleaf, in his work on Evidence, (13th ed., vol. 1, §163,) thus states the rule, and the reason of it: “The chief reasons for the exclusion of hearsay evidence, are, the want of the sanction of an oath, and of any opportunity to cross-examine the witness. But where the testimony was given under oath, in a judicial proceeding in which the adverse litigant was a party, and where he had the power to cross-examine and was legally called upon so to do, the great and ordinary test of truth being no longer wanting, the testimony so given is admitted, after the decease of the witness, in any subsequent suit between the same parties.” And again, in the succeeding section the author adds: “The admissibility of this evidence seems to turn rather on the right to cross-examine, than upon the precise nominal identity of all the parties.” The two essentials, the oath and the right to cross-examine, existed in this case. There' was a judicial proceeding to which the defendant was a party. The testimony was given under oath. The defendant had a right to be present, was in fact represented by counsel, and could have cross-examined fully and without limit or restraint. The act, the subject of inquiry, was the same; and while the charge is different, the difference results from matters occurring after the giving of the testimony, and in no manner changing the actual facts of inquiry. It is said by Greenleaf, in the section from which we last quoted, that “if, in a dispute respecting lands, any fact comes directly in issue, the testimony given to that fact is admissible to prove the same point or fact in another action between the same parties or their privies, though the last suit be for other lands;” and in support thereof a large list of authorities is cited. In the case of United States v. Macomb, 5 McLean, 286, the testimony of a witness since deceased, given on a preliminary examination, was held admissible on the trial of the indictment found for the same offense. See also Davis v. The State, 17 Ala. 354; Kendrick v. The State, 10 Humph. 479; Rex v. Barber, 1 Root (Conn.) 76; Bostwick v. The State, 3 Humph. 344; State v. Campbell, 1 Rich. (S. C.) 214; United States v. Wood, 3 Wash. Ct. Ct. 440; State v. Atkins, 1 Overton, 229. Both reason and authority unite to' support the competency of this testimony. It may be remarked that before it rested and after the introduction of the dying declarations of said Ball, the state asked leave to withdraw this evidence of Ball’s testimony on the preliminary examination, but leave was refused by the court. Whether this was because counsel had doubts of its competency, or of its effect upon the competency of the dying declarations, we cannot tell. But we think the testimony competent, and that the court very properly refused to permit its withdrawal. We pass now to the only other matter discussed by counsel, and that is, the dying declarations. As to these, it is insisted that no sufficient foundation was laid; and, secondly, that the best evidence of such declarations was not produced. These declarations were made some four or five hours before death, and after the doctor had told Ball there was no hope, and that he could not live. They were made in response to an inquiry as to whether he wanted to make any statement concerning the transaction. When advised by the physician that there was no hope, he requested that a Mr. Harris be sent for to come and pray with him. He also said that he was not afraid to die, or was willing to die, and that he forgave the parties who were the cause of his death. Of course the only question is, whether these declarations were made under the sense of impending death. Now the deceased had been lying on his bed for many days, suffering from this wound. The doctor testifies that he thinks that the deceased had given up hope, even before he advised him that there was no hope. When so advised, he requests that arrangements be made for prayers; and then upon being asked, gives his statement of the transaction in which he received his mor.tal wound. It is true that such declarations must be made under a sense of impending death; but, as Greenleaf in his work on Evidence says, “It is not necessary that they should be stated, at the time, to be so made. It is enough, if it satisfactorily appears, in any mode, that they were made under tbp,t sanction; whether it be directly proved by the express language of the declarant, or be inferred from his evident danger, or the opinions of the medical or other attendants, stated to him, or from his conduct, or other circumstances of the case, all of which are resorted to, in order to ascertain the state of the declarant’s mind.” (1 Gr. Ev., 13th ed., § 158.) We think that it was satisfactorily shown by all the surrounding circumstances that these declarations were made under a sense of impending death, and were therefore admissible in evidence. The doctor testified that he made a minute of the declarations, but had lost it. Objection was made to any evidence of those declarations without the production of that minute or memorandum, but this objection was overruled. It is unnecessary to determine whether sufficient evidence was given of loss and search to open the door to parol testimony of the contents of this memorandum as of a lost instrument, for if the ■ memorandum had been produced, it would not have been admissible. It was no official document, but simply a memorandum made by an individual of what he heard another party say. It would have been of aid in refreshing the witness’s memory, but was not of itself admissible testimony. A final objection is made, that these declarations should not have been admitted, because the testimony of the deceased given on the preliminary examination had been. The argument is, that dying declarations are admitted only because of a necessity therefor; that here was no such necessity, for the very testimony of the deceased was already before the jury; that it parallels the case of a deposition which is not admissible when the witness is present in the court room. We do not think the argument sound, for while necessity was no doubt the reason which relaxed the rule excluding 'hearsay testimony in favor of dying declarations, yet it is not indispensable that such necessity exist in each individual case. Thus, though there were many witnesses of the fatal encounter, that fact would not exclude the dying declarations of the deceased. Indeed, the admissibility of dying declarations in prosecutions for homicide has become an established rule of evidence, and such testimony is competent and received independent of any question as to the paucity or abundance of other testimony. These are all the matters presented for our consideration; and in them appearing no error, the judgment will be affirmed. Valentine, J., concurring.	[ -16, 104, -4, -97, 26, 96, 42, 60, 65, -29, -25, 115, -87, -37, 24, 101, -78, 109, 85, 107, -60, -73, 23, 65, -78, -13, -15, -41, -78, -20, -9, -2, 73, 32, 74, -107, -26, 76, -59, 82, -114, -119, -71, 124, -45, 97, 48, 61, 118, 11, 117, 14, -77, 42, 62, -29, 73, 44, 73, -81, 80, -79, -120, -115, 93, 0, -78, -90, -98, -125, -40, 62, -104, -15, 0, -20, 115, -90, -124, -44, 111, -87, 40, 98, 103, 1, -103, -19, -96, -127, 7, 62, -99, -89, -103, 81, -53, 77, -122, -33, 127, 112, 38, -8, -11, 87, 80, 108, 1, -49, -42, -79, -49, 38, -38, -22, -21, 15, 0, 113, -35, 98, 93, 69, 122, -13, -106, -48 ]
Per Curiam: The judgment in this case will be affirmed, on the authority of Soper v. Medberry, ante, p. 128.	[ -80, 126, -3, 61, 10, 96, 48, -66, -105, -11, -57, -15, 43, -125, 29, 87, -77, 41, 17, 115, -112, -13, 86, -64, 116, -13, -1, -42, 56, 92, -9, 95, 77, 104, -126, -43, -26, -120, 13, 26, -58, -123, -103, 108, 64, -13, -80, 56, 16, 79, 97, -41, -29, 42, 27, -61, -23, 44, -8, -31, 80, 112, -98, -124, -19, 23, -77, 38, -100, -57, -40, 14, 12, -71, 1, -7, 114, -74, 67, -108, 43, 123, -116, 70, 102, -125, -128, -19, -94, -56, 15, -34, -115, -90, 63, 25, -23, 64, -67, 29, 116, 49, 7, 126, -15, -35, 31, 32, 77, 11, 71, -73, -121, 121, -40, 66, -17, 103, 26, 69, -123, 42, 124, -62, 63, -109, -41, -72 ]
The opinion of the court was delivered by Valentine, J.: This was an action brought by the plaintiff in error, in the probate court of Shawnee county, on an ac count against the defendant in error, as executor of the estate of Emma J. Rogers, deceased, who at the time of her death was the wife of the defendant in error. When the said Emma J. Rogers was seven years of age, her mother intermarried with plaintiff in error, and said Emma J., with her brother, lived with her mother and step-father as one of the family, working and discharging the duties of a child, without any contract or understanding that she was to be paid for her labor, or that she was to pay for her maintenance. After she became of age, she married the defendant, and soon after her marriage, died. The account of plaintiff in error is for board and clothing, furnished to the said Emma J., his step-child, while she was a minor. The plaintiff proved his account in accordance with the facts above stated, and rested: whereupon the defendant in error moved the court for judgment upon the pleadjngs and evidence, which motion was sustained by the probate court. The plaintiff took the case to the district court, on petition in error, where the judgment of the probate court was affirmed, and the plaintiff now brings the case to this court for review. The only errors complained of by the plaintiff in error as occurring in either the probate court or the district court, are as follows: First, The court erred in sustaining the motion of the defendant for judgment. Second, The said judgment was given for the said defendant, when it ought to have been given for the said Charles E. Smith, according to the law of the land. Did either court commit any substantial error? For the purposes of this case, we shall suppose that the plaintiff in error has so preserved his exceptions to all questioned rulings of the courts below, and so got his case into this court, that we may hear and determine the case upon its merits; but this supposition is extremely favorable to the plaintiff in error. Upon the merits of this case, we think the plaintiff in error must fail. He cannot recover for the board, clothing, etc., for which he has charged. During all the time while he was furnishing such board, etc., he stood in loco parentis toward the said Emma J. Rogers, then Emma J. Hill. They sustained the relation toward each other of substantially parent and child. When said Emma J. was only seven years old, and living with her mother, Mrs. Susannah Hill, the plaintiff married the mother and took the child along with the mother to live with him; and from that time on, for about twelve years, the girl lived with her mother and the plaintiff as one of their family, receiving boarding, clothing, schooling, etc., and performing services as one of the family with -no thought or expectation on the part of any one that anybody should give or receive any other or further compensation for these mutual benefits and services. When the girl was about nineteen years old, she married the defendant, and soon afterward died. The defendant having been appointed her executor, the plaintiff commenced this action in the probate court against him, with the result aforesaid. We think the decisions of the courts below were correct* We think Mr. Schouler in his work on the Domestic Relations, (p. 378,) states the law governing this case very correctly. His language is as follows: “ It is well settled that in the absence of statutes, a person is not entitled to the custody and earnings of step-children, nor bound by law to maintain them. Yet, if a step-father voluntarily assumes the care and support of a step-child, he stands in loco parentis; and the presumption is, that they deal with each other as parent and child, and not as master and servant — in which case the ordinary rules of parent and child will be held to apply, and neither compensation for board is presumed on the one hand, nor for services on the other.” We do not think that the plaintiff is entitled to recover in this case, and hence the judgment of the court below must be affirmed. All the Justices concurring.	[ -110, 110, -55, 92, -88, 96, 34, 10, 87, -127, -75, -13, -87, -62, 16, 107, 114, 11, 65, 107, 67, -77, 23, 35, 82, -14, -79, -35, -78, 108, -11, -34, 76, 48, 74, -43, 102, 66, -63, 80, -122, -122, 11, -19, 89, 96, 52, 121, 20, 11, 101, 62, -13, 43, 63, 67, 40, 40, 77, -71, 82, -80, -118, -115, 95, 22, -109, 6, -34, 7, 72, 42, -104, 57, 8, -8, 115, -90, 6, 84, 45, -119, 9, 100, 102, 33, -115, -17, 56, -104, 38, -74, -99, -89, -110, 88, 107, 13, -74, -99, 108, 16, 15, -2, -26, 68, 29, 104, 1, -113, -10, -71, -49, 32, -100, 51, -29, -118, -80, 113, -50, -64, 93, -123, 51, -109, -114, -6 ]
Per Curiam: The judgment of the court below in this case will be reversed, upon the authority of the decision made in the case of Corbin v. Young, ante, p. 198, first point in the syllabus. See Gen. Stat. of 1868, p. 1046, §81; Laws of 1869, p. 240, §1; Laws of 1874, p. 207, §3; Laws of 1876, p. 85, §106; Comp. Laws of 1879, p. 960, § 106. The statutes of Kansas, since 1868, and before, have required that the place of sale of lands for delinquent taxes shall be stated in the county treasurer’s notice of sale. This cause will be remanded to the court below for further proceedings.	[ -80, -18, -35, 28, 26, 64, 43, -103, 9, -79, 36, 83, 105, -118, 16, 121, -93, 13, 117, 120, -60, -73, 91, -63, -12, -13, -47, -33, -66, 93, -18, -58, 76, 48, 10, -75, 70, -126, -59, 92, -82, 8, 9, 92, 81, 96, 52, 107, 82, 75, 117, 47, -21, 42, 30, -63, 9, 44, -55, -127, 89, -71, -69, -59, 127, 7, 19, 6, -46, -121, -24, -82, -102, 49, 0, -24, 115, -90, 22, 52, 13, -103, 40, 110, 102, 19, 53, -1, -24, -120, 14, -45, -99, -25, -111, 24, 67, -120, -106, -97, 85, 48, 75, 126, -30, -91, 87, 56, 21, -53, -44, -77, 15, 120, -118, 83, -5, -93, 56, 81, -57, -26, 90, -57, 48, -125, -114, -12 ]
The opinion of the court was delivered by Horton, C. J.: This was an action brought under the stock law of 1874, by the defendant in error against the plaintiff in error, for the recovery of damages for the wounding of a cow. It is alleged, that the evidence fails to support the judgment; in brief, that there was an entire failure of proof that the animal was injured by the plaintiff in error in the operation of its railroad, or otherwise. We have examined-all the record, and find the objection well taken. The evidence is substantially that the cow left home in the morning of a day in September, 1879, in good condition; that she came home in the evening with a bruised hip; that she was accustomed to cross the railroad track every day to go upon' the range, and to return again across the track in the evening; that the owner heard a train about 4 p. M. of the day she was hurt, whistle cattle off the track. No one saw the cow get hurt. No one saw the cow get on the track. No one knew where she got hurt. No one saw her go toward, or come from the track, and no one really knew that she was upon the railroad track the day she was injured. We consider the judgment unsupported -by the evidence, and this is, therefore, of that class of cases in which this court awards a new trial owing to a total failure of proof. The judgment will be reversed, and a new trial granted. All the Justices concurring. ■	[ -79, 122, -100, -83, 42, 96, -94, -102, 65, -95, -89, 83, -115, -61, 20, 123, 70, 45, 85, 43, -42, -109, 87, -29, -109, -45, 82, -59, 49, 108, -28, 95, 77, 48, -118, 85, 102, -24, -63, 92, -114, 55, 41, -19, 25, 48, 60, 127, 22, 79, 49, -102, -29, 46, 24, 67, 40, 44, 111, 45, -40, -7, -86, 7, 125, 2, -77, 98, -98, 39, -40, 62, -112, 49, 0, -8, 114, -92, -122, 84, 41, -103, 12, 102, 103, 33, 77, 77, 40, -88, 47, -6, -113, -25, -112, 24, 27, 41, -66, -99, 52, 82, 6, -4, -29, -51, 24, 36, 5, -49, -108, -93, -113, 44, -106, 93, -29, -73, 18, 117, -51, -86, 93, 69, 86, -101, -98, -2 ]
The opinion of the court was delivered by Hórton, C. J.: The only question presented in this case is, whether a county is liable for damages accruing from a defective and unsafe bridge, built by the county as a part of the public highway ? It is conceded by counsel that there is no express statute imposing any liability; therefore the question must be answered in the negative upon the authority of Beach v. Leahy, 11 Kas. 23, and Eikenberry v. Township of Bazaar, 22 Kas. 556. Counsel suggest that if it be held that the case of Eikenberry v. Township of Bazaar, supra, is applicable, that in view of the decisions in House v. Montgomery Co., 60 Ind. 580, and in Wilson v. Jefferson Co., 13 Iowa, 181, and Huston v. Iowa Co., 43 Iowa, 181, this court ought to reexamine the question, on principle. Counsel further contend, that as this court has decided that municipal corporations proper, such as cities, are liable for damages resulting from the negligent exercise and control over the streets and sidewalks within their limits, without any statute imposing such liability, if follows logically that counties are equally liable. We are aware of the diversity in the decisions in respect to the liability of a county in neglecting to keep in repair bridges and highways, and the difficulty of stating clearly and satisfactorily the principle upon which to rest the distinction between the implied liablility of cities and counties. If the writer of this opinion deemed the question an open one in this state, and felt at liberty to pass upon the subject solely in accordance with sound reason, he would deny the liability of even cities in neglecting to exercise their control and care over streets and sidewalks, or for their imperfect execution of such power. Their implied liability, however, has been generally recognized by the decisions of ‘other states, and has been for a long time followed by this court, and ought not now to be abandoned because the reasons given for its original adoption are not satisfactory. (See Jansen v. City of Atchison, 16 Kas. 358, and especially the remarks and authorities cited in brief of counsel of defendant in error, pp. 360, 375.) The distinction between the implied liability of cities and of quasi corporations, like counties, has been recognized in this state by prior adjudications, and whether properly or not, we need not inquire, in view of the fact that a new examination of the question before us on principle convinces us of the entire correctness of our ruling in Eikenberry v. Township of Bazaar, supra, and the principle there announced is decisive against the claim of defendant in error. The conclusions reached in House v. Montgomery Co., 60 Ind. 580, are not satisfactory to us. In the late case of Kincaid v. Hardin Co., 11 Cent. L. J. 227, the supreme court of Iowa refused to extend the liability of a county to a case where a person was injured by reason of the negligent construction of a court-house. Yet the distinction in principle between an injury resulting from a defective county bridge, and one caused by a defective and improperly constructed court-house, is not very easily demonstrated. In the conclusion of the opinion, it is stated, that if the liability of quasi corporations is further extended in that state, it must inevitably lead to inextricable complica tions arising in actions for all possible negligent acts. This is virtually a confession that the rule previously adopted in that state as to the implied liability of counties, is a dangerous doctrine, and if followed to its logical results, would cause confusion worse confounded. The judgment of the district court will be reversed. All the Justices concurring.	[ -12, 110, -36, -84, 90, -30, 18, 8, 88, -79, -76, 83, -83, -61, -115, 107, -1, -1, -48, 42, -59, -13, 119, -61, -108, -77, -13, -58, -109, -55, 118, -1, 76, 113, -54, -107, 102, 10, 93, -36, -50, -116, 10, -55, -39, -48, 52, 107, 16, 78, -15, -113, -9, 58, 24, -61, -84, 40, 91, -83, -45, -80, -104, -107, 127, 5, -77, 38, -104, 35, -20, 40, -104, 49, -104, -8, 115, -90, -121, -3, 77, -103, 12, 98, 99, 33, 5, -17, -4, -103, 14, -6, 47, -90, 4, 57, 59, 11, -65, -33, 124, 2, 4, 122, -26, 68, 95, 108, -127, -118, -16, -11, -49, 100, -110, 65, -49, 47, 22, 81, -60, -68, 93, -59, 18, 27, -34, -52 ]
The opinion of the court was delivered by Horton, C. J.: This was an action in the nature of ejectment, commenced June 8,1878, in the district court of Coffey county, by J. B. Watkins, against William Inge, to recover the possession of lots three, four, five and six, in section sixteen, township twenty-three, range seventeen, in said county,' being the southwest quarter of section sixteen, in said township and range. The second trial was had, on the plaintiff’s petition, and an answer of general denial on the part of defendant, to the court, a jury being waived. A general finding was made for defendant, and judgment for costs rendered in his favor. Defendant’s right of possession rests upon the title acquired by and through a tax deed to one Austin Corbin, dated May 14,1877, and a quitclaim deed from Corbin to him, of February 27,1878. The questions presented concern the validity of the tax deed. Plaintiff claims, first, that the deed is void upon its face; second, that the proceedings antecedent to the tax sale were not in compliance with the statute authorizing the sale of property for delinquent taxes; third, that there was fatal error in the redemption notice, as published; and, fourth, that the tax sale was invalid, because the person who made it had no authority of law to act as county treasurer at the time it was executed. The alleged reasons for the deed being void upon its face, are, that it’ conveys, or undertakes to convey, to Corbin, several separate and distinct tracts of land; that the consideration expressed therein is a gross or aggregate sum; that there is an error in one description. The deed recites separate sales, shows as many sales as tracts of land, gives the delinquent tax on each tract of land separately, and also the sum bid and paid on each different tract; therefore the case of Hall’s Heirs v. Dodge, 18 Kas. 277, does not control. The sales were had in May, 1874, for the delinquent taxes of 1873. Sec. 115, ch. 107, Gen. Stat. 1868, provided that— “In any case where any purchaser at any tax; sale shall purchase more than one piece of land, or lot, or lots, he may require the county clerk to include all such lands or lots in one deed; and, in addition to the fee for any such deed, the county clerk shall be allowed the sum of five cents for each ■piece of land or lot so included in any such deed.”' In 1876 there was a new statute relating to assessment and taxation adopted, repealing the act of 1868, but prescribing that— “All matters relative to the sale and conveyance of lands for taxes under any prior statute, shall be fully completed according to the laws under which they originated, the same as if such laws remained in force.” (Comp. Laws 1879, ch. 107, §155.) By said §155 of the act of 1876, §115 of the act of 1868 was continued in force, notwithstanding the repealing clause ■of the act of 1876, so far as to authorize the execution of tax •deeds for lands sold for taxes under the statute of 1868, in accordance with the provisions of that section. The clerk of ■Coffey county had, therefore, full authority to include several .separate tracts of land in the tax deed. Counsel for plaintiff suggest that § 155 of the act of 1876, is retrospective legislation. This is not true. This statute is an' attempt to preserve, or rather protect, the inchoate «rights of purchasers at tax sales under prior statutes, and so modifies the effect of the repeal of the act of 1868 as to make the act of 1876 applicable to future sales. It is a saving act, .and cannot be said to impair the obligation of any contract, or take away any vested right of property, and is not violative of any constitutional provision or any principle of justice. The error in the description of one tract of land in the deed ■cannot be held to invalidate the deed as to the tracts properly described. Each tract is inserted in the deed separate and apart from the other descriptions, and each sale stands upon the recitals of the deed in regard to such sale, and the .specific land sold at such sale. .The authority to include in ■one deed several tracts of land purchased at a tax sale, tends to lessen the costs of the tax purchaser in obtaining and recording his deeds, and relieve the county clerk of labor in •executing separate deeds to a purchaser who has bid in several tracts of land at the tax sales. Upon the foregoing grounds, we hold the tax deed not void on its face. The defects in the proceedings antecedent to'the tax sale are alleged to be, first, a failure to post up the delinquent tax list as required by § 82, ch. 107, Gen. Stat. 1868; second, if the treasurer did properly post the list, that he failed to make affidavit of such posting, and failed to file the affidavit with the county clerk as provided in § 83 of said chapter; third, that the treasurer failed to file with the county clerk the affidavit of the printer who published such list and notice • fourth, that the publication of the delinquent tax list and notice was insufficient. In the condition of the record,, we cannot say that these defects ever existed. The court found generally against plaintiff. The tax deed is madeprima facie evidence of the regularity of all prior proceedings, and of the fact, therefore, that the delinquent tax list was duly posted up, that all notices and affidavits required were given and filed. . Now, although the county clerk could not find in his office any affidavit of the posting of the tax list and notice, nor the affidavit of the printer, yet the oral testimony offered clearly established the posting-up of the list in full compliance with said § 82, and tended, also, to prove-the making and filing of the several affidavits referred to. Under these circumstances, we cannot assume the existence of' ■the defects asserted by counsel. If the plaintiff had desired to obtain a separate finding as to the existence of any defects-in the tax proceedings, he should have requested special findings of fact, and he might have designated specifically the-questions or issues upon which he wished the findings made. Again, as it is clearly apparent that the notice of the tax sale-was published and the posting made, it is extremely doubtful whether the omission to file the affidavits of such publication and posting would amount to anything more than a mere-irregularity; and therefore, under the provisions of §139, ch. 107, Comp. Laws 1879, would not invalidate the title conveyed by the tax deed. This question, however, we need not-decide. The objection to the publication of the notice of the tax sale is, that upon the authority of McCurdy v. Baker, 11 Kas. 111, and Whitaker v. Beach, 12 Kas. 492, such publication was-insufficient in not being continued up to the day of sale. It-appears from the record that the publications were made in, 1874, on March 5th, March 12th, March 19th, aud March '26th.. The difference in the language of §457 of the code,, and § 82, ch. 107, Gen. Stat. 1868, taken in connection with § 81 of the same chapter, is obvious. The language in § 457 is, “ Public notice of the time and place of sale, to be given, for at least thirty days before the day of sale, by advertisement in some newspaper.”' The - preposition “ for,” as used, largely determines the interpretation given to the section. By §81, the treasurer was required to make out the list of lands and town lots, delinquent for taxes, between the first and tenth days of March of each year, with the accompanying notice, and in § 82, the language is, the list and notice are to be published “ once in each week for four consecutive weeks prior to the day of sale.” Therefore, as the publication of the list and notice was commenced after March 1st, in 1874, and published once in each week for four consecutive weeks prior to the sale, the statute was complied with. The provisions of said §§81 and 82 will not warrant us in holding that the publication of the tax-sale notice must be continuous up to the day of sale, and the arguments in McCurdy v. Baker, supra, and Whitaker v. Beach, supra, when carefully examined, do not justify such a conclusion. Counsel for plaintiff also attack the tax deed on the ground that there was not a strict compliance with § 137, ch. 34, Laws 1876, (Compiled Laws 1879, ch. 107, §137,) because the tax roll showed a much larger amount necessary to redeem the land than the amount published in the redemption notice. The final notice was dated November 28,1876, and stated that the tax of 1876 was not included in the computation. The amount in the notice was $192.32; the tax roll showed $285, as the taxes and interest due on the last day of redemption. This notice informed all parties that the amount necessary to redeem the property, exclusive of the taxes of 1876, was $192.32. The tax of 1876, as we understand the evidence, swelled the sum to $285. Any person wishing to redeem could easily ascertain the taxes of 1876, and, as no redemption was attempted, or any offer to redeem made, in view of all the statements contained therein it cannot be said that the notice misled any one, or worked injustice. Even if we assume that there was error in the notice of the amount required to redeem the land on the last day of redemption, the error cannot be held fatal to the notice or the tax deed, under the provisions of §139, eh. 34, Laws 1876; § 139, ch.107, Comp. Laws 1879; Shoup v. C. B. U. P. Rld. Co., ante, p. 547. The final objection to the deed is, that the party making the sale was neither treasurer de fado nor de jure. The evidence shows, that on November 15,1873, C. H. Graham was the duly-elected, qualified and acting county treasurer of Coffey county; that on that day the board of county commissioners of the county declared the office vacant; that on November 17, 1873, the board appointed H. E. Cowgill treasurer, to fill the supposed vacancy; that he duly qualified, and on November 21, 1873, took possession of the office, occupied it, and performed the duties thereof continuously and exclusively up to and long after the tax sale of 1874. Although the county board had no right to declare the office vacant, yet so long as Cowgill remained in the office under his appointment, and had full and exclusive charge thereof, he was in the exercise of the duties of the office under the claim and color of right, and his acts as an officer de fado are valid, so-far, at least, as the rights of the public, or third persons having an interest in such acts, are concerned. Hence, the final objection is not well taken. The judgment of the district court will be affirmed. All the Justices concurring.	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The opinion of the court was delivered by Horton, C. J. The plaintiff in error laid off and condemned a right of way for its railroad over and across the northeast fractional quarter of section 30, township 6, range 10, containing 144-j^j- acres, in Mitchell county. The report of the right of way, filed by the commissioners in the office of the county clerk of that county, June 6,1879, showed the condemnation of a strip 100 feet in width, the center line thereof entering the east side of said tract, at a point 1,410 feet south of the northeast corner, and leaving the west side at a point 1,722 feet south of the northwest corner thereof, its course being on a tangent or straight line 2,378 feet in length, and occupying 5^^- acres of land in the quarter-section. The commissioners awarded, as the value of the land taken and the damages to the entire tract, the sum of $225. The defendant in error, claiming to be the owner of the land, • filed his bond for appeal -to the district court of said county. Thereafter, he filed a petition in the court, in which he set forth his claim for damages in the language following, to wit: “That the appraisement of value and assessment of damages to said land of said plaintiff, as shown by the report so filed as aforesaid, is grossly inadequate and wholly insufficient to compensate him for the value of the land so taken, and the damages he has sustained thereby; that the land of said plaintiff so taken, is of the value of five hundred dollars; and the plaintiff further says, that by reason of the appropriation of such right of way, said tract of land has been divided into two separate tracts of land, and divided in such a manner that it has been rendered less valuable for farming, stock raising, and other purposes, and otherwise damaged by the construction of said railway, to the injury and damage of said plaintiff’s lands, in the sum of five hundred dollars, making the total damages to said plaintiff the sum of one thousand dollars.” On November 1,1879, the plaintiff in error filed an answer admitting its incorporation and the condemnation of the railroad route across the tract of land, and denying each and every other allegation contained in the petition. At the trial of the cause at the December Term, the jury returned answers to special questions submitted to them, and. also a general verdict in favor of the defendant in error for $312. The special questions submitted, and the answers of the jury thereto, are as follows: “Q,. 1. What was the actual market value of the 5^g-acres of land taken for the right of way, without reference to any question of damages to the remainder of the farm? A. $66. “Q,. 2. In addition to the value of the land taken, what was the amount of the real and actual damages to the remainder of the farm by reason of the takiug of the acres by the defendant for a right pf way for its railroad? A. $246. “Q. 3. How much was the damage to that part of the farm north of the right of way? A. Nothing. “Q,. 4. How much was the damage to that part of the farm south of the right of way? A. $108. “Q,. 5. What are the several elements or sources of damages which make up the aggregate of the answer to special question 2, and how much of said aggregate is made up by each of said elements or sources of damage? A. Bridge, $85; extra care of stock, $53; right of way, $66; damages on the land, $108; aggregate, $312. L. A. Nelson, Foreman.” Motions were made by plaintiff in error to deduct the following sums'from the general verdict, viz.: $85, $53, and $66. These several motions were overruled, and judgment rendered in accordance with the verdict. Objection is made to the character of the evidence touching the valuation of the land before and after the location of the railroad upon it, and also as to the instructions of the court thereon. We think this objection is substantially met in K. C. Rly. Co. v. Allen, ante, p. 33. The other objections of counsel are more tenable. The two items, “bridge, $85,” and “extra care of stock, $53,” ought to have been deducted from the verdict, as these items were improperly included as elements of damages, in the aggregate of $312. There was no claim in the petition for the value of any bridge, and the evidence did not warrant the finding. In assessing damages to land appropriated for the right of way through it for a railroad, the jury may always take into consideration all incidental loss, inconvenience and damages, present and prospective, which may be known, or may reasonably be expected to result from the construction and-operation of the road in a legal and proper manner, but as the proceeding by appeal is in the nature of a revision of the award of damages made by the railway commissioners, the verdict is not to be based upon the supposition that the road is to be illegally operated or improperly maintained. (M. K. & T. Rly. Co. v. Haines, 10 Kas. 432—442; Mills on Eminent Domain, §§213-215.) The item of $53 for extra care of stock, seems to have been allowed under the following direction of the court: “Though upon the matter of scaring teams, I will say, that the fact of the liability of teams being scared, and the additional care necessary to be used in using such teams by the plaintiff upon the land in question, is an element of damages you can take into consideration.” This direction to the jury permitted speculative, damages for which no compensation is properly recoverable, and therefore the damages returned cannot be sustained. It is not every conceivable annoyance and inconvenience resulting from proximity to, and intersection by, a railroad, that is the proper subject of inquiry and damage. Of course, acts which at times are legal and necessary, may be done without necessity — out of mere heedlessness and negligence, or with a wanton and criminal intent to do wrong — and thereby a railroad company may incur a liability to the person’ injured, whether he be the owner of the land or not. (A. & N. Rld. Co. v. Garside, 10 Kas. 552; Culp v. A. & N. Rld. Co., 17 Kas. 475; Isom v. Miss. C. Rld. Co., 36 Miss. 300; Presbrey v. Old Colony & Newport Rly. Co., 103 Mass. 1; Mills, supra, §193.) Counsel for defendant in error concedes in his argument the inconsistency of the answers to the special questions with the general verdict, but claims the general verdict should stand upon the ground that it is supported by the evidence, and that the jury were misled by the questions submitted and gave incorrect responses. This might be an argument against jury trials in general, and the incapacity of the jury in this particular case, but it is no valid reason for a disregard of the command of §287 of the code, nor ought we to indulge in the presumption that the jury were too ignorant to comprehend their duty. When the special findings of fact are inconsistent with the general verdict, the former control the latter and the court must give judgment accordingly. The case will be remanded with direction to the district court to enter judgment for $174, and-adjudge the costs of the appeal against defendant in error. (Comp. Laws 1879, p. 231; § 86; p. 721, § 128.) The costs in this court will be divided. All the Justices concurring.	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Pierron, J.: Kevin J. Strickland appeals the district court’s re-determination of his criminal history after he appealed the original determination to this court and the case was remanded for resentencing. We affirm. Strickland pled guilty to one count of possession of marijuana, a nonperson, severity level 4 drug felony, in violation of K.S.A. 1993 Supp. 65-4127b(a)(3), and two counts of battery, class B misdemeanors, in violation of K.S.A. 1993 Supp. 21-3412. Prior to sentencing, a presentence investigation (PSI) report with an attached criminal history worksheet was filed. The presentence investigator, Mark Bruce, determined that Strickland had a category “F” criminal history based upon a felony conviction in Labette County for theft and a felony conviction in Oklahoma for concealing stolen property. Pursuant to K.S.A. 21-4715(c), Strickland notified the State and the trial court in writing that he objected to the criminal history classification contained in the criminal history worksheet. Specifically, he challenged the Kansas conviction and the Oklahoma conviction. He also filed a motion for departure from the presumptive sentence. Before imposing sentence, the trial court conducted a hearing on Strickland’s objection to his criminal history classification. Strickland dropped his objection to the Kansas conviction, but continued to challenge the Oklahoma conviction. To prove the Oklahoma conviction, the State offered a copy of an information charging Strickland with concealing stolen property and a copy of a journal entry with the same case number which indicated Strickland had been charged with concealing stolen property, a felony in Oklahoma, and had entered a plea of nolo contendere to the charge. The journal entry also showed that a 3-year sentence had been imposed and all but 9 months of the term were suspended. In addition to the documentary evidence, Mark Bruce testified about a conversation with Strickland in the course of preparing the PSI report in which Strickland told Bruce he did not contest the Oklahoma conviction, but believed it was a misdemeanor, not a felony. Strickland objected to the admission of the documentary evidence on the grounds that the documents were not properly authenticated. The documents were certified by the clerk of the district court in Grant County, Oklahoma, but were not accompanied by the certificates required to authenticate documents from other states. See K.S.A. 60-465(4). The trial court acknowledged the documents were not authenticated, but ruled that based upon the evidence presented, the State had met its burden to establish the existence of the conviction and subsequently approved the determination of Strickland’s criminal history category F. The district court imposed a 17-month prison sentence for possession of marijuana and 10 days’ imprisonment for each battery count. Strickland appealed. In State v. Strickland, 21 Kan. App. 2d 12, 900 P.2d 854 (1995), this court agreed with Strickland, vacated his sentence, and remanded the case for resentencing. The court held: “Copies of documents coming from courts of other states need to be certified or ‘attested’ and, in addition, accompanied by the certificate required by K.S.A. 60-465(4) in order to meet the requirements for authentication.” 21 Kan. App. 2d at 14. In the absence of the proper documentation, the Strickland court concluded that a statement by a criminal defendant to a court services officer during the course of a presentence investigation, standing alone, is not sufficient competent evidence of a prior conviction to meet the State’s burden of proving a defendant’s criminal history. 21 Kan. App. 2d at 15. Upon remand and resentencing, the State produced a properly authenticated copy of Strickland’s Oklahoma felony conviction. Strickland objected, stating that had the Oklahoma conviction been properly excluded in the first place, the appeal probably would not have taken place since he would have been in a presumptive probation grid box. The State argued that Strickland had admitted he had the conviction and the only difference between the evidence it presented at the first sentencing hearing and the evidence at the second sentencing hearing was the authenticating certificate attached to the complaint and judgment/sentence of the Oklahoma conviction. The district court admitted the authenticated copy of the Oklahoma felony conviction and sentenced Strickland to 16 months’ incarceration. Strickland appeals. The interpretation of the Kansas Sentencing Guidelines Act is a question of law. An appellate court’s scope of review on questions of law is unlimited. State v. Arculeo, 261 Kan. 286, Syl. ¶ 1, 933 P.2d 122 (1997). At the original sentencing hearing in 1993, Strickland filed an objection to the criminal history worksheet pursuant to K.S.A. 21-4715(c), which provides: “Upon receipt of the criminal history worksheet prepared for the court, the offender shall immediately notify the district attorney and the court with written notice of any error in the proposed criminal history worksheet. The state shall have the burden of producing further evidence to satisfy its burden of proof regarding any disputed part, or parts, of the criminal history and the sentencing judge shall allow the state reasonable time to produce such evidence to establish the disputed portion of the criminal history by a preponderance of the evidence.” Copies of official records may be admissible as an exception to the rule against hearsay under K.S.A. 60-460(o) if properly authenticated under K.S.A. 60-465. A copy of an official record meets the requirements of authentication pursuant to K.S.A. 60-465 if “(1) the judge finds that the writing purports to be published by authority of the nation, state or subdivision thereof, in which the record is kept; or (2) evidence has been introduced sufficient to warrant a finding that the writing is a correct copy of the record or entry; or (3) the office in which the record is kept is within this state and the writing is attested as a correct copy of the record or entry by a person purporting to be an officer, or a deputy of an officer, having the legal custody of the record; or (4) if the office is not within the state, the writing is attested as required in clause (3) of this section and is accompanied by a certificate that such officer has the custody of the record.” K.S:A. 60-465(4) contains additional directions with regard to who may properly provide the certificate required by the subsection. When the State attempts to establish a defendant’s criminal history in a hearing pursuant to K.S.A. 21-4715 using copies of official court documents, those documents must meet the previously stated requirements of authentication under K.S.A. 60-465 in order to be admissible as an exception to the rule against hearsay under K.S.A. 60-460(o). For copies of documents from Kansas courts, certification will suffice to meet the requirement for authentication under K.S.A. 60-465(3). Copies of documents coming from courts of other states need to be certified or “attested” and, in addition, accompanied by the certificate required by K.S.A. 60-465(4) in order to meet the requirements for authentication. A similar rule has been applied when proving former convictions in proceedings to invoke the enhanced penalty provisions of the Habitual Criminal Act, K.S.A. 21-4504. State v. Baker, 237 Kan. 54, 55, 697 P.2d 1267 (1985); State v. Crichton, 13 Kan. App. 2d 213, 216-17, 766 P.2d 832 (1988), rev. denied 244 Kan. 739 (1989). The narrow issue presented here is whether the State can present the proper authenticating documents to the sentencing court in a case that has been remanded for resentencing because the State, at the original sentencing hearing, failed to produce that documentation when attempting to verify a contested conviction in a defendant’s criminal history. Strickland argues that if the trial court had correctly ruled that the State did not have the proper authentication of the Oklahoma conviction, then his sentencing guidelines classification would have been 4-G on the drug grid and he would have fallen within the presumptive probation portion of the drug grid. He argues it is an injustice if the State is now given an opportunity to introduce sufficient evidence, when it could not have done so had the trial court made the correct ruling. The State contends Strickland’s rationale fails to conform with the goals of the KSGA, namely, imposing uniformly based sentences using the severity level of the offenses and the criminal histories of individual defendants. See K.S.A. 21-4702. The State argues Strickland’s rationale cuts both ways. At resentencing, Strickland introduced evidence of a clean urinalysis test and how he had purportedly behaved himself while on appeal bond. The State argues that if Strickland can introduce new evidence at the resentencing, the State should not be prohibited from doing the same. The State also indicates there is no statutory or case law authority prohibiting the State from introducing the new evidence at resentencing. Strickland attempts to analogize his case to a situation where a jury concludes there is insufficient evidence to convict an accused. In such a case, Strickland states, there can be no conviction and no retrial. He cites State v. Stafford, 255 Kan. 807, 878 P.2d 820 (1994), where the court vacated a sentence under the hard 40 rule because during jury deliberations of the sentencing phase, the district court did not set forth an adequate reason to justify excusing a juror. The court held the defendant was deprived of a verdict since a hung jury, in the context of the hard 40 rule, means the defendant will be imprisoned for life with eligibility for parole. Therefore, the Stafford court held the hard 40 sentence was not available at the defendant’s resentencing. 255 Kan. at 825-26. The State argues Stafford is not applicable because it does not hold that evidence could not be introduced on remand, but specifically stated that a certain sentence could not be imposed. The State maintains Stafford is contrary to Strickland’s position because this court could have been more specific with its remand of Strickland’s case if it truly believed he could not be sentenced using the Oklahoma felony conviction. Strickland also cites Stewart v. Cunningham, 219 Kan. 374, 381, 548 P.2d 740 (1976), where the court stated: “A new trial should not be granted merely because a party has failed to establish grounds for recovery during a trial and feels he might prevail if given a new trial.” The State does not address Stewart. Based on Stafford and Steward, Strickland argues the State should not be given a second chance. He contends the State had its opportunity to introduce evidence sufficient to establish his criminal history and it failed to produce the authentication certificate. He also argues the fact that the State did not request additional time to obtain the authentication certificate is significant since the district court has the authority to grant the State more time to accumulate evidence if necessary. See K.S.A. 21-4715(c). Since the State failed the first time, Strickland maintains the State should be bound with the conclusion that it did not prove the Oklahoma felony conviction. The State counters Strickland’s fairness argument by contending the introduction of evidence leading to the correct determination of criminal history should be mandated. The State supports its position by citing the statutory prohibition against plea agreements which decline to use or which exclude any prior conviction from a defendant’s criminal history. See K.S.A. 21-4713(f). A case not considered by either party is this court’s recent decision in State v. Tolliver, 22 Kan. App. 2d 374, 916 P.2d 725 (1996). In Tolliver, the parties agreed with the PSI report that Tolliver had no criminal history, and he was sentenced accordingly. Three weeks after sentencing, the State moved to set aside Tolliver’s sentence as illegal, alleging he actually possessed a lengthy criminal history and was on parole when the crime of conviction was committed. The State also claimed Tolliver had failed to advise the court services officer who prepared the PSI report of his correct criminal history. The district court granted the State’s motion and ultimately found Tolliver was classified in category 7-B instead of 7-1. On appeal, this court vacated Tolliver’s sentence and remanded the case to reinstate the original sentence. This court stated Tolliver’s original sentence was not illegal because, although the agreed-upon criminal history for Tolliver was incorrect, the sentence imposed was consistent with what is authorized for a 7-1 offender. This court also ruled that Tolliver had no duty to provide the State with a correct statement of his criminal history or identity. 22 Kan. App. 2d at 379-81. The court stated: “Although K.S.A. 21-4715(a) allows a defendant to admit his or her criminal history, there is no provision in the KSGA which requires a defendant to come forward and provide the State with an accurate criminal history. There also is no provision in the KSGA which prohibits a defendant from misrepresenting his or her identity during a presentence investigation or which explains what happens when a defendant does so. See also K.S.A. 21-4604 (provision which sets forth procedure for completing PSI report does not require defendant to provide correct identity or criminal history).” 22 Kan. App. 2d at 381. Tolliver embodies the principle that if the State fails to find a conviction or convictions in a defendant’s criminal history, the State is prohibited from later amending, and ultimately increasing, the severity level of a defendant’s criminal history for the crime or crimes at issue. However, this principle would in no way prohibit the State from relying on the newly discovered convictions should the defendant be convicted of another crime in the future. Two recent decisions from the Washington Court of Appeals provide some guidance in addressing this issue. In State v. Mitchell, 81 Wash. App. 387, 914 N.W.2d 771 (1996), the defendant challenged the State’s use of a prior Washington judgment and sentence to prove he had three prior California convictions. As additional evidence, the State submitted a PSI report listing the three contested out-of-state convictions and an understanding/acknowledgment of the defendant’s criminal history in the earlier case, signed by both the defendant and his attorney. The district court found the State had met its burden of establishing the out-of-state convictions. 81 Wash. App. 388-90. On appeal, the Mitchell court indicated that none of the documents presented to the sentencing court were included in the clerk’s papers and, as a result, it could not determine their sufficiency. In any event, the court held the PSI report did not constitute additional evidence if it was derived from the prior judgment and that neither the judgment nor the attached acknowledgment would satisfy the State’s burden of proof. 81 Wash. App. at 391 n.3. Washington courts hold the best evidence of a prior conviction is a certified copy of the judgment of conviction, State v. Descoteaux, 94 Wash. 2d 31, 36, 614 P.2d 179 (1980), but the State may use any documents of record or transcripts of prior proceedings to establish criminal history, State v. Herzog, 48 Wash. App. 831, 834, 740 P.2d 380 (1987). For our purposes, the Mitchell court’s instructions are of importance. In reversing the sentence, the Mitchell court held the three California convictions must be removed from the calculation of Mitchell’s criminal history unless, “on remand, the State within 30 days produces sufficient additional evidence to establish their existence.” 81 Wash. App. at 391. In State v. Cabrera, 73 Wash. App. 165, 868 P.2d 179 (1994), the defendant objected to the State’s use of certified copies of Washington judgments and sentences for three Washington convictions to prove that the defendant had two prior out-of-state (Florida) felony convictions. The Florida convictions were listed in the criminal history section of the Washington judgments and sentences. The district court ruled the State had met its burden of proof by a preponderance of the evidence and allowed the Florida convictions in the defendant’s criminal histoiy. The Cabrera court disagreed and held the Washington judgments and sentences did not establish by a preponderance of the evidence that the Florida convictions were felonies in Washington. In reversing, the Cabrera court stated: “[W]e must reverse the sentence and remand to allow the State to prove the convictions within a reasonable time after the mandate issues.” 73 Wash. App. at 170. Although the remand instruction by this court in Strickland’s first appeal was not as specific as those in Mitchell or Cabrera, the connotation of an appellate court remanding for resentencing is such that the entire sentencing process is to occur again, unless directed otherwise. This is precisely the reason why Strickland at the resentencing hearing asked the court to take judicial notice of the testimony presented at the original sentencing. Furthermore, the State correctly points out that Strickland introduced additional evidence not available at the original sentencing hearing; but yet he wished the court to prohibit the State’s introduction of the authenticating certificates for his Oklahoma felony conviction. We also find merit with the State’s argument that had the trial court found the certification to have been inadequate at the first sentencing, a continuance could have been granted to remedy the situation. Allowing the State to come back later and amend the criminal history as occurred in Tolliver seems to raise questions of collateral estoppel. Permitting the State to come back in Strickland’s case only raises questions similar to technical error in requiring the State to do correctly what it did inadequately the first time. This result is in accordance with Mitchell and Cabrera. Therefore, at the re-sentencing hearing, the trial court correctly admitted the proper authentication documents of Strickland’s Oklahoma felony conviction. Affirmed.	[ -112, -17, -11, 28, 28, -63, 58, 52, 66, -73, 114, 82, 47, -22, 8, 59, 83, 121, 85, 105, -41, -73, 115, -125, -10, -5, -56, 87, -9, 95, -28, -108, 28, 112, -101, 117, 66, -128, -89, 88, -114, 4, -72, -40, 83, 0, 36, 46, 34, 14, 49, 6, -91, 74, 20, -47, 73, 44, -53, 41, 65, -63, -87, 95, -24, 0, -95, -92, -100, 1, -8, 55, -36, 57, 0, -8, 51, -122, -122, 116, 43, -103, 13, 34, 34, 33, 84, -81, -91, -23, 46, 59, -67, -89, -40, 81, 67, 69, -106, -97, 119, 54, 39, -4, 101, 4, 29, 104, -121, -34, -112, -77, 9, 48, -121, -5, -13, 5, 16, 101, -59, -26, 117, 119, 56, -65, -14, -11 ]
Pierron, J.: Americas Truckway Systems, Inc. (ATS), defendant/appellant, appeals the district court’s granting of summary judgment in favor of Aetna Life & Casualty (Aetna), plaintiff/appellee. The district court ruled that the self-employed, independent contractor drivers employed by ATS were covered by the Kansas Workers Compensation Act and Aetna was therefore entitled to an increased premium. The facts presented to the district court were either stipulated, admitted, or entered into evidence without contradiction. ATS describes its business as primarily a brokering service for the driving and/or “piggy-backing” of semi-tractor trucks from one place to another, a/k/a “driveaway service.” ATS’s customers contract with ATS to hire independent contractor drivers to drive and/or “piggyback” trucks to a specified location. ATS’s consideration is a commission based on a per-mile charge, and ATS pays the drivers a per-mile rate established by contract between ATS and the drivers. ATS obtained workers compensation insurance coverage through Aetna for a 2-year period, effective February 25, 1988. The insurance premium was based upon payroll amounts for the applicable classifications of ATS employees. ATS only included its sales and clerical staff in estimating the payroll figures. The premium was approximately $750. In April 1989, during the second year of coverage, Aetna audited ATS’s account, using actual payroll figures from the prior policy year, in order to adjust the premium. The audit contended that ATS used the truck drivers to conduct its business and therefore the drivers’ payroll should have also been used to compute the insurance premium. Aetna billed ATS for an adjusted premium of $139,194. After ATS did not pay, Aetna filed suit to collect the adjusted premium. Aetna filed a motion for summary judgment. After two hearings, the district court granted the motion. The court found the truck drivers involved with ATS were self-employed, independent contractors and not common-law employees of ATS, but that the drivers performed work integral and essential to ATS’s business. The district court adopted the rule in Thompson v. Harold Thompson Trucking, 12 Kan. App. 2d 449, 456-58, 748 P.2d 430 (1987), rev. denied 243 Kan. 782 (1988), and held that the truck drivers were “statutory employees” and subject to premiums for workers compensation liability. ATS then filed a motion for reconsideration of the court’s decision of summary judgment, which was heard. Ultimately, the court found: (1) The facts were not in dispute and had been stipulated to; and (2) ATS conceded it could not prove any of the truck drivers had coverage for workers compensation which would have precluded ATS’s liability to Aetna. The court concluded the insurance contract issued by Aetna could cover workers compensation claims by ATS drivers. This was the risk insured against by Aetna, thereby rendering ATS liable. Thus, the court ruled the drivers’ payroll should have been included in the calculation of the premiums according to the terms and conditions of the contract. At a later date, the court held a hearing on damages and granted judgment in favor of Aetna for $139,194. ATS argues the district court erred in granting summary judgment because self-employed persons are generally excluded from coverage under the Kansas Workers Compensation Act, K.S.A. 44-501 et seq. ATS contends Aetna is not entitled to the adjusted insurance premiums based on the language in K.S.A. 1995 Supp. 44-503(a) and the holding in Allen v. Mills, 11 Kan. App. 2d 415, 724 P.2d 143 (1986). On the other hand, Aetna argues the district court correctly entered summary judgment in its favor since ATS’s truck drivers were statutory employees under K.S.A. 44-503(a) and ATS is liable for workers compensation premiums under the statute. Aetna also argues ATS is liable for premiums under the insurance contract entered into by the parties. Our standard of review for cases decided by summary judgment is well established: “The burden on the party seeking summary judgment is a strict one. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal we apply the same rule, and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. [Citations omitted.]” Mitzner v. State Dept. of SRS, 257 Kan. 258, 260-61, 891 P.2d 435 (1995). There are several provisions of the Workers Compensation Act relevant to a discussion of the issue presented to the court. K.S.A. 44-501(a) provides: “If in any employment to which the workers compensation act applies, personal injury by accident arising out of and in the course of employment is caused to an employee, the employer shall be hable to pay compensation to the employee in accordance with the provisions of the workers compensation act.” The act also defines individuals that are encompassed therein. K.S.A. 1995 Supp. 44-508(b) defines “workman”, “employee,” or “worker” as “any person who has entered into the employment of or works under any contract of service or apprenticeship with an employer. . . . Unless there is a valid election in effect which has been filed as provided in K.S.A. 44-542a and amendments thereto, such terms shall not include individual employers, limited or general partners or self-employed persons.” Pursuant to K.S.A. 44501(a) and K.S.A. 1995 Supp. 44-508(b), ATS argues the drivers would not have been able to bring claims against Aetna under the Workers Compensation Act. Aetna concedes that self-employed persons are not generally considered “workers” under K.S.A. 1995 Supp. 44-508. Aetna argues the truck drivers contracted with ATS to do ATS’s work and are statutory employees. Therefore, the premium must be charged for that insured risk. ATS relies heavily on Allen v. Mills, 11 Kan. App. 2d 415. Allen owned and operated a sawmill in Reno County. Mills operated a plant in Butler County where he sometimes used Allen’s lumber to make goods for sale to the public. Usually, Mills would let Allen know when he needed a truckload of lumber, and Allen would tell Mills when it was ready. Mills would then dispatch his driver with a truck to pick up the load from Allen. On the occasion of the accident, Allen picked up Mills’ truck, returned to Allen’s sawmill, loaded the truck, and was injured when he delivered the wood back to Mills’ plant. The court found the case to be one of a nonelecting, self-employed person seeking workers compensation. The district court ruled that Allen was barred from bringing a civil action against Mills because his sole and exclusive remedy was under the Workers Compensation Act. The district court also ruled that Allen was his own employer, doing subcontract work for his principal, Mills. 11 Kan. App. 2d at 416-17. This court disagreed with the district court’s reliance on K.S.A. 44-503 (Ensley 1981) and hung its hat on the self-employed person language in K.S.A. 1985 Supp. 44-508(b), which disqualified such individuals from the Act. The Allen court explained: “For K.S.A. 44-503 to be operative, it is necessary that there be a contract between the contractor and the worker that creates between them the relationship of employer aind employee. There cannot be such a contract when one person is purportedly both the contractor and the employee. This is for a plain and simple reason. No man can contract with himself. 1 Wilhston on Contracts § 18, p. 32 (3d ed. 1957); 2 Wilhston on Contracts § 308, p. 450 (3d ed 1959). There must be at least two parties to the making of a contract. 1 Wilhston on Contracts § 18, p. 32. As our Supreme Court has said; ‘There must be at least two parties to a contract. It is not possible for an individual, simply by his own mental operations, to enter into a contract with himself, or with himself and others, even though he acts in different capacities.’ Sinclair Refining Co. v. Long, 139 Kan. 632, Syl. ¶ 2, 32 P.2d 464 (1934). See Kumberg v. Kumberg, 232 Kan. 692, 699, 659 P.2d 823 (1983).” 11 Kan. App. 2d at 418. The Allen court ultimately held that Allen was not an “employee” under the Act for the reason that he had no contractual relationship with another as employer and employee. The court decided that Allen was engaged in an arms-length transaction with Mills and was not a statutory employee of Mills for purposes of applying the Workers Compensation Act. 11 Kan. App. 2d at 418. Aetna argues Allen is not applicable to our case. Aetna cites the distinguishing factors that (1) Allen was self-employed, whereas ATS is a corporation, and (2) Allen claimed to be an employee of himself and undertook to do his own work, whereas ATS specifically contracted with independent, self-employed contractors to do its work. Aetna states that ATS’s business is a corporation providing transportation services for its customers. ATS does not do the work itself, in which case the employees would be eligible for workers compensation coverage, but instead contracts with independent truckers. Aetna contends the Workers Compensation Act specifically addresses this situation. K.S.A. 1995 Supp. 44-503(a) provides: “Where any person (in this section referred to as principal) undertakes to execute any work which is part of the principal’s trade or business or which the principal has contracted to perform and contracts with any other person (in this section referred to as the contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be hable to pay to any worker employed in the execution of the work any compensation under the workers compensation act which the principal would have been hable to pay if that worker had been immediately employed by the principal; and where compensation is claimed from or proceedings are taken against the principal, then in the application of the workers compensation act, references to the principal shall be substituted for references to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the worker under the employer by whom the worker is immediately employed.” K.S.A. 1995 Supp. 44-503 creates an employer-employee relationship for purposes of workers compensation where such a relationship would not be recognized under common-law principles. Workers who are eligible for benefits through application of this section are therefore frequently referred to as “statutory employees.” Kansas Workers Compensation Handbook § 4.06A (rev. ed. 1990). The court in Zehring v. Wickham, 232 Kan. 704, 707, 658 P.2d 1004 (1983), observed that a principal purpose of 44-503(a) is “ ‘to prevent employers from evading liability under the act by the device of contracting with outsiders to do work which they have undertaken to do as a part of their trade or business.’ Hoffman v. Cudahy Packing Co., 161 Kan. 345, Syl. ¶ 4, 167 P.2d 613 (1946). See also Fugit, [Administratrix v. United Beechcraft, Inc.,] 222 Kan. [312, 315, 564 P.2d 521 (1977)].” Aetna relies heavily on Thompson v. Harold Thompson Trucking, 12 Kan. App. 2d 449, as the governing law that ATS’s drivers were statutory employees under K.S.A. 1995 Supp. 44-503(a). In Thompson, Harold Thompson, doing business as Harold Thompson Trucking, was engaged in hauling salt water, fresh water, and crude oil to and from oil field operations. Thompson Trucking employed Richard E. Shreve, who had worked for the company for approximately 6 to 8 weeks before the accident. On the day of the accident, Thompson and Shreve were cleaning an oil tank on a lease operated by Murfin Drilling Company. Murfin had contracted with Thompson Trucking to clean the oil tank. Thompson and Shreve were injured when the oil tank exploded. 12 Kan. App. 2d at 450. The district court considered whether Thompson was a statutory employee of Murfin Drilling. The question was whether Thompson Trucking’s insurance company or Murfin’s insurance company would be responsible for paying Thompson’s workers compensation claim. The district court found that Thompson was not the statutory employee of Murfin. On appeal, this court reversed the decision of the district court and held that the work Thompson was doing at the time of the accident was an integral part of Murfin’s operation pursuant to K.S.A. 1995 Supp. 44-503(a). 12 Kan. App. 2d at 451, 457. Additionally, the court also held that it made no difference that the claimant was the owner of the company contracting with Murfin since Thompson had elected to come under the act as an employee of his company. The court recognized that Murfin had not contracted with Thompson to perform the work, as had been the situation in Allen. Rather, Murfin had contracted with the company owned by Thompson. See Robinson v. Flynns Ferry Service, Inc., 6 Kan. App. 2d 709, 714, 633 P.2d 1166, rev. denied 230 Kan. 819 (1981) (court held that where principal contracted with the business and not with the owner-operator individually, 44-503(a) applied and the owner-operator was a statutory employee of the principal.) The court concluded that Thompson was a statutory employee of Murfin and could recover workers compensation benefits from it. 12 Kan. App. 2d at 458. ATS argues that Thompson is highly distinguishable because it deals with the exception to the rule that self-employed persons are not covered by the Workers Compensation Act. Under K.S.A. 1995 Supp. 44-508(b), this exception applies only to self-employed persons who make an election under die Act, as Thompson had done, to be covered pursuant to K.S.A. 44-542a. Since it is uncontroverted that none of the ATS truck drivers had ever made such an election, ATS argues Thompson does not apply and its truck drivers could not have brought a claim under the Act. ATS cites Miller v. Miller, 13 Kan. App. 2d 262, 264, 768 P.2d 308 (1989): “The presence of the introductory qualifying or conditional phrase in the last sentence of K.S.A. 1988 Supp. 44-508(b) produces the corollary that, where there is a valid election in effect, the statutory term “employee” includes self-employed persons. An electing self-employed person is an “employee” for the purposes of the Act for the single reason that that is what the Act says.” Aetna argues that ATS disregards the express language of the insurance contract and fails to address the trial court’s reliance on the same. The record contains what appears to be Aetna’s standard workers compensation insurance policy. Aetna argues the district court’s ruling squares perfectly with the provisions of the insurance contract. Aetna directs the court’s attention to Part V, § C of the insurance policy, which reads: “Premium for each work classification is determined by multiplying a rate times a premium basis. Remuneration is the most common premium basis. The premium basis includes payroll and all other remuneration paid or payable during the policy period for the services of: 1. all your officers and employees engaged in work covered by this policy; and 2. all other persons engaged in work that could make us hable under Part One (Workers Compensation Insurance) of this policy. If you do not have payroll records for these persons, the contract price for their services and materials may be used as the premium basis. This paragraph 2 will not apply if you give us proof that the employers of these persons lawfully secured their workers compensation obligations.” Aetna states it is uncontroverted that ATS has not provided any proof that the truck drivers had their own workers compensation coverage. Therefore, Aetna insists it is properly entitled to insurance premiums for workers compensation coverage of the truck drivers used by ATS. Last, Aetna argues that ATS’s position is compromised with regard to the language in the contracts it used to hire the truck drivers. The “Independent Contractor Agreement” between ATS (Company) and the truck drivers (Contractor) provides: “Drivers and Helpers. Contractor shall, at his own expense, employ all necessary drivers, driver helpers, and laborers to carry out this Agreement. Company shall not be responsible for the wages and expenses, employment taxes (federal or state), nor social security, or insurance of Contractor’s employees, agents, or servants. “Contractor shall hold Company harmless from any liability arising from a relationship between Contractor and any of Contractor’s employees, agents or servants, whether under industrial accident laws, workers’ compensation laws, employment taxes, or other state or federal laws applicable to employees, and employers. Contractor shall maintain workers’ compensation coverage for any employee, agent or servant whom Contractor employs in the performance of this Agreement. “In addition, Contractor represents that he will withhold state and federal income taxes upon the wages paid by Contractor to Contractor’s employees, and Contractor will be solely responsible for all employment taxes owing to the state and federal governments.” Aetna argues the district court correctly concluded that ATS’s failure to police and monitor its own contracts with the truck drivers has now caused it to be liable for the increased premium. Aetna asserts that if ATS truly believed it had no exposure for workers compensation claims filed by the truck drivers, then there would be no need to contractually require the truck drivers to obtain and maintain workers compensation insurance. Therefore, Aetna argues ATS knew it was liable for workers compensation claims filed by the truck drivers. ATS argues this provision applies to people hired by their contract drivers, not the contract drivers themselves. It is apparent a possible conflict exists between the definition of employee under K.S.A. 1995 Supp. 44-508(b) and the “statutory employee” under K.S.A. 1995 Supp. 44-503(a). K.S.A. 1995 Supp. 44-503(a) is silent as to whether an individual who falls within the purview of this statute must have elected to bring himself or herself within the act in order to receive compensation. Thompson is uninstructive on the subject because the individual there had already elected to be covered by the Act. Miller is no help because it stands for the proposition that a self-employed person who elects under the Act falls within the definition of “employee” under K.S.A. 1995 Supp. 44-508(b) and has no bearing on a determination under K.S.A. 1995 Supp. 44-503(a). We believe the proper avenue to address this statutory conflict is through the fundamental rule that specific statutes prevail over general statutes. “General and special statutes should be read together and harmonized whenever possible, but to the extent a conflict between them exists, the special statute will prevail unless it appears the legislature intended to make the general statute controlling.” Kansas Racing Management, Inc. v. Kansas Racing Comm’n, 244 Kan. 343, 353, 770 P.2d 423 (1989). “One rule of statutory construction is that where a statute dealing generally with a subject and a statute dealing specifically with a certain phase of the subject are conflicting, the more specific statute generally con trols unless the legislature intended otherwise.” State v. LaMunyon, 259 Kan. 54, Syl. ¶ 1, 911 P.2d 151 (1996). We believe 44-508(b) is the more specific statute. It is obvious that individual employers, limited or general partners, or self-employed persons routinely undertake to execute work which is part of the principal’s trade or business. Therefore, the 44-508(b) requirement that to be covered, such person must execute a valid election, would seem to specifically limit the general rule of inclusion under 44-503(a). We note that courts have held that 44-503(a) is to be liberally construed to effectuate the purpose of the Workers Compensation Act. See Bailey v. Mosby Hotel Co., 160 Kan. 258, 268, 160 P.2d 701 (1945). The court in Bright v. Cargill, Inc., 251 Kan. 387, 393, 837 P.2d 348 (1992), aff’d 254 Kan. 853, 869 P.2d 686 (1994), stated that the provisions of the Workers Compensation Act are to be liberally construed for the purpose of bringing a worker under the Act whether or not desirable for the specific individual’s circumstances. But such latitude does not permit the court to enlarge upon the plain terms of the statute. See Leslie v. Reynolds, 179 Kan. 422, 427, 295 P.2d 1076 (1956). We therefore find the self-employed truck drivers involved here, who apparently did not elect to be covered pursuant to a valid election under K.S.A. 44-542(a), were not required to be covered by ATS. It follows that Aetna provided no coverage for those drivers under the law or its contract with ATS and is not entitled to a premium for doing so. Reversed.	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Marquardt. J.: Larry R. Walters fainted and was injured at St. Francis Hospital and Medical Center, Inc., (St. Francis) while his fiancee, Mary Beth Burkett, was being treated. Burkett was treated in St. Francis’ emergency room and later admitted. Walters accompanied Burkett to her room. Burkett’s treatment required insertion of a nasogastric tube. Prior to the tube being inserted, a nurse explained the procedure to Burkett and Walters, who was standing at the side of Burkett’s bed. Before the procedure to insert the tube was even started, Burkett became distraught and began to scream. After á second attempt to insert the tube was unsuccessful, a nurse explained the procedure to Burkett and Walters again. , • Burkett asked a nurse if Walters could stay and hold her hand during the next attempt to insert the tube, and Walters agreed to stay. In his deposition, Walters testified that “the nurse just asked me if I would . . . just help calm [Burkett] down and make sure she didn’t move so much.” The trial court found that “[i]t is disputed whether [Walters] merely held Ms. Burkett’s hand or if he was also requested to restrain her during the procedure.” It is uncontroverted that Walters held Burkett’s hand while the tube was successfully inserted. After the procedure, Walters either said that he did not handle sickness well or that he was not feeling well. Walters sat down in a chair near Burkett’s bed, propped his elbows on his legs, and rested his head in his hands for a couple of minutes. Walters then rose from the chair, walked out of tire room to the nurses’ station, and stood there for a few moments, laying his head in his hands on the station’s counter. Walters was asked if he was all right, and he replied that he was. While standing at the nurses’ station, Walters lost consciousness and fell to the floor. Walters was immediately treated and then admitted to St. Francis as a patient, having suffered a head injuiy that required brain surgery. Walters does not allege any negligence in the care that he received after his fall. In granting St. Francis’ motion for summary judgment, the trial court held that no reasonable person could conclude that St. Francis breached any duty to Walters. Additionally, the trial court held that the cause of Walters’ injuiy was his decision to stay in the room with Burkett during the procedure and to then “wander the halls of the hospital while feeling ill,” concluding that the requirement of proximate cause was not met. Walters argues that the trial court erred in finding that no reasonable person could conclude that St. Francis breached any duty to him. St. Francis frames this issue differently and responds with a threshold issue that it did not owe any legal duty to protect Walters from fainting while he accompanied a patient at the hospital. The pivotal questions in this case are whether St. Francis owed a duty to Walters and, if so, what was the scope of that duty and was it breached? These issues have not been previously decided by Kansas appellate courts. Summary judgment is appropriate when the documents on file show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. K.S.A. 60-256(c); Boulanger v. Pol, 258 Kan. 289, 295, 900 P.2d 823 (1995). In Nero v. Kansas State University, 253 Kan. 567, 571, 861 P.2d 768 (1993), the court stated: “ ‘In a negligence action, summary judgment is proper if the only questions presented are questions of law. To recover for negligence, the plaintiff mustprove the existence of a duty, breach of that duty, injury, and a causal connection between the duty breached and the injury suffered. Whether a duty exists is a question of law. Whether the duty has been breached is a question of fact.’ Honeycutt v. City of Wichita, 251 Kan. 451, Syl. ¶ 8, 836 P.2d 1128 (1992). The trial court, and this court on appeal, first must determine whether a duty exists. Without a duty, there can be no breach to support a plaintiff’s claim. Hackler v. U.S.D. No. 500, 245 Kan. 295, 297, 777 P.2d 839 (1989).” At trial, St. Francis argued that the case should be treated as a medical malpractice action while Walters argued that he should be considered a business invitee and, therefore, premises liability law should apply. The trial court held that premises liability law applied. We agree. Walters does not claim medical malpractice. In order to prevail in a medical malpractice action in Kansas, a plaintiff must prove the following three elements: “(1) that a duty was owed by the physician to the patient; (2) that the duty was breached; and (3) that a causal connection existed between the breached duty and the injury sustained by the patient.” (Emphasis added.) Wozniak v. Lipoff, 242 Kan. 583, 587, 750 P.2d 971 (1988). Walters was not a patient at the time that he fell. Therefore, St. Francis owed Walters no “professional duty” under the theory of medical malpractice. At trial, St. Francis argued that premises liability law was inapplicable because the case did not involve a physical defect in the land. However, premises liability law is not limited to cases where there is a physical defect. The Restatement (Second) of' Torts § 341A (1964), states: “A possessor of land is subject to liability to his invitees for physical harm caused to them by his failure to carry on his activities with reasonable care for their safety if, but only if, he should expect that they will not discover or realize the danger, or will fail to protect themselves against it.” (Emphasis added.) See also Kabo v. UAL, Inc., 762 F. Supp. 1190, 1194-95 (E.D. Pa. 1991) (citing § 341A, applying premises liability law, and holding that the dangers associated with lifting luggage at an airport were obvious as a matter of law). In Bowers v. Ottenad, 240 Kan. 208, 222, 729 P.2d 1103 (1986), overruled in part on other grounds Jones v. Hansen, 254 Kan. 499, 509, 867 P.2d 303 (1994), the Kansas Supreme Court'reviewed and clarified Kansas premises liability law when a licensee is injured by activities conducted upon the property of a possessor of land. While the distinctions made in Bowers are not relevant here, the import of Bowers for this appeal is that premises liability principles and the relevant standards of care govern the liability for activities. Prior to Jones, 254 Kan. 499, the duty owed in Kansas by a possessor of land to an entrant on the land depended upon the common-law classification of the entrant. See Gerchberg v. Loney, 223 Kan. 446, 448-49, 576 P.2d 593 (1978), overruled in part Bowers, 240 Kan. 208. This change in the law is to be applied prospectively from the date of the Jones decision and, thus, does not apply to the facts of this case, which occurred in 1992. See Mozier v. Parsons, 256 Kan. 769, 771-72, 887 P.2d 692 (1995). The trial court incorrectly held that the new rule in Jones applied to the facts of this case and that St. Francis owed Walters a duty of reasonable care under all of the circumstances. Although the trial court arrived at this standard incorrectly, the correct standard is substantially equivalent. Courts from other jurisdictions have held that a hospital visitor was an invitee to whom the hospital owed a duty of exercising ordinary care. See Gaitskill v. United States, 129 F. Supp. 621, 623 (D. Kan. 1955) (applying Kansas law); Mattson v. St. Luke’s Hospital, 252 Minn. 230, 232, 89 N.W.2d 743 (1958); Jackson v. Mercy Health Center, Inc., 864 P.2d 839, 842-44 (OUa. 1993) (holding that statutory good Samaritan immunity applied because invitee/visitor was not patient); Sutherland v. Saint Francis Hospital, Inc., 595 P.2d 780, 783 (Okla. 1979) (contrasting duty to exercise ordinary care to maintain premises in a reasonably safe condition with the higher degree of care owed by a hospital to a patient); Anderson v. Oregon City Hospital Co., 214 Or. 212, 216, 328 P.2d 769 (1958); 40 Am. Jur. 2d, Hospitals and Asylums § 35; Annot., 90 A.L.R.4th 478, 480; Annot., 71 A.L.R.2d 427. A possessor of land owes an invitee a duty of exercising ordinary care. See Miller v. Zep Mfg. Co., 249 Kan. 34, 43, 815 P.2d 506 (1991); Gerchberg, 223 Kan. at 449. Thus, the trial court’s conclusion that St. Francis owed Walters a duty of reasonable care under all the circumstances is substantially equivalent to the duty of exercising ordinary care that a possessor of land owes an invitee. See Bank of Kansas v. Davison, 253 Kan. 780, 792, 861 P.2d 806 (1993) (noting that a district court decision that reaches the right result will be upheld even though the district court relied on the wrong reason for its decision). The essence of Walters’ claim was that St. Francis had a duty to warn him that he might become distressed or ill from watching and assisting while the tube was being inserted, to ask him if he had a sensitivity to the sight of blood, to warn him that he should leave the room, and to assist him after he stated that he was not feeling well. The trial court applied the standard of reasonable care under all the circumstances and held that St. Francis had no duty to warn of an open and obvious danger — the danger of fainting from feeling queasy. The trial court found “that the hospital and its employees did not breach any duty by not warning a person accompanying a patient to the emergency room and hospital room of the danger of fainting or becoming ill.” Generally, a possessor of land is under no duty to remove known and obvious dangers. Balagna v. Shawnee County, 233 Kan. 1068, 1083, 668 P.2d 157 (1983). St. Francis cites Sacks v. Thomas Jefferson University Hosp., 684 F. Supp. 858 (E.D. Pa.), aff’d 862 F.2d 310 (3d Cir. 1988), for the proposition that no cause of action will lie against a hospital in favor of a third party who faints while accompanying a patient. In Sacks, the plaintiff accompanied her daughter to the emergency room for treatment of a wound to the child’s head. The doctor on duty asked the plaintiff to hold her daughter’s head while he sutured the wound. “Plaintiff voluntarily did as she was requested.” 684 F. Supp. at 859. The plaintiff said that she felt faint and that she was going to leave the treatment room. The plaintiff fell and sustained injuries. The Sacks court held that the hospital owed no duty to the plaintiff and could not be found liable for the plaintiff’s injuries. The court emphasized that the plaintiff was not a patient. The court also held that by entering the emergency room, the plaintiff accepted the risk that she would witness events or conditions inherent in the medical treatment that might upset her. 684 F. Supp. at 859. In O’Hara v. Holy Cross Hospital, 137 Ill. 2d 332, 340-42, 561 N.E.2d 18 (1990), the Illinois Supreme Court held that the emergency room of a hospital does not have a duty to protect a non-patient visitor from fainting where the nonpatient is allowed to enter the emergency room and remain with the patient during treatment. The O’Hara court, however, adopted a view different from the Sacks court and also held that the emergency room of a hospital does have a duty to protect a nonpatient from fainting once the nonpatient is invited to participate in the care and treatment of the patient. 137 Ill. 2d at 342. In O’Hara, the plaintiff testified that the nurse invited her to enter the emergency room with her son. The treating doctor asked her to take a piece of gauze and wipe the Novocain from her son’s mouth while the nurse lifted the covering from her son’s face. The plaintiff testified that after wiping her son’s mouth, she fainted. The plaintiff also testified that she had never fainted before. The O’Hara court held that the lower court had erred in granting summary judgment because there was a genuine issue of material fact as to whether the hospital had invited the plaintiff to participate in the care and treatment of her son. 137 Ill. 2d at 343. We agree with the analysis in Sacks. In these circumstances, the hospital owed Walters the duty to inform him of the procedure that was going to be performed. The danger of becoming queasy or fainting, however, was open, obvious, and known to Walters. We conclude that ordinary and reasonable care does not require a hospital to warn an invitee that he or she might have an adverse reaction to witnessing a medical procedure. More specifically, a hospital has no duty to warn an invitee about the possibility of becoming queasy or fainting from witnessing a medical procedure because this is a danger that is open, obvious, and known to the invitee. The myriad of possible adverse reactions of an individual accompanying another to the hospital are not within the knowledge of the hospital. A contrary conclusion could open hospitals to claims that would cause hospitals to bar all visitors during all treatments. Walters argues that the trial court improperly relied on the assumption of risk doctrine. The trial court concluded that any danger associated with fainting from viewing the medical procedure was open and obvious and completely personal to the experience of the individual. “In Kansas, the common-law assumption of risk doctrine is restricted to cases involving employer-employee relationships.” Tuley v. Kansas City Power & Light Co., 252 Kan. 205, 210, 843 P.2d 248 (1992). The flaw in Walters’ argument is that the trial court did not rely on the assumption of risk doctrine in its memorandum decision. Therefore, this argument lacks merit. The trial court held that Walters’ injuries were not proximately caused by St. Francis’ acts or omissions. Walters argues that this ruling was incorrect. Since we have concluded that there was no breach of any duty owed to Walters, the issue of proximate cause is moot. Affirmed.	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Lewis, J.: Defendant is charged with driving under the influence of alcohol (DUI), possession of marijuana, and possession of drug paraphernalia. On the date defendant’s trial was scheduled to begin, the trial court suppressed the testimony of one of the witnesses for the State because his police report had only been provided to defendant a day prior to trial. The State appeals from the order of suppression. The record shows that Officer John Koelsch of the Emporia Police Department was one of one of four officers involved in the arrest of defendant. It appears that on the night in question, defendant managed to drive his pickup truck onto a retaining wall near an embankment on private property. This disabled the vehicle and attracted the attention of the police. After the police arrived and investigated the matter, defendant was arrested, and marijuana and drug paraphernalia were found in, on, and around his pickup. Prior to trial, defendant filed a discovery request with the State, seeking to be provided with all discoverable items under K.S.A. 22-3212. Pursuant to that request, the State furnished defendant with a number of items, including various police department reports, lab reports, etc. This appeal involves the police report prepared by Officer Koelsch. Through no fault of its own, the county attorney’s office did not receive a timely copy of Officer Koelsch’s report. The trial was scheduled to begin on May 16, 1996. On May 13, 1996, the State received a copy of Officer Koelsch’s report and placed it in a box reserved for defendant’s counsel at the office of the clerk of the district court. Defendant’s counsel did not actually receive the report until May 15, 1996, the day prior to trial. On the day of trial, defendant’s counsel made an oral motion to suppress the contents of Officer Koelsch’s report. He argued that he had filed a request for production under K.S.A. 22-3212 and that “the statute contemplates that the prosecution must provide such reports if they are in the prosecution’s possession or if there is reasonable grounds to believe that such a report would exist and with some diligence should be retrieved.” The State responded by arguing that defendant was not prejudiced by the late delivery of the report and cited its good faith in providing the report to defendant as soon as it received the report. The trial court granted defendant’s motion to suppress and stated: “It would seem with the addition of this new material in this report from Officer Koelsch at this late date it would seem to make it [a] more compelling case for the State and noting the statute that has been referenced being 22-3212 (f) and (g) the options for this are certainly for counsel to be given the opportunity to examine it that has been done for the last day. We’re now ready to start trial in the matter. The Court may grant a continuance or not permit the evidence to be — or the material to be presented at trial. I’m not inclined to want to continue this case. We need to try it and get rid of it. It would seem with the facts that have been related to me appearing in Officer Koelsch’s report that were not suggested in any of the other police reports because of the late filing of those or providing that information to counsel, the Court will not permit that evidence to be presented and we will go ahead and try the case today so the Court will sustain the motion.” Highly summarized, the report of Officer Koelsch states that, at the scene of the arrest, he observed defendant place his left hand in his jacket pocket and then place his hand in the bed of the pickup. The officer perceived that defendant might have been seeking to retrieve a weapon and promptly grabbed defendant’s left arm and handcuffed him. The officer then looked in the bed of the pickup, and where defendant’s hand had been, found a baggy of marijuana and a pipe. The statement suppressed deals only with the charges against defendant involving possession of marijuana and possession of drug paraphernalia. The State appeals die suppression of Officer Koelsch’s report. TURISDICTION We first deal with the question of jurisdiction. “The right for the State to appeal is authorized by statute. If no statutory authority for an appeal exists, the appeal must be dismissed.” State v. Ruden, 245 Kan. 95, 97, 774 P.2d 972 (1989). K.S.A. 22-3603 permits appellate review of trial court rulings on pretrial motions which may be determinative of the case. State v. Newman, 235 Kan. 29, 35, 680 P.2d 257 (1984). Such interlocutory appeals are permitted “only where the pretrial order suppressing or excluding evidence places the State in a position where its ability to prosecute the case is substantially impaired,” and the State should be prepared to make such a showing where jurisdiction is challenged by the appellee. 235 Kan. at 35. Defendant suggests that the suppression order did not substantially impair the ability of the State to prosecute him and, as a result, we have no jurisdiction to hear this interlocutory appeal. We disagree. The observations of Officer Koelsch are of vital importance to the State in proving the drug-related charges against defendant. The exclusion of the testimony of Officer Koelsch seriously complicates the issue as to whether defendant was aware of the offending items in the bed of his pickup. The question is whether the ability of the State to prosecute was substantially impaired or eliminated. We hold that it was so impaired. This court has jurisdiction to hear the interlocutory appeal by the State. DID THE TRIAL COURT ERR IN SUPPRESSING THE EVIDENCE? The question of whether the trial court erred in suppressing the evidence in question is one of statutory interpretation. The interpretation of a statute is a question of law over which an appellate court exercises unlimited review. Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, Syl. ¶ 1, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995). The trial court’s order implies that the State had an affirmative obligation to share its police officer reports with defendant. That is simply not true. There is limited criminal discovery in this state. The order of the trial court imposes an obligation on the State which does not exist. Defendant and the trial court apparently believed that the report in question was discoverable under K.S.A. 22-3212 and that the State did not comply with provisions of that statute. It is true that 22-3212(b) authorizes discovery of “books, papers, documents, tangible objects, buildings or places, or copies, or portions thereof, which are or have been within the possession, custody or control of the prosecution, and which are material to the case.” However, 22-3212(b) goes on to provide: “Except as provided in subsections (a)(2) [authorizing results or reports of physical or mental exams and of scientific tests and experiments] and (a)(4) [authorizing discovery of memoranda of and lists of witnesses to oral confessions made by the defendant], [22-3212] does not authorize the discovery or inspection of reports, memoranda or other internal government documents made by officers in connection with the investigation or prosecution of the case, or of statements made by state witnesses or prospective state witnesses, other than the defendant, except as may be provided by law.” (Emphasis added.) The provisions of the statute quoted above are clear and unambiguous, and the report of Officer Koelsch was not discoverable under 22-3212. The State argues on appeal, and we agree, that the report of Officer Koelsch falls under K.S.A. 22-3213(1), which provides: “In any criminal prosecution brought by the state of Kansas, no statement or report in the possession of the prosecution which was made by a state witness or prospective state witness (other than the defendant) shall be the subject of subpoena, discovery, or inspection until said witness has testified on direct examination at the preliminary hearing or in the trial of the case.” (Emphasis added.) Under the circumstances shown, the report of Officer Koelsch was not discoverable. We recognize that this argument was not made to the trial court. Under other circumstances, we may very well have concluded that the argument could not be made on appeal or that the State had invited the error of which it complains. We believe, however, that the error of the trial court is so fundamentally at variance with the law of this state that we must deal with the issue straight on and reverse the order of suppression. We do so in order to correct any misunderstanding that may exist as to the scope of discovery in criminal cases in this state. “When reviewing a trial court’s suppression of evidence, the appellate courts normally give great deference to the factual findings of the trial court. The ultimate determination of the trial court’s suppression of evidence is a legal question requiring independent appellate determination.” State v. Vandiver, 257 Kan. 53, Syl. ¶ 6, 891 P.2d 350 (1995). Thus, we are able to reach conclusions in this case as a matter of law. We hold that a written report made by a police officer, who is a prospective witness for the State in a criminal prosecution, is not discoverable until after the officer has testified on direct examination at the preliminary hearing or in the trial of the case. We note that in the matter presently under consideration, there is no indication that Officer Koelsch had ever testified at a preliminary hearing or in the trial of the case. Under these circumstances, it was error to suppress the police report or testimony contained in such report because the State either did not voluntarily provide it to defendant or did not do so within a certain time frame. Under the facts shown, the State was under no obligation to voluntarily provide to defendant a copy of Officer Koelsch’s police report. Defendant suggests the trial court had authority to suppress the report under K.S.A. 60-445. This argument is based on the premise that the trial court may have found that the probative value of the report was outweighed by the risk to defendant caused by undue and unfair surprise. We do not agree. Such an approach would basically repeal 22-3213 and establish criminal discovery obligations not contemplated by the statutes of this state. Since defendant was not entitled to a copy of the police report in question, it seems very doubtful that one could reason that he was unfairly or unduly surprised to the extent that the report should be suppressed. Defendant next argues the report contained exculpatory evidence which the State had an independent duty to provide to him. We agree with defendant that a prosecutor has a duty, “independent of court order, to disclose exculpatory evidence to the defendant.” State v. McIntyre, 259 Kan. 488, 496, 912 P.2d 156 (1996). Exculpatory evidence is evidence which “tends to disprove a fact in issue which is material to guilt or punishment” of a defendant. State v. Carmichael, 240 Kan. 149, 153, 727 P.2d 918 (1986). In some cases, exculpatory evidence may include evidence bearing on the credibility of a key witness. State v. Kelly, 216 Kan. 31, 36, 531 P.2d 60 (1975). We see none of those exculpatory elements in the evidence in question. In order to justify taking punitive action against the State for failing to disclose exculpatory evidence, the evidence must be clearly exculpatory, and its withholding must be clearly prejudicial to the defendant. State v. Carmichael, 240 Kan. 149, Syl. ¶ 1. . In this case, there is nothing in the evidence suppressed which is clearly exculpatory. In addition, we find it difficult to believe that defendant was clearly prejudiced by the withholding of evidence of which he had to have been aware since the facts in question took place in his presence. Defendant makes a variety of attempts to label the evidence in question as exculpatory, but those attempts are without merit. In addition, we note the evidence in this case was not withheld from defendant. It was disclosed, but not in a timely manner according to the trial court. In our judgment, the proper method in dealing with something of this nature would be to grant a continuance. There is, in any event, no basis in the record on which we can conclude that the evidence in question should have been suppressed because it was exculpatory. This case must now be remanded for trial. On remand, defendant will have had ample time to consider the impact of the potential testimony of Officer Koelsch. The trial court’s order of suppression is reversed, and the matter is remanded for a trial on the merits consistent with this opinion. Reversed and remanded.	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PlERRON, J.: Ivan D. Krug and Aleta Crabtree (hereinafter Krug) appeal the district court’s granting of summary judgment in favor of John Koriel. The court held that Koriel had no legal duty to control the volunteer wheat on his land to prevent the spread of the wheat streak mosaic virus and, in any event, there was insufficient evidence to establish that Koriel’s fields were the source of the infestation. Krug owns the northeast quarter of Section 17, Township 18 South, Range 18 West of the 6th P.M., Rush County. Crabtree owns the southwest quarter of Section 5, Township 18 South, Range 18 West of the 6th P.M., Rush County. Krug is the tenant of the Crabtree property. Koriel owns the south half of the southeast quarter of Section 8, Township 18 South, Range 18 West of the 6th P.M., and the southeast quarter of Section 6, Township 18 South, Range 18 West of the 6th P.M., Rush County. In relation to one another, Koriel’s property is located across the road north from Krug’s property and across the road west from Crabtree’s property. The villain in this controversy is the wheat streak mosaic virus. Wheat streak mosaic is caused by a rod-shaped virus which is car ried by the wheat curl mite. The mite is so named because of its feeding pattern which tends to cause the wheat leaf to curl or roll along the edges. The mites depend on the wind to carry them to new plants. Primary infections usually develop along the border of a field. As time progresses, the wind moves the mites farther into the wheat field, eventually infecting the whole field. The trial court was presented evidence by the Cooperative Extension Service of Kansas State University which indicated that in most cases infestation from wheat streak mosaic can be traced to a nearby field of volunteer wheat. Volunteer wheat sprouts from grain left on the ground after harvest. Volunteer wheat is the major source of wheat curl mite buildup. The wheat curl mite can travel up to a half a mile in the wind. The Extension Service encourages control of volunteer wheat: “Even if you control your volunteer, diseases and insects from your neighbor’s volunteer may still attack your wheat. Like the old saying goes, one bad apple can spoil the whole barrel. That’s why neighbor cooperation in volunteer control is the key to success. If certain neighbors don’t have time to control their volunteer, perhaps they would be willing to let you do it and cover your fuel bill.” Koriel does not dispute there was volunteer wheat growing on his land, but he also stated there was volunteer wheat on eveiy other parcel of land in the area. In an affidavit submitted by Krug, he explained how the road between his property and Koriel’s was only 22 feet wide and the wheat crop on this land was damaged in excess of 50% by wheat streak mosaic. Additionally, he explained how the road between Crabtree’s property and Koriel’s property was only 28 feet wide and 12.5 acres of Crabtree’s property suffered wheat streak mosaic damage. Krug surmised the wheat crop on other land he farmed was excellent because the neighboring properties were properly sprayed or tilled for control of the virus. Krug claimed the only source of wheat streak mosaic virus which caused his wheat to be damaged came from Koriel’s land since no other neighbors had volunteer wheat. The volunteer wheat on Koriel’s land was never tested for the mosaic virus because Koriel had plowed it under in early spring 1993. Krug filed suit against Koriel claiming wheat streak mosaic virus from Koriel’s land blew on to their land, causing damage to his 1993 wheat crop in the amount of $6,116. Krug alleged several theories of liability, including nuisance, strict liability, negligence, trespass, and res ipsa loquitur. Koriel filed a motion for summary judgment. The district court granted Koriel’s motion and specifically adopted the arguments and authorities submitted by Koriel. At the hearing on the summary judgment motion, the district court found: (1) The fields in a 12 square-mile radius to the fields at issue may or may not have had wheat streak mosaic; (2) wheat streak mosaic can occur in wheat that is not volunteer; and (3) Koriel had no legal duty to control the volunteer wheat on his property and was not liable for any damage that may have occurred from not doing so. In other words, the trial court found there was a failure of proof and no viable theory of legal liability. This court’s standard for review of cases decided on summary judgment is well established: “The burden on the part)' seeking summary judgment is a strict one. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on hie, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal we apply the same rule, and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. [Citations omitted.]” Mitzner v. State Dept. of SRS, 257 Kan. 258, 260-61, 891 P.2d 435 (1995). “Summary judgment is proper where the only question or questions presented are questions of law. [Citation omitted.]” Fletcher v. Nelson, 253 Kan. 389, 391, 855 P.2d 940 (1993); see Bradley v. Board of Butler County Comm’rs, 20 Kan. App. 2d 602, 890 P.2d 1228 (1995). Krug first argues the district court erroneously decided Koriel did not have a common-law duty to control the wheat streak mosaic virus on his property. Whether a duty exists in a particular case is a question of law. Whether the duty has been breached is a question of fact. “This court’s review of conclusions of law is unlimited.” Gillespie v. Seymour, 250 Kan. 123, 129, 823 P.2d 782 (1991). Krug cites a general principle that the common law should not be static, but should have the capacity to grow: “One of the basic characteristics of the common law is that it is not static, but is endowed with vitality and a capacity to grow. It never becomes permanently crystallized but changes and adjusts from time to time to new developments in social and economic life to meet the changing needs of a complex society. In a sense, it must be behind the times, because before the law changes or develops new rules, the conditions requiring the modification must acquire some degree of permanency.” Hoffman v. Dautel, 189 Kan. 165, 168, 368 P.2d 57 (1962). Krug contends this court needs to plow new ground. He requests a ruling that Koriel has a common-law duty to control his volunteer wheat and not allow wheat streak mosaic virus to develop and migrate to other fields. He first cites 1 Am. Jur. 2d, Adjoining Landowners § 12, which states: “The principles of the law of negligence ordinarily enter into the determination of the question of the reasonable use of property. Private owners are liable for damages inflicted upon persons in or near their premises by negligence of the owner in connection with his property, though the injury is inflicted outside and beyond the limits of his property. The proper test of liability of a possessor of land is whether in the management of his property he has acted as a reasonable person in view of the probability of injury to others. “. . . Whether there was negligence is generally a jury question.” Krug also cites 51C C.J.S., Landlord & Tenant § 355(a), which states: “A tenant has a cause of action for the destruction of, or injury to, his crops, caused by the wrongful act of negligence of a third person, even though he may be held to his landlord or some other person for an interest in the crop. “In an action by the tenant against a third person for damages for trespass upon the leased property, or for injury to his crops, it is not necessary to make the landlord a party thereto.” Krug , also cites numerous cases to support the contention of Koriel’s duty. Koriel argues, correctly we believe, that all of Krug’s cited authorities are factually distinguishable and not sufficiently on point. For instance, in Curtis O. Griess & Sons v. Farm Bureau Ins. Co, 247 Neb. 526, 528 N.W.2d 329 (1995), the facts were undisputed that Griess’ swine were infected by a swine virus from a nearby quarantine of infected swine. The insurance company did not dispute that the virus was transmitted to the farmer’s swine by a windstorm. The insurance company denied coverage because it was the virus, not the windstorm (a covered peril under the policy), that caused the damage to the farmer’s swine. The Griess court held: “When windbome materials occasion a loss, the loss is considered the direct result of a windstorm, because the windstorm is considered the dominant, efficient cause which set the concurring cause in motion.” “Where a virus has been transmitted by means of a covered peril, the covered peril is the proximate cause of the loss.” 247 Neb. 527, Syl. ¶¶ 9, 10. Krug argues the swine virus in Griess is comparable to the wheat streak mosaic virus here. Koriel points out that causation was undisputed in Griess and the case had nothing to do with whether the owner of the quarantined swine had a duty. Krug also cites Mull v. Boyle, 102 Kan. 579, 580-81, 171 Pac. 652 (1918), where the court held that where a statute permitted rent in the form of a share of the crop, “the landlord has such an ownership in the growing crop that he may maintain an action for the value of his share against a third person who has negligently destroyed it.” Krug also notes that in Binder v. Perkins, 213 Kan. 365, 516 P.2d 1012 (1973), the defendant, an aerial crop sprayer, was held liable for negligent application of herbicide. The defendant sprayed the plaintiff’s neighbor’s field, and the spray drifted to the plaintiff’s property and severely damaged his alfalfa crop. The court found the defendant guilty of negligence since he knew or should have known the position of plaintiff’s alfalfa field, about the possibility of a wind shift, and that the herbicide fumes could reasonably be expected to escape for 2 days after application. 213 Kan. at 369. Koriel again correctly argues that Mull and Binder did not deal with a duty owed by an adjacent landowner. Krug cites Kukowski v. Simonson Farm, Inc., 507 N.W.2d 68 (N.D. 1993), in which the defendant’s land had a stand of kochia and Russian thistle growing on it. In an attempt to.control the weeds, the defendant combined the kochia and Russian thistle. The plaintiff filed suit against the defendant claiming their property was damaged by the defendant’s use of a combine to control the weeds. Ultimately, the court stated the defendant owed a duty of ordinary care in their weed control efforts. 507 N.W.2d at 71. Koriel correcdy points out the weed cases would be controlled by Kansas’ noxious weeds statutes, K.S.A. 2-1314 et seq. Kukowski does not stand for the proposition that volunteer wheat could be considered a weed. A handful of Kansas cases have mentioned volunteer wheat, but never in this context. In order to successfully oppose a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. The district court decided that Krug failed to submit any authority supporting the proposition that Koriel had a duty to control the volunteer wheat on his property. We agree. The district court correctly determined that volunteer wheat was not listed as a noxious weed under K.S.A. 2-1314. If classified as a noxious weed, Koriel would have a “duty ... to control the spread of and to eradicate all weeds declared by legislative action to be noxious.” K.S.A. 2-1314. Krug fails to present any statutory or regulatory scheme or case law which requires a farmer to control volunteer wheat. We acknowledge, as does Koriel, the evidence from the Extension Service that volunteer wheat is a major host for the mite containing the wheat streak mosaic virus and that good neighbors control their volunteer wheat. Koriel contends a possible moral duty to control volunteer wheat does not rise to the level of a legal duty in the absence of a statute, regulation, or case holding otherwise. Krug candidly admitted at oral argument that he has not found any such specific legal obligation. Neither has this court found such an obligation, either in this state or in any other state. We believe a requirement of the nature suggested by Krug should come from a legislative body as part of the state’s comprehensive regulation of farming procedures. Industrious counsel for Krug also argues Krug has viable claims for nuisance, trespass, strict liability, and res ipsa loquitur. Krug cites several cases and annotations supporting this theory, none of which are factually applicable. Based upon the above analysis, we find there is no common-law duty in Kansas for landowners to control volunteer wheat for the purpose of preventing outbreaks of wheat streak mosaic. The district court also found there was insufficient evidence to support a finding that the complained-of infestation came from Koriel’s field. Even if it could be shown that the evidence might reasonably support a finding that Koriel’s field was the source of the infestation, our decision on the lack of a breach of a legally binding duty makes the question academic. Affirmed.	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Bacon, J.: Dr. George E. Thomas, Shawnee County Coroner, appeals from the district court’s decision that his records were public records subject to public disclosure under the Kansas Open Records Act (KORA), K.S.A. 45-215 et seq. Leo Burroughs is the surviving spouse of Launcelot Burroughs, who died February 2,1995. As coroner, Dr. Thomas conducted an investigation and performed an autopsy to determine the cause of Launcelot’s death. Dr. Thomas then filed a report of his findings with the clerk of the district court. After obtaining a copy of Dr. Thomas’ report, Leo sought disclosure of all the coroner’s investigative records. On behalf of Dr. Thomas, the Shawnee County Counselor’s office refused the request, citing K.S.A. 45-221(a)(3), which provides that medical records are exempt from public disclosure under the KORA. However, Leo was informed that if the county received a subpoena, the records would be provided. Leo then filed suit against Dr. Thomas, seeking to obtain the requested records. In its memorandum and decision, the district court found that Dr. Thomas’ investigative records were public records subject to disclosure under the KORA and that no statutory exemptions applied. However, the district court also entered a protective order, allowing only Leo access to the records. Dr. Thomas claims that the trial court erred, arguing that: (1) some of the records at issue do not meet the definition of “records” in the KORA; (2) if his records did fall under the KORA, three statutory exemptions applied; (3) the KORA and the included exemptions must be read in conjunction with the statutes governing the duties of district coroners; and (4) public policy mandates that a coroner’s report be exempt from public disclosure. Dr. Thomas agrees that the district coroner is subject to the provisions of the KORA pursuant to K.S.A. 1996 Supp. 45-217(e)(1) and that coroners’ reports are public records. The sole issue is whether the coroner’s underlying investigative materials are public records subject to public disclosure. This case involves interpretation of the KORA and the statutes governing district coroners; therefore, this court’s standard of re view is plenary. Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, Syl. ¶ 1, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995). Dr. Thomas argues that not all of his records are public records as defined under the KORA. Dr. Thomas asserts that the items the district court ordered to be publicly disclosed included not only his report, but also some of Launcelot’s medical records, a variety of internal notes, a weight sheet, diagrams, and photographs. It is the disclosure of these items to which Dr. Thomas objects. A public record is “any recorded information, regardless of form or characteristics.” (Emphasis added.) K.S.A. 1996 Supp. 45-217(f)(1). Under this definition, public records are not restricted to just written information. Diagrams and photographs would clearly constitute records and other items would be considered on an individual basis. K.S.A. 45-216(a) provides: “It is declared to be the public policy of the state that public records shall be open for inspection by any person unless otherwise provided by this act, and this act shall be liberally construed and applied to promote such policy.” Dr. Thomas argues that even if his investigative records are public records, they fall into three of the exempted classes of records: medical records, notes and research data, and records of a personal nature. K.S.A. 1996 Supp. 45-221(a)(3) provides that an agency is not required to disclose “[mjedical, psychiatric, psychological or alcoholism or drug dependency treatment records which pertain to identifiable patients.” Dr. Thomas argues that because district coroners must be licensed to practice medicine and surgery, their procedures are medical. Therefore, all records compiled in conjunction with such procedures are medical records. However, the Kansas statutes governing the duties of district coroners indicate that the legislature did not intend for these records to be considered medical records under the KORA. See K.S.A. 22a-232; K.S.A. 22a-233. Dr. Thomas’ argument is not persuasive. Dr. Thomas argues that because he is a licensed physician, any record he generates is a medical record pursuant to K.S.A. 45-221(a)(3). However, the Kansas statutes governing a coroner’s duties indicate otherwise. See K.S.A. 22a-232; K.S.A. 22a-233. In particular, K.S.A. 22a-233(c) states: “A full record and report of the facts developed by the autopsy and findings of the pathologist performing such autopsy shall be promptly made and filed with the coroner and with the clerk of the district court of the county in which decedent died.” (Emphasis added.) The records referenced in these statutes are clearly public records. The legislature has made no attempt to define autopsy records as medical records, which would exempt them from public disclosure. The second statutory exemption upon which Dr. Thomas relies is K.S.A. 1996 Supp. 45-221(a)(20), which provides that an agency is not required to disclose “[n]otes, preliminary drafts, research data in the process of analysis, unfunded grant proposals, memoranda, recommendations or other records in which opinions are expressed or policies or actions are proposed, except that this exemption shall not apply when such records are publicly cited or identified in an open meeting or in an agenda of an open meeting.” Dr. Thomas argues that his records fall under this exemption because they include information that he gathered while investigating the cause of Launcelot’s death. Dr. Thomas then prepared his final report from that information. The Kansas Attorney General has issued an opinion indicating that once a report is final and becomes a public record, preliminary working papers may no longer be withheld from disclosure under K.S.A. 45-221(a)(20). Att’y Gen. Op. No. 91-138. Contrary to Dr. Thomas’ argument, no exemption exists for work papers once a report becomes a public record. The last statutory exemption upon which Dr. Thomas relies is K.S.A. 1996 Supp. 45-221(a)(30), which provides that an agency is not required to disclose “[pjublic records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.” The Kansas survival of actions statute, K.S.A. 60-1801, does not provide for survival of a cause of action for invasion of privacy, which generally may only be claimed by the person whose privacy was invaded. This exemption does not apply here. Dr. Thomas argues that public policy mandates that a coroner’s report be exempt from public disclosure. In determining which public records are exempt from public disclosure, the legislature has chosen not to include a coroner’s report. Courts may only apply and enforce legislation. See Kansas Human Rights Comm’n v. Topeka Golf Ass’n, 18 Kan. App. 2d 581, 593, 856 P.2d 515 (1993), aff’d 254 Kan. 767, 869 P.2d 631 (1994). These public policy arguments are better made to the legislature. Although the district court found that Dr. Thomas’ records did not fall under any of the exemption statutes, it still entered a protective order, allowing disclosure only to Leo without leave of the court. K.S.A. 45-218(a) states in part: “All public records shall be open for inspection by any person, except as provided by this act.” The district court did not have the authority to close public records which were not statutorily exempt from public disclosure. The final issue involves all of the medical records that were developed throughout Launcelot’s lifetime. The district court’s order made all of Dr. Thomas’ records subject to disclosure, including these medical records. K.S.A. 1996 Supp. 45-221(a)(2) exempts from public disclosure “[rjecords which are privileged under die rules of evidence, unless the holder of the privilege consents to the disclosure.” K.S.A. 60-427 establishes an evidentiary privilege against revealing confidential physician-patient communications. K.S.A. 60-427(a)(4) defines communication as “information transmitted between physician and patient, including information obtained by an examination of the patient.” The medical records that were compiled prior to Launcelot’s death fall under the definition of confidential physician-patient communications. Leo is now the holder of this privilege as “the personal representative of a deceased patient.” K.S.A. 60-427(a)(3). Because Leo is the holder of the privilege and he gave his consent to disclose the records, the disclosure to him was proper. However, the district court’s broad holding that all of Dr. Thomas’ records were subject to public disclosure was in error. We affirm that part of the district court’s decision which found that the coroner’s records were public records. We reverse that part of the district court’s decision which allowed the medical records that were compiled prior to Launcelot’s death to be disclosed to the public. We also reverse the district court’s protective order. Affirmed in part and reversed in part.	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Lewis, J.: Larry W. Burney filed suit against the Kansas Department of Social and Rehabilitation Services (SRS) for negligence and malicious prosecution. The jury returned a verdict in favor of Burney in the amount of $18,250, as adjusted after application of comparative fault. SRS appeals from that verdict. We reverse. Burney was employed as a substitute teacher at Washington High School in Kansas City. While conducting the sixth hour class at that school, Burney called J.S. to the front of the class to take attendance. While doing so, J.S. was seated beside Burney, behind the desk, in front of the classroom. J.S. maintained that while she was seated in this manner, Burney placed his left hand on her thigh. She says that she then moved her chair and that Burney again placed his hand on her thigh. At this point, J.S. was called out of the room. J.S. reported the incident to the school counselor. Ultimately, the incident was reported to SRS, which assigned staff members to investigate it. During the investigation by SRS, at least two other students in the classroom at the time were interviewed. These students verified portions of the story related by J.S. The investigators also interviewed the director of personnel for Unified School District No. 500. This individual advised SRS that Bumey had been previously suspended from substitute teaching at two other high schools due to inappropriate sexual activity with female students and staff. This information was verified by the SRS investigators. After the interviews, SRS made a determination that Bumey had, more likely than not, committed the acts alleged. The notice of this decision was mailed to the school, to Bumey, and to the Kansas City Police Department. Bumey requested a review of the determination, and during that review, advised SRS that the allegations were untrue and that they must have been made to retaliate against him for a bad grade he had given one of the friends of J.S. Pursuant to statutory directives, SRS made the results of its investigation known to the Kansas City Police Department. The Kansas City Police Department then assigned a detective to investigate the allegations. After the detective completed his investigation, he made a report to the Wyandotte County District Attorney’s office. That office reviewed the report and made a decision to file criminal charges against Bumey, charging him with aggravated sexual battery. A preliminary hearing was conducted on the charges against Bumey. The judge presiding over the preliminary hearing held that the evidence was sufficient to show probable cause that a crime had been committed and that Bumey had committed the crime, and Bumey was bound over for trial. In due time, the matter came on for trial, presided over by District Judge Bill D. Robinson, Jr. Judge Robinson apparently reviewed the SRS file and asked if there were any more files relating to the case. This request resulted in the production of an SRS social services file concerning J.S. This file had apparently not been uncovered during the investigation and had not been hitherto disclosed. We have no idea as to what was in the social services file. It is not part of the record on appeal, and its contents were not revealed in any place in the record on appeal. However, apparently as a direct result of the production of this file, the Wyandotte County District Attorney s office dismissed the charges against Burney. Burney then filed this lawsuit, accusing SRS of negligence in its investigation and of malicious prosecution. The focus of his claim apparently is the failure of SRS to discover or produce the social services file with the mysterious and unknown contents. EXISTENCE OF A DUTY The first question as to the negligence claim against SRS is whether SRS owed a duty to Burney. “Negligence consists of the following elements: a duty owed to the plaintiff, breach of that duty, that the breach of duty was the proximate cause of the plaintiff’s injury, and that the plaintiff suffered damages. Honeycutt v. City of Wichita, 251 Kan. 451, 463, 836 P.2d 1128 (1992).” (Emphasis added.) P.W. v. Kansas Dept. of SRS, 255 Kan. 827, 831, 877 P.2d 430 (1994). If there is no duty owed to the plaintiff, then there can be no breach of that duty and, hence, there can be no negligence for which a defendant may be held responsible. The existence of a duty is a question of law. Nero v. Kansas State University, 253 Kan. 567, 571, 861 P.2d 768 (1993). Our scope of review on a question of law is unlimited. See Dutta v. St. Francis Regional Med. Center, Inc., 254 Kan. 690, 693, 867 P.2d 1057 (1994). In order for SRS to have been liable for negligence, it must have owed a duty to Burney. Burney points out that SRS did not raise this issue at trial. Ordinarily, issues not raised to the trial court cannot be raised on appeal. Furthmyer v. Kansas Dept. of Revenue, 256 Kan. 825, 827-28, 888 P.2d 832 (1995). However, as with most rules, there is an exception. We may address such issue where the newly asserted theory involves only a question of law arising on proved or admitted facts and which is finally determinative of the case. See State v. Bell, 258 Kan. 123, 126, 899 P.2d 1000 (1995). In Fudge v. City of Kansas City, 239 Kan. 369, 372, 720 P.2d 1093 (1986), the Supreme Court dealt with such an issue and explained its decision to do so as follows: “In order for an individual to be liable for a negligent or wrongful act, there must be a duly to act. Appellants, relying upon the ‘public duty doctrine,’ argue the City of Kansas City and its police officers did not owe a duty of care to James Fudge. The public duty doctrine provides a governmental entity is not liable for torts committed against a person in absence of a special duty owed to the injured party. Under this doctrine, the police officers owed a duty to the public at large, rather than to any individual. While this issue is raised for the first time on appeal, and thus may not ordinarily be considered (Lostutter v. Estate of Larkin, 235 Kan. 154, 166, 679 P.2d 181 [1984]), we hold that because it involves a legal issue arising from proven facts determinative of a significant issue in the case, it will be considered as an exception to the rule. Wortman v. Sun Oil Co., 236 Kan. 266, 271, 690 P.2d 385 (1984); Pierce v. Board of County Commissioners, 200 Kan. 74, 80-81, 434 P.2d 858 (1967).” (Emphasis added.) We adopt the approach of Fudge and deal with the issue since we deem it to be determinative of this case. The question is whether in the factual scenario in which this case arises SRS owed duties to the public at large or specifically to Burney. As we understand the law of this state, the duty of SRS in this case was owed to the public at large. P.W. v. Kansas Dept. of SRS, 255 Kan. 827, is controlling. In that case, SRS was alleged to have been negligent in investigating claims of child abuse at a day care center. As a result, the plaintiffs alleged that they and their children were abused and suffered damages. The trial court found that a duty was owed to the parents and to the children by SRS. The Supreme Court reversed, holding that in the context discussed, SRS owed no duty to the abused children but only to the public at large. Since the law is clear that SRS owes no duty to abused children, it surely owes no duty to an alleged abuser. Burney attempts to distinguish P.W., but we see no distinguishing features and conclude that the reasoning in that case is compelling and controlling. In P.W., the Supreme Court discusses a variety of circumstances under which a duty may arise. A duty may arise if there is a special relationship between the parties as required by Restatement (Second) of Torts § 315 (1964). Those relationships are said by the court to be that of common carriers and their passengers, innkeepers and their guests, parents and their children, masters and servants, the possessors of land and licensees, persons in charge of one with dangerous propensities, and persons with custody of another. 255 Kan. at 832. The relationship in this case is that of a public agency and an alleged child abuser. That relationship does not fall within the ambit of those special relationships covered by Restatement (Second) of Torts §§ 314, 316, 319, and 320. We conclude there was no special relationship between Burney and SRS which gave rise to a duty owed to Burney by SRS. Restatement (Second) of Torts § 324A would permit the finding of a duty if it were shown that SRS had undertaken, gratuitously or for a consideration, to render services to Burney or assume an obligation to do so. 255 Kan. at 833-34. In the case at bar, the evidence shows that SRS undertook an investigation of Burney as an accused child abuser. This was an investigation required by SRS under the law. There is no evidence whatsoever that SRS performed any affirmative act to render services for Burney or entered into any agreement to do so. ‘Without an affirmative act or an agreement, there is no duty owed under § 324A.” 255 Kan. at 834. Finally, the court in P.W. held that SRS had no duty to specific abused children either under the doctrine of parens patriae or K.S.A. 38-1524. In this case, the doctrine of parens patriae is obviously not relevant. However, K.S.A. 38-1524 is. In explaining why there was no duty under that statute, the court in P.W. said: “K.S.A. 38-1524, in part, provides that upon a report of abuse, SRS ‘shall make a preliminary inquiry to determine whether the interests of the child require further action to be taken.... If reasonable grounds to believe abuse or neglect exist, immediate steps shall be taken to protect the health and welfare of the abused or neglected child as well as that of any other child under the same care who may he harmed by abuse or neglect.’ (Emphasis added). “This is a duty towards the public at large. Under the public duty doctrine, ‘a governmental entity is not liable for torts committed against a person in absence of a special duty owed to the injured party. ’ Fudge, 239 Kan. at 372. A duty owed to the public may be narrowed into a special duty owed to an individual where the governmental entity has performed some affirmative act that causes injury or where it had made a specific promise or representation that under the circumstances creates a justifiable reliance on the part of the person injured. SRS neither acted affirmatively, caused the injury, or made any specific promise or representation to the plaintiffs which created any justifiable reliance. Under these circumstances, SRS’s statutory duty was owed to the public at large and not specifically to the plaintiffs.” 255 Kan. at 835-36. If there is no duty to an abused child under 38-1524, there was no duty to Burney under the circumstances shown. In Beebe v. Fraktman, 22 Kan. App. 2d 493, 921 P.2d 216 (1996), the facts indicated that SRS had been given several reports that A.R. was being abused. SRS either did not follow up on these reports or did so negligently, and the child was killed by the abuser. The mother of that child sued SRS on her own behalf and that of the child. We held that under P.W., SRS had no duty to the child or to the mother and could not be held liable for the child’s death. The basic direction and authority for SRS to act in child abuse cases is K.S.A. 38-1524. That was the operative statute in P.W. and Beebe, and it was the operative statute under which the investigation was undertaken in this case. The law of Kansas is clear that in investigating and dealing with child abuse cases, SRS owes only a duty to the public at large and owes no specific duty to the injured child. In what we believe is a logical extension of that reasoning, we hold that in investigating child abuse cases, SRS owes no duty to the alleged abuser. It owed no duty to Burney in this case, and without a duty, it cannot be held liable for negligence. Burney attempts to find a duty owed to him under certain sections of the Kansas Manual of Youth Services (KMYS). He also seizes upon certain mandatory terms used in K.S.A. 38-1523. This statute states in relevant part: “(a) [SRS] and law enforcement officers shall have the duty to receive and investigate reports of child abuse or neglect for the purpose of determining whether the report is valid and whether action is required to protect the child from further abuse or neglect. If the department and such officers determine that no action is necessary to protect the child but that a criminal prosection should be considered, the department and such law enforcement officers shall make a report of the case to the appropriate law enforcement agency. “(b) When a report of child abuse or neglect indicates (1) that there is a serious physical injury to or serious deterioration or sexual abuse of the child and (2) that action may be required to protect the child, the investigation shall be conducted as a joint effort between [SRS] and the appropriate law enforcement agency or agencies, with a free exchange of information between them. If a statement of a suspect is obtained by the law enforcement agency, a copy of the statement shall be provided to [SRS] on request.” Section 1220 of the KMYS provides that preliminary risk assessment “[c]onsists of gathering sufficient information upon which to make an initial assessment of risk, service needs, eligibility. .. . Such reports . . . [r]equire a search of agency files to determine if there is an open or closed case for the child or family.” Section 2210 of the KMYS provides: “After becoming familiar with the allegations of the report the worker shall . . . [r]eview information in closed/open agency cases regarding the child, parent, custodian or alleged perpetrator.” Burney’s argument is based on the language in P.W., which indicates that the use of mandatory terms such as shall, must, or will may create a special duty. The mandatory terms used in 38-1523 and KMYS §§ 1220 and 2210 must be read in context. These directives are used in connection with the performance by SRS of its public duty to investigate allegations of child abuse. The existence of those mandatory terms relied upon by defendant do not create or even imply that the duties outlined are owed to a child abuser or any other party. Plaintiff’s argument is without merit. We conclude that SRS owed no duty to Burney, and we reverse the negligence verdict in favor of Burney. TORT CLAIMS ACT We also conclude that SRS was immune from liability in this case under the Kansas Tort Claims Act, K.S.A. 75-6101 etseq. The relevant sections of K.S.A. 75-6104 provide: “A governmental entity or an employee acting within the scope of the employee’s employment shall not be hable for damages resulting from: “(c) enforcement of or failure to enforce a law, whether valid or invalid, including, but not limited to, any statute, rule, or regulation, ordinance or resolution; “(d) adoption or enforcement of, or failure to adopt or enforce, any written personnel policy which protects persons’ health or safety unless a duty of care, independent of such policy, is owed to the specific individual injured, except that the finder of fact may consider the failure to comply with any written personnel policy in determining the question of negligence; “(e) any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee, whether or not the discretion is abused and regardless of the level of discretion involved.” Burney claims that SRS was negligent in failing to follow certain mandatory provisions of the KMYS. It appears to us that in two or more instances SRS may have failed to follow its own rules by failing to review files and by failing to provide information in its possession to the Kansas City Police Department. At one time, Burney could have built a valid action against SRS on this basis. He no longer may do so. The Kansas Supreme Court in Fudge v. City of Kansas City, 239 Kan. at 375, permitted the plaintiff to predicate liability on the city because the police department failed to follow a mandatory provision of its own handbook. Fudge, however, was apparently not a popular decision with the Kansas Legislature. After the decision in Fudge, the Kansas Legislature amended 75-6104(d), which now reads as set forth above. As we said in Beebe-. “The amendment [K.S.A. 75-6104(d)] was clearly intended to negate at least part of the holding of [Fudge].” 22 Kan. App. 2d at 497. K.S.A. 75-6104(d) as it now reads provides immunity to SRS from liability premised on the failure of its investigators to comply with the statutory provisions or the KMYS in question. SRS in this case is immune from liability for that failure. Pursuant to the same reasoning, SRS is immune from liability for its failure to provide to the Kansas City Police Department all of its flies relating to J.S., under K.S.A. 75-6104(c) and (d). The next claim of liability is based on the failure of SRS to conduct a proper investigation. We have held the decision as to whether to open a file for further investigation is a discretionary function. Beebe, 22 Kan. App. 2d at 496. We hold that the manner of conducting an investigation into a charge of child abuse is also a discretionary function. SRS is granted immunity from liability in the performance of discretionary functions by the provisions of 75-6104(e). If there was any fault or negligence on the part of SRS in conducting the investigation into the allegations of child abuse in this case, no liability could be predicated on that fault under the aforementioned section of the Kansas Tort Claims Act. In summary, we hold that under the Kansas Tort Claims Act, SRS was immune from liability for damages resulting from its negligence or its malicious prosecution of Burney. MALICIOUS PROSECUTION The jury found that SRS acted with malice and was guilty of malicious prosecution. For a number of reasons, including our decision on the tort claims act as stated earlier, that verdict cannot stand and must be reversed. In Lindenman v. Umscheid, 255 Kan. 610, Syl. ¶ 7, 875 P.2d 964 (1994), the Supreme Court indicated that malicious prosecution required the proof of five elements: "The following elements are required to establish a malicious prosecution claim: (1) Defendant initiated, continued, or procured the proceeding of which complaint is made; (2) defendant in doing so acted without probable cause; (3) defendant acted with malice; (4) the proceedings terminated in favor of plaintiff; and (5) plaintiff sustained damages.” If SRS is immune from liability for the performance of any of the five elements required to prove malicious prosecution, then it cannot be held liable for that tort under the Kansas Tort Claims Act. The first element required to be shown is that SRS “initiated, continued, or procured the proceeding of which complaint is made.” In this case, SRS did not institute or sign the complaint; that was done by the district attorney’s office. SRS did, however, under the requirement of law furnish information regarding its investigation to the district attorney’s office. That information, along with the investigation by the Kansas City Police Department, presumably led to the filing of the charges against Burney. K.S.A. 38-1523(b) requires that in the case of an allegation of sexual abuse, SRS “shall” conduct a joint investigation with the appropriate law enforcement agency and shall freely exchange information with it. An identical statement is found in the KMYS. The fact is, in making reports to the Kansas City Police Department, SRS was enforcing both the law and its own policy. K.S.A. 75-6104(c) and (d) provide immunity to SRS from liability for its actions in enforcing a law or regulation. SRS is immune from liability for its furnishing of information to the Kansas City Police Department or to the Wyandotte County District Attorney’s office. The first element required in proving malicious prosecution cannot be a predicate for liability. We further conclude diere is insufficient evidence of malice in this case to sustain the verdict. We understand that proof of malice is a question of fact. We are also extremely reluctant to set aside the verdict of a jury. Despite our reluctance, we have no choice but to reverse this verdict because there is no evidence of malice to support it. Malice has been defined as “evil-mindedness or specific intent to injure” or as a state of mind characterized by an intent to do a harmful act without a reasonable justification or excuse. Turner v. Halliburton Co., 240 Kan. 1, 8, 722 P.2d 1106 (1986); PIK Civ. 2d 3.04. At the very best, the evidence in this case shows that SRS did what it was required by law to do — conduct an investigation on a report of child sexual abuse. The fact that it may not have conducted a perfect investigation cannot be equated with “evil-mindedness or specific intent to injure.” In Clevenger v. Catholic Social Services of the Archdiocese of Kansas City, 21 Kan. App. 2d 521, Syl. ¶ 3, 901 P.2d 529 (1995), we said: “It is the public policy of this state to encourage persons to report any information concerning possible child abuse to the proper authorities.” While these remarks were not made with SRS in mind, we think them to be equally appropriate when we consider the obligation of that agency and what we ask it to do. It is surely the public policy of this state to encourage SRS and its agents to investigate reports of sexual child abuse. We went on to say in Clevenger: ‘We recognize the importance of the stated public pol icy concerning the required reporting of child sexual abuse. We consider it vital that we not create conditions which might chill the prompt reporting of incidents of abuse to the proper authorities.” 21 Kan. App. 2d at 529. It would be of little value to encourage reporting of incidents to SRS if the threat of lawsuits chills the ability of SRS to conduct an investigation into such incidents. We believe that it is equally important that we not create conditions which might chill the prompt investigation of incidents of abuse by SRS. This case, along with P.W. and Beebe, show the conundrum in which SRS frequently finds itself. If it does not promptly and vigorously investigate claims of child abuse, it gets sued for its lack of aggressiveness and blamed for injury to the child. If it does aggressively investigate a claim of child abuse, it can be sued, as it was here, by the alleged abuser for its aggressiveness. We must balance the right to recover damages by an aggrieved citizen with the protection of our children from reported abuse. It would not serve the public good to subject SRS to lawsuits every time it does not conduct a perfect investigation. For that reason, SRS should not be guilty of malice unless there is strong convincing evidence of malice presented. In Clevenger, 21 Kan. App. 2d 521, we adopted two rules which we believe are equally applicable to actions against SRS. Those rules are set forth at Syl. ¶¶ 4 and 5 of that opinion. We hold that in an action for malicious prosecution based upon an alleged negligent investigation of a report of sexual abuse of a child, malice may not be shown by the mere fact that SRS investigators made such an investigation or by the fact that the individuals conducting the investigation were negligent in some aspect. We also hold that in an action against SRS for malicious prosecution based upon an alleged wrongful investigation into a report of child abuse, a plaintiff must produce direct evidence of malice or prove facts which show that a defendant had a motive or reason for acting maliciously in investigating or reporting the alleged abuse. We adopt those rules as applicable to cases for malicious prosecution against SRS. We have carefully reviewed the record in this case, and we find that, at best, the evidence shows that SRS may have been negligent in conducting its investigation. We find no direct evidence of malice, nor can we find any reason to indicate that the SRS investigators had a reason or motive for acting maliciously. This is a case where there was a claim of sexual abuse made by a young high school student. As a result of that claim, an investigation was conducted. That investigation revealed that Burney had a history of prior sexual misconduct and that the claim of J.S. was supported by some of her classmates. These facts alone justified and required that an investigation proceed and that the information obtained in that investigation be shared with the appropriate law enforcement agency. SRS did as the law required. The Kansas City Police Department conducted its own investigation and, after reviewing all of the information, the Wyandotte County District Attorney’s office made a decision to prosecute. A trial judge presided over the preliminary hearing, found probable cause to believe the crime had been committed and that defendant had committed it, and bound defendant over for trial. There is abundant evidence in this record that SRS did nothing more than it was required by law to do, and there is no evidence to justify a finding that it acted with malice. 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Lewis, J.: This is the third láwsuit spawned by a protracted and acrimonious dispute between the plaintiffs and the City of Concordia (City). The dispute involves a tract of real estate 189.7 feet long by 25 feet wide. The plaintiffs claim they are the owners of what we will refer to as “the disputed tract.” The City denies any claim of ownership in the tract. Despite this fact, there are certain public records which state that the City is the owner of the disputed tract. On oral argument, the City’s attorney advised this court that the City had offered to give the plaintiffs a quitclaim deed to the disputed tract, but the plaintiffs had refused the same, insisting they wanted damages. The plaintiffs’ present action seeks damages from the City and Cloud County (County) based upon slander of title. The plaintiffs also sought a quiet title decree against both defendants. The trial court granted summary judgment in favor of the defendants, and the plaintiffs have appealed. At the time of oral arguments, the parties advised this court that the plaintiffs no longer sought relief against the County. This was done, we assume, in view of the County’s apparent immunity from suit under the statutes of this state. Based upon the announcement by the parties, we do not reach plaintiff’s causes of action seeking relief against the County. The facts of this case are not particularly stimulating. However, we find it necessary to undertake a rather exhaustive review of those facts for a full explanation of our decision. In 1964, the plaintiffs purchased the following described tract of real estate from D. J. and Madeline M. Blackwood, husband and wife: “Tract One (1) of a Subdivision of a fraction of Southeast Quarter (SE-/4) of the Southeast Quarter (SE1/*) of Section Five (5), Township Six (6) South, Range Three (3).” In 1967, the plaintiffs obtained a deed to the same tract from Robert Snyder and Yvonne Snyder, husband and wife. This deed contained the same description as the deed from the Blackwoods, described above, except that it went on to add the following language: “[According to the Plat thereof on file in the Offices of the Register of Deeds of Cloud County, Kansas, and recorded at page Forty-four (44) of Plat Book Three (3) of the Records” of that office. It also appears that, subsequently, plaintiffs executed a mortgage on the premises which utilized the same description. An examination of the plat in question is required to ascertain the exact location of the tract and its boundaries. The description and the deeds to the plaintiffs contained no points of beginning and recite no metes and bounds to indicate the size of the tract in question. Under these circumstances, the plat of the tract on file in the office of the register of deeds became in essence a part of the legal description set forth on the deed. In Fitzpatrick v. Crowther, 100 Kan. 355, Syl. ¶ 1, 164 Pac. 300 (1917), the Supreme Court said: “A general warranty deed conveyed twenty-four lots described by numbers and as fronting on certain streets ‘all in Jones’ addition to the city of Salina, Kansas.’ Held, the plat of the addition mentioned being then on record became a part of the deed for the purpose of identifying the property and for certainty in the description to the same effect as if the reference to the addition had been followed by the phrase ‘according to the recorded plat thereof.’ ” In Roberts v. Osburn, 3 Kan. App. 2d 90, 99, 589 P.2d 985, rev. denied 225 Kan. 845 (1979), we said: “The practice of referring to a plat in order to describe property which is being deeded is discussed at 23 Am. Jur. 2d, Deeds § 232, p. 274: ‘Such a reference to another instrument for description of the subject matter has the effect of incorporating such instrument into the description so that that which is described will pass. When reference is made to a map or other document as describing the land, the description appearing in such map or document is made a part of the deed as fully and effectually as if copied therein, provided the deed and the document of reference together yield such description as would have been sufficient if set forth entirely in the deed.’ ” It is also worth noting, at this point, that in Kansas the grantor does not represent or guarantee the courses, distances, measurements, or quantity of the lots to be set forth in the recorded plat. Fitzpatrick v. Crowther, 100 Kan. 355, Syl. ¶ 2. Thus, in Fitzpatrick, the plan indicated the lots were 150 feet long and 1,220 feet wide. A survey revealed that the lots were in fact only 134.8 feet wide and 1,105 feet long. The grantee attempted to sue the grantor for the shortage but was unsuccessful based upon the rule announced by the court relative to what is guaranteed by a grantor under the circumstances. In this case, resort to the plat of the tract in question is necessary to determine its location and its size. An examination of that plat indicates that the plaintiffs’ east boundary line is located 25 feet west of the east section line of section 5. The plat indicates that running along the east section line of section 5 and 25 feet on each side thereof is a county road, which was also designated as Republican Street in the City of Concordia. Despite what the plat appears to show, the plaintiffs have considered their east boundary line to be the section line, which is some 25 feet east of the boundary line of tract I as shown on the plat. The trouble with plaintiff’s title began in 1984. At about that time, the City apparently decided to improve Republican Street, which lies on each side of the east section line of section 5. As a part of that process, the City obtained a quitclaim deed from the county to the following described tract of real estate: “A tract of real estate located in the Annex South Republican Street in Concordia, Kansas, beginning at the Southeast Comer of Section Five (5), Township Six (6) South, Range Three (3) West, in Cloud County, Kansas, thence North along the East line of Section Five (5), Nine Hundred Ninety (990) Feet; thence West Twenty-five (25) Feet to a point being on the South line of College Heights Addition to Concordia, Kansas; thence South parallel to the East fine of Section (5), Nine Hundred Ninety (990) Feet to the South fine of Section Five (5); thence East Twenty-five (25) Feet to the point of beginning, all of said real estate being locate[d] in Cloud County, Kansas.” The record indicates that thfe metes and bounds description set forth above was developed by reference to the plat which includes tract I and which is on record in the office of the register of deeds. The deed from the County was intended to quitclaim to the City any interest the County may have had in the county road, now Republican Street, which was purportedly located on each side of the section line. There is, however, no clear evidence that either the county road or Republican Street was ever open, and it is impossible for us to determine whether the County had an interest in the real estate to quitclaim to the City. It is of importance to note that the description of the tract quitclaimed by the County to the City includes the disputed tract. That tract, as pointed out earlier, is 189.7 feet by 25 feet, whereas the tract deeded to the City is 990 feet by 25 feet. If one examines the plat and compares the description of plaintiff’s tract with the tract described in the quitclaim deed, one would not find the descriptions to be overlapping or conflicting. Indeed, an examination of the plat of tract I indicates that the eastern boundary of that tract is 25 feet west of the section line. The tract quitclaimed to the City by the County begins on the section line and runs from that line 25 feet west. This deed appears to convey an area west of the section line of section 5, which plaintiffs did not own, at least from a visual examination of the plat to tract I. The plaintiffs claim they own the disputed tract and that the metes and bounds measurements shown on the plat are wrong. The plaintiffs have presented evidence to the effect that if one begins at the northwest comer of tract I and measures 250 feet east, the east boundary line of tract I is, in fact, the section line and, thus, they lay claim to this disputed area. The plaintiffs have contributed some to the confusion. Prior to the annexation by the City, the plaintiffs gave the City an easement on the following described real estate: “The East Ten Feet (E.10’) of the following described tract of land: “Tract 1 of a Subdivision of a fraction of Southeast Quarter (SE Vi) of the Southeast Quarter (SE Vi) of Section Five (5), Township Six (6) South, Range Three (3) West of the 6th P.M., in Cloud County, Kansas, more fully described as follows: Beginning at a point 30 feet North and 25 feet West of the Southeast Comer of the Southeast Quarter (SE Vi) of the Southeast Quarter (SE Vi) of said Section Five (5), thence West 250 feet parallel to the South line of said Section Five (5), thence North 189.7 feet parallel to the East line of said Section Five (5), thence East 250 feet, thence South 189.7 feet to the point of beginning and containing 1.09 acres more or less.” This consent to easement and annexation covering the real estate described above was recorded with the register of deeds. The description in this deed is consistent with the apparent boundaries of the plaintiffs’ real estate as shown by the plat. In other words, the tract described in the consent to easement and annexation documents has an eastern boundary which is located 25 feet west of the section line on section 5. The consent to easement and annexation does not cover the disputed tract. In 1988, the County’s taxing authorities prepared a real estate assessment record. This record describes a tract of real estate as follows: “A trfact] of land located in the annex South Republican Street Beginning at the Southeast Comer of 5-6-3 North along the E[ast] line of secftion] 5, 990'; thence W[est] 25' to a p[oint] being on the S[outh] line of College Heights Addition]; thence S[outh] parallel to e line of secftion] 5, 990' to s line; thence E 25' to pob [street.]” The real estate assessment record shows the owner of this tract as “City of Concordia.” The 990-foot by 25-foot tract described in the real estate assessment record includes the disputed tract which is involved in this lawsuit. As we pointed out, there were two prior lawsuits essentially litigating the same issue. In 1986, the City sought to annex the undisputed portion of the plaintiffs’ real estate into the City. The plat referred to earlier in this opinion was used to describe the property. At the annexation hearing, the plaintiffs argued their tract was not properly shown on the plat. An engineer for the City confirmed that a mistake had been made in the distance calls on the plat, and the plaintiffs apparently tried to block the annexation by claiming their property was not correctly described. Despite those complaints, the plaintiffs’ tract was annexed into the City. The plaintiffs appealed the annexation to the district court in case No. 87-C-01. That court limited its scope of review to the question of whether the City had the authority to annex the property, and the court held that it did. The court went on to find: “3. The legal description of plaintiffs’ land annexed by the City’s Ordinance No. 2469, described as: Tract one (I) of a Subdivision of a fraction of Southeast Quarter (SE Vi) of the Southeast Quarter (SE Vi) of Section Five (5), Township Six (6) South, Range Three (3) West, in Cloud County, Kansas, more fully described as follows: Beginning at a point 30 feet North and 25feet West of the Southeast Comer of the Southeast Quarter (SE Vi) of the Southeast Quarter (SE Vi) of said Section Five (5), thence West 250 feet parallel to the South line of said Section Five (5), thence North 189.7 feet parallel to the East line of said Section Five (5), thence East 250 feet, thence South 189.7 feet to the point of beginning and containing 1.09 acres more or less, according to the plat thereof on file in the Cloud County, Kansas Register of Deeds Office, page 44 of Plat Book #3, except the East Ten Feet (E. 10') thereof, previously voluntarily annexed by the owners thereof to the City of Concordia, Kansas, is sufficiently described for purposes of annexation, so that all persons had notice as to what was being annexed and the purpose.” (Emphasis added.) This description, deemed adequate by the court in the annexation case, did not include the disputed tract. The plaintiffs then filed a quiet title suit against the City in case No. 87-C-100. In that action, the trial court granted summary judgment in favor of the City and held: “1. . . .The City’s motion for summary judgment is granted for the legal reasons set forth in the City’s brief filed herein, because plaintiffs are collaterally estopped from raising the issues set out in their pleadings by virtue of failure to file a timely appeal from the summary judgment adverse to plaintiffs in Case No. 87-C-01 .... “2. The Court further finds and orders that the city claims no interest in any real estate owned by plaintiffs by virtue of the annexation proceedings in Case No. 87-C-01 except easements of record and that the annexation proceedings constitute no cloud on plaintiffs’ title to any of plaintiffs’ real estate, and that plaintiffs continue to own their real estate situated in Cloud County, Kansas except and subject only to easements and restrictions of record.” In 1988, both plaintiffs and the City appeared before the Board of Tax Appeals (BOTA) concerning the issue of who owned the disputed tract and who should pay the taxes on it. The plaintiffs took the position that the City had “taken” the disputed tract from them and that this had decreased the value of their property. BOTA found, among other things, as follows: “5. The difference in legal descriptions used in the annexation proceedings is direcdy attributable to the fact that the City had already annexed the 25 [feet] of the LaBarge property subject to a street easement. We can agree that the legal description may inadvertently extend 25 feet beyond Tract l’s boundary. However, the annexation proceedings only established city boundaries, not the LaBarge[s’] ownership. “6. It is possible that annexation could affect value if inclusion in a municipal taxing district radically increased the tax burden for a particular property. However, we find no evidence that the market value was altered by this single factor alone. “7. The County offered to ‘correct’ the legal description for assessment purposes. We find no evidence that the legal description for Tract 1 was ever changed, except to note the additional street easements. However, we agree that assessment records should reflect the actual property owned and the easements of record. If any change in the records is required to reflect the actual property owned, Cloud County is directed to do so.” The final confusion as to who owns what occurred when the county tax assessment records, referred to above, were completed by the County. In the present lawsuit, the plaintiffs attempt to quiet title to the disputed tract. The trial court refused to do so and granted summary judgment on the quiet title action in favor of the defendants, finding: “The pleadings in Cloud County Cases No. 87-C-01 and 87-C-100 reveal that the same issues raised in the instant case either were or could have been raised in one or both of the previous cases.” In the slander of title action, the court granted summary judgment in favor of the defendants, finding that the defendants had not slandered the title of the plaintiffs. The court went on to find: “2. LaBarges’ pre-December 31, 1987, claims are barred by res judicata, the applicable statutes of hmitation[s], failure to appeal and estoppel by judgment. “3. LaBarges’ post-December 31, 1987, claims are barred by the applicable statutes of hmitaüons and the failure to appeal.” From the trial court’s decision, the plaintiffs have appealed. SLANDER OF TITLE The plaintiffs argue that this case should have gone to trial on the factual question of whether the City slandered its title. We do not agree. To begin with, it is difficult, under the facts shown, to find an actionable slander of the plaintiffs’ tide. The plaintiffs’ slander of tide action is premised entirely on the fact that the county tax assessment rolls show the City as the owner of the disputed tract. We agree with the trial court that any actions taken by the City or Cloud County which occurred prior to December 31, 1987, are barred by res judicata, collateral estoppel, and because the plaintiffs failed to appeal the trial court’s decision against them in cases Nos. 87-C-01 and 87-C-100. Whether the trial court was right or wrong in the decision reached in those two cases is irrelevant. The plaintiffs did not appeal either decision and are in no position to raise issues in this case which either were or could have been disposed of in those two cases. The plaintiffs’ slander of tide action, however, is based on events which took place after those two lawsuits were decided. The question we must decide is whether the City slandered the plaintiffs’ title when the County compiled its tax assessment roles in 1988 and named the City as the owner of the disputed tract. “Slander of title is defined as ‘a false and malicious statement, oral or written, made in disparagement of a person’s title to real or personal property, causing him injury.’ 50 Am. Jur. 2d, Libel & Slander § 539, p. 1058.” Safety Federal Savings & Loan Ass’n v. Thurston, 8 Kan. App. 2d 10, 13, 648 P.2d 267 (1982). If the plaintiffs are truly the owners of the disputed tract, then the statement showing the City as the owner is wrong and, if it is malicious, it may very well have been a slander to the plaintiffs’ title. The plaintiffs’ problem is that the slander, if indeed there was one, was not committed by the City but by the County in the preparation of its tax assessment rolls. The City had absolutely nothing whatsoever to do with the County’s published conclusion that it owned the disputed tract. K.S.A. 79-408 requires the county clerk to compile the real estate assessment rolls for the county. The statute provides that such a roll “shall contain a correct and pertinent description of each piece, parcel or lot of real property in numerical order as to lots and blocks, sections or subdivisions.” The clerk is directed to consult the “real estate transfer record in the office of the clerk, the records and plats in the office of the register of deeds” in compiling the tax assessment rolls. The tax assessment rolls in this case accurately reflect what is shown by the plat and the records on file in the office of the register of deeds. As we pointed out earlier, the plat clearly shows that the eastern border of the plaintiffs’ tract I is 25 feet west of the east section fine of section 5. The only instrument of record which described the disputed tract is the deed from the County to the City. The assessment rolls reflect what those records show. The tax assessment rolls are prepared for use in the assessment of taxes. K.S.A. 1995 Supp. 75-6104 provides: “A governmental entity or an employee acting within the scope of the employee’s employment shall not be liable for damages resulting from: (f) the assessment or collection of taxes or special assessments.” The term “governmental entity” is defined in this state to include both county and a city. See K.S.A. 1995 Supp. 75-6102(b) and (c). It is obvious that the County cannot be held liable in damages resulting from the preparation of its tax assessment rolls, and we so hold. These rolls were prepared to assist in the assessment and collection of taxes, and the County is specifically immune from liability by the statute quoted above. It is difficult to fathom how the City could be responsible for the preparation of a document it had nothing to do with and could not have changed if it wanted to. In any event, the immunity provided to the County by 75-6102(b) and (c) extends to the City under the facts shown. If the County is granted immunity from liability in the preparation of its tax rolls, surely that immunity must extend to an innocent party who may have been wrongly named as the owner of a particular tract. We conclude the immunity of the County for damages under the circumstances shown extends to any potential liability on the part of the City which played no role in making up the tax assessment records. In any event, even if the City were not immune, we conclude the evidence shows that the City did nothing with regard to the tax assessment rolls which caused the plaintiffs’ title to be slandered. We also agree with the trial court that the plaintiffs’ action for slander of title was barred by the applicable statute of limitations. If there was a slander of title, it occurred in 1988 when the tax assessment record was prepared and filed. Although we cannot pinpoint the exact date on which the plaintiffs learned that the City had been listed as the owner of the disputed tract, we know that by at least August 1989 the plaintiffs were aware of this fact. This lawsuit was filed on June 20, 1994 — nearly 5 years after the plaintiffs discovered the alleged slander. In Kansas, there is no specific statute of limitations dealing with slander of title: “[T]he view adopted in a majority of the several American jurisdictions where the question has arisen is that in the absence of a statute expressly referring to actions for slander of tide, a statute of limitations relative to actions for libel and slander is equally applicable to actions for slander of tide.” Annot., 131 A.L.R. 838. See, c.g., Norton v. Kanouff, 165 Neb. 435, 86 N.W.2d 72 (1957). We believe the majority view is correct, and we hold that in Kansas K.S.A. 60-514(a) is the applicable statute of limitations dealing with actions for slander of title. Under that statute, an action for slander must be brought within 1 year. In this case, nearly 5 years passed since the publication and discovery of the alleged slander, and we conclude that the plaintiffs’ action for slander of title was barred by the statute of limitations. The plaintiffs argue that under Dwelle v. Home Realty & Inv. Co., 134 Kan. 520, 525-26, 7 P.2d 522 (1932), the slander continues for as long as it remains on record. The plaintiffs argue that under those circumstances, any action filed while the slander remains of record is filed within the statute of limitations. We agree that Dwelle contains language that is supportive of the argument made by the plaintiffs. However, under tire facts shown, whether the slander was continuous or not is largely irrelevant. In our view, the statute of limitations began to run on the date the plaintiffs discovered that their title had been slandered. See, c.g., McKown v. Dun & Bradstreet, Inc., 744 F. Supp. 1046, 1049 (D. Kan. 1990). We do not believe that a plaintiff can discover that a slander exists and then wait as long as he or she pleases or until his or her damages increase on the theory that the slander is continuous. The theory advanced by the plaintiffs in this case would extend the period of limitation for an indefinite and unforeseeable period of time after the wrong is discovered. This is not the law, and we consider such a proposition to be at variance with the policy behind the statute of limitations. We do not hesitate to hold drat the plaintiffs’ slander of title action was barred by the applicable statute of limitations. QUIET TITLE SUIT The final question presented is whether the plaintiffs should have been permitted to proceed with their quiet title action. That action is based solely on the publication of the tax assessment rolls by Cloud County in 1988. For that reason, it is not barred by the judgment in cases Nos. 87-C-01 or 87-C-100. It is not possible to argue that the plaintiffs should have raised a cloud on their title in 1987 which did not exist until 1988. K.S.A. 60-1002 allows an owner of real estate to bring a quiet title suit “against any person who claims an estate or interest therein” which is adverse to that of the owner. The action may be brought “for the purpose of determining such adverse claims.” The tax assessment rolls of Cloud County show the City to be the owner of the disputed tract, which is adverse to the interest claimed by the plaintiffs in the disputed tract. This record may or may not show up in an examination of the records of the register of deeds, but that does not mean it does not exist. The record shows that the City may be an adverse claimant to the ownership of the plaintiffs as to the disputed tract in question. That surely creates a circumstance under which the plaintiffs would be entitled to quiet title to the real estate. It appears to us there is a genuine question as to who owns the disputed tract. As we have said, a visual examination of the plat to tract I indicates that the plaintiffs do not own the disputed tract and one could conclude that the tax assessment record is correct in its conclusion that the City owns that tract. There is, however, ample evidence in the record to show that the distance calls on the plat in question are incorrect and that, in fact, the plaintiffs have a valid claim to ownership of the disputed tract. So long as there is no judicial determination as to who owns that tract, the ownership will remain a mystery and the City will remain an adverse claimant to any interest the plaintiffs may have in the disputed tract. The ownership of the disputed tract is being litigated for the third time and, as of yet, no court has ruled on the merits of the plaintiffs’ quiet title suit. We do not believe that this state of affairs is of benefit to any of the parties to this action or to the public in general. This suit is different from the first two in that it involves an adverse claim, which springs from a record which was not created until 1988. We think it to be in the public interest to determine who, in fact, owns the disputed tract. We hold that the plaintiffs have shown that the defendants may claim an adverse interest in the real estate by virtue of the tax assessment rolls which show the City to be the owner of the tract around which this action revolves. The trial court erred in concluding that as to this claim, the plaintiffs’ quiet title action was barred by prior judgment or statutes of limitations. It erred in granting summary judgment to the defendants as to the plaintiffs’ quiet title action. We reverse and remand the quiet title action only for trial. This matter could be rather easily resolved by the execution of the quitclaim deed from the City to the plaintiffs, quitclaiming any interest the City may have in the disputed tract. The City has advised this court on oral argument that it does not claim an ownership interest in the disputed tract. Under these circumstances, we believe that with our resolution of the plaintiffs’ damage claims, some settlement of the title issues presented in this case should be possible. We urge the parties to reach such a settlement. If they cannot, the trial court will determine the validity of the claims to the disputed tract on remand. Affirmed in part, reversed in part, and remanded.	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KNUDSON, J.: K.P., the birth mother of N.A.P., appeals the district court’s denial of her motion to withdraw consent to adoption. K.P. raises three issues: (1) Did the district court err in its interpretation of K.S.A. 59-2115 and determination that K.P. was provided independent legal counsel? (2) Did the district court err in concluding that consent to the adoption was freely and voluntarily given as required under K.S.A. 59-2114? (3) Did the district court err in its evidentiary ruling excluding certain evidence? K.P. was a 17-year-old high school student when she gave birth to N.A.P. on April 3, 1995. Shortly after N.A.P.’s birth, K.P. and her mother were referred to attorney Susan Ellmaker to discuss the possibility of adoption. Ellmaker referred them to one of her associates, attorney Michelle Groth. All of the parties are in general agreement that during the first meeting Groth outlined adoption proceedings under Kansas law and discussed telling A.F., the birth father, of N.A.P.’s birth. Groth knew that K.P. and A.F were 17 years old. This first meeting concluded with K.P. needing to decide whether she wanted to consider the adoption of N.A.P. Over the weekend, K.P.’s mother contacted K.P.’s aunt in Oklahoma. K.P.’s aunt knew of a couple interested in pursuing an adoption. K.P.’s mother misrepresented to the aunt that one of K.P.’s friends had given birth to a baby and was considering adoption. It is not altogether clear from the record on appeal, but K.P.’s aunt contacted B.H. and D.H. (hereafter called the adopting parents), and they, in turn, initiated contact with Groth through their Oklahoma attorney, Phyllis Zimmerman. Groth told Zimmerman that if K.P. decided to have her baby adopted, it would be a Kansas adoption, with Groth representing all of the parties. Groth explained to Zimmerman that dual representation is permitted in adoption proceedings, provided there is no conflict of interest between the parties. The following Monday, K.P. decided to proceed with the adoption of N.A.P. Groth provided K.P. with resumes and biographical sketches of couples interested in adoption, which she began to review. On that same day, the adopting parents sent their biographical information to Groth’s office; K.P. was given their biographical sketch as well. On Tuesday, K.P. and her mother talked by telephone with the adopting parents. At that time, K.P. told them that she was serious about their adoption of N.A.P. Thus encouraged, the adopting parents agreed to come to Kansas the next day and meet with K.P. and her family. On Wednesday, the parties met at the home of K.P.’s mother, and a decision was made to proceed with the adoption. The adopting parents made an appointment to meet with Groth the next morning. K.P.’s previously scheduled appointment with Groth was not supposed to be until Friday; however, because of the agreement for adoption, K.P. decided to reschedule her appointment so that the parties could all meet with Groth the next morning. K.P.’s expectations for the meeting were that the parties would place of record their agreement regarding future contacts between K.P. and N.A.P. after the adoption was final and that she and A.F. would execute the required consents to adoption. Unbeknownst to K.P., the adopting parents’ meeting was rescheduled by Groth’s office for the following afternoon. Why their meeting was rescheduled is not clear from the record. The next morning, less than an hour before the scheduled meeting, Groth realized that under Kansas law, K.P. and A.F. were to be provided independent legal counsel. Groth informed Ellmaker, who then asked another attorney, Doug Wood, whose office was in the same suite as Ellmaker’s, to meet with the birth parents and give them independent legal advice regarding the consequences of consent and have them execute the consent forms prepared by Groth’s office. Either Ellmaker or Groth met with Wood for 5 minutes and gave him a cursory review of K.P.’s situation. In a subsequent meeting with K.P. and A.F., Wood (1) elucidated the nature of the free and voluntary consent; (2) inquired as to whether they were signing the consent because of undue influence or coercion; and (3) explained that after they signed the consent, it would be irrevocable, except under limited circumstances which Wood spelled out. Unfortunately, there was a problem with Wood’s tape recorder, and the actual conversation prior to execution of the consents was not recorded. After discovering the problem, Wood had the presence of mind to immediately record the following discussion with the birth parents: “[WOOD]: It is now about ten minutes to eleven, 10:50, on April 13, 1995, and we are here with [K.P.] and [A.F.]. “And we have shortly — a short time ago completed the signing of a consent to adoption of minor child form, and affidavits in reference to American Indian ancestry, as well as — by each of the two parents, [A.F.] and [K.P.], as well as [K.P.] signing a residency affidavit and an affidavit regarding the identity of the putative father. Each of them also signed their portion of the completed — completed and signed their portion of the genetic parent information form for the Interstate Compact, and have also signed the medical authorization form to obtain medical records on [N.A.P.] from Shawnee Mission Medical Center. “[K.P.], since we didn’t get the proceedings on tape, I’m going to ask some questions regarding your consent. “First of all, [K.P.], you understand that you’re consulting me as your independent attorney to receive advice and counsel? “[K.P.]: Yes. “[WOOD]: And despite the fact that your fee or expenses for my services will be paid by the adoptive couple or their attorney, that I represent you and not them? “[K.P.]: Yes. “[WOOD]: Okay. And that I have advised prior to the signing of your consent form that the consent form is a document that needs to be signed freely and voluntarily; and that once it is so signed, that the consent to place the child for adoption is irrevocable? “[K.P.]: Yes. “[WOOD]: And have you signed that consent form freely and voluntarily? “[K.P.]: Yes. “[WOOD]: And you signed it without anyone putting any undue influence or coercing you, or — to sign it, or as a result of any fraud or mistake on your part? “[K.P.]: Yes. “[WOOD]: And you also signed the other affidavits that I made reference to; correct? “[K.P.]: Yes. “[WOOD]: And that your consent for the adoption is a conditional consent, conditional in the fact that you want the adoptive couple that you’ve designated to adopt this child and nobody else; correct? “[K.P.]: Correct. “[WOOD]: That if for some reason that adoption does not go through, you are to be consulted and have the child returned to you or to — for you to make [a] future independent decision regarding the child’s best interests? “[K.P.]: Yes. “[WOOD]: And I have it that you were bom [in 1978]? “[K.P.]: Yes. “[WOOD]: Okay. And that although you have some American Indian heritage, that neither you nor any of your ancestors, to the best of your knowledge, ever were registered with an American Indian tribe, nor lived on any American Indian reservation; correct? “[K.P.]: Correct. “[WOOD]: Okay. [A.F.], likewise, you signed your consent form. Did you do so freely and voluntarily? “[A.F.]: Yes. “[WOOD]: And did you do so without anybody coercing you or putting any undue influence on you to sign it? “[A.F.]: That’s correct. "[WOOD]: And that you understood that this was a consent to the adoption of [N.A.P.], and for no other reason. Nobody told you that this was not irrevocable. You understand that once you sign a consent, that it’s irrevocable except for the circumstances of undue influence, or duress, or fraud, or mistake, outside of the fact that your consent is conditional upon this adoption — this specific adoption going through; correct? “[A.F.]: Correct. “[WOOD]: And that you understand that you have some American Indian ancestry, but no one in your family to your knowledge has ever been registered with an American Indian tribe, nor lived on any American Indian reservation; correct? “[A.F.]: Correct. “[WOOD]: And I think that’s all we need to discuss. “Other than, [K.P.], I did mention to you on the Interstate Compact form you signed as the responsible party; and that as such that you would be notified if the Interstate Compact authorities were to notify you that the placement with this adoptive couple in Oklahoma did not go through; and you would be given the opportunity — in fact, have the responsibility of retrieving the child? “[K.P.]: Yes. “[WOOD]: Okay. I also advised you that some time between now, and I’d say, at the latest, April 28th, you should receive notice from our court here in Johnson County as to the exact date and place of the adoption hearing, and that your attendance to that hearing is not mandatory. If you intend to attend, I would like you to notify me so I can notify the other attorney. Those proceedings are closed, unless you’re invited to participate in the hearing itself. “The notice to you would be not only as a courtesy so that you would know when the adoption is finalized but also the date by which you file any defenses or advise the Court of any circumstances that you think the Court ought to be aware of regarding the adoption. Okay? “[K.P.]: Okay. “[WOOD]: And that notification would be — should be in writing in the form of pleading or notice, written notice of some sort. That’s pretty much it. “Is [sic] there any questions you had that we had on the tape before that didn’t get recorded? “[K.P.]: No.” We note that K.P. had previously discussed with Groth her wish to have continued contact with N.A.P. after the adoption was final, but the matter was not mentioned to Wood. However, we do know that in prior discussions with Groth, K.P. and her mother were informed and understood that K.P.’s desire to have future contacts with N.A.P. would not be legally binding. There never was a meeting between the adopting parents and K.P. to prepare a social plan for future visits, pictures, and correspondence. Groth continued to represent the adopting parents. On April 14, 1995, the petition for adoption and temporary custody was filed, and the adopting parents took custody of N.A.P. On May 16, 1995, K.P. went to Oklahoma to discuss with the adopting mother future visitation with N.A.P. The adopting mother told K.P. that when N.A.P. was old enough and had questions about K.P., they would contact her and set up a meeting. Since the adopting parents’ decision regarding K.P.’s future contact with N.A.P. was contrary to her expectations, K.P. told thé adopting mother that she would like to have N.A.P. returned to her. The hearing on the adoption-petition was scheduled for May 22, 1995. When K.P. returned from Oklahoma, she contacted Groth’s office and was referred to Wood. Although the record is not entirely clear, it is apparent during this time frame that the adopting parents were concerned about K.P.’s change of position and were in communication with Groth. On the morning of May 19, 1995, K.P. received a proposed social plan, which was signed by the adopting parents. The plan was not acceptable to K.P. Later that day, she met with Wood and informed him that she wished to withdraw her consent to the adoption. Knowing that he would undoubtedly be a witness in any hearing to consider the issue and believing that her adoption consent was freely and voluntarily given, Wood advised K.P. that he would not represent her. Wood did assist K.P. in preparing a motion for continuance of hearing to afford her an opportunity to obtain counsel. On May 22,1996, the district court granted the continuance, and K.P. retained her present counsel. The district court’s hearing lasted 5 days, which extended over a 2-month period, on K.P.’s petition to withdraw her consent to the adoption. At the conclusion of the hearing, the district court found that K.P. had been provided independent legal advice and that she had freely and voluntarily given her consent to the adoption of N.A.P. The court denied her petition and subsequently finalized the adoption. Was Independent Legal Counsel Provided? The first issue raised on appeal requires our review of K.S.A. 59-2115 to determine the scope of legal representation that is afforded a minor parent giving consent to an adoption. Prior to enactment of the 1990 Kansas Adoption and Relinquishment Act (K.S.A. 59-2111 et seq.), we note that the minority of a parent did not invalidate the parent’s consent to an adoption (K.S.A. 1989 Supp. 59-2102[d]) and that there was no legal requirement that the minor be provided independent legal counsel. K.S.A. 59-2115 states: “Minority of a parent shall not invalidate a parent’s consent or relinquishment, except that a minor parent shall have the advice of independent legal counsel as to the consequences of the consent or relinquishment prior to its execution. The attorney providing independent legal advice to the minor parent shall be present at the execution of the consent or relinquishment. Unless the minor parent is otherwise represented by independent legal counsel, the petitioner or child placing agency shall provide independent legal counsel to the minor parent at such petitioner’s or child placing agency’s sole expense.” In construing K.S.A. 59-2115, the district court reasoned that independent counsel was only required for a limited purpose — the natural mother was to be provided independent legal counsel to explain the legal consequences of signing the consent document and to be present when the document was signed. The statute does not require that the parent be provided an attorney for representation throughout the proceedings. We note that interpretation of a statute is a question of law, and our standard of review is de novo. Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, Syl. ¶ 1, 887 R.2d 140 (1994), rev. denied 257 Kan. 1091 (1995). We are also mindful that “a fundamental rule of statutory construction, to which all other rules are subordinate, is that the intent of the legislature governs if that intent can be ascertained.” City of Wichita v. 200 South Broadway, 253 Kan. 434, 436, 855 P.2d 956 (1993). We believe that the district court’s interpretation of K.S.A. 59-2115 is consistent with legislative intent. The statute on its face only requires independent legal counsel immediately prior to and at the time consent is executed. The legislature intended that the minor birth parent be afforded legal counsel to advise as to the consequences of executing a consent to adoption. It was not intended that the minor be provided legal representation for the adoption proceeding to follow. If the legislature would have intended full-blown legal representation for a minor, it would have said so. The legislative history of the Kansas Adoption and Relinquishment Act also supports our reading of the statute. This legislative act originated from a study of the Family Law Advisory Committee of the Kansas Judicial Council. In its comments to K.S.A. 59-2115, the committee stated: “Minors are afforded legal protection in regard to other decisions and it appears to the committee that the decision to give up a child merits attempts at protection as well. The proposed subsection would require independent legal counsel for a minor and the presence of the minor’s attorney at the time the instrument is executed. “Questions naturally arise as to the means for providing and paying for such independent counsel. The committee considered the possibility of having independent counsel appointed by the court. However, at the time independent counsel is needed the matter will not be pending before the court. . . . While there are concerns with the appearance of the petitioners or agency providing the independent counsel, there is also an incentive for such persons to insure a valid instrument is obtained and, consequently, to provide minors with attorneys who are truly independent of the petitioner or agency. “The proposal requires the minor’s attorney to be present at the time of execution in light of the fact that advice provided at an earlier time may diminish in value due to the intervening passage of time and birth of the child.” (Comment #5 to S.B. 431 [1990].) The report of the legislature’s interim committee, the Special Committee on Judiciary, added the following comment regarding K.S.A. 59-2115: “There would be a mandatory duty to advise, by independent legal counsel, parents who are under the age of majority, as to the consequences of the consent or relinquishment. The attorney is further required to be present at the execution of the consent or relinquishment.” The comments of the Family Law Advisory Committee of the Kansas Judicial Council and of the Special Committee on Judiciary indicate K.S.A. 59-2115 was intended to provide a minor parent with the benefit of independent legal advice before executing a consent to adoption, not to represent the minor parent throughout the subsequent adoption proceeding. K.P. also argues that she was, in fact, not provided independent legal counsel as required under K.S.A. 59-2115. This court’s standard of review is whether there is substantial competent evidence to support the district court’s determination that K.P. was provided independent counsel. “Substantial evidence is evidence which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved.” Williams Telecommunications Co. v. Gragg, 242 Kan. 675, 676, 750 P.2d 398 (1988). Wood testified at the trial that he was not associated in practice with Ellmaker’s office and that he presented himself to K.P. and A.F. as an attorney available to provide them with independent legal advice regarding the legal implications and consequences of executing a consent to N.A.P.’s adoption. Wood clearly explained to K.P. and A.F. that they were free to choose another lawyer. Woods’ testimony was, in part, corroborated by Groth. Additionally, the transcript of the tape recording, which was previously set out in this opinion, discloses that Wood questioned K.P. on her willingness to sign the consent and that she was aware of the legal ramifications of execution. Finally, we note that the learned trial judge heard extensive testimony on this issue and was able to observe each of the witnesses and assess their credibility. We conclude that there was substantial evidence in the record to support the district court’s determination that K.P. and A.F. did receive independent legal advice within the meaning of K.S.A. 59-2115. In making this determination, we express the same concerns and reservations regarding the ethical propriety of Ellmaker and Groth in undertaking dual representation of the adopting parents and the birth parents. The holding in In re Adoption of Irons, 235 Kan. 540, Syl. ¶ 7, 684 P.2d 332 (1984), expressly authorizing multiple representation in an adoption proceeding, is obviously distinguishable from this case. We believe that K.S.A. 59-2115 precludes multiple representations when a birth parent is a minor. Thus, our decision should not be construed as condoning the conduct of counsel. We simply came to the same conclusion as did the district court judge; i.e., while counsel’s professional conduct maybe questionable, it did not void the consent executed by K.P. Rather, the conduct of Ellmaker and Groth was another circumstance that the district court judge properly considered in deciding whether there was compliance with K.S.A. 59-2115 and in determining that K.P.’s consent was freely and voluntarily given. Was Consent Freely and Voluntarily Given? On appeal, K.P. argues that her consent was not freely and voluntarily given. She contends that her consent was tainted by mistake and lack of understanding. “To be free and voluntary, a consent must be to all the legal consequences of the adoption with an understanding of the meaning and effect thereof. (Citations omitted.) Whether a consent to adoption was freely and voluntarily given or was tainted by fraud, duress, undue influence, mistake or lack of understanding necessarily depends on the facts and circumstances of each case. As such, these issues are to be determined by the trier of fact who has the best opportunity to weigh the evidence and test the credibility of witnesses. ... It is not the function of this court to weigh conflicting evidence or redetermine questions of fact and our only concern is with evidence which supports the trial court’s findings and not with evidence which might have supported contrary findings. [Citations omitted.]” In re Adoption of Chance, 4 Kan. App. 2d 576, 583, 609 P.2d 232, rev. denied 228 Kan. 806 (1980). On appeal, K.P. asserts that her consent to the adoption was not voluntaiy because she was in extreme denial of her pregnancy and, therefore, could not have contemplated the nature of her acts. It does not appear from the record on appeal that this issue was raised before the trial court. An issue not raised below cannot be raised on appeal. Furthmyer v. Kansas Dept. of Revenue, 256 Kan. 825, 827-28, 888 P.2d 832 (1995). Additionally, it is the responsibility of the appellant to present a record that permits meaningful review of an issue raised on appeal. Frevele v. McAloon, 222 Kan. 295, 299, 564 P.2d 508 (1977). Furthermore, we note that there was controverted evidence in the record as to K.P.’s state of mind. K.S.A. 59-2114 provides that the burden of proving that consent was not freely and voluntarily given rests with the consenting party. Inherent in the district court judge’s conclusion that K.P.’s consent should not be set aside is a negative finding that she failed to sustain her burden of proof. “Absent arbitrary disregard of undisputed evidence or some extrinsic consideration such as bias, passion or prejudice the finding of the trial judge cannot be disturbed. An appellate court cannot nullify a trial judge’s disbelief of evidence nor can it determine the persuasiveness of evidence which the trial judge may have believed.” Mohr v. State Bank of Stanley, 244 Kan. 555, 568, 770 P.2d 466 (1989). K.P. next asserts that her consent was not voluntary because she believed that the adopting parents had agreed to her future visitations with N.A.P. Before executing her consent, K.P. knew that a visitation agreement would not be enforceable. In addition, there was disputed evidence before the district court as to whether there was any agreement regarding visitation. The adopting parents testified that they agreed to visitation by K.P.’s mother when she came to visit K.P.’s aunt in Oklahoma. The reason they were going to permit that visitation is that K.P’s mother had deceived K.P.’s aunt as to the identity of N.A.P.’s birth mother and a visit would permit K.P.’s mother to carry out the subterfuge. The adopting parents testified that there was no agreement regarding visitation by K.P. This was a factual issue resolved by the district court upon disputed evidence and is not subject to reconsideration upon appeal. The Evidentiary Ruling K.P. argues that the district court erred in refusing to allow her attorney to read portions of the adopting parents’ depositions into evidence. The adopting parents fail to address this issue. K.P. is correct that the district court erred. K.S.A. 60-232(a)(2) states: “(a) Use of deposition. At the trial . . . any part or all of a deposition, so far as admissible under the rules of evidence applied as though the witness were then present and testifying, may be used against any party who was present ... at the taking of the deposition ... in accordance with any of the following provisions: (2) The deposition of a party . . . may be used by an adverse party for any purpose.” The Kansas Supreme Court clearly decided this issue in Mesecher v. Cropp, 213 Kan. 695, 518 P.2d 504 (1974). In Mesecher, at the close of plaintiff s case, the plaintiff offered into evidence the deposition of the defendant for the purpose of shoving his admissions against interest. Counsel proposed to read to the jury those portions regarded by him as damaging to the defendant. The defendant objected, and the trial court sustained the objection. The Supreme Court held that the trial court erred: “[I]t was clearly erroneous to prevent plaintiffs from making the proposed use of defendant’s depositions; they were entitled to use it ‘for any purpose.’ They chose to use the deposition in a manner presumably calculated to have the greatest impact on the jury, i.e., at the close of their case; this they were entitled to do.” 213 Kan. at 699. K.P.’s counsel attempted to have admitted several portions of the adopting parents’ deposition testimony. The first excerpt from the adopting father’s deposition tended to establish that he wanted independent counsel. The district court found that the adopting parents wanted independent counsel. The second excerpt tended to show that the adopting father knew that Groth’s office was initially representing both parties. Groth testified that she was, in fact, representing both parties until K.P. met with Wood. The third excerpt tended to show that Groth’s office did not withdraw from representation of the adopting parents and that Groth tried to prepare a social plan so that the adoption would go forward. Again, Groth testified that this occurred. The final excerpt from the adopting father’s deposition tended to show that he may have known that he and his wife were to meet with K.P. on the morning of the same day that K.P. signed the consent. There was ample uncontested testimony in the record to allow the judge to believe that such a meeting was planned. In addition, this particular portion of the deposition did not lead to a clear determination that the adopting father knew that such a meeting was planned. K.P.’s attorney next attempted to admit three portions of the adopting mother’s deposition testimony. The first tended to show that Groth did not give the adopting parents the choice of using independent counsel. Again, the judge found that Groth had insisted upon being the attorney for the adopting parents, despite their wish for independent counsel. The second excerpt tended to show that Ellmaker had mistakenly believed that her office was still representing K.P. after K.P. had met with Wood and signed the consent. Again, this testimony was presented by the testimony of the witnesses. The final excerpt tended to show that the adopting parents’ appointment was changed from the morning until the afternoon of the the same day that K.P. signed the consent. Again, this testimony was elicited from other sources, and the deposition testimony did not show that the adopting mother knew that she and her husband were to meet with K.P. None of the excluded deposition testimony would have changed the result in these proceedings. We conclude that the error was harmless. In summary, this case consists of difficult issues to resolve, and we fully recognize our decision has enduring consequences for both families and N.A.P. These issues were fully litigated before a very experienced and capable district court judge, and the court’s ruling has been carefully reviewed. We conclude the district court correctly construed K.S.A. 59-2115 and there was substantial competent evidence to support its findings and determination that K.P.’s consent to adoption of N.A.P. should not be set aside. Affirmed.	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Knudson, J.: Timothy Carr appeals his conviction of one count of sale of cocaine. He claims that the trial court gave an erroneous jury instruction on his defense of entrapment. K.S.A. 21-3210 codifies the entrapment defense. It provides: “A person is not guilty of a crime if his criminal conduct was induced or solicited by a public officer or his agent for the purposes of obtaining evidence to prosecute such person, unless: “(a) The public officer or his agent merely afforded an opportunity or facility for committing the crime in furtherance of a criminal purpose originated by such person or a co-conspirator; or “(b) The crime was of a type which is likely to occur and recur in the course of such person’s business, and the public officer or his agent in doing the inducing or soliciting did not mislead such person into believing his conduct to be lawful.” (Emphasis added.) The instruction used by the trial court, based on PIK Crim. 3d 54.14, stated: “Entrapment is a defense if the defendant is induced or persuaded to commit a crime which the defendant had no previous disposition or intention to commit. It is not a defense if the defendant originated or conceived the plan to commit the crime or when he had shown a predisposition for or an intention to commit the crime and was merely afforded an opportunity to cany out his intention to complete the crime and was assisted by law enforcement officers.” (Emphasis added.) Carr requested the following instruction regarding his entrapment defense: “Entrapment is a defense if the defendant is solicited to commit a crime which the defendant had no previous plan to commit. It is not a defense if the defendant began the plan to commit the crime or when he had shown an intention for committing the crime and was merely afforded an opportunity to carry out his intention to complete the crime and was assisted by law enforcement officers.” (Emphasis added.) Carr’s proposed instruction replaced the words “induced or persuaded” with the term “solicited.” He argues that “solicited” has a much broader application than “induced or persuaded” and that “induced or persuaded” required the juiy to find a higher level of coercion in order to allow the defense than was mandated by the entrapment statute. In State v. King, 17 Kan. App. 2d 349, 352, 838 P.2d 349 (1992), the defendant argued that his jury instruction on entrapment, similar to that given in the instant case, was erroneous because it did not follow the statutory language of K.S.A. 21-3210. The defendant contended that substituting “persuaded” for “solicited” in the jury instruction was prejudicial because it was more difficult to show that he was “persuaded” than to show he was “solicited.” 17 Kan. App. 2d at 353. The King court recognized that while “persuasion” and “inducement” are synonymous, those terms represent more than “solicitation.” 17 Kan. App. 2d at 354. The court found that the issue was not whether there had been a solicitation since both parties agreed that there had been one but whether the defendant, once solicited, had met the factual criteria in K.S.A. 21-3210 and the jury instruction. 17 Kan. App. 2d at 354. As in King, neither party disputed the fact that a solicitation occurred. Both Carr and Officer Franklin testified that Franklin approached Carr and asked for a $20 rock of cocaine. In order for entrapment to be a valid defense, even under Carr’s proposed instruction, the jury would still have had to determine whether it was Franklin’s solicitation which induced or persuaded Carr to commit the crime in question or whether Carr was predisposed to commit the crime and was merely afforded an opportunity, in which case the solicitation did not persuade him. See King, 17 Kan. App. 2d at 354. We recognize that the King court also stated: “Without a contemporaneous objection, the faulty instruction cannot be said to be reversible error because the instruction, for the reasons set out above, was not clearly erroneous.” (Emphasis added.) 17 Kan. App. 2d at 355. This statement formed the basis for syllabus ¶ 1 of the court’s opinion: “Absent a contemporaneous objection, a jury instruction on the defense of entrapment which substitues the word ‘persuade’ for ‘solicit’ is not reversible error.” (Emphasis added.) The holding of the King court and Syllabus ¶ 1 are inconsistent with that court’s reasoning and conclusion that inducement and persuasion are synonymous and presuppose a solicitation. It is apparent that the King court correctly concluded that while solicitation is a precursor to entrapment, it is the inducement or persuasion that is the gravamen of the wrong and the resulting defense. In other words, it is the inducement or persuasion that must be considered by the trier of fact; solicitation is a given, or the fact issue would never be raised. We conclude that PIK Crim. 3d 54.14 is a correct statement of the defense of entrapment. For the foregoing reasons, we determine that the trial court did not err in the giving of the entrapment instruction. Affirmed.	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Brazil, C.J.: Food Bam Stores, Inc., and Credit General Insurance Company (collectively referred to as Food Bam) appeal the decision of the Workers Compensation Board (Board) modifying Larry Watkins’ workers compensation award. The Board reversed the decision of the administrative law judge (ALJ) and found that Watkins suffered from a work disability after he lost his job when Food Bam was sold. Food Bam challenges the sufficiency of the evidence supporting this decision. Watkins did not file a brief. We reverse. The parties are familiar with the facts, and they will not be repeated except as necessary in our consideration of the issues. This court’s review of workers compensation orders is limited to questions of law. K.S.A. 44-556(a). Whether the Board’s findings of fact are supported by substantial competent evidence is a question of law. Guerrero v. Dold Foods, Inc., 22 Kan. App. 2d 53, 55, 913 P.2d 612 (1995); see K.S.A. 77-621(c)(7); Tovar v. IBP, Inc., 15 Kan. App. 2d 782, 784, 817 P.2d 212, rev. denied 249 Kan. 778 (1991). Kansas law provides a presumption of no work disability. K:S.A. 1992 Supp. 44-510e(a) states in part: “The extent of permanent partial general disability shall be the extent, expressed as a percentage, to which the ability of the employee to perform work in the open labor market and to earn comparable wages has been reduced, taking into consideration the employee’s education, training, experience and capacity for rehabilitation, except that in any event the extent of permanent partial general disability shall not be less than percentage of functional impairment. . . . There shall be á presumption that the employee has no work disability if the employee engages in any work for wages comparable to the average gross weekly wage that the employee was earning at the time of the injury.” Because Watkins returned to Food Bam and performed the same work for the same wage as before his injury, the presumption of no work disability applies. The Board found that the presumption was overcome, however, after Watkins lost his job at Food Barn. The Board cited Lee v. Boeing Co., 21 Kan. App. 2d. 365, 372, 899 P.2d 516 (1995), which held that the presumption of no work disability may be applied as to one. period of time and overcome as to another. In Lee, after the claimant injured his back, he returned to work at an accommodated light duty job. Qver a year later, Lee was laid off for economic reasons. The Board held that the presumption of no work disability was not overcome as to the time period between the injury and the layoff, but was overcome after the layoff, even though Lee’s physical condition had not changed. The Lee court held: “It is not the intent of the legislature to deprive an employee of work disability benefits after a high-paying employer discharges him or her as part of an economic layoff where the employer was accommodating the injured employee at a higher wage than the employee could earn elsewhere.” 21 Kan, App. 2d at 372. The crucial distinction between Lee and the present case is that, unlike Lee, Watkins was not working in an accommodated position. Placing an injured worker in an accommodated job artificially avoids work disability by allowing the employee to retain the ability to perform work for a comparable wage. See K.S.A. 1992 Supp. 44-510e(a). In this way, an accommodated job can be beneficial to both the employee and the employer. See Griffin v. Dodge City Cooperative Exchange, 23 Kan. App. 2d 139, 147-48, 927 P.2d 958 (1996). Once an accommodated position ends, however, the injured worker may be exposed to the open labor market, and a work disability may be revealed. Accordingly, once an accommodated job ends, the presumption of no work disability may be rebutted. Otherwise, an employer could accommodate an injured employee for a period of time, thus invoking the presumption of no work disability, and then discharge the employee and use the presumption to avoid paying the worker disability benefits. See Lee v. Boeing, 21 Kan. App. 2d at 372. The same logic does not hold true where an injured worker returns to work in an unaccommodated position. If following an injury an employee is physically able to return to work, perform his or her job duties without special accommodation, and earn a wage comparable to his or her pre-injury wage, then by definition that employee does not have a work disability. See K.S.A. 1992 Supp. 44-510e(a). If the employee subsequently loses the job for economic or other reasons, the loss of employment cannot by itself create a work disability, absent a change in the employee’s physical condition. In other words, the loss of a job does not change an employee’s physical ability to perform work in the open labor market and earn a comparable wage. It is the employee’s ability to perform work at a comparable wage which determines work disability, not whether the employee is utilizing that ability. See Brown v. City of Wichita, 17 Kan. App. 2d 72, 77, 832 P.2d 365, rev. denied 251 Kan. 937 (1992). Where an employee returns to work in an unaccommodated job and earns wages comparable to those earned before his or her injury, the presumption of no work disability applies and will not be rebutted absent evidence of a change in the employee’s physical condition. In the present case, Watkins performed the same job for the same wage following his injury. Food Bam did not place Watkins in an accommodated position. Watkins’ ability to perform his job indicates he did not suffer from a work disability. See K.S.A. 1992 Supp. 44-510e(a). Further, it is uncontroverted that Watkins’ physical condition has not changed since his injury. It follows that physically, Watkins’ ability to perform work in the open labor market and earn comparable wages has not changed. The only change comes in the form of Watkins’ decreased earnings since his layoff from Food Bam. However, work disability focuses on the reduction in a claimant’s ability to earn wages, not on the actual wages lost. Brown v. City of Wichita, 17 Kan. App. 2d at 77. Here, Watkins’ abilities have remained constant. The medical evidence relied upon by the Board was generated before and during Watkins’ post-injury employment at Food Bam. At that time, Watkins did not have a work disability. Absent a change in Watkins’ physical condition, this same medical evidence cannot subsequently support a finding of a work disability. “ ‘Substantial evidence’ is evidence which possesses both relevance and substance, and which furnishes a substantial basis of fact from which the issues can be reasonably resolved.” Kansas Racing Management, Inc. v. Kansas Racing Comm’n, 244 Kan. 343, 365, 770 P.2d 423 (1989). Here, given the fact that Watkins was physically able to return to his job and earn a comparable wage, the medical evidence does not furnish a substantial basis of fact from which the Board could reasonably conclude that Watkins had a work disability. Cf. Perez v. IBP, Inc., 16 Kan. App. 2d 277, 279, 826 P.2d 520 (1991) (affirming Board’s finding of no work disability where employee successfully returned to work following injury but was subsequently discharged for poor attendance). In this instance, substantial competent evidence does not exist to support the Board’s finding that Watkins has a 27% work disability. The medical evidence does show that Watkins sustained permanent injury. Watkins is entitled to workers compensation benefits based on his functional bodily impairment. K.S.A. 1992 Supp. 44-510e(a) mandates that “the extent of permanent partial general disability shall not be less than percentage of functional impairment.” See Griffin v. Dodge City Cooperative Exchange, 23 Kan. App. 2d at 147-48 (stating that an employee who has no work dis ability is generally limited to benefits based upon his or her functional disability). In this case, the parties agreed that Watkins sustained an 8% permanent partial functional bodily impairment, and the ALJ awarded compensation on that basis. This award is proper, and the Board erred in modifying it to include an additional work disability. Reversed.	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Knudson, J.: Roxane Tevis-Bléich appeals from the district court’s denial of her post-trial motion seeking relief from judgment under K.S.A. 60-260(b). The underlying facts are not in dispute. Roxane and Michael Alan Bleich entered into a separation agreement approved by the district court and incorporated by reference into the decree of divorce pursuant to K.S.A. 60-1610(b)(3). Roxane’s post-trial motion is directed at the clause of the agreement giving Michael visitation rights with the family dog, Cartier. She wants the district court to terminate visitation. Roxane’s motion is miscaptioned as a motion to modify the judgment rather than a motion for relief from judgment. Within the body of the motion, K.S.A. 60-260(b) is referenced, but as will be discussed, the narrative suggests that the movant is seeking modification pursuant to K.S.A. 60-1610(b)(3). These imprecisions contributed to the roundabout manner in which the trial court arrived at its decision to dismiss the motion. Roxane’s motion to modify seeks relief under K.S.A. 60-260(b)(1), (2), and (6), but not under subparagraph (3). The statute states in material part: “(b) Mistakes; inadvertence; excusable neglect; newly discovered evidence; fraud, etc. On motion and upon such terms as are just, the court may relieve a party . . . from a final judgment ... for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under K.S.A. 60-259 (b); (3) fraud . . . misrepresentation, or other misconduct of an adverse party; ... or (6) any other reason justifying relief from the operation of the judgment.” K.S.A. 60-1610(b)(3) states in material part: “Matters settled by an agreement incorporated in the decree, other than matters pertaining to the custody, support or education of the minor children, shall not be subject to subsequent modification by the court except: (A) As prescribed by the agreement or (B) as subsequently consented to by the parties.” The parties’ separation agreement provides that there shall be no modification. Roxane’s motion, in addition to citing K.S.A. 60-260(b)(l), (2), and (6), set out the following material narrative in support of her claim: “Subsequent to the divorce in regard to the dog, Cartier, the parties have had serious dissention [sic], misunderstandings and arguments as a result of the continued and on going contact by the parties with each other in regard to visitation with the dog and by the continued insistence of the Respondent in his ‘rights’ to the dog.” We note the above narrative does not state grounds indicating the movant would be entitled to relief under K.S.A. 60-260(b). We further note Roxane’s motion was not accompanied by a required memorandum of reasons in support of her motion. See Supreme Court Rule 133 (1996 Kan. Ct. R. Annot. 157). It was under the above circumstances and backdrop that Roxane’s motion came before the trial judge for consideration. At the hearing, the parties agreed to proffer evidence rather than have their respective clients and witnesses testify. Before Roxane’s attorney began her proffer, Michael’s attorney brought to the court’s attention that the underlying judgment was based upon a written property settlement agreement that precluded modification. Roxane’s counsel responded that there were conflicting clauses in the agreement: a clause providing for the parties to live apart, and a clause permitting visitation of the dog by Michael. Counsel also added that the separation agreement was signed by Roxane under duress and after threats from Michael. The trial court noted Roxane’s motion did not allege fraud or misconduct. In addition, Roxane’s counsel acknowledged there was no contention that the separation agreement was ambiguous or the result of mutual mistake. Significantly, her counsel admitted that Roxane did intend for visitation to occur in accordance with the agreement when it was executed. Based upon the content of Roxane’s motion and the statements made by her counsel at the hearing, the trial judge determined that it lacked subject matter jurisdiction and dismissed the motion. Roxane made no further effort to proffer additional circumstances, nor did she request reconsideration. On appeal, Roxane raises two issues: (1) Did tire trial court err in its dismissal of her motion, and (2) did the trial court err in awarding attorney fees to Michael? In determining whether the trial court had jurisdiction to consider the application of K.S.A. 60-260(b), this court applies a de novo standard of review. Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, Syl. ¶ 1, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995). However, in determining whether the trial court erred in its application of the statute to the facts of this case, appellate review is restricted to determining whether the trial court abused its discretion. In re Marriage of Thomas, 16 Kan. App. 2d 518, 525, 825 P.2d 1163, rev. denied 250 Kan. 805 (1992). In dismissing Roxane’s post-trial motion, the trial court stated: “The Court would [dismiss the motion] upon the basis that the contract of the parties precludes the Court from making any postjudgment review of the matter and that the contractual provisions, absent a showing of any legal reason why the Court should inquire by way of parol evidence, the agreement is mutually binding upon the parties and is not modifiable as might otherwise be the case if they had not so contracted. With that, the motion is denied.” (Emphasis added.) We acknowledge Roxane’s motion was filed pursuant to K.S.A. 60-260(b), and the trial court did have jurisdiction to consider the motion on its merits. “Proceedings to modify a divorce decree based on matters occurring after the decree are to be brought under K.S.A. 60-1610 and are subject to its limitations. However, where relief is sought because of facts existing at the time of the decree, which, if known to the court, would have brought a different result, relief is available under K.S.A. 60-260(b).” In re Marriage of Hunt, 10 Kan. App. 2d 254, Syl. ¶ 1, 697 P.2d 80 (1985). However, we do not accept Roxane’s contention that the trial court dismissed her motion for lack of subject matter jurisdiction. The trial court dismissed Roxane’s motion because: (1) she did not allege K.S.A. 60-260(b)(3) as a ground for relief, and (2) her factual proffer was inadequate as a matter of law to support relief. Consequently, the trial court concluded modification could only be effected through the parties’ agreement and under K.S.A. 60-1610(b)(3). Because their separation agreement specifically precluded modification, the court lacked jurisdiction under 60-1610(b)(3). Roxane contends the trial court erred in concluding that a motion filed pursuant to K.S.A. 60-260(b) must specify the subsections relied upon by the movant. She cites as authority for her contention In re Marriage of Hunt, 10 Kan. App. 2d 254, Syl. ¶ 2, in which the court held: “A motion for relief from judgment under K.S.A. 60-260(b) need not specify one particular ground for relief. It is sufficient if it demonstrates a right to relief under one or more grounds so long as it is timely filed.” Hunt is distinguishable. Roxane did specify her grounds for relief and omitted K.S.A. 60-260(b)(3). In addition, her motion did not demonstrate a right to relief. We believe the trial court gave Roxane’s attorney fair opportunity to present argument and proffer evidence in support of her motion for relief from judgment, but the attorney did not show a sufficient basis upon which relief could be granted. We conclude the trial court did not abuse its discretion in dismissing Roxane’s motion. Roxane contends the trial court erred in granting Michael attorney fees. Her argument is that Michael did not comply with the procedures required in the separation agreement before making a claim for attorney fees. We disagree. The notice to cure provision in the separation agreement is not applicable when a party is required to defend a motion brought by the other party. Because Michael’s request is not inconsistent with the terms of the separation agreement, the trial court had discretion under K.S.A. 60-1610(b)(4) to award legal fees. We conclude the allowance of $200 in attorney fees was reasonable, and no abuse of discretion has been shown. Affirmed.	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Gernon, J.: C.M. Showroom, Inc., d/b/a The Home Center (Home Center) appeals the district court’s order which denied its request for attorney fees against defendant Jon Kent Scott, d/b/a Trader’s Pawn Shop & Armory (Trader’s). The Home Center is in the business of leasing personal property. The focus of this lawsuit is a Panasonic camcorder which was leased to Lloyd Boes. The lease agreement specifically provided that Boes had “ no right to sell, pawn, transfer, assign, sublease or in any way encumber the leased property.’ ” Boes defaulted on the lease, at which time the Home Center declared the lease terminated and demanded that Boes return the equipment. The camcorder could not be returned because it had been pawned to Trader’s by someone named Michael Barry. Everyone agrees that Michael Barry had no ownership interest in the camcorder, that the Home Center did not consent to the pawning of the camcorder, and, further, that Trader’s had accepted the pawned equipment without knowledge of Barry’s lack of ownership. The Home Center learned of the pawn and sent an agent to Trader’s in an attempt to collect the camcorder and attachments. The Home Center showed Trader’s a copy of the lease agreement reflecting its ownership of the camcorder and the pawn tickets and demanded the return of the camcorder. Trader’s refused to return the camcorder, citing a paramount obligation to the pledgor. Trader’s offered, however, to return the camcorder if the Home Center paid Trader’s the balance of the loan represented by the pawn. The Home Center brought an action against Boes, his ex-wife, and Trader’s, seeking damages and an order of replevin for the camcorder. Trader’s answered that it had possession of the property, denied the Home Center’s claim of ownership, and alleged that it had superior rights of possession during the redemption period of the loan underlying the pawn. Eventually, the district court ruled that the Home Center was entitled to die camcorder and granted judgment against Boes for the balance of the lease payments. The court entered a judgment against Boes and Trader’s, jointiy and severally, for the costs of the action. The sole remaining issue was whether the Home Center was entitled to recover its attorney fees from Trader’s pursuant to K.S.A. 16-720(b). The district court found that K.S.A. 16-714 controlled the outcome, that K.S.A. 16-714 required Trader’s to retain possession for a 2-month redemption period, and, further, that the withholding of the camcorder under the court’s interpretation of the statute was not wrongful. The district court, therefore, denied attorney fees. The Home Center appeals that decision. The Home Center first contends that the district court’s findings are not supported by substantial evidence. This case was tried on stipulated facts which set forth only one reason for Trader’s refusal to return the equipment to the Home Center upon its demand — that reason beiiig that Trader’s claimed it had a paramount statutory obligation to the pledgor. When a stipulation of facts is agreed to by the parties, a trial court can render only such judgment as those facts warranted. Wentz Equip. Co. v. Missouri Pacific R.R. Co., 9 Kan. App. 2d 141, 142, 673 P.2d 1193 (1983), rev. denied 235 Kan. 1042 (1984). Likewise, parties are bound by stipulations made by them or their attorneys unless those stipulations are withdrawn by the court. Bourne v. Atchison, T. & S. F. Rly. Co., 209 Kan. 511, 517, 497 P.2d 110 (1972). The district court’s finding that the replevin order was issued because the Home Center failed to prove to Trader’s that it was the rightful owner of the equipment is not supported by substantial competent evidence. In denying the Home Center’s request for attorney fees under K.S.A. 16-720(b), the district court ruled that Trader’s was obligated under K.S.A. 16-714 to retain the property until the expiration of the statutory redemption period and that any failure to do so would subject Trader’s to possible criminal penalties under K.S.A. 16-721. The court found that “a refusal of the Defendant pawnbroker to voluntarily deliver possession of the camcorder to the Plaintiff during the period of redemption, when the plaintiff was not a holder of the loan contract, cannot be considered to be a wrongful withholding.” The Home Center contends that the district court improperly interpreted K.S.A. 16-714 to control over the terms of K.S.A. 16-720(b). The Home Center contends that, in fact, K.S.A. 16-720(b) is more specific and controls over the provisions of K.S.A. 16-714. Trader’s contends that this court does not need to reach the statutory interpretation issue. Trader’s argues that the issue is moot because the district court held that it acted in good faith regardless of the interpretation of the statute. “An appeal will not be dismissed as moot unless it clearly and convincingly appears the actual controversy has ceased and the only judgment which could be entered would be ineffectual for any purpose and an idle act insofar as rights involved in the action are concerned.” Shanks v. Nelson, 258 Kan. 688, Syl. ¶ 3, 907 P.2d 882 (1995). The court also found that Trader’s refusal was valid under K.S.A. 16-714 because the Home Center “was not a holder of the loan contract.” The parties’ stipulations did not indicate who held the loan contract (a/k/a pawn tickets) at the time the Home Center demanded return of the equipment. The Home Center’s memorandum to the district court, however, contended that it presented the pawn tickets to Trader’s at the same time it presented the lease agreement to prove ownership. Trader’s confirms this fact when it argues that it properly refused to return the equipment without repayment of the loan when the Home Center presented the pawn tickets. Trader’s concedes that pawn tickets are bearer instruments. Kansas law presumes that the holder to the “contract” or pawn tickets is the person entitled to redeem the pledge. K.S.A. 16-714. For this reason, the Home Center’s tender of the pawn tickets to Trader’s would have effectively precluded anyone else from redeeming the property in question. The district court’s reliance on the Home Center’s lack of status as the contract holder is not supported by the record. Because the contract-holder status appeared to affect the district court’s decision not to award attorney fees, it is impossible to say whether the district court’s decision would have remained the same absent such evidence. Trader’s also argues that the Home Center recovered the camcorder and its lease payments from Boes and, thus, has obtained all relief available. The Home Center did not obtain all the relief available to it because it did not recover its attorney fees as permitted by K.S.A. 16-720(b). The district court relied on erroneous facts in denying the Home Center’s request for attorney fees. Accordingly, it would be difficult to find that the court would have made the same decision regardless of the correct interpretation of the statutes. Thus, Trader’s argument that the statutory interpretation issue is moot is rejected. It is necessary for this court to address the statutory interpretation made by the district court. The next question before us requires the interpretation of the interplay between K.S.A. 16-714 and K.S.A. 16-720(b). We presume the legislature intends that a statute be given a reasonable construction and that statutes should be interpreted to avoid unreasonable or absurd results. See Tompkins v. Bise, 259 Kan. 39, 47-48, 910 P.2d 185 (1996). K.S.A. 16-720(b) provides in relevant part: “When converted or stolen property has been pawned or sold to a precious metal dealer and the pawnbroker or dealer refuses to redeliver such property to the rightful owner upon demand and presentation of a bill of sale or other proper evidence of ownership by the owner, and legal action by the rightful owner to recover the property becomes necessary, the court may assess the pawnbroker or dealer for reasonable attorneys’ fees incurred by the rightful owner if the court finds that the pawnbroker or dealer wrongfully withheld the converted or stolen property.” (Emphasis added.) K.S.A. 16-720(b). K.S.A. 16-714 provides in relevant part: “Eveiy pawnbroker shall retain in his possession, after the date on which the loan became due and payable, every article pledged to him for a redemption period of two (2) months. During such period, the borrower may redeem the pledged articles, upon payment of the principal and charges. It shall be unlawful for any pawnbroker to sell or transfer title or possession of any pledged property until the expiration of such period of redemption." (Emphasis added.) The district court held that an owner s right to recover stolen or converted property from a pawnbroker as provided in K.S.A. 16-720(b) was limited by the requirement in K.S.A. 16-714 that the pawnbroker retain the property for the 2-month redemption period. K.S.A. 16-714, however, was not designed to give a person who has pawned stolen or converted equipment additional time to redeem such property. Kansas law recognizes that a thief acquires no title to stolen property; as such, a pawnbroker who accepts property from a thief cannot acquire title to the property. In re Two Bose Speakers, 17 Kan. App. 2d 179, 182-83, 835 P.2d 1385, rev. denied 251 Kan. 938 (1992). Because the thief does not have valid title to the property, there is no need to extend the thief a period to redeem the property. Accordingly, if the true owner establishes his or her rightful title to the goods, the redemption period serves no purpose other than to delay the return of the property to the rightful owner. Likewise, the purpose of K.S.A. 16-720(b) is clear. That provision is designed to encourage pawnbrokers who discover they accepted stolen or converted property to return that property without judicial proceedings when the true owner presents satisfactory proof of his or her ownership. Because the pawnbroker has no title to the property, the prompt return of the property to its proper owner is appropriate and conserves judicial resources. The only reasonable interpretation of the two statutes, when read in harmony, is that K.S.A. 16-714 requires a pawnbroker to retain all pawned property for 2 months unless the true owner presents sufficient proof to establish that the property was stolen or converted. In that case, the pawnbroker is required to return the stolen property to the true owner or risk the assessment of attorney fees. Trader’s next argues that to require it to deliver pawned merchandise to the Home Center without payment is contrary to the Constitution in that it is a taking in violation of the pawnbroker’s rights of due process. Trader’s also claims it has a constitutionally protected property right in the pawned merchandise. Kansas law recognizes that pawnbrokers have a property interest in retaining possession of pawned goods except as against the true owner. In re Two Bose Speakers, 17 Kan. App. 2d at 182. In In re Two Bose Speakers, the court held that property obtained from a pawnbroker and used in a criminal action can be returned to the true owner notwithstanding the pawnbroker’s claim to title through the thief. Because the pawnbroker was claiming rights superior to the true owner, however, he was entitled to procedural due process before the transfer. See 17 Kan. App. 2d at 180, 182. K.S.A. 16-720(b) implicitly recognizes the pawnbroker’s right to retain goods as to all but the true owner. The statute only requires the pawnbroker to turn over stolen or converted goods to “the rightful owner upon demand and presentation of . . . proper evidence of ownership.” K.S.A. 16-720(b). Should the owner not provide sufficient evidence of ownership, the pawnbroker does not risk being assessed attorney fees. Moreover, the pawnbroker would have the opportunity in any replevin action to state his or her claim of ownership. For these reasons, the constitutional issue raised by Trader’s lacks merit. Last, the Home Center argues the district court erred as a matter of law in denying its request for attorney fees. Whether to award attorney fees under K.S.A. 16-720(b) is clearly left to the discretion of the district court. The statute provides that the “court may assess the pawnbroker or dealer for reasonable attorneys’ fees.” (Emphasis added.) K.S.A. 16-720(b). While the district court may have misinterpreted the statutes, that does not vest this court with the power to determine whether attorney fees should have been awarded under the facts and circumstances. The district court’s refusal to grant attorney fees was based upon its interpretation, which we have determined to be erroneous, that the pawn shop’s refusal to return the equipment was based on reasons other than the 2-month redemption period required and that the Home Center was not the contract holder at the time of the demand to return the equipment. These conclusions are not supported by the parties’ stipulations or other parts of the record. It is speculation for us to assume that had the district court correctly interpreted the statutes and relied only upon the stipulated facts, it would have granted or denied attorney fees. Given this fact, this matter is reversed and remanded to the district court to review its decision denying attorney fees in light of our rulings herein. Further, the district court is instructed to (1) consider the correct interpretation of the statutes and (2) consider the stipulations and facts surrounding the Home Center’s attempt to recover the camcorder from Trader’s. To the extent that Trader’s is requesting attorney fees in connection with the district court proceedings or on appeal, that request is without merit. Further, we note that any request for attorney fees on appeal must comply with Supreme Court Rule 5.01 (1996 Kan. Ct. R. Annot. 26) and must be accompanied by an affidavit setting forth the specifics of attorney fees claimed. See Supreme Court Rule 7.07(b) (1996 Kan. Ct. R. Annot. 45). Reversed and remanded with directions.	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PlERRON, J.: This is an interlocutory appeal by the State from an order suppressing evidence obtained pursuant to a stop of a vehicle driven by Douglas J. Chapman. We affirm. Kansas Highway Patrol Trooper Rich Jimerson stopped Chapman for failing to signal a left-hand lane change on Interstate 70 in Trego County. After the stop, Jimerson made several observations about Chapman and the car, including: Chapman’s extreme nervousness, heavy breathing, and avoiding eye contact; a hotel business card on the floorboard with a handwritten phone number on it; and the fact that Chapman was coming from Phoenix, Arizona, and no luggage or other personal items were visible in the car. Jimerson asked Chapman whom the car belonged to. Chapman indicated it was his uncle’s and told Jimerson the name of the owner of the car was on the “paperwork” (registration). Jimerson took Chapman to the police car. A computer search revealed that Chapman’s driver’s license and the car’s registration were valid and the car had not been reported stolen. Jimerson issued a warning for failure to signal a lane change and returned Chapman’s license and registration. He instructed Chapman to use his turn signals and told him, “That’s all I have for you.” Chapman shook Jimerson’s hand, said thank you, and started to leave the patrol car. Before Chapman could leave the car, Jimerson asked if he would mind answering a couple questions. Chapman consented and Jimerson inquired whether Chapman had any drugs or weapons in the car. He replied he did not. Jimerson then asked if he could search the car. Chapman asked why and Jimerson responded that he had his suspicions and that Chapman was “shaking like a leaf.” Without any further response from Chapman, Jimerson called Trooper Rod Taylor, who was approximately a quarter of a mile away, to bring his trained drug dog (K-9 Trooper) to sniff Chapman’s car. When Taylor arrived with K-9 Trooper, Jimerson told Chapman to stand in front of his car. K-9 Trooper sniffed the car and “alerted” to the odor of illegal narcotics or drugs. In a subsequent search, approximately 120 pounds of marijuana were discovered in Chapman’s trunk. Chapman was charged with possession of marijuana with intent to sell and no drug tax stamp. After a hearing, the district court granted Chapman’s motion to suppress. In deciding that Chapman was improperly seized after completion of the traffic stop, the district court stated: “The Court finds that the officer seized both the vehicle and the defendant’s person for two reasons. “1. The defendant was never told he was free to go and in fact was ordered to move to front of the vehicle and had eveiy right to assume that he was being seized at that time and that in fact he was not free to go. The Court finds further that it is silly for the officer to testify that the defendant was in fact free to go after the issuance of the warning ticket when he was out in the middle of rural Trego County with his car being seized and nowhere for him to walk. It is clear from the testimony that the defendant could not walk down the interstate as that would be a violation of Kansas statute. The officer suggested die defendant might have been able to walk down the fence line, but that is silly also in view of the fact diat the defendant would be breaking the law if he walked to the fence line. Clearly when the defendant exercised his constitutional right to refuse consent to a search, he was rewarded by having his automobile and his person seized by the officer and detained without probable cause. The information from the officer was that the defendant was nervous. It is the Court’s observation that all defendants are nervous when stopped by Highway Patrolman in these types of circumstances. “2. The testimony of the officer that an indicator of drug trafficking is the fact that the inside of the defendant’s automobile was clean and did not have personal items or trash about, flies in the face of other testimony that the same officer has testified to that, trash, water bottles and fast food wrappers in an automobile is also a sign of drug trafficker’s [sic] automobiles. All of the other indicators testified to by the officer arise out of the nervousness theory, such as breathing heavy, trembling hands, no eye contact, can all [be] explained by very innocent means. The fact that the defendant was driving from Phoenix to some other point in the United States, is not a fact that would provide probable cause or in the Court’s mind even reasonable suspicion. “Any search conducted by an official of the government, which is conducted without a warrant, without probable cause and without consent is unreasonable.” Pursuant to Supreme Court Rule 6.09 (1996 Kan. Ct. R. Annot. 36), Chapman submitted a copy of United States v. Wood, 106 F.3d 942 (10th Cir. 1997), for our consideration. Wood concerns a similar situation involving Officer Jimerson. The State first argues the standard of appellate review of suppression orders is de novo based on the recent United States Supreme Court decision in Ornelas v. United States, 517 U.S. 690, 134 L. Ed. 2d 911, 116 S. Ct. 1657 (1996). Both parties cite State v. Garcia, 250 Kan. 310, 827 P.2d 727 (1992), as setting forth the previous standard of review for examining a suppression order. In Garcia, the court utilized a substantial competent evidence standard of review. “Upon the hearing of a motion to suppress evidence, the State bears the burden of proving to the trial court the lawfulness of the search and seizure. An appellate court will uphold a trial court’s suppression of evidence if that ruling is supported by substantial competent evidence.” “If the findings of the trial court on a motion to suppress evidence are based upon substantial evidence this court on review will not substitute its view of the evidence for that of the trial court.” “Substantial evidence is evidence which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved. Stated in another way, ‘substantial evidence’ is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion.” 250 Kan. 310, Syl. ¶¶ 1-3. The State argues we should reevaluate this standard in light of Ornelas and should utilize a de novo standard of review. In Ornelas, Milwaukee police approached a car with California license plate in a motel parking lot. This car arguably was characteristic of vehicles used by drug couriers. The officers asked the two occupants whether they had any illegal drugs or contraband. The men said no, but consented to a search of the car which revealed cocaine inside an interior panel. A motion to suppress was eventually denied. The Supreme Court set out the proper standard of review to examine the district court’s resolution of a motion to suppress: “We therefore hold that as a general matter determinations of reasonable suspicion and probable cause should be reviewed de novo on appeal. Having said this, we hasten to point out that a reviewing court should take care both to review findings of historical fact only for clear error and to give due weight to inferences drawn from those facts by resident judges and local law enforcement officers.” 134 L. Ed. 2d at 920. Ornelas determined that a de novo standard of review would allow appellate courts to maintain control of and clarify the legal principles of reasonable suspicion and probable cause. De novo review would also tend to unify precedent and provide officers with a defined set of rules which in most instances would make it possible to reach a correct determination beforehand as to whether an invasion of privacy is justified in the interest of law enforcement. 134 L. Ed. 2d at 919-20. On the other hand, Chapman argues the Kansas Supreme Court has already expanded the substantial competent evidence standard in reviewing suppression orders. In State v. Webber, 260 Kan. 263, 918 P.2d 609 (1996), the trial court allowed the State to introduce evidence that a large sum of money was found in the defendant’s purse at the time of her arrest. This evidence was relevant to show the defendant might have been planning to flee after her boyfriend’s preliminary hearing. The Webber court stated: “In reviewing a trial court decision regarding the suppression of evidence, we review the factual underpinnings of the decision by a substantial competent evidence standard of review and review the ultimate legal decision drawn from those facts de novo with independent judgment.” 260 Kan at 274-75. In State v. Hopper, 260 Kan. 66, 917 P.2d 872 (1996), the defendant challenged whether an officer had reasonable suspicion to make a traffic stop which resulted in drunk driving charges. The Hopper court reconciled the substantial competent evidence standard of review set in Garcia with that in State v. Vandiver, 257 Kan. 53, 891 P.2d 350 (1995). In Vandiver, the court, on agreed upon facts, held there was no substantial competent evidence that exigent circumstances existed to authorize a search. 257 Kan. at 64. The Hopper court concluded Garcia and Vandiver were not inconsistent and set forth the following standard of review: “The initial question remains whether the district court’s findings are supported by substantial evidence. If so, the appellate court should not reweigh the evidence. However, the ultimate determination of the suppression of evidence is a legal question requiring independent appellate determination. [Citation omitted.]” 260 Kan. at 68-69. The Ornelas standard and that set forth in Hopper are not inconsistent. The proper standard of review is that set forth in Hopper. We examine the district court’s findings to determine whether they are supported by substantial evidence. If so, we will not reweigh the evidence. However, the ultimate determination of the suppression of evidence is a question of law requiring independent appellate determination of the legal issues as applicable to the established facts of the case. As a preliminary matter, Chapman’s failure to signal a lane change provided Jimerson with a reasonable suspicion that Chapman was violating a traffic ordinance and, therefore, the stop was lawful, even if pretextual. See Whren v. United States, 517 U.S. 806, 135 L. Ed. 2d 89, 116 S. Ct. 1769 (1996). Consequently, the issues on appeal involve the reasonableness of the detention of Chapman and his car after the completion of the traffic stop, in order to subject it to a canine sniff. The State first argues the district court erred by requiring a showing of probable cause to support Chapman’s temporary detention. It contends the standard to examine the temporary detention is reasonable suspicion. Chapman argues that even if we adopt that standard, Jimerson did not have reasonable suspicion to detain him and his car. We agree with Chapman’s analysis. The State contends Jimerson had reasonable suspicion to suspect Chapman of criminal activity. Jimerson is a highly trained and experienced drug interdiction officer who has seized a considerable amount of illegal drugs. He made several physical observations about Chapman during the traffic stop, including defendant’s extreme nervousness, heavy breathing, and avoiding eye contact. He noticed a hotel business card on the floorboard with a handwritten number on it. He noted the interior of the car had no luggage or other personal items. Chapman was also arguably unable to name the owner of the car (allegedly his uncle). The State contends the totality of these circumstances gave Jimerson reasonable suspicion of drug trafficking activity. The State also contends Chapman was free to go after the traffic stop had concluded. The Fourth and Fourteenth Amendments to the United States Constitution prohibit unreasonable seizures as well as searches. United States v. Brignoni-Ponce, 422 U.S. 873, 878, 45 L. Ed. 2d 607, 95 S. Ct. 2574 (1975); State v. Epperson, 237 Kan. 707, 712, 703 P.2d 761 (1985). The scope and duration of a seizure must be strictly tied to and justified by the circumstances which rendered its initiation proper. Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968); State v. Damm, 246 Kan. 220, 224, 787 P.2d 1185 (1990). Initially, as the district court pointed out, it is a thin argument at best that Chapman was free to go at the end of the traffic stop. Jimerson ordered Chapman to stand in front of his car. Furthermore, it is apparent Jimerson was going to detain Chapman’s car regardless of whether he consented. Since a reasonable person in Chapman’s position would not have felt free to leave, the encounter turned into an investigatory stop. State v. Crowder, 20 Kan. App. 2d 117, 119, 887 P.2d 698 (1994) (there are three types of police-citizen encounters: arrests, investigatory stops, and voluntary encounters.) An investigatory stop is permissible under the Fourth Amendment if supported by reasonable suspicion, Terry v. Ohio, 392 U.S. 1, and a warrantless search of a car is valid if based on probable cause, California v. Acevedo, 500 U.S. 565, 569-70, 114 L. Ed. 2d 619, 111 S. Ct. 1982 (1991). The issue for this court to resolve is whether the district court correctly held the factors relied upon by Officer Jimerson did not amount to reasonable suspicion of criminal activity. The Supreme Court in Ornelas explained reasonable suspicion and probable cause in the following manner: “We have described reasonable suspicion simply as ‘a particularized and objective basis’ for suspecting the person stopped of criminal activity, United States v. Cortez, 449 U.S. 411, 417-418, 66 L. Ed. 2d 621, 101 S. Ct. 690 (1981), and probable cause to search as existing where the known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found, see [Brinegar v. United States, 338 U.S. 160, 175-176, 93 L. Ed. 1879, 69 S. Ct. 1302 (1949)]; [Illinois v. Gates, 462 U.S. 213, 238, 76 L. Ed. 2d 527, 103 S. Ct. 2317 (1983)].” 134 L. Ed. 2d at 918. In State v. Finley, 17 Kan. App. 2d 246, 249-51, 838 P.2d 904, rev. denied 251 Kan. 940 (1992), this court stated: “Reasonable suspicion is not the same as probable cause. In United States v. Sokolow, 490 U.S. 1, 104 L. Ed. 2d 1, 109 S. Ct. 1581 (1989), the Court conducted a thorough examination into the meaning of reasonable suspicion. The Court stated: ‘The officer, of course, must be able to articulate something more than an “inchoate and unparticularized suspicion or ‘hunch.’ ” [Citation omitted.] The Fourth Amendment requires “some minimal level of objective justification” for making the stop. [Citation omitted.] That level of suspicion is considerably less than proof of wrongdoing by a preponderance of the evidence. We have held that probable cause means “a fair probability that contraband or evidence of a crime will be found,” [citation omitted] and the level of suspicion required for a Terry stop is obviously less demanding than that for probable cause.’ 490 U.S. at 7. “In Alabama v. White, 496 U.S. 325, 330, 110 L. Ed. 2d 301, 110 S. Ct. 2412 (1990), the United States Supreme Court expounded on the differences between reasonable suspicion and probable cause: ‘Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less rehable than that required to show probable cause. . . . Reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by police and its degree of reliability. Both factors — quantity and quality — are considered in the “totality of the circumstances — the whole picture” (citation omitted) that must be taken into account when evaluating whether there is reasonable suspicion.’ See also State c. Hayes, 3 Kan. App. 2d 517, 597 P.2d 268, rev. denied 226 Kan. 793 (1979), for a discussion of the distinction between probable cause and reasonable suspicion. “It is important to remember that . . . the law enforcement officer does not have to know that the defendant committed a crime. Merely pointing to some facts that would cause a reasonable person to be suspicious is enough to conduct a Terry stop.” In United States v. Wood, 106 F.3d 942 (10th Cir. 1997), the court reversed the district court’s denial of a motion to suppress evidence discovered during a search of a car stopped by Jimerson. Jimerson stopped Wood for speeding. During the traffic stop, Jimerson made several observations that raised his suspicion: (1) unusual travel plans; (2) Wood’s error in identifying the city where he rented the car; (3) fast food wrappers and open maps in the passenger compartment; (4) extreme nervousness; (5) Wood’s prior narcotics conviction discovered during the computer search. At the end of the traffic stop, Jimerson told Wood he was free to go, but before Wood exited the patrol car, Jimerson inquired if he would mind answering a few questions. Wood consented and Jimerson asked Wood if he was carrying any drugs or weapons. Wood replied “no.” Wood refused Jimerson’s request to search the car, and Jimerson told Wood he was detaining the car and its contents for a canine sniff. The canine sniff and resulting search revealed illegal drugs in the trunk. 106 F. 3d at 944. The Wood court found all the factors relied upon by Jimerson to be innocent and even the combination of the factors did not rise to the level of reasonable suspicion necessary for an investigatory stop/detention. 106 F.3d at 948. Wood told Jimerson he was an unemployed painter and he expected to return to work in about 6 weeks. He said he had flown with his sister to Sacramento on a vacation, and she had returned by plane to Topeka while he chose to drive to enjoy the scenery. Jimerson noticed the rental car was due back the next day in Sacramento, to which Wood replied the rental company was aware of his plans to leave the car at his destination. The Wood court disagreed with the district court that Wood’s travel plans were unusual. He was on vacation. He had a valid driver’s license and a vehicle properly rented in his name. The court stated it was not criminal to want to see the countryside. Wood’s work schedule permitted the drive across the country. Even though Wood was unemployed, he could have saved money for the California vacation, gotten the money from a wealthy relative, won the lottery, or put the trip on his credit card. 106 F.3d at 947. Wood initially said he rented the car in San Francisco, but when corrected by Jimerson, he confirmed he rented the car in Sacra mentó. The Wood court held the error in the city was not the sort of inconsistency that warranted reasonable suspicion. Jimerson testified that California is a known source state for narcotics. The Wood court stated there was no evidence in the record that Sacramento is regarded as a source city for drugs, while San Franciso is not. The court held that once Wood corrected his error, the suspicious inconsistencies virtually evaporated. 106 F.3d at 947. The Wood court also rejected Jimerson’s reliance on the food wrappers and opens maps in the passenger compartment as a contributing factor. The Wood court held this factor to be consistent with Wood’s cross-country trip since fast-food wrappers have become ubiquitous in modem interstate travel and can be found in many cars traveling the highways. The Wood court also discounted Wood’s nervousness since many citizens, innocent or guilty, exhibit signs of nervousness when confronted by law enforcement officers. Last, the Wood court stated that Wood’s prior narcotics conviction did not give rise to reasonable suspicion. Wood truthfully admitted to Jimerson that he had a felony drug history. 106 F.3d at 948. Chapman contends his and Wood’s cases are factually similar except for the cluttered interior and Wood’s prior narcotics record. Therefore, this court should find Jimerson lacked sufficient reasonable suspicion. Chapman also cites State v. Guy, 242 Kan. 840, 752 P.2d 119 (1988), where the court stated the actions of the defendant did not rise to a level of reasonable suspicion: “The dress and appearance [long hair, one defendant wore biker clothes and the other had tattoos on his arm] of the pair did not comport with the car [a new Cadillac] they were driving. He [officer] had heard there had been narcotics dealings at that motel. He read the window sticker and found that the car was owned by a Colorado rental agency. A telephone check with the agency disclosed that the name of the man who checked into the motel did not match the names of either of the men who had rented the car. Hindman thought it was odd that the defendants checked into the motel at midday.” 242 Kan. at 840-41. The officer in Guy also testified that while they were tailing the defendants, the defendants stopped at a filling station, several tav ems, and a residence. He said the defendants talked to several people and opened the trunk several times, but he never saw them take anything out of the trunk, nor did he see money or other property change hands. The Guy court agreed with the trial court that the officers had no articulable basis to stop the defendants for drug-related activity. 242 Kan. at 842. We are aware the existence of objectively reasonable suspicion of illegal activity does not depend on any one factor, but on the totality of the circumstances. See State v. Brown, 22 Kan. App. 2d 560, 561, 920 P.2d 460 (1996). In State v. Toney, 253 Kan. 651, 656-57, 862 P.2d 350 (1993), the court stated: “The officer making the stop must be able to articulate the basis for his reasonable suspicion. What is reasonable is based on the totality of circumstances and is viewed in terms as understood by those versed in the field of law enforcement.” Even though reasonable suspicion may be founded upon factors consistent with innocent travel, United States v. Sokolow, 490 U.S. 1, 9-10, 104 L. Ed. 2d 1, 109 S. Ct. 1581 (1989), ”[s]ome facts must be outrightly dismissed as so innocent or susceptible to varying interpretations as to be innocuous.” United States v. Lee, 73 F.3d 1034, 1039 (10th Cir. 1996); Reid v. Georgia, 448 U.S. 438, 441, 65 L. Ed. 2d 890, 100 S. Ct. 2752 (1980). A majority of the factors relied upon by Jimerson — heavy breathing, avoidance of eye contact, trembling hands, and trembling voice — can be explained as normal nervousness. “We have repeatedly held that nervousness is of limited significance in determining reasonable suspicion and that the government’s repetitive reliance on . . . nervousness ... as a basis for reasonable suspicion . . . ‘must be treated with caution.’[Citation omitted.]” United States v. Fernandez, 18 F.3d 874, 879 (10th Cir. 1994). It is not uncommon for most citizens, whether innocent or guilty, to exhibit signs of nervousness when stopped by the police. See United States v. Lambert, 46 F.3d 1064, 1070-71 (10th Cir. 1995); United States v. Hall, 978 F.2d 616, 621 n.4 (10th Cir. 1992); United States v. Millan-Diaz, 975 F.2d 720, 722 (10th Cir. 1992). Jimerson had no prior acquaintance with Chapman which would enable him to contrast Chapman’s behavior during the traffic stop with his usual demeanor. The fact that Chapman’s car was clean and there was no luggage and no personal items in the front or back seat does not provide a suspicious circumstance. The district court noted Jimerson’s testimony in the case at bar flew in the face of his testimony in other cases that trash, water bottles, and fast-food wrappers characterize a drug trafficker’s automobile. Automobiles were designed so that personal items and luggage can be placed in the trunk, not the passenger compartment. Beyond something out of the ordinary, the normal contents of a car can hardly indicate a drug trafficker. The point is not that drug traffickers will often exhibit such behavior, but that many innocent motorists exhibit precisely the same behavior. Further, the fact that Jimerson saw a hotel business card on the floorboard with a handwritten phone number on it (which mirrors common drug transportation procedures) can also be dismissed as innocent, although one can also reasonably imagine a nefarious explanation. Jimerson testified that Chapman told him his trip originated in Phoenix, Arizona. This raised Jimerson’s suspicion because Phoenix was a known source area for narcotics and he has had a number of seizures that originated from the Tucson and Phoenix areas. The district court rejected this as a factor sufficient to raise reasonable suspicion. The fact that Chapman was driving from Phoenix to some other point in the United States is not a fact that would provide probable cause or even reasonable suspicion. At oral argument, the State admitted that very large areas of our country can be considered “source areas” for illegal drugs. When we examine this situation after removing the facially innocuous factors relied on by Jimerson, it does not appear he had reasonable suspicion to detain Chapman and his car. Although the nature of the totality of the circumstances test makes it possible for individually innocuous factors to add up to reasonable suspicion, it is “impossible for a combination of wholly innocent factors to combine into a suspicious conglomeration unless there are con crete reasons for such an interpretation.” Karnes v. Skrutski, 62 F.3d 485, 496 (3d Cir. 1995). We note that Chapman allegedly did. not know the name of his uncle, the person who supposedly owned the car. Jimerson testified this fact is suspicious because drugs are typically transported in a third-party car, meaning a car owned by someone other than the driver. We note, as did the trial court, that nervousness could explain this hesitation. Also, Chapman’s handing over the registration papers answered the officer’s question concerning ownership. Other suspicions related to ownership of the car would concern the possibility of it being stolen. Once Jimerson confirmed the car was not reported stolen, those suspicions should have been answered. The State argues the detention of Chapman and his car was reasonably limited in scope and duration as it took only a matter of minutes to call for the drug dog and have it sniff Chapman’s car. The State requests we adopt a bright-line rule for such Terry stops. In United States v. Sharpe, 470 U.S. 675, 84 L. Ed. 2d 605, 105 S. Ct. 1568 (1985), the Court declined the invitation to establish a bright-line rule for a time limit on a stop pursuant to Terry. The court explained: “In assessing whether a detention is too long in duration to be justified as an investigative stop, we consider it appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant.” 470 U.S. at 686. In any event, the length of a detention has no bearing on whether the officers had reasonable suspicion for the detention in the first place. For the reasons cited above, we believe they did not. The evidence of reasonable suspicion in this case is weak. The court in Wood stated that to sanction a finding that the Fourth Amendment permits a seizure based on such a weak foundation would be tantamount to subjecting the traveling public to virtually random seizures, inquisitions to obtain information which could then be used to suggest reasonable suspicion, and arbitrary exercises of police power. 106 F.3d at 948. We find the same situation here. Since Jimerson detained Chapman and his car without rea sonable suspicion, the subsequent search was unreasonable. The district court did not err in granting Chapman’s motion to suppress. Affirmed.	[ -16, -32, -3, 28, 14, -96, 59, 32, 65, -105, 102, 83, -81, -55, 4, 49, -6, 63, 116, 73, -27, -73, 67, -127, -14, -13, -56, -33, 51, 75, 108, -12, 77, 48, -118, 29, 6, 72, -89, 88, -50, 1, -103, -16, 80, 90, -96, 43, 2, 15, 49, 23, -29, 30, 25, -25, -51, 76, -21, -83, -64, -15, -71, 21, 62, 22, -94, 36, -104, -89, -40, 63, -100, 25, 16, 120, 115, -90, -112, -12, 107, -103, -116, -90, 98, 33, 85, -83, -84, -116, 15, -71, 63, 39, -40, 73, 73, 45, -106, -97, 117, 18, 14, -8, -37, 93, 21, 108, -125, -50, -76, -109, 77, 32, -98, 89, -5, -123, 16, 97, -57, -26, 92, 101, 48, -69, -49, -10 ]
Paddock, J.: The individual defendants (guarantors) appeal from the district court’s entry of summary judgment for the plaintiff Ryco Packaging Corporation of Kansas (Ryco). Ryco cross-appeals from the district court’s denial of its claim against the guarantors for its attorney fees. We affirm the district court on the appeal and the cross-appeal. Ryco and the defendant Chapelle International, Ltd. (Chapelle) are Kansas corporations. Scott H. Kreamer, David Newcomer IV, F. Peter Newcomer, Frank Newcomer III, and Dwight D. Sutherland, Jr., are the officers and majority stockholders of Chapelle. Scott Kreamer and Dwight Sutherland are licensed to practice law in Kansas and have each practiced law for more than 10 years. In December 1992, Ryco sold to Chapelle over 90,000 cases of 23-ounce bottles and over 900 pallets for $346,737.72, with payment due in April 1994. The goods were to be used in Chapelle’s bottled water business. As of April 21, 1993, Chapelle owed Ryco $738,417.06, which included the December 1992 purchase, an amount due on an open account, and $352,415.04 for botdes ordered from Ryco in 1991. Ryco had remained in possession of some of the bottles ordered in 1991. Ryco became concerned about collecting the debt from Chapelle and Chapelle wanted the bottles still in Ryco’s possession. On April 21, 1993, they entered into a credit agreement which required Ryco to deliver the bottles ordered in 1991 upon receipt from Chapelle of executed documents consisting of a promissory note for the balance due, a cash payment of $75,000 on the note, and a personal guaranty from the guarantors to pay to Ryco its balance of the note which was due on May 21, 1994. The promissory note stated it was guaranteed by the guarantors pursuant to a guarantee “dated contemporaneously herewith.” The credit agreement and promissory note were executed on or about April 21,1993. The guaranty agreement was executed by the guarantors on or about April 29, 1993. The relevant portions of the guaranty provide as follows: “GUARANTEE made on this 29th day of April, 1993, by [the guarantors], to RYCO PACKAGING CORPORATION OF KANSAS, a Kansas corporation (hereinafter referred to as ‘Creditor’), as an inducement to Creditor to extend credit in the amount of [$738,417.06] to CHAPELLE INTERNATIONAL, LTD., a Kansas corporation, (hereinafter referred to as ‘Debtor’). “For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and in consideration of Creditor’s extending credit in the amount of [$738,417.06] to Debtor, Guarantors agree as follows: “1. Guarantors, jointly and severally, absolutely and unconditionally guarantee to Creditor and its successors and assigns the full and complete payment, as and when the same become due and payable, of: (a) the Promissory Note of Debtor . . . .; (b) all sums owing and to be owing upon any and all renewals, extensions, and consolidations of such Note, and all instruments had and to be had in connection therewith; and (c) all attorneys’ fees, court costs and other costs and expenses incurred by Creditor in connection with the collection of such Note and/or any of the aforementioned amounts for the payment of which Debtor is or may become hable, subject to the limitations specified in the Note . . ., or any renewal, extension, modification or consolidation thereof .... “3. Guarantors agree that the liability of Guarantors shall not be released, diminished, impaired, reduced or affected by: “(c) any renewal, extension, modification or consolidation of the payment of any part or all of the Note or the performance of any covenant contained in any instrument had or to be had in connection with or as security for the Note, either with or without notice to or consent of Guarantors, or any adjustment, indulgence, forbearance or compromise that may be granted or given by Creditor to any party; “7. Except as provided in any other written agreement now or at any time hereinafter in force between Creditor and Guarantors, this Guarantee shall constitute the entire agreement of the undersigned with the Creditor with respect to the subject matter, and no representation, understanding, promise or condition concerning the subject matter hereof shall be binding upon Creditor unless expressed herein. “8. Should any one or more provision of this Guarantee be determined to be illegal and unenforceable, all other provisions, nevertheless, shall be effective.” In November 1993, Ryco and Chapelle executed an addendum to the credit agreement and promissoiy note. The addendum to the credit agreement indicated that a dispute had arisen between Ryco and Chapelle concerning Chapelle’s various claims for storage fees and other credits. The addendum also notes that Chapelle was requesting an extension in the payments as set forth in the original credit agreement and promissory note. The addendum was entered into to resolve the dispute and extend the payment schedule. The addenda to both documents set forth a revised, graduated payment schedule of the remaining $372,159.69 Chapelle owed Ryco. Dwight Sutherland, Jr., signed both addenda on behalf of Chapelle. In May 1994, Ryco filed this case against Chapelle and the guarantors. Ryco alleged that Chapelle had failed to make the monthly payments due under the promissoiy note after it was amended in November 1993. Ryco asserted that a principal balance of over $250,000 remained on the promissory note. Ryco sought judgment against Chapelle on the note and judgment against the guarantors under the terms of the guaranty agreement. The guarantors filed an answer to Ryco’s petition and asserted a counterclaim seeking a declaratory judgment that the guaranty was void and unenforceable for lack of consideration. On August 22, 1994, Ryco filed its motion for summary judgment on its claims against Chapelle and the guarantors. The guarantors responded to Ryco’s motion. The district court granted Ry-co’s motion for summary judgment against Chapelle after Chapelle failed to respond to the motion. At the hearing on Ryco’s motion, the parties conceded that the guaranty was unambiguous. The district court found that the guarantee was unambiguous and granted summary judgment in favor of Ryco against all the guarantors. The court found that consideration existed to support the guaranty agreement based upon (1) the consideration recited in the agreement itself; (2) that the guaranty agreement was a collateral document to Chapelle’s credit agreement and promissory note, which were supported by consideration; and (3) Chapelle’s promise to pay its outstanding trade debt over a period of time was sufficient legal consideration to support all the agreements. The court entered judgment in favor of Ryco in the amount of $302,247.73, plus costs. The guarantors filed a timely notice of appeal. Chapelle did not appeal. A separate hearing was held on Ryco’s request for attorney fees in the amount of $39,519.30. The district court found that when the guaranty was executed by the parties in April 1993, K.S.A. 58-2312 (Ensley) invalidated any contract provision in any “note, bill of exchange, bond or mortgage” which required the payment of attorney fees. The district court also found that 1994 amendments to 58-2312 which permitted contractual provisions for attorney fees, could not be retroactively applied to permit Ryco to recover its attorney fees. Ryco filed a timely notice of appeal from this order. Ryco also filed a notice of cross-appeal raising the same issue following the entry of the journal entry of summary judgment. The guarantors’ appeal and Ryco’s cross-appeal were docketed separately on appeal and were ordered consolidated for appeal by this court. In granting summary judgment, the district court found that there was no genuine issue of material fact that would preclude the court from entering judgment as a matter of law. Our standard of review when considering an order granting summary judgment is well known: “Summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law. K.S.A. 60-256(c). If reasonable minds could differ as to the conclusions drawn from the facts, summary judgment must be denied. [Citations omitted.] When a summary judgment is challenged on appeal, this court must read the record in the light most favorable to the party defending against the motion. [Citation omitted.] Once the moving party has properly supported a motion for summary judgment, the nonmoving party must come forward with specific facts showing a genuine issue for trial. [Citation omitted.]” Moore-house v. City of Wichita, 259 Kan. 570, 575-76, 913 P.2d 172 (1996). In their brief, the guarantors argue that there is a genuine issue of what the term “extension of credit” means in the guaranty agreement and that the vagueness of the tenns creates a genuine issue of material fact. This is inconsistent with their arguments before the district court where the guarantors’ attorney conceded that the guaranty was not ambiguous. This argument is also inconsistent with the guarantors’ contention that the parol evidence statute prevents any extrinsic evidence to establish the parties’ intent. Clearly, if a contract is ambiguous, parol evidence is permissible to assist in determining the parties’ intent at the time the contract was executed. W-V Enterprises, Inc. v. Federal Savings & Loan Ins. Corp., 234 Kan. 354, Syl. ¶ 4, 673 P.2d 1112 (1983). The guarantors’ liability involves the construction of a written contract. “ ‘Regardless of the construction of the written contract made by the trial court, on appeal a contract may be construed and its legal effect determined by the appellate court.’ [Citation omitted.]” TMG Life Ins. Co. v. Ashner, 21 Kan. App. 2d 234, 241, 898 P.2d 1145 (1995). If a contract is unambiguous, this court must “look only to the four comers of the agreement to determine the parties’ intent, harmonizing the language therein if possible.” 21 Kan. App. 2d at 242. Moreover, the fact that the parties differ as to what an unambiguous contract requires does not force this court to find that the contract was, in fact, ambiguous. 21 Kan-. App. 2d at 242. The failure of consideration issue The guarantors argue that there was no consideration supporting the guaranty signed by them. The guarantors opine that the only consideration stated in the guaranty document was the “consideration of [Ryco] extending credit” to Chapelle in excess of $700,000. The guarantors argue that the guarantee is an “integrated” agreement and that parole evidence cannot be used to change the nature of the consideration specified in the agreement. Finally, the guarantors argue that Ryco did not extend “new” credit to Chapelle. Because Ryco did not perform its executory promise to “extend” new credit to Chapelle, according to the guarantors, no consideration existed to support the guaranty agreement. To accept the guarantors’ arguments, we would have to accept several unspoken premises. First, we would have to accept the guarantors’ attempt to read the guaranty in isolation from the promissory note and the credit agreement. Second, we would have to find that the language in the guaranty agreement was either ambiguous or unambiguously required “new” credit. Both of these premises, however, are inconsistent with Kansas law and/or the facts. The cardinal rule of contract interpretation is that the court must ascertain the parties’ intention and give effect to that intention when legal principles so allow. Hollenbeck v. Household Bank, 250 Kan. 747, 751, 829 P.2d 903 (1992). “Documents which are executed at different times, but in the course of the same transaction concerning the same subject matter, will be construed together to determine the intent of the parties to the contract.” 250 Kan. at 752. When a guaranty agreement is executed at about the same time as the underlying transaction between the creditor and debtor, the guaranty is read in conjunction with the underlying documents. In Federal Land Bank of Wichita v. Krug, 253 Kan. 307, 856 P.2d 111 (1993), the Supreme Court considered whether there was consideration supporting a buyer’s agreement to assume a mortgage on real estate the buyer purchased. In reviewing the facts, the Supreme Court reasoned that the court had to review both the contract to sell the land and the mortgage assumption agreement together. 253 Kan. at 313. “When one contracts to assume a mortgage even though the documents are executed at different times, but in the course of the same transaction concerning the same subject matter, they will be construed together to determine the intent of the parties to the contract.” 253 Kan. 307, Syl. ¶ 4. In this case, the credit agreement and promissory note were signed several days prior to the execution of the guaranty agreement. However, the guaranty agreement clearly references the “credit” to Chapelle of $738,417.06 and the promissory note of $663,417.06. The promissory note referenced in the guaranty agreement in turn references the guaranty. Finally, the credit agreement, reciting various “facts and objectives,” specifically requires Chapelle’s execution of the promissory note and the personal guaranty by the guarantors. Reading all of the documents together, it is clear that the “extension of credit” the parties intended was Ryco’s agreement to permit Chapelle to pay its debt over an extended period of time. Whether this consideration is more like an “extension of credit” or a forbearance is not really relevant. The documents on their face clearly show that the additional time to make the payments was the consideration supporting the underlying agreements and the guaranty. The intent of all the parties is clear. The guarantors’ attempts to evade liability because the consideration was a “forbearance,” not specified in the guaranty agreement, rather than an extension of credit is nothing more than a game of semantics. The guaranty was unambiguous. The guarantors argue that even if the extension of payment by Chapelle was the consideration for the underlying agreement, that the past consideration is insufficient to create a binding guaranty agreement. The passage referenced by the guarantors, however, pertains to guaranties entered into as part of a separate transaction distinct from the underlying debt. That authority provides: “If the guaranty agreement was entered into, not as part of a transaction which included the creation of the original or principal debt or obligation, but independent thereof, the guarantor’s promise must have been supported by a consideration which was distinct from that of the principal debt. A consideration is not found in a mere naked promise to pay the existing debt of another. • “Although the guaranty promise may have been made at a time subsequent to the creation of the principal obligation, the guaranty promise is founded upon a consideration if the promise was given as the result of previous arrangement, the principal obligation having been induced by or created on the faith of the guaranty.” (Emphasis added.) 38 Am. Jur. 2d, Guaranty § 45, pp. 1047-48. That same authority also provides: “If the promise of the guarantor is shown to have been given as part of a transaction or arrangement which created the guaranteed debt or obligation, it is not essential to a recovery on the promise of guaranty that the promise shall have been supported by a consideration other than that of the principal debt — that is, one and the same consideration may suffice for both contracts where the contract of guaranty has been entered into at the time of creation of the principal obligation. For example, a guaranty of payment is supported by a consideration where it accompanies and is the inducement for a sale of goods or an extension of credit.” 38 Am. Jur. 2d, Guaranty § 44, p. 1047. The guarantors also argue that Ryco did not extend credit to Chapelle as a result of the guaranty but that Ryco sought the guaranty as additional security for an existing debt. However, “[a]n extension of the time of payment of an obligation constitutes in legal effect a forbearance to sue and ... is a sufficient consideration for a guaranty of the obligation.” 38 Am. Jur. 2d, Guaranty § 47, p. 1051. Before the district court, the guarantors appeared to argue that Ryco’s agreement to release the remaining 9-ounce botdes were not consideration because those botdes already belonged to Chapelle free and clear of any liens. The guarantors rely on the affidavit of an accountant who determined that as of December 31, 1992, Ryco had confirmed that it was holding 131,000 cases of botdes for Chapelle without any liens and encumbrances. Although this issue was not-raised directiy on appeal, it was mentioned by the guarantors in their oral argument. The credit agreement clearly recites that Ryco would deliver the remaining bottles subject to the terms and conditions of the credit agreement. Therefore, the parties acknowledged that the delivery of the remaining bottles was part of the consideration supporting the underlying agreements. The accountant’s affidavit cannot be used by the guarantors to vary the clear terms of the written credit agreement. The guaranty agreement, when read in conjunction with the credit agreement and promissory note, establishes that the consideration for the entire transaction was Ryco’s agreement to allow Chapelle to pay its debt over time (which would allow Chapelle to continue operating). While this is not an extension of new credit, it did permit Chapelle to defer payments over a 12-month period. Whether this is a “forbearance,” or an “extension of credit,” or both is irrelevant because it clearly was the consideration the parties intended. The insufficient consideration issue The guarantors argue that even if Ryco’s forbearance in collecting against Chapelle, i.e., its entering into the credit agreement and promissory note, can be consideration for their guaranty, such consideration was insufficient. The guarantors argue that because Chapelle was insolvent at the time the debt was entered into, there was no consideration for Ryco’s forbearance. The guarantors rely on State ex rel. Ludwick v. Bryant, 237 Kan. 47, 697 P.2d 858 (1985). In Ludwick, Virginia Bryant was the owner of Tender Loving Care, Inc., a Kansas corporation in the business of providing day care services. The corporation stopped operations in August 1981. Shortly before ceasing operations, the corporation filed its second quarter wage report with a state agency; the check accompanying the report for payment of taxes was returned by the bank unpaid because of insufficient funds. 237 Kan. at 48. Approximately a year later, Bryant signed a personal guaranty agreeing to assume responsibility for the unpaid tax liability of the corporation. Bryant subsequently refused to pay the outstanding tax liability, claiming, in part, that the guaranty agreement lacked consideration. 237 Kan. at 49. The state agency brought suit to collect on the guaranty agreement. The trial court granted summary judgment in favor of Bryant, finding that there was no consideration to support the agreement. 237 Kan. at 49-50. On appeal, the Kansas Supreme Court dealt with the issue of the sufficiency of consideration. The court noted that “consideration is sufficient if there is a benefit to the debtor or an inconvenience or deprivation to the creditor, such as a promise by the creditor to refrain from legal proceedings or an extension of time within which the debtor may pay the creditor.” 237 Kan. at 50. The court also recognized that consideration can exist when a creditor forebears from bringing suit against a creditor in exchange for the guaranty of another. 237 Kan. at 51. However, the court found that “ ‘[a]ny forbearance to prosecute or defend a claim or action ... is usually a sufficient consideration for a contract based thereon, unless the claim or defense is obviously invalid, worthless or frivolous.’ ” 237 Kan. at 52 (quoting Snuffer v. Westbrook, 134 Kan. 793, Syl. ¶ 1, 8 P.2d 950 [1932]). The court noted that “ ‘forbearance to press [a claim] is not a sufficient consideration if there is no possibility of enforcement and collection, making both the claim and the forbearance valueless.’ [Citation omitted.]” (Emphasis added.) 237 Kan. at 52. The court noted that the corporation was defunct, had not operated since August 1981, and had forfeited its charter. 237 Kan. at 48, 53. Although the court found consideration lacking in Ludwick, the court cited to Home State Bank v. DeWitt, 121 Kan. 29, 245 Pac. 1036 (1926). In Home State Bank, the Supreme Court stated: “The fact that Ralph M. DeWitt was unable to pay his notes, and that he had no property from which a judgment upon them could be collected, did not prevent their surrender from constituting a sufficient consideration for the new notes. The relinquishment of an existing obligation by the obligee is a good consideration for a contract however faint may be the prospect of realizing upon it. ... A note executed by a person who is still alive cannot be said as a matter of law to be without value, although the maker is wholly without present means.” 121 Kan. at 31. The guarantors argue that any forbearance by Ryco was insufficient consideration because Chapelle was already insolvent in April 1993. The guarantors relied on an affidavit from an accountant who reviewed Chapelle’s books and determined that as of March 1993, Chapelle had a substantial negative net worth and had previously pledged all of its assets to secure a $900,000 bank debt. The accountant’s affidavit indicated, however, that Chapelle was able to make payments on the promissory note to Ryco for at least several months after April 30, 1993. Likewise, Chapelle’s glass inventory decreased each month between March 31 and May 31, 1993. The guarantors’ arguments are based upon the fact that Chapelle’s books, when reviewed by an accountant, established that Chapelle was technically insolvent. There was no evidence, however, that Chapelle had ceased operations at the time the guaranty was signed or that the corporation was somehow defunct. In fact, the accountant’s affidavit upon which the guarantors rely creates the inference that Chapelle continued operating for some time after April 1993, when the guaranty and credit agreement were signed. Moreover, it is clear that Chapelle was still in existence when it filed an answer and counterclaim in this case. Likewise, the addendum to the credit agreement and promissory note signed in November 1993 was signed by Dwight Sutherland, one of the guarantors and an attorney, on behalf of Chapelle. This, at a minimum, raises the inference that Chapelle was not defunct as of November 1993. According to the guarantors, there would be no consideration whenever a bank or supplier extended payment schedules for any corporation that was “insolvent” in the sense that its liabilities exceeded its assets. This argument reads Ludwick to the broadest extent possible. However, the argument ignores that fact that the corporation in Ludwick had completely ceased operations nearly a year before the guaranty was signed. The reasoning in Home State Bank appears more appropriate based upon the facts in this case. Here, as in that case, the fact that the debtor is currently without assets does not invalidate the forbearance when the debtor is still “alive” and presumably has the potential to earn assets to eventually pay off the debt. In this case, Chapelle was still operating at the time the promissory note and guaranty agreement were executed. Therefore, there was some possibility that Chapelle could eventually pay its debts. We find that the guarantors’ argument that the guaranty is without sufficient consideration is without merit. The discharge of the guarantors issue Finally, the guarantors argue that even if the guaranty agreement was supported by adequate consideration, the subsequent modification of the credit agreement and promissory note discharged their guaranty. During oral argument before this court, the guarantors announced that they had abandoned this argument. To do otherwise would completely ignore the provision in the guaranty agreement that the guarantors’ liability would not be discharged or reduced by any renewal, extension, or modification of the payment of any part or all of the note whether with or without notice to or consent of the guarantors. We agree with the guarantors that this issue is totally without merit and its abandonment was proper. There is no genuine issue of material fact, and the district court correctly granted Ryco summary judgment against the guarantors. Ryco’s cross-appeal for attorney fees Ryco also requested summaiy judgment on its claim for attorney fees under the guaranty agreement. That agreement specifically provided that the guarantors agreed to be liable for Chapelle’s debt and “all attorneys’ fees, court costs and other costs and expenses incurred by Creditor in connection with the collection of such Note ... or any renewal, extension, modification or consolidation thereof.” At the time the guaranty agreement was executed, however, Kansas law invalidated such provisions. Specifically, K.S.A. 58-2312 (Ensley) provided, in pertinent part: “Hereafter it shall be unlawful for any person or persons, company, corporation or bank, to contract for the payment of attorney’s fees in any note, bill of exchange, bond or mortgage; and any such contract or stipulation for the payment of attor ney s fees shall be null and void; and that hereafter no court in this state shall render any judgment, order or decree by which any attorney’s fees shall be allowed or charged to the maker of any promissory note, bill of exchange, bond, mortgage, or other evidence of indebtedness by way of fees, expenses, costs or otherwise.” The Kansas Supreme Court has held that this provision invalidates attorney fee provisions in guaranty agreements. Iola State Bank v. Biggs, 233 Kan. 450, 464, 662 P.2d 563 (1983). The 1994 legislature, however, substantially amended K.S.A. 58-2312. As amended, the statute now provides: “Except as otherwise provided by law, any note, mortgage or other credit agreement may provide for the payment of reasonable costs of collection, including, but not limited to, court costs, attorney fees and collection agency fees, except that such costs of collection: (1) May not include costs that were incurred by a salaried employee of the creditor or its assignee; and (2) may not include die recovery of both attorney fees and collection agency fees.” This amendment went into effect on July 1,1994. L. 1994, ch. 276, § 3. This was approximately 2 months after Ryco initiated this action. The district court determined that the 1994 amendment did not apply retroactively to the guaranty agreement signed by the guarantors. The district court reasoned that retroactive application would “affect substantive rights which accrued and attached in the mutual promises of a contract entered before the law was changed.” Thus, the issue is whether the district court erred in finding that the 1994 amendment to 58-2312 applied prospectively only. “The general rule of statutory construction is that a statute will operate prospectively unless its language clearly indicates the legislature intended that it operate retrospectively. This rule is modified where the statutory change is merely procedural or remedial in nature and does not prejudicially affect the substantive rights of the parties.” Chiles v. State, 254 Kan. 888, Syl. ¶ 5, 869 P.2d 707, cert. denied 130 L. Ed. 2d 88 (1994). Procedural statutes generally relate to “the manner and order of conducting suits — in other words, the mode of proceeding to enforce legal rights.” Stevenson v. Topeka City Council, 245 Kan. 425, 427, 781 P.2d 689 (1989). Substantive laws, however, establish the “ ‘rights and duties of parties.’ [Citation omitted.]” Rios v. Board of Public Utilities of Kansas City, 256 Kan. 184, 191, 883 P.2d 1177 (1994). Ryco argues that the statute in question is only procedural or remedial in nature and, therefore, should be applied retroactively. Ryco relies on Nitchals v. Williams, 225 Kan. 285, 590 P.2d 582 (1979). In Nitchals, the Supreme Court considered consolidated appeals involving the issue of the propriety of an award of attorney fees assessed against an insurance carrier after a recovery of damages was obtained by the insured from a third-party tortfeasor. The assessment was based upon K.S.A. 1977 Supp. 40-3113a, which contained a specific subsection requiring the district court to fix attorney fees to be paid proportionately by the insurer and the insured. Prior to that time, the Supreme Court determined that the insurance company’s subrogation rights could not be reduced for attorney fees and expenses. See Easom v. Farmers Insurance Co., 221 Kan. 415, 431-33, 560 P.2d 117 (1977). In Nitchals, the Supreme Court acknowledged the substantive nature of the insurance carrier’s subrogation rights when recovery is made against a third party. 225 Kan. at 291. The court cited numerous foreign cases applying such attorney fee provisions retroactively, noting that “[t]he rationale of the decision in these cases is that statutes providing for the recovery of attorney fees affect the remedy only and do not change the liability provided for in the [insurance] contract.” 225 Kan. at 292. Finally, the court concluded that the insurance companies’ vested rights were not affected because those rights did not vest until after “a recovery by the insured from the third-party tortfeasor by judgment, settlement, or otherwise.” 225 Kan. at 294. In the cases before the court, none of the insureds obtained a judgment or settlement until after the effective date of K.S.A. 1977 Supp. 40-3113a. 225 Kan. at 294-95. Kansas appellate courts have found that a number of different types of statutes are procedural or remedial and, therefore, can be applied retroactively. For example, amendments to the Workers Compensation Act transferring review from the district courts to the Workers Compensation Board were found to be procedural in nature. Rios v. Board of Public Utilities of Kansas City, 256 Kan. at 191-92. In Harding v. K.C. Wall Products, Inc., 250 Kan. 655, 831 P.2d 958 (1992), the Supreme Court held that amendments to K.S.A. 60-3303 were procedural in nature and could be retroactively applied without violating vested rights. 250 Kan. at 670. A statutory amendment removing a technical jurisdictional defense also was considered procedural and could be retroactively applied. Florida Dept. of HRS v. Breeden, 21 Kan. App. 2d 490, 500, 901 P.2d 1357 (1995). Nitchals is the only Kansas case dealing with the issue of statutory attorney fees. The facts in Nitchals are clearly distinguishable from the present case. In Nitchals, the insurance carrier’s rights to subrogation were primarily statutory in nature. Therefore, the amendment of the statute was, in effect, remedial in nature. Moreover, the insurance company’s rights were not vested at the time of the amendments. In this case, the liability in issue is limited to the language of the contract. “ ‘ “The liability of a guarantor upon an obligation cannot be extended by implication, and he should not be held beyond the precise terms of his contract.” [Citations omitted.]’ ” TMG Life Ins. Co. v. Ashner, 21 Kan. App. 2d 234, 243, 898 P.2d 1145 (1995). At the time the contract was signed in this case, Kansas statutes nullified the attorney fee provision and made that provision void and unenforceable. The guarantors’ liability, therefore, was limited to the underlying debt and interest thereon. To permit the retroactive application of K.S.A. 58-2312 would, in essence, resurrect the attorney fee provision which was void at the time it was signed. Retroactively applying the statute results in an increase in the obligations assumed by the guarantors long after the documents were signed and after Chapelle went into default. This circumstance makes the statutory amendment more substantive than procedural or remedial, and, thus, operates prospectively. Ryco also argues that the retroactive application of K.S.A. 58-2312, as amended, does not prejudice the guarantors because the unambiguous terms of the guaranty agreement provides for liability for attorney fees. While the original agreement provided for the payment of attorney fees, that provision was null and void the instant the contract was signed. Had the statute remained unchanged, Ryco could not have legally collected those fees. Therefore, the 1994 amendments do, in fact, expand the guarantors' liability beyond that which existed in 1993. Affirmed.	[ -48, 108, -7, 93, 10, -32, 58, -86, 113, -93, 101, 83, -23, -30, 4, 107, -26, 125, 112, 120, -29, -78, 51, 72, -62, -69, -7, -35, -79, 95, -28, -44, -52, 48, -118, -107, -14, -128, -63, 30, -50, 1, -102, -15, -7, 0, 52, 122, 18, 15, 101, -108, -77, 44, 16, 75, 73, 44, 105, 13, -64, -72, -79, 7, 127, 83, 33, 36, -98, 69, 74, 30, -112, 49, 10, -24, 18, 54, -122, 116, 43, 31, 12, 38, 99, 34, 0, -23, -36, -120, 47, -33, -97, -57, -48, 72, 66, 41, -74, -68, 124, 23, -89, -4, -6, -107, 95, 116, -121, -50, -108, -125, 13, 64, 12, -121, -17, -121, 49, 113, -49, -90, 92, 86, 56, -109, 78, -14 ]
Gernon, J.: Walter A. Reed, Sr., contends on appeal that the sentences imposed on him are illegal under the Kansas Sentencing Guidelines Act (KSGA). Reed was convicted of two felony and three misdemeanor counts of contributing to a child’s misconduct or deprivation. Reed was originally sentenced to consecutive terms of 1 to 5 years’ imprisonment for each felony count and 1 year for each misdemeanor count, for a controlling term of 5 to 13 years. Reed subsequently filed a motion to convert his pre-guidelines sentence to a guidelines sentence. After hearings, the court sentenced Reed to 11 months’ imprisonment on each felony count, the maximum sentence within the presumptive range for the 8-G nondrug grid block. The court also sentenced Reed to the maximum term of 1 year for each of the misdemeanor convictions. The court ordered all of the sentences to run consecutive to one another, resulting in a controlling term of 58 months. K.S.A. 22-3504(1) provides that an illegal sentence may be challenged at any time. Whether a criminal sentence is illegal is a question of law. Accordingly, this court has unlimited review. See State v. Tolliver, 22 Kan. App. 2d 374, 375-76, 916 P.2d 725 (1996). When imposing consecutive sentences in multiple conviction cases, the court is required to impose a base sentence for the primary crime, using the total criminal history score, and then impose a nonbase sentence, using the criminal history I column of the sentencing grid. See State v. Riley, 259 Kan. 774, 778-79; 915 P.2d 774 (1996); State v. Bowen, 20 Kan. App. 2d 576, 577, 890 P.2d 374 (1995). The conversion provisions of the KSGA are mandatory. State v. Gonzales, 255 Kan. 243, 250, 874 P.2d 612 (1994). In Bowen, we held that a judge’s failure to follow K.S.A. 1993 Supp. 21-4720 when converting a multiple conviction case created an illegal sentence. 20 Kan. App. 2d at 578. The State concedes that Reed’s felony sentences are illegal. Under K.S.A. 1993 Supp. 21-4720(b), only one felony conviction may have a full criminal history score applied. The other felony convictions should have a criminal history score of I. Therefore, this matter must be remanded for the trial court to determine a base sentence and a nonbase sentence. The next issue is whether 21-4720(b)(4) applies to misdemeanor cases. K.S.A. 1993 Supp. 21-4720(b)(4), which was in effect when Reed was originally sentenced, states in pertinent part that "[t]he total sentence assigned for a current conviction event cannot exceed twice the base sentence.” This subsection was amended by the legislature in 1994, and that version states: “The total prison sentence imposed in a case involving multiple convictions arising from multiple counts within an information, complaint or indictment cannot exceed twice the base sentence. This limit shall apply only to the total sentence, and it shall not be necessary to reduce the duration of any of the nonbase sentences imposed to be served consecutively to the base sentence.” (Emphasis added.) K.S.A. 1994 Supp. 21-4720(b)(4). Determining which version applies to Reed’s offenses hinges on whether the 1994 amendment should apply prospectively or retrospectively, which in turn hinges on whether the amended language prejudicially affects the substantive rights of the parties. See State v. Sylva, 248 Kan. 118, 119, 804 P.2d 967 (1991). However, since we conclude that misdemeanor convictions are not included within either version of21-4720(b)(4), we decline to reach the issue of whether K.S.A. 1994 Supp. 21-4720(b)(4) applies prospectively or retrospectively. In interpreting a statute, we must give effect to its plain and unambiguous language, without determining what, in our view, the law should be. Under K.S.A. 1993 Supp. 21-4703(c), a “conviction event” is defined as “one or more felony convictions occurring on the same day and within a single court.” (Emphasis added.) See State v. Fields, 22 Kan. App. 2d 148, 149, 912 P.2d 774 (1996). Clearly, misdemeanor convictions are not included in the definition of a conviction event. Moreover, as defined by K.S.A. 21-4703(r), “prison” means a facility operated by the Kansas Department of Corrections. Since sentences for misdemeanor convictions are served in county jails, those type of sentences cannot meet the definition of prison sentences under the KSGA. Whether the language used in the 1993 and 1994 versions of 21-4720(b)(4) was the product of deliberation or oversight is of little importance to us. The result is that misdemeanor convictions are not covered under either the 1993 or 1994 version of K.S.A. 21-4720(b)(4). Consequently, a defendant may be sentenced to consecutive terms for any multiple misdemeanor convictions, in addition to the sentence imposed under 21-4720(b)(4) for any multiple felony convictions. The sentences imposed for Reed’s misdemeanor convictions are affirmed. The sentences imposed for Reed’s felony convictions are vacated, and the case is remanded for the district court to determine Reed’s base and nonbase sentences. Affirmed in part, reversed in part, and remanded for resentencing.	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PlERRON, J.: Dwight D. Lay appeals the district court’s granting of summary judgment to the Kansas Department of Transportation (KDOT) in this personal injury case. We affirm. Plaintiff was driving his 1982 Datsun automobile west on Jackson County Road 142. He was very seriously injured when he rolled his car after failing to negotiate a curve east of the intersection of Jackson County Road 142 and State Highway 75. There is a hill and curve on County Road 142 as one approaches highway 75 from the east. With the exception of the stop ahead sign and stop sign at Highway 75, which are under the jurisdiction of KDOT, County Road 142 is under the control and maintenance of Jackson County. The stop ahead sign, which was maintained under contract with KDOT, was obscured at the time of the accident by trees and vegetation. There is no evidence a curve warning was not erected because there was a stop warning sign. There has never been a curve warning sign on County Road 142 east of Highway 75. Ron Kam, a Jackson County Road and Bridge Supervisor, testified that an engineering study had been done of the location prior to plaintiff’s accident which concluded a curve warning sign was not required. KDOT’s summary judgment motion and plaintiff’s response do not contest that KDOT would not have been responsible for any curve warning sign on County Road 142 because its responsibility was limited to the stop and stop ahead signs, and if a curve sign was needed based on an engineering study on County Road 142, it would be the county’s responsibility to place it. Plaintiff filed suit against various entities of the Nissan Corporation, the Jackson County Board of Commissioners, and KDOT. Plaintiff subsequently dismissed the Jackson County Board of Commissioners and settled with Nissan. The remaining defendant, KDOT, was granted summary judgment based on a finding that plaintiff could not show that KDOT had a duty to wam of the roadway feature that was involved in the accident or that a causal connection existed between the breach of duty plaintiff alleged and the accident. Before turning to the issues on appeal, we note the well-established rules relating to the granting of summary judgment in a negligence action: “The burden on the party seeking summary judgment is a strict one. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal we apply the same rule, and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. [Citations omitted.]” Mitzner v. State Dept. of SRS, 257 Kan. 258, 260-61, 891 P.2d 435 (1995). The importance of motor vehicle traffic safety has led to many efforts to establish and standardize its regulation. Pursuant to K.S.A. 8-2003, KDOT is required to adopt a manual which conforms as much as possible to the most recent edition of the Manual on Uniform Traffic Control Devices (MUTCD) for streets and highways. All parties agree that the 1988 edition was legally applicable on September 30,1992. It sets forth certain warrants or specifications describing the physical requirements necessary to justify the authorization and use of the various warning signs recommended. Pertinent sections of the manual provide in part: 2A-30. “All traffic signs should be kept in proper position, clean and legible at all times. Damaged signs should be replaced without undue delay.” “Special attention and necessary action should be taken to see that weeds, trees, shrubbery and construction materials do not obscure the face of any sign.” p. 2A-12. 2C-1. “Warning signs are used when it is deemed necessary to warn traffic of existing or potentially hazardous conditions on or adjacent to a highway or street.” p. 2C-1. 2C-3. “Since warning signs are primarily for the benefit of the driver who is unacquainted with the road, it is very important that care be given to the placement of such signs. Warning signs should provide adequate time for the driver to perceive, identify, decide, and perform any necessary maneuver.” p. 2C-2. 2C-5. “The Curve sign (W1-2R or 2L) may be used where engineering investigations of roadway, geometric, and operating conditions show the recommended speed on the curve to be greater than 30 miles per hour and equal to less than the speed limit established by law or by regulation for that' section of highway. Additional protection may be provided by use of the Advisory Speed plate (sec. 2C-35).” p. 2C-3. 2C-15. “A STOP AHEAD sign is intended for use on an approach to a STOP sign that is not visible for a sufficient distance to permit the driver to bring his vehicle to a stop at the STOP sign. Obstruction(s) causing the limited visibility may be permanent or intermittent, p. 2C-8. Plaintiff argues that the district court erred by finding he failed to establish a causal link between his injury and KDOT’s breach of duty. His states his claim is derived from the general liability for negligence created by the Kansas Tort Claims Act (KTCA), K.S.A. 75-6101 et seq. He alleges negligent inspection of KDOT’s stop ahead sign on County Road 142, and negligent maintenance of KDOT’s stop ahead sign on County Road 142. He argues the evidence shows that but for the obscured sign, the accident would not have occurred. Plaintiff cites C.J.W. v. State, 253 Kan. 1, Syl. ¶ 1, 853 P.2d 4 (1993), where the court explained the general principles of a cause of action based on negligence: “Negligence exists where there is a duty owed by one person to another and a breach of that duty occurs. Further, if recovery is to be had for such negligence, the injured party must show: (1) a causal connection between the duty breached and the injury received; and (2) he or she was damaged by the negligence. Whether a duty exists is a question of law. Whether the duty has been breached is a question of fact.” Ordinarily, causation, like negligence, is determined by a jury. St. Clair v. Denny, 245 Kan. 414, 417, 781 P.2d 1043 (1989). Usually, a determination of the presence or absence of negligence should be left to the trier of fact. Stetler v. Fosha, 9 Kan. App. 2d 519, 522, 682 P.2d 682, rev. denied 236 Kan. 877 (1984); see also Schmeck v. City of Shawnee, 232 Kan. 11, 27, 651 P.2d 585 (1982) (negligence, contributory negligence, and proximate cause are all issues for the jury’s determination). Although the question of whether a defendant’s actions proximately caused a plaintiff’s injury is normally a question of fact for the jury, where the facts of a case are susceptible to only one conclusion, the question is one of law and may be properly subject to summary judgment. Baker v. City of Garden City, 240 Kan. 554, 557, 731 P.2d 278 (1987). KDOT was negligent in its maintenance of the stop ahead sign. KDOT does not dispute that the sign was obstructed by vegetation. Under Kansas statutory law and the MUTCD, KDOT had a duty to properly maintain the stop ahead sign, and it breached that duty by permitting the sign to become obstructed. However, plaintiff must establish causation in order to recover for KDOT’s negligence. The court in Baker v. City of Garden City, 240 Kan. 554, Syl. ¶ 5, discussed the causation necessary to establish a negligence cause of action: “In order to recover in a negligence action, the breach of duty must be the actual and proximate cause of the injury. The proximate or legal cause of an injury is that cause which in natural and continuous sequence, unbroken by an efficient intervening cause, produces the injury and without which the injury would not have occurred, the injury being tbe natural and probable consequence of the wrongful act.” In Baker, the court quoted Prosser and Keeton on Torts § 41, pp. 269-70 (5th ed. 1984), for the burden of proof required of a plaintiff on the issue of causation: “ The plaintiff is not, however, required to prove the case beyond a reasonable doubt. The plaintiff need not negative entirely the possibility that the defendant’s conduct was not a cause, and it is enough to introduce evidence from which reasonable persons may conclude that it is more probable that the event was caused by the defendant than that it was not. The fact of causation is incapable of mathematical proof, since no one can say with absolute certainty what would have occurred if the defendant had acted otherwise. Proof of what we call the relation of cause and effect, that of necessary antecedent and inevitable consequence, can be nothing more than ‘the projection of our habit of expecting certain consequents to follow certain antecedents merely because we had observed these sequences on previous occasions.’ If as a matter of ordinary experience aparticular act or omission might be expected, under the circumstances, to produce a particular result, and that result in fact has followed, the conclusion may be permissible that the causal relation exists.’ ” 240 Kan. at 559. In the instant case, plaintiff was injured because he drove his automobile into a curve at a speed greater than he could control. To recover damages from KDOT arising out of this accident, he must show a particular duty was owed him by KDOT, the duty was breached, and he suffered damages as a proximate result of the breach. The county, not KDOT, was responsible for identifying and warning motorists of potentially hazardous curves. Plaintiff does not even contend a curve warning sign was warranted, yet claims causal negligence on KDOT’s part for his accident in allowing its stop ahead sign- to be obscured by foliage. Plaintiff says he would have slowed down and not gone off the road if he had seen the sign. An obligation to warn is created only to guard against a particular risk. Prosser and Keeton on Torts § 43, p. 286 (5th ed. 1984). Traffic signage regulations are intended to warn road travelers of particular risks or types of danger. Regulations such as these do not create duties to other classes of persons or for other risks. The risk KDOT was responsible to warn of was the county road-highway intersection. That risk was unrelated to this accident. Specifically, KDOT’s duty was to warn motorists that the county road intersected with a highway ahead, which intersection was controlled by a stop sign. From KDOT’s standpoint, the curve was a problem because it delayed when a motorist could see the stop sign. The obscured sign in question was quite some distance from the intersection because of the lay of the land. At oral argument, counsel for plaintiff stated the plaintiff’s skid marks, where he be gan to have problems, started about 457 feet from the intersection. That obviously had nothing to do with the intersection. In fact, there is no contention the intersection itself had anything to do with the accident. The conceptual difficulty here is that although there was negligence on KDOT’s part, it was not a proximate cause of this accident. It was “negligence in the air.” That is not actionable negligence under Kansas law. Essentially, the plaintiff is skillfully attempting to reestablish the “but for” theory of causality and liability in Kansas, which was long ago recognized as being incompatible with a proximate cause analysis. See Jefferson v. Clark, 190 Kan. 520, 376 P.2d 923 (1962). Under these very peculiar facts (neither the parties nor the court members have found close factually relevant precedent) it cannot be shown that KDOT’s negligence was a legal proximate cause of plaintiff leaving the road. To illustrate the difficulty in holding KDOT’s negligence was a proximate cause of this accident, let us assume the risk to be warned of had been a railroad crossing instead of a stop sign. If a railroad crossing ahead sign had been obscured, would that sign’s maintainer share responsibility for the accident? Consider also if the damage here had been caused by the plaintiff striking an errant deer on the road, which evidence tended to show might well have been avoided had the driver slowed down aftér seeing the stop ahead sign in question. Would KDOT be partially responsible for that accident? In either hypothetical the plaintiff could argue, as he does here, that but for KDOT’s negligence, he would have slowed down and avoided the accident. A final problem with plaintiff’s theory is demonstrated by asking precisely how a jury would be instructed to assess fault and negligence to KDOT (but not the county) under these facts. That would be a very perplexing task. There were other factual reasons given by the trial court to grant summary judgement. We need not discuss them. We affirm the trial court’s well-reasoned decision. Affirmed.	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Wahl, J.: Malissa K. Dalke appeals from the district court’s granting of summary judgment to Allstate Insurance Company (Allstate) in her action to recover underinsured motorist benefits arising out of an automobile accident. Dalke was a passenger in an automobile driven by Lisa Madden, which was involved in an accident on June 25, 1993. Madden was insured by American Standard Insurance Company of Wisconsin (American) with liability limits of $25,000. Dalke was insured by Allstate with underinsured motorist limits of $50,000. American, on behalf of Madden, offered Dalke its policy limit of $25,000 as settlement. Dalke agreed to accept the offer on or about April 25, 1995. The settlement included a release of the tortfeasor, Madden. A provision was added by Dalke’s counsel to the settlement agreement specifically reserving Dalke’s right to pursue underinsured motorist benefits. After settling with American, Dalke sought to recover underinsured motorist benefits from Allstate pursuant to her contract for insurance. Allstate sought and was granted summary judgment based on Dalke’s failure to follow the procedure set forth in K.S.A. 40-284(f). The insurance policy issued to Dalke by Allstate contained the following provision under exclusions: “Exclusions — What is not covered Allstate will not pay any damages an insured person is legally entitled to recover because of: “3. bodily injury to any person who makes a settlement without our written consent.” This appeal arises from the district court’s grant of a summary judgment, upon which this court’s standard of review is well documented. There is no factual dispute in the instant case, leaving this court purely a question of law upon which our review is unlimited. Gillespie v. Seymour, 250 Kan. 123, 129, 823 P.2d 782 (1991). “The burden on the party seeking summary judgment is a strict one. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal we apply the same rule, and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. [Citations omitted.]” Mitzner v. State Dept. of SRS, 257 Kan. 258, 260-61, 891 P.2d 435 (1995). K.S.A. 40-284(f) provides in pertinent part: “An underinsured motorist coverage insurer shall have subrogation rights under the provisions of K.S.A. 40-287 and amendments thereto. If a tentative agreement to settle for liability limits has been reached with an underinsured tortfeasor, written notice must be given by certified mail to the underinsured motorist coverage insurer by its insured. . . . Within 60 days of receipt of this written notice, the underinsured motorist coverage insurer may substitute its payments to the insured for the tentative settlement amount. The underinsured motorist coverage insurer is then subrogated to the insured’s right of recovery to the extent of such payment and any settlement under the underinsured motorist coverage. If the underinsured motorist coverage insurer fails to pay the insured the amount of the tentative tort settlement within 60 days, the underinsured motorist coverage insurer has no right of subrogation for any amount paid under the underinsured motorist coverage.” Dalke argues that 40-284(f) does not deny coverage to her unless Allstate can demonstrate that it was prejudiced by her failure to preserve its subrogation rights. We pause to point out that there is no provision in the statute requiring Allstate to demonstrate prejudice. Interpretation of a statute is a question of law. State ex rel. Stephan v. Board of Seward County Comm’rs, 254 Kan. 446, 448, 866 P.2d 1024 (1994). ‘When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be.” Martindale v. Tenny, 250 Kan. 621, Syl. ¶ 2, 829 P.2d 561 (1992). This court presumes that the legislature does not intentionally enact useless or meaningless legislation. City of Olathe v. Board of Zoning Appeals, 10 Kan. App. 2d 218, 221, 696 P.2d 409 (1985). “[A]ll statutes are to be so construed as to sustain them rather than ignore or defeat them; to give them operation if the language will permit.” Martindale v. Tenny, 250 Kan. 621, Syl. ¶ 4. Dalke points out that there are no enumerated consequences for failure to follow the notification procedure of 40-284(f). That is true. Dalke also notes that failure of an insured to notify its insurer of a proposed settiement is not one of the listed exceptions to coverage found in K.S.A. 40-284(e). That is also true, but 40-284(e)(5) deals with failure by an insured to notify the insurance carrier of the filing of a lawsuit, which is not an issue in this case. Dalke further argues that the legislature could have specifically provided for exclusion if it had intended such a penalty. That cannot be denied. “ ‘One of the more common rules of statutory interpretation is that expressed in the Latin maxim expressio unius est exclusio alterius, i.e., the mention or inclusion of one thing implies the exclusion of another. This rule may be applied to assist in determining actual legislative intent which is not otherwise manifest, although the maxim should not be employed to override or defeat a clearly contrary legislative intention. [Citations omitted.]’ ” State v. Luginbill, 223 Kan. 15, 20, 574 P.2d 140 (1977). Allstate maintains that K.S.A. 40-284(e) applies to uninsured motorist coverage, and the language of 40-284(f) makes it clear that section applies to underinsured motorist exclusions and limitations. K.S.A. 40-284 separates uninsured and underinsured motorist coverage in some instances, although both are included in the statute. See Kansas Farm Bur. Ins. Co. v. Miller, 236 Kan. 811, 819-20, 696 P.2d 961 (1985); Haas v. Freeman, 236 Kan. 677, 682, 693 P.2d 1199 (1985). Neither of these arguments is particularly impressive, but certainly the language of40-284(f) contains no specific consequence to the insured for failure to comply with notification to the insurer of a settlement. Benson v. Farmers Ins. Co., 227 Kan. 833, 610 P.2d 605 (1980), involved an unapproved settlement between Benson and an uninsured motorist. The Farmers policy specifically excluded such a settlement. The validity of the exclusion clause was challenged, and the trial court upheld the exclusion. “ ‘By law, however, the insurer has subrogation rights against any person who may be liable for the tort committed against tire insured. (K.S.A. 40-287). The exclusion clause forbidding settlements without consent is merely designed to protect that right. This enforcement of statutory rights by the use of an exclusionary clause cannot be viewed as contrary to public policy requiring compensation to innocent persons injured by the tortious conduct of an uninsured motorist. To be compensated under the policy, all the insured need do is establish liability of an uninsured motorist. . . . Once liability has been established, the insurer must pay. The insurer then can, assuming its subrogation rights remain unimpaired, press an action against both the tortfeasor and his purported insurance company to collect the judgment. This procedure allows for both compensation to the innocent tort victim and preservation of the insurance carrier’s subrogation rights.’ ” 227 Kan. at 837. This language supports the decision of the district court in the instant case, but we note that the specific exclusions of 40-284(e) were not codified until several years after Benson was decided. In the case before us, the doctrine of expressio unius est exclusio alterius comes into conflict with the obvious legislative intent of allowing insurance companies the opportunity to preserve their subrogation rights in 40-284(f). The fundamental rule of statutory interpretation is that the intent of the legislature governs. City of Wichita v. 200 South Broadway, 253 Kan. 434, 436, 855 P.2d 956 (1993). The Kansas federal district court ignored the lack of a specific exclusion for unapproved settlements in Horace Mann Ins. Co. v. Ammerman, 630 F. Supp. 114 (D. Kan. 1986). The Am-merman court did not allow the plaintiff insurance company to exclude Ammerman from coverage, but based the decision on the fact that the insured signed a release which preserved the insurer’s subrogation rights and had obtained a judgment against the third party, establishing liability. 630 F. Supp. at 116-17. These unique facts are not present in the case before us. In dicta, fhe Ammerman court wrote that the exclusion would have been enforceable had the plaintiff’s subrogation rights been impaired. 630 F. Supp. at 119. In Bartee v. R.T.C. Transportation, Inc., 245 Kan. 499, 781 P.2d 1084 (1989), the Supreme Court addressed the question of whether an insured’s settlement with third-party tortfeasors could activate an insurer’s exclusion for settlement of claims without notice to the insurer. The Bartee court wrote that “policy provisions excluding uninsured motorist coverage for unauthorized settlements are limited to setdements that jeopardize the ability of the insurer to recover from the tortfeasor causing the insurer to provide uninsured motorist coverage.” 245 Kan. at 521-22. This was not the issue direcdy before the court, and the question of the lack of a specifically enumerated exclusion in 40-284(e) was not addressed. The lack of a specifically stated consequence in 40-284(f) is the problem facing this court. Determination of whether statutory language is mandatory or directory was discussed in State v. Deavers, 252 Kan. 149, 167, 843 P.2d 695 (1992), cert. denied 508 U.S. 978 (1993): “Whether language in a statute is mandatory or directory is to be determined on a case-by-case basis and the criterion as to whether a requirement is mandatory or directory is whether compliance with such requirement is essential to preserve the rights of the parties. [Citation omitted.] In determining whether a legislative provision is mandatory or directory, it is a general rule that where strict compliance with the provision is essential to the preservation of the rights of parties affected and to the validity of the proceeding, the provision is mandatory, but where the provision fixes a mode of proceeding and a time within which an official act is to be done, and is intended to secure order, system, and dispatch of the public business, the provision is directory. Factors which would indicate that the provisions of a statute or ordinance are mandatory are: (1) the presence of negative words requiring that an act shall be done in no other manner or at no other time than that designated, or (2) a provision for a penalty or other consequence of noncompliance. [Citation omitted.]” While there is no provision or penalty specifically provided for noncompliance with 40-248(f), die use of the words “shall” and “must” is a strong legislative mandate, and Dalke’s noncompliance with the notice provision did result in the loss of Allstate’s subrogation rights. We are aware that public policy favors awarding injured motorists appropriate insurance benefits. The uninsured and underinsured motorist statutes are remedial in nature and should be liberally construed to provide broad protection to the insured against all damages resulting from bodily injuries sustained by the insured from an automobile accident involving damages caused by an uninsured or undeinsured vehicle. Rich v. Farm Bur. Mut. Ins. Co., 250 Kan. 209, 215, 824 P.2d 955 (1992). The Supreme Court has held that coverage provisions are to be liberally construed and exclusion or avoidance of coverage is to be narrowly construed. See, e.g., Stewart v. Capps, 247 Kan. 549, 555, 802 P.2d 1226 (1990). Here, plaintiff could very well have more damages than $25,000, which ideally would be covered. The legislature enacted 40-284(f) in response to the dilemma of “potential legal entanglements inherent in resolving a claim for damages which exceed the liability limits of the negligent party’s automobile liability policy.” Report on Kansas Legislative Interim Studies to the 1986 Legislature, pp. 129,133 (1985). This situation prevented either party from taking the initial step toward settling the claim. Report on Kansas Legislative Interim Studies, p. 133. The legislature’s answer was to put the burden of delayed collection and economic hardship upon the underinsured liability insurer by forcing them to either match the settlement offer or forego their subrogation rights. See Scott, Kansas Uninsured and Underinsured Motorist Coverage Issues, p. 17 (1987). Dalke has derailed the process by failing to notify Allstate of her potential settlement with the tortfeasor and denying Allstate its subrogation rights. Dalke directs us to Brown v. USAA Cas. Ins. Co., 17 Kan. App. 2d 547, 840 P.2d 1203, rev. denied 252 Kan. 1091 (1992), in support of her position. In Brown, the insured’s failure to bring suit against the tortfeasor within the 2-year statute of limitations period did not preclude collection of underinsured motorist benefits. This court ruled that there was no statutory requirement that the insured seek any recovery from the tortfeasor before seeking under-insured motorist benefits. The court recognized that this placed the insurer in a bad situation since its subrogation rights would be lost after the 2-year statute of limitations expired, but the insured would still be able to bring a contract action against the insurer. Brown is distinguishable. The holding of Brown was that the insured had not violated the provision of40-284(b). Brown was not obligated to bring action against the tortfeasor. In the instant case, Dalke has clearly violated the specific language of 40-284(f). In Sorensen v. Farmers Exchange, 279 Mont. 291, 927 P.2d 1002 (1996), the Supreme Court of Montana ruled that the insured was not barred from collecting on the underinsured motorist policy unless the insurance company is able to demonstrate prejudice as a result of an unapproved settlement. Montana, however, appar ently does not have a statute similar to 40-284(f). There is no discussion of statutory law in Sorenson. The insurer is given subrogation rights under 40-287, which are specifically recognized in 40-284(f). There is a public policy issue to be considered in this provision for recoupment against the tortfeasor rather than placing the burden entirely upon the insurer with the resulting increase in premiums to all insureds. The Kansas Legislature has provided a simple procedural step for the insured to follow when a settlement offer is received. Dalke failed to follow the statutory requirements. This inaction on Dalke’s part destroyed Allstate’s subrogation rights. K.S.A. 40-284(f) provides that the insurer shall have subrogation rights and that the insured must notify the insurer by certified mail of the tentative agreement for settlement. It then provides what the insurer may do to preserve its subrogation rights. This is very clear. The legislature was obviously cognizant of and concerned with the preservation of the insurer’s right of subrogation and the benefits to the public emanating from the preservation of that right. They commanded the insured with the strong legislative must to notify the insurer of any possible settlement and provided that the insurer shall have subrogation rights if it substitutes its payment. The failure of Dalke to notify Allstate of her settlement and her release of the tortfeasor, Madden, violated her statutory and contractual duty to Allstate. In doing so, she cut off Allstate’s subrogation rights and must be held to have forfeited her right of recovery from Allstate under the underinsured motorist provisions of her policy. To hold otherwise would suggest meaningless legislation and would fail to give operation to the obvious intent of the legislature. We find the holding in Benson, 227 Kan. at 837, to be applicable. The enactment of40-284(e) several years after the ruling in Benson does not change the import of Benson. It could even be argued that 40-284(e)(5), providing for exclusion of coverage when the insured files suit against the uninsured motorist without notice to the insurance carrier, is indication that the legislature considered the issue of an undisclosed setdement covered in 40-284(f). Finally, Dalke states that the release in question specifically conditioned her right to pursue her underinsured motorist benefits against Allstate, and argues that the release is voidable if her rights to pursue her underinsured motorist benefits are extinguished. This is a matter between Dalke and the underinsured motorist and is not properly before this court at this time. The district court did not err in granting summary judgment to Allstate. Affirmed.	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Royse, J.: This appeal arises out of a district court decision modifying child support. Ross R. Cranston argues the district court committed error by using one worksheet rather than two to compute his child support obligation. Ross and Christie Cranston obtained a divorce in 1992. At that time, Christie received residential custody of all five of the parties’ minor children. Ross was ordered to pay $1,750 per month in child support. That obligation was later reduced to $1,580 per month. After the parties’ oldest daughter began to reside with Ross, he filed a motion to modify the custody order and asked for a further reduction in child support. The district court granted Ross’ motion. The district court modified Ross’ child support obligation to $1,100 per month, using computations on one child support worksheet. Ross argues the Kansas Child Support Guidelines require the district court to compute child support using two child support worksheets in a divided custody situation. We agree. The Kansas Child Support Guidelines provide in relevant part: “For Divided Custody, if each parent has residential custody of one or more children, a worksheet should be prepared for each family unit using the Child Support Schedule which corresponds with the total number of children of the parties living in each family unit. . . . Upon completion of the two worksheets, the lower Net Parental Child Support Obligation is subtracted from the higher amount. The difference is the amount of child support the party having the higher obligation will pay to the party with the lower obligation.” (Emphasis added.) 1996 Kan. Ct. R. Annot. 89-90. See In re Marriage of Hansen, 18 Kan. App. 2d 712, 716, 858 P.2d 1240 (1993). The district courts must follow the guidelines when determining child support. 1996 Kan. Ct. R. Annot. 84; In re Marriage of Schletzbaum, 15 Kan. App. 2d 504, Syl. ¶ 1, 809 P.2d 1251 (1991). Failure to do so is reversible error, absent findings by the district court justifying its deviation. In re Marriage of Schwien, 17 Kan. App. 2d 498, Syl. ¶ 5, 839 P.2d 541 (1992). The district court erred because it failed to prepare two worksheets as required by the guidelines and did not provide any rationale for completing only one worksheet to determine Ross’ support obligation. Reversed and remanded for further proceedings.	[ -112, 120, -3, 108, -38, 97, -117, 24, 75, -93, -9, 81, -17, -22, 20, 123, -110, 59, 96, 104, -43, -93, 14, -63, -2, -13, -79, -36, -73, 77, 108, -42, 76, 48, -126, -43, 66, -126, -124, -112, -106, 2, -119, -27, 83, 70, 116, 97, 26, 11, 49, -114, -78, 44, 24, -33, 110, 44, 25, 121, -64, -14, -109, 7, 95, 66, -80, 20, -106, 4, 88, 39, -100, 56, 32, -23, -78, -90, -58, 116, 65, -69, -119, 96, 98, 0, 61, -52, -8, -100, 110, -97, -113, -25, -101, 88, 11, 6, -74, -74, 100, 20, 15, 124, 105, 5, 63, -3, -126, -53, 80, -101, -116, 57, 2, -126, -17, 70, 49, 97, -37, -90, 92, -57, 58, -77, -34, -34 ]
Bouker, J.: Larry Eugene Beechum pled no contest to robbery and, on May 20,1994, was sentenced to 57 months’ imprisonment. Beechum later requested to withdraw his plea. At the first hearing Beechum called two witnesses who had information tending to exonerate him. Beechum testified that he pled no contest even though he was innocent because his attorney advised him to do so and told him he would probably get probation. The court took the motion under advisement, and, before it ruled, Beechum asked to present the testimony of Kelly Glover. Glover testified that she was present when the victim was robbed, but that Beechum was not present. On August 10, 1994, the district court granted Beechum’s motion, setting aside his conviction and sentence. The court focused on Glover’s testimony and the State’s failure to impeach or rebut that testimony. The court also found that Beechum had always professed his innocence and had pled no contest under the assumption that he would receive probation rather than a prison sentence. The court found that in order to prevent manifest injus tice, Beechum should be allowed to withdraw his plea and have a jury trial. The same day, the State filed a motion to reconsider, alleging that Glover had told police that Beechum was one of the people who robbed the victim. The court held yet another hearing at which Officer James Rayburn testified that Glover had previously told him Beechum was involved in the robbery. On September 6, 1994, the district court granted the State’s motion to reconsider, noting that when Glover first testified the court was unaware she had previously given a different statement to Officer Rayburn implicating Beechum. The court reinstated Beechum’s conviction and sentence for robbery. Beechum timely appeals. While the State does not contest this court’s jurisdiction to hear Beechum’s appeal, the first portion of Beechum’s brief addresses that issue. First, Beechum cites K.S.A. 22-3210(d), which provides in part: “To correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw the plea.” The Supreme Court has held that a defendant has the right to a direct appeal from the trial court’s denial of a motion to withdraw a plea pursuant to 22-3210(d). State v. McDaniel, 255 Kan. 756, 760, 877 P.2d 961 (1994). In the instant case, the trial court granted Beechum’s motion to withdraw his plea, but subsequently reconsidered that decision and reinstated his conviction and sentence. For jurisdictional purposes, the court’s ruling is the equivalent of a denial of a motion to withdraw a plea; therefore, this court has jurisdiction to hear Beechum’s appeal. Next, Beechum argues that the trial court abused its discretion in granting the State’s motion to reconsider and in reinstating his conviction and sentence. He contends that once the trial court vacated his conviction it could not reinstate his conviction and sentence without accepting another plea or obtaining a conviction by jury trial. The State argues that the trial court has the authority to rescind a previous order allowing the withdrawal of a guilty plea. Rather than citing any direct authority for this argument, the State cites various statutes which allow a trial court to modify or rescind a previous order in other situations: K.S.A. 22-3501 grants authority to order a new trial; K.S.A. 22-3210 grants authority to set aside a conviction and permit withdrawal of a plea; and K.S.A. 22-3504(1) grants authority to correct an illegal sentence. The State argues that these statutes show that trial courts have discretion to modify or vacate prior orders and judgments. The statutes cited by the State only show that a trial court has authority to modify or vacate prior orders and judgments in certain situations. It does not necessarily follow, however, that a trial court has authority to reconsider a prior order allowing a guilty plea to be withdrawn and to reinstate a previously vacated conviction and sentence. This issue appears to be one of first impression in Kansas. The courts of other jurisdictions have resolved the issue in different ways. At least two courts have held that a trial court may reconsider its order permitting withdrawal of a guilty plea and reinstate that plea. United States v. Farrah, 715 F.2d 1097 (6th Cir. 1983), cert. denied 466 U.S. 971; People v. Wilkens, 139 Mich. App. 778, 362 N.W.2d 862 (1984). In Farrah, after defendant was sentenced to 1 year’s incarceration, he asked to withdraw his plea on the ground that “everybody” told him he would receive only a 4-month sentence. The trial court initially granted defendant’s request to withdraw his plea and set aside his sentence. 715 F.2d at 1098. The prosecution later filed a motion to reconsider, which the trial court granted. After a hearing, the trial court concluded that defendant had been fully aware of the possible 1-year prison term. The court then reversed its earlier ruling and reinstated defendant’s plea. The court later resentenced defendant. 715 F.2d at 1098. The Sixth Circuit Court of Appeals initially vacated defendant’s conviction and remanded, but upon petition for rehearing, it affirmed defendant’s conviction. The Farrah court followed die reasoning of the Third Circuit Court of Appeals in United States v. Jerry, 487 F.2d 600 (3d Cir. 1973). In addressing the same issue, the Jerry court held that although the Federal Rules of Criminal Procedure contained no specific provision allowing a court to re consider or modify a prior order entered through mistake, courts had always had the power to grant relief from erroneous orders. The court relied, at least in part, on Fed. R. Crim. Proc. 57(b), which then provided: “If no procedure is specifically prescribed by rule, the court may proceed in any lawful manner not inconsistent with these rules or with any applicable statute.” 715 F.2d at 1099 (citing 487 F.2d at 604). The Michigan Court of Appeals reached a similar conclusion in Wilkens. In that case, the trial court granted defendant permission to withdraw his pleas before sentencing based upon the mistaken belief that a recent Michigan Supreme Court decision required it to do so. 139 Mich. App. at 785. Upon discovering the error, the prosecution filed a motion to reinstate defendant’s pleas, which the court granted. 139 Mich. App. at 783-84. The Wilkens court affirmed, relying in part upon a Michigan court rule which allowed a trial court to relieve a party from a final judgment or order under certain circumstances. The court also cited the reasoning of Farrah and Jerry in reaching its decision. The California Court of Appeals reached the opposite conclusion in People v. McGee, 232 Cal. App. 3d 620, 283 Cal. Rptr. 528 (1991), holding that there was nothing in the California statute authorizing guilty pleas which gave the trial court the authority to reconsider its original ruling allowing defendant to withdraw his plea. The court further emphasized that, under the California statute, the defendant, and only the defendant, could enter a plea of guilty and that the statutory language permits no interpretation which would allow the prosecution to move for, or the trial court to grant, reinstatement of the guilty plea. 232 Cal. App. 3d at 623. We do not find either Farrah or Wilkens persuasive. The Kansas statute applicable to entry of pleas is, for the purpose of this analysis, similar in nature to the California statute discussed in McGee. K.S.A. 22-3210 provides in pertinent part: “(a) Before or during trial a plea of guilty or nolo contendere may be accepted when: (1) The defendant or counsel for the defendant enters such plea in open court; and (2) in felony cases the court has informed the defendant of the consequences of the plea, including the specific sentencing guidelines level of any crime committed on or after July 1, 1993, and of the maximum penalty provided by law which may be imposed upon acceptance of such plea; and (3) in felony cases the court has addressed the defendant personally and determined that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea; and (4) the court is satisfied that there is a factual basis for the plea. “(b) In felony cases the defendant must appear and plead personally and a verbatim record of all proceedings at the plea and entry of judgment thereon shall be made.” It is clear that the Kansas statutes permit only the defendant or defendant’s counsel to enter a plea of guilty or nolo contendere. It is also clear that, in a felony case, the plea must be made in open court and that the defendant must be addressed personally by the court to determine whether the plea is entered voluntarily and with understanding of the nature of the charge and the consequences of the plea. In this case, the trial court set aside Beechum’s earlier plea of nolo contendere. Beechum was, thereafter, in the same circumstance and had the same rights and protections as a defendant who had never entered a plea of guilty or nolo contendere. From that point forward only Beechum or his attorney could enter such a plea. There is no provision in our law which allows the prosecution to move for reconsideration of an order allowing defendant to withdraw a guilty or nolo contendere plea. Likewise, there is no authority allowing a trial court to reverse an earlier ruling setting aside a plea of nolo contendere. In reinstating Beechum’s nolo contendere plea, the trial court violated the clear provisions of 22-3210. The presumption of innocence is fundamental to our system of justice and should not be abrogated absent clear and compelling authority. Here, that authority is absent. We find that the trial court exceeded its authority and improperly reinstated the nolo contendere plea over Beechum’s objection. We, therefore, reverse and remand for further proceedings. Reversed and remanded.	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Rulon, J.: Respondent Judith L. (Jones) Milano appeals the district court’s award of child support to her former husband, petitioner Jerry O. Jones, for support of their two minor children. We affirm. Jerry Jones and Judith Milano were divorced in 1987. Jerry was awarded primary residential custody of their two children. At the time of the divorce, Judith was not ordered to pay child support for their two children, Jerry Jr. and Justin. On July 13, 1995, the Kansas Department of Social and Rehabilitation Services filed a motion to establish an order for Judith to pay child support to Jerry. Judith testified that she was self-employed as a beautician and could only work 24 hours a week because of the expense of day care for her 1-year-old child, bom to her and her present husband. It is undisputed that Jerry has no legal responsibility to support this 1-year-old child. Additionally, Judith testified that she paid $17 per day for day care expenses. ■ The district court imputed to Judith income equal to the federal minimum wage rate of 40 hours per week and further denied Judith’s request to adjust her child support payment for Jerry’s and her two children by the amount that she would have to pay for child care costs for her 1-year-old child. Judith appeals the district court’s decision to impute income to her ánd the'district court’s finding that, as a matter of law, it could not consider Judith’s day care costs for a child for which Jerry had no legal responsibility. IMPUTED INCOME The Kansas Child Support Guidelines, Administrative Order No. 107 (Í996 Kan. Ct. R. Annot. 86), clearly state: “1. Income may be imputed to the noncustodial parent in appropriate circumstances including the following: “a. Absent substantial justification, it should be assumed that a parent is able to earn at least the federal minimum wage and to work 40 hours per week.” (Emphasis added.) Judith’s sole basis for claiming the district court abused its discretion by imputing income to her is that there were no opportunities available to her and she could not afford day care costs if she worked 40 hours. Judith further complains that Jerry presented no evidence she could find a 40-hour-a-week job paying minimum wage. However, this argument incorrectly assesses the burden against Jerry, whereas the Child Support Guidelines clearly place the burden to establish inability to work full time upon the noncustodial parent. The legislature’s intention to impute full-time income at the federal minimum wage to the noncustodial parent is clear. It is within the district court’s discretion to determine what is a substantial justification not to impute income to the noncustodial parent. Absent a finding that no reasonable person would adopt the view taken by the district court, this court must accept the district court’s ruling. See Stayton v. Stayton, 211 Kan. 560, 562, 506 P.2d 1172 (1973). Judith did not present any evidence that she was incapable, due to a disability or otherwise, of maintaining full-time employment at the federal minimum wage. Consequently, the district court did not abuse its discretion in imputing income to her. CHILD CARE EXPENSES The district court did not accept Judith’s request to allow an adjustment for a child for which Jerry was not legally responsible. The court held “that as a matter of law, [Judith’s] cost incurred to provide day care for her minor child who is not a mutual child of [Jerry and Judith] is not applicable in calculating the amount of child support [Judith] should be ordered to pay for the minor children herein, and the court therefore refuses to include such day care costs on the Child Support Worksheet in this case.” “Interpretation of the child support guidelines is a question of law; therefore, this court’s standard of review is de novo.” Scruggs v. Chandlee, 20 Kan. App. 2d 956, Syl. ¶ 1, 894 P.2d 239 (1995). Here, the district court did allow Judith to make a Multiple Family Adjustment in the child support worksheet. “The Multiple Family Adjustment is used to adjust the noncustodial parent’s child support obligation when the noncustodial parent has legal financial responsibility for the support of other children who reside with the noncustodial parent in addition to the children shared with the custodial parent.” Kansas Child Support Guidelines, Administrative Order No. 107 (1996 Kan. Ct. R. Annot. 87). Judith is the noncustodial parent, and she has legal responsibility to support two other children who reside with her. Therefore, the Multiple Family Adjustment takes into account the added expense of the two children who reside with her. Jeny argues that the Multiple Family Adjustment already considers Judith’s added expenses for her other children, such as day care costs, whereas lines 5 and 8 of the worksheet provide a limited adjustment for child care costs of children for which both parties are legally responsible. Under the Kansas Child Support Guidelines, child-related costs are limited to the children for which both parties are legally responsible. The only exception is that made under the Multiple Family Adjustment. This adjustment considered the number of children which Judith is legally obligated to support. The Multiple Family Adjustment considers Judith’s costs of raising her children for whom Jerry is not legally responsible, such as child care costs. The district court did not err in ruling, as a matter of law, that lines 5 and 8 of the worksheet are limited to the actual costs of the two children bom to Jerry and Judith. It would have been error for the court to consider the costs of children bom outside the marriage, for which Jerry has no legal responsibility. Affirmed.	[ -48, -17, -27, 92, 28, -31, 42, 24, 83, -21, -91, -41, -17, -18, 80, 121, 112, 59, 64, 122, -45, -93, 23, 64, -2, -5, -71, -35, -69, 95, -28, -12, 76, 48, -118, -107, 70, -46, -115, 20, -54, 10, -117, -15, 89, -126, 52, 97, 122, 47, 49, -50, -77, 40, -72, 120, -116, 46, 91, -13, -40, -30, -73, -123, 94, 88, -80, 20, 30, -28, -40, -121, -120, 56, 96, -24, 50, -90, -126, 116, 83, -119, -119, 112, 98, 18, -100, -20, -4, -104, 14, -42, -99, -27, -101, 88, 26, 14, -74, -68, 108, -44, 15, 122, -62, 5, 31, -19, -62, -117, -44, -77, -115, 53, 12, -127, -17, -93, 0, 97, -53, -32, 92, 66, 58, -101, -34, -16 ]
Royse, J.: This is a workers compensation case. U.S.D. No. 259 appeals from the decision of the Workers Compensation Board (Board) dismissing its appeal of an administrative law judge’s (ALJ) award. Mildred Hedrick went to work for U.S.D. No. 259 in its food service department in 1962. On September 21, 1988, she fell at work, fracturing her right hip. She was treated by Dr. Bernard Poole, who performed surgery. After extensive physical rehabilitation, she returned to work. Hedrick sought workers compensation benefits as a result of her injury. On June 24, 1991, an ALJ entered an award based on Hedrick’s 20% functional impairment. The director approved that award on July 9, 1991. The proceedings which give rise to this appeal began on August 9,1995, when Hedrick filed an “Application for Preliminaiy Hearing.” Specifically, Hedrick sought reimbursement in the amount of $3,776.50, which represented her cost in trading in a 1990 Geo for a 1989 Mercury Sable. Hedrick supported her request by introducing into evidence a letter from Dr. Poole which stated the following: “This lady, following successful Total Hip Replacement, has reached the stage where she is ready for independence in the activities of daily life. “For independence in transportation, she needs a vehicle into which she can climb safely, which can be effected either with a fairly large vehicle, or a tiltable steering wheel. Her old vehicle is very small, had a small door, and a steering wheel which cannot be tilted.” After hearing Hedrick’s testimony, the ALJ ordered U.S.D. No. 259 to pay Hedrick the sum of $3,776.50. U.S.D. No. 259 sought review of this award by the Board. The Board dismissed the appeal, reasoning that a preliminary award of medical care is within the jurisdiction of an ALJ and is not reviewable under K.S.A. 44-534a and 44-551. U.S.D. No. 259 appeals from that decision. U.S.D. No. 259 argues on appeal that the Board erred in dismissing its appeal of the award. U.S.D. No. 259 relies on 44-551(b)(2)(A), which authorizes the Board to review a preliminary award if it is alleged that the ALJ exceeded his/her authority in granting the relief requested at a preliminary hearing. See Shain v. Boeing Military Airplanes, 22 Kan. App. 2d 913, 914, 924 P.2d 1280 (1996). This case presents an unusual twist because resolution of the jurisdictional issue depends upon our resolution of the substantive issue. In other words, if a car is “medical treatment,” then the ALJ had authority to enter the award, and the Board properly dismissed the appeal. On the other hand, if a car is not “medical treatment,” then the ALJ was without jurisdiction to enter the award, and the Board improperly dismissed the appeal. The provision for medical benefits is contained in K.S.A. 44-510(a): “It shall be the duty of the employer to provide the services of a health care provider, and such medical, surgical and hospital treatment, including nursing, medicines, medical and surgical supplies, ambulance, crutches, and apparatus, and transportation to and from the home of the injured employee to a place outside the community in which the employee resides ... as may be reasonably necessary to cure and reheve the employee from the effects of the injury.” Interpretation of a statute is a question of law, subject to unlimited review on appeal. Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, Syl. ¶ 1, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995). Similarly, whether an agency has erroneously interpreted the law is also a question of law over which an appellate court’s review is unlimited. In re Tax Appeal of Scholastic Book Clubs, Inc., 260 Kan. 528, 920 P.2d 947 (1996). The fundamental rule of statutory construction is that the intent of the legislature governs. NCAA v. Kansas Dept. of Revenue, 245 Kan. 553, 557, 781 P.2d 726 (1989). When the language used is plain, unambiguous, and appropriate to an obvious purpose, the court should follow the intent as expressed by the words used. Chavez v. Markham, 256 Kan. 859, 865, 889 P.2d 122 (1995). When construing a statute, a court should give words in common usage their natural and ordinary meaning. In re Estate of Robinson, 236 Kan. 431, 436, 690 P.2d 1383 (1984). U.S.D. No. 259 has cited no previous cases which define “medical treatment” as used in our workers compensation statute, and we have been unable to find any (Hedrick did not file a brief on appeal). Black’s Law Dictionary 1502 (6th ed. 1990) does provide a definition of “treatment”: “A broad term covering all the steps taken to effect a cure of an injury or disease; including examination and diagnosis as well as application of remedies.” Additionally, the legislature has provided an operative definition of medical treatment in the statute, by delineating specific items which that term includes: “nursing, medicines, medical and surgical supplies, ambulance, crutches, and apparatus,” and transportation to obtain medical treatment. K.S.A. 44-510(a). Finally, the regulations prom ulgated by the Division of Workers Compensation do not define medical treatment, although they do define “apparatus” as “glasses, teeth, or artificial member,” K.A.R. 51-9-2, and establish criteria for reimbursement of expenses for transportation to obtain medical treatment, K.A.R. 51-9-11. For purposes of this case, it is not necessary to devise a precise definition of “medical treatment.” Certainly, examination, diagnosis, and application of remedies would not encompass the purchase of a car. The natural and ordinary meaning of “medical treatment” is not so broad as to include an automobile purchased to afford an individual “independence in transportation.” Moreover, the purchase of a car goes far beyond the limited transportation authorized by 44-510(a). Under the facts of this case, we conclude that medical treatment does not include the purchase of a car. This conclusion is consistent with those cases which have applied another element of 44-510(a), the requirement that the medical treatment “be reasonably necessary to cure and relieve the employee from the effects of the injury.” Horn v. Elm Branch Coal Co., 141 Kan. 518, 41 P.2d 751 (1935), concerned a claimant who worked as a shot firer. He was injured when a shot exploded prematurely, requiring that he undergo surgical removal of an eye. During the course of his treatment, he received a recommendation that he should have his teeth pulled. Nineteen teeth were extracted, and the claimant sought an award of $50 for a new set of false teeth. The district court rejected that claim, and the Supreme Court affirmed the decision on the grounds that the expenses were not a result of the claimant’s injury: “When the accident occurred, claimant had two false teeth attached to a plate. The teeth were knocked from the plate. There was no other injury to teeth. Claimant already had decayed and infected teeth. There was no evidence that any of the teeth extracted became decayed or infected as a result of the accident, and there was no basis in the evidence to sustain a claim for the cost of a new set of false teeth.” 141 Kan. at 519. In Carr v. Unit No. 8169, 237 Kan. 660, 703 P.2d 751 (1985), the claimant sought workers compensation benefits for injuries he sustained when a truck in which he was riding struck a cow. One of the issues on appeal was whether his employer was required to pay for hospital expenses incurred after the claimant took an overdose of pain pills. The court concluded those expenses were not within the scope of 44-510(a), because treatment incurred as a result of an overdose of pain pills was not “an ordinary and necessary result of the claimant’s accident.” 237 Kan. at 666. See also Buck v. Beech Aircraft Corporation, 215 Kan. 157, 523 P.2d 697 (1974) (claim for medical services disallowed where no showing services were made necessary by claimant’s on-the-job injury); McDowell v. Paynter, 202 Kan. 767, 770, 451 P.2d 227 (1969) (fee for doctor’s deposition not an expense for “medical treatment”); Fisher v. Rhoades Construction Co., 190 Kan. 448, 453, 375 P.2d 771 (1962) (medical treatment does not include medical evaluation so that doctor can testify on claimant’s behalf; [rule now codified at 44-510(c)(2)]); Morris v. Kansas City Bd. of Public Util., 3 Kan. App. 2d 527, 535, 598 P.2d 544 (1979) (to obtain modification award for reimbursement of medical expenses, claimant must show, inter alia, that the medical treatment was reasonably necessary to provide relief for the changed condition). In this case, Hedrick was injured in a fall a number of years ago. The fact that she was injured and had to have a total hip replacement may well have necessitated many changes in her activities and routines. Logically, with a larger car she could enter and exit the vehicle with greater ease and comfort. The legislature, however, has not extended workers compensation benefits so far as to include all expenses associated with the accommodations that a disability may require. A larger car is not a necessary result of Hedrick’s fall, nor can it be viewed as treatment reasonably necessary to cure Hedrick or to relieve her from the effects of her injury. In concluding that Hedrick’s trade-in costs were within the scope of 44-510(a), the Board focused on the fact that Hedrick requested the automobile as a form of medical treatment and that she supported the request with a letter from Dr. Poole. Neither of these factors is dispositive. Were we to adopt the Board’s reasoning, any expense would be considered medical treatment, so long as the claimant labelled it as such or a doctor recommended the expense. Such an approach cannot be squared with the terms used by the legislature in 44-510(a). In closing, we note that this case does not involve a paraplegic claimant who seeks a specially equipped vehicle under the Workers Compensation Act. Among jurisdictions which have addressed that problem, there is a split of authority. The varying results depend to a large degree on the peculiar language found in the various states’ workers compensation laws. See 2 Larson’s Workmen’s Compensation Law, § 61.13(a); 82 Am. Jur. 2d, Workers’ Compensation § 394, p. 422. Those cases are helpful only to the extent they reinforce our statutory requirement that medical treatment be reasonably necessary. In light of our conclusion that the Board erred in concluding that Hedrick’s new car was medical treatment, we need not address the alternative argument propounded by U.S.D. No. 259 that the Board erred in treating the award as a preliminary award. See Winters v. GNB Battery Technologies, 23 Kan. App. 2d 92, 927 P.2d 512 (1996); Shain v. Boeing Military Airplanes, 22 Kan. App. 2d 913. Because Hedrick’s purchase of a larger car was not medical treatment, the Board erred in dismissing the appeal, and the ALJ exceeded her authority in ordering U.S.D. No. 259 to reimburse Hedrick for her trade-in costs. Reversed.	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Marquardt, J.: Terry Lee Bowers appeals from the district court’s orders which denied his motion to terminate maintenance based on the remarriage of Juanita Marie Lacy, formerly Bowers, and denied his motion pursuant to K.S.A. 60-260(b)(6) requesting relief from the portion of the divorce decree that conflicted with the parties’ property settlement agreement (PSA). On October 19, 1990, the parties executed a PSA. The district court granted the parties a divorce on February 13, 1991. The parties’ PSA provides: “9. MAINTENANCE AND CHILD SUPPORT: Respondent, TERRY LEE BOWERS, shall pay as maintenance and child support to the petitioner, JUANITA MARIE BOWERS, the sum of Four Hundred Dollars ($400.00) per month, which is one-half of respondent’s military retirement, commencing on the 1st day of November, 1990 and continuing to be due and payable in like amount on the 1st day of each succeeding month. “The parties understand and agree that the child support payments are included in this amount until the 1st day of June, 1991, which will be after the minor child is scheduled to graduate from high school. “The amount of $400 will continue to be paid for petitioner’s maintenance until such time as this action is amended or until further modified by this Court.” The divorce decree, which was not approved by Terry, provides: “3. That the Property Settlement Agreement entered into by and between the parties concerning the care, custody, control and support of the minor child and other matters, is hereby ORDERED approved, confirmed and incorporated herein, made a part of this Decree by reference and shall be a judgment as though set out herein.” “4. That the respondent, TERRY LEE BOWERS, shall pay as maintenance and child support to the petitioner, JUANITA MARIE BOWERS, the sum of Four Hundred Dollars ($400.00) per month, commencing on the 1st day of November, 1990. Child support payments in an amount equal to the requirements of the Kansas Supreme Court Child Support Guidelines are included in this amount until the 1st day of June, 1991, which will be after the minor child is scheduled to graduate from high school. Thereafter, the amount of Four Hundred Dollars ($400.00) will continue to be paid solely for petitioner’s maintenance and this amount has been agreed to by the parties based on both petitioner’s needs and petitioner’s entitlement to a portion of respondent’s military retirement. Said maintenance shall terminate upon the death of either party or upon the expiration of the 121 month statutory limitation of K.S.A. 60-1610. Petitioner is granted the right to file the requisite motion for reinstatement of this maintenance prior to the expiration of maintenance, all as provided in K.S.A. 60-1610.” The PSA and divorce decree were prepared by Juanita’s counsel, who was present at the divorce hearing. Terry was neither present nor represented at the divorce hearing. Terry argues that the issue of post-divorce maintenance requires interpretation of a statute and raises a question of law subject to unlimited review by this court. See In re Marriage of Quint, 258 Kan. 666, 668, 907 P.2d 818 (1995). This argument ignores established law and principles of appellate review. When reviewing a motion to modify maintenance, this court examines the record to determine if there is substantial competent evidence to support the ruling of the district court and whether the district court abused its discretion. In re Marriage of Hedrick, 21 Kan. App. 2d 964, 967-68, 911 P.2d 192 (1996); see Jarvis v. Jarvis, 218 Kan. 679, 683-84, 544 P.2d 1384 (1976); Lambright v. Lambright, 12 Kan. App. 2d 211, 213, 740 P.2d 92 (1987). Discretion is abused if no reasonable person would take the view adopted by the trial court. See Reich v. Reich, 235 Kan. 339, 343, 680 P.2d 545 (1984). In Herzmark v. Herzmark, 199 Kan. 48, 54, 427 P.2d 465 (1967), the court held that while remarriage does not automatically terminate the right to maintenance, proof of remarriage does make a prima facie case for the termination of maintenance, absent proof of extraordinary, strong, and compelling circumstances justifying its continuance. The burden is on the recipient to prove that there are extraordinary, strong, and compelling reasons for the continuation of maintenance. See Wright v. Wright, 209 Kan. 628, 630, 498 P.2d 80 (1972). The rule that remarriage is a prima facie reason to terminate maintenance does not apply where the parties have entered into a separation agreement that sets maintenance and the district court incorporates that agreement into the divorce decree. Rasure v. Wright, 1 Kan. App. 2d 699, 700-02, 573 P.2d 1103 (1977), rev. denied 225 Kan. 845 (1978). Under these circumstances, maintenance is not subject to modification by the district court except as prescribed in the agreement or as subsequently consented to by the parties. K.S.A. 1996 Supp. 60-1610(b)(3). This rule applies even where the recipient spouse remarries. Rasure, 1 Kan. App. 2d at 700-02. Thus, if a separation agreement that is incorporated into a divorce decree does not either provide that maintenance will terminate upon remarriage or give the district court continuing power to modify maintenance, the district court has no power to modify maintenance upon the remarriage of the recipient unless the parties consent. See Rasure, 1 Kan. App. 2d at 702. Here, the PSA stated that maintenance would continue “until such time as this action is amended or until further modified by this Court.” The parties agree that the maintenance is subject to modification by the district court. Thus, the specific issue decided by the district court and which is now before this court is whether strong and compelling circumstances justify the continuation of maintenance notwithstanding Juanita’s remarriage. The district court discussed several factors in its finding that there were strong and compelling reasons for continuing maintenance. The district court found that the parties’ incomes were not substantially different. More specifically, the district court found that when Terry made the $400 monthly maintenance payment to Juanita, the difference in the parties’ incomes was $278 — not a strong and compelling reason to continue maintenance payments. The district court also determined that since Juanita and her new husband had purchased a new house relying on the maintenance payments, she needed the money. Incurring new indebtedness does not provide a strong and compelling reason to justify the continuation of maintenance payments from a former spouse. The district court found that Juanita made a substantial contribution to the production of Terry’s retirement income and noted that the terms of the parties’ PSA stated that the amount of maintenance was one-half of Terry’s retirement income. Terry spent 17 years of the parties’ 19-year marriage in the military. The district court stated that “it is incumbent upon this Court to normally give a division of that property in the determination and division of assets in a divorce of this type with similar circumstances.” Terry argues that the district court’s refusal to terminate maintenance reflects an impermissible commingling of the concepts of property division and maintenance. We agree. In support of his argument, Terry cites Beck v. Beck, 208 Kan. 148, 149, 490 P.2d 628 (1971), where the Kansas Supreme Court cautioned: “ ‘When the original decree of divorce is entered care should be exercised so that any payments to equalize the division of property are not included with payments for future support denominated as alimony.’ ” The Beck court noted that maintenance and the division of property serve different functions. The division of property “operates retrospectively to adjust the rights of the parties to property already accumulated.” Maintenance “is prospective and deals with future support.” Beck, 208 Kan. at 149. The trial court abused its discretion in not terminating the maintenance payments. This case is reversed and remanded with instructions for the district court to tenninate maintenance as of the date Terry filed his motion, March 7, 1995. See Beck, 208 Kan. at 150. Terry argues that the district court erred in denying his motion pursuant to K.S.A. 60-260(b)(6) requesting relief from that portion of the divorce decree which conflicted with the parties’ PSA. “ ‘As a general rule, a ruling on a morion for relief from a final judgment filed pursuant to K.S.A. 60-260(b) rests within the sound discretion of the trial court and will not be reversed absent a showing of abuse of discretion.’ [Citation omitted.] ‘The burden of showing abuse of discretion lies with the party alleging abuse.’ [Citation omitted.]” In re Marriage of Beardslee, 22 Kan. App. 2d 787, 790, 922 P.2d 1128 (1996). K.S.A. 60-260(b) provides that a motion filed under subsection (6) must be filed within a reasonable time. “ ‘The reasonable time frame is measured by determining when the movant came into possession of facts justifying the relief as compared to the time when he filed the motion seeking the relief.’ ” Beardslee, 22 Kan. App. 2d at 791 (quoting Wilson v. Wilson, 16 Kan. App. 2d 651, 659, 827 P.2d 788 [1992], Any facts justifying relief should have been apparent to Terry when the divorce decree was filed. Terry’s motion was filed approximately 4 years after the divorce decree was filed. Initially, we note that absent extenuating circumstances, 4 years is not a reasonable time. In his brief, Terry raises three points where the divorce decree conflicted with the parties’ PSA. First, Terry argues that there is no recital or acknowledgement by the parties of Juanita’s entitlement to a portion of his military retirement. The divorce decree provides that the $400 monthly payment had been "agreed to by the parties based on both [Juanita’s] needs and [her] entitlement to a portion of [Terry’s] militaiy retirement.” There is no dispute, however, that this monthly payment is being made as maintenance and is not a property division entitling Juanita to a portion of Terry’s military retirement. The district court treated the payment as maintenance in deciding this case. Whatever conflict exists between the PSA and the divorce decree is not relevant to any issue before this court. Second, Terry complains that the divorce decree provided that the maintenance would continue for the statutory period of 121 months. The PSA does not set a period for maintenance; therefore, the statutory period would govern. See K.S.A. 60-1610(b)(2). However, because of our ruling on the first issue, this issue is moot. Third, Terry complains that the divorce decree provided that Juanita had the right to file a motion for reinstatement of the maintenance. Again, the district court merely incorporated a statutory rule that the parties had not contradicted in the PSA. See K.S.A. 60-1610(b)(2). This argument lacks merit. Affirmed in part, reversed in part, and remanded with instructions.	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Lewis, J.: Defendant entered a plea of guilty to two counts of aggravated indecent liberties with a minor. He was given a minimum presumptive sentence of 49 months on each count with the sentences to run concurrently. At this time, defendant appeals from the trial court’s decision that his appeal was untimely and that the Ortiz exceptions did not apply. We affirm. After entering his plea of guilty to the charges, defendant prepared for the sentencing hearing. He drew up a written 8- to 10-page statement, which contained his remarks concerning sentencing. His attorney mailed a copy of this document to the trial court prior to sentencing. Defendant’s attorney explained to the trial court that defendant did not want to read the entire statement into the record at sentencing and requested the trial court to read the statement prior to sentencing defendant. At defendant’s sentencing, his counsel said, among other things: “[The defendant] has presented a speech, if you will, prepared it, mailed it to me, and I forwarded it to you. Rather than have him read it all into the record, I furnished a copy, of course, to the District Attorney’s office. The speech, if you will, or his comments that he had intended to make to this Court, certainly in his own words, acknowledge guilt, remorse. In fact, he offered and thought it might be beneficial to outwardly identify himself as a child molester and give speeches to school children regarding the dangers of people like him, and encouraging them of course to be careful about their persons and their bodies and the like. He prepared an almost eight to ten page letter. But, again, I would not have him read, but again it indicates his acceptance of the situation, his understanding of the problem, and his willingness to, as he puts it, make restitution or repayment to society for the wrong this has caused.” (Emphasis added.) The trial court then sentenced defendant as described without addressing him further or inquiring whether he desired to make a statement. Defendant also made a request for a downward departure, which was denied by the trial court. Subsequently, defendant filed a motion to modify his sentence, asked the court to reduce his sentence, and, at this point, argued he was never given his right to allocution. The trial court concluded that it had no authority to resentence defendant or to modify his sentence and denied the motion. Defendant then appealed the denial of his motion to modify to this court. We concluded that defendant’s notice of appeal was untimely and issued an order inviting him to show cause why we should not dismiss his appeal. Defendant made a formal response to our show cause order and argued that under State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982), he was entitled to proceed with his appeal even though it was not timely filed. We remanded the case for an Ortiz hearing, and asked the trial court to determine if any of the Ortiz exceptions applied in this case. On remand, the trial court found that none of the Ortiz exceptions applied. This appeal is from the order on remand. The trial court announced its decision in part as follows: “6. Although the defendant’s notice of appeal is untimely with respect to the sentence he received, fundamental fairness allows for the consideration of such an appeal on the merits if the defendant 1) was not informed of the right to appeal; 2) was not furnished an attorney to perfect an appeal; or 3) was furnished an attorney for that purpose who failed to perfect and complete an appeal. State v. Ortiz, 230 Kan. 733, 735-36, 640 P.2d 1255 (1982). The Ortiz exceptions do not apply when an appeal would clearly raise no issues an appellate court could address. State v. Thomas, 21 Kan. App. 2d 504, Syl. ¶ 6, 900 P.2d 875 (1995). “7. The court determines that the Ortiz exceptions do not apply here, for the following reasons: “a. The defendant expressed a desire, both in the November 21,1994 letter to the court and at the December 9, 1994 sentencing hearing, to address the court through his letter rather than in person. If the court erred in failing to provide the defendant with his right to allocution, the defendant invited the error and is thus precluded from raising the issue on appeal. See Thomas, 21 Kan. App. 2d at 507 (a defendant may not lead a trial court into error and then complain of the court’s action on appeal). “b. The defendant received the presumptive sentence for Iris crimes of conviction. A presumptive sentence may not be appealed, even if a motion to depart is denied. State v. Myers, 20 Kan. App. 2d 401, Syl. ¶¶ 1-2, 888 P.2d 666 (1995). “c. Sentence modification is not possible under the guidelines except to correct arithmetic or clerical errors. See K.S.A. 1994 Supp. 21-4603d; K.S.A. 1994 Supp. 21-4721(i). The sentencing court properly ruled it was without jurisdiction to consider the defendant’s motion for resentencing and reconsideration. “d. When the district court is without jurisdiction to consider a matter, the appellate court is also without jurisdiction. Dinkel v. Graves Truck Line, Inc., 10 Kan. App. 2d 604, Syl. ¶ 1, 706 P.2d 470 (1985). The single issue raised by the defendant in his notice of appeal relates to his motion for resentencing and reconsideration and cannot be addressed on the merits.” The question we must resolve on this appeal is whether any of the exceptions set forth in Ortiz excuse defendant from not filing a timely appeal. This is a question of law over which we have unlimited review. See Gillespie v. Seymour, 250 Kan. 123, 129, 823 P.2d 782 (1991). On remand, the trial court held no formal hearing, nor did it appoint counsel for defendant. Defendant complains about those failures of the trial court. We have examined the record, and the record does not show that defendant requested either a hearing or an attorney on remand. Further, we know no authority, and defendant does not cite us any, which required the trial court to hold a formal hearing or appoint an attorney to represent defendant on remand. When defendant responded to our show cause order, he raised certain factual issues. He now complains the trial court did not consider those issues. The response to our show cause order is not a part of the trial court’s record on appeal. Neither does it appear from our reading of the record that the trial court was ever asked to consider these issues on remand. Our order of remand required the trial court only to determine whether any of the Ortiz exceptions applied in this case. This is precisely what the trial court did, and in an absence of an indication that the trial court was asked to determine other issues, we are unable to say that it erred in not doing so. We hold the trial court was correct in finding that Ortiz did not apply under these circumstances, and we believe the trial court gave the proper explanation for that holding. At sentencing, defendant, through his attorney, gave every impression that he was waiving formal allocution by submitting his lengthy written statement to the court. Defendant’s attorney invited the court to proceed without formal allocution and, at one point, admitted as much to the trial court. Our reading of the record indicates that it was the desire of defendant and his attorney that the trial court consider the comments made in the written statements in lieu of any further comment by defendant. Under State v. Thomas, 21 Kan. App. 2d 504, Syl. ¶ 3, 900 P.2d 874 (1995), we held: “A litigant may not invite and lead a trial court into error and then complain of the trial court’s action on appeal.” We consider, after our examination of the record, that defendant invited the trial court to sentence him without formal allocution. His invitation was accepted, and he is not now permitted to complain of the trial court’s decision on appeal. Further, even assuming the trial court might have erred in relying on the statements of defendant’s attorney, that error can be nothing more than harmless. In State v. Hunt, 257 Kan. 388, Syl. ¶¶ 9, 10, 894 P.2d 178 (1995), the court stated: “K.S.A. 1994 Supp. 22-3424(4) states in pertinent part: ‘Before imposing sentence the court shall: . . . (d) address the defendant personally and ask the defendant if the defendant wishes to make a statement on the defendant’s own behalf and to present any evidence in mitigation of punishment.’ This provision in K.S.A. [1994 Supp.} 22-3424(4) establishes the right of a defendant to allocution, and this right is not waived by the defendant’s silence or by argument of counsel.” “For a defendant to successfully assert error based upon a denial of the opportunity to present evidence in mitigation of punishment pursuant to the right to allocution in K.S.A. 1994 Supp. 22-3424(4), the defendant must make a proffer of the contemplated evidence comparable to that required by K.S.A. 60-405.” (Emphasis added.) See K.S.A. 22-3424(e), which reads the same as K.S.A. 1994 Supp. 22-3424(4). Hunt is applicable here. Defendant made no proffer at any stage in the original proceedings, on remand, or on appeal as to what he would have said had the court asked him if he had any comments he wished to make prior to sentencing. Under those circumstances, if it was error for the trial court to rely on defendant’s attorney’s statements that defendant did not desire formal allocution, that error was harmless only. Under our decision in State v. Thomas where the only errors asserted on appeal were either invited or harmless, this appeal does not present an issue which we can address. See 21 Kan. App. 2d 504, Syl. ¶ 6. As we said in Thomas, the Ortiz exceptions do not apply when the appeal can clearly raise no issues which the court can address. Finally, there exists the inescapable fact that defendant pled guilty and received the minimum presumptive sentence for his crimes. In State v. Myers, 20 Kan. App. 2d 401, Syl. ¶¶ 1, 2, 888 P.2d 866 (1995), we held that a presumptive sentence may not be appealed even if a motion to depart is denied. We went on to say: “To us, the language of K.S.A. 1993 Supp. 21-4721(c)(l) is clear. Neither the defendant nor the State may appeal a sentence that falls within the presumptive range, even if the trial court has denied a motion for departure. The legislative intent and wording of the statute plainly does not allow appeal when the sentence given falls within the sentencing range (grid block) for the crime and criminal history.” 20 Kan. App. 2d at 403. Defendant in this case seeks to appeal from a presumptive sentence by claiming he was not given his right to allocution. It is through that issue that he seeks to have us set aside a presumptive sentence which is unappealable. We believe the law in this state clearly bars an appeal in a case of this nature. Ortiz does not and cannot afford an appeal to a defendant where one does not exist by law. Under the facts shown, we have no jurisdiction to entertain defendant’s appeal from a presumptive sentence, and Ortiz does not operate to supply such jurisdiction. Affirmed.	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Elliott, J.: Jason Spencer appeals the district court’s decision affirming his extended suspension from Topeka West High School for possession of a look-alike handgun on school property. We affirm. Jason was suspended for the remainder of the 1995 school year based upon an incident that occurred in February 1995. While Jason and two other students were eating lunch in Jason’s car in the school parking lot, one of his passengers removed a pellet pistol which looked like a real handgun from underneath the front seat. Both during the lunch break and again after school, the passenger pointed the gun at friends who laughed, knowing the gun was not a threat. A parent saw the gun and reported Jason’s license tag number to school security. Jason was cooperative in the ensuing investigation by school officials. The notice of Jason’s suspension listed two causes: a code 40 violation of “[u]nruly conduct that disrupts school” and a code 60 violation of “[o]ther matters covered by K.S.A. 72-8901 et seq.” Student Handbook of Board of Education Policies and Administrative Regulations, Topeka Public Schools, p. 13 (1994-95). The principal imposed an extended suspension, finding that “[t]he charge of possession of a look-alike handgun is sustained based on Jason’s own statement.” Jason appealed his extended suspension to the U.S.D. No. 501 Board of Education (Board). After an evidentiary hearing, the Board affirmed Jason’s extended suspension. Jason appealed to the district court, which upheld the Board’s action. Jason’s first argument on appeal is that the Board acted beyond its authority and beyond the authorized scope of its review in finding that he had committed an offense of which he had been “acquitted” by the principal. Jason interprets the principal’s finding that Jason possessed a look-alike handgun to mean that he committed a code 60 violation only. In other words, because the principal did not specifically state that Jason had engaged in unruly conduct which disrupted school, Jason argues that he impliedly acquitted Jason of that charge. We do not agree with Jason’s interpretation of the notice of his suspension or of the principal’s finding. The two code violations listed in the notice of suspension do not constitute separate and distinct offenses. Rather, Jason’s conduct was alleged to be in violation of both codes. Furthermore, a code 60 violation which is based upon grounds covered by K.S.A. 1994 Supp. 72-8901 includes “conduct which substantially disrupts, impedes or interferes with the operation of any public school” or “conduct which . . . sübstantially impinges upon or invades the rights of others at school, on school property, or at a school supervised activity.” K.S.A. 1994 Supp. 72-8901(b), (c). Thus, a code 40 violation of unruly conduct that disrupts school actually falls within a code 60 violation. We conclude that while the principal did not specifically state which code Jason had violated, he did not impliedly acquit Jason of engaging in unruly conduct that disrupts school. The Board did not act beyond its authority or beyond the scope of its review in hearing evidence on whether Jason’s conduct disrupted school or impinged on the rights of others. Jason’s next argument is that K.S.A. 1994 Supp. 72-8901(b) is unconstitutionally vague. He specifically challenges that portion of the statute which provides that a student may be suspended for “conduct which substantially disrupts, impedes or interferes with the operation of any public school.” K.S.A. 1994 Supp. 72-8901(b). He contends this language does not provide him fair warning of what kind of conduct is prohibited and is susceptible to arbitrary enforcement by school officials. Interpretation of statutes is a question of law over which this court may exercise unlimited review. Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, Syl. ¶ 1, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995). “[A] statute is presumed constitutional and all doubts must be resolved in favor of its validity. If there is any reasonable way to construe a statute as constitutionally valid, the court must do so. A statute must clearly violate the constitution before it may be struck down.” Boatright v. Kansas Racing Comma, 251 Kan. 240, 243, 834 P.2d 368 (1992). The United States Supreme Court addressed the issue of vagueness of school regulations in Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675, 678, 92 L. Ed. 2d 549, 106 S. Ct. 3159 (1986). There, a student challenged a school regulation prohibiting “[cjonduct which materially and substantially interferes with the educational process . . . including the use of obscene, profane language or gestures.” The Bethel court held: “We have recognized that ‘maintaining security and order in the schools requires a certain degree of flexibility in school disciplinary procedures, and we have respected the value of preserving the informality of the student-teacher relation ship.’ New Jersey v. T.L.O., 469 U.S. at 340. Given the school’s need to he able to impose disciplinary sanctions for a wide range ofunanticipated conduct disruptive of the educational process, the school disciplinary rules need not he as detailed as a criminal code which imposes criminal sanctions. [Citation omitted.]” (Emphasis added.) 478 U.S. at 686. We agree with the district court that the school need not have a regulation specifically prohibiting the possession of look-alike handguns and that under the broad standard set out in Bethel, K.S.A. 1994 Supp. 72-8901(b) is not unconstitutionally vague. Jason’s final argument on appeal is that the Board’s findings were not supported by substantial competent evidence. The essence of Jason’s argument is that the school presented no evidence that Jason’s conduct caused an actual disruption in the operation of the school; rather, school officials testified that Jason’s conduct could have caused such a disruption if students who saw the gun thought that it was real. Jason also contends that it is improper to consider the school’s investigative efforts as a disruption in the operation of the school. This argument presents the closest issue in this case. While it seems a matter of common sense that allowing a look-alike handgun to be pointed from one’s car on school property certainly could cause a disruption in the operation of a school, the evidence of an actual disruption in the instant case was slight. At most, the evidence showed that one parent saw the gun and contacted school security. There was no evidence that any student ever perceived the gun as a threat or mistook it for a real gun. Furthermore, Jason’s argument that the school’s investigative efforts should not be considered as a disruption to the operation of the school is well taken. No student has control over whether school officials decide to expend time and energy investigating that student’s actions. The school should not be able to deem a student’s actions disruptive simply because the school chose to investigate. If the student’s actions turn out to be harmless, the school could still deem them disruptive simply because of the time and energy expended in investigating. Such a result would be unfair. There is, however, a flaw in Jason’s argument regarding the sufficiency of evidence. The Board did not find simply that Jason had engaged in conduct which disrupted school; it also found that Jason’s conduct had impinged upon or invaded the rights of others. This finding alone is sufficient to support Jason’s extended suspension. The evidence in this case does support a finding that Jason’s conduct impinged on the rights of parents and students to feel safe in their school environment. Here, the potential effect of Jason’s conduct is an appropriate consideration. The principal testified regarding the importance of a safe school environment and how Jason’s misconduct had chipped away at that safe environment by creating a sense of fear that guns might be present on school grounds. The principal testified that both parents and students have a right to feel safe at the school and Jason’s behavior had impinged on those rights. The principal’s testimony provides the substantial competent evidence necessary to support the Board’s finding. Affirmed.	[ -80, -38, -36, 31, 31, -31, -7, -74, 115, -13, 103, 83, 45, -53, 5, 107, -63, 77, -111, 121, -103, -73, 99, -127, -74, -5, -8, 87, -77, 79, 108, 93, 72, -16, -86, 85, 6, -54, -19, -48, -126, 6, -69, 66, 83, 67, 38, 98, 122, 7, 49, 31, -77, 46, 26, -57, -55, 40, -53, -83, -63, 81, -101, 21, -5, 22, -85, -124, -99, -123, -48, 43, 24, 57, 9, -23, 115, -90, 74, 116, 41, -119, -128, 103, 114, 7, 40, -59, -68, -87, 110, 91, 13, -90, -103, 73, 35, 13, -105, -98, 118, 20, 46, -4, -30, 76, 19, 124, 6, -49, -72, -111, 79, 33, -54, -68, -17, 37, 49, 84, -115, -90, 92, 117, 58, 91, -114, -74 ]
Bukaty, J.: Derek Anderson, an inmate in the Lansing Correctional Facility, filed a petition for writ of habeas corpus in the district court pursuant to K.S.A. 60-1501. That petition challenged a disciplinary action taken by the Department of Corrections (DOC) against Anderson. After several hearings, the trial court reversed the DOC action and prohibited the warden, David McKune, from using a certain urine test in the future as a basis for disciplinary action unless that result is confirmed in a laboratory by a gas chromatography mass spectrometry test (GC/MS). Mc-Kune appeals. We reverse. The facts begin with a random drug test administered to Anderson. Prison officials required him to provide a urine sample. Lieutenant Michael J. Ralls tested the sample using the Roche Abuscreen On-Trak drug test (ONTRAK). The results were positive for barbiturates. Pursuant to DOC policies, another correctional officer performed a second test on the same sample, again using the ONTRAK test. Again, the results were positive for barbiturates. DOC then charged Anderson with a violation of K.A.R. 44-12-312, use of stimulants, a class I disciplinary offense. After Anderson pled not guilty and waived his right to counsel, prison officials scheduled a hearing. Lt. Ralls testified along with Officer Robare. Lt. Ralls stated that the proper chain of custody was maintained, that he was trained and certified by Roche Labs to give and analyze the ONTRAK test, and that the sample he received from Anderson was properly sealed with the inmate’s name and number. Officer Robare stated that he observed Anderson urinate into a container, he collected the same, and he wrote Anderson’s name and number on the bottle. He also stated that he observed Anderson put a seal on the bottle with his name and number. Anderson admitted giving the sample to Officer Robare but stated that Officer Robare did not give him any form to sign nor did he see Officer Robare seal the bottle with tape. The hearing officer also considered a report from Phyllis Wader, director of nursing at Prison Health Services. That report contained a list of prescribed medications given to Anderson during the 3-month period prior to the test with the notation that “none of the above medications would give a positive urine [test] for barbiturates.” In his closing argument, Anderson argued there was nothing to show that the urine sample was his and that he had requested an independent test and offered to pay for the same. The hearing officer found Anderson guilty of the disciplinary violation. He specifically found there was a proper chain of custody and sufficient evidence to establish that die sample came from Anderson. He then imposed 7 days of disciplinary segregation which he suspended for 6 months, a $20 fine, and a restitution order of $5.32. Anderson then exhausted the administrative appeal process. The institution’s disciplinary board approved the discipline and the Secretary of Corrections upheld that approval. Anderson then filed his pro se petition in the district court. The court appointed counsel to represent him. At the first hearing, Anderson’s attorney argued that he was challenging the discipline on three grounds: (1) that the reporting officer failed to establish chain of custody of the urine sample; (2) that due process requires that the prison allow an inmate to get an independent test to prove his or her innocence; and (3) that the inmate had the right to counsel or substitute counsel. At the conclusion, the trial court ruled that Anderson had failed to exhaust administrative remedies as to the claim of right to counsel or counsel substitute, that the record supported the hearing officer’s determination that there was a proper chain of custody, and that the urine sample tested was Anderson’s. In addressing the drug testing procedures on inmates, however, the court set another hearing and ordered the parties at that hearing to provide evidence as to the adequacy of the testing procedure. The trial court expressed some doubts about the pro cedure used and stated that the respondent had the burden to establish reliability. ' ' . The trial court then heard evidence on two subsequent occasions relative to its concerns. At one hearing, the parties made a record as to how the ONTRAK drug test works. ONTRAK uses a latex agglutination immunoassay technique to test for barbiturates: A urine sample is mixed with an antibody reagent and other reagents on the test slide. If no barbiturate levels are detected in the urine sample, the latex reagent forms large particles by binding to the antibodies in the test unit and the smooth milky appearance of the mixture is changed to include white particles. If sufficient barbiturate levels are in the urine sample, the conjugation is prevented and the mixture’s appearance remains unchanged. Both sides also presented expert scientific witnesses who gave their opinions about the reliability of the ONTRAK test. At the conclusion of this hearing, the trial court stated its ruling. In its remarks, the trial court focused on the FDA “black box warning” and various notations throughout the scientific literature which identified ONTRAK as a preliminary test or a test that should be confirmed with a GC/MS test. This is a test done in a laboratory setting by skilled technicians, and both sides agree it is very reliable. The court also gave weight to the fact that the prison system and Roche, both of which use ONTRAK to test their own employees, confirmed any positive tests in these instances with the GC/MS. The court also noted that the DOC did not contact Roche to determine if any of the medications Anderson was taking could have caused a false positive result. Finally, the court weighed the subjective nature of the test — did the mixture’s appearance remain milky or was it lumpy? The court concluded the medical community required a confirmation test and that outweighed the other evidence as to ONTRAK’s reliability. . . ■ ■ The trial court reversed Anderson’s disciplinary violation and prohibited the DOC from relying exclusively on positive ONTRAK test results when disciplining inmates without confirmation by GC/ MS. McKune filed a timely notice of appeal from that decision. An inmate’s claim under K.S.A. 60-1501 must assert the deprivation of a constitutional right or the court is without jurisdiction to consider the claim. In the absence of such a claim, the petition should be summarily dismissed. Ramirez v. State, 23 Kan. App. 2d 445, Syl. ¶ 3, 931 P.2d 1265 (1997). It is clear that being placed in disciplinary segregation does not implicate due process rights. Davis v. Finney, 21 Kan. App. 2d 547, 902 P.2d 498 (1995). However, in addition to Anderson being placed in disciplinary segregation, he received a small fine. The extraction of a fine does implicate the Due Process Clause even when, as here, the State has taken only a small amount from an inmate’s prison account. Longmire v. Guste, 921 F.2d 620, 623-24 (5th Cir. 1991). We construe the petition in this case to allege a denial of due process. The question of whether due process exists in a set of facts is a question of law. Murphy v. Nelson, 260 Kan. 589, 594, 921 P.2d 1255 (1996). Our review, then, is unlimited. In turning to the merits, we first note that the trial court erred in placing the burden of proof on the respondent in this case. The law is clear that an inmate claiming violation of his constitutional rights in a habeas proceeding carries the burden of proof. Johnson v. Stucker, 203 Kan. 253, 260, 453 P.2d 35, cert. denied 396 U.S. 904 (1969); Walling v. Francisco, 22 Kan. App. 2d 588, 590, 920 P.2d 466 (1996). We will review the record to determine if Anderson met that burden. We must determine whether the drug testing procedure used comported with due process standards. The respondent argues that the proper standard of review was provided by Superintendent v. Hill, 472 U.S. 445, 86 L. Ed. 2d 356, 105 S. Ct. 2768 (1985), as adopted by Shepherd v. Davies, 14 Kan. App. 2d 333, 789 P.2d 1190 (1990). We agree. In Hill, the Supreme Court established the standard of review to be applied in a case of this nature: “We hold that the requirements of due process are satisfied if some evidence supports the decision by the prison disciplinary board to revoke good time credits. This standard is met if ‘there was some evidence from which the conclusion of the administrative tribunal could be deduced . . .’ [Citation omitted.] Ascertaining whether this standard is satisfied does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence. Instead, the relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board. [Citations omitted.]” (Emphasis added.) 472 U.S. at 455-56. In applying this “some evidence” standard, the Court found that due process did not require evidence that “logically preclude[d] any conclusion but the one reached by the disciplinary board.” 472 U.S. at 457. The Court found that “[although the evidence in this case might be characterized as meager, and there was no direct evidence identifying any one of three inmates as the assailant, the record is not so devoid of evidence that the findings of the disciplinary board were without support or otherwise arbitrary.” 472 U.S. at 457. Under the Hill standard, the trial court here was required to uphold the disciplinary action against Anderson as long as there was “some evidence” to support the hearing officer’s determination that Anderson violated the drug regulations. We apply the same standard. Does the record support the trial court’s conclusion that the ONTRAK drug tests were not sufficiently reliable to meet due process standards? We believe the answer is no. The trial court heard expert testimony concerning the reliability and unreliability of the ONTRAK drug test. While it made no findings on which witness it found more credible, the court did observe there was “some evidence” of the test’s reliability. The inquiry should have ended at that point. This court addressed this exact test in Crutchfield v. Hannigan, 21 Kan. App. 2d 693, 906 P.2d 184 (1995). In Crutchfield, an inmate challenged prison officials’ random urine tests using the ONTRAK test. Crutchfield filed a petition under K.S.A. 60-1501, claiming that the urine immunoassay test used was unreliable. The trial court dismissed the petition as frivolous. We affirmed. 21 Kan. App. 2d at 694. We also noted that similar urinalysis testing procedures have repeatedly been found to satisfy constitutional standards and that the test was sufficiently reliable. Numerous other courts have found that enzyme immunoassay tests are sufficiently reliable in testing prison inmates for drug usage to meet the standards of due process. See, e.g., Higgs v. Bland, 888 F.2d 443, 449 (6th Cir. 1989) (upholding disciplinary violations based upon EMIT double testing); and Spence v. Farrier, 807 F.2d 753, 756 (8th Cir. 1986) (citing numerous cases upholding disciplinary actions based upon double EMIT tests as meeting due process standards even if inmates cannot call expert witnesses or have a confirmatory test by alternate methodologies). In recognizing the reliability of enzyme immunoassay tests, these courts have noted that requiring prison officials to allow inmates to routinely challenge the reliability of such tests “would seriously interfere with the institutional goal of drug deterrence and prompt resolution of drug related infractions.” Spence v. Farrier, 807 F.2d at 756. They have also noted that although such tests are not 100% reliable and could result in an inmate being unjustly disciplined, “the margin of error is insignificant in light of institutional goals” and the State should not be required to provide “all possible procedural safeguards against erroneous deprivation of liberty.” 807 F.2d at 756. This is consistent with the United States Supreme Court decisions holding that “the Due Process Clause has never been construed to require that the procedures used to guard against an erroneous deprivation of a protectable property’ or liberty’ interest be so comprehensive as to preclude any possibility of error.” Mackey v. Montrym, 443 U.S. 1, 13, 61 L. Ed. 2d 321, 99 S. Ct. 2612 (1979). Anderson argues that we should employ the “clear and convincing” evidence standard found in K.A.R. 44-13-409. We do not agree. Clearly, disciplinary actions at state prisons are not subject to review under the Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-601 et seq. See K.S.A. 77-603(c)(2). Likewise, the regulations of the DOC contemplate that the Secretary’s decision upon review of a disciplinary action is final. K.A.R. 44-13-702. Also, as a general rule, the courts in this state have given broad deference to prison officials in maintaining discipline in prison settings: “It should be emphasized that prison officials as executive officers of the state are charged with the control and administration of the penal institutions of the state and as such are vested with wide discretion in the discharge of their duties. Under familiar rules, that discretion should not be interfered with by the courts in the absence of abuse or unless exercised unlawfully, arbitrarily or capriciously. Maintenance and administration of penal institutions are executive functions and it has been said that before courts will interfere the institutional treatment must be of such a nature as to clearly infringe upon constitutional rights, be of such character or consequence as to shock general conscience or be intolerable in fundamental fairness. It has further been said that the ‘hands-off’ doctrine operates reasonably to the extent it prevents judicial review of deprivations which are necessary or reasonable concomitants of imprisonment [citation omitted]. In other words, disciplinary measures properly administered in accord with reasonable prison regulations are not subject to judicial review.” (Emphasis added.) Levier v. State, 209 Kan. 442, 450-51, 497 P.2d 265 (1972). See Graham, v. Nelson, 20 Kan. App. 2d 896, 897, 893 P.2d 294 (1995). As indicated earlier, review of prison disciplinary cases by the courts of this state is done under the “some evidence standard” established in Hill, 472 U.S. at 455-56. We reject the argument that we must apply a “clear and convincing” standard in cases of this nature. We hold that a habeas corpus petition seeking judicial review of the sufficiency of the evidence in a prison disciplinary proceeding should be dismissed unless the petition clearly raises issues rising to the level of a constitutional violation. Further, claims of a constitutional violation must be summarily dismissed if there is “some evidence” to support the conclusion reached by the disciplinary board. Anderson argues in his brief that prison officials did not follow several other of their regulations dealing with procedures they must follow in the conduct of disciplinary hearings. Specifically, he argues that the hearing officer allowed rebuttal evidence when it should not have been allowed, that witnesses were called that were not listed as required, that he was denied the right to cross-examine witnesses, and that unreliable and irrelevant evidence was received. We fail to find in the record that the district court addressed these issues. The only basis we find for its ruling was its determination that the ONTRAK test was unreliable. Whether the trial court addressed these arguments, we believe that Anderson has failed to establish that any of these so-called failures of the prison officials to follow their own rules has denied him due process. The mere fact that a hearing officer in a prison discipline case has not followed DOC procedural regulations does not of itself violate fundamental fairness that rises to an unconstitutional level. Without much more, a petition for habeas corpus alleging procedural errors at a prison disciplinary hearing must fail. As a general rule, prison officials are given flexibility in executing internal prison policies and procedures which are designed to preserve internal order and discipline. We are convinced that the record contains “some evidence” to support the disciplinary action here. Anderson has failed to carry his burden to establish a violation of his constitutional rights to due process. Reversed.	[ 48, -20, 77, -36, 43, -31, 27, 18, 83, -65, -12, 49, -27, -14, 1, 99, -68, 117, 116, -35, -37, -73, 97, -63, -10, -13, -6, -45, 115, 79, 76, -48, 8, -48, -120, 49, -94, -116, -5, 88, -50, 7, -72, 115, -46, -111, 36, 38, -127, 15, 49, 23, -29, 44, 26, -114, -87, 120, 75, -115, -128, -11, -71, 29, -21, 22, -94, 0, -107, 109, -40, 38, -34, 49, 1, -8, 57, -106, -62, 116, 11, -67, 36, 34, -30, -127, 25, -19, -104, -116, -99, 30, 15, -89, -104, 81, 97, 4, -107, -67, 98, 90, -66, -20, 99, -76, 111, 44, 66, 95, -116, -111, 77, 32, -116, -65, -17, 33, 48, 81, -113, -94, 84, 7, 121, 90, -21, -106 ]
RüLON, J.: Edward Koger, Susan Koger, Ronald Lambert, and Central Kansas Railway, L.L.C., plaintiffs, appeal the district court’s decision granting a motion for directed verdict in favor of defendants Delmer “Buck” Ferrin and Dan Ferrin, d/b/a Ferrin & Sons, and Kansas Seven-S Corporation on plaintiffs’ claim that defendants were strictly liable for damages resulting from a grass fire. We affirm. Essentially, plaintiffs contend the district court erred (1) in granting defendants’ motion for a directed verdict on the issue of strict liability and (2) in finding defendants were not engaged in a joint venture. The facts are not seriously disputed and are as follows: On the morning of April 7, 1994, Dan Ferrin and Alan Seidel were putting out hay and cattle feed in pastures owned by the Kansas Seven-S Corporation and operated by Buck Ferrin. As Seidel was dispensing hay in what was known as the Kominska pasture, he saw smoke rising from a smoldering patch of grass. After dropping off all of the hay, Seidel drove over to the area where he had seen the smoke and proceeded to put out the fire. Seidel testified that he kicked the smoldering debris to the middle of the burning patch and kicked or pushed loose dirt over the debris. Seidel stated that he remained for about 15 minutes and after seeing no more smoke, left the area to complete his work. As Seidel was driving home after completing his deliveries, he looked over toward the place he had found the fire and, observing no sign of smoke, continued home. Shortly after noon on that same day, Buck Ferrin received a call from a neighboring rancher who said he had seen smoke coming from the Kaminska pasture. After looking out his door and seeing smoke coming from the pasture, Ferrin called the fire department. Ferrin then drove to Seidel’s house and told him about the fire. Seidel took a water truck, drove to the pasture, and started fighting the fire. Seidel was unable to control the fire, and by the time the fire department arrived, it was out of control. The fire eventually spread to the Koger ranch. Before being brought under control, the fire burned an area approximately 23 miles long and 7 miles wide, in all approximately 30,000 acres. The fire destroyed pasture, fence, baled hay, railroad ties, and bridges. The extent of the fire and severity of the damage was caused by the extreme dry conditions and high winds. Plaintiffs subsequently filed suit, in part alleging that defendants were strictly liable for the damage because defendants’ employee had failed to take adequate measures to ensure that the smoldering patch of burning hay was extinguished before leaving the pasture. Plaintiffs claim that because of the drought conditions, the existence of a state-wide burning ban, and the high winds, defendants were strictly liable, without proof of fault, for the damage caused by the fire. Plaintiffs further claim that defendants were liable for negligently starting or permitting a fire to start in the pasture and to spread to the adjacent property. At the close of plaintiffs’ case, defendants moved for directed verdict on the claim of strict liability. The district court granted the motion. The trial continued on the negligence claim. At the close of all the evidence, the defendant, Kansas Seven-S Corporation, moved for a directed verdict on plaintiffs’ claim that it was a joint venturer in the Ferrins’ operation versus a lessor of the lands operated by the Ferrins. The court granted the motion. The jury subsequently found that while Seidel was negligent, his negligence was not the proximate cause of the damage. Additional facts will be added elsewhere as needed. STRICT LIABILITY Our standard of review is clear: “ ‘In ruling on a motion for directed verdict pursuant to K.S.A. 60-250, the court is required to resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling is sought and where reasonable minds could reach different conclusions based on the evidence the motion must be denied and the matter submitted to the jury. This rule must also be applied when appellate review is sought on a motion for directed verdict.’ ” [Citation omitted.] Simon v. National Farmers Organization, Inc., 250 Kan. 676, 683, 829 P.2d 884 (1992). “When appellate review is sought on a motion for directed verdict, the court is required to resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom-the ruling is sought, and where reasonable minds could reach different conclusions based on the evidence the trial court’s denial of the motion must be affirmed.” Kuhl v. Atchison, Topeka & Santa Fe Rwy. Co., 250 Kan. 332, Syl. ¶ 1, 827 P.2d 1 (1992). “Strict liability means liability imposed on an actor apart from either (1) an intent to interfere with a legally protected interest without a legal justification for doing so, or (2) a breach of a duty to exercise reasonable care (i.e., actionable negligence).” “The general rule imposing strict liability in tort for abnormally dangerous activities as set forth in the Restatement (Second) of Torts § 519 (1976) is stated and adopted: (1) One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land, or chattels of another resulting from the activity, although he [or she] has exercised the utmost care to prevent the harm; and (2) this strict liability is limited to the kind of harm the possibility of which makes the activity abnormally dangerous.” Williams v. Amoco Production Co., 241 Kan. 102, Syl. ¶¶ 7, 8, 734 P.2d 1113 (1987). ‘When the facts are undisputed, whether an activity is inherently or intrinsically dangerous is a question of law to be decided by the court. When ruling on a motion for summary judgment involving this question, the trial court as a matter of law must determine from the undisputed facts contained in the record whether the activity under review is inherently dangerous. When the facts are disputed, the question is to be determined by die jury.” Falls v. Scott, 249 Kan. 54, Syl. ¶ 3, 815 P.2d 1104 (1991). As we understand, the crux of plaintiffs’ argument is that because of the burning ban and the dry and windy conditions, putting out the fire was an inherently dangerous activity and, therefore, defendants were strictly liable for any damage resulting from failing to take all means possible to extinguish the fire. Plaintiffs base this claim on the analysis originally set out in Rylands v. Fletcher, L.R. 3 H.L. 330 (1868). The Rylands v. Fletcher doctrine of strict liability was recognized in Kansas in Helms v. Oil Co., 102 Kan. 164, 169, 169 Pac. 208 (1917). In Rylands, the water from the defendant’s reservoir broke through a filled-up shaft of an abandoned coal mine and flooded a connecting mine owned by the plaintiff. The defendants were held liable because they had made a “non-natural use” of their land, which in turn brought an increase in risk to others. See Williams, 241 Kan. at 113. Another case cited by plaintiffs is Atkinson v. Herington Cattle Co, Inc., 200 Kan. 298, 436 P.2d 816 (1968). In Atkinson, the plaintiff owned a dairy farm adjacent to Herington’s cattle feeding operation. A small stream ran from the Herington property through the Atkinson land. Approximately 18 months after Herington commenced a commercial feeding operation, Atkinson noted the water in the stream appeared polluted. Subsequently, it was determined the stream was polluted and the well on the Atkinson property was also polluted with high concentrates of nitrites. Atkinson sued claiming that Herington’s cattle operation had caused the pollution. In Atkinson, the trial court found that the pollution in the creek water and in Atkinson’s well was caused by Herington’s feedlot operation. On appeal, Herington argued the trial court erred in ruling that the right to recovery was based upon the defendant having a harmful substance on its land and allowing the pollutant to escape and damage an adjoining landowner’s property. According to Herington, such a finding was tantamount to ruling that runoff from a cattle pen is a harmful substance per se. The Atkinson court disagreed, holding that runoff becomes a harmful substance when it consists of contaminating bacteria and chemical in such amounts as to produce excessive pollution, resulting in injury. Plaintiffs argue Atkinson is directly applicable here because the fire, given the drought conditions, is like the runoff with high concentrations of pollution. We conclude Atkinson is distinguishable. First, the pollution was the foreseeable result of concentrating a large number of cattle in a feeding operation. Second, the case was a water law case. Negligence is not a necessary element in a water law case. 200 Kan. at 302. Atkinson instructs that one who brings pollution, or a source of pollution, on his or her land has an absolute duty to see that such does not escape and damage another’s property if the pollution contains contaminants in concentrations which could cause injury. 200 Kan. at 308. Our Supreme Court has discussed Rylands v. Fletcher in several different cases. In Klassen v. Creamery Co., 160 Kan. 697, 165 P.2d 601 (1946), the court held that waste discharged from a creamery was, under the facts of the case, dangerous and likely to cause damage if permitted to escape. “Under such circumstances it was the duty of the company to take care that these products did not escape or that they were so treated that when they left its property they had lost their capacity to do damage.” 160 Kan. at 706. We further conclude Klassen is also distinguishable. The creamery waste in question was of the defendant’s making and was in essence the product of a “non-natural use” of defendant’s property. Here, as stated above, the fire in question was not of defendants’ making and, arguably, the attempt to put out that fire, under the circumstances, was not a “non-natural use” of the property. Similarly, in Berry v. Shell Petroleum Co., 140 Kan. 94, 33 P.2d 953 (1934) , our Supreme Court held that where a company drilling for oil brings salt water to the surface, that company has a duty to keep the salt water confined on its own property. If the salt water is allowed to escape and becomes a nuisance, the company is liable for any damage that may be caused. 140 Kan. 94, Syl. ¶ 1. The Berry court noted that in such a case negligence need not be shown because the right to recover results from the company bringing something to its land that was not naturally occurring and, the company was liable for any damages resulting from permitting the salt water to escape. 140 Kan. at 101. Berry is distinguishable because the salt water, not naturally occurring on the surface of the land, was brought to the surface, and the company was liable for damages resulting from its escape without having to prove negligence. Here, there was no evidence that defendants in any way brought or caused the fire to be on the property. All of these cases cited by plaintiffs are of limited application under the current facts. First, each case is a water law case, and the legal precedent is limited to water cases under the absolute nuisance theory. See Berry, 140 Kan. at 102 (“We consider that the water supply of the people is of greater importance than the operation of a business at a reduced cost.”); Prosser and Keeton on Torts, § 78, pp. 546-47 (5th ed. 1984). Second, plaintiffs are blending the law of inherently dangerous instrumentalities with inherently dangerous activities. Although the terms “dangerous instrumentality” and “inherently dangerous activity” are sometimes used interchangeably, there is a difference. Falls v. Scott, 249 Kan. at 58. " ‘To be inherently dangerous, a commodity or condition must be so imminently dangerous in kind as to imperil the life or limb of any person who uses it, or, burdened with a latent danger or dangers that derive from the very nature of the commodity or condition itself and not from any defect in the thing. “ ‘Inherently dangerous” has also been said to mean a type of danger inhering in an instrumentality or condition itself at all times, requiring special precautions to be taken to prevent injury, and not a danger arising from mere casual or collateral negligence of others under particular circumstances. Instrumentalities or substances which, by their very nature, are calculated to do injury are considered to be dangerous per se. An instrumentality is dangerous per se if it may inflict injury without the immediate application of human aid.’ 57A Am. Jur. 2d, Negligence § 324.” 249 Kan. at 58. Whether an activity is abnormally or inherently dangerous is decided by the following factors: “(a) existence of a high degree of risk of some harm to the person, land, Or chattels of others; “(b) likelihood that the harm that results from it will be great; “(c) inability to eliminate the risk by the exercise of reasonable care; “(d) extent to which the activity is not a matter of common usage; “(e) inappropriateness of the activity to the place where it is carried on; and “(f) extent to which its value to the community is outweighed by its dangerous attributes.” 249 Kan. at 60 (quoting Restatement [Second] of Torts § 520 [1976]). While salt water, sewage drain-off from cattle pens, or inadequately treated waste from a creamery may be dangerous or a nuisance under a given set of factual circumstances, such do not meet the definition of inherently dangerous instrumentalities. However, our Supreme Court has exempted such by-products from the traditional strict liability analysis, presumably because of the importance of clean, safe water. There is no indication that our Supreme Court has adopted a similar position regarding damage to property by fire. Fires, either intentionally set or started by accident, are common occurrences in grasslands and, consequently, fighting such fires, when conditions warrant, would also be a common occurrence. Further, fighting such a fire under drought conditions is entirely appropriate. Similarly, attempting to control or extinguish an unplanned fire during drought conditions is of overwhelming value to the community and greatly outweighs the alternative course of action — not taking any action and letting the fire bum. As we understand, most jurisdictions have consistently held that in the absence of statutory authority, there is no liability for escape of a fire when the defendant was not negligent. “There may be liability for negligence in starting a fire, or in failing to take precautions against its occurrence, as where combustible materials are left unprotected, or in fading to control it after it is started, or neglecting to have the means to extinguish it at hand. But its utility is so great, and it is so clearly sanctioned by universal use, that strict liability, even on the part of industrial enterprises, is not considered convenient or desirable.” Prosser and Keeton on Torts, § 77, pp. 543-44 (5th ed. 1984). “It has been intimated that, at common law, one using fire for his own purposes was absolutely hable for damage caused by its spread to the property of another. However, it is now universally recognized that the foundation of liability for damage caused by the escape of fire, aside from any absolute liability created by statute, is negligence, and that one is not hable for damage caused by the dispersion of fire without proof of negligence in controlling or otherwise permitting the escape of the fire.” 35 Am. Jur. 2d, Fires § 22, p. 602. Plaintiffs admit there is no direct evidence as to the origin of the fire which was first discovered by Seidel. Plaintiffs further admit that where an intentionally set fire escapes and damages another’s property, the plaintiff must prove negligence in order to recover damages. However, plaintiffs contend that discovering a burning patch of grass under the conditions then present, coupled with the burning ban, triggered strict liability. Plaintiffs cite no case precedent drat the spread of a fire, not intentionally started, triggers strict liability. Defendants argue that damages resulting from the spread of intentionally started grass fires have always been judged using the negligence standard in this state. Here, there is no dispute that defendants did not purposefully start the fire. Importantly, there was no evidence that defendants accidentally started the fire. If defendants neither purposefully started the fire nor did anything which would start the fire, Rylands v. Fletcher does not control. Unquestionably, defendants did not bring a non-natural use of any kind to their property and, consequently, Rylands does not apply. In Kansas, farmers and ranchers have a right to set controlled fires on their property for agricultural purposes and will not be liable for damages resulting if the fire is set and managed with ordinary care and prudence, depending on the conditions present. Johnson v. Veneman, 75 Kan. 278, Syl. ¶¶ 1, 2, 89 Pac. 677 (1907). There is no compelling argument for imposing strict liability on a property owner for failing to prevent the spread of a fire that did not originate with that owner or operator. Because the essential facts of this case are undisputed, as a matter of law, the doctrine of strict liability is not applicable under the facts presented. JOINT VENTURE Based upon our above discussion, we need not reach the claimed error in the court’s finding that defendants were not operating as a joint venture. Affirmed.	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Knudson, J.: On March 8, 1995, defendant Michael McBride, Jr., pled guilty to the offense of felony possession of marijuana. At the time of his sentencing on April 14, 1995, McBride stipulated to his criminal history as it appeared in the presentence investigation (PSI) report. The PSI report included, inter alia, a residential burglary listed as a person felony. McBride’s criminal history score was D and his crime severity level was 4 on the drug grid. The district court sentenced him to the low term in the sentencing grid box of 23 months. After pronouncement of the sentence, McBride filed a motion to correct clerical and arithmetic errors; he claimed that the PSI report incorrectly stated that he had a juvenile conviction of residential burglary when it should have been nonresidential burglary. On June 21, 1995, the district court filed a memorandum order in which it found that McBride had stipulated to the criminal history worksheet at the time of his sentencing. The memorandum order further found that there was sufficient evidence indicating that McBride had committed residential burglary. McBride filed a notice of appeal from the memorandum order on July 3, 1995. K.S.A. 22-3608(c) provides: “For crimes committed on or after July 1, 1993, the defendant shall have 10 days after the judgment of the district court to appeal.” “ ‘The filing of a timely notice of appeal is jurisdictional. [Citation omitted.] . . . Kansas appellate courts have jurisdiction to entertain an appeal only if the appeal is taken within the time limitations and in the manner prescribed by applicable statutes. [Citation omitted.]’ ” State v. Bost, 21 Kan. App. 2d 560, 562, 903 P.2d 160 (1995). Because McBride’s notice of appeal was filed more than 10 days after the pronouncement of his sentence, this court ordered the parties to address the timeliness of McBride’s notice of appeal in order to determine our jurisdiction to hear this appeal. First, McBride claims that his notice of appeal was timely because his attorney filed a timely motion to correct clerical and arithmetic errors. See K.S.A. 60-260(a). McBride argues that pursuant to K.S.A. 60-2103(a), he had 30 days from the entry of judgment in which to appeal the court’s decision. McBride’s reasoning is flawed. McBride’s motion was not one to correct a clerical or arithmetic error, but rather, one in which he disagreed with the determination that his prior crime was a residential burglary. In essence, McBride was requesting the court to modify his sentence. “The legislature has revoked the ability to have one’s sentence modified after sentencing.” Bost, 21 Kan. App. 2d at 565. McBride cannot incorrectly characterize his motion in order to give the appearance of a timely appeal. Second, McBride claims that his motion could be construed as a motion to reconsider and, therefore, his appeal time was tolled. Again, a sentence can no longer be modified after its pronouncement. See Bost, 21 Kan. App. 2d at 565. Third, McBride asserts that if his previous juvenile conviction for burglary should have been scored as a nonperson felony instead of a person felony, then he is serving an illegal sentence which can be corrected at any time. It is true that an illegal sentence may be corrected at any time; however, pursuant to K.S.A. 22-3504, the law is well settled that one who, by his or her own acts, invites error cannot then complain or take advantage of it on appeal. State v. Thomas, 220 Kan. 104, 106, 551 P.2d 873 (1976). McBride stipulated to his criminal history during sentencing; he cannot now complain that it was incorrect. Such argument has been waived. Finally, McBride asserts that his trial counsel was ineffective for failing to file a timely notice of appeal. In State v. Ortiz, 230 Kan. 733, 735-36, 640 P.2d 1255 (1982), the court held that although the timely filing of a notice of appeal is jurisdictional, an exception is recognized where the defendant either was not informed of his or her right to appeal, was not furnished with an attorney to exercise that right, or was furnished with an attorney for that purpose who failed to perfect and complete an appeal. Even under Ortiz, there is no need to remand where the appeal fails on other separate and distinct jurisdictional grounds. See Bost, 21 Kan. App. 2d at 564. In the instant case, McBride stipulated to the PSI report and, therefore, any error with regard to the PSI report was invited error and cannot now be appealed. This court does not have proper jurisdiction to hear this appeal. Appeal dismissed.	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Marquardt, J.: The State appeals from the district court’s journal entry suppressing all evidence. On January 10, 1996, Investigator Janet Guerrero of the Salina Police Department and Detective Bryan Gravatt of the Dickinson County Sheriff’s Office went to Jacqueline Kay Kriegh’s residence based on information from a court services officer that there had been illegal drug use in the house. The officers did not have a search warrant. Investigator Guerrero made an audio tape of the entire entry and search of Kriegh’s residence on which the district court based many of its factual findings. However, neither the tape nor a transcript of the tape is included in the record on appeal. Investigator Guerrero testified that when Jacqueline’s 15-year-old son, Matt, answered the door, he was asked if the officers could come in because they needed to speak to his mother. Matt did not respond to this request but did go get his mother. The district court found that the officers entered the residence concurrent with their request to enter. Investigator Guerrero testified that while the officers were waiting for Matt to get Jacqueline, Detective Gravatt noticed a marijuana stem in an ashtray on the dining room table and that this stem was noticeable from where they were standing. Jacqueline testified that when she came out to the dining area, the officers were “a good ten feet at least inside my door,” standing over the dining room table looking at two ashtrays. The dining area is separated from the entiyway by a partial wall. Jacqueline testified that the officers told her that they had “heard reports,” and asked if they could “look around” the house. Jacqueline testified further that while Investigator Guerrero was talking to her, Guerrero picked up an ashtray, picked around in it, and then said that she had found a marijuana stem. Investigator Guerrero denied that she or Detective Gravatt had picked through the ashtray. Jacqueline told the officers that a young woman had been in her home several days before, who had been smoking marijuana in the house. This information was apparently consistent with the information received from the court services officer. Jacqueline also told the officers that she had told this young woman to leave her house. Investigator Guerrero testified that Jacqueline consented to her request to take a “quick look around.” The record reflects that Investigator Guerrero asked Jacqueline at least four or five times if she could take a “quick look around.” Jacqueline told the officers that they would not find anything. When Investigator Guerrero asked Jacqueline if she could look around her bedroom, Jacqueline responded, “I guess so.” The district court noted that on the tape, after the third request to take a “quick look around,” Investigator Guerrero indicated to Jacqueline that the marijuana stem that she had found provided authority for a search independent of her consent. While searching Jacqueline’s bedroom and purse, Investigator Guerrero found a small tin box that contained what she suspected to be marijuana seeds, a brown bottle that contained what she suspected to be prescription drugs, and some cigarette rolling papers. Investigator Guerrero asked Jacqueline if she had a prescription for the pills, and Jacqueline responded that she did not. The State charged Jacqueline with possession of marijuana, a drug severity level 4 felony because she had a prior conviction; possession of drug paraphernalia, a class A misdemeanor; possession of hydrocodone, a drug severity level 4 felony; and possession of propoxyphene, a class A misdemeanor. Jacqueline filed a motion to suppress all of the evidence that resulted from the search of her residence. The district court granted the motion, finding that Matt did not consent to the officers entering the residence. The district court also found that there was no clear and unequivocal consent on the tape and that there was no “clear unequivocal knowing, voluntary informed consent to any search of this person’s home.” The State filed an interlocutory appeal from the journal entry suppressing the evidence. See K.S.A. 22-3603. The State argues generally that the district court erred in suppressing the evidence. On a motion to suppress evidence, the State bears the burden of proving to the district court the lawfulness of the search and seizure by a preponderance of the evidence. State v. Garcia, 250 Kan. 310, 318, 827 P.2d 727 (1992); see State v. Strecker, 230 Kan. 602, 608, 641 P.2d 379 (1982). An appellate court will uphold a district court’s suppression of evidence if the ruling is supported by substantial competent evidence. Garcia, 250 Kan. at 318. “The existence and voluntariness of a consent to search and seizure is a question of fact to be decided in the fight of all attendant circumstances by the trier of facts and will not be overturned on appeal unless clearly erroneous.” Strecker, 230 Kan. at 608; see State v. Johnson, 253 Kan. 356, 361-62, 856 P.2d 134 (1993). An appellate court should not reweigh the facts and substitute its judgment for that of the district court. State v. Walter, 234 Kan. 78, 81, 670 P.2d 1354 (1983). “The trial court’s observations of the demeanor of the officers and the defendant during testimony at the motion to suppress is essential to deciding if the State met its burden. The appellate court cannot decide a question of fact that is based upon conflicting testimony which requires an assessment of the demeanor and credibility of the witnesses.” State v. Ruden, 245 Kan. 95, 106, 774 P.2d 972 (1989). The State argues that the record “clearly shows” that the district court believed that an officer may not rely on a juvenile’s consent to gain entry into a residence. However, the district court did not hold that a juvenile could never give a valid consent to a search or entry. Rather, the district court noted these specific facts in making its finding: (1) The officers entered the residence concurrent with the request to enter, (2) Matt did not verbally respond to the officer’s request to enter, and (3) the adult the officers were there to see was at home. There is no reported Kansas case addressing the validity of a third-party consent by the minor child of a defendant. “Subject to a ‘few specifically established and well-delineated exceptions,’ searches and seizures without a warrant are unreasonable.” Strecker, 230 Kan. at 604 (quoting Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 29 L. Ed. 2d 564, 91 S. Ct. 2022, reh. denied 404 U.S. 874 [1971]). “One of the exceptions to the search warrant requirement is consent, which must be given voluntarily, intelligently, and knowingly and proven by a preponderance of the evidence.” Johnson, 253 Kan. at 362. “To establish consent, it must be clear that the search was permitted or invited by the individual whose rights are in question without duress or coercion.” State v. Crowder, 20 Kan. App. 2d 117, 120, 887 P.2d 698 (1994). In United States v. Matlock, 415 U.S. 164, 170-71, 39 L. Ed. 2d 242, 94 S. Ct. 988 (1974), the Supreme Court stated: “[T]he consent of one who possesses common authority over premises or effects is valid as against the absent, nonconsenting person with whom that authority is shared. . . . [W]hen the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.” In State v. Ratley, 16 Kan. App. 2d 589, 591, 827 P.2d 78 (1992), this court quoted and adopted tire rule from Matlock. The Ratley court further held “that Kansas adopts the ‘apparent authority’ rule, which makes valid a consent to search when the facts available to an officer would warrant a person of reasonable caution to believe the consenting party had authority over the premises to be searched.” 16 Kan. App. 2d at 595. Modem cases evaluating the validity of a minor’s consent to a search of a defendant’s residence have typically applied the Mat-lock common authority test. Annot., 99 A.L.R.3d 598, 600; see 3 LaFave, Search and Seizure § 8.4(c), p. 772 (1996); see, e.g., Saavedra v. State, 622 So. 2d 952, 957 (Fla. 1993), cert. denied 510 U.S. 1080 (1994). Under the Matlock common authority test, courts apply “a case-by-case approach to determine the scope of a minor’s common authority to consent and whether the consent was knowing and voluntary.” Saavedra, 622 So. 2d at 957. Although age is a factor to consider in ascertaining whether consent was given willingly, minority status alone does not prevent one from giving consent. Com. v. Maxwell, 505 Pa. 152, 162, 477 A.2d 1309, cert. denied 469 U.S. 971 (1984); see Doyle v. State, 633 P.2d 306, 308 (Alaska App. 1981). In Lenz v. Winburn, 51 F.3d 1540, 1548-49 (11th Cir. 1995), the court held that minors have the capacity to give a third-party consent where the circumstances surrounding the consent demonstrate that it was voluntarily given and free of duress or coercion. The availability or presence of the parent in the home is another factor to consider in determining the scope and validity of the minor’s consent. See State v. Will, 131 Or. App. 498, 505-06, 885 P.2d 715 (1994); see also Hembree v. State, 546 S.W.2d 235, 241 (Tenn. Crim. App. 1976) (holding that where parents and son are in custody and are equally accessible to give consent, the consent of the minor son does not waive the constitutional rights of the parents); Saavedra, 622 So. 2d at 956 (stating per se rule that third-party consent is only valid if the party who is the target of the search is not present or is present and does not object to the search). Another factor is the scope of the consent requested and given. Thus, a minor is more likely to have adequate common authority to allow entry into the home than to allow a thorough search of the premises. See Doyle, 633 P.2d at 309; 3 LaFave, Search and Seizure § 8.4(c), pp. 772-74 n.88; cf. State v. Pamer, 70 Ohio App. 3d 540, 542-43, 591 N.E.2d 801 (1990) (distinguishing entry from search and declining to apply Matlock common authority test to entry). This is not to say that entry into the home is not protected by the Fourth Amendment to the United States Constitution as interpreted by Kansas courts. See Ruden, 245 Kan. at 103 (quoting the United States Supreme Court and noting that the physical entry into the home is the chief evil against which the protection of the Fourth Amendment is directed). Rather, the scope of the consent is a factor to be considered in determining whether the minor had authority to consent to the entry and then to the search. In light of these principles, Matt had the authority to allow the officers to enter the residence while he went to get his mother; however, there is nothing in the record that indicates that Matt consented to the officers entering the home. Matt did not verbally respond to the officer’s request to enter, and the audio tape that the district court relied on in making its factual conclusion that Matt did not consent to the officers entering the home is not a part of the record on appeal. An appellant bears the burden to provide a record sufficient to establish the claimed error; in the absence of such a record, an appellate court presumes that the action of the district court was proper. See State v. Humphrey, 258 Kan. 351, 366, 905 P.2d 664 (1995). The State has not met this burden. The State is asking this court to reverse the factual findings of the district court without providing the evidentiary basis upon which those findings were made. The State also argues that the district court erred in ruling that Jacqueline did not validly consent to the search of her residence. As noted above, consent “must be given voluntarily, intelligently, and knowingly.” Johnson, 253 Kan. at 362. “[I]t must be clear that the search was permitted or invited by the individual whose rights are in question without duress or coercion.” Crowder, 20 Kan. App. 2d at 120. “To be voluntary, the defendant’s consent must be ‘ “unequivocal and specific.” ’ ” State v. Henry, 14 Kan. App. 2d 416, 420, 792 P.2d 358, rev. denied 247 Kan. 706 (1990). “In determining whether consent was voluntary, the trial court should consider whether the individual was threatened or coerced, and whether he was informed of his rights.” Ruden, 245 Kan. at 105; cf. Schneckloth v. Bustamonte, 412 U.S. 218, 248-49, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973) (holding that a defendant’s knowledge of the right to refuse to consent is not a requirement for a valid consent, but is a factor to be considered). “Mere submission to lawful authority does not equate to consent, rather valid consent must be unequivocal and specific, and freely and intelligently given.” U.S. v. Manuel, 992 F.2d 272, 275 (10th Cir. 1993) (citing Florida v. Royer, 460 U.S. 491, 497, 75 L. Ed. 2d 229, 103 S. Ct. 1319 [1983]); cf. Johnson, 253 Kan. at 362-63. The State argues that the district court erred because it based the suppression on its disapproval of the use of the term “look around” as opposed to search. The State notes that in Strecker, the police had asked permission to look around. The Kansas Supreme Court reversed the district court’s decision to suppress the evidence obtained in the search. 230 Kan. at 609. Strecker indicates that “look around” is an acceptable phrase for officers seeking a consent to search. See 230 Kan. at 609. Here, the district court held that “a repeated asking if — ‘Mind if we have a quick look around,’ which is finally yielded to without a clear consent, is not a consent to search, particularly a search of one’s home.” (Emphasis added.) Regardless of the district court’s approval or disapproval of the phrasing of the officer’s question, an equivocal consent or mere yielding to authority is not a valid consent. See Royer, 460 U.S. at 497; Henry, 14 Kan. App. 2d at 420. Here, the district court found that “there was no clear and unequivocal consent on that tape.” Without the audio tape, this court cannot review that finding. Affirmed.	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Royse, J.: Kenneth Jack and Allison Jack brought this action to recover economic losses sustained when they discovered their home had been built in a flood hazard zone. The district court dismissed their claims against Professional Engineering Consultants, P.A., the City of Wichita, Armstrong Land Survey, Donald Armstrong, Firstier Mortgage Company, and Paula Whillock. The Jacks appeal. The Jacks own a home at 934 Shefford, otherwise described as Lot 5, Block 3, Golden Hills Addition in Wichita, Kansas. The property lies inside a flood hazard zone. The Jacks entered into a purchase contract with the developer, Sunrise Enterprises, Ltd., on November 23, 1986. Title to the property was conveyed to the Jacks on January 28, 1987. The Jacks contend they did not leam their property was located in a flood plain until 1993, when they refinanced their home and the lender required them to obtain flood insurance. The Jacks brought suit against the developer and the defendants noted above. They sought recovery of economic losses resulting from “the location of the house with respect to the flood plain and the requirement of flood insurance.” The Jacks later dropped their claim against the developer, and it is not a party to this appeal. The property has not flooded, and the Jacks do not claim damage from flooding. STANDARD OF REVIEW A motion for judgment on the pleadings requires the trial court to determine whether, upon the admitted facts, the plaintiff has stated a cause of action. Tabor v. Lederer, 205 Kan. 746, 748, 472 P.2d 209 (1970). “The motion serves as a means of disposing of the case without a trial where the total result of the pleadings frame the issues in such manner that the disposition of the case is a matter of law on the facts alleged or admitted, leaving no real issue to be tried. [Citation omitted.] The motion operates as an admission by movant of all fact allegations in the opposing party’s pleadings. [Citation omitted.]” Clear Water Truck Co., Inc. v. M. Bruenger & Co., Inc., 214 Kan. 139, 140, 519 P.2d 682 (1974). A motion to dismiss based on K.S.A. 60-212(b)(6) raises an issue concerning the legal sufficiency of a claim and must be decided from the well-pleaded facts of plaintiff’s petition. The question for determination is whether in the light most favorable to plaintiff, and with eveiy doubt resolved in plaintiff’s favor, the petition states any valid claim for relief. Knight v. Neodsha Police Dept., 5 Kan. App. 2d 472, Syl. ¶ 2, 620 P.2d 837 (1980). K.S.A. 60-212(b) and (c) provide that, when matters outside the pleadings are presented to the court in connection with a motion to dismiss or for judgment on the pleadings, the motion shall be treated as a motion for summary judgment. Summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. On appeal, we apply the same rule, and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. Gilger v. Lee Constr., Inc., 249 Kan. 307, Syl. ¶ 1, 820 P.2d 390 (1991). JUDGMENT FOR PROFESSIONAL ENGINEERING CONSULTANTS The Jacks’ claim against Professional Engineering Consultants (PEC) arises out of its platting of the Golden Hills Addition prior to the Jacks receiving title to their property. The preliminary plat did not designate the Jacks’ property as being within the A-4 flood hazard zone. The Jacks claim this omission violated § 5-302(b)(3) of the Wichita-Sedgwick County Subdivision Regulations. The Jacks further claim PEC was negligent in preparing the final plat for the Golden Hills Addition because it made a notation for the “minimum pad elevation” without providing instruction for the minimum elevation of the lowest floors, including basements. The Jacks also claim PEC negligently failed to advise the developer to fill the ground to a sufficient elevation. PEC filed a motion for judgment on the pleadings, arguing it owed no duty to the Jacks. The district court granted that motion. To sustain a claim of negligence, a plaintiff must show the defendant owed the plaintiff a duty and that a causal connection exists between the breach of that duty and the injury received by the plaintiff. Wicina v. Strecker, 242 Kan. 278, 280, 747 P.2d 167 (1987). Whether a duty exists is a question of law. Durflinger v. Artiles, 234 Kan. 484, 488, 673 P.2d 86 (1983). On appeal, the Jacks couch the duty issue in terms of lack of privity of contract. They argue that under Pizel v. Zuspann, 247 Kan. 54, 795 P.2d 42, modified 247 Kan. 699, 803 P.2d 205 (1990), PEC should be held to owe a duty to the Jacks in preparing the plat. Pizel involved an attorney who negligently drafted an inter vivos trust. The court held the intended beneficiaries of the trust could sue the attorney for damages sustained when the trust was declared void. 247 Kan. at 68. The Jacks’ reliance on Pizel is misplaced. Unlike the plaintiffs in Pizel, the Jacks cannot demonstrate that they were intended beneficiaries of PEC’s work. The final plat of the property was filed in 1985. The Jacks did not enter into a contract to purchase the property from the developer until November 1986. Although it may have been foreseeable that PEC’s work would affect some subsequent homeowner, the Jacks have not shown they were the intended beneficiaries or recipients of PEC’s work. See also Bank IV Wichita v. Arn, Mullins, Unruh, Kuhn & Wilson, 250 Kan. 490, 506, 827 P.2d 758 (1992) (defendant attorneys did not directly advise Bank or intend that Bank would rely on their legal services); Wilson-Cunningham v. Meyer, 16 Kan. App. 2d 197, 205, 820 P.2d 725 (1991), rev. denied 250 Kan. 808 (1992) (children not intended beneficiaries of legal advice received by their father in his divorce action). The Jacks’ argument that the district court erred in holding PEC owed no duty to the Jacks is without merit. The district court did not err in dismissing the claim against PEC. In light of this conclusion, we need not address PEC’s cross-appeal concerning the statute of limitations. JUDGMENT FOR CITY OF WICHITA The Jacks’ claim against the City of Wichita (City) arises out of the City’s issuance of a permit to the Golden Hills developer. The Jacks claim the City did not perform, or negligently performed, a review of the subdivision proposal to assure the property was reasonably safe from flooding as required by the Wichita City Code (1993). The City filed a motion to dismiss and for judgment on the pleadings, raising multiple issues. The district court granted the motion. On appeal, the Jacks argue that under City Code § 27.04.090 (1993) the City Superintendent of Central Inspections had a mandatory duty to review the development permit for flood safety. The Jacks emphasize the City was required to review the permit, not the permit application. The City responds that the district court’s order of dismissal was based not only on lack of duty, but also on the lack of causation. The City contends the Jacks are bound by the causation ruling because they have not contested it in their appeal. The journal entry signed by the district court, however, is couched in general terms and merely incorporates findings and conclusions “as set forth in the record.” Although a minute sheet does contain the notation “no showing of causation,” the district judge did not refer to causation in announcing its ruling at the conclusion of the hearing on the defendants’ motions. Supreme Court Rule 165 (1996 Kan. Ct. R. Annot. 173) requires a judge to state the legal principles controlling the decision. Based on the record in this case, we cannot tell whether the district court considered causation to be a legal principle controlling its decision. For that reason, we decline to rely on the Jacks’ failure to challenge causation. The City also argues the Jacks are trying to raise on appeal an issue they expressly abandoned in the district court. “A party cannot on appeal be permitted to change its theory of the case or raise new issues not previously presented to the trial court, or inconsistent with the position taken before the trial court.” Baugher v. Hartford Fire Ins. Co., 214 Kan. 891, Syl. ¶ 6, 522 P.2d 401 (1974). The record in this case reflects that the Jacks filed a brief in opposition to the City’s motion to dismiss in which they stated they did not rely “in the first instance” on the City Code to establish the City’s duty. A review of that brief, however, does show that later the Jacks did, in fact, make such an argument. The City, in addition, argues the ordinance relied on by the Jacks is directed at numerous public purposes, but is not intended to create a duty to individuals. “Statutes enacted to protect the public, ... do not create a duty to individuals injured as a result of a statutory violation. [Citation omitted.] “Generally, the test of whether an individual right of action exists for violation of a statute is whether the legislature intended to give such a right. In the absence of express provisions, the legislative intent to grant or withhold such a right is determined primarily from the language of the statute. The nature of the evil sought to be remedied and the purpose the statute was intended to accomplish may also be taken into consideration. [Citation omitted.]” Kansas State Bank & Tr. Co. v. Specialized Transportation Services, Inc., 249 Kan. 348, 371, 819 P.2d 587 (1991). See Bradley v. Board of Butler County Comm’rs, 20 Kan. App. 2d 602, 607, 890 P.2d 1228 (1995). Section 27.04.020 of the City Code states that the purpose of the Wichita Flood Damage Prevention Code is to “promote the public health, safety, and general welfare and to minimize public and private losses due to flood conditions in specific areas.” No provision of the Wichita Flood Damage Prevention Code expressly creates a duty to individuals or even to prospective homeowners. Significantly, however, City Code § 27.04.070 contains a disclaimer of liability: “The provisions of this code shall not create liability on the part of the City of Wichita, Kansas, or any officer or employee thereof for any flood damages that result from reliance on the provisions of this code or any administrative decision lawfully made thereunder.” Taken together, these provisions reflect a determination not to create a special duty to individuals. The conclusion that the Wichita Flood Damage Prevention Code does not create a duty to individuals is reinforced by decisions concluding that no such duty arises under the National Flood Insurance Program. See Okie v. Village of Hamburg, 196 App. Div. 2d 228, 609 N.Y.S. 2d 986 (1994); Hinnigan v. State, 94 App. Div. 2d 830, 463 N.Y.S. 2d 308 (1983). These decisions are helpful, because City Code § 27.04.180 makes clear the City Code provisions are designed to comply with the National Flood Insurance Program. For these reasons, the district court did not err in granting the City’s motion to dismiss or for judgment on the pleadings. In light of this conclusion, we need not address the issues raised by the City’s cross-appeal concerning governmental immunity, statute of limitations, and insufficiency of notice of claim. JUDGMENT FOR ARMSTRONG LAND SURVEY AND DONALD ARMSTRONG The Jacks’ claim against Armstrong Land Survey and Donald Armstrong (Armstrong) arises out of a land survey prepared for the property. Armstrong was hired by Firstier Mortgage to conduct the survey as part of a mortgage inspection. On the survey, Armstrong made the following notation: “NOTE: HOUSE IS ABOVE MIN. PAD.” The Jacks alleged this erroneous notation resulted from negligence in measuring the elevation or from negligent failure to measure the elevation. The Jacks also alleged Armstrong was required by statute to disclose that the term “house” did not refer to the basement of the house. Armstrong filed a motion for judgment on the pleadings, arguing it owed no duty to the Jacks. The district court granted the motion. On appeal, the Jacks do not rely on negligent measurement or failure to measure the elevation. The Jacks do not mention any statutory duty to define “house.” Instead, they argue Armstrong knew a home buyer would rely on the survey, that they did in fact rely on the survey, and that Armstrong is liable for negligent misrepresentation under the holding in Mahler v. Keenan Real Estate, Inc., 255 Kan. 593, 876 P.2d 609 (1994). The Jacks, however, admit that the facts they rely on to come within the Mahler rule are not alleged in their petition. The Jacks attempt to rationalize their reliance on matters not pled in their petition by citing Weil & Associates v. Urban Renewal Agency, 206 Kan. 405, 413, 479 P.2d 875 (1971). Weil & Associates states that a motion to dismiss must be decided from the well-pleaded facts in the petition and that the court must view the pleadings in the light most favorable to the plaintiffs. Weil & Associates does not state a plaintiff on appeal may rely on factual allegations wholly omitted from the pleadings. Armstrong argues a party may not change its theory of the case on appeal or raise new issues not presented to the trial court. We agree. See Baugher, 214 Kan. 891, Syl. ¶ 6. The Jacks may not raise a new legal theory to claim error by the district court in granting Armstrong’s motion for judgment on the pleadings. JUDGMENT TO FIRSTIER MORTGAGE COMPANY and PAULA WHILLOCK Firstier Mortgage Company (Firstier) provided the loan which enabled the Jacks to buy their home. The Jacks’ claim against Firstier and its employee Paula Whillock arises out of a certification prepared by Whillock that the property did not require Federal Emergency Management Agency flood insurance. The Jacks claimed Whillock’s negligence entitled them to a judgment against her and Firstier. Firstier and Whillock filed a motion to dismiss for failure to state a claim, arguing they owed the Jacks no duty to advise them flood insurance would be needed or to require them to obtain flood insurance. The district court granted the motion. On appeal, the Jacks argue a duty should be recognized because there existed a special relationship between a borrower and lender and because Willock issued the certification pursuant to a federal statute. A review of the Jacks’ brief in opposition to the motion of Firstier and Whillock shows the Jacks never asserted that a special relationship between borrower and lender warrants imposition of a duty and never even cited a federal statute. That brief focused on the foreseeability of injury, an argument not raised on appeal. The Jacks may not raise new issues on appeal as a basis for their claim of error. In any event, their arguments are without merit. First, the weight of authority is that the federal statutes establishing the National Flood Insurance Program do not create a duty which would support a claim for negligence. See, e.g., Jacobsen v. Banco Mortgage Co., 547 F. Supp. 954 (D. Minn. 1981). Second, Kansas law recognizes the borrower/lender relationship has an adversarial character. Bank IV Wichita, 250 Kan. at 505. This is not the sort of “special relationship” which justifies imposing a duty. See Nelson v. Miller, 227 Kan. 271, 287, 607 P.2d 438 (1980). The district court did not err in granting summary judgment to Firstier and Whillock. Affirmed.	[ -13, -32, -90, 108, -120, -31, 104, -40, 73, -96, 118, 83, 71, -62, 13, 127, -26, 61, -15, 105, -57, -93, 31, -94, -46, -73, 49, 79, -6, 79, 116, -41, 76, 32, -62, -107, 70, -64, -123, 88, -98, -115, 8, -32, -19, 66, 52, 75, 54, 9, 81, -116, -77, 42, 53, -29, -119, 46, -37, 40, 65, 81, -88, 23, 127, 1, -95, 52, -44, 67, 122, 24, -112, 57, 32, -20, 115, 54, -106, 52, 65, -117, 9, 102, 103, 42, 1, -17, 120, 24, 15, 79, 13, -90, -77, 72, 67, 35, -97, -100, 121, 0, 103, 122, -20, -59, 29, -24, 7, -26, -42, -79, -113, 20, 1, -125, -1, 5, 34, 116, -51, -25, 94, 87, 48, 63, 30, -67 ]
Elliott, J.: The Kansas Department of Revenue (KDR) suspended the driving privileges of Alan Fehlhafer due to his second DUI conviction. Fehlhafer filed a chapter 60 suit to enjoin the suspension, alleging it violated his plea agreement. The trial court, relying on Dickerson v. Kansas Dept. of Revenue, 253 Kan. 843, 863 P.2d 364 (1993), ruled in Fehlhafer s favor. KDR appeals and we reverse. The facts are not disputed. Fehlhafer pled no contest to the DUI charge pursuant to a plea agreement in which the prosecutor promised that Fehlhafer s driving privileges would not be suspended; the trial court approved the plea agreement. Fehlhafer filed an action in Leavenworth County to enjoin KDR’s suspension of his driving privileges. KDR moved to dismiss or to transfer venue to Shawnee County. The trial court denied the motion. At trial, the assistant county attorney who entered into the plea agreement testified he knew KDR had authority to suspend a license, but believed he had authority to bargain away that suspension. The trial court ultimately ruled that while the prosecutor should not have bargained away the suspension, KDR was nonetheless bound by the plea agreement under Dickerson. K.S.A. 60-602 governs venue in this case. The statute provides: “Actions for the following causes must be brought in the county in which the cause, or some part thereof arose: “(2) An action against a public officer for an act done or threatened to be done by such officer by virtue or under color of his or her office, or for neglect of his or her official duties.” In Huerter v. Hassig, 175 Kan. 781, 267 P.2d 532 (1954), the sole issue was whether venue was proper in Nemaha County (where suit was filed) or in Pratt County, where the official action of the fish and game commission was taken. The court held that venue was proper in Pratt County, where the official action of the commission was taken. 175 Kan. at 785. In Alliance Life Ins. Co. v. Ulysses Volunteer Firemans Relief Assn, 215 Kan. 937, 939, 529 P.2d 171 (1974), the court stated: “We take it as well settled . . . that the mere ‘making’ of a contract, standing alone, does not give rise to a cause of action; there must in addition be a breach. [Citations omitted.] . . . [T]he place of making a contract is irrelevant to the issue of where a cause of action arises for its breach; the controlling place is that of the breach, i.e., the place where the obligor failed to fulfill his obligation.” In the present case, while the plea agreement was made in Leavenworth County, the alleged breach — the suspension of Fehlhafer’s license — occurred in Shawnee County. Furthermore, the sus pension of the license was the only official action with which plaintiff took issue. Applying Huerter and Alliance, venue was proper in Shawnee County and not Leavenworth County. The remaining question is whether we can deem the trial court’s venue ruling as harmless error and address the merits of KDR’s appeal. In Alliance, the court proceeded to the merits of the appeal, holding that “[although a party’s right to litigate in a proper forum is a valuable one, the law does not require pointless redetermination of legal issues where the results may be readily foreseen.” 215 Kan. at 942. KDR asks that we not address the merits. Instead, we will address only the merits of the appeal dealing with the enforceability of the plea agreement. The trial court ruled that under Dickerson, KDR was bound by the plea agreement, even though the prosecutor never should have entered into the agreement. The issue in Dickerson was whether a plea agreement in a criminal drug case collaterally estopped a later drug tax proceeding filed by KDR. The enjoining of KDR from attempting to collect the tax was affirmed by this court and by the Supreme Court. 253 Kan. at 844. The Dickerson court explained: “Dickerson negotiated the tax and fine with an agent of the State, the Crawford County Attorney. The plea agreement was implemented by the State through the district court judge. The State, as embodied in the Director of Taxation, cannot now vary the terms of the prior agreement and court order.” 253 Kan. at 850. However, the Dickerson court also stated in clear terms that the Director of Taxation had the sole authority to make drug tax assessments and prosecutors and district courts should not enter into or accept such plea agreements. 253 Kan. at 853, 855. Similarly, by statute, KDR has the sole authority to suspend a driver’s license after a DUI conviction. K.S.A. 8-1014(b). And if KDR has the sole authority to suspend a driver’s license, then the prosecutor simply has no authority under Dickerson to waive that suspension as part of a plea agreement. Further, a license suspension is a civil sanction which is remedial and not punitive in nature. State v. Mertz, 258 Kan. 745, 752, 761, 907 P.2d 847 (1995). Like other civil sanctions, license suspensions are handled by KDR, while criminal sanctions for DUI are handled by a prosecutor. See Dickerson, 253 Kan. at 852. In our view, Dickerson clearly gave notice that the type of plea agreement here involved was improper and was not to be attempted again. In effect, the Dickerson court told all interested parties to go forward, but sin no more. The Dickerson court said: “Given the context of the situation, Dickerson has no reason to believe that the prosecutor and court could not determine his fine.” 253 Kan. at 852. Here, the trial court might have been misled by a discussion of an unpublished opinion of this court that did not exist. But defense counsel, the prosecutor, and the trial court should have known that, under Dickerson, the prosecutor lacked authority to make the plea agreement he made. We hold that Fehlhafer could not claim to have had any reasonable expectation that the prosecutor had the authority to waive his driver’s license suspension. As we read Dickerson, our Supreme Court clearly told the State of Kansas that plea agreements made by prosecutors who have no authority to make them would not be tolerated and would not be enforced in the future. The Leavenworth County prosecutor had no authority to enter into the plea agreement with Fehlhafer, and the trial court should not have enforced it. KDR has the sole authority to suspend a driver’s license following a DUI conviction and is not bound by the plea agreement. Since the prosecutor had no authority to enter the plea agreement, it should be set aside; the DUI charge should be reinstated, and the case should proceed as if the plea agreement had not been made. Reversed.	[ -112, -24, -15, -20, -102, -63, 48, 16, 99, -25, 119, 83, -19, -38, 5, 59, -93, 125, 81, 105, -61, -78, 87, -127, -26, -77, -39, 71, -69, 75, 124, -108, 78, -104, 11, 21, 6, -61, -123, 88, -114, -124, -101, -16, -40, -126, 52, 105, 86, 15, 113, -113, -77, 42, 53, 71, -19, 44, 28, 105, -15, -15, -5, 21, 123, 2, -95, 20, -40, 7, 80, 59, -102, 57, 57, 125, 115, 54, -62, 116, 15, -101, -92, 110, 96, 33, 25, -115, -84, -87, 14, 122, -99, 34, -103, 88, 99, 9, -106, -99, 122, 54, 11, -20, 108, 4, 81, 104, 2, -50, -68, -127, -50, 117, -122, 7, -17, 64, 49, 65, -115, -10, 94, 87, 112, -101, 98, -10 ]
Prager, C.J.: This is an appeal by Jerry E. Squires from an order of the Workers Compensation Board (Board) affirming an order finding that Squires’ accidental, self-inflicted gunshot wound did not arise out of his employment as a police officer at Emporia State University. The basic issue on appeal is whether Squires’ injury arose out of and in the course of his employment. The facts were not greatly in dispute, and the Board found them to be as follows: “After reviewing the record and considering the arguments of the parties, the Appeals Board find claimant’s injury did not arise out of his employment and, accordingly, the decision by the Administrative Law Judge should be affirmed. “Claimant was injured on January 3,1990, while doing traffic surveillance as a part of his duties as a police officer for Emporia State University. The injury resulted from accidental discharge of a 9 millimeter automatic pistol. The pistol was a personal weapon which claimant had retrieved from a pawn shop earlier that day. The weapon discharged as he checked the pistol to determine whether it needed to be cleaned. The evidence establishes that claimant was not authorized to carry a backup weapon. The evidence further establishes that he had requested permission to qualify his 9 millimeter pistol for use in his employment, but the request was denied. Claimant acknowledges in his testimony that the handling of his personal 9 millimeter handgun was not related to the performance of his duties for respondent. The Appeals Board concludes' the discharge of the weapon resulted from purely personal activity, was not work related and benefits should, accordingly, be denied:” ,:. At the outset, it should be pointed out that under K.S.A. 77-621, appellate review of a decision of the Board is explicitly limited to questions of law. Specifically, relief can be granted in this case only if it is determined that the Board erroneously interpreted or applied the law or that its determination of fact was not supported by substantial competent evidence. Kindel v. Ferco Rental, Inc., 258 Kan. 272, 277, 899 P.2d 1058 (1995). As to the Board’s findings of fact, as quoted above, we find they are supported by substantial competent evidence. The sole remaining issue on this appeal is whether, under the facts, as a matter of law, the Board committed error in holding that Squires’ injury did not arise out of his employment and was, therefore, not compensable. In Kindel, the Supreme Court recently reiterated the general principles to be followed in determining whether a worker’s injury arose “out of” and in the course of employment. “The two phrases arising ‘out of’ and ‘in the course of’ employment, as used in our Workers Compensation Act, K.S.A. 44-501 et seq., have separate and distinct meanings; they are conjunctive, and each condition must exist before compensation is allowable. The phrase ‘out of’ employment points to the cause or origin of the accident and requires some causal connection between the accidental injury and the employment. An injury arises ‘out of’ employment when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury. Thus, an injury arises ‘out of’ employment if it arises out of the nature, conditions, obligations, and incidents of the employment. The phrase ‘in the course of’ employment relates to the time, place, and circumstances under which the accident occurred and means the injury happened while the worker was at work in the employer’s service. [Citations omitted.]” 258 Kan. at 278. Under the facts in the case, we hold that the Board did not err in holding that Squires’ injury did not arise “out of” his employment. Squires’ admitted that he took the 9 millimeter weapon with him only for personal reasons and knew he was not permitted to use the 9 millimeter pistol as his duty weapon and that he could not use any backup weapon. At the time he was injured he had in his possession another weapon which complied with his employer’s regulations. Possession of the 9 millimeter handgun had nothing to do with the ultimate work Squires was hired to perform. Affirmed.	[ -80, -23, -39, -99, 27, 97, 122, 32, 64, -41, 39, 83, 47, -21, 69, 107, -32, 53, 80, 105, -5, -77, 83, -53, -110, 59, -69, -44, 50, 106, -12, -44, 77, 112, 10, 85, 70, 66, -55, 88, -118, 4, -70, 105, 89, 64, 32, 46, -16, 79, 49, -98, -21, 42, 16, -61, -119, 40, 90, -84, -31, -7, -125, 13, -10, 16, -93, 4, -100, 39, -40, 43, -104, 49, 16, -24, 112, -90, -110, 52, 35, -103, -124, 99, 99, 50, 29, -19, -72, -87, 14, -34, -113, -89, -71, 88, 107, 41, -106, -99, 111, 20, 38, 124, -30, 13, 95, 108, -121, -113, -92, -79, -49, 36, -98, -29, -21, 7, -76, 113, -34, -30, 92, 5, 82, 27, -18, -48 ]
Brazil, J.; The Harvey County Board of Commissioners (County) appeals the district court’s dismissal of its petition for mandamus. The petition asked the court to order the Kansas Department of Social and Rehabilitation Services (SRS) to reimburse the County for the detention expenses of E.R., a juvenile in SRS custody. We affirm. On October 22,1993, the State filed a juvenile complaint asking the district court to adjudge E.R. a juvenile offender. On the same day, the County signed a juvenile detention temporary placement agreement with the Reno County Youth Services (RCYS) detention facility. The County signed a second such agreement on October 25, 1993. On October 26,1993, the district court held a detention hearing and found that E.R. was a danger to others and should be held in detention pending his adjudication. The court remanded E.R. to the custody of the Harvey County Sheriff for his return to RCYS. On October 28,1993, the court held a pretrial hearing and ordered that E.R. remain in detention. On. November 1, 1993, the court entered an order changing the custody of E.R. and placing him in the temporary custody of SRS. Later that same day, the County signed another juvenile detention temporary placement agreement with RCYS. E.R. remained at RCYS until November 15,1993, when SRS placed him elsewhere. RCYS subsequently sent the County a bill for the cost of E.R/s detention. RCYS charged the County $150 per day for the 14-day period between November 1 and November 15, and the County paid the charged amount. The County then requested reimbursement from SRS, but SRS refused. As grounds for its refusal, SRS cited its existing contract with RCYS, which provides that SRS shall pay $49.70 per day for detention provided to juveniles in SRS custody. Unable to secure payment from SRS, the County filed a petition for mandamus and asked the district court to order SRS to pay for E.R/s detention. The parties agreed to submit the matter on stipulated facts and their written briefs. The court dismissed the County’s petition, holding that mandamus was not an appropriate remedy because the County’s right to collect the sought amount was in substantial dispute. The court held that the issue was not whether SRS had a legal duty to pay, but rather how much SRS must pay this particular provider in this particular instance. K.S.A. 60-801 defines the nature of mandamus: “Mandamus is a proceeding to compel some inferior court, tribunal, board, or some corporation or person to perform a specified duty, which duty results from the office, trust, or official station of the party to whom the order is directed, or from operation of law.” In Long v. Board of Wyandotte County Comm’rs, 254 Kan. 207, 864 P.2d 724 (1993), the court explained when mandamus is an appropriate remedy: “ ‘ This court has consistently recognized that mandamus is a proper remedy where the essential purpose of the proceeding is to obtain an authoritative interpretation of the law for the guidance of public officials in their administration of the public business, notwithstanding the fact that another adequate remedy at law exists. [Citations omitted.] ‘. . . Issuance of the writ is discretionary with the court and a writ should not issue unless a respondent’s legal duty is clear. [Citation omitted.] Mandamus is not available to require performance of an act that involves the exercise of discretion by the public official. This court has stated that “mandamus may not be invoked to control discretion and neither does it lie to enforce a right which is in substantial dispute, and further, that resort to the remedy may be had only when the party invoking it is clearly entided to the order which he seeks.” [Citation omitted.] The only acts of public officials that the courts can control by mandamus are those strictly ministerial, meaning the public officer or agent is required to perform based upon a given set of facts, in a prescribed manner, in obedience to the mandate of legal authority, and without regard to his own judgment or opinion about the propriety or impropriety of the act to be performed. [Citation omitted.]’ State ex rel. Stephan v. Kansas Racing Comm’n, 246 Kan. 708, 716-17, 792 P.2d 971 (1990).” 254 Kan. at 211-12. SRS argues that mandamus is not an appropriate means to decide this case because its duty to pay the amount the County seeks is not clearly established. The County contends K.S.A. 38-1616 requires SRS to pay the full amount of E.R.’s detention expenses. That statute provides, in relevant part: “(a) How paid. (1) If a juvenile alleged or adjudged to be a juvenile offender is not eligible for assistance under K.S.A. 39-709 and amendments thereto, expenses for the care and custody of the juvenile shall be paid out of the general fund of the county in which the proceedings are brought.. . . “(2) When a law enforcement officer has taken a juvenile into custody as authorized by subsection (a) of K.S.A. 38-1624 and amendments thereto and delivered the juvenile to a person or facility, other than a juvenile detention facility, designated by the secretary or when custody of a juvenile is awarded to the secretary, the expenses of the care and custody of the juvenile may be paid by the secretary out of the state social welfare fund, subject to payment or reimbursement as required in subsection (b), even though the juvenile does not meet the eligibility standards of K.S.A. 39-709 and amendments thereto. “(3) When the custody of a juvenile is awarded to the secretary of social and rehabilitation services, the expenses for the care and custody of the juvenile shall not be paid out of the county general fund.” (Emphasis added.) The question is whether K.S.A. 38-1616(a)(2) clearly imposes a legal duty upon SRS to fully reimburse the County for the detention costs of E.R., a juvenile in SRS custody. If the County’s right to full reimbursement is not in substantial dispute, then mandamus is an appropriate remedy. This court recently addressed K.S.A. 38-1616(a)(2) in In re J.L., 21 Kan. App. 2d 878, 908 P.2d 629 (1995), rev. denied 259 Kan. 928 (1996). The court considered whether SRS was liable for the detention costs of J.L., a juvenile in its custody. The court focused on K.S.A. 38-1616(a)(2) and held that the statute “creates a liability for SRS” to pay for J.L.’s detention costs. 21 Kan. App. 2d at 883. The court interpreted the statute in conjunction with its earlier holding in In re C.C., 19 Kan. App. 2d 906, 878 P.2d 865, rev. denied 255 Kan. 1002 (1994). In that case, the court held that K.S.A. 38-1616(a)(2) did not require SRS to pay for the expenses and care of C.C. because C.C. was not in SRS custody. See 19 Kan. App. 2d at 910. E.R. was in SRS custody during his detention at RCYS from November 1 through November 15, the time period for which the County seeks reimbursement. According to the holding in In re J.L., K.S.A. 38-1616(a)(2) creates a liability for SRS to pay the detention costs of juveniles in its custody. Therefore, SRS has a clear legal obligation to bear the cost of E.R.’s detention. Although K.S.A. 38-1616(a)(2) requires SRS to pay the expenses of E.R.’s detention, SRS argues that it is not required to pay the amount the County seeks, $150 per day. SRS contends that pursuant to its contract with RCYS, it is only required to pay $49.70 per day for E.R.’s detention. SRS made a similar argument in In re J.L. SRS argued that it was not liable for the full cost of J.L.’s detention because “ ‘SRS’ practice of paying a less than total cost for per diem detention has been followed for many years.’ ” In re J.L., 21 Kan. App. 2d at 883. The court rejected this claim, reasoning that because K.S.A. 38-1616(a)(2) says nothing about partial payment, SRS was liable for the full amount. The court noted, however, that SRS had provided no authority in support of its claim. In contrast, in the present case SRS has a valid contract with the detention provider, RCYS. The case at bar is factually distinguishable from In re J.L. regarding whether SRS is liable for the full amount of the detention expenses. K.S.A. 38-1616(a)(2) requires SRS to pay “the expenses of the care and custody” of a juvenile in its custody. The contract between SRS and RCYS establishes a set amount of expenses for the detention of juveniles in SRS custody. Construing the statute and the contract together, one could conclude that SRS is only liable for the amount of expenses provided by its contract with RCYS. ■ The County, on the other hand, argues that the “expenses” contemplated by the statute include the actual cost of the juvenile detention, in this case $150 per day. SRS and the County stipulated that SRS had not entered into any contract with the County regarding reimbursement for detention expenses paid by the County for juveniles in SRS custody. However, K.S.A. 38-1616(b) provides for reimbursement to the County. The statute states that the district court may hold a hearing on the question of requiring reimbursement by a person who by law is liable to maintain, care for, or support the juvenile. K.S.A. 38-1616(b)(l). The statute also provides that the County may bring a separate action for reimbursement against such person. K.S.A. 38-1616(b)(3). However, the statute does not state that the County is absolutely entitled to reimbursement; that determination necessarily rests on the facts of each case. The parties have adopted differing positions regarding how much of the actual detention expenses SRS is legally obligated to pay. The viability of both positions leads to the conclusion that the County’s right to recover the full amount of the expenses is in substantial dispute. Mandamus is not an appropriate means to enforce a right which is in substantial dispute. See Long v. Board of Wyandotte County Comm’rs, 254 Kan. at 211. Rather, “before an order of mandamus may be issued it must be found that a clear legal right has been violated. . . . Mandamus lies only to enforce a right in a clear-cut case.” Lauber v. Firemen’s Relief Assn. of Salina, 195 Kan. 126, 129, 402 P.2d 817 (1965). Unless a defend ant’s legal duty is clear, the court should not issue a writ of mandamus. Huser v. Duck Creek Watershed Dist. No. 59, 234 Kan. 1, 4-5, 668 P.2d 172 (1983). Because the County’s right to recover the full amount of E.R.’s detention expenses is in substantial dispute, mandamus is not an appropriate means to resolve the issue. Cf. Huser v. Duck Creek Watershed Dist. No. 59, 234 Kan. at 3-5 (holding that because the enabling statutes did not make clear the watershed district’s duty, mandamus was not a proper remedy). Next, SRS contends that mandamus is not appropriate because an adequate remedy at law exists. As a general rule, “a writ of mandamus may not issue in any case where there is a plain and adequate remedy in the ordinary course of the law.” Gray v. Jenkins, 183 Kan. 251, 254, 326 P.2d 319 (1958). See Stephens v. Van Arsdale, 227 Kan. 676, 682, 608 P.2d 972 (1980). Our Supreme Court has, on occasion, expanded the availability of mandamus “when confronted with significant issues of statewide concern.” Stephens v. Van Arsdale, 227 Kan. at 682. “Courts will not accept jurisdiction of a mandamus action simply to give guidance to a public official or to settle disputes between public officials. It is only where an issue of law affects public officials, presents an issue of great public importance and significant State interest, and requires a speedy adjudication that mandamus is an appropriate and proper means to decide the issue.” Long v. Board of Wyandotte County Comm’rs, 254 Kan. at 212. In the present case, K.S.A. 38-1616(b) provides the County with a remedy at law. The statute states that the County may bring a separate action for reimbursement of juvenile expenses from the person responsible for the care and custody of the juvenile. K.S.A. 38-1616(b)(3). Because a remedy at law exists, mandamus is improper unless the juvenile detention cost issue is of great public importance and significant State interest. The County argues that this case presents an issue of significant statewide concern and that mandamus is proper because the detention costs dispute between SRS and county governments is of a recurring and ongoing nature, see Stephens v. Van Arsdale, 227 Kan. at 683, and also because an authoritative interpretation of Kansas law is needed to guide the parties and establish SRS’s legal duty to pay. See State ex rel. Stephan v. Parrish, 257 Kan. 294, 296, 891 P.2d 445 (1995). Although the County presents the issue as having a broad scope and far-reaching implications, it is apparent that the core of the dispute is grounded in the particular and somewhat unusual facts of this case. The controversy in this case was caused by RCYS attempting to secure payment from the wrong party; RCYS should have billed SRS instead of the County. When viewed in that light, the matter hardly seems to present an issue of significant statewide concern or great public importance. Moreover, this court’s recent decisions in In re C. C. and In re J.L. provide guidance by clarifying the obligations of SRS and the County regarding payment of juvenile detention expenses. Because SRS does not contest the validity of the court’s temporary order, we need not address the County’s discussion of K.S.A. 38-1632 and K.S.A. 38-1664(b). Affirmed.	[ -48, -24, -17, -36, 11, -63, 27, 6, 67, -77, 119, 83, -81, -50, 0, 43, 74, 103, 68, 121, -61, -77, 119, 97, -16, -5, -15, -41, -69, -49, -26, -44, 74, 112, -118, -107, 6, -64, -81, 84, -114, -127, -119, -64, 65, 10, -80, 33, 18, 10, 49, 46, -81, 40, 48, -13, 73, 36, -39, -83, -36, -29, -37, 21, 63, 7, -95, -60, 16, 5, -48, 58, -112, 61, 16, -24, 51, -74, -122, 116, 15, -103, -96, -90, 66, 2, -99, -43, -24, -83, -98, -101, -117, -90, -101, 88, 98, 13, -110, 56, 124, -108, 10, -4, -25, 4, 119, 46, -118, -50, -108, -109, -113, 36, -50, 15, -5, 1, 112, 117, -113, -74, 86, -57, 114, -109, -82, -6 ]
King, J.: Allen Baldwin is a tenured teacher in McPherson County U.S.D. No. 418. He initiated this action for injunctive relief and damages under 42 U.S.C. § 1983 (1994), alleging that the Board of Education and its members violated his due process rights by nonrenewal of his contract for the 1992-93 school year. The district court granted summary judgment to the Board and its members. Baldwin appeals. We affirm. The parties agree there are no disputed facts. The McPherson Education Association (Association) is the duly authorized bargaining agent of the professional employees in the district pursuant to K.S.A. 72-5413 et seq. In late March or early April 1992, the Association and the Board entered into negotiations concerning the terms and conditions of employment for the 1992-93 school year. Monetary issues were postponed until after the legislature acted and, therefore, were not discussed until the end of May or early June. For the 5 years prior to the 1992-93 school year, Baldwin’s individual teaching contract provided for 30 paid extended duty days in addition to the contract-designated minimum duty days. Extended duty days were considered additional work in areas related to primary teaching and were not treated as supplemental contracts. The topic of extended duty days had been on the list of items noticed for negotiation in accordance with K.S.A. 72-5423. No employee contract was terminated or nonrenewed by May 1, 1992. No employee was notified by May 1 that his or her salary might decrease by way of reduced extended duty days. On June 22, 1992, the Association and Board ratified a negotiated agreement. The agreement provided for a 5-day increase in primary duty days for all teachers with a resulting increase in overall salary. These increases were met in part by reductions in some teachers’ extended duty days. Baldwin’s extended duty days were reduced from 30 to 12. This represented a loss of salary to Baldwin of approximately $3,200. Other teachers had their individual contracts modified in some way, and others also received reductions in extended duty days. Individual teaching contracts were issued in accordance with the negotiated agreement. Baldwin signed his contract for the 1992-93 school year but attached a notice that he was reserving his statutory due process rights. The negotiated agreement contained a grievance procedure but Baldwin instead complained to the superintendent. The superintendent brought Baldwin’s concerns to the Board, which determined that the negotiated agreement was fair and chose not to change Baldwin’s contract. There is no dispute regarding the suitability of Baldwin’s claims under 42 U.S.C. § 1983. The basic elements of a § 1983 action entail a “person” acting “under color of” state law to deprive the claimant of a constitutional or federal right. Baldwin’s claims satisfy these elements. Since there are no disputed issues of fact, the only questions remaining are questions of law where this court’s review is unlimited. Memorial Hospital Ass’n, Inc. v. Knutson, 239 Kan. 663, 668, 722 P.2d 1093 (1986). “Summary judgment is proper where the only question or questions presented are questions of law.” Fletcher v. Nelson, 253 Kan. 389, 391, 855 P.2d 940 (1993). Baldwin contends that the reduction in extended duty days with resultant decrease in salary resulted in a “partial” nonrenewal of his contract. As a “nonrenewal,” Baldwin alleges that the Board and members violated K.S.A. 72-5437 by not providing him with notice of nonrenewal by May 1,1992, and that this, in turn, violated the due process procedures of K.S.A. 72-5438. Baldwin’s contentions beg the question of whether he truly had any property interest violated by K.S.A. 72-5437. Procedural due process rights are not triggered unless a property interest has been impaired. “State law rather than the United States Constitution must provide the source of this property interest.” Kosik v. Cloud-County Community College, 250 Kan. 507, 512, 827 P.2d 59 (citing Cleveland Board of Education v. Loudermill, 470 U.S. 532, 538, 84 L. Ed. 2d 494, 105 S. Ct. 1487 [1985]), cert. denied 506 U.S. 867 (1992). It is undisputed that tenured teachers in Kansas receive a property interest in continuing employment. K.S.A. 72-5410 et seq. Kansas law also specifies what process will be due if a teacher’s interest in continuing employment is impaired. K.S.A. 72-5437 et seq. K.S.A. 72-5437 provides, in relevant part: “(b) In the 1991-1992 school year, all contracts of employment of teachers .. . shall be deemed to continue for the 1992-93 school year unless written notice of termination or nonrenewal is served as provided in this subsection. Written notice to terminate a contract may be served by a board upon any teacher prior to the time the contract has been completed. In the 1991-92 school year, written notice of intention to nonrenew a contract shall be served by a board upon any teacher on or before May 1, 1992. A teacher shall give written notice to a board that the teacher does not desire continuation of a contract for the 1992-93 school year on or before May 20, 1992, or, if applicable, not later than 15 days after final action is taken by the board upon termination of professional negotiations commenced in the 1991-92 school year absent a binding agreement under article 54 of chapter 72 of Kansas Statutes Annotated, whichever is the later date. “(c) Terms of a contract may be changed at any time by mutual consent of both a teacher and a board.” K.S.A. 72-5438 provides specific procedures a board must follow whenever a teacher is given notice under K.S.A. 72-5437. The due process protections contemplated by K.S.A. 72-5438 require as a condition precedent that the teacher’s contract is terminated or nonrenewed. Unless the negotiated agreement which reduced Baldwin’s extended duly days constituted a “nonrenewal” of Baldwin’s individual contract, the due process procedures of K.S.A. 72-5438 are inapplicable, and there can be no 42 U.S.C. § 1983 action. Baldwin’s contention that the reduction of his extended duty days constituted a nonrenewal of his contract is not supported by the language of the applicable statutes or Kansas case law. Our courts have used “terminate” and “nonrenew” interchangeably but always in fact situations where a teacher’s employment was “terminated” under its common meaning. See Ottawa Education Ass'n v. U.S.D. No. 290, 233 Kan. 865, 666 P.2d 680 (1983); Gillett v. U.S.D. No. 276, 227 Kan. 71, 72, 605 P.2d 105 (1980); Loewen v. U.S.D. No. 411, 15 Kan. App. 2d 612, 813 P.2d 385 (1991). In Gillett, our Supreme Court concluded that the legislative purpose of K.S.A. 72-5436 et seq. was the same as that of the Tenure of Instructors Act (G.S. 1949, K.S.A. 72-5401 et seq.), which was repealed in 1974 and replaced by K.S.A. 72-5436 et seq. In Million v. Board of Education, 181 Kan. 230, Syl. ¶ 1,310 P.2d 917 (1957), the court stated: “The evident purpose of the Tenure of Instructors Act (G.S. 1949, chapter 72, art. 54) is to protect competent and worthy instructors . . . against unjust dismissal . . . but it does not confer special privileges or immunities upon them to retain permanently their positions or salary . . . and, notwithstanding it grants tenure to those who have taught the requisite period, it nonetheless empowers Boards of Education to discharge them for just cause in an orderly manner by the procedures specified.” (Emphasis added.) In Gillett, the court went on to state: “The purpose of the due process hearing granted a teacher by statute is to develop the grounds that have induced the board to give the teacher notice of its desire to discontinue her services, and to afford the teacher an opportunity to test the good faith and sufficiency of the notice.” (Emphasis added.) 227 Kan. at 78. This court in Thompson v. U.S.D. No. 259, 16 Kan. App. 2d 42, 45, 819 P.2d 1236 (1991), held that K.S.A. 72-5411 and K.S.A. 72-5437 “unambiguously state they apply to teacher terminations.” (Emphasis omitted.) In Thompson, a tenured teacher received notice of a layoff in accordance with a negotiated agreement. The negotiated agreement provided that a layoff should not be considered a termination or nonrenewal under K.S.A. 72-5437. The teacher argued that the negotiated agreement violated notice provisions of K.S.A. 72-5437 and his Fourteenth Amendment due process rights. 16 Kan. App. 2d at 43. This court held that the statutes were not applicable to layoffs and Thompson was bound by the negotiated agreement. 16 Kan. App. 2d at 48. In short, no Kansas case has interpreted “nonrenew,” as used in K.S.A. 72-5437, to include merely a change in contract terms in a negotiated agreement. Kansas statutes relating to teachers’ contracts are divided into 3 subsections: Continuing Contract Law, K.S.A. 72-5410 et seq.; Professional Negotiations, K.S.A. 72-5413 et seq., and Due Process Procedure, Contract Termination, K.S.A. 72-5436 et seq. This court’s interpretation of statutes is a question of law. Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, Syl. ¶ 1, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995). K.S.A. 72-5437 states that a teacher’s contract shall continue for the next year unless written notice of “termination or nonrenewal” is given. Under the plain language of the statute, the distinction between a “termination” and a “nonrenewal” is that the former applies where a teacher’s employment is ended prior to the completion of the contract term during the school year, and the latter applies where the teacher’s employment is ended at the conclusion of the school year when the contract expires. In either case, the terms contemplate severance of the employment relation. There is nothing in the language of the statute that would support an interpretation of the term “nonrenew” to mean a change in the terms of the contract as Baldwin proposes. We conclude the purpose of 72-5436 et seq. is to protect the basic employment of a tenured teacher and that it does not contemplate notice and full evidentiary due process rights for a teacher whose individual contract is merely modified through a collective negotiated agreement. Any other interpretation of K.S.A. 72-5436 et seq. would conflict with K.S.A. 72-5410 et seq. and K.S.A. 72-5413 et seq. Nothing in the Continuing Contract Law, K.S.A. 72-5410 et seq., would suggest that a change in terms or conditions of professional service constitutes a nonrenewal of an existing contract. The Continuing Contract Law provides for the continuation of a teacher’s contract absent “termination” or a binding negotiated agreement. K.S.A. 72-5411 contains language similar to K.S.A. 72-5437; however, where K.S.A. 72-5437 contemplates the possibility of a “termination” mid-year, K.S.A. 72-5411 covers only contracts continued in full force absent a “termination” of a teacher’s contract for the next year or a binding negotiated agreement. Nothing in the Professional Negotiations subsection suggests that a change in terms or conditions of professional service constitutes a nonrenewal of an existing contract. The Professional Negotiations subsection sets out the ability of a duly recognized bargaining agent to negotiate certain “terms and conditions” of professional service with a board that will become binding on all teachers after a majority vote and ratification by the board. “Notices to negotiate on new items or to amend an existing contract must be filed on or before February 1 in any school year by either party.” (Emphasis added.) K.S.A. 72-5423(a). If negotiations should stall, impasse procedures are outlined. See K.S.A. 72-5426. The statutory impasse date is June 1 in the current school year, well after any notice of nonrenewal is due tenured teachers. K.S.A. 72-5413(n). K.S.A. 72-5436 et seq. clearly comes into consideration only when a board severs an employment relation with a teacher, thereby affecting the teacher s property interest in continued employment. The statute provides that terms of a contract can be changed at any time by mutual consent. K.S.A. 72-5411(c); K.S.A. 72-5437(c). The means of changing terms of a contract by mutual consent are spelled out in the Professional Negotiations subsection. In this case, the Board and the Association bargained to change the terms and conditions of all teacher contracts. The resulting agreement was ratified, becoming binding on all professionals in the bargaining unit. The negotiated agreement became incorporated into individual teacher contracts and, thus, became the contract that is subject to the Continuing Contract Law. Affirmed.	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Royse, J.: Charles W. McMillin and Debra Sue Brower were charged with a variety of drug offenses after a police dog “alerted” on McMillin’s automobile. The district court held the dog sniff of the vehicle was an unconstitutional search and seizure and suppressed the evidence of drugs. The State appeals pursuant to K.S.A. 22-3603. The undisputed facts maybe summarized as follows: On January 14, 1996, Deputy Jackson noticed a white Buick bearing Arizona license plates in the parking lot of a Motel 6 in Salina. The car belonged to Charles W. McMillin, who had rented a room at the motel. Deputy Jackson noticed loose clothing in the back seat of the vehicle and several fast food wrappers lying on the floorboard of the car. Deputy Jackson contacted Officer Cox and asked Cox to bring a narcotics dog to check the exterior of the car. A few hours later, Officer Cox arrived and walked a trained narcotics dog around McMillin’s car. The dog “alerted” behind the driver’s side rear door. After determining that the car belonged to McMillin, the officers contacted McMillin and obtained permission to search his car and his motel room. In the car trunk the officers found a duffel bag containing 30 pounds of marijuana. In the motel room Deputy Jackson found several marijuana buds and a marijuana smoking pipe. McMillin told the officers the marijuana and the paraphernalia belonged to him, that he had paid $10,000 for the marijuana and still owed $7,000 for it, and that he intended to deliver the drugs to friends. The officers also spoke with Debra Brower, who was sharing McMillin’s motel room. She admitted she was aware of the marijuana in the motel room, but denied any knowledge of the marijuana found in the car. The State charged McMillin with possession of marijuana with intent to sell, possession of marijuana without tax stamps affixed, and possession of cocaine. In addition, McMillin and Brower were each charged on misdemeanor counts of possession of marijuana and possession of paraphernalia. After a hearing, the district court granted the defendants’ motions to suppress evidence and ruled that the actions of the officers constituted an unreasonable search and seizure contrary to the United States and Kansas Constitutions. “When the facts material to a decision of the court on a motion to suppress evidence are not in dispute, the question of whether to suppress becomes a question of law. An appellate court’s scope of review on questions of law is unlimited.” State v. Anderson, 259 Kan. 16, Syl. ¶ 2, 910 P.2d 180 (1996). Section 15 of the Bill of Rights of the Kansas Constitution is identical in scope to the Fourth Amendment to the United States Constitution. Both prohibit unreasonable searches and seizures of persons and property. City of Overland Park v. Niewald, 20 Kan. App. 2d 909, 911, 893 P.2d 848, aff’d as modified 258 Kan. 679, 907 P.2d 885 (1995). The district court held the officers’ actions constituted an unreasonable search and seizure because the officers possessed no “sensible,, articulable reason” to engage a narcotics dog in a sniff of the exterior of McMillin’s vehicle. The threshold issue in this case is whether the dog sniff of McMillin’s vehicle amounted to a search or seizure as contemplated by the Constitutions. “A search occurs when a reasonable expectation of privacy is infringed upon, while a seizure of property occurs when there is some meaningful interference with an individual’s possessory interests in that property.” State v. Daly, 14 Kan. App. 2d 310, Syl. ¶ 5, 789 P.2d 1203, rev. denied 246 Kan. 769 (1990). Both the United States Supreme Court and the Kansas Supreme Court have held the use of a narcotics dog does not constitute a search within the meaning of the Fourth Amendment. In United States v. Place, 462 U.S. 696, 77 L. Ed. 2d 110, 103 S. Ct. 2637 (1983), the Supreme Court held the use of a narcotics drug to sniff defendant’s luggage at an airport did not constitute a “search” within the meaning of the Fourth Amendment. In explaining its holding, the Court stated: “A ‘canine sniff’ by a well-trained narcotics detection dog, however, does not require opening the luggage. It does not expose noncontraband items that otherwise would remain hidden from public view, as does, for example, an officer’s rummaging through the contents of the luggage. Thus, the manner in which information is obtained through this investigative technique is much less intrusive than a typical search. Moreover, the sniff discloses only the presence or absence of narcotics, a contraband item. Thus, despite the fact that the sniff tells the authorities something about the contents of the luggage, the information obtained is limited. This limited disclosure also ensures that the owner of the property is not subjected to the embarrassment and inconvenience entailed in less discriminate and more intrusive investigative methods. “In these respects, the canine sniff is sui generis. We are aware of no other investigative procedure that is so limited both in the manner in which the information is obtained and in the content of the information revealed by the procedure. Therefore, we conclude that the particular course of investigation that the agents intended to pursue here — exposure of respondent’s luggage, which was located in a public place, to a trained canine — did not constitute a ‘search’ within the meaning of the Fourth Amendment.” 462 U.S. at 707. In State v. Barker, 252 Kan. 949, 850 P.2d 885 (1993), the Kansas Supreme Court considered the constitutionality of a dog sniff conducted while an automobile was stopped in a traffic checldane. One officer conducted a preliminary breath test of the defendant, while another officer walked a narcotics dog around the defendant’s car. The dog “alerted” and the police recovered marijuana from the car. The Kansas Supreme Court concluded: “There is ample support for concluding that a drug dog’s sniff of the exterior of a vehicle is not a search for the purposes of the Fourth Amendment.” 252 Kan. at 957. The appellees argue Place and Barker are distinguishable because the holdings in those cases were “made in the context of a dog sniff while the defendant was lawfully detained.” McMillan and Brower point out that in this case the police did not detain them in order to obtain the dog sniff of the car. This argument is not persuasive. Appellees’ argument confuses search and seizure issues and misconstrues the holdings in Place and Barker. As the 10th Circuit explained in U.S. v. Morales-Zamora, 914 F.2d 200, 204 (10th Cir. 1990): “Place analyzed whether a canine sniff was a ‘search’ independently from the question of whether the detention of the luggage based on reasonable suspicion was justifiable under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). It was only after the Court found that a canine sniff was not a search, that the Court turned its attention to whether the 90-minute seizure of the luggage based on reasonable suspicion of drug-related activity satisfied Terry.” Similarly, in Barker the court noted that a dog sniff is not a search before it addressed the defendant’s contention that the duration of his detention exceeded its lawful scope. In other words, Place and Barker treat the dog sniff and the seizure issues separately; they do not require that police detain a defendant before conducting a legitimate dog sniff. McMillin also argues that Place is distinguishable because the search here occurred in the parking lot of a motel where he had rented a room. He claims he had a legitimate expectation of pri vacy, although it is not clear whether he claims an expectation of privácy in the parking lot or in his car. In either event, his argument is without merit. The Supreme Court addressed a similar privacy claim in State v. Berry, 223 Kan. 102, 573 P.2d 584 (1977). In Berry, police officers saw a woman leave a motel room, walk to a bush growing 4 to 5 feet from the door, and remove a plastic bag. She later replaced the bag in the bush. After she left the premises, the officers examined the contents of the bag and saw a dark green substance and several colored knotted balloons. The officers later saw the woman repeat her movements: leave the motel room, take something from the bush, and return to her motel room. The officers executed a search warrant on the motel room and recovered balloons containing heroin, large amounts of cash, and certain paraphernalia used to mix and package heroin. They also took possession of the items remaining in the bush. Berry was arrested at that time. Berry argued the evidence removed from the bush should be suppressed, because the bush was part of the curtilage of the motel room. The Supreme Court rejected his argument: “The bush from which the evidence was removed was a part of the general landscaping of the motel complex and was not under the control of the defendant by reason of his occupancy of room 196. The bush was open to public view and access and the defendant had no basis for any reasonable expectation of privacy in the bush and the removal of the contents by the officers did not constitute an illegal search under any theory of the appellant.” 223 Kan. at 106. To paraphrase Berry, the parking lot where McMillin left his car was part of the motel complex. It did not come under his control by virtue of his occupancy of his room. The parking lot was open to public view, and McMillin certainly had no authority to exclude others from the lot. McMillin had no basis for any reasonable expectation of privacy in the parking lot. McMillin seeks to avoid the implications of Berry by pointing out that the police searched his privately owned vehicle, not a part of the motel landscape. This contention is also unavailing. The record in this case shows that the police conducted an exterior dog sniff of the car. Both the United States Supreme Court and the Kansas Supreme Court have concluded an individual has no reasonable expectation of privacy in the exterior of a car parked in a public lot. Cardwell v. Lewis, 417 U.S. 583, 591, 41 L. Ed. 2d 325, 94 S. Ct. 2464 (1974); State v. Skelton, 247 Kan. 34, 46, 795 P.2d 349 (1990); see also U.S. v. Morales-Zamora, 914 F.2d at 205 (reasonable expectation of privacy does not extend to airspace containing incriminating odor of narcotics which surrounds vehicle). For all the foregoing reasons, the dog sniff of McMilliris car did not constitute a search as contemplated by the Constitutions. Nor is there any basis for concluding that the dog sniff of McMillin’s car amounted to a seizure under the Constitutions. A seizure of property occurs when there is some meaningful interference with an individual’s possessory interests in that property. Daly, 14 Kan. App. 2d at 317. In Daly, the court concluded Daly’s possessory interests in a package were minimal because Daly had surrendered control of the item to Federal Express, a common carrier. Moreover, the officer’s actions in that case caused no significant delay in delivery of the package or infringement on travel interests. 14 Kan. App. 2d at 319. In this case, the dog sniff of McMillin’s car did not interfere with his possessory interests. The officers walked a drug dog around the outside of the car. They did not intrude into the interior of the car or deprive McMillin of his possession or use of the car while walking the drug dog around the car. They conducted their search of the interior of the car only after McMillin voluntarily handed the keys of the car to Deputy Jackson. Because the dog sniff of the vehicle did not cause meaningful interference with McMillin’s possessory interests, it was not a seizure as contemplated by the Constitutions. Because the dog sniff did not constitute a search or a seizure, the officers were not required to show reasonable suspicion before conducting the dog sniff of McMillin’s vehicle. See U.S. v. Germosen-Garcia, 712 F. Supp. 862 (D. Kan. 1989); Daly, 14 Kan. App. 2d at 319. Reversed and remanded for further proceedings.	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Elliott, J.: Miles Excavating, Inc., (Miles) sued Rutledge Backhoe and Septic Tank Services, Inc., (Rutledge) for breach of contract and fraud or fraud in the inducement of a release agreement. The trial court granted Rutledge’s motion to dismiss for failure to state a claim and denied Miles’ request to file an amended petition. We reverse and remand. The petition made the following allegations: Miles and Rutledge agreed to provide services on a project for Terracon Environmental, Inc., (Terracon) at the McCormick Distillery. Miles and Rutledge agreed to share profits equally. Upon completion of the project, Rutledge submitted two notices to Terracon. When Rutledge received payment on the first invoice, it paid Miles its share of the profits and required Miles to execute a release acknowledging payment in full. Rutledge did not inform Miles of the second invoice or that it expected to receive additional monies from the project. A few days after Miles executed the release, Rutledge received an additional $185,250 for the project. Not surprisingly, Rutledge refused to pay Miles any portion of the monies received from the second invoice. In its motion to dismiss, Rutledge argued that Miles admitted executing the release which contained the following language: “[Tjhis Release is not executed in reliance upon any statement or representation made by the party or parties hereby released.” Miles responded it should be allowed to present evidence of the alleged fraud and that the parol evidence rule does not exclude that evidence where the contract was induced by fraud. Our standard of review is to determine whether the facts pled, viewed in a light most favorable to plaintiff, state any valid claim for relief. We accept plaintiff’s version of the facts and any reasonable inferences which may be drawn from them, and must resolve any doubts in plaintiff’s favor. Dismissal is proper only if the allegations in the petition clearly show plaintiff has no claim. Blevins v. Board of Douglas County Comm’rs, 251 Kan. 374, 381, 834 P.2d 1344 (1992). In dismissing, the trial court ruled the release covered all claims arising out of the McCormick Distillery project and also ruled that parol evidence could not be used to vary the terms of the release agreement. The parties agree that Kansas law applies. In Stegman v. Professional & Business Men’s Life Ins. Co., 173 Kan. 744, 751, 252 P.2d 1074 (1953), the Supreme Court held that parol evidence is permitted where a contract is procured or induced by fraud, explaining that “[fjraud vitiates whatever it touches including final judgments and final orders as well as contracts.” See also Griesa v. Thomas, 99 Kan. 335, 339-41, 161 Pac. 670 (1916) (parol evidence rule not applicable where fraud pled and proved); Hart v. Haynes, 96 Kan. 262, Syl. ¶ 2, 150 Pac. 530 (1915). The twist in the present case is the clause in the release stating that Miles did not rely on any representations of Rutledge. No Kansas case has directly addressed the issue of the effect of such a clause, but “the rule supported generally is that a provision in a written contract expressly excluding from consideration representations not included in the written contract does not prevent proof of parol representations which amount to fraud in the inducement of the contract.” 37 Am. Jur. 2d, Fraud & Deceit § 452; see Annot., 56 A.L.R. 13, 56. Oak Industries, Inc. v. Foxboro Co., 596 F. Supp. 601 (S.D. Cal. 1984), involved similar, if not identical, arguments to the ones made in the present case. There, the court allowed parol evidence to show fraud in the inducement of a contract even where the contract had a provision that no oral representation had been made. The court reasoned that extrinsic evidence of fraud does not contradict or vary the terms of the written contract — it merely shows that no binding contract was ever made. Further, the parol evidence rule should never be used to shield fraud. 596 F. Supp. at 607-08. Rutledge’s reliance on Edwards v. Phillips Petroleum Co., 187 Kan. 656, 360 P.2d 23 (1961), and Kelly v. Tillotson-Pearson, Inc., 840 F. Supp. 935 (D.R.I. 1994), is misplaced. Both cases are distinguishable, since both cases involved disclaimers specific to the matter about which the plaintiffs claimed to have been defrauded. See 840 F. Supp. at 939-42; 187 Kan. at 658, 662. Further, the parol evidence rule is not violated when the evidence tends to show the relation of the parties and the circumstances under which the contract was executed. See In re Estate of Goff, 191 Kan. 17, 29, 379 P.2d 225 (1963). We hold that parol evidence is admissible to show fraud in the inducement of a contract even where the contract contains a provision stating the parties have not relied on any representations other than those contained in the writing. Accordingly, the trial court erred in ruling Miles’ petition failed to state a claim. Because of our holding on the dismissal ruling, we need not address the issue concerning Miles’ request to file an amended petition. Reversed and remanded for further proceedings.	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Rulon, J.: Appellant James McGinnis appeals from the district court’s order terminating his parental rights as the alleged father of A.N.P. We affirm. A detailed statement of the facts is not needed for us to resolve the paramount issue raised in this appeal. Facts necessary to our decision are found in our following discussion. SUBJECT MATTER JURISDICTION In his first argument on appeal, McGinnis contends the district court lacked subject matter jurisdiction over him because he was not a “parent” as defined under the Kansas Code for Care of Children (KCCC), K.S.A. 38-1501 et seq. McGinnis relies on various provisions in the KCCC and the Kansas Parentage Act (KPA), K.S.A. 38-1110 et seq. First, we must consider and construe various provisions of the KCCC. “Interpretation of a statute is a question of law and subject to unlimited review by the appellate courts.” In re Guardianship & Conservatorship of Heck, 22 Kan. App. 2d 135, Syl. ¶ 1, 913 P.2d 213 (1996). The various principles of statutory construction were discussed by this court recently in In re J.A.C., 22 Kan. App. 2d 96, 911 P.2d 825 (1996). The primary rule of statutory construction is that the intent of the legislature governs if such intent can be determined. 22 Kan. App. 2d at 101. However, when a statute is not ambiguous, “ ‘the court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be.’ [Citation omitted.]” 22 Kan. App. 2d at 101. The parameters of the district court’s jurisdiction under the KCCC are set forth in K.S.A. 38-1503. Under that statute, district courts are given original jurisdiction, subject to the Indian Child Welfare Act and the Uniform Child Custody Jurisdiction Act (UCCJA), “to receive and determine proceedings under this code.” K.S.A. 38-1503(b). Proceedings under the Code include any matter “concerning any child who appears to be a child in need of care.” K.S.A. 38-1503(a). Under K.S.A. 38-1503, the district court’s subject matter jurisdiction in child in need of care (CINC) cases is based upon the presence of the child in Kansas — i.e., jurisdiction under the UCCJA — and the status of the child as one who appears to be a child in need of care. The status and identity of the parents is not relevant to the court’s subject matter jurisdiction. There is no dispute in this case that A.N.P. was bom at Bethany Medical Center in Kansas City, Kansas, shortly before the CINC petition was filed and that, based upon the presence of cocaine in her system at the time of birth, she appeared to be a child in need of care. Consequently, under K.S.A. 38-1503, the district court had subject matter jurisdiction over A.N.P.’s proceeding until such proceeding was terminated under K.S.A. 38-1503(c) or (d). To some extent, McGinnis’ jurisdiction arguments are similar to those earlier rejected by this court. In In re Guardianship & Conservatorship of Heck, 22 Kan. App. 2d 135, the heir of a conservatee alleged the district court lacked subject matter jurisdiction in a guardianship case because the conservatee died prior to the issuance of letters of conservatorship and the posting of the bond by the conservator. In Heck, we noted the court’s subject matter jurisdiction, as set forth by statute, depended solely on the presence or residence of the proposed conservatee, and once jurisdiction was properly invoked, the court’s jurisdiction continued until terminated as provided by the statutes. 22 Kan. App. 2d at 139-40. As in Heck, McGinnis’ arguments are more properly treated as a challenge to the district court’s authority under the KCCC rather than a challenge to its subject matter jurisdiction. Cf. In re Guardianship & Conservatorship of Heck, 22 Kan. App. 2d at 142. In this regard, McGinnis’ arguments are construed as contending that the district court did not have the authority to terminate the parental rights of fathers in CINC proceedings unless paternity is presumed, proven, or unchallenged. In his argument, McGinnis cites to the definition of “parent” in the KCCC. The definition statute provides, in relevant part, as follows: “As used in this code, unless the context otherwise indicates: “(d) ‘Parent,’ when used in relation to a child or children, includes a guardian, conservator and every person who is by law liable to maintain, care for or support the child.” (Emphasis added.) K.S.A. 1996 Supp. 38-1502. McGinnis argues that unless he is the presumed father under K.S.A. 1996 Supp. 38-1114 or his paternity is actually determined under the KPA, he has no legal obligation toward A.N.P. Mc-Ginnis claims he is not a “parent” and the district court has no power to terminate any rights he may or may not have with respect to A.N.P. The definition of “parent” in the KCCC is ambiguous and does not specifically require an actual determination of paternity. The entire Act speaks broadly of “parents.” If only presumed or determined fathers are “parents” under the KCCC, then unknown fathers and alleged but unproven fathers would not have to be named in the CINC pleadings, K.S.A. 38-1531(b)(l)(B); would not receive summons notifying them of the action, K.S.A. 38-1532(a) and K.S.A. 38-1533(a); and would not be entitled to appointed counsel, K.S.A. 38-1505(b). Narrowly interpreting “parent” under the KCCC to include only admitted, proven, or presumptive fathers would undermine the purpose of the Code by unduly limiting the State’s power when dealing with children with unknown or uncertain paternity. However, the narrow definition of “parent” proposed by McGinnis would, in fact, preclude a court from fully handling the care of all children whose fathers are unknown or uncertain. We are convinced the Kansas Legislature intended to include alleged, nonpresumptive fathers as “parents” under the KCCC. A strong indicator of the legislature’s intent is the KCCC’s statutory provision dealing with parentage issues. Under K.S.A. 38-1516(a) and (b), if a parentage issue arises prior to a CINC adjudication, the court may require the pleadings to be amended to name an additional party and/or for service of process to be made on an additional party. That statute additionally provides: “If it appears that there is a dispute regarding parentage which should be adjudicated, the court shall stay child support proceedings, if any are pending in the case, with respect to that alleged parent and child relationship until the dispute is resolved by agreement, by a separate action under the Kansas parentage act, or otherwise. Nothing in this subsection shall be construed to limit the power of the court to carry out the purposes of the Kansas code for care of children.” (Emphasis added.) K.S.A. 38-1516(e). One of the purposes of the KCCC is to have all CINC proceedings “disposed of without unnecessary delay.” K.S.A. 38-1551(a). “ ‘ “In order to ascertain the legislative intent, courts are not permitted to consider only a certain isolated part or parts of an act, but are required to consider and construe together all parts thereof in pari materia. When the interpretation of some one section of an act according to the exact and literal import of its words would contravene the manifest purpose of the legislature, the entire act should be construed according to its spirit and reason, disregarding so far as may be necessary the strict letter of the law.” ’ [Citation omitted.]” In re J.A.C., 22 Kan. App. 2d at 101. McGinnis argues that interpreting the KCCC to give the district court authority over alleged (but unproven) fathers would be a statutory construction which would lead to “ uncertainty, injustice or confusion.’ ” See Coe v. Security National Ins. Co., 228 Kan. 624, Syl. ¶ 2, 620 P.2d 1108 (1980). McGinnis argues the child will be penalized because she will never know who her true father is, citing Jensen v. Runft, 252 Kan. 76, 843 P.2d 191 (1992). In Jensen, however, the issue was focused on whether it was in the best interests of the child to order paternity testing. 252 Kan. at 79-80. Here, A.N.P.’s guardian ad litem did not object to testing, but did not request such testing. Clearly, if a guardian ad litem believes it is in the child’s best interests to verify the identity of his/her father, the guardian ad litem can seek a determination of paternity. McGinnis further argues that the best interests of the State are served by requiring a paternity determination because the State can then seek child support from the proven father. This argument fails, however, in this case because the State made it clear at the initial CINC hearing that the State intended to request termination of all parental rights in conjunction with the CINC proceeding as permitted by K.S.A. 38-1581(a). McGinnis additionally argues that broadly reading “parent” to include alleged fathers was unfair to putative fathers who are at risk of ignoring their own child or accepting responsibility for another man’s child. As we understand, McGinnis argues the district court’s interpretation of the statute deprives him of rights he may have to A.N.P. because he has insufficient funds for paternity testing. These arguments are devoid of legal merit. Nothing in the KCCC precludes an alleged father from initiating an action under the KPA to prove or disprove his parentage in order to decide what course of action he wishes to take in the CINC proceeding. Under the KPA, the district court “shall order the mother, child and alleged father to submit to genetic tests” whenever paternity of the child is in issue. K.S.A. 1996 Supp. 38-1118. The KPA further gives the district court the power to assess such costs among the parties or “order the proportion of any indigent party to be paid from the general fund of the county.” K.S.A. 38-1122. McGinnis’ arguments gloss over the fact that at his request, the district court ordered the parties to submit to genetic testing and directed him to arrange the same in February 1996. The court’s order required McGinnis to assume financial responsibility for the tests unless he provided additional evidence to support his unsubstantiated claim of indigency. In addition, the court continued the trial date from March to May 1, 1996. There is no dispute that at all critical times McGinnis was no longer in custody and was earning at least some wages. Instead of arranging for these tests or immediately submitting information to establish his indigency, McGinnis did nothing. He waited until the end of April, only 1 week before the trial, to again request paternity testing. In his motion, McGinnis again failed to present any evidence of indigency other than stating he was incarcerated. The court’s determination that McGinnis knowingly failed to carry out the court’s February order is supported by the record. Under the facts presented, McGinnis seeks to avoid termination of his potential parental rights and deprive SRS of the ability to find A.N.P. a permanent or long-term placement by ignoring the court’s order regarding paternity testing. Such conduct undermines the purposes of the KCCC and effectively allows an alleged father to continuously delay an ultimate adjudication and disposition of the case. Unquestionably, the district court did not err in denying Mc-Ginnis’ motion to dismiss for lack of jurisdiction. The KCCC provides the district court authority to conduct CINC proceedings and termination actions with “alleged” fathers. Such fathers who question their obligations as to these troubled children would have the opportunity to use the KPA to seek paternity testing and, if in digency is established, request the court to assess the costs of the testing against a governmental fund. Clearly, the rights of-the alleged father are protected, and the interests of the State and the child in prompt CINC proceedings are likewise protected. SUBSTANTIAL COMPETENT EVIDENCE Next, McGinnis contends the State failed to prove the allegations in the petition requesting termination of his parental rights. We firmly disagree. The standard of review in a case involving the termination of parental rights is whether there is substantial competent evidence in the record to support the trial court’s decision that the parent was unfit and that the parental rights- should be terminated. In re S.M.Q., 247 Kan. 231, 240, 796 P.2d 543 (1990). Although the State has the burden to prove “unfitness” by clear and convincing evidence before the district court, the clear and convincing standard does not affect this court’s scope of review. 247 Kan. at 238, 240. This court cannot reweigh the evidence, substitute its evaluation of the evidence for that of the trial court, or pass upon the credibility of the witnesses. This court must review the evidence in the light most favorable to the party prevailing below. 247 Kan. at 234; In re T.D.W., 18 Kan. App. 2d 286, 289-90, 850 P.2d 947 (1993). The parent must be found “unfit” by the trial court before parental rights may be severed. K.S.A. 1996 Supp. 38-1583(a); In re M.M., 19 Kan. App. 2d 600, 607, 873 P.2d 1371 (1994). “ The term “unfit” is defined to include inherent mental and emotional incapacity to perform parental obligations which can constitute such breach of parental duty as to make the parents unfit to be entrusted with custody of their child.’ [Citation omitted.]” In re N.D.G., 20 Kan. App. 2d 17, 21, 883 P.2d 89, rev. denied 256 Kan. 995 (1994). Here, the district court found that McGinnis’ conduct supported termination of any parental rights he might have under K. S. A. 1996 Supp. 38-1583(b)(4), (7), and (8) and K.S.A. 1996 Supp. 38-1583(c)(l)-(4). The court based these findings on McGinnis’ failure to verify his parental status, his incarceration, and his failure to exercise visitation while he was released from jail. The court additionally found there was no evidence that McGinnis had attempted to learn parenting skills while incarcerated. McGinnis does not directly contradict the court’s findings about these factors. Consequently, this issue is summarily affirmed. Affirmed.	[ -112, -32, -3, 124, 11, 97, -86, 48, 75, -13, 101, -45, -17, -50, 21, 121, -54, 43, -48, 105, -47, -73, 79, -63, -10, -13, -45, -33, -78, 89, 109, -34, 8, -16, -54, 85, 66, 11, -107, -98, -114, 11, -88, -55, 80, -58, 44, 107, 26, 15, 113, -97, -77, 58, 25, -29, -23, 42, 91, -68, 9, 88, -117, 21, 94, 22, -79, 36, -108, 103, 80, 38, -112, 56, 32, -20, -45, -108, -106, -28, 79, -119, -87, 116, 103, 33, 8, -26, 121, -103, 46, 31, -67, -26, -101, 88, 97, 5, -105, -99, 125, 20, 14, 120, -26, -123, 22, 124, -125, -117, 82, -111, -113, 57, -118, 19, -57, -126, 32, 49, -37, -74, 93, -61, 58, -37, -66, -40 ]
Royse, J.: This is a workers compensation case. Michael K. McIntyre appeals from the decision of the Workers Compensation Board (Board) which dismissed his application for review as untimely. Michael K. McIntyre worked for A.L. Abercrombie, Inc., as a truck driver and swamper. His primary activity was moving oil rigs. The parties stipulated that on June 30, 1991, McIntyre sustained a compensable injury. His left calf was crushed by a 5,000-pound swivel, which was being loaded on a hoist. The injury required McIntyre to undergo several surgeries. McIntyre claimed that, as a consequence of the injury to his left leg, he began experiencing pain in his low back. He sought an award based on a general body disability. The administrative law judge (ALJ) determined McIntyre had failed to prove anything more than a scheduled injury to his left leg. The ALJ entered an award dated April 28, 1995, for a scheduled injury based on 35% permanent partial loss of the use of the left leg. McIntyre filed an application for review by the Board. The Board dismissed the application as not timely filed. The sole issue in this case is whether the Board correctly determined that McIntyre’s application for review was untimely filed. Resolution of this issue requires interpretation of statutes involving review of compensation awards and computation of time periods. Interpretation of a statute is a question of law subject to unlimited review by an appellate court. Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, Syl. ¶ 1, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995). The parties’ positions may be summarized as follows: The Board says K.S.A. 44-551 and K.A.R. 51-18-2 provide a 10-day period for filing an application for review of a workers compensation award. The Board says the time period began running on April 29, 1995, and ended on May 9, 1995. Thus, the Board concludes an application for review filed on May 10, 1995, is untimely. McIntyre says the 10 days allowed under 44-551 must be counted according to the method set forth in K.S.A. 60-205(a). McIntyre says the time period began running on April 29, 1995, and ended on May 12, 1995. Thus, McIntyre concludes an application filed on May 10, 1995, was timely. K.S.A. 44-551(b)(l) provides for Board review of ALJ decisions as follows: “All acts, findings, awards, decisions, rulings or modifications of findings or awards made by an administrative law judge shall be subject to review by the board upon written request of any interested party within 10 days and if no such request is made, then the board shall approve such actions, findings, awards, decisions, rulings or modifications of findings or awards of the administrative law judge.” K.A.R. 51-18-2 reiterates the effective date for ALJ awards set forth in K.S.A. 44-525(a) and the 10-day period for requesting review contained in 44-551: “The effective date of the administrative law judges’ acts, findings, awards, decisions, rulings, or modifications, for review purposes, shall be the day following the date noted thereon by the administrative law judge. “Application for review shall only be considered as timely filed if received in the central office or one of the district offices of the Director on or before the tenth day after the effective date of the act of an administrative law judge.” K.S.A. 60-206(a) provides: “In computing any period of time prescribed or allowed by this chapter, by the local rules of any district court, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period is to be included, unless it is a Saturday, Sunday or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday or a legal holiday. When the period of time prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays and legal holidays shall be excluded in the computation. A half holiday shall be considered as other days and not as a holiday. ‘Legal holiday includes any day designated as a holiday by the congress of the United States, or by the legislature of this state. When an act is to be performed within any prescribed time under any law of this state, or any rule or regulation lawfully promulgated thereunder, and the method for computing such time is not otherwise specifically provided, the method prescribed herein shall apply.” “It is the function of a court to interpret a statute to give it the effect intended by the legislature.” In re Tax Exemption Application of City of Wichita, 255 Kan. 838, Syl. ¶ 6,877 P.2d 437 (1994). “When a statute is clear and unambiguous, the court must give effect to the statute as written, and there is no need to resort to statutory construction.” State v. Sodders, 255 Kan. 79, Syl. ¶ 4,872 P.2d 736 (1994)! By its plain terms, the method for computing time established in 60-206(a) applies to acts which must be performed within a statutorily prescribed time limit. K.S.A. 44-551 contains such a prescribed time limit: requests for review must be filed within 10 days of the award. Therefore, under the plain language of the statute, the computation method set forth in 60-206(a) applies .in calculating the 44-551 10-day limit for filing a request for review. The Supreme Court recently applied the method of computing time set forth in 60-206(a) to the time limit established in K.S.A. 38-1682 for the prosecution to file an appeal in a juvenile pro ceeding. In re J.D.B., 259 Kan. 872, 875-76, 915 P.2d 69 (1996). The court reasoned: “K.S.A. 60-206(a) provides that in the computation of any time prescribed by statute, the day from which the time begins to run shall not be included. The last day of the prescribed period shall be included, unless it is a Saturday, Sunday or legal holiday, in which case the time runs to the next business day. In addition, where the time prescribed is less than 11 days, intermediate Saturdays, Sundays, and legal holidays are excluded from the computation.” (Emphasis added.) 259 Kan. 872, Syl. ¶ 3. The Board argues that 60-206(a) is a part of the Code of Civil Procedure and has been applied primarily in chapter 60 actions. There is no question that 60-206(a) applies in civil actions. See State v. Johnson, 19 Kan. App. 2d 315, 868 P.2d 555 (1994) (applied to compute statute of limitations); Marinhagen v. Boster, Inc., 17 Kan. App. 2d 532, 840 P.2d 534 (1992), rev. denied 252 Kan. 1092 (1993) (applied to compute time for filing motion to alter or amend); Cook v. Freeman, 16 Kan. App. 2d 555, 825 P.2d 1185, rev. denied 250 Kan. 804 (1992) (applied to motion to obtain extension of time for service); Munkers v. Pomerenke, 11 Kan. App. 2d 569, 730 P.2d 360 (1986) (applied in calculating time to respond to motion for summary judgment). But the application of 60-206(a) is not limited to civil actions. The computation method set forth in 60-206(a) has been held applicable to a prosecutor’s appeal in a juvenile proceeding, In re J.D.B., 259 Kan. 872; to an appeal from the district court’s refusal to modify sentence in a criminal case, State v. Ji, 255 Kan. 101, 112, 872 P.2d 748 (1994); to the speedy trial provision contained in the agreement on detainers, State v. White, 234 Kan. 340, 345, 673 P.2d 1106 (1983); to administrative appeals from orders of the Board of Tax Appeals, Quivira Falls Community Ass’n v. Johnson County, 230 Kan. 350, 353, 634 P.2d 1115 (1981), and In re Tax Appeal of Newton Country Club Co., 12 Kan. App. 2d 638, 640, 753 P.2d 304, rev. denied 243 Kan. 779 (1988); to the time for designating a record on appeal, State v. Nelson, 208 Kan. 404, 406, 496 P.2d 498 (1972); and to the time for appealing a decision of a magistrate to the district court in a criminal case, State v. Wilson, 15 Kan. App. 2d 308, 311, 808 P.2d 434 (1991). By its terms, 60-206(a) applies not only to chapter 60, but to time limitations imposed by local rules, by court order, and by “any applicable statute.” This language does not restrict application of the statute to civil actions in district courts, but broadens application to any actions that involve statutorily prescribed periods of time where the “method for computing such time is not otherwise specifically provided.” K.S.A. 60-206(a). See 1 Gard’s Kansas C. Civ. Proc. 2d Annot. § 60-206, Comments (1979) (statute retains a provision, adopted in 1943, “designed to apply the time computation rule to all situations, not just chapter 60”); 1 Vernon’s Kansas C. Civ. Proc. § 60-206 (1963) ( according to last sentence of 60-206[a], method in this statute governs “[wjhen an act is to be performed within any prescribed time under any law of this state”); 4A Wright & Miller, Federal Practice and Procedure: Civil 2d § 1162 (1987). The Board also relies on the long line of cases which hold that the Workers Compensation Act is complete in itself and may not be supplemented by borrowing from the Code of Civil Procedure. See, e.g., Kissick v. Salina Manufacturing Co., Inc., 204 Kan. 849, 466 P.2d 344(1970) (no provision for dismissing appeal upon employer’s failure to pay compensation benefits); Dunn v. Kuhlman Diecasting Co., 203 Kan. 670, 455 P.2d 536 (1969) (no provision for motions for new trial or other post-judgment motions); Krueger v. Hoch, 202 Kan. 319, 447 P.2d 823 (1968) (no provision requiring employer to make compensation payments between Supreme Court decision reversing award and mandate); Clouston v. Board of Johnson County Comm’rs, 11 Kan. App. 2d 112, 715 P.2d 29 (1986) (no provision for common law action for restitution). These cases concern statutory procedures which have been omitted from the Workers Compensation Act. None of them involve a statute such as 60-206(a), which by its explicit terms is generally applicable to all statutory time limits. Finally, the Board argues that 51-18-2 provides the method for computing the 10-day period under 44-551 and, thus, 60-206(a) does not apply. The Board contends the regulation shows the time period begins to run on the day after the decision is issued and does not provide additional days for weekends or holidays. This argument has several flaws. First, the Board seems to confuse effective dates with counted days. K.A.R. 51-18-2 reiterates the definition of effective date set forth in 44-525(a). An effective date may start the time limit for filing an appeal, but it provides no indication as to which days are counted in determining whether the time limit is satisfied. For example, in Atkinson v. U.S.D. No. 383, 235 Kan. 793, 798, 684 P.2d 424 (1984), the court held the effective date of the school board’s decision to nonrenew a teacher’s contract was the day the board mailed the decision. The court applied 60-206(a), nonetheless, to determine the day after mailing the decision represented the first counted day of the period for the teacher to file an appeal. In short, 51-18-2 does not provide a method of computing the period for requesting review. Even though the day after the date noted on the decision constitutes the “effective date” of a workers compensation award and applications must be received within 10 days, 51-18-2 does not specifically provide a method for computing the 10-day period. Absent such a provision, the calculation method of 60-206 applies to determine how the days are counted between the effective date and the deadline. A second flaw with the Board’s argument is that it overlooks the limitations of administrative rules and regulations. “Administrative rules and regulations to be valid must be appropriate, reasonable and not inconsistent with the law.” Pork Motel, Corp. v. Kansas Dept. of Health & Environment, 234 Kan. 374, 379, 673 P.2d 1126 (1983). Put another way, “Administrative regulations do not supplant statutory law nor do they preempt judicial statutory construction.” In re Tax Appeal of Chief Industries, Inc., 255 Kan. 640, 650, 875 P.2d 278 (1994). The time limitation in 44-551 is a time limitation imposed by the legislature. The method for computing that time period is contained in 60-206(a), because the legislature elected not to specifically provide a different computation method in 44-551. Any construction of 51-18-2 which conflicts with the legislative decision to apply the computation method of 60-206(a) must be rejected. The Supreme Court recently addressed a problem similar to the one presented here in Jones v. Continental Can Co., 260 Kan. 547, 550, 920 P.2d 939 (1996). Jones addressed the question whether the “tihree-day mailing rule” under Supreme Court Rules 1.05(c) (1996 Kan. Ct. R. Annot. 5) and 9.04(c) (1996 Kan. Ct. R. Annot. 56) applies to an appeal from the Workers Compensation Board pursuant to 44-556(a). The court concluded the “three-day mailing rule” did not apply, reasoning that 44-556(a) imposes a 30-daytime limit for filing appeals which is a jurisdictional requirement, and that it would be improper to use court rules to expand the court’s jurisdiction. Jones is instructive in emphasizing that jurisdiction is controlled by statute and that statutory provisions for appeals take precedence over conflicting rules. The Jones decision mentions 60-206(a) in passing. The issues raised in Jones, however, did not require the court to interpret 60-206(a) or to examine the relation between 60-206(a) and 44-551. Application of 60-206(a), 44-551, and 51-18-2 results in the following chronology: Friday 4/28/95 — Date of ALJ decision Saturday 4/29/95 — Effective date of ALJ decision Sunday 4/30/95 — Sundays not counted Monday 5/01/95 — First counted day Saturday 5/06/95 — Saturdays not counted Sunday 5/07/95 — Sundays not counted Wednesday 5/10/95 — McIntyre application filed Friday 5/12/95 —Tenth counted day. For all the foregoing reasons, the Board erred in refusing to apply 60-206(a) and in dismissing McIntyre’s application for review. Reversed and remanded.	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Wahl, J.: Albert Schmitter appeals his conviction of one count of possession of cocaine in violation of K.S.A. 1994 Supp. 65-4160. He argues the court erred in denying his motion to suppress the evidence obtained during an allegedly illegal search. The parties stipulated to the facts of this case in the district court and, thus, the facts on appeal are not controverted. On October 8, 1994, two Topeka police officers assigned to the Street Crimes Action Team observed a car make a turn without using a turn signal. As their spotlight shone on the subject car, the officers could see that neither of the front shoulder straps were buckled around the front seat occupants. One of the officers approached the passenger side of the car and asked the front seat passenger, Schmitter, for identification. Schmitter handed the officer a billfold and said he did not-have any identification. He then told the officer his name. The officer next ordered Schmitter out of the car and had him spread eagle on the hood of the car. The officer then patted Schmitter down in an attempt to find some form of identification. The officer testified that he was not concerned with his safety when he conducted the pat-down. When the officer did not find any type of identification or another billfold, he asked Schmitter if he could search the inside of his pockets for identification. Schmitter consented. The officer found a small rock of what he believed to be crack cocaine in one of Schmitter’s pockets. There is no testimony about when Schmitter was placed under arrest. Prior to trial, Schmitter filed a motion to suppress. The court denied the motion, finding the search was consensual. Schmitter then agreed to waive a jury trial and submit his case to the judge based upon stipulated evidence but reserved his right to appeal the issue of the illegal search. Schmitter was subsequently found guilty of possession of an opiate or narcotic drug and sentenced to 28 months in prison. The charges for possession of drug paraphernalia and failure to wear a seat belt were dismissed without prejudice. Because the instant case was decided on stipulated facts, this court exercises de novo review. State v. Mendoza, 20 Kan. App. 2d 541, 542, 889 P.2d 1147, rev. denied 257 Kan. 1095 (1995). Schmitter’s first argument is that because the officer never feared for his safety, he was not legally permitted to perform the pat-down search. The State counters that because the officer observed that Schmitter did not have on his seat belt and because the officer could have reasonably believed that Schmitter was lying when he claimed to have no identification, the officer was permitted to pat Schmitter down under Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). See K.S.A. 22-2402; State v. Epperson, 237 Kan. 707, 703 P.2d 761 (1985). At the hearing on the motion to suppress, the State conceded that Terry did not apply to this situation. The State cites no authority for its position on appeal that the Terry doctrine allows such a search, and such an argument is patently specious. Federal courts have found that the usual traffic stop is more like an investigatory detention than a custodial arrest and thus, is more analogous to a “Terry stop” than a formal arrest. U.S. v. Walker, 933 F.2d 812, 815 (10th Cir. 1991). This court has recognized that there are two prongs to the analysis under Terry: (1) whether the officer’s action in stopping the individual was justified at its inception, and (2) whether the search was reasonably related in scope to the circumstances justifying the initial stop. State v. Kirby, 12 Kan. App. 2d 346, 352, 744 P.2d 146 (1987), aff’d 242 Kan. 803, 751 P.2d 1041 (1988). However: “In order to justify a ‘stop and frisk’ search under Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), and K.S.A. 22-2402, a police officer must reasonably believe that his or her personal safety is at risk.” (Emphasis added.) “The sole justification for a Terry search is the protection of the police officer and it must, therefore, be confined in scope to an intrusion reasonably designed to discover the possible existence of concealed objects which might be used for an assault against the police officer. The preservation of evidence is not a permissible purpose.” State v. Waddell, 14 Kan. App. 2d 129, Syl. ¶¶ 1, 2, 784 P.2d 381 (1989). Schmitter concedes that the initial stop was permissible based on an observed violation of the seat belt law and that the officer was legally permitted to ask for identification to issue a citation or a warning. Schmitter argues, however, that requiring him to get out of the car and spread eagle at the hood of the car, and patting him down, was a violation of his right to be free from unreasonable searches and seizures. We agree. The officer testified he was never concerned with his or his partner’s safety and was merely searching for identification. This is clearly not permitted by Terry. However, because nothing was found during this initial search, it does not, by itself, require suppression. Schmitter next argues that the continued detention and subsequent search of his pockets were not reasonably related in scope to the circumstances of the stop and, therefore, both the initial pat-down and the subsequent search were unreasonable. “An individual is ‘seized’ when an officer restrains his freedom, even if the detention is brief and falls short of arrest. The Fourth and Fourteenth Amendments prohibit unreasonable seizures as well as searches. United States v. Brignoni-Ponce, 422 U.S. 873, 878, 45 L. Ed. 2d 607, 95 S. Ct. 2574 (1975); State v. Epperson, 237 Kan. 707, 712, 703 P.2d 761 (1985). The scope and duration of a seizure must be strictly tied to and justified by the circumstances which rendered its initiation proper.” State v. Damm, 246 Kan. 220, 224, 787 P.2d 1185 (1990). A traffic stop is a seizure within the meaning of the Fourth Amendment. State v. McKeown, 249 Kan. 506, 510, 819 P.2d 644 (1991). “[T]he brevity of the invasion of the individual’s Fourth Amendment interests is an important factor in determining whether the seizure is so minimally intrusive as to be justifiable on reasonable suspicion.” ’ United States v. Sharpe, 470 U.S. 675, 685, 84 L. Ed. 2d 605, 105 S. Ct. 1568 (1985) (quoting United States v. Place, 462 U.S. 696, 709, 77 L. Ed. 2d 110, 103 S. Ct. 2637 [1983]).” State v. Kirby, 12 Kan. App. 2d at 355. Our courts have consistently held that an officer who observes a traffic violation has the right to stop the offending vehicle and briefly detain its occupants for the purpose of enforcing the traffic laws of this state. State v. Guy, 242 Kan. 840, 843, 752 P.2d 119 (1988). This court has also recognized that police officers may remove the driver from a car during a routine traffic stop. State v. Burks, 15 Kan. App. 2d 87, 89-90, 803 P.2d 587 (1990), rev. denied 248 Kan. 997 (1991) (citing Pennsylvania v. Mimms, 434 U.S. 106, 111, 54 L. Ed. 2d 331, 98 S. Ct. 330 [1977]). Also, this court has found that removal of an occupant from a car did not violate the Fourth Amendment where there was a reasonable and articulable suspicion that the occupant was armed and dangerous. State v. Webb, 13 Kan. App. 2d 300, 303, 769 P.2d 34 (1989). Both Burks and Webb rely on the rationale in Mimms which utilized a balancing test where the interests of the officer’s safety were compared with the intrusion into the driver’s personal liberty occasioned by the order to get out of the car. In Webb, the police had a reasonable articulable suspicion that the occupants were armed and dangerous criminals based upon reports received from police in another county. Also, the officers observed the defendant’s behavior of moving his hands even though he was ordered to keep his hands up. Thus, the court found the police were justified in removing the passengers from the car under Mimms. State v. Webb, 13 Kan. App. 2d at 301-03. In Burks, state highway patrol troopers stopped a vehicle for speeding. Noticing that the driver was clean shaven and had short hair but the passenger had a beard, long hair, and wore a “gooney looking hat,” one trooper ordered the passenger out of the car. He then ordered him to place his hands on the trunk of the car and proceeded to pat him down. Up until this point, the passenger had made no statements and there was nothing about him to put the trooper in fear of his safety. As a result of the pat-down, the trooper discovered a gun and a knife. The passenger was then arrested, and an inventory search of his bag revealed marijuana and drug paraphernalia. In Burks, this court suppressed the evidence as fruit of the poisonous tree because absent a reasonable suspicion that the passenger had or was in the process of committing a crime, or a legitimate concern that the trooper’s safety was in jeopardy, the trooper did not have a sound basis for removing him from the car and the pat-down search violated K.S.A. 22-2402 and the Fourth Amendment. 15 Kan. App. 2d at 91, 95. The question here is, when an officer notices that the front seat passenger does not have his or her seat belt fastened, does this justify the removal and search of the person under Mimms? Once Schmitter complied with the officer’s request; gave the officer his correct name; showed the officer his billfold, tending to confirm that he did not have any identification; and got out of the vehicle, absent a showing that the officer feared for his safety or had a reasonable and articulable suspicion that Schmitter had or was committing a further crime, the reasonable duration of the stop was at an end. The only reason for either the initial pat-down or the subsequent search was to find identification. The officer’s only reason for insisting on identification was his assertion that sometimes people lie about their identity to escape from outstanding warrants. In U.S. v. Guzman, 864 F.2d 1512 (10th Cir. 1988), overruled on other grounds U.S. v. Botero-Ospina, 71 F.3d 783, 787 (10th Cir. 1995), the court found that while conducting a routine traffic stop, an officer may request the driver’s license and vehicle registration, run a computer check, and issue a citation. Once the driver has complied and produced his or her license and registration, if no information is obtained in the computer check, he or she must be allowed to go without further delay. In order to justify a further detention for questioning on matters not related to the original stop, the officer must have reasonable suspicion that the individual has committed or is committing some other crime. 864 F.2d at 1519. In Guzman, the court noted that at the time of the stop, there was no objective evidence that the driver or the passenger had committed any more serious crime than the failure to wear their seat belts. After the officer checked Guzman’s license, his authority to detain Guzman further was limited to issuing a warning or a citation. 864 F.2d at 1519. The Government apparently countered that because the traffic stop took less than 15 minutes, it was not unreasonable. The court noted that although the stop was of a short duration, the circumstances surrounding the stop, rather than any arbitrary time limit, governed the stop’s permissible length. Under the facts presented, the stop unreasonably extended beyond the length necessary for its only legitimate purpose — the issuance of a warning or a citation for a seat belt violation. 864 F.2d at 1519 n.8; accord U.S. v. Walker, 933 F.2d at 815. The record shows that at the preliminary hearing and the hearing on the motion to suppress, the only reason the officer continued to detain and searched Schmitter was that the officer wanted proof of identification. There was no testimony that the officer had any indication that Schmitter had committed any crime other than riding in a car without a seat belt on. Therefore, the further detention was unreasonable under the Fourth Amendment. The State argues that this was a constitutionally justified search under the search incident to arrest exception for warrantless searches. It claims that an officer has the discretion to arrest a passenger for violating K.S.A. 8-2503 and, thus, the search was legal even though Schmitter was not placed under arrest for violating the seat belt law. K.S.A. 8-2503 reads in relevant part: “(a) Except as provided in K.S.A. 8-1344 and 8-1345, and amendments thereto, and in subsection (b), each front seat occupant of a passenger car manufactured with safety belts in compliance with federal motor vehicle standard no. 208 shall have a safety belt properly fastened about such person’s body at all times when the vehicle is in motion. “(e) Law enforcement officers shall not stop drivers for violations of this act in the absence of another violation of law. A citation for violation of this act shall not be issued without citing the violation that initially caused the officer to effect the enforcement stop.” K.S.A. 8-2504(2) states that “from and after July 1,1987, persons violating subsection (a) of K.S.A. 8-2503 shall be fined not more than $10 including court costs.” K.S.A. 21-3105 reads: “A crime is an act or omission defined by law and for which, upon conviction, a sentence of death, imprisonment or fine, or both imprisonment and fine, is authorized or, in the case of a traffic infraction, a fine is authorized. Crimes are classified as felonies, misdemeanors and traffic infractions. “(1) A felony is a crime punishable by death or by imprisonment in any state correctional institution or a crime which is defined as a felony by law. “(2) A traffic infraction is a violation of any of the statutory provisions listed in subsection (c) of K.S.A. 8-2118 and amendments thereto. “(3) All other crimes are misdemeanors.” According to the State’s line of reasoning, because failure to wear a seat belt is not listed in K.S.A. 1994 Supp. 8-2118, it is not a traffic infraction and because it is not a felony, it must be a misdemeanor. The State argues that under K.S.A. 8-2104(b), K.S.A. 1994 Supp. 8-2106(a)(8), and K.S.A. 1994 Supp. 8-2106(e), an officer may take a person into custody for a misdemeanor. Because Schmitter could have been lawfully arrested for failure to wear his seat belt, the State argues that the officer had a right to search him under K.S.A. 22-2501, which reads: “When a lawful arrest is effected a law enforcement officer may reasonably search the person arrested and the area within such person’s immediate presence for the purpose of “(a) Protecting the officer from attack; “(b) Preventing the person from escaping; or “(c) Discovering the fruits, instrumentalities, or evidence of the crime.” There are several problems with this argument. While the record does not show exactly when Schmitter was placed under arrest, it does show that the officer did not arrest Schmitter before he conducted the pat-down and the subsequent search which produced the crack cocaine. There was no testimony in the record that the officer ever intended to place Schmitter under arrest. The officer’s testimony at the suppression hearing was that his normal procedure was to either issue a warning or a citation in this type of situation. The officer testified that but for the discovery of the cocaine, he would have either issued a warning or a citation. There is no indication that this was a search incident to a lawful arrest as there was no arrest; indeed, there was not even an intent to arrest until after the officer searched Schmitter and found the cocaine. In State v. Epperson, 237 Kan. at 715, the Kansas Supreme Court stressed that to constitute a search incident to a lawful arrest, “a lawful arrest must come first, followed by a search, and the arrest must be based on probable cause or a warrant to be lawful. Here, the officer first conducted the search and then arrested the defendants as a result of the items found in the search. The argument that an officer may conduct any search he wishes and, if he finds contraband, justify the search on the basis that it was incident to the later resulting arrest, is hardly persuasive. The search incident to a lawful arrest exception is codified in K.S.A. 22-2501.” Accord State v. Vandiver, 19 Kan. App. 2d 786, 794, 876 P.2d 205 (1994), aff’d 257 Kan. 53, 891 P.2d 350 (1995). It is apparent that the officer had no intention of arresting Schmitter for failure to wear a seat belt and decided to arrest him only after finding the cocaine. This was not a valid search incident to an arrest. The State’s contention that the evidence should not be suppressed under the inevitable discovery exception to the exclusionary rule is equally untenable. “The Fourth Amendment to the United States Constitution and Sec. 15 of the Kansas Bill of Rights protect against unreasonable searches and seizures of persons and property. The exclusionary rule prohibits introduction into evidence of both materials directly obtained from an illegal search or seizure and evidence derived from the unlawful search or seizure. Nardone v. United States, 308 U.S. 338, 341, 84 L. Ed. 307, 60 S. Ct. 266 (1939).” State v. Daly, 14 Kan. App. 2d 310, 314, 789 P.2d 1203, rev. denied 246 Kan. 769 (1990). “Evidence obtained unlawfully in violation of a defendant’s constitutional rights is admissible under the inevitable discovery exception to the exclusionary rule where the prosecution can prove by a preponderance of the evidence that the unlawfully obtained evidence would have ultimately or inevitably been discovered by lawful means. Adopting Nix v. Williams, 467 U.S. 431, 81 L. Ed. 2d 377, 104 S. Ct. 2501 (1984).” State v. Waddell, 14 Kan. App. 2d 129, Syl. ¶ 4, 784 P.2d 381 (1989). The facts of this case do not fit the exception to the exclusionary rule. The record shows that prior to the time the officer found the cocaine, the officer had not and did not intend to arrest Schmitter. Thus, without the search, which the State erroneously contends was incident to a lawful arrest, the officer would have never found the cocaine. While the question of whether an officer can lawfully arrest a passenger for failure to wear a seat belt is interesting, it need not be answered here. The record clearly shows that the arrest did not take place until after the search and, under Epperson, this clearly was illegal; whether Schmitter could have been arrested is academic. The trial judge found that the search was justified because Schmitter consented to the search. The judge also stated that it was reasonable for the officer to “take steps to verify who he is arresting or ticketing.” In other words, it appears the judge found that the pat-down was authorized. Again, a search conducted without a warrant issued upon probable cause is per se unreasonable, subject to a few well-delineated exceptions. State v. Johnson, 253 Kan. 356, 362, 856 P.2d 134 (1993). The State has the burden to prove the consent was voluntary by a preponderance of the evidence. Whether the consent was voluntary is examined under the totality of the circumstances. Schneckloth v. Bustamante, 412 U.S. 218, 227, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973). However, when the consent to search is preceded by a Fourth Amendment violation, the State, in addition to proving the voluntariness of the consent, must also establish a break in the causal connection between the illegality and the evidence thereby obtained. U.S. v. Melendez-Garcia, 28 F.3d 1046, 1053 (10th Cir. 1994). “The trial court’s findings with regard to the existence and voluntariness of a consent to search will not be overturned on appeal unless clearly erroneous.” State v. Johnson, 253 Kan. 356, Syl. ¶ 1. “A seizure occurs when a reasonable person under all the circumstances would believe, based on a police officer’s conduct, that he or she was not free to go.” “Consent to a search operates to remove the taint of illegality of the seizure if voluntarily given. Voluntariness is measured in part by the proximity in time of the Fourth Amendment violation and the consent, intervening circumstances, and the purpose and flagrancy of the police officers’ misconduct.” State v. Crowder, 20 Kan. App. 2d 117, Syl. ¶¶ 3, 5, 887 P.2d 698 (1994). The facts of this case show that once the officer directed Schmitter to place his hands on the hood of the car and spread eagle, and made the illegal Terry pat-down search, Schmitter had been seized. It would be patently unreasonable to presume that a person who is placed in the awkward and undignified position of being spread eagled across the hood of a car could in any way reasonably believe he or she was free to leave. While Schmitter was still in this spread eagle position, the officer asked if he could search the inside of Schmitter s pockets. It was at this time that Schmitter consented to the search. Even if Schmitter was unreasonably seized at this point, his consent to the search may operate to remove the taint of the illegal nature of the seizure if it was voluntarily given under the totality of the circumstances. 20 Kan. App. 2d at 122. “The Supreme Court has proved three factors that are especially relevant to determining whether a consent is tainted by a preceding illegal search or seizure: 1) the temporal proximity between the police ¿legality and the consent to search; 2) the presence of intervening circumstances; and particularly 3) the purpose and flagrancy of the official misconduct.” U.S. v. Melendez-Garcia, 28 F.3d at 1054. Accord State v. Crowder, 20 Kan. App. 2d at 122. In this case, the consent immediately followed the illegal pat-down and was given while Schmitter was still spread eagled on the car. There were no intervening circumstances. The purpose of the police conduct was to verify Schmitter’s identity, and the illegal pat-down was clearly not within the Terry exception. The facts of this case show that Schmitter exhibited no inability to understand the officer’s request and had no condition that would interfere with his ability to give a voluntary consent, the time of the detention was relatively short, and there was no indication that the officer threatened him in any way. However, the request for consent was virtually simultaneous with the illegal pat-down, and there was no break in the activity between the pat-down and the consent. In addition, the officer’s actions were clearly improper as Terry allows only for a pat-down for weapons, not evidence, and having Schmitter spread eagled across the hood of the car appears particularly flagrant in the absence of the officer having some kind of objective reason for being in fear for his safety or having a reasonable and articulable suspicion that Schmitter was guilty of something more than a seat belt violation. The consent was not voluntary as a matter of law, and the evidence should have been suppressed as fruit of the poisonous tree under Wong Sun v. United States, 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963). Schmitter’s conviction is reversed and the case is remanded with instructions that the sentence be vacated and the evidence seized in the unlawful search be suppressed.	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Gernon, J.: This is an appeal by a paternal grandmother, Jimmie Holyfield, from a district court’s ruling that the provisions of K.S.A. 1996 Supp. 60-1610(a)(4)(D)(iii) applied only to “proceedings” at the time of a divorce and not to a post-divorce custody proceeding. Kimberly and Gerald Burbank were divorced in 1987. They had two minor children. The court entered a joint custody order, with Kimberly designated as the resident parent. In 1994, the residential custody of the older child was changed to Gerald by court order, without opposition. The child involved in this proceeding, Joey, was the younger child. Joey had been living with Holyfield for several years, after Kimberly indicated she could not handle the child and asked Holyfield to take him. Apparently this was done without a court order or informing the court. Gerald then filed a change of custody motion for Joey. Holyfield filed a motion for an ex parte order granting her temporary custody of Joey. Holyfield’s motion was granted, but the court eventually granted Gerald’s motion for a change of custody based upon the parental preference doctrine. Holyfield appeals that order. Is This Appeal Moot? We must first consider whether this appeal is moot. While the court granted Gerald’s motion, it stayed the execution of the order until the end of the current school year and required that Gerald participate in Joey’s counseling. Gerald did not participate in the counseling, and the court set aside the scheduled transfer. Another hearing was scheduled, with the same results. The court ruled that “the transfer of the custody of the minor child from the third-party respondent to the respondent shall not take place.” “The general rule is that this court does not decide moot questions or render advisory opinions. The mootness doctrine is one of court policy which recognizes that it is the function of a judicial tribunal to determine real controversies relative to the legal rights of persons and properties which are actually involved in the particular case properly brought before it and to adjudicate those rights in such manner that the determination will be operative, final, and conclusive. However, where a particular issue, although moot, is one capable of repetition and one of public importance, an appellate court may consider the appeal and render an opinion. Reece Shirley & Ron's, Inc. v. Retail Store Employees Union & Local 782, 225 Kan. 470, 471-72, 592 P.2d 433 (1979). This court has sometimes entertained issues which, although moot, were subjects of real controversy and included issues of statewide interest and public importance. See Smith v. Miller, 213 Kan. 1, 5, 514 P.2d 377 (1973); In re Liquidation of Nat’l Colonial Ins. Co., 20 Kan. App. 2d 802, 804, 892 P.2d 926 (1995).” Board of Johnson County Comm’rs.v. Duffy, 259 Kan. 500, 504, 912 P.2d 716 (1996). “An appeal will not be dismissed as moot unless it clearly and convincingly appears the actual controversy has ceased and the only judgment which could be entered would be ineffectual for any purpose and an idle act insofar as rights involved in the action are concerned.” Shanks v. Nelson, 258 Kan. 688, Syl. ¶ 3, 907 P.2d 882 (1995). The trial court indicated that it would consider the issue in the future. Therefore, in the interest of judicial economy and to avoid confusion asto the rights of the parties, we conclude that the merits of the appeal should be considered. Is K.S.A. 1996 Supp. 60-1610(a)(4)(D)(iii) Applicable Only to Original Divorce Proceedings? K.S.A. 1996 Supp. 60-1610(a)(4)(D) provides: “Nonparental custody. If during the proceedings the court determines that there is probable cause to believe that: (i) The child is a child in need of care as defined by subsections (a)(1), (2) or (3) of K.S.A. 38-1502 and amendments thereto; (ii) neither parent is fit to have custody; or (iii) the child is currently residing with such child’s grandparent, grandparents, aunt or uncle and such relative has had actual physical custody of such child for a significant length of time, the court may award temporary custody of the child to such relative, another person or agency if the court finds the award of custody to such relative, another person or agency is in the best interests of the child. In making such a custody order, the court shall give preference, to the extent that the court finds it is in the best interests of the child, first to awarding such custody to a relative of the child by blood, marriage or adoption and second to awarding such custody to another person with whom the child has close emotional ties. The court may make temporary orders for care, support, education and visitation that it considers appropriate. Temporary custody orders are to be entered in lieu of temporary orders provided for in K.S.A. 38-1542 and 38-1543, and amendments thereto, and shall remain in effect until there is a final determination under the Kansas code for care of children. An award of temporary custody under this paragraph shall not terminate parental rights nor give the court the authority to consent to the adoption of the child. When the court enters orders awarding temporary custody of the child to an agency or a person other than the parent but not a relative as described in subpart (iii), the court shall refer a transcript of the proceedings to the county or district attorney. The county or district attorney shall file a petition as provided in K.S.A. 38-1531 and amendments thereto and may request termination of parental rights pursuant to K.S.A. 38-1581 and amendments thereto. The costs of the proceedings shall be paid from the general fund of the county. When a final determination is made that the child is not a child in need of care, the county or district attorney shall notify the court in writing and the court, after a hearing, shall enter appropriate custody orders pursuant to this section. If the same judge presides over both proceedings, the notice is not required. Any disposition pursuant to the Kansas code for care of children shall be binding and shall supersede any order under this section. When the court enters orders awarding temporary custody of the child to a relative as described in subpart (iii), the court shall annually review the temporary custody to evaluate whether such custody is still in the best interests of die child. If the court finds such custody is in the best interests of the child, such custody shall continue. If the court finds such custody is not in the best interests of the child, the court shall determine the custody pursuant to this section.” In its original order changing custody of the child from Holyfield to Gerald, the court ruled: “The Court specifically rejects third party respondent Holyfield’s contention that the Court may award temporary custody of the minor child herein to her, his grandmother, with whom he has resided continuously for more than six years, pursuant to K.S.A. 60-1610(a)(4)(D)(iii), because the Court finds that said provision only applies to custody determinations made during proceedings at the time of the divorce, and is not applicable to custody proceedings, which occur subsequent to the divorce itself.” We disagree with the trial court. In Kansas, the trial court has continuing jurisdiction over the custody of minor children. K.S.A. 1996 Supp. 60-1610(a)(2) provides: “Child custody and residency. (A) Changes in custody. Subject to the provisions of the uniform child custody jurisdiction act (K.S.A. 38-1301 et seq., and amendments thereto), the court may change or modify any prior order of custody when a material change of circumstances is shown.” The provisions of K.S.A. 1996 Supp. 60-1610 that govern custody of minor children apply to the original divorce proceedings, as well as to any subsequent proceedings on child custody. The trial court erred in finding that it need not consider K.S.A. 1996 Supp. 60-1610(a)(4)(D)(iii) because that statute applies only at the original divorce proceeding. Reversed.	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Marquardt, J.: Bobby L. Logan and Margie S. Logan, husband and wife, appeal the district court’s ruling to set aside transfers of property that they received from Robert E. Logan and Ruth J. Logan, Bobby’s father and mother. Robert and Ruth had two sons, Bobby and Raymond. In April 1992, Robert and Ruth, who were in their SO’s, left their home in Kansas to stay with Bobby and Margie in Illinois. Aside from a brief return to their home in Kansas, the elder Logans lived with Bobby and Margie until their deaths in July 1993. Approximately 2 months after Robert and Ruth moved to Illinois, they transferred almost all of their assets to Bobby arid Margie, who maintain that the transfers were gifts. Raymond, as executor of his parents’ estates, learned of the transfers after their deaths. Raymond maintains that Bobby and Margie coerced Robert and Ruth to make the transfers., Raymond filed a lawsuit to have the transfers set aside or, in the alternative, to have a constructive trust placed on his parents’ assets, so that the assets would be distributed according to their wills. Bobby and Margie counterclaimed, seeking reimbursement for funeral expenses, payment for services and expenses incurred while caring for Robert and Ruth, and payment for storage of the elder Logans’ property after their deaths. The trial court found that a confidential, fiduciary relationship had existed between Bobby and Margie and the elder Logans and that the relationship had been breached. The trial court also found that Robert and Ruth were both susceptible to undue influence by Bobby and Margie; that Robert did not possess the requisite capacity to make the transfers; that Bobby and Margie failed to show that the transfers were made in good faith, for valuable consideration, and without undue influence; and that even if the transfers were made in good faith, a constructive trust should be placed on the transferred property. The trial court set aside the warranty deed, which conveyed the parents’ homestead in Beloit, and entered judgment in favor of Raymond for $97,376.57. Bobby and Margie were awarded an off-set on the judgment for $11,997.58. Raymond filed a motion for punitive damages. The trial court granted the motion, awarding Raymond $80,000. Bobby and Margie appeal. CONFIDENTIAL RELATIONSHIP Bobby and Margie argue that there was not substantial evidence to support the trial court’s finding that a confidential relationship existed between themselves and Robert and Ruth. “The determination of whether a confidential relationship existed was one of fact and our scope of review is to ascertain whether there is substantial competent evidence to support the findings of the trial court. [Citation omitted.] Further, we are required to consider the evidence in its most favorable aspect in relation to the party-who prevailed in the court below. [Citation omitted.]” Curtis v. Freden, 224 Kan. 646, 652, 585 P.2d 993 (1978). Bobby and Margie rely on Curtis, where the court found that no confidential relationship existed. However, Curtis is factually different from the instant case in that the mother transferred an 80-acre farm to one of her three children because that son and his wife had taken care of her for many years; the mother did not live with the' son; the mother had told others that she was going to make the transfer long before the deed was signed; and there were no other transfers of property to the son and his wife. See, e.g., Nelson, Administrator v. Dague, 194 Kan. 195, 197, 398 P.2d 268 (1965); Staab v. Staab, 160 Kan. 417, 422, 163 P.2d 418 (1945). In this case, Ruth and Robert had lived in Bobby’s home for a period of just over a year and had depended on Bobby and Margie for making most of Robert’s medical arrangements, including transfers to various hospitals and nursing homes. Bobby had contacted his parents’ attorney, directing the preparation of the powers of attorney in his favor and the deed, which gave him and Margie his parents’ home. At Bobby’s direction, his parents’ bank cashed Ruth’s and Robert’s certificates of deposit. Ruth had written a letter to her sister, which said that she and Robert wanted to return to their home in Kansas, but that Bobby and Margie insisted that they stay with them. Ruth had also told Raymond that she wanted to return to Kansas, but that Bobby had left her no choice in the matter. At that time, Ruth was under a lot of stress and overwhelmed by Robert’s confused and disoriented condition. Bobby testified that Ruth needed his and Margie’s help during the time that she was making the transfers. Some 6 months or so after arriving in Illinois, Ruth became very ill and was hospitalized. Ruth had told Raymond that Bobby was putting considerable pressure on her to transfer assets. From the evidence, it is clear that Ruth and Robert were subjected to Bobby’s and Margie’s decisions at a time when they were weak due to illness and stress. The evidence supports the trial court’s finding that Bobby and Margie were in a confidential relationship with Robert and Ruth. UNDUE INFLUENCE Bobby and Margie next argue that there was not substantial evidence to support the trial court’s finding that they had exerted undue influence on Robert and Ruth to make the various transfers to them. Once a confidential or fiduciary relationship is found, the burden shifts to the party who is the beneficiary of the transfer to show that the transfer was made in good faith and without undue influence. “ ‘The test of undue influence is whether the party exercised his own free agency and acted voluntarily by the use of his own reason and judgment, which may be determined from all the surrounding circumstances, including the relation of the parties, the time and manner of making suggestions or giving advice, the motive, if any, in making suggestions, and the effect upon the party so acting.’ ” Frame, Administrator v. Bauman, 202 Kan. 461, 468, 449 P.2d 525 (1969) (quoting Cersovsky v. Cersovsky, 201 Kan. 463, 467, 441 P.2d 829 [1968]). “This court has held a presumption of undue influence is not raised and the burden of proof is not shifted by the mere fact that an individual occupies a confidential or fiduciary relation with another. Such a presumption is raised and the burden of proof shifted, however, when, in addition to the confidential relation, there exist suspicious circumstances.” In re Adoption of Irons, 235 Kan. 540, 547, 684 P.2d 332 (1984). Bobby and Margie argue that there were no suspicious circumstances related to the transfers from Ruth and Robert; however, the trial court found otherwise. Robert and Ruth each had wills that, aside from a small gift to their granddaughter, left all of their assets to each other and then to their two sons in equal shares. Bobby could not explain why his parents had transferred essentially all of their assets to him alone, contrary to their wills, other than to say that the transfers were gifts. The transfers were made soon after Ruth and Robert had arrived in Illinois, with Bobby initiating the contacts to effect the transfers. Bobby testified that Robert signed the various documents on his own volition; however, Robert’s medical records indicate that during this time, Robert was confused and disoriented. The elder Logans received a bank cashier’s check made payable to them for the certificates that were cashed in the amount of $75,154.50. Ruth endorsed the check and gave it to Bobby. Bobby then endorsed the check and deposited it in his own checking account, without obtaining Robert’s endorsement. In June 1992, Ruth wrote Bobby two checks — one for $15,000 and one for $7,222.09. In July 1993, Ruth wrote Bobby a check for $12,000. Bobby testified that he guided Ruth’s signature on this check and that he needed the money for funeral expenses; however, he did not use the money for funeral expenses, and he did not return it to the estate until 8 months later. There is no evidence that Ruth gave Bobby these large amounts of money as payment for Robert’s and her care. In fact, Ruth had written checks to Bobby in amounts between $100 and $300 about every 2 weeks while staying at his home, which totalled approximately $6,750. Bobby testified that Ruth told him that she wanted to pay her way. Bobby never told Raymond about any of the transfers. Raymond repeatedly offered to have Ruth and Robert stay with him, but Bobby and Margie always prevented them from leaving at the last minute. There is substantial evidence to support the trial court’s finding that suspicious circumstances existed regarding the transfers and that Bobby and Margie exerted undue influence on Ruth and Robert to transfer their assets. Bobby and Margie also argue that the deed was not the result of undue influence because Ruth and Robert received independent legal advice before executing it. The purpose of the independent advice rule was stated in In re Estate of Carlson, 201 Kan. 635, Syl. ¶ 5, 443 P.2d 339 (1968): “The requirement of independent advice is designed to provide assurance that the aged or infirmed or otherwise dependent person conferring the benefit knew what he was doing and did it of his own free act and will, and to see that no undue advantage was taken of him.” Ruth and Robert’s long-time attorney, Raymond Stein, testified that Bobby and Ruth came to his office in early July 1992. During their meeting, Bobby did most of the talking, giving instructions to Stein on how to prepare the deed. Neither Bobby nor Ruth asked for Stein’s advice on the transfer. In fact, Stein testified that Robert and Ruth “were relying more on their son Bobby’s advice” than on his. The trial court’s finding that Robert and Ruth did not receive independent legal counsel is supported by substantial evidence. CONSTRUCTIVE TRUST Raymond requested that the trial court set aside the deed and enter judgment in his favor in the amount of the transfers. In the alternative, Raymond requested that the trial court impose a constructive trust on the transferred assets and that the assets be distributed according to Ruth’s and Robert’s wills. The trial court imposed a constructive trust on all of the cash transfers, set aside the deed and the cash transfers, and entered judgment in favor of Raymond in the amount of the transfers. In Kampschroeder v. Kampschroeder, 20 Kan. App. 2d 361, 364-65, 887 P.2d 1152, rev. denied 257 Kan. 1092 (1995), the court stated: “A constructive trust arises ‘ “wherever the circumstances under which the property was acquired make it inequitable that it should be retained by the person who holds tire legal title.” ’ [Citations omitted.] “An essential element of proving a constructive trust is a showing of fraud. However, there are two types of fraud, actual and constructive. ‘Actual fraud is an intentional fraud, and the intent to deceive is an essential element of the action. Constructive fraud, however, is a breach of a legal or equitable duty which, irrespective of moral guilt, the law declares fraudulent because of its tendency to deceive others or violate a confidence, and neither actual dishonesty of purpose or intent to deceive is necessary. [Citation omitted.]’ Moore v. State Bank of Burden, 240 Kan. 382, 389, 729 P.2d 1205 (1986), cert. denied 482 U.S. 906 (1987). “Absent actual fraud, there are two additional elements which are required to be proven. First, there must be a confidential relationship. Secondly, the confidence reposed must be betrayed, or a duty imposed by the relationship must be breached.” Assuming that fraud is still a required element of constructive trusts, in the absence of such a finding, “the trial court is presumed to have found all facts necessary to support the judgment.” United Proteins, Inc. v. Farmland Industries, Inc., 259 Kan. 725, 731, 915 P.2d 80 (1996). Even if Bobby and Margie did not act with the intent to deceive, the evidence supports a finding that their acts constitute constructive fraud. The first element of the constructive fraud theory is a confidential relationship, which has already been discussed. The only remaining question, then, is whether Bobby and Margie betrayed that confidence or breached a legal duty imposed by the relationship. About 2 months after Robert and Ruth arrived in Illinois, Raymond came to visit. During that visit, the family discussed whether Robert and Ruth should transfer their assets to Bobby and Raymond and that in the event the assets were transferred, the assets would be made available to Ruth and Robert for their medical and living expenses and would be returned to their estates after their deaths for disposition according to their wills. The purpose of this plan was to allow Robert and Ruth to receive public assistance without depleting their assets. Raymond also testified about a letter that he had written to his mother shortly thereafter, confirming the conversation that had occurred during that meeting. Ruth was reluctant to make the transfers, but if she decided to do so, she wanted the funds to be used as the family had discussed — both Raymond and Bobby agreed to her request. Tami Pruitt, vice president of Guaranty State Bank in Beloit, testified that Bobby told her that “[tjhere was some concern on the parents having to be placed in a nursing home, and [the transfers were] done to protect the assets of the parents.” Stein testified that at the time he drafted the deed, “[Bobby] kept coming back to preserving the family assets for the benefit of the family members. . . . At the time, I thought they had a family understanding and agreement as to how the property was to be divided. I wasn’t told that, but I mean, it seemed quite obvious.” In April 1993, 3 months before Robert and Ruth died, Bobby wrote Raymond a letter, which said: “Before [Robert and Ruth] can get on Medicaid — all their assets in general— must be used up. Any asset not disposed of thirty months prior to seeking Medicaid status can be drawn upon according to law. “Marge and I have been trying to both: care for dad and mom, and to protect the assets. We have, however, reached the point of exhaustion. “I would like you to seriously consider taking the both of them into your home and care for a while. We must have a break from the care we have provided them for nearly twelve months. “If you cannot accept them, we shall have to consider supervised nursing care which will probably devour their assets. Should that occur, one half of what we set out to do twelve months ago will be lost, i.e., the protection of assets.” (Emphasis added.) The evidence indicates that Ruth was transferring assets to Bobby to be used to care for Robert and her, so that the remaining assets would still be in their estates. By keeping the assets for himself, Bobby breached the duty and betrayed the confidence that Robert and Ruth had placed in him. ROBERT’S CAPACITY TO EXECUTE THE DEED Bobby and Margie argue that there is no substantial competent evidence to support the trial court’s finding that Robert lacked the capacity to execute the deed, contending that Robert possessed “at least testamentary capacity at the time he made the gift.” The record is replete with evidence supporting the trial court’s finding that Robert lacked the capacity to execute the deed. THE DOCTRINE OF AFTER-ACQUIRED TITLE Bobby and Margie next argue that even if Robert did lack the capacity to execute the deed, pursuant to K.S.A. 58-2207, the doctrine of after-acquired property applies to the deed. The trial court found that the doctrine does not apply. K.S.A. 58-2207 provides: “Where a grantor by the terms of his or her deed undertakes to convey to the grantee an indefeasible estate in fee simple absolute, and shall not at the time of such conveyance have the legal title to the estate sought to be conveyed, but shall afterwards acquire it, the legal estate subsequently acquired by the grantor shall immediately pass to the grantee; and such conveyance shall be as effective as though such legal estate had been in the grantor at the time of conveyance.” Bobby and Margie argue that even if Robert lacked the capacity to execute the deed, he died in possession of a one-half interest in the property, which he passed to Ruth in his will. Because Ruth conveyed all of her interest in the property to Bobby and Margie through the deed, then pursuant to K.S.A. 58-2207, they contend, they now possess the entire interest in the house. This argument is without merit and patently ignores the trial court’s findings, supported by substantial competent evidence, that a confidential relationship was breached and that Bobby and Margie exercised undue influence over the elder Logans. This argument also ignores the trial court’s imposition of a constructive trust based on Bobby and Margie’s breach of their duty to treat Ruth’s and Robert’s assets in a manner consistent with a prior agreement. RUTH LOGAN’S AUTHORITY TO MAKE THE TRANSFERS Bobby and Margie also argue that Ruth had the authority to make all of the cash transfers because, as a joint tenant, she had the complete power to dispose of the funds in the bank accounts. Bobby and Margie further argue that even if Ruth did not have full access to the funds, Robert left all of his assets to Ruth in his will. Under the doctrine of after-acquired title, they argue, Ruth’s gifts to Bobby and Margie became valid upon Robert’s death. Again, as in the previous issue, this argument is without merit. Neither Ruth’s right and title in the assets nor her authority to transfer them to Bobby and Margie is determinative in this case. COUNTERCLAIMS Bobby and Margie next argue that the trial court should have found in their favor on their counterclaims, which were for services rendered and expenses incurred after Ruth’s and Robert’s deaths, relating to their burials and the preservation of estate assets; for services performed and expenses incurred on behalf of Robert and Ruth during their lifetimes; and for storage of estate property left at their residence after Robert and Ruth had died. The trial court allowed Bobby and Margie $11,997.58 for services and expenses incurred after Robert’s and Ruth’s deaths, but denied compensation for services and expenses incurred during their lifetimes. Bobby and Margie argue that the trial court erred and that they should recover under the doctrines of unjust enrichment and quantum meruit. “The basic elements of a claim based on a theory of unjust enrichment are: (1) a benefit conferred upon the defendant by the plaintiff; (2) an appreciation or knowledge of the benefit by the defendant; and (3) the acceptance or retention by the defendant of the benefit under such circumstances as to make it inequitable for the defendant to retain the benefit without payment of its value.” Haz-Mat Response, Inc. v. Certified Waste Services Ltd., 259 Kan. 166, Syl. ¶ 6, 910 P.2d 839 (1996). Bobby and Margie rely on Griffin v. Price, 199 Kan. 649, 433 P.2d 464 (1967). In Griffin, however, the caretaker was not related to the decedent. “In order for one member of a family to recover against the estate of another member for services rendered the decedent in his lifetime, the claimant must show either that an express contract for remuneration existed or that the circumstances under which the services were rendered were such as to exhibit a reasonable and proper expectation that there would be compensation (following In re Estate of Nicholson, 167 Kan. 14, 204 P.2d 602).” In re Estate of Rogers, 184 Kan. 24, Syl. ¶ 1, 334 P.2d 830 (1959). “The rule is based upon a presumption that services rendered a member of the family are filial and gratuitous and are not to be compensated in money.” Rogers, 184 Kan. at 28. Here, the evidence supports the trial court’s finding. Ruth left Bobby and Margie periodic checks to “pay her way.” There was no evidence that Bobby and Margie had a reasonable and proper expectation of additional compensation. MOTION FOR RELIEF FROM JUDGMENT Bobby and Margie argue that the trial court erred in not granting their motion for relief from judgment in which it was asserted that they had new evidence that Ruth was lucid and in good health at the time the transfers occurred. “ ‘A ruling on a motion for relief from a final judgment filed pursuant to K.S.A. 60-260(b) rests within the sound discretion of the- trial court.’ ” In re Marriage of Jones, 22 Kan. App. 2d 753, 766, 921 P.2d 839, rev. denied 260 Kan. 993 (1996). Bobby and Margie’s newly discovered evidence was deposition testimony that was given after the trial had concluded. The deponent testified as to her knowledge of Ruth’s state of mind during the time that Ruth was transferring assets to Bobby and Margie. The trial court ruled that this evidence did not constitute newly discovered evidence, finding that the evidence was not “persuasive on the issues of [Ruth’s] mental condition and the issue of undue influence given the substantial amount of evidence presented by plaintiff and defendants at the trial.” Bobby and Margie do not explain why this testimony is “newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial.” K.S.A. 60-260(b)(2). The deponent was Bobby and Margie’s daughter-in-law. Ruth’s state of mind is relevant to this case only to the extent that it enters into the determination of whether she was in a confidential relationship with Bobby and Margie and whether Bobby and Margie exerted undue influence on her to make the transfers. As previously discussed, the evidence supports these findings. Bobby and Margie fail to show how the trial court abused its discretion in not granting their motion for relief from judgment. REMOVAL OF THE TRIAL JUDGE Bobby and Margie next argue that another district judge erred in denying their motion to remove the trial judge, Judge Thomas M. Tuggle, who had “previously heard and decided a contested hearing on the admission to probate of the wills of Robert and Ruth Logan and the appointment of an executor.” Bobby and Margie argue that the findings and conclusions in the journal entry in the probate case show “that the judge had already made up his mind as to all the crucial issues” in the present case. K.S.A. 20-311d provides the procedure for disqualifying a judge. “Previous rulings of a trial judge, although numerous and erroneous, are not alone sufficient to show the required bias or prejudice to disqualify a judge under [K.S.A. 20-311d]. Such rulings are subject to review and correction on appeal and will not justify disqualification.” State ex rel. Miller v. Richardson, 229 Kan. 234, 238, 623 P.2d 1317 (1981); see K.S.A. 20-311d(d). The affidavit was ruled to be insufficient because “[t]he recital of previous rulings or decisions by the judge . . . cannot be a proper basis for disqualification,” and it did not demonstrate “personal bias or prejudice by the judge.” “[T]he affidavit must contain facts and reasons which give fair support for the belief that on account of the bias or prejudice of the judge the affiant cannot obtain a fair trial.” Hulme v. Woleslagel, 208 Kan. 385, 392, 493 P.2d 541 (1972). Where the allegations in the affidavit are speculations only, they do not reach the threshold necessary to sustain the motion. See State v. Goss, 245 Kan. 189, 198, 777 P.2d 781 (1989). The statements contained in the affidavit do not support the belief that in the present case Judge Tuggle would not make further factual findings supported by the evidence and that he would not form fair and correct legal conclusions. AMENDMENT TO THE PETITION TO INCLUDE PUNITIVE DAMAGES Bobby and Margie argue that the trial court erred in granting Raymond’s motion to amend his petition to include punitive damages, contending that the trial court should have denied the motion because it was not accompanied by a supporting affidavit as required under K.S.A. 60-3703. Raymond timely filed a motion to amend his petition to include punitive damages. The pretrial order notes that Bobby and Margie objected to that motion because no supporting affidavit had been filed with the motion. The trial court found that “there is no undue burden or surprise on the defendant and the motion is timely filed. Plaintiff is granted ten (10) days to file supporting affidavits. Defendant shall have ten (10) days to respond with affidavits.” Bobby and Margie raised the issue again prior to trial, arguing that the affidavit filed was insufficient because it was signed by counsel rather than by Raymond. The trial court stated that under the facts of the case, Raymond should not be precluded from amending his petition and that the court would take the matter under advisement. Raymond’s counsel then said, “Just a brief comment. First, in relation to the affidavit itself, as the Court may recall at the pretrial, there was discussion that the reason that it was impossible to file an affidavit at this point is due to the facts that needed to be alleged in the affidavit were still being transcribed by the reporter, and therefore, you know, reference could not be made to that, and the affidavits followed after — after that transcription was received and that documentation was made.” The trial court distinguished Sullwold v. Barcus, 17 Kan. App. 2d 410, 838 P.2d 908, rev. denied 251 Kan. 942 (1992), from the instant case, finding that under Burrowwood Assocs., Inc. v. Safelite Glass Corp., 18 Kan. App. 2d 396, 853 P.2d 1175 (1993), Raymond had substantially complied with K.S.A. 60-3703. The trial court subsequently awarded Raymond $80,000 in punitive damages. Bobby and Margie correctly argue that Sullwold concluded that “the affidavit in support of the motion to amend must be filed with the motion and served upon each of the parties.” 17 Kan. App. 2d at 414. In Sullwold, the plaintiff contended that her attorney presented a supporting affidavit at the hearing on the motion; however, no such affidavit was included in the record on appeal. Thereupon, this court concluded: “A motion to amend with a supporting affidavit attached was never filed with the trial court.” 17 Kan. App. 2d at 417. The Sullwold court went on to say that “[n]o notice of the hearing scheduled for January 20, 1989, was given as required. Barcus was not served with the petition until January 24, 1989, four days after the motion was granted. The record does not reflect Barcus was served with the motion and supporting affidavit.” 17 Kan. App. 2d at 415. Here, Bobby and Margie were served with a copy of the motion. On the same day that the motion was filed, the trial court ordered that Raymond file his affidavit within 10 days; the affidavit was filed 5 days later. K.S.A. 60-3703 requires that a motion to amend a petition to allow a claim for punitive damages be filed on or before the date of the pretrial; however, the statute does not require a simultaneous filing of the affidavit. If a motion to amend the petition to allow punitive damages is timely filed and good cause is given for a delay in filing the supporting affidavit, the trial court may grant a reasonable time for the affidavit to be filed. Raymond timely filed the motion to amend the petition but could not file the supporting affidavit until the court reporter finished a transcript on which the affidavit would rely. The trial court found no prejudice to Bobby and Margie in allowing Raymond an additional 10 days to file the affidavit. The affidavit was filed 5 days after the filing of the motion. We find no error in the trial court allowing Raymond additional time to file the affidavit. Bobby and Margie state in their brief that the affidavit was signed by Raymond’s attorney rather than by Raymond; however, they do not make a claim of error on this fact and provide no argument on the issue. This argument is, therefore, deemed abandoned. See McKissick v. Frye, 255 Kan. 566, 578, 876 P.2d 1371 (1994). Affirmed.	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Green, J.: Arthur L. Kyburz and Mary M. Kyburz appeal from the judgment of the trial court dismissing their writ of mandamus petition. On appeal, the Kyburzes contend that K.S.A. 1995 Supp. 44-717(k) is constitutionally infirm because it denies them due process of law. Additionally, the Kyburzes contend that the trial court erred in determining that they had failed to exhaust their administrative remedies. We disagree and affirm the judgment of the trial court. The Kyburzes owned and operated Art’s Tater Chip Company, Inc., when the company filed a Chapter 11 bankruptcy in 1994. Before the bankruptcy, the company was in default on its required contributions to the State Employment Security Fund. In the winter of 1994-1995, the company owed contributions of $6,085.44. As a result, the Kansas Department of Human Resources notified the Kyburzes that it was proposing a personal assessment against them for their company’s unpaid contributions under K.S.A. 1995 Supp. 44-717(k). The Kyburzes requested an administrative review of the proposed assessment. In determining that the Kyburzes had preferred payment of considerable salary to themselves over the payment of the company’s contribution, the Secretary of Human Resources made an assessment against the Kyburzes for $6,085.44 and proposed to file a lien against their property in April 1995. In an attempt to stop the filing of the lien, the Kyburzes moved for a writ of mandamus, claiming that the procedure used in making the personal assessment against them was flawed. The trial court dismissed the writ after determining that the Kyburzes had failed to exhaust their administrative remedies. First, the Kyburzes argue that K.S.A. 1995 Supp. 44-717(k) is constitutionally infirm because it denies due process. “The constitutionality of a statute is presumed, all doubts must be resolved in favor of its validity, and before the statute may be stricken down, it must clearly appear the statute violates the constitution.” State v. Risjord, 249 Kan. 497, Syl. ¶ 1, 819 P.2d 638 (1991). Furthermore, the party challenging the constitutionality of the statute bears the burden of proof on this issue. State v. Durrant, 244 Kan. 522, 526, 769 P.2d 1174 (1989). In addressing this issue, we must consider several statutes and regulations. K.S.A. 44-714(a) states: “It shall be the duty of the secretary to administer this act and the secretary shall have power and authority to adopt, amend or revoke such rules and regulations . . . and take such other action as the secretary deems necessary or suitable to that end.” K.S.A. 1995 Supp. 44-717(k) states: “Any officer, major stockholder or other person who has charge of the affairs of an employer . . . who willfully fails to pay the amount of contributions, payments in lieu of contributions or benefit cost payments required to be paid under the employment security law on the date on which such amount becomes delinquent, shall be personally hable for the total amount of the contributions, payments in lieu of contributions or benefit cost payments and any penalties and interest due and unpaid by such employing unit.” K.A.R. 50-2-19 states: “The following provisions shall govern the appeal process provided to resolve any protest to any determination pursuant to K.S.A. 44-703, 44-710, 44-710a, 44-710b and 44-710d.” The Kyburzes argue that the appeals process of K.A.R. 50-2-19 sought to be used by the Secretary does not apply to this type of assessment because the regulation covers the appeal process for employers. They further argue that the liability of officers and major stockholders is covered by K.S.A. 1995 Supp. 44-717(k) and that K.A.R. 50-2-19 has omitted any reference to K.S.A. 1995 Supp. 44-717(k). The Kyburzes finally argue that because the Secretary has not adopted any rule or regulation concerning the process by which individuals may be assessed liability for another’s unpaid contributions, nor has the Secretary amended any other rule or regulation to allow for such assessment, the Secretary’s actions are illegal, arbitrary, and unreasonable. We disagree. In Rydd v. State Board of Health, 202 Kan. 721, 725, 451 P.2d 239 (1969), the Kansas Supreme Court reiterated the general rule that “legislation is not rendered constitutionally invalid because of omission of certain procedural safeguards which may be supplied, by rule or otherwise, by the agency administering the law.” Nevertheless, the Kyburzes attempt to distinguish their case from Rydd by arguing that Rydd involved a notice issue as opposed to a request for a hearing. But this is a distinction without a difference. The essential elements of due process are “ ‘notice . . . and an opportunity to be heard and to defend in an orderly proceeding adapted to the nature of the case.’ ” Rydd, 202 Kan. at 728 (quoting Wichita Council v. Security Benefit Ass’n, 138 Kan. 841, 847, 28 P.2d 976 [1934]). When the Kyburzes sought administrative review, an administrative review was held. The decision from the administrative review set forth the applicable law and the appeal process, as well as the findings on the specific issues raised by the Kyburzes. Furthermore, the Kyburzes were told that if they requested an administrative hearing, they would be entitled to be present; to be represented by counsel; to present oral testimony or written evidence, or both; to subpoena witnesses; to examine witnesses and documents; to cross-examine witnesses; and to offer rebuttal testimony or evidence. The Kyburzes argue that K.S.A. 44-714 requires the Secretary to write rules and regulations regarding these hearings. And the Kyburzes point to the case of Adams v. Professional Practices Commission, 524 P.2d 932, 935 (Okla. 1974), where the Oklahoma Supreme Court held that the failure to enact a regulation concerning hearing procedures prevented the administrative agency from holding such hearings. On the other hand, the Secretary maintains that Adams is distinguishable from this case because under the applicable Oklahoma statutes, the agency was required to promulgate the rules. 524 P.2d at 934. See also Okla. Stat. tit. 75, §302 (1995). The Kansas statute in question is permissive, however, providing that “the secretary shall have power and authority to adopt, amend or revoke such rules and regulations . . . and take such other action as the secretary deems necessary or suitable.” (Emphasis added.) K.S.A. 44-714(a). The Secretary argues that he found it necessary and suitable to provide a due process hearing and judicial review for the Kyburzes and it was within his power to do so. Under both the rule of Rydd and the language of K.S.A. 44-714, no constitutional flaws exist in K.S.A. 1995 Supp. 44-717(k). Neither can the Secretary’s actions be considered arbitrary, as peti tioners allege. “Arbitrary” has been defined as “ ‘ “without adequate determining principles . . . not done or acting according to reason or judgment.” ’ ”J. Enterprises, Inc. v. Board of Harvey County Comm’rs, 253 Kan. 552, 560, 857 P.2d 666 (1993). Because the Secretary acted appropriately in setting up an administrative hearing not specifically authorized by regulation, and the Kyburzes were afforded a hearing with due process safeguards, the Kyburzes’ argument fails. Next, the Kyburzes argue that the trial court erred when it determined that they had failed to exhaust their administrative remedies. An appellate court’s review of conclusions of law is unlimited. Gillespie v. Seymour, 250 Kan. 123, 129, 823 P.2d 782 (1991). The Kyburzes argue that the trial court was vested with jurisdiction to hear their petition for writ of mandamus. The basis for this jurisdiction, according to the Kyburzes, is that the assessment was invalid because the action of the Secretary was without valid legislative authority. See Boeing Co. v. Oaklawn Improvement Dist., 255 Kan. 848, 858, 877 P.2d 967 (1994) (Exhaustion of administrative remedies is not required where the action taken is without authority or permeated with fraud, corruption, or conduct so oppressive, arbitrary or capricious as to amount to fraud.). The Kyburzes attempt to compare the instant case to Mrizek v. Long, 187 F. Supp. 830, 835 (N. D. Ill. 1959), where a tax collector made tax assessments without first making demand for payment as required by statute. The court ruled that by comparing the amended complaint with the purported enabling statutes, it was clear that the taxpayers had sufficiently alleged unauthorized action by the defendant. The instant situation is distinguishable from Mrizek, however, in that the Secretary has not violated any statute. Although the procedure for administrative review provided by K.A.R. 50-2-19 does not specifically apply, the Secretary has provided a due process hearing which is proper under the broad powers granted by K.S.A. 44-714. The Kyburzes also point to the case of Fish & Chips v. Tax Comm, 69 App. Div. 2d 550, 419 N.Y.S.2d 768 (1979), where the New York courts invalidated a tax lien on constitutional grounds because a period existed where the Tax Commission could execute on its lien without ever having to show its claim had probable validity. The Kyburzes argue a similar situation exists because of the alleged lack of validity of the Secretary’s actions. Because the Secretary’s actions were valid, however, Fish & Chips has no application to the instant case. In summary, K.S.A. 44-714 gave the Secretary broad power to take actions “necessary or suitable” to administer the Employment Security Act. Because the Secretary’s actions were within that broad grant of power given to him by that statute, exhaustion of administrative remedies was required. Affirmed.	[ 48, -23, -7, -36, 10, -32, 58, 22, 97, -93, 53, 115, -17, -50, 4, 123, -16, 29, 112, 123, -41, -77, 39, 73, 86, -13, -103, -43, -80, 75, -4, 86, 76, -80, 42, -43, -58, -56, -103, -36, -114, 6, 8, -32, 113, -112, 48, -85, 48, 11, 49, 28, -13, 40, 17, -61, 73, 44, 121, -67, 65, -8, -82, -123, 127, 21, 33, 4, -104, -57, -40, 62, -114, 57, 9, -24, 114, -74, -122, 116, 43, -39, 12, 102, 98, -110, -99, -19, -36, -116, 30, 95, 29, -123, -109, 89, 67, 105, -74, 29, 125, 22, 7, -4, -2, 21, 31, -20, -122, -118, -36, -77, -113, 119, -122, -61, -17, -89, 48, 113, -100, -94, 95, 3, 49, 27, -82, -11 ]
Pierron, J.; On May 15, 1991, Chadwick D. Cashman was charged with first-degree murder. On September 9,1991, he pled guilty to involuntary manslaughter, as defined by K.S.A. 21-3404 (Ensley 1988), and unlawful possession of a firearm, as defined by K.S.A. 1990 Supp. 21-4204. On October 30, 1991, Cashman was sentenced to 3 to 10 years for involuntary manslaughter and 2 to 5 years for unlawful possession of a firearm. The sentencing court ordered consecutive sentences; it did not grant any jail time credit. After sentencing, Cash-man asked the court to grant him credit for time served. The court indicated it would credit Cashman with the time he had been in custody. After the involuntary manslaughter conviction but prior to the October 30, 1991, sentencing, Cashman’s probation on a misdemeanor conviction was revoked and he was serving time for that conviction. On August 16, 1991, Cashman had been sentenced to 1 year in the county jail on the misdemeanor charge, back dated to July 16, 1991. On February 6, 1992, Cashman filed a motion to modify sentence in which he asked for credit for time held in pretrial confinement between May 4, 1991, and October 30, 1991. On the same date, Cashman also filed a motion to amend sentence, asking the court to run his sentences concurrently rather than consecutively. Cashman filed another motion for jail time credit on August 16, 1993, asking for the jail time credit from May 11, 1991, to sentencing on October 30, 1991, for a total of 172 days. On May 22, 1995, he again filed a motion to credit jail time, asking the court to credit him with jail time for the period of May 11, 1991 to July 16, 1991. On July 11, 1995, the court granted Cashman 65 days of credit for the period from May 11, 1991 to July 16, 1991. On August 29, 1995, the court denied Cashman’s motion to modify sentence where he asked that his sentences be run concurrently rather than consecutively. Cashman claims the district court erred in calculating his jail time credit. The court partially granted Cashman’s motion to credit jail time on July 11, 1995. Cashman’s notice of appeal from this order was filed on September 8,1995. Cashman did not file within 10 days of the order. His appeal is not timely, and this court does not have jurisdiction to review this issue. Cashman also claims the district court erred by denying his motion to modify. He claims that since he was given a mandatory imprisonment sentence for involuntary manslaughter because a firearm was involved, his sentence for possession of a firearm should at least run concurrent with the involuntary manslaughter sentence; otherwise, he is being punished twice for the same act. The State offers no argument on this double jeopardy/multiplicity issue. “Multiplicity in a criminal pleading is the charging of two or more counts where only a single criminal act is involved. K.S.A. 21-3107(1) provides that an individual may be charged with multiple violations arising from a single transaction when the same conduct may establish the commission of more than one crime. The principles for determining whether charges are multiplicitous are: (1) A single offense may not be divided into separate parts; generally, a single wrongful act may not furnish the State with the basis for more than one criminal prosecution. (2) If each offense charged requires proof of a fact not required in proving the other offense, the offenses do not merge. (3) Where offenses are committed separately, at different times and at different places, they cannot be said to rise out of a single wrongful act. [Citation omitted.]” State v. Manzanares, 19 Kan, App. 2d 214, 220, 866 P.2d 1083 (1994). K.S.A. 21-4618 states that if a firearm is “used” during the commission of certain crimes, a mandatory prison sentence must be imposed. See State v. Rosler, 216 Kan. 582, 533 P.2d 1262 (1975); State v. Coleman, 19 Kan. App. 2d 412, 870 P. 2d 695, rev. denied 255 Kan. 1004 (1994). Cashman was properly charged with two different crimes, involuntary manslaughter and unlawful possession of a firearm. The involuntary manslaughter sentence contained mandatory imprisonment because a firearm was used during the commission of the crime, not because Cashman possessed a firearm. Therefore, there are no multiplicity or double jeopardy issues. K.S.A. 21-4608 leaves it within the district court’s discretion to run sentences consecutively or concurrently. The district court did not abuse its discretion. Affirmed.	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Schmisseur, J.: This is a medical malpractice and wrongful death case stemming from the medical treatment and eventual death of Mary Brown Kelley. The action is brought by Mary’s husband Gary M. Kelley, individually and as the special administrator of her estate, and her daughter Shannon E. Kelley against Thomas E. Barnett, Jr., M.D., and William C. Sclar, M.D. The plaintiffs contend that the trial court erred by granting the defendants’ motions for summary judgment, both of which alleged that the causes of action were barred by the statute of limitations. On March 18, 1990, Mary Kelley experienced abdominal pain and was subsequently admitted to the hospital. The following day, Dr. Sclar operated on her and removed parts of her colon. Dr. Barnett was a consultant for Mary Kelley’s care upon her hospital admission, and he provided post-operative care. Following the first surgery, Mary Kelley experienced severe pain. Dr. Sclar performed a second operation on March 25, 1990, for post-operative bowel obstruction. During the operation, Dr. Sclar discovered a blood clot that had caused most of Maty Kelley’s small bowel to cease functioning. Dr. Sclar interrupted the surgery to discuss the situation with Gary Kelley and Shannon Kelley. Advising them that Mary Kelley’s condition was catastrophic, Dr. Sclar indicated that he would have to remove most of her small bowel. After the surgery, Dr. Sclar advised the plaintiffs that there were potentially serious problems in Mary Kelley’s future care and treatment, including the indefinite need for Total Parental Nutrition (TPN). TPN patients require feeding through a tube and are highly susceptible to infection. On April 23, 1990, Mary Kelley was discharged from the hospital. On October 20, 1990, Mary Kelley suffered a major stroke, which left her permanently paralyzed. Mary Kelley died on September 26, 1991. The plaintiffs filed a petition on February 10, 1993. Each defendant filed a motion for summary judgment, claiming that the action was barred by the statute of limitations. After the motions were granted by the trial court, the plaintiffs filed a timely appeal. “The burden on the party seeking summary judgment is a strict one. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. When opposing a motion for- summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal we apply the same rule, and where we find reasonable minds cóúld differ as to the conclusions drawn from the evidence, summary judgment must be denied. [Citations omitted.]” Mitzner v. State Dept. of SRS, 257 Kan. 258, 260-61, 891 P.2d 435 (1995). At the hearing on the motions for summary judgment, the parties disputed the plaintiffs’ technical compliance with Kansas Supreme Court Rule 141 (1996 Kan. Ct. R. Annot. 162) regarding the procedure for summary judgment motions. Since the major dispute between the parties is a legal one rather than a factual.one, we view this technical compliance dispute as superfluous; In the present case, the applicable statute of limitations is found in K.S.A. 60-513(a), which provides: “The following actions shall be brought within two years: (5) An action for wrongful death. (7) An action arising out of the rendering of or failure to render professional services by a health care provider, not arising on contract.” Further, 60-513(c) provides: “A cause of action arising out of the rendering of or the failure to render professional services by a health care provider shall be deemed to have accrued at the time of the occurrence of the act giving rise to the cause of action, unless the fact of injury is not reasonably ascertainable until some time after the initial act, then the period of limitation shall not commence until the fact of injury becomes reasonably ascertainable to the injured party, but in no event shall such an action be commenced more than four years beyond the time of the act giving-rise to the cause of action.” Accordingly, the statute of limitations applicable to both counts in the plaintiffs’ petition is the 2-year time period. In Jones v. Neuroscience Assocs., Inc., 250 Kan. 477, 481, 827 P.2d 51 (1992), the 2-year statute of limitations period for filing a medical malpractice claim was at issue. Experiencing a problem with a radial nerve, the plaintiff filed her cause of action more than 2 years after surgery. She argued that the statute of fimitations was not triggered until she knew the extent of her injury. The defendants argued that the statute of limitations begins upon knowledge of the fact of injury, not the extent of injury. In Jones, 250 Kan. at 489, the court concluded: “Under K.S.A. 60-513(c), a cause of action in medical malpractice does not accrue until such time as substantial injury results from the alleged act of malpractice or until the fact of injury becomes reasonably ascertainable. Where there is conflicting evidence as to when a cause of action for medical malpractice is deemed to have accrued under K.S.A. 60-513(c), the matter becomes an issue for determination by the trier of fact. “Under the facts of this case evidence stemming from the ‘physician-patient relationship’ or ‘continuous treatment’ doctrines is relevant upon the issue of when it was reasonably apparent to Jones that her injury was permanent, i.e., substantial. Since the evidence is inconclusive, Jones must be afforded the right to have that issue determined by the trier of fact. If we were to decide otherwise, patients having surgery and then suffering an unexpected result would be required to immediately determine if the unexpected result was a substantial injury resulting from malpractice. This would be an uncalled-for result, seriously impairing the physician-patient relationship.” In Jones, 250 Kan. at 479, the day after surgery, the plaintiff was told there had been “a little problem during the surgery.” Throughout the following several months, the plaintiff was continually assured that the problem would be resolved. In the present case, Mary Kelley’s second surgery was interrupted by Dr. Sclar, who told the plaintiffs that there had been a catastrophe and that most of Mary Kelley’s small bowel would have to be removed. Further, Dr. Sclar told the plaintiffs that if Mary Kelley were older, he “would not bother” to try to remedy the situation. After the surgery, the plaintiffs were informed of potentially serious problems relating to Mary Kelley’s long-term feeding situation and her susceptibility to infection. The trial court indicated that this information should have informed the plaintiffs that the injury was substantial. Further, even if the injury were not ascertainable as substantial at that time, the trial court ruled that it certainly was ascertainable as a substantial permanent injury when Mary suffered a major stroke more than 2 years before her cause of action was filed. In Davidson v. Denning, 259 Kan. 659, 914 P.2d 936 (1996), the Kansas Supreme Court reviewed two Court of Appeals cases: Davidson v. Denning, 21 Kan. App. 2d 225, 897 P.2d 1043 (1995), and Raile v. Nationwide Agribusiness Ins. Co., No. 72,260, unpublished opinion filed June 23, 1995. The court also discussed Jones and other statute of limitations cases that dealt with the question of when the statute of limitations begins to run in a wrongful death case. The present case involves both a medical malpractice action and a wrongful death action. Davidson analyzes both the 2-year statute of limitations for medical malpractice actions and the 2-year statute of limitations as applied to wrongful death actions. Thus, the Davidson analysis is highly applicable here. Davidson states: “The discovery rule, as codified at K.S.A. 60-513(b) and (c), states that the limitations period starts when the ‘fact of injury’ is ‘reasonably ascertainable.’ The phrase ‘reasonably ascertainable’ means that a plaintiff has the obligation to reasonably investigate available sources that contain the facts of the death and its wrongful causation.” 259 Kan. at 678-79. The duly to reasonably investigate should also apply to medical malpractice cases. Davidson also states: “ ‘Reasonably ascertainable’ does not mean ‘actual knowledge.’ ” 259 Kan. at 678. “K.S.A. 60-513(b) and (c) provide that the limitations period starts when the ‘fact of injury’ becomes ‘reasonably ascertainable.’ Inherent in ‘to ascertain’ is ‘to investigate.’ ” 259 Kan. at 675. The 2-year medical malpractice statute of limitations is discussed in Davidson, 259 Kan. at 671-73, which states: “We applied the discovery rule to the statute of limitations in several medical malpractice cases involving living patients. In Jones v. Neuroscience Assocs., Inc., 250 Kan. 477, 827 P.2d 51 (1992), the district court granted the defendants’ motions for summary judgment, ruling the action was time barred. We reversed on the statute of limitations issues. 250 Kan. at 489. We cited Cleveland v. Wong, 237 Kan. 410, 701 P.2d 1301 (1985), and Hecht v. First National Bank & Trust Co., 208 Kan. 84, 490 P.2d 649 (1971), as persuasive authority for our decision. 250 Kan. at 489. “Jones concerned the question of when an injury received from surgery first became ‘substantial,’ or permanent, after doctors had repeatedly assured Mrs. Jones that her condition would resolve over time. Neither in Davidson nor in Raile is there a suggestion that medical personnel made any inaccurate or misleading representations to Mrs. Davidson or Mr. Raile concerning the cause of death. “In Cleveland, plaintiff, experiencing recurrent urinary tract infection and other related problems, sought treatment from the defendant doctor, who performed a resection procedure on plaintiff’s prostate on May 19,1978. Plaintiff filed suit on August 14, 1980. The question of when plaintiff’s injury was ‘reasonably ascertainable’ and whether the action was therefore timely filed was submitted to the jury, which determined that the action was timely. We affirmed. Cleveland, like Jones and unlike either Davidson or Raile, involved a patient injured from surgery who was told by the treating surgeon and personal physician that the conditions were temporary and normal immediately following surgery. The passage of time revealed the physicians’ statements to be wrong. Thus, plaintiff had no reason to suspect that the conditions were permanent or the result of malpractice. 237 Kan. at 414. “In Hecht, plaintiff was referred to the defendant doctors for radiation therapy for Hodgkin’s disease in 1964 and received 20 treatments. In January 1966, plaintiff was diagnosed with a recurrence of Hodgkin’s disease and was referred to defendants for additional x-ray therapy and treatment. Hecht also involved an injury that could not be evaluated as permanent until the passage of time. Plaintiff’s doctors believed that the condition would heal.. “We have applied the discovery rule in a non-malpractice personal injury case, Gilger v. Lee Constr., Inc., 249 Kan. 307, 820 P.2d 390 (1991). The district court in Gilger granted summary judgment for defendants on statute of limitations grounds. The Court of Appeals reversed. Gilger v. Lee Constr., Inc., 14 Kan. App. 2d 679, 687-89, 798 P.2d 495 (1990). We affirmed the portion of the Court of Appeals opinion concerning application of the K.S.A. 60-513(b) discovery rule. Gilger also involved a situation where the tortfeasor made inaccurate representations to the injured plaintiff, forestalling plaintiffs’ efforts to find the real cause. The injury in Gilger was ongoing, and plaintiffs continued to be harmed until the cause was determined and corrected. In Davidson and Raile, the injury was immediate and final. “Friends University v. W.R. Grace & Co., 227 Kan. 559, 608 P.2d 936 (1980), a roof-leak case, provides guidance about when an injury becomes ‘reasonably ascertainable’ within the meaning of K.S.A. 60-513(b). The university’s new library was completed in September 1969 and began to leak in 1970 or 1971. The university complained to the roofing company and manufacturers. Repairs were first attempted in 1970, but were not successful. Conferences and inspections were held, but the roofing company and manufacturers each denied liability. In April 1975, an independent expert determined that the cause of the leak was defective material supplied by W.R. Grace & Co., and the structure would require reroofing. The university filed suit on March 29,1977, claiming negligence, strict liability in tort, and breach of implied warranty. The defendant manufacturers were granted summary judgment based on the statute of limitations. On appeal, the university argued that under 60-513(b), the statute of limitations did not commence to run until the expert’s report was.obtained, citing Hecht as authority. We disagreed with the university and affirmed summary judgment, stating: ‘The new roof was obviously defective in some respect when lealdng occurred. These defendants did not advise the plaintiff that the roof would heal itself or take any action to lull plaintiff into believing the problem was less severe than it appeared. ‘In the case before us a new roof on a new building was leaking. The cause had to be defective design, materials, workmanship, or some combination thereof. At any time Friends could easily have obtained an expert opinion on the precise cause or causes for the leaking roof.’ 227 Kan. at 562-65. “Although the above cases provide general guidance on the question of when the ‘fact of injury’ is ‘reasonably ascertainable,’ none answer the question of how the discovery rule applies in wrongful death actions.” Dealing more specifically with the wrongful death issue, Davidson, 259 Kan. at 668-69, states: “K.S.A. 60-1901 provides: ‘If the death of a person is caused by the wrongful act or omission of another, an action may be maintained for the damages resulting therefrom if the former might have maintained the action had he or she lived, in accordance with the provisions of this article, against the wrongdoer, or his or her personal representative if he or she is deceased.’ “In 1963, when the Code of Civil Procedure was revised and enacted in its present form, the 2-year limitation in the wrongful death statute was relocated to what is now K.S.A. 60-513(a)(5). Consequently, ‘[a]n action for wrongful death’ is specifically listed as one that must be brought ‘within two years.’ We have observed that this revision was made for convenience and organizational purposes rather than to effect a change in the application of the wrongful death statute. [Citation omitted.] “The term ‘reasonably ascertainable’ as applied in 60-513(b) and (c) in a wrongful death action suggests an objective standard based on an examination of the surrounding circumstances. [Citation omitted.]” Davidson concludes: “We have not established a ‘bright fine’ rule that the wrongful death limitations period may never be extended beyond 2 years from the date of death. Here, there were no circumstances present justifying an extension, such as concealment of the fact of death orof medical records not a misrepresentation, alteration, inaccuracy, or falsification of any type.” 259 Kan.’ at 679: Crockett v. Medicalodges, Inc., 247 Kan. 433, 438-41, 799 P.2d 1022 (1990), discusses when the statute of limitations begins to run in a wrongful death action. In Crockett, the plaintiff argued that the statute of limitations would not begin to run until the date of death. It is true that the cause of action must be filed within at least 2 years of the date of death; however, the statute of limitations will begin to run sooner if the injury is reasonably ascertainable before that time. Likewise, in a medical malpractice case, the statute of limitations accrues as soon as. the injury occurs or when it is reasonably ascertainable. Here, the plaintiffs argue that Mary Kelley s injury must have been known and that the causal connection between the injury and the negligence of the defendants must have been identifiable before the statute of limitations began to run. As explained in Davidson and Jones, however, once an injuiy is known to be substantial and permanent, there is a duty placed on the plaintiff to reasonably investigate in order to determine whether negligence caused the damage. By the time of her stroke, if not before, Mary Kelley’s condition was substantial and permanent. There is no allegation that the defendants attempted to downplay the seriousness of Mary Kelley’s condition or to explain her condition as temporary. If plaintiffs were allowed to wait to commence suit until directly confronted with evidence of negligence, the statute of limitations would almost never begin to run. The plaintiffs were aware of the severity of Mary Kelley’s injuiy and should have investigated the possibility of negligence within at least 2 years of her stroke. The trial court did not err in ruling that the statute of limitations barred the plaintiffs’ causes of action. Affirmed.	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Gernon, J.: In this appeal by the Kansas Department of Revenue (Department), the Department contends the district court misconstrued K.S.A. 40-3118(d) in ruling that Roger Rutschman was not required to have his insurer file proof of insurance with the Division of Vehicles (Division) after he entered into a diversion agreement. On November 30, 1994, Rutschman entered into a diversion agreement in lieu of a DUI prosecution. His driving privileges were not suspended, either as a part of the agreement or in any other manner. In January 1995, the Division sent Rutschman a driver’s license suspension order, indicating that his driving privileges would be suspended if his insurance company did not file proof of his insurance with the Division by February 4, 1995. Rutschman subsequently filed a request for a hearing to determine whether he was required under K.S.A. 40-3118(d) to present proof of his insurance to the Division. The Department subsequently advised Rutschman’s attorney that it was the Division’s position that 40-3118(d) required an insurance verification on behalf of any person who has entered into a DUI diversion agreement and that no hearing would be provided. Rutschman then filed a petition for review with the district court and obtained a stay of the driver’s license suspension order pending the determination of whether he is required under the statute to file evidence of insurance with the Division. The district court ultimately found that the Division could not require Rutschman to file a proof of insurance because his driving privileges were never suspended and, therefore, he would never become eligible for reinstatement. The Department appeals. We agree with the Department and reverse. The relevant portion of K.S.A. 40-3118 provides: “(d) In addition to any other requirements of this act, the director [of vehicles] shall require a person to acquire insurance and for such person’s insurance company to maintain on file with the division evidence of such insurance for a period of three years from the date such person’s driving privileges are otherwise eligible to be reinstated after such person has been convicted in this or another state of any of the following violations: (2) violating K.S.A. 8-1567 [the DUI statute] and amendments thereto, or violating an ordinance of any city in this state or any law of another state, which ordinance or law declares to be unlawful the acts prohibited by that statute; “For the purposes of this act, the term ‘conviction’ includes pleading guilty or nolo contendere, being convicted or being found guilty of any violation enumerated in this subsection without regard to whether sentence was suspended or probation granted. A forfeiture of bail, bond or collateral deposited to secure a defendant’s appearance in court, which forfeiture has not been vacated, shall be equivalent to a conviction. Also entering into a diversion agreement in lieu of further criminal proceedings on a complaint alleging a violation of the offense described in paragraph (2) of this subsection shall constitute a conviction for the purpose of this act.” (Emphasis added.) Rutschman focuses on the language of K.S.A. 40-3118(d) which states that insurance verification must be filed “for a period of three years from the date such person’s driving privileges are otherwise eligible to be reinstated after such person has been convicted.” He argues this language indicates that verification is only required when an individual’s driver’s license is actually suspended. Rutschman reasons that since his license was never suspended as a result of the diversion, the requirements of K.S.A. 40-3118(d) do not apply to him. The Department maintains the language that Rutsehman relies upon merely describes when the verification should be filed with the Division. It claims the statute clearly indicates that a person who enters into a diversion agreement is required to file proof of insurance because diversions are counted as convictions for purposes of the Kansas Automobile Injury Reparations Act, K.S.A. 40-3101 et seq. Rutsehman agrees that K.S.A. 40-3118(d) is unambiguous. However, he misinterprets the plain language of the statute. The pivotal wording in the statutory language that Rutsehman relies upon is “are otherwise.” A court must give words in common usage their natural and ordinary meaning when interpreting a statute. Bank IV Wichita v. Flein, 250 Kan. 701, 705-06, 830 P.2d 29 (1992). The word “otherwise” is commonly defined as being in another manner or circumstance. Webster’s New World Dictionary 959 (3d college ed. 1988). “[F]rom the date such person’s driving privileges are otherwise eligible to be reinstated after such person has been convicted” clearly denotes when an individual convicted of a violation set forth in K.S.A. 40-3118(d) must have his or her insurer file verification of insurance with the Division. “[0]therwise eligible to be reinstated” means those other circumstances where an individual is convicted of one of the violations under the statute and his or her driving privileges are suspended. However, that wording cannot be read to exclude those situations where an individual enters into a diversion and his or her driving privileges are not restricted. Rutschman’s interpretation would render part of the statute meaningless and would clearly be outside any reasonable legislative intent. The legislature intended for individuals convicted of a violation under K.S.A. 40-3118(d) to have their insurer file proof of insurance for a period of 3 years either from the time their driving privileges are reinstated after being suspended or from the date of diversion of their driving privileges continue to remain in effect. The legislature recognized that such individuals pose a higher risk than other motorists and thus, by requiring proof of insurance, are ensuring these potential risks are sufficiently covered. This issue is a question of law which involves interpretation of a statute, and, therefore, our scope of review is unlimited. Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, 283, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995). Given our reading of the statute, we conclude the district court erred in finding that Rutschman did not have to comply with the requirements of K.S.A. 40-3118(d) and reverse. Reversed.	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Lewis, J.: A jury convicted defendant of the crimes of burglary and attempted theft. As a consequence, he was sentenced to a term of 34 months in prison and 12 months’ post-release supervision. On appeal, he attacks both his convictions and his sentence. Defendant denies having burglarized the house in question. He testified he was elsewhere when the crime was committed. The evidence to the contrary, however, was strong and compelling. Larry Adams was an eyewitness to the crime. The dwelling burglarized by defendant was the home of Adams’ mother. On the evening of the burglary, Adams was at his grandparents’ house, which was across the street and in full view of his mother’s residence. Adams testified that at about 8 or 9 p.m., he observed defendant sitting against a building across the street. He thought it somewhat suspicious that anyone would be sitting on the street at that hour of night, and he kept an eye on defendant throughout the evening. At one point, he looked out and defendant was nowhere to be seen. He was suspicious and went outside and walked over near his mother’s home. His mother’s bedroom was visible from where he was standing, and the curtains were open. He observed defendant inside the bedroom rummaging through a dresser. Adams yelled at defendant, who came out of the house onto the porch. Adams approached the porch, and an altercation ensued in which Adams hit defendant with a pool cue. After Adams struck defendant with the pool cue, defendant ran and Adams went to his grandparents’ home to get help. During this period of time, Adams testified, defendant was out of view for approximately 20 seconds. Soon, Adams and his grandfather chased defendant and located him running up a hill. They followed him. Adams testified that at one point he was within 2 feet of defendant. After the police arrived, Adams identified defendant as the burglar, and defendant was arrested. EYEWITNESS INSTRUCTION On appeal, defendant argues the trial court erred in not giving the jury an eyewitness instruction. Defendant did not request such an instruction. The law relating to this issue is concisely stated in State v. McIntyre, 259 Kan. 488, 492-94, 912 P.2d 156 (1996): “We have stated that a party may not assign as error the giving or failure to give an instruction unless he or she objects to or requests the instruction, stating the specific grounds for the objection. Absent such an objection or request, an appellate court may only reverse where the trial court’s failure to give the instruction was clearly erroneous. State v. Edwards, 252 Kan. 860, 864-65, 852 P.2d 98 (1993). The failure to give an instruction is clearly erroneous only if the reviewing court reaches a firm conviction that if the trial error had not occurred there was a real possibility that the jury would have returned a different verdict. “In determining whether there is a question about the reliability of eyewitness identification, this court in State v. Warren, 230 Kan. 385, 390, 635 P.2d 1236 (1981), identified five factors to be considered when evaluating the testimony of an eyewitness. These included (1) the opportunity of the witness to view the defendant at the time of the crime, (2) the witness’ degree of attention, (3) the accuracy of the witness’ prior descriptions of the criminal, (4) the level of certainty demonstrated by the witness at the confrontation, and (5) the length of time between the crime and the confrontation. The Warren court examined these factors in determining whether an instruction was necessary. 230 Kan. at 397-98. “Other factors not mentioned by the Warren court but highlighted by PIK Crim. 3d 52.20 (1995 Supp.), the instruction regarding eyewitness testimony, include the emotional state of the witness and whether the witness had observed the alleged perpetrator on an earlier occasion.” It is apparent in this case that the eyewitness identification of defendant was a vital and critical portion of the prosecutor’s case: “In any criminal action in which eyewitness identification is a critical part of the prosecution’s case and there is a serious question about the reliability of the identification, a cautionaiy instruction should be given advising the juiy as to the factors to be considered in weighing the credibility of the eyewitness identification testimony.” (Emphasis added.) State v. Richmond, 258 Kan. 449, Syl. ¶ 4, 904 P.2d 974 (1995). The record on appeal does not suggest that a serious question about the reliability of the identification existed. We have examined the evidence in light of the five factors identified in State v. Warren, 230 Kan. 385, 390, 635 P.2d 1236 (1981), and all five of those factors support the reliability of the identification of defendant as the burglar. In addition to the above, even if it was error to fail to give the instruction, that error will not warrant a reversal unless it was clearly erroneous. An error is clearly erroneous only if we conclude that but for the error there would have been a real possibility of a different verdict. We cannot reach that conclusion. The identification testimony of Adams was credible and positive, and the failure to give the instruction would not, in our judgment, have created the possibility of a different verdict. The failure to give the eyewitness instruction in this case was not clearly erroneous. CRIMINAL HISTORY Defendant argues the trial court erred in computing his criminal histoiy. The basis of that assertion is that the State failed to produce proper evidence of criminal history and that the trial court erred in admitting what evidence was produced. The State argued that defendant had three prior person felonies, giving him a criminal histoiy score of A. Defendant objected to two of the convictions shown, and the trial court held a hearing to determine defendant’s criminal histoiy under K.S.A. 21-4715(c). After the hearing, the trial court held that the State had proven the two convictions in question. The State argues initially that defendant failed to raise a sufficient objection on criminal histoiy to require it to come forward with any evidence other than the presentence investigation (PSI) report. We disagree. K.S.A. 21-4715(c) provides: “Upon receipt of the criminal histoiy worksheet prepared for the court, the offender shall immediately notify the district attorney and the court with written notice of any error in the proposed criminal histoiy worksheet. The state shall have the burden of producing further evidence to satisfy its burden of proof regarding any disputed part, or parts, of the criminal histoiy and the sentencing judge shall allow the state reasonable time to produce such evidence to establish the disputed portion of the criminal history by a preponderance of the evidence.” In this case, defendant filed a written notice objecting to the criminal history shown in the PSI report. In his objection, he simply stated that he “objects to the crimes numbered 1-5 and 9-15 of the Kansas Criminal History Worksheet.” At the hearing, defendant specifically raised the objection that the documentation of the two California convictions in question was insufficient. The State argues this objection was not sufficient. We disagree. A defendant is not required to deny that he committed the crimes shown on his criminal history before the State is put to its burden of proof. In State v. Tolliver, 22 Kan. App. 2d 374, 381, 916 P.2d 725 (1996), we held that “there is no provision in the KSGA [Kansas Sentencing Guidelines Act] which requires a defendant to come forward and provide the State with an accurate criminal history. There also is no provision in the KSGA which prohibits a defendant from misrepresenting his or her identity during a presentence investigation.” The question in this case is whether defendant raised a sufficient objection to his criminal history to put the State to its burden of proof. We hold that he did. Defendant’s written objection, coupled with the specific objection raised at the hearing, was sufficient to require the State to prove its allegations. This case is factually similar to State v. Perez, 21 Kan. App. 2d 217, 220, 897 P.2d 1048 (1995), and we rely on that opinion in reaching our decision. We hold that where a defendant has generally objected to his or her proposed criminal history in writing and subsequently raises specific objections at the hearing to determine criminal history, the requirements of K.S.A. 21-4715(c) are complied with and the State is required to prove its allegation of criminal history. We do not decide whether a simple objection in the nature of a general denial is sufficient in and of itself. That is not what this case is about, and that question will be answered if and when it becomes relevant. Our decision is rendered on the sufficiency of a general denial in writing, which is coupled with specific objections lodged at the hearing. The more compelling questions involve whether proof offered by the State to prove two prior California convictions was admissible and, if so, whether the evidence offered by the State was sufficient to prove defendant’s prior felony convictions. The State submitted that defendant had two prior juvenile adjudications for rape and kidnapping in California in 1962. The principal evidence used to prove these adjudications existed consisted of two letters from the supervisor of master files of the California Youth Authority. These two letters are identical; one is dated April 11, 1994, and the other April 22, 1994. The April 22 letter has attached to it a copy of the records of the California Youth Authority. The letters in question are on the California Youth Authority letterhead and bear the seal of that authority. They are signed by an individual who purports to be the supervisor of master files of the California Youth Authority. Insofar as they are relevant to the issue in this case, the two letters state the following: “Our records indicate that the subject [Jackie Lee White] was committed to the Youth Authority by the Juvenile Court of Los Angeles County on December 3, 1962 for Kidnapping and forcible rape and was discharged from the Youth Authority on March 15, 1968. Since the subject’s commitment ended in 1968, we are unable to supply you with the regular material, as under the present policy, we do not retain case files on discharged wards beyond the period of seven years.” Neither letter is certified, attested, or authenticated and neither are the attachments. Neither letter is accompanied by a certificate stating that the officer who signed the letter has custody of the records. What is apparent from reading the records is that these letters and the record attached to the letter of April 22, 1994, are the only evidence which currently exists of defendant’s 1962 adjudications. Defendant argues that the documents in question are inadmissible as evidence of defendant’s criminal history. One thing which is clear is that unless the documents are admissible under K.S.A. 60-465, they are hearsay and, as such, should not have been admitted into evidence. The question of the admissibility of the documents in question is governed by K.S.A. 60-465, which provides in pertinent part: “A writing purporting to be a copy of an official record or of an entry therein, meets the requirements of authentication if (1) the judge finds that the writing purports to be published by authority of the nation, state or subdivision thereof, in which the record is kept; or (2) evidence has been introduced sufficient to warrant a finding that the writing is a correct copy of the record or entry; or (3) the office in which the record is kept is within this state and the writing is attested as a correct copy of the record or entry by a person purporting to be an officer, or a deputy of an officer, having the legal custody of the record; or (4) if the office is not within the state, the writing is attested as required in clause (3) of this section and is accompanied by a certificate that such officer has the custody of the record. If the office in which the record is kept is within the United States or within a territory or insular possession subject to the dominion of the United States, the certificate may be made by a judge of a court of record of the district or political subdivision in which the record is kept, authenticated by the seal of the court, or may be made by any public officer having a seal of office and having official duties in the district or political subdivision in which the record is kept, authenticated by the seal of the office.” This court has dealt with the general question of whether evidence is admissible under 60-465 in order to prove criminal history. In State v. Strickland, 21 Kan. App. 2d 12, 14-15, 900 P.2d 854 (1995), we held: “While the documents the State offered to establish the Oklahoma felony conviction were certified or ‘attested’ as correct copies by the court clerk for Grant County, Oklahoma, in compliance with K.S.A. 60-465(3). they were not accompanied by the certificates required under K.S.A. 60-465(4). In addition, the trial court did not make findings sufficient to meet the requirements for authentication under K.S.A. 60-465(1) or (2). Accordingly, the documents did not meet the authentication requirements of K.S.A. 60-465 and, therefore, were not admissible under K.S.A. 60-460(o). “We hold that when the State attempts to establish a defendant’s criminal history.’' in a hearing pursuant to K.S.A. 1994 Supp. 21-4715 using copies of official court documents, those documents must meet the authentication requirements under K.S.A. 60-465 in order to be admissible as an exception to the rule against hearsay under K.S.A. 60-460(o). For copies of documents from Kansas courts, certification will suffice to meet the authentication requirements under K.S.A. 60-465(3). Copies of documents coming from courts of other states need to be certified or ‘attested’ and, in addition, accompanied by the certificate required by K.S.A. 60-465(4) in order to meet the requirements for authentication. A similar rule has been applied when proving prior convictions in proceedings to invoke the enhanced penalty provisions of the Habitual Criminal Act, K.S.A. 1994 Supp. 21-4504. See State v. Baker, 237 Kan. 54, 55, 697 P.2d 1267 (1985); State v. Crichton, 13 Kan. App. 2d 213, 216-17, 766 P.2d 832 (1988), rev. denied 244 Kan. 739 (1989).” We conclude the documents in question would not have been admissible under Strickland. That case dealt with a journal entry offered by the State to prove criminal history which was “certified or attested.” However, the document in question was not admissible because it was not accompanied by the certificate required under K.S.A. 60-465(4). Strickland rested on our interpretation of subsection (4) of K.S.A. 60-465. The State argues that Strickland does not apply in this case because the trial court found the documents admissible under K.S.A. 60-465(1) or (2). We agree with the State’s contention that subsections (1) and (2) of 60-465 provide an alternate method of proving authentication. The question we must decide is whether these documents were authenticated under either subsection (1) or (2) of the statute. The trial judge, in admitting the letters into evidence, said: “Now, unless somebody can point out any other pertinent provisions of the statute, it appears that the type of proof that is required is not specified by the statute. In other words, the statute is silent. It’s my understanding from the various seminars that I have attended on the sentencing guidelines, that this was left to the Court’s own determination under standard rules of evidence and under standard forms of proof used in previous cases. And, therefore, certified copies or authenticated copies, while a high form, of proof which would normally be satisfactory, are not the only forms of proof the Court can consider. That’s my understanding of the information provided in the official seminars that have been given throughout the state on sentencing guidelines. And it appears that the statute does not require a specific form of proof, it only provides that the State has the burden of producing further evidence and must prove by the preponderance of the evidence the aspects of the criminal history. “So, my view is any competent evidence sufficient to establish criminal history, and based upon my view of the statute, the Court would admit the exhibits at this time.” (Emphasis added.) There is nothing in the trial court’s finding to satisfy subsection (1) of 60-465. There is, in this case, no explicit finding by the judge that the letters were published by the authority of the State of California. Our focus, then, is on subsection (2). We note at this point that we have serious doubts as to whether the trial court in this case was even thinking about 60-465 when it made the comments set forth above. Those comments seem to be related more to the sufficiency of the evidence than they do to the admissibility of the documents in question. K.S.A. 60-465(2) provides that a document will meet the requirements of authentication if “evidence has been introduced sufficient to warrant a finding that the writing is a correct copy of the record or entry.” (Emphasis added.) As we read the wording of subsection (2), it does not appear to require that the trial court had made such a finding. That subsection appears to require only that sufficient evidence had been introduced to warrant such a finding. Under our interpretation, the fact that the trial court did not make a specific finding relating to subsection (2) does not mean we cannot determine on appeal whether the evidence was admissible under subsection (2). Before applying 60-465 to the issue at hand, we must first determine whether the two letters and the attachment come within the scope of the statute. That statute deals with “[a] writing purporting to be a copy of an official record or of an entry therein.” The question, then, is whether these letters and the attachment are writings purporting to be copies of an official record or of entries therein. We conclude that the attachment to the letter of April 22,1994, does purport to be a copy of an official record. It purports to be a copy of the “Register of Actions — Youth Authority, State of California.” That document, in and of itself, is certainly competent evidence that defendant was adjudicated a juvenile by reason of having committed the crimes of kidnapping and rape in 1962. The letters themselves purport to contain information from the official records of the Youth Authority. The contents of those letters appear to us to be a recitation of what is shown on the official records of the Youth Authority. It does not appear to us to be stretching the meaning of the statute to conclude that the two letters arid the attachment to the letter of April 22, 1994, fall within the ambit of the writings referred to by K.S.A. 60-465. Even if there is some question as to whether the letters themselves come within the ambit of that statute, there is no question that the attachment to the letter of April 22 purports to be a copy of the official records of the California Youth Authority. We hold that the writings in question qualify as writings under K.S.A. 60-465. The next question is whether there was evidence introduced sufficient to warrant a finding that the letters were correct copies of information from the California Youth Authority. We hold that the evidence was sufficient to warrant such a finding. The letters are on the California Youth Authority letterhead, and each bears the seal of that authority. The information in the letters is also contained in the Kansas PSI report. In addition, there is testimony by the presentence investigator. The presentence investigator in this case testified as to the process she followed in completing the PSI report. She testified that in compiling the defendant’s PSI report, she found the information concerning the California kidnapping and rape adjudications in a federal PSI report, which was prepared as a result of defendant’s conviction of a federal crime in 1977. She followed that federal PSI report to the source and obtained the materials now being examined. We do not have a denial by defendant that he was adjudicated a juvenile as shown by the records in question. There is no evidence in the record which indicates that defendant was not adjudicated a juvenile in the state of California in 1962, as shown by the evidence in question. We hold that the evidence produced in this case was sufficient to warrant the finding required by K.S.A. 60-465(2). Accordingly, we hold that the evidence in this case was admissible under K.S.A. 60-465(2). The final question is whether the evidence submitted by the State was sufficient to prove that defendant’s criminal history included the two California adjudications under discussion. K.S.A. 21-4715(a) provides that criminal history is to be determined by a “preponderance of the evidence at the sentencing hearing by the sentencing judge.” We conclude that the evidence produced in this case was sufficient to show, by a preponderance of the evidence, that defendant was adjudicated a juvenile offender in California in 1962 by reason of having committed the crimes of kidnapping and rape. We hold there is no error in this case in the determination of defendant’s criminal history. In view of our decision on the issue discussed above, we do not reach the other issues raised on appeal. Affirmed.	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Lorentz, J.: Following an earlier mistrial, defendant James DeWayne Bums was convicted of aggravated indecent liberties with a child. He appeals his conviction. On the evening of July 16, 1993, Youlanda Young went out with defendant. During the course of the evening, Young and defendant separated, and defendant returned to Young’s residence around 2 in the morning. Richard Murry was baby-sitting Young’s two children, including 10-year-old A.C. Murry testified that defendant offered to let him go home, but that Murry decided to stay with the children until Young returned because he did not know defendant very well. Murry fell asleep on the sofa in the living room. Murry awoke to A.C.’s screaming, “Get away from me.” Murry proceeded to A.C.’s room and saw defendant standing there. Defendant had been in the living room with Murry before Murry fell asleep. Murry claimed A.C. appeared frightened, so he brought her into the living room and asked her if defendant had touched her. She told Murry that defendant touched her on her lower part and her chest. Murry asked defendant to leave, and Murry then called the police. Officer Sean Furbeck of the Salina Police Department was sent to Young’s residence. Furbeck testified he met Murry on the driveway and Murry told him he had been baby-sitting for Young and that defendant had touched A.C.’s private parts. Furbeck had Officer Cara Bell take defendant to the police station, and Furbeck then took A.C. to the hospital. Bell testified that after defendant was given his Miranda warning, he waived his rights and told Bell he had gone inside Young’s residence and laid down on the bed next to A.C. Defendant stated A.C. was under the sheet and he had laid down on top of the sheet. When asked if he had touched A.C., defendant responded he might have touched A.C. between the legs, but he could not remember because he had blacked out. Defendant said he then woke up to A.C.’s screaming. At trial, defendant denied telling Bell he might have touched A.C. between the legs. Detective Irvin Augustine testified he interviewed defendant when he was brought to the police station. Defendant told Augustine he had been drinking earlier during the evening and that he had gone to Young’s residence at around 2:30 in the morning, where she was supposed to meet him. Defendant also told Augustine he remembered falling asleep in a chair in the living room, and the next thing he recalled was A.C. screaming. Defendant told Augustine he remembered lying on the bed in A.C.’s bedroom and A.C. telling him to get out. When Augustine asked defendant whether he touched A.C., defendant first denied it, but then said he could have. At trial, defendant denied telling Augustine he had laid down in A.C.’s bed. A.C. claimed she woke up that night because she felt a man touching her breasts, legs, and vagina and that the man put his fingers inside her vagina. The man tried to get on top of her, and she tried to get away and yelled for her baby-sitter. She remembered the man had a mustache but was unable to identify defendant as the man who had touched her. Dr. Mark Ohlde, the physician who examined A.C., could not find any evidence of penetration of A.C.’s vagina. Defendant testified he never touched A.C. Defendant stated he met Young at her residence on the evening of July 16, 1993, the two went out, and during the evening he had about 10 to 12 beers. Defendant further testified he returned to Young’s residence sometime after 2 in the morning with the understanding Young was going to meet him there. According to defendant, after arriving at Young’s residence, he went to sleep on the recliner in the living room and awoke to A.C.’s screaming and went to her room. Defendant further testified that Murry came into the room and ordered defendant to get out. Defendant was charged in a three-count complaint with rape, aggravated indecent liberties with a child, and aggravated burglary. The aggravated burglary charge was later dismissed, and the remaining charges were contained in an amended complaint. Defendant’s jury trial took place February 8-10, 1994. During the conference regarding the jury instructions, the trial court announced it was persuaded, based on the evidence, that the charges of rape and aggravated indecent liberties were multiplicitous and that aggravated indecent liberties should be instructed on as a lesser included offense of rape. The State objected; however, defendant did not. The trial court proceeded to give a lesser included offense instruction to the jury. After deliberating for a number of hours, the jury announced it could not reach a unanimous verdict and a mistrial was declared. Affidavits from 5 jurors indicated the final vote of the jury prior to the declaration of mistrial was 11 to 1 in favor of not guilty on the aggravated indecent liberties with a child charge. There were no votes in favor of guilty on the rape charge. Defendant filed a motion for judgment of acquittal on February 17,1994, claiming the evidence failed to establish his guilt beyond a reasonable doubt on either charge. The motion was denied. On March 16, 1994, defendant filed a motion to dismiss the rape charge on the ground a retrial violated his right to be protected from double jeopardy. The motion was not heard until a post-trial setting after the second trial on September 19, 1994. The motion was ultimately denied. The cause proceeded to a second trial beginning on March 22, 1994. The same jury instructions were given with neither party objecting. Ultimately, the jury found defendant guilty of rape. A.C.’s testimony at the second trial was inconsistent with her testimony from the first trial. There were differences regarding when she awoke, whether she was awake when the man touched her vagina, and the order in which she was touched. Following the second trial, defendant filed a motion for new trial and a motion for acquittal. In his motion for new trial, defendant claimed he was placed in double jeopardy by the trial court allowing a second trial on the rape charge. After argument on the two motions, the trial court denied the motion for new trial, finding the jury had been dismissed because of a failure to reach a verdict, and, therefore, double jeopardy did not attach. The trial court then granted defendant’s motion for acquittal, finding there was insufficient evidence to support the rape conviction. However, the trial court went on to rule there was overwhelming evidence to convict defendant of the lesser included offense of aggravated indecent liberties and that he should be convicted on that charge. Defendant first argues his right to be protected from double jeopardy was violated when he was required to go to trial a second time on the charge of rape. Whether defendant’s constitutional right was violated is a question of law. “An appellate court’s review of a question of law is unlimited.” Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, Syl. ¶ 1, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995). The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution protects against subsequent prosecutions for the same offense. K.S.A. 21-3108 codifies the rules relating to double jeopardy in Kansas. See State v. McKay, 217 Kan. 11, 13, 535 P.2d 945 (1975). K.S.A. 21-3108 states in relevant part: “(1) A prosecution is barred if the defendant was formerly prosecuted for the same crime, based upon the same facts, if such former prosecution: (c) Was terminated without the consent of the defendant after the defendant had been placed in jeopardy, except where such termination shall have occurred by reason of: (i) The illness or death of an indispensable party; or (ii) the inability of the jury to agree; or (iii) the impossibility of the jury arriving at a verdict.” (Emphasis added.) K.S.A. 22-3423 states in part: “(1) The trial court may terminate the trial and order a mistrial at any time that he finds termination is necessary because: . . . (d) The jury is unable to agree upon a verdict.” Here, at the close of the first trial, the trial court declared a mistrial because the jury was unable to reach a unanimous verdict and ordered a new trial based on the same charges. Defendant asserts that because the affidavits of five jurors, obtained after the first trial, indicated there were no votes in favor of finding him guilty of rape, he was acquitted on that charge, and a new trial on rape violated his right to be protected from double jeopardy. In State v. Blockyou, 195 Kan. 405, 408, 407 P.2d 519 (1965), our Supreme Court concluded:”A defendant has not been in [double] jeopardy where his first trial results in a mistrial because the jury cannot agree. [Citation omitted.]” Blockyou was followed in State v. McKay, 217 Kan. at 13, a case which involved facts similar to the present case. In McKay, the defendant was tried twice for second-degree murder. At the conclusion of the first trial, the juiy was unable to agree oh a verdict, and the trial court declared a mistrial. The jurors stood nine for conviction of voluntary manslaughter and three for involuntary manslaughter. Both of those crimes were lesser offenses of second-degree murder. Affidavits of six jurors revealed the jury had decided defendant was not guilty of second-degree murder. Based on this, defendant filed a motion for a judgment of acquittal as to second-degree murder. The motion was denied, and a second trial was held on the second-degree murder charge. Defendant was convicted of voluntary manslaughter at the second trial and he appealed, claiming he was placed in double jeopardy because the jury in the first trial did not believe he was guilty of second-degree murder. 217 Kan. at 12. The McKay court cited the Judicial Council’s notes regarding K.S.A. 22-3423, which state: “ ‘A properly ordered mistrial does not prevent a subsequent trial on the same charge, even though the order is made after the defendant has been placed in jeopardy.’ ” 217 Kan at 13. Here, because the first trial ended with a hung jury, the trial court had statutory authority to declare a mistrial. Furthermore, under K.S.A. 21-3108, a new prosecution on the same charge was proper. Defendant next argues it was error for the trial court to instruct that aggravated indecent liberties with a child was a lesser included offense of rape. Defendant was charged in separate counts with both offenses in the amended complaint. “The charging document is the jurisdictional instrument which gives the court authority to convict a defendant of crimes charged in the complaint or of the lesser included crimes thereof. Conversely, if a crime is not specifically stated in the information or is not a lesser included offense of the crime charged, the district court lacks jurisdiction to convict a defendant of the crime, regardless of the evidence presented. [Citation omitted.]” State v. Horn, 20 Kan. App. 2d 689, 692, 892 P.2d 513, rev. denied 257 Kan. 1095 (1995). At the jury instruction conference during the first trial, the trial court determined it would be multiplicitous to instruct the jury on both rape and aggravated indecent liberties with a child. “[M]ultiplicity is ‘the charging of a single offense in several counts of a complaint or information.’ State v. Freeman, 236 Kan. 274, 280, 689 P.2d 885 (1984). The primary concern with multiplicity is that it creates the potential for multiple punishments for a single offense, which is prohibited by the double jeopardy clause of the Fifth Amendment of the United States Constitution and section 10 of the Kansas Constitution Bill of Rights. State v. Edwards, 250 Kan. 320, 329, 826 P.2d 1355 (1992).” State v. Eastridge, 20 Kan. App. 2d 973, 975, 894 P.2d 243 (1995). At the first trial, the trial court decided to instruct the jury that aggravated indecent liberties with a child was a lesser included offense of rape, reasoning that fondling and embracing would occur prior to the actual rape or sexual intercourse. Although arguably the trial court’s reasoning was erroneous, if its ruling is correct for other reasons, the result will not be set aside on appeal. “When the trial court reaches the correct result based upon the wrong reason, this court will affirm the trial court.” Cabral v. State, 19 Kan. App. 2d 456, Syl. ¶ 9, 871 P.2d 1285, rev. denied 255 Kan. 1000 (1994). During the first trial, the State objected to the lesser included offense instruction, claiming the charges were based on separate occurrences and were not multiplicitous. Defendant made no objection. The trial court gave the instruction as a lesser included offense, over the objection of the State. At the second trial, the same instructions were given; however, neither party objected. “ ‘[N]o party may assign as error the giving or failure to give an instruction unless he or she objects thereto before the jury retires to consider its verdict, stating distincdy the matter to which he or she objects and the grounds for the objection, unless the instruction is clearly erroneous. K.S.A. 22-3414(3). An instruction is clearly erroneous only if the reviewing court reaches a firm conviction that if the trial error had not occurred there is a real possibility the jury would have returned a different verdict. [Citation omitted.]’ ” State v. DePriest, 258 Kan. 596, 605, 907 P.2d 868 (1995). In order to determine whether the instruction was clearly erroneous, this court must determine whether aggravated indecent liberties with a child is a lesser included offense of rape. This is a question of law, and this court’s review is de novo. See Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, Syl. ¶ 1. K.S.A. 21-3107 provides in part: “(2) Upon prosecution for a crime, the defendant may be convicted of either the crime charged or an included crime, but not both. An included crime maybe any of the following: (a) A lesser degree of the same crime; (b) an attempt to commit the crime charged; (c) an attempt to commit a lesser degree of the crime charged; or (d) a crime necessarily proved if the crime charged were proved.” (Emphasis added.) We conclude that (2)(d) above is the only subsection which applies in the instant case. K.S.A. 21-3504 provides: “(a) Aggravated indecent liberties with a child is: (3) engaging in any of the following acts with a child who is under 14 years of age: (A) Any lewd fondling or touching of the person of either the child or the offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child or the offender, or both." K.S.A. 21-3502(a) provides that “[r]ape is: . . . (2) sexual intercourse with a child who is under 14 years of age.” K.S.A. 21-3501(1) defines “sexual intercourse” for purposes of rape to include: “any penetration of the female sex organ by a finger, the male sex organ or any object. Any penetration, however slight, is sufficient to constitute sexual intercourse.” As was previously noted, the evidence at trial included a statement from A.C. that she felt a man touching her breasts, legs, and vagina and that he put his fingers inside her vagina. “In cases where the crime charged may include some lesser crime, it is the duty of the trial court to instruct the juiy, not only as to the crime charged but as to all lesser crimes of which the accused might be found guilty under the information or indictment and upon the evidence adduced.” K.S.A. 21-3107(3). “In determining whether a lesser crime is a lesser included offense under K.S.A. 21-3107(2)(d), a two-step analysis or two-pronged test has been adopted. The first step is to determine whether all of the statutoiy elements of the alleged lesser included crime are among the statutory elements required to prove the crime charged. If so, the lesser crime is a lesser included crime of the crime charged. Under the second prong of the test, even if the statutory elements of the lesser crime are not all included in the statutoiy elements of the crime charged, the lesser crime may still be a lesser included crime under K.S.A. 21-3107(2)(d) if the factual allegations of the charging document and the evidence required to be adduced at trial in order to prove the crime charged would also necessarily prove the lesser crime. State v. Fike, 243 Kan. 365, Syl. ¶ 1, 757 P.2d 724 (1988).” State v. Berherich, 248 Kan. 854, 857, 811 P.2d 1192 (1991). Under the first prong of Fike, indecent liberties contains the elements of lewd fondling or touching and intent to arouse or satisfy the sexual desires of the child or the offender or both. These elements are not specifically included in the rape statute. Under the second prong of Fike, the evidence required at trial in order to prove rape is sexual intercourse, which by definition includes penetration of the female sex organ by a finger. In order to have “sexual intercourse,” contact would be necessary and under the facts of this case involving penetration by a finger, that contact could obviously be considered “lewd fondling or touching.” Under the facts adduced in this case, once the elements of rape were proved, the crime of aggravated indecent liberties was also necessarily proved. We are convinced the trial court was correct under the facts of this case in finding aggravated indecent liberties with a child was a lesser included offense of rape. Following the conclusion of the second trial, defendant filed a motion for acquittal, claiming the evidence was insufficient to convict him of rape. The trial court concluded the evidence was insufficient to support a conviction of rape and granted defendant’s motion. But, the trial court went on to find the evidence was overwhelming to convict defendant of the lesser included charge of aggravated indecent liberties with a child. The trial court then entered judgment convicting defendant of that charge. Defendant, for his final contention, argues the trial court did not have authority to acquit him of rape and then convict him of a different charge. In support of his argument, defendant cites K.S.A. 22-3419(3), arguing such statute grants the court the power to acquit and does not authorize modification of a verdict. K.S.A. 22-3419(3) states in relevant part: “If the jury returns a verdict of guilty or is discharged without having returned a verdict, a motion for judgment of acquittal may be made or renewed within seven days after the jury is discharged or within such further time as the court may fix during the seven-day period. If a verdict of guilty is returned the court may on such motion set aside the verdict and enter judgment of acquittal. It shall not be necessary to the making of such a motion that a similar motion has been made prior to the submission of the case to the jury.” (Emphasis added.) Although no Kansas cases have dealt directly with the trial court’s power to modify a jury’s verdict on a greater offense to a lesser included offense, Kansas courts have held that when “a defendant has been convicted of a greater offense, but the evidence only supports a lesser included offense, the case must be remanded to resentence the defendant for conviction of the lesser included offense. [Citations omitted.]” State v. Kingsley, 252 Kan. 761, 782, 851 P.2d 370 (1993). See also State v. Ferris, 19 Kan. App. 2d 180, 184-85, 865 P.2d 1058 (1993). Federal courts have more directly addressed the specific question presented. In Government of Virgin Islands v. Josiah, 641 F.2d 1103, 1108 (3d Cir. 1981), the government appealed a postverdict judgment of acquittal seeking entry of judgments of conviction on a lesser included offense after the jury had found the defendant guilty of the greater offense. The court held: “[A] lesser-included offense consists of some of the elements of tire greater offense and does not require the proof of any element not present in the greater offense. [Citation omitted.] A trial court therefore has authority to enter a judgment of conviction on a lesser-included offense when it finds that air element exclusive to the greater offense is not supported by evidence sufficient to sustain the jury’s finding of guilty on the greater offense. [Citations omitted.]” 641 F.2d at 1108. The court in United States v. LoRusso, 695 F.2d 45 (2d Cir. 1982), cert. denied 460 U.S. 1070 (1983), cited favorably to Josiah in its opinion. LoRusso involved a somewhat different issue. In that case, the defendant was charged with possession with intent to distribute, heroin. At the close of the government’s case, the defendant moved for judgment of acquittal, and the trial court found there was no evidence that defendant had intended to distribute the heroin in his possession. The government moved to have the court submit a charge of simple possession without intent to distribute to the jury as a lesser included offense. 695 F.2d at 50. The defendant contended the modification of the charge was an “impermissible variance in the indictment” and the court had no power to submit die lesser included offense. 695 F.2d at 52. The Third Circuit Court of Appeals stated that under Fed. R. Crim. Proc. 31(c), which provides that a defendant may be found guilty of an offense necessarily included in the offense charged, the trial judge may instruct die jury it may find the defendant guilty of either the greater or lesser offense, and if the jury returns a verdict of guilty on the greater offense, it may enter a judgment of guilty on the greater offense, it may enter a judgment of guilty on the lesser offense alone or, prior to submitting the case to die jury, the trial judge may decide to submit only the lesser offense. 695 F.2d at 52. We note that under federal law only the identity of the elements test is used for determining when a crime is a lesser included offense of a greater crime. However, even diough Kansas has a more expansive view of the definition of what constitutes a lesser included crime, the federal cases are nevertheless persuasive. Adopting the rationale from Josiah and LoRusso, we conclude that when a trial court determines the evidence in a jury trial is insufficient to support the jury’s verdict convicting a defendant of an offense, but that same evidence does support a conviction of a lesser included offense, the trial court may acquit the defendant of the greater offense and enter judgment convicting the defendant on the lesser included offense. Here, defendant was convicted by the jury of rape, and under the special facts of the case the jury must have necessarily found that a lewd fondling or touching occurred. The trial court had proper authority when it acquitted defendant of the greater offense of rape to enter judgment convicting him of the lesser included offense of aggravated indecent liberties with a child. Affirmed.	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Gernon, J.: This is a will contest case. The contestants, Lenard and Charlene Miller, appeal the trial court’s decision to admit the will of Alta E. Oliver into probate. Oliver died in 1993 at the age of 93, leaving an estate of approximately $400,000. She was survived by a sister and several nieces and nephews. The Millers were friends with Oliver. From 1978 until her death, Oliver wrote several different wills, leaving the Millers as beneficiaries in each, but in varying degrees. In 1985, the Millers took Oliver to her attorney, Raymond Stein, and she executed a will which made the Millers the principal beneficiaries. In 1988, a guardian and a conservator were appointed for Oliver. She also entered a nursing home that fall. In November 1988, several of Oliver’s relatives, including her sister, visited her and tape recorded their conversation with her. The substance of the conversation was to advise Oliver that she had given Lenard Miller control of her estate and to urge her to see her lawyer to check her estate plan. One nephew, Charles Albert, subsequently asked Guy Steier, Oliver’s guardian ad litem, to meet with Oliver because he felt she wanted more input into her personal affairs. Steier met with Oliver in January 1989. Steier testified that Oliver seemed surprised she had so much money in various accounts. He testified that at that time, she expressed reservations about the amounts the Millers would receive under the will. She stated, according to Steier, that she wanted more input as to how her affairs were being handled. Steier contacted the local mental health center and requested an evaluation of Oliver. A hearing on a petition for restoration of capacity was held, at which time the results of the evaluation were presented. The magistrate judge found that Oliver was a disabled person and ordered the guardianship and conservatorship to continue. The magistrate made no ruling as to her testamentary capacity. Oliver’s niece, Charlene Rupe, was appointed guardian, and a bank was appointed as conservator. In June 1989, Rupe and two other nieces took Oliver to the bank where her certificates of deposit naming the Millers as the payable on death recipients were located. A bank teller, Peg Kenningsman, testified that Oliver informed her she wanted to change the beneficiaries on her certificates of deposit. Kenningsman testified that Oliver did not talk with her nieces while at the bank and never wavered in her request. Kenningsman testified that Oliver appeared to know what she was doing. That same day, the nieces took Oliver to see Steier. Steier met with Oliver in private. The 1985 will was reviewed in detail, and Oliver, according to Steier, made very specific and knowledgeable changes to the will. Two days later, Steier again met with Oliver. They reviewed the will, and Oliver made a change in one of the clauses. On June 30,1989, Steier and two of his employees, Janet Holway and Marilyn Huffman, went to see Oliver at the nursing home with the final draft of the will. When they arrived, Oliver was playing cards and Steier noted that her cards were properly organized and she was playing the correct meld. After she finished playing the hand, they went to her room and reviewed the 1985 will and the new one. Steier stated that Oliver knew her family, her land, and where her bank certificates and accounts were generally located, but she was not sure how much money was in the accounts. When Steier suggested $190,000, Oliver was still not sure about the amount but stated that she trusted him. Oliver executed the will in the presence of Steier, Holway, and Huffman. Steier and Holway signed as witnesses, and Huffman notarized the document. Steier testified that in his opinion, Oliver possessed testamentary capacity at that time and was not under undue influence. Holway also testified that in her opinion, Oliver knew who her relatives were, what her assets were, and why they were present in her room on June 30, 1989. The 1989 will was submitted for probate. The Millers contested the validity of the 1989 will, claiming it was the product of undue influence and that Oliver lacked testamentary capacity at the time the will was executed. Can a conservatee make testamentary decisions? The Millers first argue that since Oliver was a disabled person under K.S.A. 59-3002(a) and had a guardian and conservator involuntarily appointed for her, she lacked the required capacity to execute the 1989 will and to change the beneficiaries on her payable on death certificates of deposit. They maintain the trial court erred in finding that Oliver was competent to execute her 1989 will and make the changes to her certificates of deposit because an involuntary conservatee cannot make testamentary dispositions. The Millers’ contention raises a question of law over which this court has unlimited review. See Hillman v. Colonial Penn Ins. Co., 19 Kan. App. 2d 375, 376, 869 P.2d 248, rev. denied 255 Kan. 1001 (1994). While it is true that most of our decisions on this issue have arisen in the context of a voluntary conservatorship, see, e.g., Campbell v. Black, 17 Kan. App. 2d 799, 844 P.2d 759 (1993), our courts continue to adhere to the principle that being under a guardianship or conservatorship does not prevent one from making testamentary dispositions. As noted in Citizens State Bank & Trust Co. v. Nolte, 226 Kan. 443, 449, 601 P.2d 1110 (1979), the conservator’s purpose “is to manage the estate during the conservatee’s lifetime. It is not his function, nor that of the probate court supervising the conservatorship, to control disposition of the conservatee’s property after death.” In In re Estate of Raney, 247 Kan. 359, 799 P.2d 986 (1990), the decedent’s children sought and obtained a conservatorship for him against his wishes. The decedent believed his children imposed the conservatorship in order to preserve his estate for themselves and subsequently executed a will while under the conservatorship. The trial court refused to admit the will to probate, finding that the decedent lacked testamentary capacity to make the will because he suffered from insane delusions. The Supreme Court reversed on the basis that the trial court’s finding was not supported by the evidence. 247 Kan. at 375. In reaching its holding, the court noted: “The trial court recognized that being under a guardianship and conservatorship does not necessarily deprive one of the power to make a will. Incompetency to transact business is not the equivalent of insanity and does not mean that the testator lacks testamentary capacity. Previously, this court concluded that an aged person who was ‘ “feeble-minded and incapable of managing his affairs” ’ and who needed a guardian could, three weeks later, be competent to make a will. In re Estate of Hall, 165 Kan. 465, 469, 195 P.2d 612 (1948) (quoting Mingle v. Hubbard, 131 Kan. 844, 293 Pac. 513 [1930]). In Hall, the court stated: ‘It is practically a universal rule that the mere fact that one is under guardianship does not deprive him of the power to make a will.’ 165 Kan. at 469 (citing Annot., 8 A.L.R. 1375).” 247 Kan. at 367-68. We conclude that a conservatee, whether voluntary or involuntary, clearly retains the right to decide how his or her property is to be distributed upon death. See In re Estate of Perkins, 210 Kan. 619, 626-27, 504 P.2d 564 (1972); In re Estate of Briley, 16 Kan. App. 2d 546, 549, 825 P.2d 1181 (1992). This right includes the power to change beneficiaries on payable on death accounts as well as make wills. See In re Estate of Raney, 247 Kan. at 367-68; Campbell v. Black, 17 Kan. App. 2d at 802-03. “As long as the requisite mental capacity exists, a person has the power to dispose of the property as he wishes, and this power should not be interfered with by the court.” In re Estate of Raney, 247 Kan. at 367. Consequently, if, as in this case, Oliver possessed testamentary capacity at the time she executed her will and made the changes to her payable on death certificates of deposit, the distributions are valid. Burden of Proof The Millers next assert that there is a presumption of testamentary incapacity for any ward or conservatee. We disagree. It is well established in Kansas that once it has been shown that “a will has been executed in accordance with the formalities required by law, the burden is upon the will contestant and he must produce evidence to support his position.” In re Estate of Perkins, 210 Kan. at 626. The cases cited by the Millers involve individuals who have been adjudicated mentally incompetent or insane. Here, the record does not support an assertion that Oliver’s mental condition was so diminished as to render her insane or mentally incompetent. Other jurisdictions hold the fact that an individual has been adjudicated incompetent at a guardian proceeding does not mean he or she cannot execute a will. These courts note that this fact is merely evidence to be considered when determining testamentary capacity and the proponent does not carry a higher burden of proof on this issue. See, e.g., Paskvan v. Mesich, 455 P.2d 229, 238-39 (Alaska 1969); In re Estate of Basich, 79 Ill. App. 3d 997, 1001, 398 N.E.2d 1182 (1979); see also Annot., 89 A.L.R. 2d 1120. Other courts point out that a guardianship and conservatorship can be based on a variety of reasons other than for complete mental incompetency, such as age, which do not necessarily affect an individual’s testamentary capacity. See, e.g., Estate of Dopkins, 34 Cal. 2d 568, 578, 212 P.2d 886 (1949); In re Bottger's Estate, 14 Wash. 2d 676, 697, 129 P.2d 518 (1942); see also Annot., 89 A.L.R. 2d 1120, 1130. Based on the above reasoning, we conclude the burden of proof on the issue of testamentary capacity does not change in those instances where a testator is involuntarily appointed a conservator or guardian. Testamentary Capacity The Millers contend the trial court’s findings that Oliver possessed testamentary capacity when she changed her payable on death certificates and when she executed her will are not supported by the evidence. When reviewing the trial court’s findings, this court must determine whether substantial competent evidence exists to support the court’s findings and will not reweigh conflicting evidence. In re Estate of Bolinder, 19 Kan. App. 2d 72, 74, 864 P.2d 228, rev. denied 254 Kan. 1007 (1994). A testator must have testamentary capacity to make a will. In Kansas, the requirements for determining testamentary capacity are well settled: “It is the established rule in Kansas, the deceased possesses testamentary capacity if, on the date he executes the instrument which determines the manner in which the property will be disposed after death, he knows and understands the nature and extent of that property, has an intelligent understanding concerning the disposition he desires to make of it, realizes who his relatives are and the natural objects of his bounty, and comprehends the nature of the claims of those whom he desires to include and exclude in and from participation in his worldly effects after he has no further need for them.” In re Estate of Ziegelmeier, 224 Kan. 617, 621, 585 P.2d 974 (1978). See In re Estate of Raney, 247 Kan. at 367; In re Estate of Bolinder, 19 Kan. App. 2d at 75. The critical time in determining testamentaiy capacity is when the will is made and executed. All other evidence concerning the testator’s mental capacity before or after the time of execution is only an aid in deciding the issue. In re Estate of Barnes, 218 Kan. 275, 281, 543 P.2d 1004 (1975). “The test of a testamentary capacity is not whether a person has capacity to enter into a complex contract or to engage in intricate business transactions nor is absolute soundness of mind the real test of such capacity. The established rule is that one who is able to understand what property he has, how he wants it to go at his death and who are the natural objects of his bounty is competent to make a will even though he may be feeble in mind and decrepit in body.” In re Estate of Perkins, 210 Kan. at 626. The Millers refer to various instances before and after the dates in question as support for their contention that Oliver lacked testamentary capacity. They further point out that Oliver suffered from degenerative dementia and did not know the exact amount of money in her bank accounts at the time she executed her will. The mere fact that a person suffers from senile dementia does not mean that person lacks testamentary capacity. In re Estate of Brown, 230 Kan. 726, 730, 640 P.2d 1250 (1982). Here, Steier, the attorney who drafted the will, and two of his employees were present when Oliver executed the will. Steier testified that Oliver re viewed the will before signing it and knew to whom she wanted her property to go at her death. While Oliver was not positive of the exact amount of her cash assets, she listed her relatives and extensively discussed her personal and real property with Steier. It is apparent from Steier’s and Holway’s testimony that Oliver knew the general nature of her property and how she wanted it distributed when she signed the will. Under the circumstances in this case, the trial court’s findings that Oliver had testamentary capacity to make the will and to make changes to her certificates of deposit are supported by substantial competent evidence. Undue Influence The Millers contend that Oliver’s decisions concerning the disposition of her property were the result of undue influence and that the trial court erred when it found no undue influence. Once the proponent has presented a prima facie case of the proper execution of the will, the burden of proof shifts to the contestant alleging undue influence to overcome that showing by clear, satisfactory, and convincing evidence. In re Estate of Bennett, 19 Kan. App. 2d 154, 165, 865 P.2d 1062 (1993), rev. denied 254 Kan. 1007 (1994). However, a presumption of undue influence arises if the beneficiary of the will is in a confidential or fiduciary relationship with the testator and suspicious circumstances exist. 19 Kan. App. 2d at 169. The courts have refused to provide an exact definition for these factors and state that whether they exist depends upon the particular facts and circumstances of each case. 19 Kan. App. 2d at 167-68, 170. The trial court found that Charlene Rupe, as Oliver’s guardian, was the only relative or beneficiary under her will standing in a fiduciary relationship with Oliver. The court further found that the series of alleged “suspicious circumstances” were not, in fact, suspicious, especially in light of the extensive independent advice given by Steier to Oliver. The court concluded that the Millers failed to establish a presumption of undue influence and, thus, the burden of proof did not shift to the proponents of the 1989 will. Here, the trial court’s finding was a negative finding. A negative finding means the party with the burden of proof failed to meet that burden. Mohr v. State Bank of Stanley, 244 Kan. 555, 567-68, 770 P.2d 466 (1989). An appellate court will not disturb such a finding “absent proof of an arbitrary disregard of undisputed evidence, or some extrinsic circumstance such as bias, passion, or prejudice.” Duncan v. City of Osage City, 13 Kan. App. 2d 364, 369, 770 P.2d 843, rev. denied 245 Kan. 783 (1989). “ ‘An appellate court cannot nullify a trial judge’s disbelief of evidence nor can it determine the persuasiveness of evidence which the trial judge may have believed.’ ” Mohr v. State Bank of Stanley, 244 Kan. at 568 (quoting Highland Lumber Co., Inc. v. Knudson, 219 Kan. 366, Syl. ¶ 5, 548 P.2d 719 [1976]). In In re Estate of Ziegelmeier, 224 Kan. at 622, the court defined undue influence as follows: “Generally, undue influence or fraud, to invalidate a will, must amount to coercion, compulsion or constraint which destroys the testator’s free agency, and by overcoming his power of resistance obliges him to adopt the will' of another instead of exercising his own, and it must be brought to bear directly on the testamentary act. [Citations omitted.] Of course, the burden of proof is on the party claiming undue influence. [Citation omitted.] Legitimate influence is not improper; that is, influence obtained by kindness and affection will not be regarded as undue.” “ ‘[H]uman desire, motive and opportunity to exercise such influence will not alone authorize the inference that undue influence was in fact exercised. Neither will suspicion or the possibility of their having induced the making of the will favorable to them be enough to justify a finding of undue influence.’ ” In re Estate of Brown, 230 Kan. at 731-32 (quoting Klose v. Collins, 137 Kan. 321, 326, 20 P.2d 494 [1933]). Our examination of the specific claims made by the Millers leads us to the same conclusion as that of the trial judge. Affirmed.	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Pierron, J.: GNB Battery Technologies (GNB) appeals a decision of the Workers Compensation Board (Board). The Board held that it did not have jurisdiction to consider GNB’s appeal of the administrative law judge’s (ALJ) order assessing the costs of a neutral physician’s evaluation of James R. Winters to GNB. We reverse and remand. Winters claimed injury to his lower back and general body disability as a result of throwing a piece of scrap metal into a dumps ter. He filed an application for a hearing before the Kansas Division of Workers Compensation. Following a pre-hearing settlement conference, the ALJ appointed a neutral physician to perform an evaluation on Winter for rating purposes and determining restrictions, if any. The ALJ ordered GNB and its insurance carrier to pay the costs of the examination and reports. GNB applied for review before the Board. The Board found GNB’s appeal to be interlocutory in nature as being made during the litigation of a workers compensation case. The Board stated the ALJ’s order was neither a final order that could be reviewed pursuant to K.S.A. 44-551, nor an order entered pursuant to the preliminary hearing statute, K.S.A. 44-534a, since orders under 44-534a are limited to issues of furnishing medical treatment and payment of temporary total disability compensation. The Board concluded it did not have jurisdiction to review the ALJ’s order and dismissed GNB’s application for review; GNB now appeals. The first issue before us is the Board’s jurisdiction to consider GNB’s appeal. “Interpretation of a statute is a question of law. An appellate court’s review of a question of law is unlimited.” Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, Syl. ¶ 1, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995). It is a fundamental rule of statutory construction, to which all other rules are subordinate, that the intent of the legislature governs if that intent can be ascertained. In determining legislative intent, courts are not limited to consideration of the language used in the statute, but may look to the historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished, and the effect the statute may have under the various constructions suggested. The entire act must be given consideration. It is the duty of the court, as far as possible, to reconcile the different provisions to make them consistent, harmonious, and sensible. See Hall v. Roadway Express, Inc., 19 Kan. App. 2d 935, 938-39, 878 P.2d 846, rev. denied 255 Kan. 1001 (1994). Arguments made by both parties revolve around K.S.A. 1995 Supp. 44-551(b)(l): “Administrative law judges shall have power to administer oaths, certify official acts, take depositions, issue subpoenas, compel the attendance of witnesses and the production of books, accounts, papers, documents and records to the same extent as is conferred on the district courts of this state, and may conduct an investigation, inquiry or hearing on all matters before the administrative law judges. All acts, findings, awards, decisions, rulings or modifications of findings or awards made by an administrative law judge shall he subject to review by the board upon written request of any interested party within 10 days and if no such request is made, then the board shall approve such actions, findings, awards, decisions, rulings or modifications of findings or awards of the administrative law judge. Review by the board shall be a prerequisite to judicial review as provided for in K.S.A. 44-556 and amendments thereto. On any such review, the board shall have authority to grant or refuse compensation, or to increase or diminish any award of compensation or to remand any matter to the administrative law judge for further proceedings.” (Emphasis added.) GNB also relies on K.S.A. 1995 Supp. 44-555c(a), which provides in relevant part: “There is hereby established the workers compensation board. The board shall have exclusive jurisdiction to review all decisions, findings, orders and awards of compensation of administrative law judges under the workers compensation act. The review by the board shall be upon questions of law and fact as presented and shown by a transcript of the evidence and the proceedings as presented, had and introduced before the administrative law judge.” (Emphasis added.) GNB argues the clear language of 44-551(b)(l) and 44-555c(a) allows the Board to review all actions by and orders of the ALJ at the request of any interested party. GNB points out the statute does not limit the Board’s jurisdiction to final awards of compensation. If the legislature had so intended, it is argued, it would have so provided. Winters responds that the legislature did not intend for either the Board or the appellate courts to review a workers compensation case until the final award had been entered. Winters contends the Board is only to review final awards and those specifically listed in K.S.A. 44-534a(a)(2); “A finding with regard to a disputed issue of whether the employee suffered an accidental injury, whether the injury arose out of and in the course of the employee’s employment, whether notice is given or claim timely made, or whether certain defenses apply, shall be considered jurisdictional, and subject to review by the board. Such review by the board shall not be subject to judicial review.” Winters makes an analogy to this court’s review in a workers compensation case. An appellate court’s jurisdiction is limited to a “final order” of the Board. Winters argues that the Board’s review should be limited in a similar manner. K.S.A. 1995 Supp. 44-556(a) provides: “Any action of the board pursuant to the workers compensation act, other than the disposition of appeals of prehminary orders or awards under K.S.A. 44-534a and amendments thereto, shall be subject to review in accordance with the act for judicial review and civil enforcement of agency actions by appeal directly to the court of appeals. Any party may appeal from a final order of the board, by filing an appeal with the court of appeals within 30 days of the date of the final order. Such review shall be upon questions of law.” (Emphasis added.) With regard to final orders, in Federal Savings & Loan Ins. Corp. v. Treaster, 13 Kan. App. 2d 305, 770 P.2d 481 (1989), the court discussed the jurisdiction of the Court of Appeals in civil appeals to hear only appeals from final decisions. K.S.A. 60-2102(a)(4) provides that the jurisdiction of the Court of Appeals may be invoked by appeals as a matter of right from “[a] final decision in any action, except in an action where a direct appeal to the supreme court is required by law. In any appeal or cross appeal from a final decision, any act or ruling from the beginning of the proceedings shall be reviewable.” In Henderson v. Hassur, 1 Kan. App. 2d 103, Syl. ¶ 2, 562 P.2d 108 (1977), the court explained that a final decision under K.S.A. 60-2102(a)(4) “is one which determines all the issues in the case and not just part of the issues.” GNB contends that if this court denies its claim, irreparable injury and the absence of a remedy will result. GNB insists such a ruling is disproportionate to any purported public benefit which could be achieved by postponing a ruling. It maintains that if it is required to pay for the physician, it has no avenue or source for recovery of those costs if the order requiring payment is later reversed. GNB states that unlike compensation which has been erroneously ordered under K.S.A. 44-556(d)(l), costs which are assessed in a workers compensation matter are not recoverable from the Kansas Workers Compensation Fund (Fund). This court recently discussed the jurisdiction of the Board under 44-551(b)(l). In Shain v. Boeing Military Airplanes, 22 Kan. App. 2d 913, 924 P.2d 1280 (1996), this court considered whether the Board lacked jurisdiction to review a decision of the ALJ denying the Fund’s motion to dismiss. The Fund sought dismissal based on statutes relating to compensation for injuries sustained by employees with preexisting handicaps. The court stated: “K.S.A. 1995 Supp. 44-551(b)(l) states the general rule that all acts by an ALJ are subject to review by the Board upon timely written request.” 22 Kan. App. 2d at 914. Shain focused on whether the order denying a motion to dismiss was a preliminary award under 44-534a, which would prevent the Board’s review unless the ALJ allegedly exceeded his or her jurisdiction. The court concluded that an order holding the Fund was not entitled as a matter of law to be dismissed from a case does not relate to the award of temporary benefits or medical treatment and was not a preliminary award under 44-534a. Consequently, the court decided the Board had erred in ruling that it lacked jurisdiction to review the order. We believe a similar ruling is called for here. While the intent of the statute is not crystal clear, we note the expansive nature of the language: “All acts, findings, awards, decisions, rulings, modifications of findings or awards made by an administrative law judge shall be subject to review by the board . . . within 10 days.” K.S.A. 1995 Supp. 44-551(b)(l). This is a profligate use of words if all that was intended was “final orders.” We do not presume such verbal exuberance on the part of our legislature. It appears our statutes do allow for review of orders such as those here even if they are not final orders. This is not inconsistent with our usual desire to avoid piecemeal appeals. The Board was created to allow for the speedier disposition of workers compensation cases. The Board is composed of members with extensive backgrounds in the area. It appears from the language of 44-551(b)(l) that this expertise and familiarity with the process is intended to be used in resolving many different kinds of disputed issues more quickly than can be provided by judicial review. We note that if exception is taken to the Board’s decisions on these essentially interlocutory matters, they can eventually be addressed in the courts when there is a final order. Until then, the Board is granted appropriate discretion to decide them. This appears to strike a balance between efficiency and the availability of appellate review. GNB also argues the ALJ acted outside of and without authority in ordering GNB and its insurance carrier to bear the cost of a neutral physician’s examination and report. Because of the Board’s finding of lack of jurisdiction, it did not address this issue. In the interest of judicial economy, we will visit the question. GNB cites the general case law interpreting the Workers Compensation Act and the fact that the appellate courts have consistently held the Act to be complete within itself. It establishes a procedure covering every phase of a right to compensation and the process for obtaining and enforcing same. As a result, GNB argues the Act is complete and exclusive and the ALJ cannot go beyond its boundaries. See Krueger v. Hoch, 202 Kan. 319, 447 P.2d 823 (1968). GNB argues the ALJ’s order incorrectly referred to K.S.A. 44-516. GNB states the proper provision for appointment of a neutral physician, at least in this case, is K.S.A. 44-510e(a). These provisions provide in relevant part: “In case of a dispute as to the injury, the director, in the director’s discretion, or upon request of either party, may employ one or more neutral health care providers, not exceeding three in number, who shall be of good standing and ability. The health care providers shall make such examinations of the injured employee as the director may direct.” K.S.A. 44-516. “If the employer and the employee are unable to agree upon the employee’s functional impairment, such matter shall be referred by the administrative law judge to an independent health care provider who shall be selected by the administrative law judge from a list of health care providers maintained by the director.” K.S.A. 44-510e(a). The distinction raised by GNB as to whether 44-516 or 44-510e is the proper authority for ordering a neutral physician to perform an independent medical examination is academic. Whether the parties dispute the injury (44-516) or whether they dispute the employee’s functional impairment (44-510e), the ALJ has the authority to order a neutral/independent examination and report in both cases. The obvious problem is that both statutes are silent as to which party will pay for the examination. GNB contends the ALJ had no authority to order it to pay for the examination and report. GNB analogizes this situation to the district court having no more authority than that which is prescribed by statute. GNB cites Hodges v. Lister, 207 Kan. 260, 266, 485 P.2d 165 (1971), where the court stated: “The taxation of costs is purely a creature of statute and a court has no inherent power to award costs beyond statutory authorization.” GNB argues that if the legislature wanted the cost of the neutral physician to be assessed against the employer, it would have stated so. GNB cites several situations where the legislature has given the ALJ the authority to assess the costs to the employer and its insurance provider: (1) K.S.A. 44-510(a) — duty of employer to provide the services of health care provider, and such medical, surgical, and hospital treatment; (2) K.S.A. 1995 Supp. 44-551(e)— special local ALJ’s fees and expenses shall be taxed as costs; (3) K.S.A. 44-552 and K.S.A. 77-620 — ALJ to assess cost of transcript preparation to appellant; (4) K.S.A. 44-555 — authority for certified shorthand reporter s fees to be assessed as costs; and (5) K.S.A. 44-553 — witness fees and mileage may be taxed as costs. GNB asserts there is no statutory authority for the action taken in this case. Winters directs the court’s attention to the administrative regulations adopted by the Director of Workers Compensation. K.S.A. 44-573 provides that the Director may adopt and promulgate such rules and regulations as he or she deems necessary for the purpose of administering and enforcing the provisions of the Workers Compensation Act. The Kansas Administrative Regulations clearly address the current situation. K.A.R. 51-9-6 provides as follows: “Neutral Physician. If a neutral physician is appointed, the written report of that neutral physician shall be made a part of the record of hearing. Either party may cross examine each neutral physician so employed. The fee of the neutral physician giving such testimony shall be assessed as costs to a party at the administrative law judge’s discretion.” The Kansas Workers Compensation Handbook § 6.06 D (1990), also supports the discretionary nature of assessing the cost of a neutral physician. ‘Where there is dispute about lie existence or effects of the worker’s injury, the director may appoint up to three neutral physicians to examine the worker. The court may assess the costs of the neutral physician’s examination to any party. K.S.A. 44-516; K.A.R. 51-9-6.” The ALJ had the discretion to assess the cost of a neutral physician to either Winters or GNB. GNB provides no instance of how the ALJ abused its discretion in ordering it to cover the cost. GNB also argues the ALJ acted with partiality and without authority in direct contravention of the Workers Compensation Act. It cites K.S.A. 44-523, which mandates the ALJ to insure the employee and employer an expeditious hearing and to “act reasonably without partiality.” However, GNB provides no supporting facts demonstrating partiality, nor are such facts apparent in the record. Reversed and remanded for further proceedings consistent with this decision.	[ -112, -22, -3, -100, 25, -29, 59, 26, 89, -71, 37, -45, -81, -103, 13, 127, -77, 31, -11, 107, -45, -73, 51, -55, -42, -45, 83, -58, -79, 126, -12, -100, 9, 112, 10, 85, 102, -61, -53, -44, -116, 4, -23, 72, 89, 65, 40, 110, 114, 67, 17, -99, -21, 44, 24, -62, 104, 42, 89, 44, -47, -8, -86, 5, -3, 16, 34, 21, -104, 47, 92, 62, -110, 25, 10, -20, 112, -74, -110, 53, 97, -7, -119, 103, 99, 33, 25, -25, 44, -72, 31, -98, 29, -89, -103, 56, 3, -95, -106, -65, 124, 98, 36, 126, -18, 84, 22, 108, -123, -121, -80, -77, -33, -59, -118, -77, -17, -121, 50, 97, -44, -118, 125, -124, 122, 27, -98, -112 ]
Pierron, J.: This is an appeal of the imposition of a presumptive sentence under the Kansas Sentencing Guidelines Act (KSGA). Joseph Rodriguez pled guilty to one count of indecent liberties with a child, a violation of K.S.A. 21-3503(a)(l). Rodriguez filed a motion to depart, which was denied by the district court. He appeals the denial of his motion. We affirm. At sentencing, the district court noted the motion for a dispositional and durational departure and asked Rodriguez’ counsel if he could incorporate his arguments for departure with his comments regarding sentencing. Rodriguez’ attorney replied, “I can, Judge,” and also stated there was no objection to Rodriguez’ criminal history score of C. The court denied Rodriguez’ request for a durational and dis-positional departure. It relied, in part, upon Rodriguez’ criminal history in denying the departure request. Rodriguez argues the district court did not have authority under K.S.A. 21-4718(a)(l) to hold a joint hearing and, furthermore, the joint hearing resulted in a prejudiced tribunal denying him of his constitutional due process rights. K.S.A. 21-4718(a)(l) states: “Whenever a person is convicted of a felony, the court upon motion of either the defendant or the state, shall hold a hearing to consider imposition of a departure sentence.” The language of K.S.A. 21-4718(a)(l) requires a hearing to be held on every motion to depart. However, the language of the statute is silent as to whether this hearing may be combined with the sentencing hearing, or whether it must be heard independently. In State v. Bost, 21 Kan. App. 2d 560, 566, 903 P.2d 160 (1995), this court interpreted K.S.A. 21-4718(a)(l): “The KSGA does not expressly state that a motion for departure must be filed prior to sentencing. However, provisions of the KSGA provide that the disposition of a departure sentence must be resolved prior to or at the sentencing hearing. K.S.A. 1994 Supp. 21-4718(a) provides that if a defendant or the State files a motion to depart, the court shall hold a hearing to consider a departure sentence. Additionally, the hearing shall be scheduled so that both parties have adequate time to prepare to argue for or against departure.” (Emphasis added.) Rodriguez’ attorney stated to the district court that he was prepared to argue the departure motion. Therefore, following the analysis in Bost, Rodriguez’ departure motion hearing met the requirements put forth in K.S.A. 21-4718(a)(l). Rodriguez argues that holding a combined hearing on his motion to depart and sentencing creates an unjust result because the district court was able to consider his criminal history score in denying his motion to depart. He argues that in State v. Richardson, 20 Kan. App. 2d 932, 941, 901 P.2d 1 (1995), this court held a defendant’s criminal history cannot be used as justification for a departure sentence when the sentencing guidelines have already taken the defendant’s criminal history into account in determining the presumptive sentence within the grid. The district court’s ruling on Rodriguez’ motion clearly illustrates why Richardson should only apply in granting a motion to depart rather than denying it. “Under the circumstances, Mr. Rodriguez has two prior convictions, well, that is an incorrect statement. He has two prior adjudications of offenses which had he been an adult would have been considered to be felony offenses, which are counted as convictions for purposes of the Kansas sentencing guidelines act. That tells me that Mr. Rodriguez understands in many respects the criminal justice system. He understands that to a certain degree that individuals are responsible for their own conduct. . . . Mr. Rodriguez also is of age. I think mentally that he is fully capable of understanding that he has a responsibility to individuals who are not yet of consensual age with regard to sexual acts, and did nothing to prevent that sexual act from taking place. I simply am not prepared at this point in time, based upon the testimony that’s offered, to conclude that there is substantial and compelling reasons to depart from the presumed sentences. I think the legislature took it into consideration in setting the crime definition and in setting the sentencing guidelines act that there would be these sets of circumstances and something more has to be offered to me to indicate that merely going along with the conduct, in fact, make them a participant as that phrase is used in the negating factors list.” The Richardson court stated that “[a] defendant’s criminal history cannot be used as justification for a departure sentence when the sentencing guidelines have already taken the defendant’s criminal history into account in determining the presumptive sentence within the grid.” 20 Kan. App. 2d 932, Syl. ¶2. In the case at bar, the district court looked at the criminal history and found the legislature had intended to sentence defendants, such as Rodriguez, within the appropriate presumed sentencing grid. Upon making that finding, the district court was cognizant of its authority to depart; however, it concluded there was no substantial and compelling reason to override that presumptive sentence and, therefore, denied the motion to depart. Rodriguez’ entire argument rests on the notion that he has a right to appeal because the district court’s knowledge and consideration of his criminal histoiy resulted in prejudice. However, even if this court could find Rodriguez is entitled to appeal under K.S.A. 21-4721(a) and (e), Rodriguez has not asserted in his brief that the district court was presented with a substantial and compelling reason to depart. “ ‘Any point specified on appeal which is neither argued nor briefed is deemed to have been abandoned.’ ” State v. Vincent, 258 Kan. 694, 696, 908 P.2d 619 (1995) (quoting State v. Mims, 222 Kan. 335, Syl. ¶ 6, 564 P.2d 531 [1977]). Finally, Rodriguez argues that his due process rights were violated because the district court’s consideration of his criminal history score denied him a fair tribunal. Rodriguez argues this case is analogous to State v. Fisher, 249 Kan. 649, 822 P.2d 602 (1991). In Fisher, the Kansas Supreme Court held that a judge’s comment, in which the judge said he would not give probation to anyone convicted of possession of cocaine, was evidence that the district court abused its discretion in sentencing the defendant. 249 Kan. at 652. The major error with Rodriguez’ argument is that it fails to recognize the standard of review for sentencing appeals has changed under the KSGA. The standard of review is no longer abuse of discretion. Under the KSGA, if a presumptive sentence is imposed, this court can only review claims of partiality, prejudice, oppression, or corrupt motive. See K.S.A. 21-4721(a) and (e); State v. Starks, 20 Kan. App. 2d 179, 183, 885 P.2d 387 (1994). Rodriguez bears a heavy burden, because there is a strong legislative presumption that an imposition of a presumptive sentence is not a result of partiality, prejudice, oppression, or corrupt motive. See 20 Kan. App. 2d 179, Syl. ¶ 9. In this case, the district court was not required to give any reasons for imposing the presumptive sentence and did not have to state any reasons for not granting a departure sentence. See State v. Mares, 20 Kan. App. 2d 971, 972, 893 P.2d 296, rev. denied 257 Kan. 1095 (1995). Rodriguez argues that he can appeal his sentence because prejudicial information was allowed in. As previously discussed, it was not error for the district court to have knowledge of the defendant’s criminal history in determining whether to grant a departure. Therefore, Rodriguez has failed to meet his burden of proof in establishing that his sentence resulted from partiality, prejudice, oppression, or corrupt motive. Rodriguez did not object to the district court’s decision to hear his statements regarding sentencing and the motion to depart at the same hearing. In fact, when asked by the district court if the defense could argue the departure motion at sentencing, Rodriguez’ attorney answered, “I can, Judge.” In State v. Boyd, 257 Kan. 82, 89, 891 P.2d 358 (1995), the Kansas Supreme Court stated: “In the case now before the court the record clearly shows defendant participated in the proceedings and was given the opportunity on the record to voice any objections or to suggest a different response. He did not do so. The time-honored rule [is] that an issue not presented to the trial court may not be raised for the first time on appeal. ... As the State points out, a timely objection is necessary to give the trial court the opportunity to correct any alleged trial errors. [Citation omitted.] Clearly, the defendant had the opportunity to object and to inform the trial court of his dissatisfaction with the ruling while the court still had a chance to correct any error. By failing to object, the defendant waived his right to raise the issue on appeal.” Rodriguez asserts, for the first time on appeal, that his due process rights have been unconstitutionally abrogated under the KSGA because his presumptive sentence is not appealable under the guidelines. A KSGA due process and equal protection issue was raised for the first time on appeal in State v. Lakey, 22 Kan. App. 2d 585, 920 P.2d 470 (1996). This court stated: “We note this argument was not raised in the district court and therefore cannot now be raised on appeal for the first time.” 22 Kan. App. 2d at 587. Because Rodriguez failed to raise this constitutional argument at the trial level, he has waived his right to raise it for the first time on appellate review. In any event, the claim is not well founded. Affirmed.	[ 80, -29, -35, 126, 11, 97, 42, -108, 115, -13, 102, 83, 101, -34, 0, 123, -13, 111, 113, 121, -63, -73, 71, -63, -14, -13, -64, 85, -66, 79, -20, -75, 12, -32, 10, -11, 6, -54, 41, 92, -114, 1, -104, -32, -111, 8, 32, 97, 26, 15, 49, -50, -13, 42, 30, -61, -120, 104, 27, -67, -64, -40, -1, -121, 107, 20, -85, -92, -98, -124, 80, 55, 26, 24, 32, -24, 115, -74, -106, 116, 107, -101, -91, 102, 98, 1, 45, -26, -67, -72, 78, 26, 13, -125, -39, 88, 75, 12, -106, -71, 116, 52, 46, 122, -17, 4, 61, 108, -126, -50, -108, -109, 15, 117, -122, 91, -13, 36, 0, 33, -50, -26, 92, 71, 51, 95, -2, -12 ]
Royse, J.: Cessna Aircraft Company (Cessna) and Sun Life Insurance Company of America (Sun Life) brought this action against the Metropolitan Topeka Airport Authority (MTAA) to recover damages for aircraft destroyed in a hangar fire at Forbes Field Airport. The jury returned a verdict in favor of plaintiffs, and MTAA appeals. MTAA is a governmental entity created pursuant to K.S.A. 27-317 et seq. MTAA operates two airports, Philip Billard Airport and Forbes Field Airport. Located within the confines of the Forbes Field Airport is hangar 626, an aircraft hangar built in the 1940’s. On November 30, 1990, MTAA leased hangar 626 to a private corporation, Forbes Aviation d/b/a Million Air-Topeka (Million Air). Million Air subsequently subleased a portion of hangar 626 to Cessna for aircraft storage. In 1993, Million Air hired Amol Stegman d/b/a Steeplejack Services, Inc., to replace the roof on hangar 626. Stegman contracted with two individuals, Kelvin Lynn and Kelly McGlumphrey, to help with the roofing project. Application of a rubber roof to replace the existing wooden roof on hangar 626 involved using a propane torch. During the evening of July 20, 1993, as Lynn and McGlumphrey worked on the roof, a fire started, which eventually engulfed the hangar and destroyed 13 airplanes — 10 owned by Cessna and 3 which Cessna leased from Sun Life. Cessna and Sun Life filed suit against MTAA, Million Air, Stegman, Lynn and McGlumphrey. Million Air settled with the plaintiffs prior to trial. The jury determined fault as follows: Million Air — 37%; Stegman — 12%; Lynn — 7%; McGlumphrey — 1%; and MTAA — 43%. The jury detennined Cessna had sustained damages totalling $15 million and Sun Life had sustained damages in excess of $5 million. MTAA argues on appeal that the district court erred in denying its motions for summary judgment and for directed verdict. (There is no document labelled motion for directed verdict. At the conclusion of the evidence, MTAA’s counsel asked the court to order a directed verdict based upon the arguments contained in its trial brief.) Summary judgment is only appropriate if the record conclusively shows that there is no issue as to any material fact and that the moving party is entitled to judgment as a matter of law. C.J.W. v. State, 253 Kan. 1, 16, 853 P.2d 4 (1993). This court, like the trial court, must resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party opposing the summary judgment motion, and if reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. P.W. v. Kansas Dept. of SRS, 255 Kan. 827, 828-29, 877 P.2d 430 (1994). When appellate review is sought in connection with a motion for directed verdict, the court is required to resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling is sought, and where reasonable minds could reach different conclusions based on the evidence, the trial court’s denial of the motion must be affirmed. See Kuhl v. Atchison, Topeka & Santa Fe Rwy. Co., 250 Kan. 332, Syl. ¶ 1, 827 P.2d 1 (1992). Before dealing specifically with the issues MTAA raises on appeal, we note that MTAA’s brief on appeal exceeds the 50-page limit imposed under Rule 6.07 (1996 Kan. Ct. R. Annot. 33). MTAA’s use of Roman numerals in the nature of the case, issues, and statement of facts sections of its brief, while employing Arabic numerals in the argument section of its brief, is not a permissible way to bypass the 50-page rule. Nor did MTAA’s motion to exceed the page limit comply with the requirements under Rule 6.07, that it be submitted prior to submission of the brief and include a specific total page request. DUTY MTAA argues on appeal that it did not owe any duty to plaintiffs under any exception to the general rule that a landlord is not liable to third parties for their damages occurring on a tenant’s leasehold. To recover in a negligence action, the plaintiff must prove a duty was owed by the defendant to the plaintiff, a breach of that duty, and that the breach of duty was the proximate cause of damages sustained by the plaintiff. P.W. v. Kansas Dept. of SRS, 255 Kan. at 831. The existence of a duty is a question of law, subject to unlimited review by this court. 255 Kan. at 831. MTAA refers to the general rule that a landlord has no liability for damages to tenants or others entering the land which result from defective conditions existing at the time of the lease. Borders v. Roseberry, 216 Kan. 486, 488, 532 P.2d 1366 (1975). MTAA acknowledges that there are six common-law exceptions to the rule of nonliability: (1) undisclosed dangerous conditions known to lessor and unknown to the lessee; (2) conditions dangerous to persons outside the premises; (3) premises leased for admission of the public; (4) areas retained in the lessor’s control which lessee is entitled to use; (5) where lessor contracts to repair; and (6) negligence by lessor in making repairs. 216 Kan. at 488-92. MTAA, however, contends that none of the six exceptions apply in this case. MTAA’s argument that the common-law exceptions do not apply in this case is academic. The plaintiffs did not base their claim on one of the six common-law exceptions noted, nor did the district court refer to one of those exceptions in denying MTAA’s motion for summary judgment. Finally, the district court did not instruct the jury that MTAA bore a duty to plaintiffs under one of the six common-law exceptions to landlord nonliability. In short, the principles set forth in Borders did not provide the basis of MTAA’s liability in this case. ■ The record in this case makes clear that the district court applied Restatement (Second) of Torts § 324A (1965) in finding that MTAA bore a duty to plaintiffs, which section provides: “One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if (a) his failure to exercise reasonable care increases the risk of such harm, or (b) he has undertaken to perform a duty owed by the other to the third person, or (c) the harm is suffered because of reliance of the other or the third person upon the undertaking.” Section 324A was adopted by the Supreme Court in Schmeck v. City of Shawnee, 232 Kan. 11, Syl. ¶ 4, 651 P.2d 585 (1982). The record in this case shows that MTAA undertook to provide its tenants, including Million Air, with fire and police protection. Moreover, MTAA adopted rules and regulations restricting persons from entering hangars without permission and from performing work on a hangar without written permission from airport man agement. Other regulations restricted the use of flame operations and the storage of flammable materials in hangars. MTAA further represented that it would provide Cessna with the same type of services offered its other tenants. MTAA argues that § 324A is inapplicable to claims for property damage. MTAA cites Barber v. Williams, 244 Kan. 318, 324, 767 P.2d 1284 (1989), a case in which the Supreme Court held § 324A did not apply in plaintiff’s action to recover money she had paid to astrologers. Although this argument was not raised in MTAA’s motions for summary judgment or directed verdict, we will address it briefly. MTAA’s suggestion that property damage is not “physical harm” as used in § 324A is not persuasive. In Johnson v. Board of Pratt County Comm’rs, 259 Kan. 305, 913 P.2d 119 (1996), the Supreme Court held that § 324A was applicable to a claim against an engineering firm for property damage resulting from the negligent design of a bridge. Moreover, paragraph b of the Comment to § 324A makes clear that the section applies when the actor’s conduct “results in physical harm to the third person or his things.” See also Circle Land & Cattle Corp. v. Amoco Oil Corp., 232 Kan. 482, 657 P.2d 532 (1983) (applying similar section, § 323, to claim for property damage to irrigation engines). Although MTAA does not raise this argument, amicus curiae League of Kansas Municipalities argues that if a duty can arise under § 324A on the basis of undertakings contained in a lease, then governmental entities are subjected to unforeseen risks of liability. This argument is not persuasive. A lease is no different than any other contract, in that a governmental entity may negotiate its terms and decide whether to subject itself to its obligations. The Supreme Court has already applied § 324A on the basis of contractual undertakings. See Johnson, 259 Kan. at 318; Ingram v. Howard-Needles-Tammen & Bergendoff, 234 Kan. 289, 295, 672 P.2d 1083 (1983). In its reply brief, MTAA raises several additional challenges to the district court’s reliance on § 324A. Those new issues are not properly before us. “Rule 6.05 (1988 Kan. Ct. R. Annot. 25) prohibits filing a reply brief unless it is necessary to do so because of new material contained in the appellee’s brief. The reply brief is an inappropriate forum for raising additional issues because it violates Supreme Court rules and denies the appellee the opportunity to respond to those issues.” In re Marriage of Powell, 13 Kan. App. 2d 174, 177, 766 P.2d 827 (1988) rev. denied 244 Kan. 737 (1989). The district court did not err in determining that § 324A was applicable to plaintiffs’ claims for property damage. In light of this conclusion, we will only briefly address MTAA’s other duty arguments. MTAA argues that it had no special relationship with plaintiffs which would give rise to a duty to Cessna and that Cessna was not an intended third-party beneficiary of the MTAA/Million Air lease. These arguments misconstrue the district court’s order denying its motion for summary judgment and are not persuasive. The district court did not rely on the mere existence of a landlord-tenant relationship or on a third-party beneficiary theory; the court made clear that MTAA’s duty arose out of its contractual obligations with Million Air and its course of dealing with and representations to Cessna. The district court did not instruct the jury that liability could be imposed on MTAA merely on the basis of a special relationship, nor was a contractual third-party beneficiary theoiy submitted to the jury. As noted above, the district court generally relied on § 324A in instructing the jury with regard to MTAA’s duty. In summary, the district court did not err in denying MTAA’s motions for summary judgment and directed verdict on the duty issue. IMMUNITY MTAA argues that the district court erred by denying its motions for summary judgment and directed verdict on immunity grounds. This issue requires us to interpret and apply several sections of the Kansas Tort Claims Act. Interpretation of a statute is a question of law, over which this court has unlimited review. Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, Syl. ¶ 1, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995). There is no dispute that MTAA is a governmental entity, created pursuant to 27-327 et seq. It is a political subdivision exempt from the payment of damages. K.S.A. 27-330(a). Generally, the Kansas Tort Claims Act makes governmental liability for tort claims the rule (K.S.A. 75-6103[a]), subject to numerous exceptions (K.S.A. 75-6104). A governmental entity claiming immunity bears the burden of showing it fits within one of the exceptions to liability. Jackson v. City of Kansas City, 235 Kan. 278, 286, 680 P.2d 877 (1984). MTAA argues that this case fits within four exceptions: K.S.A. 75-6104(c), (e), (k), and (n). K.S.A. 75-6104(c) provides that a governmental entity shall not be liable for damages resulting from “enforcement of or failure to enforce a law, whether valid or invalid, including, but not limited to, any statute, rule and regulation, ordinance or resolution.” MTAA argues that the plaintiffs relied on the theory that MTAA failed to prohibit the roofers from using an open flame, contrary to MTAA regulations. MTAA contends that claim is no more than a claim that MTAA failed to enforce a regulation. Our Supreme Court discussed 75-6104(c) in Cansler v. State, 234 Kan. 554, 675 P.2d 57 (1984). That case involved claims for damages arising out of the defendants’ failure to warn plaintiff that convicts had escaped from the penitentiary. The Supreme Court observed: “But state agencies all are created by law; their powers and their duties are established by law; and, in one sense or another, they carry out or enforce the law when they proceed with their day-to-day operations. If 75-6104(c) is given the broadest possible construction, then it becomes almost impossible to conceive of an action by a governmental agency which does not constitute enforcing or carrying out a law. “We construe K.S.A. 1981 Supp. 75-6104(c) to provide an exemption from claimed liability only where claimant’s sole asserted claim of causal negligence is the public entity’s enforcement or failure to enforce a law. That section does not provide an exemption where the agency, in enforcing or failing to enforce a law, commits some additional tortious act or omission which would be negligence at common law, and which act or omission causes damage.” (Emphasis added.) 234 Kan. at 568. Thus, in Cansler, the court concluded immunity was not available under 75-6104(c) because the plaintiff’s claim was not based simply upon, the failure to retain custody of inmates as required by statute. The plaintiff’s claim was also grounded in the common-law duty to retain control of known dangerous persons, in giving such dangerous persons access to dangerous weapons, permitting them to escape while armed, and in failing to warn individuals, including plaintiff, of the escape. 234 Kan. at 570. See also Fudge v. City of Kansas City, 239 Kan. 369, 374, 720 P.2d 1093 (1986) (75-6104[c] inapplicable where officers allegedly violated mandatory internal rules); Jackson, 235 Kan. at 285-86 (75-6104[c] inapplicable where plaintiffs claimed firefighters failed to operate emergency vehicle in accord with departmental rules, drove at an excessive speed, and drove without due regard for the safety of others). MTAA contends the roofers’ use of an open flame was a violation of an MTAA rule by a third party, not a violation by MTAA of its own rules and regulations. This contention was not set forth by MTAA in its motion for summary judgment or directed verdict. MTAA has abandoned on appeal the argument it raised below, that plaintiffs were basing their claim solely on MTAA’s failure to enforce its own rules and regulations. In any event, MTAA fails to recognize that plaintiffs’ claim against MTAA was not based solely on the roofers’ use of an open flame or on MTAA’s failure to enforce its own rules and regulations. The pretrial order, the response to the motion for summary judgment, and the trial transcript make clear that plaintiffs based their claim against MTAA on common-law duties, including the duty under § 324A discussed above, on its safety department manual provision that the needs of the tenants form an integral part of the mission of the safety department, on its undertaking in the lease to provide Million Air with the structural fire and police protection it provides other tenants, on its representations that it would provide Cessna the same type of services offered other tenants and would report anything unusual to Cessna, and on numerous internal rules which MTAA allegedly violated. The district court did not err in rejecting MTAA’s claim of immunity under 75-6104(c). MTAA also claims immunity under K.S.A. 75-6104(e), which provides a governmental entity shall not be liable for damages resulting from the exercise or failure to exercise a discretionary function. MTAA contends plaintiffs’ claims involved MTAA’s exercise of discretion regarding what fire and police protection methods to use and what procedures to adopt relevant to inspecting and protecting hangar 626. The key in determining whether 75-6104(e) applies is to focus on “the nature and quality of the discretion exercised. . . rather than the status of the employee exercising that discretion.” Robertson v. City of Topeka, 231 Kan. 358, 362, 644 P.2d 458 (1982). “The test is whether the judgments of the government employee are of the nature and quality which the legislature intended to put beyond judicial review.” Carpenter v. Johnson, 231 Kan. 783, 788, 649 P.2d 400 (1982). “The discretionary function exception under K.S.A. 75-6104(d) [now K.S.A. 75-6104(e)] of the Kansas Tort Claims Act is not applicable in those situations where a legal duty exists, either by case law or by statute, which the governmental agency is required to follow. The governmental agency does not have a discretionary right to violate a legal duty and avoid liability.” Dougan v. Rossville Drainage Dist., 243 Kan. 315, Syl. ¶ 3, 757 P.2d 272 (1988). Immunity is available under 75-6104(e) (formerly 75-6104[d]) only when no mandatory duty or guidelines exist. 243 Kan. at 323; see Bolyard v. Kansas Dept. of SRS, 259 Kan. 447, 452, 912 P.2d 729 (1996). As discussed above, when viewing the record in this case as we must, with all facts and reasonable inferences drawn, in favor of the plaintiffs, there is evidence to support plaintiffs’ claim that MTAA not only obligated itself to provide law' enforcement and fire protection to its tenants and to Cessna, but it also established mandatory rules and procedures for doing so. As the Supreme Court stated in Beck v. Kansas Adult Authority, 241 Kan. 13, 31, 735 P.2d 222 (1987),“[D]isregard of those . . . departmental policies, and regulations was not within the discretionary function exception.” Although MTAA does not raise this argument, amicus curiae League of Kansas Municipalities argues that providing fire protec tion to a lessee is a matter of discretion on the part of the governmental entity. While it is true that the decision to lease property and provide fire protection to a lessee may be discretionary, once a governmental entity undertakes to provide those services, and to adopt mandatory regulations and policies in connection with those services, discretionary immunity does not protect the governmental entity from liability for a failure to provide services in accord with those regulations and policies. See Bolyard, 259 Kan. at 452; Nero v. Kansas State University, 253 Kan. 567, 586-88, 861 P.2d 768 (1993); Fudge, 239 Kan. at 375. MTAA argues for the first time on appeal that it is entitled to immunity under K.S.A. 75-6104(k), which provides a governmental entity shall not be hable for damages for “the failure to make an inspection, or making an inadequate or negligent inspection, of any property other than the property of the governmental entity, to determine whether the property complies with or violates any law or regulation or contains a hazard to public health or safety.” This claim is not properly before us, because a new legal theory may not be asserted for the first time on appeal. Bolyard, 259 Kan. 447, Syl. ¶ 8. MTAA may not adopt a new position on appeal by attempting to broaden its immunity claim. Finally, MTAA argues that it is entitled to immunity under K.S.A. 75-6104(n), which provides a governmental entity shall not be hable for damages for the “failure to provide, or the method of providing, police or fire protection.” This argument is without merit. First, the Supreme Court has made clear the parameters of 75-6104(n): “We believe [this provision] is aimed at such basic matters as the type and number of fire trucks and police ears considered necessary for the operation of the respective departments; how many personnel might be required; how many and where police cars are to operate; the placement and supply of fire hydrants; and the selection of equipment options. Accordingly, a city is immunized from such claims as a burglary could have been prevented if additional police cars had been on patrol, or a house could have been saved if more or better fire equipment had been purchased. We do not believe [this provision] is so broad as to immunize a city on every aspect of negligent police and fire department operations. Should firemen negligently go to the wrong house and chop a hole in the roof thereof, we do not believe the city has immunity therefor on the basis the negligent act was a part of the method of fire protection.” Jackson, 235 Kan. at 292. Unlike the “basic matters” described in Jackson, plaintiffs here asserted MTAA was liable for its failure to carry out very spécific undertakings to Million Air and Cessna. Plaintiffs claimed MTAA failed to perform special police and fire protection duties, which it specifically undertook for their benefit. Plaintiffs did not ground their claim of negligence on the number of truck and patrol cars used by MTAA or the number of personnel necessary to carry out MTAA’s undertakings. A second important point from Jackson is that the provision for immunity for fire and police protection under the tort claims act grows out of the old rule of sovereign immunity for carrying out governmental functions. Jackson comments that Kansas case law regarding immunity for governmental functions which predates the tort claims act is helpful in construing the fire and police immunity provision. 235 Kan. at 291. What separates this case from those which address immunity for governmental functions is that MTAA, as a landowner, undertook to provide certain security measures to its tenant and the occupant of its hangar. Once MTAA undertook to become a landlord and to provide such security measures, it became subject to the same rules which apply to private landlords who undertake to perform the same type of service. See Nero, 253 Kan. at 583. For these reasons, the district court did not err in denying MTAA’s motions for summary judgment and directed verdict on the immunity issue. INSTRUCTIONS MTAA argues on appeal that the district court erred in four of its instructions to the jury. Errors regarding jury instructions do not warrant reversal unless they result in prejudice to the appealing party. Instructions are to be considered together and read as a whole, and where they fairly instruct the jury on the law governing the case, error in an isolated instruction may be disregarded as harmless. If the instructions are substantially correct, and the jury could not be reasonably misled by them, the instructions will be approved on appeal. Noel v. Pizza Management, Inc., 258 Kan. 3, 12, 899 P.2d 1013 (1995). The first instruction MTAA complains of was Instruction No. 13, an issue instruction which delineated plaintiffs’ claims of fault against MTAA. MTAA complains on appeal that the instruction misstates the law, is overbroad, does not require the jury to find specific facts or permit the jury to find any specific fault, and requires the jury to assume ultimate facts. MTAA did not raise these arguments at trial and may not do so for the first time on appeal. “A party may not assign as error the giving or failure to give an instruction unless the party objects before the juiy retires to consider its verdict. The objection must distinctly state the matter to which the party objects and the grounds for such objection unless the instruction is clearly erroneous.” Bright v. Cargill, Inc., 251 Kan. 387, 409, 837 P.2d 348 (1992). See K.S.A. 60-25l(b). MTAA’s contention that there was no evidence to support plaintiffs’ claims of MTAA fault is without merit. MTAA claims that the district court erred in giving Instruction No. 31 to the jury. That instruction stated: “A governmental entity, such as Metropolitan Topeka Airport Authority, is immune from liability for negligence in carrying out the general duties owed to the public at large, such as police, fire protection and inspection duties. If a governmental entity undertakes to perform such duties in a special manner to a specific member of the public, it is not immune from liability for negligence in the performance of that special duty undertaken. “In this case, the Metropolitan Topeka Airport Authority is a dual entity and, in addition to being a governmental entity, is the landlord of Forbes Aviation, Inc. d/b/a Million Air-Topeka with respect to Hangar 626. As such a landlord, the Metropolitan Topeka Airport Authority does have the same duties a private landlord, bound by a similar contract, would have to the tenant or a subtenant and would be bound by any applicable governmental codes or regulations to the same extent as a private landlord.” MTAA argues that this instruction was erroneous because there was no evidence MTAA undertook any special duties to plaintiffs. This argument is without merit. As discussed above, there was such evidence in the record. MTAA also argues it owed no duty to a subtenant, but there is evidence in the record that MTAA undertook to provide security services to Cessna. In addition, the tenant/ subtenant language of Instruction No. 31 is further clarified in Instructions Nos. 24,25, and 32. Finally, MTAA argues for the first time on appeal that the term “dual entity” conveyed to the jury that MTAA should be held to a higher standard. This argument is not properly before us. K.S.A. 60-251(b). MTAA’s third argument concerns Instruction No. 32. That instruction is based on the rule found in Restatement (Second) of Torts § 324A (1965). MTAA argues there was no evidence that MTAA undertook a duty to plaintiffs. That argument is without merit. MTAA represented that it would provide police and fire protection to Cessna and that it would let Cessna know if there were any problems around the hangar; it adopted mandatory regulations, discussed above, in regard to carrying out its police and fire protection activities. While MTAA repeatedly characterizes its police and fire protection duty as a duty owed to the public at large, the record is clear that MTAA undertook to provide special protection to its tenants and to plaintiffs. MTAA objects that it was error to include the subparagraph which imposes liability if a landlord has undertaken to perform a duty owed by another to the third party. This objection ignores evidence that Million Air had a duty to warn Cessna of dangerous conditions on the property and that MTAA represented it would contact plaintiffs regarding any problems around the hanger. We reject MTAA’s implication that the existence of a landlord/tenant/subtenant relationship precludes application of § 324A. MTAA’s other challenges to Instruction No. 32 were not raised at trial and were not preserved for appeal. MTAA’s final challenge to the instructions concerns Instruction No. 33. The district court fashioned this instruction by modifying PIK Crim. 2d 8.91, a pattern instruction which concerns the duty of an automobile passenger. MTAA argues on appeal that it was error to use a motor vehicle instruction in this case. That argument ignores the obligation of the district court to prepare instructions appropriate to the case, which may require the court to modify a PIK instruction or to add an instruction not included in PIK. State v. Whitaker, 255 Kan. 118, 124, 872 P.2d 278 (1994); State v. Pioletti, 246 Kan. 49, 58-59, 785 P.2d 963 (1990). MTAA also asserts without explanation or citation to any authority that Instruc tion No. 33 was not based on Kansas law and was prejudicial to MTAA. Issues raised by an appellant with no supporting authority or argument need not be addressed. Hole-in-One, Inc. v. Kansas Industrial Land Corp., 22 Kan. App. 2d 197, 205, 913 P.2d 1225 (1996). The district court in this case gave the jury a total of 44 instructions. Considering all of the instructions together, we are satisfied they fairly instructed the jury on the applicable law. MTAA’s arguments fail to establish any reversible error in the instructions. CAUSATION MTAA reiterates its argument that there was insufficient evidence to establish the existence of a duty. This argument was considered earlier, and we will not repeat that analysis here. Suffice it to say, there was sufficient evidence of duty in the record, and the district court did not err in denying MTAA’s motion for directed verdict. MTAA also argues there was insufficient evidence of causation to support the jury’s verdict. MTAA takes the position that the roofers caused the fire and that plaintiffs failed to prove that any breach of duty by MTAA caused or contributed to plaintiffs’ damages. To recover in a negligence action, the breach of duty must be the actual and proximate cause of the injury. Whether conduct in a given case is the cause in fact or proximate cause of plaintiff’s injuries is normally a question of fact for the jury. Baker v. City of Garden City, 240 Kan. 554, 557, 731 P.2d 278 (1987). “When a verdict is challenged for insufficiency of evidence or as being contrary to the evidence, it is not the function of this court to weigh the evidence or pass on the credibility of the witnesses. If the evidence, with all reasonable inferences to be drawn therefrom, when considered in the light most favorable to the prevailing party, supports the verdict, it will not be disturbed on appeal.” Cerretti v. Flint Hills Rural Electric Co-op Ass'n, 251 Kan. 347,361-62, 837 P.2d 330 (1992). The record in this case contains sufficient evidence to support the jury’s determination that MTAA’s breach of duty caused or contributed to the fire. MTAA employees who were responsible for carrying out MTAA’s police and fire protection duties testified that they did not even know of the prohibition against inflammable materials, the restrictions on open flames, or the rale requiring identification of fire hazards. While no MTAA safety employee admitted seeing the roofers using a torch on hangar 626, the record does show that they would drive past the hangar 10 to 20 times during a patrol of the airport. Moreover, MTAA safety employees admitted knowing about the roofing project and, in fact, had to let the roofers through the locked gate into the area where hangar 626 was located. Furthermore, there was testimony that safety department employees on patrol were required to watch out for fire hazards and to take action in the event a potential hazard was observed. David Stremming, MTAA President, authorized Million Air to apply a rubber roof to hangar 626. Although he testified he did not know roofers would use a torch on hangar 626, there was evidence in the record contradicting that claim. Robert Zibell of Million Air testified he told Stremming that he wanted to put a roof on hangar 626 like the roof that he had put on hangar 170. Stremming went up on the roof of hangar 170 to observe the job and observed the use of a torch in the application of that roof. In addition, Stremming admitted that he had a clear view of hangar 626 from his office window. Edward Schons, the director of MTAA’s safety department, assured Cessna representatives that his department was a 24-hour-a-day operation and that his people would inform Cessna if they saw anything unusual around the hangar. In particular, Schons said he would advise Cessna of anything threatening the aircraft. He assured Cessna that his safety department responded to problems very rapidly, like a “hungry dog on a piece of meat.” Plaintiffs, however, were not warned that a torch was being used on the roof of the hangar where their planes were stored. MTAA contends that the actions of Million Air and the roofers were an intervening cause, precluding liability on the part of MTAA. That argument is not persuasive. There is certainly evidence in the record which would justify the jury’s determination that the acts of Million Air and the roofers did not break the sequence of events between MTAA’s wrong and plaintiffs’ injury. See Finkbiner v. Clay County, 238 Kan. 856, 862, 714 P.2d 1380 (1986). While other evidence could be mentioned, such an exercise would only prolong this opinion. Our review? of the record, viewed in the light most favorable to plaintiffs, indicates that there was sufficient evidence to support the jury’s determination that MTAA’s negligence caused or contributed to plaintiffs’ damages. EVIDENCE OF DAMAGES MTAA contends that the district court erred in admitting certain evidence plaintiffs offered in connection with their claimed damages. “Rulings on the admissibility of evidence fall within the sound discretion of the trial court. One attacking an evidentiary ruling must show an abuse of discretion. An abuse of discretion exists only when no reasonable person would take the view adopted by the trial court.” Stowers v. Rimel, 19 Kan. App. 2d 723, Syl. ¶ 3, 875 P.2d 1002 (1994). A verdict will not be set aside on the basis of the erroneous admission of evidence unless the record shows a specific and timely objection. K.S.A. 60-404. A party may not object to the introduction of evidence on one ground at trial and then assert a different objection on appeal. State v. Goseland, 256 Kan. 729, Syl. ¶ 1, 887 P.2d 1109 (1994). MTAA argues at length that plaintiffs’ evidence of damages was speculative. The planes destroyed in the fire had been customized for use in a Navy training project. Cessna introduced evidence of its efforts to market the planes after the project ended, including a proposal to use the planes in a drug interdiction program. Nearly all of this evidence was admitted without objection at trial, and MTAA on appeal merely attempts to minimize the weight to be given that evidence. It is not the function of this court to reweigh the evidence. Cerretti, 251 Kan. at 361-62. MTAA has not cited to one place in the record where an objection was raised on the grounds that the testimony was speculative. MTAA’s brief mentions only two evidentiary objections which were made at trial. It claims the district court erred in admitting the testimony of Jon Huffman regarding the market value of the planes that were destroyed. The record, however, shows that MTAA’s objection to form was sustained, the question was rephrased, and the witness gave his opinion without further objection. An objection is waived by the failure to renew it when the question is repeated. Schlatter v. Ibarra, 218 Kan. 67, 73, 542 P.2d 710 (1975). The other evidentiary objection mentioned by MTAA on appeal concerns Cessna’s communications with the federal government after the fire. The record reflects that Cessna presented evidence of its efforts to market the planes to the federal government. Cessna further presented evidence of the amount the federal government was willing to pay to use the planes in a drug interdiction program. The challenged evidence was offered to show that the federal government was truly an interested customer, because MTAA took the position that the government was not going to proceed with the deal. The only objection to the evidence at trial was relevance, and reasonable people could agree with the trial court that the challenged evidence had some probative value. We also note that MTAA’s objection to admitting the letter from the federal government was sustained. MTAA has failed to show that the district court committed any reversible error in its evidentiary rulings. VENUE MTAA argues that the district court erred in denying its motion to transfer venue to Shawnee County. The allowance or refusal of an application for change of venue rests within the sound discretion of the trial court. Fredricks v. Foltz, 221 Kan. 28, 33, 557 P.2d 1252 (1976). The record reflects that suit was filed in Osage County, and one defendant, Kelvin Lynn, was a resident of Osage County. K.S.A. 60-603 provides that an action against a resident may be brought in the county where the defendant resides. K.S A. 60-608 provides that in cases with multiple defendants, the plaintiff may elect venue based on any one of the defendants against whom a substantial claim exists. MTAA argued in the district court that Lynn was no longer a party. The district court rejected that argument, and MTAA has not challenged that determination on appeal. MTAA does argue that as a governmental entity it can only be sued in its home county, i.e., Shawnee County. This argument ignores 60-608 regarding cases with multiple defendants, and K.S.A. 27-320(b) and K.S.A. 27-331(b), which make clear that an airport authority may sue and be sued in any court of competent jurisdiction. MTAA argues that any action against it is inherently a local action, which must be brought in Shawnee County. To support this argument, MTAA relies on the definition of “municipality” from K.S.A. 75-6102(b) of the tort claims act, and Trader v. Southwestern Bell Telephone Co., 145 Kan. 690, 694, 66 P.2d 414 (1937). Trader relied on a statute regarding service of process, since no express provision of the venue statutes applied. Moreover, no statutory provisions such as 27-320(b) and 27-331(b) were involved in Trader. MTAA makes no argument that an action against a municipality falls within the statutory provision for local actions contained in 60-602. MTAA does argue that an action against a public official for neglect of his official duties must be brought in the county in which the cause arose. K.S.A. 60-602(3). MTAA reasons that this venue provision applies because this action alleges negligence by MTAA officers and employees. MTAA has cited no case which applies 60-602 to a cause of action for damages arising out of the negligence of a governmental official. But see Huerter v. Hassig, 175 Kan. 781, 267 P.2d 532 (1954) (statutory predecessor to K.S.A. 60-602 applied in mandamus action). In addition, MTAA’s attempt to rely on 60-602 ignores the fact that venue is proper under 60-608. See State, ex rel., v. Miami County Comm’rs, 168 Kan. 723, 729-30, 215 P. 2d 631 (1950); State, ex rel., v. Miley, 120 Kan. 321, 326, 243 Pac. 262 (1926). The district court did not err in denying MTAA’s motion for change of venue. RESTRICTIONS ON CROSS-EXAMINATION MTAA argues that the district court erred in excluding evidence regarding insurance payments made to Sun Life. As previously dis cussed, the standard of review concerning the admission or exclusion of evidence is abuse of discretion. Sun Life lost three planes in the fire. These planes were leased to Cessna. Sandra Hayes, assistant vice president for a Sun Life subsidiary, testified that Sun Life lost payments anticipated under the lease through January 1997, after the planes were destroyed. In recross-examination, MTAA attempted to ask Hayes about insurance proceeds received by Sun Life for the destroyed planes. The district court ruled that evidence of insurance payments to Sun Life was irrelevant. MTAA contends that when one party introduces an inadmissible fact, the door is opened for another party to introduce a similar inadmissible fact to remove any unfair prejudice. One problem with this contention is that MTAA did not object when Hayes testified about the lease payments and still does not offer an explanation for its assumption that this testimony was inadmissible. Another problem with this argument is that MTAA totally ignores the fact that Kansas recognizes the collateral source rule. Thus, benefits received by a plaintiff from a source independent of and collateral to the wrongdoer will not diminish the damages otherwise recoverable from the wrongdoer. Gregory v. Carey, 246 Kan. 504, 508, 791 P.2d 1329 (1990). The district court did not err in restricting MTAA’s questions about Sun Life’s insurance proceeds. CUMULATIVE ERROR MTAA next argues that cumulative trial error requires reversal of the jury’s verdict. Cumulative error warrants reversal when the various errors “have so permeated and tainted the entire proceedings that [a party] has been deprived of the fair trial to which every litigant is entitled.” Walker v. Holiday Lanes, 196 Kan. 513, 520, 413 P.2d 63 (1966). For there to be cumulative error, there must first be individual errors. We have carefully considered each of MTAA’s claims of error and found them to be without merit. MTAA asserts that the jury’s apportionment of fault is inequitable. MTAA believes less fault should have been apportioned to it and more fault to the roofers. This contention provides no basis for setting aside the verdict. Apportionment of fault is a jury function. It is not the function of this court to reweigh the facts or to substitute our judgment for that of the jury. This case was thoroughly tried by able counsel on all sides. The trial itself took 8 days. Over 30 witnesses testified, either live or by deposition. Well over 100 exhibits were introduced into evidence. The record of this case fills six boxes. MTAA has failed to present anything which would warrant the conclusion that error permeated the proceedings or that it was deprived of a fair trial. ASSESSMENT OF DEPOSITION COSTS MTAA’s final argument on appeal is that the district court erred in assessing deposition costs against it. During discovery the district court ordered the parties to have all designated experts present at trial. MTAA designated nine experts but only two were present at trial. After trial, plaintiffs filed a motion for deposition costs for the seven MTAA experts who were not present at trial. Plaintiffs requested $25,317.62. The district court ordered MTAA to pay $13,081.12 of plaintiffs’ costs associated with deposing five of the designated experts who were not present at trial. The record of the hearing on plaintiffs’ motion for costs is not included in the record on appeal. MTAA argues that these costs are not allowable costs under K.S.A. 60-2003, and thus the district court erred in assessing them against MTAA. The allowance of costs rests within the sound discretion of the trial court. Brown v. Lang, 234 Kan. 610, 617, 675 P.2d 842 (1984). K.S.A. 60-2002 provides that costs shall be allowed to the party in whose favor judgment is rendered. K.S.A. 60-2003 sets forth the items which may be included as costs, including certain expenses incurred for depositions used as evidence. K.S.A. 60-2003(4) and (5). The costs claimed by plaintiffs in this case were not incurred in connection with depositions which were used as evidence. The Supreme Court has examined the question of assessing costs for discovery depositions. “Costs of preparation for trial are not ordinarily recoverable as costs. Discovery depositions by their very nature fall within the realm of trial preparation. We think the distinction implicit in 60-2003 evinces policy which is reasonable and fair. We therefore hold that charges for discovery depositions, not used as evidence, are ordinarily not taxable as costs. Generally speaking, a trial court is vested with a large measure of discretion in the administration of our discovery procedures, and we do not mean to say extraordinary circumstances might not exist wherein a trial judge would be justified, in the exercise of sound discretion, in allowing or apportioning the charges of discovery depositions. The burden of proving any such rare exception would, of course, rest upon the party claiming the costs.” Wood v. Gautier, 201 Kan. 74, 79, 439 P.2d 73 (1968). See Bridges v. Bentley, 244 Kan. 434, 446, 769 P.2d 635 (1989). In this case, the district court determined that control of the discovery process necessitated a rather unusual order: all experts designated were to be present for trial. No appeal has been taken from that order. In the face of that order, MTAA designated seven experts who did not appear at trial. Thus, plaintiffs were put to the expense of deposing experts that MTAA designated but did not present at trial. Under these facts, extraordinary circumstances justified the district court in assessing deposition costs against MTAA. A reasonable person could agree with the district court’s determination that costs should be assessed in order to enforce its discovery order. In light of this conclusion, we need not address plaintiffs’ alternative argument that the district court’s order assessing costs fell within the scope of K.S.A. 60-216. Affirmed.	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Brazil, C.J.: The Estate Recovery Unit of the Kansas Department of Social and Rehabilitation Services (SRS) appeals the district court’s judgment allowing Fred Phillippe to claim a homestead exemption for the house previously owned by his father, the decedent Abe Phillippe. SRS challenges the sufficiency of the evidence indicating Abe intended to treat the property as his homestead after his move to a nursing home. SRS also contends that Fred is not a part of Abe’s family under Kansas homestead law. Last, SRS contends its medical benefits claim against Abe’s estate constitutes a consensual lien which is excepted from the homestead exemption. We affirm. In 1972, following his divorce, Fred Phillippe moved into his parents’ home. Fred’s mother died in 1990, and in 1991 Abe was diagnosed with cancer. Abe moved to a nursing home because Fred could no longer provide the care he needed. Abe lived in the nursing home until his death in October 1994. In 1995, the Estate Recovery Unit of SRS unsuccessfully petitioned the district court to recover $33,779.06 in medical assistance benefits it had provided to Abe. The court concluded that Abe did not abandon his homestead and also held that Fred was a part of Abe’s family and therefore was entitled to claim the homestead exemption. The court allowed SRS’s claim, but held that the homestead exemption prevented SRS from acquiring a lien on the property. The court determined that SRS merely had an inchoate interest which would not vest while the property was occupied as a homestead. Homestead The homestead exemption is set forth in the Kansas Constitution. See Kan. Const. Art. 15, \ 9. The probate code also includes the homestead exemption: “A homestead to the extent of 160 acres of land lying without, or of one acre lying within, the limits of an incorporated city, or a manufactured home or mobile home, occupied by the decedent and family, at the time of the owner’s death, as a residence, and continued to be so occupied by the surviving spouse and children, after such death, together with all the improvements on the same, shall be wholly exempt from distribution under any of the laws of this state, and from the payment of the debts of the decedent, but it shall not be exempt from sale for taxes thereon, or for the payment of obligations contracted for the purchase thereof, or for the erection of improvements thereon, or for the payment of any hen given thereon by the joint consent of husband and wife. The title to the homestead property of a decedent shall pass the same as the title to other property of the decedent.” K.S.A. 59-401. SRS contends that the evidence does not support a finding that Abe intended to treat the property as his residence and homestead. Fred, on the other hand, frames the issue as whether the evidence shows Abe abandoned the homestead. Implicit in the district court’s finding that Abe did not abandon the homestead is a finding that a homestead existed. Whether a homestead exists is a question of fact, and this court will not disturb findings of fact that are supported by substantial competent evidence. In re Estate of Fink, 4 Kan. App. 2d 523, 526, 609 P.2d 211, rev. denied 228 Kan. 806 (1980). The evidence shows that Abe lived at the residence continuously for approximately 20 years prior to moving into the nursing home. Clearly, a homestead existed. Thus, the question is whether Abe abandoned the homestead. This court addressed abandonment of homesteads in In re Estate of Fink: “Once it has been established that a homestead interest in property exists, then the burden of proof is on the party attempting to defeat that interest to show by positive and clear evidence that the homestead has been abandoned, as there is a presumption that once established the homestead continues until the contrary is shown. Bellport v. Harder, 196 Kan. 294, 411 P.2d 725 (1966). Whether a homestead has been abandoned is a question for the trier of fact. Waltz v. Sheetz, 144 Kan. 595 [, 61 P.2d 883 (1936)]. Two tests must be met before a homestead interest may be destroyed or abandoned: (1) there must be a removal from the property, and (2) there must be an intent not to return.” 4 Kan. App. 2d at 527-28. SRS argues that the evidence does not show Abe intended to return to the residence. However, under the law stated in In re Estate of Fink, SRS had the burden to show by positive and clear evidence that Abe did not intend to return to the residence. The only evidence possibly indicating Abe did not intend to return is the fact that, after his move to the nursing home, Abe stopped filing for a homestead tax exemption. See K.S.A. 79-4501 et seq. However, Fred explained that Abe did not deal with the taxes after he went into the nursing home. The tax exemption evidence does not constitute positive and clear proof that Abe did not intend to return to his residence. By finding that Abe did not abandon his homestead, the district court essentially held that SRS did not sustain its burden of proof to show Abe had abandoned the residence. A finding that a party failed to meet its burden of proof is a negative finding, see Mohr v. State Bank of Stanley, 244 Kan. 555, 567, 770 P.2d 466 (1989), which will not be overturned absent proof of an arbitrary disregard of undisputed evidence or some extrinsic consideration such as bias, passion or prejudice. Lostutter v. Estate of Larkin, 235 Kan. 154, Syl. ¶ 1, 679 P.2d 181 (1984). See Sunflower Racing, Inc. v. Board of Wyandotte County Commrs, 256 Kan. 426, 441, 885 P.2d 1233 (1994). In the present case, the district court did not arbitrarily disregard undisputed evidence of Abe’s intent. We uphold the district court’s finding that Abe did not abandon his homestead. SRS also argues that the district court acted improperly by taking judicial notice of the fact that “there isn’t a person that ever went into a care home that didn’t want to come home.” However, the court’s statement is in accord with the legal proposition that a homestead is presumed to continue until the contrary is shown. See In re Estate of Fink, 4 Kan. App. 2d at 527. SRS had to prove Abe did not intend to return to his residence, and the court did not foreclose SRS from presenting evidence to that effect. SRS is not entitled to relief. Family Member The homestead exemption extends to members of the decedent’s family. See Kan. Const. Art. 15, § 9; K.S.A. 59-401. At the district court level, SRS argued that Fred was not a member of Abe’s family as defined under Kansas homestead law. The district court disagreed and held that Fred was a part of Abe’s family. On appeal, SRS challenges the district court’s conclusion. Our Supreme Court defined “family” liberally in In re Estate of Dittemore, 152 Kan. 574, 576-77, 106 P.2d 1056 (1940): “The term 'family,’ as used in the Kansas homestead law, is also interpreted most liberally. It extends not only to the group comprised of father, mother and children, but to various other groups bound together by ties of consanguinity living together as a household.” At first glance, Fred appears to come within the definition of family by virtue of his status as Abe’s son. SRS contends that Fred was not part of Abe’s family because Fred had not continuously occupied the residence from the time when he was a minor. SRS cites In re Estate of Dittemore, 152 Kan. 574, and Koehler v. Gray, 102 Kan. 878, 172 Pac. 25 (1918), pointing out that in both cases the children claiming the homestead exemption occupied the residence continuously from minority. SRS argues that because Fred at one time moved out of the residence and subsequently moved back in following his divorce, he is not part of Abe’s family. SRS misconstrues the cited cases. Neither case stands for the proposition that a child must live in a residence continuously from minority in order to be a part of a family under Kansas homestead law. SRS’s contention lacks merit. SRS next argues that Fred is not part of Abe’s family because Fred was not a dependent of Abe or under Abe’s care and control. SRS asserts that for a family relation to exist, there must be a dependence relationship, similar to a parent/minor child relationship, in which the parent takes moral responsibility for the child. SRS bases its contention on Cross v. Benson, 68 Kan. 495, 75 Pac. 558 (1904), where the court considered a minor child residing with her grandparents. Although the child’s father was alive, the child’s grandparents were morally responsible for her, and she was dependent upon them. The court held that the child was a part of the grandparents’ family for purposes of Kansas homestead law. The court concluded that the direct relation of parent and child need not exist in order to constitute a family. 68 Kan. at 509-11. However, the court did not hold, as SRS suggests, that dependence and moral responsibility are prerequisites to the existence of a family relationship. Kansas law does not support SRS’s legal theory. In In re Estate of Dittemore, the court stated that “ ‘[t]here need not, of necessity, be dependence or obligation growing out of the relation.’ ” 152 Kan. at 578 (quoting Fox v. Waterloo Nat. Bank, 126 Iowa 481, 102 N.W. 424 [1905]). The Koehler court also observed that “[n]or is it necessary to that relation that there should be a legal duty to support [the child].” 102 Kan. at 881. Kansas courts interpret the term family most liberally, and the Dittemore case states that family extends to father, mother, and children. 152 Kan. at 576-77. Accordingly, we hold that Fred is a part of Abe’s family for purposes of Kansas homestead law. Lien The district court allowed SRS’s claim, but held that the homestead exemption prevented SRS from acquiring a lien on Fred’s residence. SRS contends that its claim constitutes a consensual hen against the property and therefore is excepted from the homestead exemption. “A judgment lien does not attach to a homestead unless it is based on one of the exceptions set out in the homestead exemption.” In re Marriage of Beardslee, 22 Kan. App. 2d 787, 792, 922 P.2d 1128 (1996). See Jones v. St. Francis Hosp. & School of Nursing, 225 Kan. 649, 653, 594 P.2d 162 (1979); In re Marriage of Johnson, 19 Kan. App. 2d 487, 489, 872 P.2d 308 (1994). K.S.A. 59-401 provides that a homestead “shall not be exempt from sale ... for the payment of any lien given thereon by die joint consent of husband and wife.” However, the evidence does not indicate that Abe ever expressly granted SRS a lien against his residence. SRS argues that the hen was created by statute. K.S.A. 1995 Supp. 39-709(g)(2) states that the amount of medical assistance paid constitutes “a claim” against the estate of a deceased recipient. SRS compares the present situation to Hawkins v. Social Welfare Board, 148 Kan. 760, 762-764, 84 P.2d 930 (1938), where the court considered the constitutionality of a statute which granted “a lien upon any real property” owned by the recipient of old-age assistance payments. In determining that the statute did not violate the homestead exemption set forth in the constitution, the court held that although a statutory hen existed, it was subordinate to the homestead exemption. The court concluded that the hen could not be enforced as long as the real estate retained its character as a homestead. In the alternative, the court reasoned that the recipient of the old-age assistance consented to the statutory hen by applying for and accepting the payments. 148 Kan. at 764. Hawkins is distinguishable on its facts. The statute in Hawkins expressly created a lien on the real property of the recipients of old-age assistance. In contrast, K.S.A. 1995 Supp. 39-709(g)(2), although giving SRS a right of recovery, does not create a lien against the real property of those who receive medical assistance payments. Therefore, Abe did not consent to a lien against his real property by accepting medical assistance from SRS. Because no consensual lien exists, SRS cannot enforce its claim against Abe’s estate. An unsecured claim acquires no present existing lien against a homestead, but rather constitutes an inchoate interest which does not vest as long as the property retains its character as a homestead. In re Estate of Casey, 156 Kan. 590, 599, 134 P.2d 665 (1943). The district court correctly held that the homestead exemption prevented SRS from enforcing its claim against Abe’s estate. Affirmed.	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Green, J.: Fifteen former employees of Mycro-Tek, Inc., appeal from an unsuccessful action brought against two former directors of Mycro-Tek for wages, accrued vacation pay, and penalties under the Kansas Wage Payment Act, K.S.A. 44-313 et seq. Specifically, the employees appeal the trial court’s order granting the directors’ motion for summary judgment and the order denying the employees’ motions for partial summaiy judgment. We affirm. Experiencing severe financial trouble, on January 22, 1993, Mycro-Tek announced that it would reduce the wages of all employees by 20 percent beginning the following week (January 25 through January 29). The employees were paid 80 percent of their salaries for that week. In an attempt to further reduce expenses, Mycro-Tek laid off several workers on February 5, 1993. Finally, on February 10, 1993, Mycro-Tek filed a bankruptcy petition. Former Mycro-Tek employees brought an action under the Kansas Wage Payment Act seeking: (1) wages for the week of January 25, 1993, through January 29, 1993; (2) accrued and unpaid vacation pay; (3) severance pay; (4) the statutory penalty imposed by K.S.A. 44-315(b); and (5) interest imposed by K.S.A. 44-323(a). The employees’ claims were removed to the United States District Court. The United States District Court retained jurisdiction over the severance pay claim and remanded the remaining claims to the trial court. The employees filed a motion for partial summary judgment. The issue raised by the motion was: Were the employees barred from recovering against the directors the penalty allowed by K.S.A. 44-315(b) as a result of Mycro-Tek’s bankruptcy filing? The motion described the issue as a pure question of law. The employees further stated that there were no factual disputes. The trial court denied the motion and specifically found that the directors could not be “liable for additional damages under K.S.A. 44-315(b) for any period following the filing of the Mycro-Tek, Inc. bankruptcy petition.” The directors then filed a motion for summary judgment seeking an order barring the employees from pursuing additional damages or penalties under K.S.A. 44-315(b). In addition, the directors sought an order that Mycro-Tek’s 20 percent pay cut did not violate the Kansas Wage Payment Act and that the employees’ claims for accrued vacation pay were preempted by the United States Bankruptcy Code. • The employees filed a second motion for partial summary judgment in which they argued that Mycro-Tek’s 20 percent wage reduction did not conform to the procedures set out in the personnel policy manual, rendering it unenforceable. In granting the direc tors’ motion for summary judgment in its entirety, the trial court also ruled that the employees’ second motion for partial summary judgment was moot. The employees timely appeal both orders denying their motions for partial summary judgment as well as the court’s order granting the directors’ motion for summary judgment. The trial court’s ruling granting the directors’ motion for summary judgment encompassed all of the issues in this case. The trial court ruled as follows: “1. In its previous ruling denying Plaintiffs’ Motion for Partial Summary Judgment, this Court found as a matter of law, for purposes of the penalty provided by K.S.A. §44-315(b) any alleged failure to pay wages by Mycro-Tek ended upon Mycro-Tek’s bankruptcy filing on February 10, 1993. Thus, because liability for corporate officers or agents under K.S.A. §44-323(a) requires a violation by the corporation, neither defendant could be hable for any penalty after February 10,1993. For this reason, and based on the doctrine of the law of the case, defendants are entitled to summary judgment in their favor on Plaintiffs’ claims for any penalty under K.S.A. §44-315(b); “2. The undisputed facts set forth in the record disclose that on January 22, 1993, Mycro-Tek’s board of directors adopted a valid and enforceable 20% wage reduction for all employees and further disclose that Mycro-Tek’s president Allan Allford announced the wage reduction to Mycro-Tek’s employees on January 22, 1993, in advance of the January 25 work week. It is further undisputed that Plaintiffs were paid in full the reduced wage for the week of January 25, 1993. It is further undisputed that each plaintiff was an at-will employee of Mycro-Tek. As a matter of law, an at-will employer does not violate the Kansas Wage Payment Act, K.S.A. § 44-313 et seq., by unilaterally adopting a wage reduction in advance of the work week. For this reason, neither Mycro-Tek nor the individual defendants violated the Kansas Wage Act by implementing the 20% wage reduction, and defendants are entitled to judgment in their favor as a matter of law on plaintiffs’ claims for wages for the week of January 25, 1993. “3. With respect to the claims of plaintiffs ... for accrued unpaid vacation it is undisputed that the right to recover such payment arose, if at all, after Mycro-Tek’s bankruptcy filing on February 10,1993. This claim for accrued, unpaid vacation, which arose while Mycro-Tek was a debtor in bankruptcy, and the priority of that payment vis-a-vis claims of other creditors was subject to the exclusive jurisdiction of the United States Bankruptcy Code, which preempts the operation of the Kansas Wage Payment Act, K.S.A. § 44-313 et seq. For this reason, defendants are entitled to judgment in their favor as a matter of law . . . .” The employees argue that the trial court erred in granting the directors’ motion for summary judgment. In Mitzner v. State Dept. of SRS, 257 Kan. 258, 260-61, 891 P.2d 435 (1995), our Supreme Court reiterated the following standard of review of a motion for summary judgment: “The burden on the party seeking summary judgment is a strict one. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal we apply the same rule, and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. [Citations omitted.]” With regard to the trial court’s ruling on issue number one (whether the employees could seek penalties pursuant to K.S.A. 44-315[b]), the employees contend that the trial court erroneously interpreted K.S.A. 44-315 and K.S.A. 44-323, which provide as follows: K.S.A. 44-315: “(a) Whenever an employer discharges an employee or whenever an employee quits or resigns, the employer shall pay the employee’s earned wages not later than the next regular payday upon which he or she would have been paid if still employed as provided under K.S.A. 44-314 either through the regular pay channels or by mail postmarked within the deadlines herein specified if requested by the employee. “(b) If an employer knowingly fails to pay an employee wages as required under subsection (a) of this section, such employer shall be liable therefor and shall be additionally hable for damages in the fixed amount of one percent (1%) of the unpaid wages for each day, except Sunday and legal holidays, upon which such failure continues after the eighth day after the day upon which payment is required or in an amount equal to the unpaid wages, whichever is smaller, except that such penalty shall apply only in the event of a willful violation. For the puipose of such additional damages, the failure to pay shall not be deemed to continue after the date of the filing of a petition in bankruptcy with respect to the employer if he or she is adjudicated bankrupt upon such petition nor shall it be deemed to continue after an appeal is filed under K. S .A. 44-322a, until the decision on appeal becomes final.” K.S.A. 44-323: “(a) At the discretion of the presiding officer, interest, as provided under K.S.A. 16-201, and amendments thereto, may be assessed on wage claims found to be due and owing from the date the wages were due as defined in K.S.A. 44-314, and amendments thereto. “(b) In case of violation of K.S.A. 44-314, and amendments thereto or 44-315, and amendments thereto, by a corporate employer, either the corporation or any officer thereof or any agent having the management of the corporation who knowingly permits the corporation to engage in such violation shall be deemed the employer for purposes of this act.” The employees assert that the statute may be construed such that the directors are “employers” under K.S.A. 44-323(b). The employees argue that such a construction allows them to proceed against the directors for damages under K.S.A. 44-315(b). In their brief, the employees argue that K.S.A. 44-315 and 44-323 should be analyzed as follows: “First, it must be determined if there was a failure to pay wages as required by K.S.A. 44-315(a). . . Second, the ’employer’ must be determined. To make that determination, K.S.A. 44-323(b) provides that in the case of a violation of K.S.A. 44-315 by a corporate employer, ‘either the corporation or any officer thereof or any agent having the management of the corporation who knowingly permits the corporation to engage in such violation shall be deemed the employer for purposes of this act.’ . . . “. . . If the plaintiffs can prove that the ‘employer’ willfully violated K.S.A. 44-315(b), the penalty can be assessed against the employer . . . .” The employees concede that the accrual of the employer’s additional liability or penalty stops when the employer files bankruptcy. However, they contend that the individual director’s penalty continues to accrue where a corporate employer files bankruptcy because an individual is deemed to be the “employer” under K.S.A. 44-315(b). The employees argue that such construction is consistent with the statute’s purpose of protecting wage earners. Conversely, the directors argue: “K.S.A. 44-323(b) establishes the parameters of obtaining from individual corporate officers or agents the additional damages of K.S.A. 44-315(b). Under the plain language of this statute the corporate employer must violate the statute for the individual to incur liability. “By definition, the failure to pay does not continue after the corporate employer files bankruptcy. K.S.A. 44-315(b). Thus, if the corporate employer files bankruptcy, then the corporate employer is not committing the violation of continued failure to pay wages. ... If the corporate employer is not committing the violation, the individual corporate officers cannot, by statutory definition, be liable for additional damages under K.S.A. 44-315(b).” Although the trial court found the directors’ argument persuasive, this court is not bound by the decision of the trial court on issues of statutory interpretation. “Interpretation of a statute is a question of law. An appellate court’s review of a question of law is unlimited.” Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, Syl. ¶ 1, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995). The parties concede that there are no Kansas cases interpreting this issue. However, the parties cite State ex rel. McCain v. Erdman, 4 Kan. App. 2d 375, Syl. ¶ 4, 607 P.2d 78 (1980). In Erdman, this court held the sole officer of a corporation liable for the corporation’s violation of the Kansas Wage Payment Act. Because the officer had given the employee a bad check and assured him that he would be paid, the court found that the officer had knowingly permitted the corporation to violate the statute. The officer was deemed the employer for purposes of K.S.A. 44-315. 4 Kan. App. 2d at 377. However, neither the individual officer nor the corporation filed bankruptcy in Erdman. Therefore, Erdman is not helpful in determining the effect of the corporation’s bankruptcy in this case. Both the employees and the directors form arguments from general rules of statutory interpretation. The employees emphasize that “’[i]t is a fundamental rule of statutory construction, to which all other rules are subordinate, that tire intent of the legislature governs if that intent can be ascertained.’ ” City of Wichita v. 200 South Broadway, 253 Kan. 434, 436, 855 P.2d 956 (1993). The employees argue that the purpose of the statute is to protect wage earners and that their interpretation of the statute is consistent with that purpose. They argue at length that the trial court’s interpretation of the statute is contrary to that intent. On the other hand, the directors argue that the statute’s meaning is clear. They contend that “[w]hen a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be.” Martindale v. Tenny, 250 Kan. 621, Syl. ¶ 2, 829 P.2d 561 (1992). Although both interpretations of the statute are plausible, the employees’ attempts to construe the directors as “employers” under K.S.A. 44-323(b) requires a tortured and contorted reading of the statute. When read as a whole, the statute is consistent with the trial court’s ruling. The following rules of construction support the trial court’s interpretation of the statute: “ The several provisions of an act, in pari materia, must be construed together with a view of reconciling and bringing them into workable harmony and giving effect to the entire statute if it is reasonably possible to do so.’ ” Guardian Title Co. v. Bell, 248 Kan. 146, 151, 805 P.2d 33 (1991). “ ‘Effect must be given, if possible, to the entire act and every part thereof. To this end, it is the duty of the court, as far as practicable, to reconcile the different provisions so as to make them consistent, harmonious, and sensible.’ ” Todd v. Kelly, 251 Kan. 512, 516, 837 P.2d 381 (1992). Consequently, we determine that Mycro-Tek, and not the directors, was the “employer” under the Kansas Wage Payment Act. The employees also argue that the trial court erred in granting summary judgment as to whether Mycro-Tek announced a valid pay cut. The employees argue that this issue was not ripe for summary judgment because there are material issues of fact in dispute as to whether Mycro-Tek announced a pay cut or a pay deferment. Secondly, the employees argue that the announcement did not conform with the procedures set out in the personnel policy manual. The record does not support those contentions. In their motion in opposition to the directors’ motion for summary judgment, the employees argued that Mycro-Tek’s announcement could be construed as a pay deferment. In support, the employees attached the following transcript of an announcement given January 22, 1993, by Allan Allford, president of Mycro-Tek: “First of all, I’m sorry it’s so late in the day, but we just got finished with a Board meeting so I didn’t have any news to point out. Thank you for all of your support. As I said in the mail message, we got some attention in Topeka and there was some reaction to that. I don’t know yet whether it was good or bad, but it certainly got their attention. Here’s the deal. Morris-Anderson will be making a recom mendation to KPERS on Monday morning that proposes that the bank and KPERS will jointly fund operations for next week. It will be a very, very minimal effort on their part in terms of what they will fund. Basically, they have agreed to fund operating expenses required to keep the doors open, the lights on, and the telephones ringing. Payroll tax expenses, sales tax expenses, all of the governmental obligations, and 80 percent of our compensation. There are no assurances by the Board, there are no assurances by the pension fund or by Morris-Anderson at this point that those will be paid next week. The only assurance we have is that they will make that recommendation to KPERS. The reason I was late is because I was on the telephone to the bank. The bank has indicated a'willingness to participate on a 50/50 basis and are [sic] extremely disturbed that the pension fund or that the investment advisors have chosen this direction. What does that mean? That means that if you come to work on Monday, literally when you get here, there are no assurances that you will be paid. If you are paid, you will be paid at a rate of 80 percent of what you’re normally paid. By the end of the day Monday, we should know whether or not KPERS has accepted or rejected that proposal and there will be more assurances about whether or not they will pay the funds throughout the end of the week. In terms of the 20 percent that we may be giving up, we were unable to get any assurances that they would ever be paid back or recuperated [sic] in any way. Not to say that it won’t, but we didn’t get any assurances that it would.” The employees’ argument that this statement indicates that Mycro-Tek announced a pay deferment is flawed. First, the employees admitted in their uncontroverted statement of facts that they were at-will employees. Second, the trial court’s conclusion that Mycro-Tek adopted a valid and enforceable 20 percent wage reduction for all employees was based on undisputed facts in the record. Accordingly, this issue was ripe for summary judgment. The employees’ argument that the 20 percent pay cut was unenforceable based upon the personnel policy manual is tenuous. The manual details procedures for increasing and decreasing individual employee salaries. Preceding a signature line, the personnel policy manual contains the following statement: “I have read the Personnel Policy Manual and understand all of the policies contained therein. I acknowledge that I understand that the policies described are subject to change and are not conditions of employment nor is the language intended to create a contract between Mycro-Tek, Inc. and its employees.” The manual further provides: “THE TERMS OF THIS SECTION ARE NOT INTENDED TO IN ANY WAY AFFECT THE RIGHT OF MYCRO-TEK TO TERMINATE EMPLOYEES AT THE WILL OF MYCROTEK.” Although such disclaimers are not conclusive evidence of an unqualified employment-at-will relationship, the employees do not argue that their at-will status was somehow qualified by the personnel policy manual. See Morriss v. Coleman Co., 241 Kan. 501, 738 P.2d 841 (1987). Based upon the employees’ admitted status as at-will employees and the disclaimers included in the manual, the trial court correctly concluded that Mycro-Tek announced a valid pay cut. Moreover, neither K.S.A. 44-315 nor K.S.A. 44-323 addresses wage or pay cuts. Therefore, the trial court correctly ruled that the statutes do not prohibit at-will employee pay cuts announced before wages are earned. Finally, the employees argue that the trial court erred in determining that their claims for accrued, unpaid vacation pay are controlled by the United States Bankruptcy Code. The employees argue that the Bankruptcy Code applies to the rights of debtors and, therefore, applies to creditors of Mycro-Tek. However, the employees contend that Mycro-Tek’s bankruptcy does not protect the individual directors. Because we previously determined that Mycro-Tek was the “employer” under the Kansas Wage Payment Act, the provisions of the United States Bankruptcy Code controlled the priority of all claims. Affirmed.	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Knudson, J.: Tim Morton appeals his convictions for aggravated battery of a law enforcement officer and aggravated assault on a law enforcement officer. The issues on appeal are: (1) was there prosecutorial misconduct; (2) was the evidence sufficient to support the aggravated battery of a law enforcement officer conviction; and (3) were prior criminal convictions improperly considered in determining Morton’s criminal history. We affirm. There was prosecutorial misconduct, but it did not prejudice Morton’s right to a fair trial. The evidence was sufficient to support both convictions. Including prior criminal convictions in an offender’s criminal history without submission to a jury or requiring proof beyond a reasonable doubt is proper. See State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002). Underlying Circumstances On September 7, 2005, the Morton County Sheriffs Department apprehended Tim Morton who had escaped from lawful custody. Sheriff Loren Youngers transported Morton from his jail cell to tire local hospital for treatment of an arm laceration Morton had sustained during his escape. While being treated in the emergency room, Morton escaped from custody a second time by feigning diarrhea and sneaking out of the bathroom. When Youngers discovered Morton was missing, he left the hospital and drove several blocks away to a house owned by one of Morton’s relatives. He immediately observed Morton enter the residence. Youngers chased Morton into the basement and discovered Morton attempting to hide on top of a freezer at the base of the stairs. Youngers apprehended Morton and escorted him outside to his pickup. When Youngers attempted to place Morton in handcuffs, Morton began to struggle. Attempting to escape, Morton gained access to the cab of Youngers’ pickup, and Youngers wrestled him down onto the driver’s seat. Morton then tried to place the pickup in gear, but Youngers held the brake with his foot to prevent the vehicle from moving. When Youngers reached over to keep Morton from moving the gearshift, Morton began biting Youngers’ arm. Morton also acquired Youngers’ flashlight and struck Youngers several times on his arm, hand, and shoulder. Undersheriff Jason LaRue arrived at the scene and observed Youngers and Morton fighting in the pickup. LaRue attempted to assist Youngers in restraining Morton. Morton was revving the engine and tiying to place the vehicle in gear. At one point, Morton was able to put the vehicle in reverse and it traveled backwards approximately 10 feet before LaRue could put the vehicle back in park. LaRue eventually removed the keys from the ignition and threw them into the bed of the truck. When Officer Loren Coen arrived, he entered the vehicle through the passenger door and grabbed Morton by the neck and shoulder. Youngers warned Coen that Morton was tiying to bite them. Coen eventually managed to restrain Morton and place him in handcuffs. The State charged Morton with one count of escape from custody, two counts of aggravated battery on a law enforcement officer, three counts of aggravated assault on a law enforcement officer, one count of obstructing legal process or official duty, and one count of attempted theft. Morton’s trial strategy consisted of persuading the jury that his actions did not rise to the level of harm required for aggravated assault and aggravated battery of a law enforcement officer. In other words, he did not deny that a struggle had occurred with the officers, but rather attempted to direct the jury’s attention to inconsistencies that would tend to indicate Morton was guilty of the lesser charges of simple assault and battery. Youngers, LaRue, and Coen all testified regarding the events surrounding Morton’s escape and eventual arrest. Youngers testified that he was afraid Morton would strike him on the head with the flashlight, which would have severely injured or killed him. LaRue indicated he was afraid that he would be caught in the door and get smashed between the pickup and another vehicle. Coen similarly indicated he feared that Morton would bite him. The jury found Morton guilty of aggravated escape from custody, guilty of aggravated battery against Officer Youngers, not guilty of aggravated assault against Officer Youngers, guilty of aggravated assault against Officer LaRue, not guilty of aggravated assault against Officer Coen, and guilty of obstructing official duty. The district court sentenced Morton to 41 months’ imprisonment. Morton did not object to his criminal history score of F. Sufficiency of the Evidence Morton contends biting Youngers’ arm could not have caused disfigurement and therefore could not support his conviction of aggravated battery of a law enforcement officer. “When the sufficiency of the evidence is reviewed in a criminal case, [an appellate] court must consider all of the evidence, viewed in a light most favorable to the prosecution, and determine whether a rational factfinder could have found die defendant guilty beyond a reasonable doubt. [Citation omitted.]” State v. Parker, 282 Kan. 584, 597, 147 P.3d 115 (2006). In the present case, Morton was charged with aggravated batteiy on a law enforcement officer pursuant to K.S.A. 2006 Supp. 21-3415 under the following definition of aggravated battery stated in K.S.A. 21-3414(a)(l)(B): “intentionally causing bodily harm to another person with a deadly weapon, or in any manner whereby great bodily harm, disfigurement or death can be inflicted.” Our Supreme Court defines “great bodily harm” as “more than slight, trivial, minor, or moderate harm, and does not include mere bruising, which is likely to be sustained by simple battery." State v. Green, 280 Kan. 758, 765, 127 P.3d 241, cert. denied 549 U.S. 913 (2006) (citing State v. Moore, 271 Kan. 416, 419, 23 P.3d 815 [2001]). Unless specifically designated “great bodily harm” as a matter of law, the issue of whether an injuiy constitutes great bodily harm is a question of fact for the jury. 280 Kan. at 765. Morton relies on Green to argue that as a matter of law the bite on Youngers’ arm was at most a simple battery that could not cause great bodily harm or disfigurement. Morton’s argument is not persuasive. Green was convicted of voluntaiy manslaughter. An issue on appeal was whether a bar fight resulted in great bodily harm. The Supreme Court stated: “[T]he facts of each case are evaluated to determine whether a bar fight results in great bodily harm. Because that factual determination is within the province of the jury, an appellate court is limited to reviewing the record for evidence to support the jury’s decision. [Citation omitted.]” 280 Kan. at 765. In Green, the factual issue was whether there was in fact great bodily harm to support the voluntary manslaughter conviction. In the present appeal, the factual issue was not whether there was great bodily harm inflicted, but whether great bodily harm could have been inflicted. While Green provides a useful definition of “great bodily harm,” the Supreme Court clearly held the extent of harm is normally a question for the juiy. 280 Kan. at 765. Likewise, Moore does not support Morton’s argument. In Moore, the defendant grabbed an iron and burned the victim’s legs. He then lifted her shirt, burned her breast, and dropped the iron between her legs, burning her inner thighs. An issue on appeal was whether these actions caused great bodily harm or disfigurement. The Supreme Court noted: “Disfigurement has no single technical meaning or single definition and should be considered in the ordinary sense. When an injury has been established, the question of whether it constitutes great bodily harm or disfigurement is normally a question to be determined by the trier of fact.” 271 Kan. 416, Syl. ¶ 3. Green and Moore considered whether great bodily harm had occurred. In addition, both cases clearly demonstrate the issue as to degree of harm is a fact question for the jury. Consequently, neither case supports Morton’s argument of error. We conclude Morton fails to grasp the distinction between K.S.A. 21-3414(a)(l)(B) with K.S.A. 21-3414(a)(l)(A) ([i]nten tionally causing great bodily harm . . . . or disfigurement). In this prosecution, the State was not required to prove great bodily harm or disfigurement was inflicted, only that it could have been inflicted. We hold the question of whether biting an individual could inflict great bodily harm or disfigurement was a question for the jury in this case. Considering all of the evidence, viewed in a light most favorable to the prosecution, a rational factfinder could have found Morton guilty beyond a reasonable doubt. Prosecutorial Misconduct On appeal, Morton complains of several instances of what he believes constituted prosecutorial misconduct. Morton failed to object to several of the alleged instances. Nevertheless, a contemporaneous objection to alleged prosecutorial misconduct is not required in order to preserve the issue for appeal; an appellate court will apply the same standard of review regardless of whether the defendant lodged an objection. State v. Albright, 283 Kan. 418, 428, 153 P.3d 497 (2007). Appellate review of an allegation of prosecutorial misconduct requires a two-step analysis. First, the appellate court decides whether the comments were outside the wide latitude that the prosecutor is allowed in discussing the evidence. Second, the appellate court decides whether those comments constitute plain error; that is, whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial. 283 Kan. at 428. In the second step of the two-step analysis, the appellate court considers three factors: “(1) whether the misconduct was gross and flagrant; (2) whether the misconduct showed ill will on the prosecutor’s part; and (3) whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of jurors. None of these three factors is individually controlling. Moreover, the third factor may not override the first two factors unless the harmless error tests of both K.S.A. 60-261 [refusal to grant new trial is inconsistent with substantial justice] and Chapman v. California, 386 U.S. 18, [22,] 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967) [(federal constitutional standard — conclusion beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial)], have been met. [Citations omitted.]” Albright, 283 Kan. at 428. First, Morton contends the State improperly bolstered Youngers’ credibility. Morton cites to a single sentence made during the prosecutor’s closing argument: “[Youngers] has absolutely nothing to gain from his testimony, other than for you to find the truth.” Generally, a prosecutor’s personal opinion in closing argument regarding the credibility of a witness is improper. See State v. Davis, 275 Kan. 107, 122-23, 61 P.3d 701 (2003). However, reasonable inferences may be drawn from the evidence and considerable latitude is allowed the prosecutor in discussing the evidence. State v. Anthony, 282 Kan. 201, 210, 145 P.3d 1 (2006); Davis, 275 Kan. at 122-23; State v. Finley, 273 Kan. 237, 244-47, 42 P.3d 723 (2002). Here, the prosecutor’s opinion does appear inappropriate because it was not based on reasonable inferences from the evidence. The comment is similar to the comments disallowed in State v. Donaldson, 279 Kan. 694, 708-09, 112 P.3d 99 (2005). However, even if improper, it consists of a single sentence unlike the remarks made in Donaldson. The statement was not emphasized or repeated in violation of the court’s ruling and cannot be considered so gross and flagrant as to prejudice Morton. There is no indication that the prosecutor exhibited any ill will in making this brief statement. The comment had little, if any, likelihood of changing the result of the trial. The evidence against Morton was direct and overwhelming. The three officers who were present during the encounter testified to the events. Their testimony was relatively consistent, uncontroverted, and easily satisfied all the statutory elements of the crimes. The State presented photographic evidence of the scene of the struggle, the interior of Youngers’ pickup, and Youngers’ injuries. In addition, the jury was properly instructed as to the weight to be given to arguments. Next, Morton contends the prosecutor misstated the elements of aggravated assault on a law enforcement officer. “A misstatement of the law by the prosecutor denies the defendant a fair trial when the facts are such that the jury could have been confused or misled by the statement. [Citation omitted.]” State v. Bunyard, 281 Kan. 392, 404, 133 P.3d 14 (2006). In the present case, the prosecutor informed the jury during closing argument: “I want to read the instructions to you, all right. ‘In Count 5, defendant is charged with the crime of aggravated assault on a law enforcement officer. The defendant pleads not guilty. To establish this charge, each of the following claims must be proved: That the defendant intentionally placed Loren Coen in reasonable apprehension of immediate bodily harm.’ That’s it. It doesn’t say death. It doesn’t say serious bodily harm. It says ‘reasonably placed him in immediate bodily harm.’ So all those comments by Mr. — are wrong.” Morton immediately objected to the prosecutor s statement. The district court sustained his objection, indicating that the comment was appropriate. Morton claims that the prosecutor misstated the elements of aggravated assault by stating that the jury instruction did not mention death or serious bodily harm. While of course the jury instruction does contain a reference to “death or serious injury,” Morton has taken the prosecutor s comment out of context. First, as Morton concedes, the court must consider that the prosecutor s comment was in response to defense counsel’s improper argument that the State had to prove death, disfigurement, or serious bodily injury in order to convict Morton of aggravated assault. During closing argument, Morton’s counsel stated: “And so if you do see fit to believe exactly what the officers said on the stand today, notwithstanding all the other physical evidence that was at the same time or concurrent with the event, we would ask you to find that there was no death or serious bodily injury in connection with any of the assaults or batteries.” Clearly the instruction did not require the jury to find that actual death or serious bodily injury occurred. Moreover, the prosecutor was referring to the first element of the instruction, which requires only proof that Morton placed Coen in reasonable apprehension of immediate bodily harm and not proof that Coen actually sustained death or serious bodily injury. In making this statement, the prosecutor did not implicate the portion of the instruction regarding use of a deadly weapon, to which Morton now refers. Because the comment fell within the wide latitude afforded prosecutors and did not constitute a misstatement of the elements, Morton’s argument fails. Morton next argues that the prosecutor improperly referred to two prior incidents when Morton escaped from police custody when they were not introduced as evidence. “The fundamental rule for closing arguments is that the prosecutor must confine his or her remarks to matters in evidence. It is clearly improper for' the prosecutor to state facts that are not in evidence. When the prosecutor argues facts that are not in evidence, the first prong of the prosecutorial misconduct test is met, and an appellate court must consider whether the misstatement of fact constitutes plain error.” State v. Ly, 277 Kan. 386, Syl. ¶ 4, 85 P.3d 1200, cert. denied 541 U.S. 1090 (2004). Here, Morton refers to the prosecutor’s comment during closing argument that Morton “knew exactly what he had done because he had done this twice before. He had escaped twice before.” The district court sustained Morton’s objection because evidence of two prior escapes was not in the record. The court then admonished the jury to disregard the comment. Review of the trial transcript reveals that the jury had been informed of one prior incident when Morton had escaped from police custody. There does not appear to be any references to a second incident in which Morton had escaped. Therefore, the prosecutor’s statement was outside the wide latitude allowed in closing argument. However, given the fact that only a single passing reference was made to the two prior incidents when Morton had escaped from custody and they were not emphasized, the prosecutor’s conduct cannot be considered gross and flagrant or to have demonstrated ill will. In fact, the prosecutor’s reference to two prior incidents can be interpreted as confusion or a misstatement on the prosecutor’s part because the jury was aware of at least two incidents. Moreover, there was ample evidence before the jury to support the defendant’s convictions. Thus, the prosecutor’s statements during closing argument did not constitute reversible error. Morton’s final contention is that the prosecutor’s reference to “smoke and mirrors” was an improper characterization of defense counsel’s argument and therefore warrants reversal of his convictions. Our Supreme Court has, on several occasions, held that the use of “smoke and mirrors” type comments are within the wide latitude permitted to prosecutors in closing arguments. See State v. Rodriguez, 269 Kan. 633, 643-45, 8 P.3d 712 (2000) (prosecutor’s “puff of smoke” language was not improper when made in response to defense counsel’s tactics and arguments); State v. Duke, 256 Kan. 703, 718-20, 887 P.2d 110 (1994) (prosecutor’s “smoke and mirrors” comments implying that defense counsel was trying to intentionally mislead the jury were within the permissible bounds of rhetoric); State v. Baker, 249 Kan. 431, 447-49, 819 P.2d 1173 (1991) (prosecutor’s “ ‘smoke screen’ ” and “ ‘nice boy image’ ” comments did not provide basis for reversible error); see also State v. McCray, 267 Kan. 339, 348-51, 979 P.2d 134 (1999) (some of prosecutor’s comments insinuating that defense counsel had tried to deceive or intimidate the jury were impermissible, but remarks did not change the result of the trial). Kansas courts have refused to find prosecutorial misconduct occurred in cases where the comments are far more calculated and detailed than those in the present case. For example, in Anthony, 282 Kan. at 211, the court held that the prosecutor’s comments during closing argument of a murder trial that described a scene from film version of “The Wizard of Oz” and repeatedly compared defendant to “the man behind the curtain” did not exceed the bounds of legitimate rhetoric and was responsive to the defense argument that questioned the thoroughness of the police investigation of the murder. Similarly, in Albright, the prosecutor’s references during closing argument of a murder trial to “SODDI” or “some other dude did it” approach of defense and to the phantom “Not Me” character from the Family Circus comic strip were within wide latitude given to a prosecutor in discussing evidence. The prosecutor’s “SODDI” description and “Not Me” analogy more or less accurately characterized the defense’s theory of case. 283 Kan. at 429-30. Here, Morton cites only to the district court’s decision to sustain defense counsel’s objection and admonish the jury as evidence that the comment was improper. Even if the court were to follow the logic of McCray and deem the “smoke and mirrors” comment impermissible, Morton has failed to persuade us the comment is indicative of the prosecutor’s ill will toward Morton. Like the analysis regarding the prosecutor’s improper bolstering of Youngers’ credibility, the comment was very brief and not emphasized by the prosecutor. Moreover, the district court properly instructed the jury to disregard the statement. Morton contends the cumulative effect of prosecutorial misconduct denied him a fair trial. “ ‘Cumulative trial errors, when considered collectively, may be so great as to require reversal of the defendant’s conviction. The test is whether the totality of circumstances substantially prejudiced the defendant and denied the defendant a fair trial.’ [Citation omitted.]” State v. Plaskett, 271 Kan. 995, 1022, 27 P.3d 890 (2001). Only two items which Morton cite constitute prosecutorial misconduct: improper bolstering of witness credibility and reference to matters not in evidence. Both comments were very brief and not emphasized. Neither appears to demonstrate ill will on the prosecutor’s part, only minor mistakes. We conclude trial errors were not so great as to require reversal of Morton’s convictions. Morton presented his defense to the jury and it was rejected. It does not appear reasonably likely that any of the purported errors would have affected the outcome in this case or that Morton was denied a fair trial. Criminal History Determination Morton challenges the district court’s inclusion of his prior convictions in his criminal history score, thereby enhancing his sentence. Morton claims this violated Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). Morton, however, concedes his arguments have been previously rejected by the Kansas Supreme Court. See State v. Ivory, 273 Kan. 44, 46-48, 41 P.3d 781 (2002) (including prior criminal convictions in Kansas Sentencing Guidelines Act criminal histoiy score is constitutional). We are duty bound to follow Kansas Supreme Court precedent, absent some indication the court is departing from its previous position. State v. Beck, 32 Kan. App. 2d 784, 788, 88 P.3d 1233, rev. denied 278 Kan. 847 (2004). Our Supreme Court recently reaffirmed its holding from Ivory in State v. Gonzalez, 282 Kan. 73, 115-19, 145 P.3d 18 (2006) (affirming Ivory rule after other United States Supreme Court post-Apprendi decisions). Because our Supreme Court clearly is not departing from its precedent, Morton’s sentence must be upheld. Affirmed.	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Marquardt, J.: Ellis and Vikki Spencer appeal the trial court’s decision regarding visitation with their granddaughter, Rebecca A. Cathey. We affirm in part, reverse in part, and remand with directions. Steven E. Cathey and Holli Spencer were married in January 1998. Rebecca was bom to the Catheys in November 2001. The Catheys’ marriage was extremely tumultuous. Holli filed protection from abuse petitions in January 2002 and September 2003. Each time Holli filed a protection from abuse petition, she also filed a petition for divorce. A petition for divorce was pending when Holli was killed in a car accident in August 2005. The record on appeal contains criminal complaints filed against Steven in September and October 2003. Steven violated the protection from abuse orders. He was convicted of violating the order and was placed on 12 months’ probation. At least one motion to revoke his probation was filed because he had violated the terms of his probation. The affidavits filed by Holli in support of the protection from abuse petitions stated that Steven threatened to kill her, threw her down the stairs, tried to suffocate her, punched her in the head while nursing Rebecca, choked her until she lost consciousness, and threatened to leave the state with Rebecca. Steven was ordered to participate in anger management counseling. After each protection from abuse hearing and the divorce filings, Holli and Rebecca lived with Holli’s parents, Ellis and Vikki Spencer. This meant that Rebecca lived die majority of the 4 years of her life with the Spencers. Vikki cared for Rebecca during the summers while Holli was working, and helped a great deal with Rebecca’s nightly bedtime routine. The Spencers paid for Holli’s attorney fees, spent thousands of dollars for Holli and Rebecca’s housing and food costs, paid the $5,000 down payment on Holli’s home where Steven now fives, and paid a $1,000 judgment against Steven. Rebecca and Holli had been living with the Spencers when Holli was killed. Even though a divorce was pending at that time, Steven testified that he and Holli were on “great terms.” At this same time, Steven had a girlfriend, Katie, who was pregnant with his child. He was planning to marry Katie; however, that is no longer the plan. Immediately after Holli died, Steven went to the Spencers’ home. He allowed Rebecca to stay with the Spencers, stating that he needed to “make sure that we had — that I had her room ready to go . . . make sure the refrigerator was up-to-date, you know, medicine cabinet, toothbrushes, tooth paste, towels, bedding, I mean everything that she would need to be up there full time. And at the same time I was trying to transition her from being down there to being up here because she had been down there for an amount of time.” According to Steven, he had discussions with the Spencers concerning Rebecca living with him and visitation with the Spencers. Steven stayed with the Spencers in Fort Scott for 12 days during the month of September 2005. Vikki claimed that at that time, they had an agreement with Steven for Rebecca’s visitation with them. Vikki testified that Steven proposed the plan and they were “thrilled” and “had not anticipated anything so generous.” Vicki testified that Steven was to take Rebecca to Fort Scott for gymnastics through the end of the session on November 29th. They would have nightly phone calls with Rebecca. She would spend 2 or 3 weekends per month with the Spencers from Thursday at 11:30 a.m. when she got out of preschool until Sunday around 6 p.m. She would spend 1 or 2 weeks at a time with the Spencers in the summer, and they would have extended visits when Vikki was out of school for Thanksgiving, Christmas, spring break, and other holidays. She was to spend Halloween in 2005 with them. Steven and Rebecca planned to spend Christmas with the Spencers. Vikki testified that the plan worked for a couple of weeks, but then the phone calls began to diminish by the week of October 10. Vikki testified: “He [Steven] had previously said instead of his being down there on the 31st for Halloween, as he had originally intended, he was not going to be doing that, but she could be there for the weekend as planned. And then he called Friday night and said to bring her back Saturday afternoon, which we did. And the next weekend was a weekend she should have been coming to Fort Scott, according to the plan. He called at 9:30 that morning to tell me he had changed his mind and we couldn’t pick her up.” Steven testified that the visitation started with “two weekends, because I was working every other Saturday.” He stated that “we had originally discussed, you know, the Halloween, Thanksgiving and Christmas, but life happens. Things changed. The circumstances have changed and so — I mean, what was said didn’t end up happening through no fault of anybody.” The Spencers tried to discuss a visitation schedule with Steven to no avail. Steven admits that he refused to talk with them. Steven would not answer the phone when they called. When the Spencers left messages for him to return their calls, he refused to do so. Steven testified that he cut off all communication with the Spencers in November because “she [Rebecca] needs to know where her home is and so I needed to give her and me that time in order to form that bond.” Steven allowed Rebecca to telephone her grandparents during this time. Because Steven had stopped all communication with the Spencers, in early December 2005 the Spencers filed a petition for grandparent visitation. While the motion was pending, tire trial court ordered that the Spencers could visit with Rebecca in Steven’s Kansas City home on eveiy other Sunday from 1 to 3 p.m., which meant a 170-mile round trip from Fort Scott to Kansas City for a 2-hour visit with Rebecca. They were also allowed visitation from 10 a.m. to 2 p.m. on Christmas Eve, and telephone calls on Sundays and Wednesdays between 5 to 8 p.m., with calls to be initiated by Steven. Ellis testified that Steven allowed the Spencers, cousins, and great grandparents to go to Steven’s house to visit with Rebecca for 4 hours on Christmas Eve so long as they brought their own lunch. An order for mediation was entered on February 17, 2006, which was unsuccessful. At trial, the Spencers proposed visitation for one weekend per month, with “weekend” defined as Friday through Sunday evening, one weekend per month with “weekend” defined as Saturday at 9 a.m. through Sunday at noon, a few “non-consecutive” weeks in tire summer, one phone call per week at minimum, and additional time around holidays and Rebecca’s birthday if those events did not coincide with a regularly scheduled visit. At trial, Steven proposed, and the trial court ordered, that the Spencers have unsupervised contact with Rebecca for a period of 7 hours every other month, plus a telephone call between 5 p.m. and 7 p.m. on Thursdays with the calls initiated by Steven. If the Spencers missed the call for any reason, they forfeited the right to the call. The Spencers were allowed “visitation with the minor child within ten (10) days, for a four (4) hour period, before or after the minor child’s birthday and the Christmas, Thanksgiving and Easter holidays so long as that month is not a regularly scheduled month.” The order included the following list of restrictions for Rebecca’s grandparent visits: “a. The minor child shall not be asked to call any child or children of Respondent ‘step’ or ‘half brother(s) or sister(s). “b. The minor child shall decide what she would like to call any future spouse of Respondent. If she wishes to call her ‘Mother, Mommy, Mom, etc.’ this shall be supported by die Grandparent Petitioners. “c. No grooming by Grandparent Petitioners (haircuts, fingernails, toenails, etc.). Only brushing of teeth and hair. “d. No description of her biological mother’s accident or explanation of her biological mother’s death. Grandparent Petitioners can only state that: ‘Mommy is in heaven’ when asked. “e. No ‘heaven parties’ or cemetery visits without Respondent’s prior written approval. “f. Grandparent Petitioners shall not take the minor child to any psychiatric, orthodontic or medical appointments of any kind unless they have obtained Respondent’s prior written approval. “g. If Respondent chooses to allow an overnight visitation: 1. Grandparent Petitioners must observe Respondent’s routine regarding bedtime, naps, wardrobe, meals, snacks, hydration, and medicine. 2. No baths are to be given by Grandparent Petitioners unless they have obtained Respondent’s prior written approval. 3. The minor child shall only sleep alone in her own bed, not her deceased biological mother’s bed nor the Grandparent Petitioner’s bed. 4. Respondent is to be apprised of the minor child’s whereabouts at all times. No outside party visits without Respondent’s prior written approval. 5. Each party shall avoid degrading language about the other party and or step-parent in the presence of the child. Neither party shall, by verbal or non-verbal communication, say or do anything that might tend to derogate from the love and respect that the child would otherwise naturally have for the other party.” It should be noted that Steven told Dr. Scott Brown that Rebecca “has a good relationship with his parents and that she regularly spends the night.” On the morning of trial, the parties stipulated that Rebecca has a substantial relationship with her grandparents. The Spencers stated that they would “not attempt to show that [Steven] is unfit.” Initially, the Spencers suggested a 2- or 3-day trial so that they could “overcome the burden of saying that father is doing what is in the child’s best interest.” However, they agreed that the matter could be tried in I day after they were asked to post a bond. After hearing testimony and arguments from counsel, the trial judge stated: “There has been no argument here that Rebecca has a good relationship with you, her grandparents, that relationship should continue. As I said, I don’t see any reason why she couldn’t spend a week with you folks. But, again, as I said, I don’t think that . . . it’s not like a divorce case when I at this point decide what is in the best interest. “Based on the cases I read, it’s father’s decision. He’s the father. He’s got to make these decisions. I think he’s being a little conservative, but that’s not my position to say, well, he’s too conservative. I am going to give you more. Even though I think he might be a litde bit conservative, I can’t say it’s totally unreasonable, the position he is taking, and I do think that’s the standard here. “So I am going to grant grandparent visitation in accordance with die father’s proposed visitation schedule.” The trial court also ordered the Spencers to pay Steven’s attorney fees and expert witness fees, totaling $12,045. The Spencers timely appeal. On appeal, the Spencers argue that the trial court erred by failing to determine Rebecca’s best interests when evaluating the reasonableness of Steven’s visitation schedule. Under K.S.A. 38-129, before granting grandparent visitation, the trial court is required to find that it is in the best interests of the child and that a substantial relationship exists between the child and the grandparents. The burden of proof is upon the grandparents to prove these elements. The trial court must make both of these findings before grandparent visitation may be granted. In addition, a “trial court should presume that a fit parent is acting in the best interests of the child and not substitute its judgment for the parent’s, absent a finding of unreasonableness.” In re T.A., 30 Kan. App. 2d 30, 35, 38 P.3d 140 (2001). K.S.A. 38-129(b), the statute dealing with grandparent visitation where the grandparents’ child is deceased, states: “The district court may grant the parents of a deceased person visitation rights, or may enforce visitation rights previously granted . . . Because Steven stipulated that he wanted Rebecca to have time with her grandparents, the only issue for us to determine is whether Steven’s schedule was reasonable. In so doing, we must determine whether substantial evidence exists to support the trial court’s findings. See Davis v. Heath, 35 Kan. App. 2d 86, 90-91, 128 P.3d 434 (2006). Here we have a father who has displayed instability and bad judgment at his best. He was not a part of Rebecca’s life for a majority of her life. Because of his abusive actions, Steven did not see Rebecca at all for a period of at least 7 months. Steven has a history of nothing but very short-term employment. He is currently unemployed and collecting unemployment benefits. Steven lost his job at Home Depot when a background check revealed that he had two misdemeanor convictions in his criminal record. Steven severely abused his wife and has violent traits. There is no evidence in the record on appeal that he ever paid any support for Holli and/or Rebecca during their separations when Holli and Rebecca lived with the Spencers. On the other hand, we have grandparents who were with Rebecca daily for most of her life. Vildd has been an educator for 31 years and has been teaching at a university for 17 years. Ellis has been in finance for 35 years and has been in his current job for 24 years. The Spencers have been married for almost 35 years. Holli was the Spencers’ only daughter, and Rebecca is their only grandchild. When Rebecca and Holli lived with the Spencers, Rebecca attended daycare and preschool in Fort Scott for lYz years; the Spencers took Rebecca to the pool, the county fair, and the park; they played golf with her; read 6 to 8 books each night; and “shared equally in everything that happened from meals to grooming to play time to everything that occurred.” The Spencers argue that the trial court erred by finding Steven’s proposed visitation schedule was reasonable. They note that “reasonableness” as a concept has not yet been defined by the Kansas appellate courts. They urge us to use a totality of the circumstances analysis. Given the facts and circumstances of this case, the Spencers argue that Steven’s proposed schedule would not allow Rebecca to maintain her “substantial relationship” with them. At the trial, Dr. Christine Hillila testified on behalf of the Spencers. She believed that Rebecca was very attached to her grandparents. Dr. Hillila had counseled Rebecca in the context of the divorce filing 2 years before this proceeding but had not seen her since. However, Dr. Hillila stated that restricting Rebecca’s access to her grandparents could be seen as “another land of loss,” given the loss of Holli and all of the transitions Rebecca went through during her parents’ volatile marriage. Dr. Brown, Steven’s expert witness, spent approximately 13 hours evaluating Steven and Rebecca. Dr. Brown was asked to determine: (1) Is Steven mentally ill? (2) Can Steven be an effective parent? (3) Is there reason to be concerned about the violent incidents in Steven’s past? Dr. Brown found that Steven was able to set limits, enforce rules, and show love. However, Dr. Brown reported that on the “At Risk for Violence Stress Handling Questionnaire,” Steven was elevated on four of the subscales at “High or greater levels .... This suggests that he shares these traits with those who are violent. In addition, Mr. Cathey’s Total Score is elevated.” The trial court essentially made no decision on what was reasonable or unreasonable; the trial judge merely stated: “I think my role is to determine what if the father’s decision is just totally unreasonable.” The trial judge’s decision is incongruous with his statement of “I don’t see any reason why she couldn’t spend a week with you folks [grandparents]. . . . I think he’s being a litde conservative.” In fact, the trial judge hinted that Steven’s visitation plan was unreasonable, stating: “I can sit here and tell you what I think is reasonable and, you know, for grandparents to live an hour and a half or so away, you know, it might include things like having the [grand]daughter down for Sunday visits sometimes, maybe even overnight visits on a Saturday night through a Sunday on certain occasions. You know, depending on how busy she is, how often would that be, well, I don’t know how often that would be, maybe it might be once a month or it might be some other schedule. Here, she was living with you for a good part of her life so she certainly would expect to be comfortable there, used to staying with her grandparents. “It’s not uncommon for grandkids to go to the grandparents’ house and stay for a weekend or . . . the grandparents have a farm or something and they go there and spend the week with them in the summer. And we have had families in here where it was just a regular deal, the kids went and stayed with the grandparents ... on the farm for a week every summer. Certainly that wouldn’t be unreasonable in a situation like this.” Research on this issue has revealed no case in which the Kansas appellate courts have held that a parent’s grandparent visitation plan must be totally unreasonable before it can be rejected. Moreover, a totally unreasonable standard should not be adopted or endorsed by this court. The question cannot be, “Is the proposal totally unreasonable?” The question must be, “Is father’s proposal reasonable under these circumstances?” Rebecca lived with the Spencers for 2 years. We would have a different situation if Rebecca had been living with Steven, if Steven had a stable relationship with Holli, and if he had made wise judgments in the past. Merely declaring that Steven is “fit” does not resolve the issue of the reasonableness of his proposed visitation schedule. When deciding the reasonableness of visitation with a child’s grandparents whose daughter is deceased, the trial court must consider the totality of the circumstances and determine what is in the best interests of the child and whether there is a substantial relationship between the child and the grandparents. It does not appear that the trial court ever considered all of the circumstances when it granted visitation according to Steven’s schedule. Under Steven’s rules, if there were a medical emergency during the Spencers’ visitation with Rebecca, they could not even take her to a doctor. They are restricted from giving baths, something they had been doing for years. Under these circumstances, it is not in Rebecca’s best interests to keep her away from the family with whom she has had daily contact for a majority of her life. Steven’s visitation schedule is causing Rebecca another loss in her very young life. The restrictions Steven has imposed make the trial court’s order totally unreasonable. The trial court’s decision is re versed, and the case is remanded to a different judge with directions consistent with this opinion. A decision on the issue of costs and fees will be dealt with separately. Affirmed in part, reversed in part, and remanded with directions.	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Malone, J.: Russell G. Ashley appeals the district court’s decision upholding his driver’s license suspension by the Kansas Department of Revenue (KDR). Ashley claims he was not properly served with notice of his license suspension because the officer who served the notice was not the officer who administered the breath alcohol test Ashley had failed. KDR contends that neither the district court nor this court has jurisdiction to address Ashley’s claim. In the alternative, KDR contends Ashley was properly served with the suspension notice. On November 19, 2004, Officer Jerrald Glaser arrested Ashley for driving under the influence of alcohol (DUI). Glaser determined that Ashley should take a breath test, and he transported Ashley to the Overland Park police station. Because Glaser was not certified to perform breath testing using the Intoxilyzer 5000 device, he contacted Officer Justin Doherty, who was certified to operate the device. Glaser asked Ashley to take the breath test, and Ashley consented. Glaser gave the requisite implied consent notices to Ashley before the test was administered. Although Glaser was in charge of the 20-minute alcohol deprivation period, Doherty actually operated the Intoxilyzer 5000 device and performed the breath testing. However, Glaser remained present during die testing. The Intoxilyzer 5000 results indicated Ashley’s blood alcohol level was above 0.08. After Ashley failed the test, both Glaser and Doherty completed and signed the officer’s certification and notice of suspension (DC-27 form). Glaser then personally handed die completed DC-27 form to Ashley. Doherty was present when Ashley was served with die suspension notice, although Doherty did not actually see Glaser hand the DC-27 form to Ashley. Ashley timely requested an administrative hearing. Following the hearing, KDR affirmed the driver’s license suspension. Ashley timely petitioned the Johnson County District Court for review of the agency’s action. Among other allegations, the petition for judicial review stated that Ashley “was not properly served with the statutory notice of proceedings (Form DC-27).” At the bench trial, Ashley argued he was not properly served with the DC-27 form because the notice had been served by Glaser and not by Doherty, who actually performed the breath testing. After hearing the evidence, the district court entered a written order upholding Ashley’s driver’s license suspension. The district court specifically found that Ashley had been properly served with the DC-27 form pursuant to K.S.A. 8-1002. Ashley timely appeals. Jurisdiction The sole issue on appeal is whether Ashley was properly served with notice of his driver’s license suspension pursuant to K.S.A. 8-1002(c). However, KDR contends that neither the district court nor this court has jurisdiction to address Ashley’s claim. Whether jurisdiction exists is a question of law over which an appellate court’s scope of review is unlimited. Foster v. Kansas Dept. of Revenue, 281 Kan. 368, 369, 130 P.3d 560 (2006). Also, to the extent the issue involves statutory interpretation, an appellate court’s review is unlimited. 281 Kan. at 374. KDR’s jurisdictional argument is based upon two separate grounds. First, KDR argues that Ashley’s claim exceeds the limited scope of an administrative hearing pursuant to K.S.A. 8-1020(h)(2). A licensee may request an administrative hearing to challenge his or her driver’s license suspension, pursuant to K.S.A. 8-1020(a). If the officer has certified that the person failed a breath test, K.S.A. 8-1020(h)(2) limits the scope of the hearing to whether: “(A) A law enforcement officer had reasonable grounds to believe the person was operating a vehicle while under the influence of alcohol, drugs, or both; . . . “(B) the person was in custody or arrested for an alcohol or drug related offense “(C) a law enforcement officer had presented the person with the oral and written notice required by K.S.A. 8-1001, and amendments thereto; “(D) the testing equipment used was certified by the Kansas department of health and environment; “(E) the person who operated the testing equipment was certified by the Kansas department of health and environment; “(F) the testing procedures used substantially complied with the procedures set out by die Kansas department of health and environment; “(G) the test result determined that the person had an alcohol concentration of .08 or greater in such person’s breath; and “(H) the person was operating or attempting to operate a vehicle.” In Anderson v. Kansas Dept. of Revenue, 18 Kan. App. 2d 347, 349, 853 P.2d 69, rev. denied 253 Kan. 856 (1993), this court found that K.S.A. 1993 Supp. 8-1002(h)(l), which is similar to K.S.A. 8-1020(h)(2), “speaks only to substantive issues and does not attempt to limit procedural issues.” (Emphasis added.) Anderson dealt with a breath test refusal as opposed to a breath test failure, and the evidence indicated the DC-27 form had been left with the plaintiffs belongings and not personally served on the plaintiff. The court allowed the plaintiff to raise the procedural issue of whether he had been properly served with the DC-27 form, even though this issue was outside the limited scope of an administrative hearing under the statute. 18 Kan. App. 2d at 348-49. However, in Schulz v. Kansas Dept. of Revenue, 19 Kan. App. 2d 665, 668-69, 877 P.2d 1 (1993), this court held that the only issues eligible to be raised before an administrative hearing officer or the district court were those set out in K.S.A. 1990 Supp. 8-1002(h)(2) (comparable to K.S.A. 8-1020[h][2]). In Linenberger v. Kansas Dept. of Revenue, 28 Kan. App. 2d 794, 796-98, 20 P.3d 1290, rev. denied 271 Kan. 1037 (2001), this court again held that administrative hearing issues are limited to those listed in the statute. Both Schulz and Linenberger dealt with K.S.A. 8-1002(e), which provides that a law enforcement officer must forward a copy of the certification and notice of suspension to the Kansas Division of Motor Vehicles within 5 days after the date of service of the notice on any driver. KDR contends that Anderson has been superceded by Schulz and Linenberger. However, the Kansas Supreme Court rejected a similar argument in Foster, 281 Kan. at 370. In Foster, the issue was whether two licensees could challenge the fact that their administrative hearings were not scheduled forthwith in accordance with K.S.A. 8-1020(d). KDR argued the scheduling issue could not be challenged because it was outside the statutory scope of an administrative hearing. However, the Supreme Court found that it had jurisdiction to consider the procedural issue of whether the administrative hearings were scheduled in a timely manner. 281 Kan. at 371-72. We reject KDR’s contention that Anderson has been superceded by Schulz and Linenberger. Ashley’s claim that he was not properly served with the DC-27 form raises a procedural issue. Thus, Ashley was entitled to raise the issue at his administrative hearing and in district court even though the issue is outside the limited scope of an administrative hearing pursuant to K.S.A. 8-1020(h)(2). Next, KDR argues that Ashley’s petition for judicial review did not sufficientiy state his claim that he was not properly served with notice of his driver’s license suspension. KDR cites Bruch v. Kansas Dept. of Revenue, 282 Kan. 764, 148 P.3d 538 (2006), for support. In Bruch, the plaintiff s petition for judicial review generally alleged that his driver’s license suspension should be vacated because the officer lacked reasonable suspicion to conduct a DUI investigation, the officer lacked probable cause to arrest the plaintiff, and the plaintiff s due process rights were violated because he was not allowed to subpoena relevant witnesses to the administrative hearing. At the bench trial, the plaintiff attempted to raise specific issues concerning his consent to a preliminary breath test (PBT) and whether the test had been properly administered by the officer. The district court ruled the plaintiff s petition had failed to raise any issues concerning the PBT, so the plaintiff was precluded from raising the issues at trial. 282 Kan. at 784-86. On appeal, the Kansas Supreme Court noted that review of an agency’s action is governed by the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et seq. Furthermore, the KJRA provides specific pleading requirements for a petition for judicial review. K.S.A. 77-614(b) states: “(b) A petition for judicial review shall set forth: (1) The name and mailing address of the petitioner; (2) the name and mailing address of the agency whose action is at issue; (3) identification of the agency action at issue, together with a duplicate copy, summary or brief description of the agency action; (4) identification of persons who were parties in any adjudicative proceedings that led to the agency action; (5) facts to demonstrate that the petitioner is entitled to obtain judicial review; (6) the petitioner’s reasons for believing that relief should be granted; and (7) a request for relief, specifying the type and extent of relief requested.” The Supreme Court concluded that strict compliance with KJRA’s pleading requirements is necessary. 282 Kan. at 781-85. Because the plaintiff s petition for judicial review had failed to raise any issues concerning the PBT, the court determined the plaintiff was precluded from raising the issues in district court or on appeal. 282 Kan. at 784-86. Here, Ashley’s petition for judicial review alleged that he “was not properly served with the statutory notice of proceedings (Form DC-27).” Ashley attached KDR’s hearing order as an exhibit to the petition. The hearing order indicated that Ashley had raised a service issue: “Can officer other than BAT officer serve DC 27?” Ashley’s case is distinguishable from Bruch. Unlike the plaintiffs broad issue statement in Bruch that failed to make any mention of the PBT, Ashley’s petition specifically raised the issue of whether he was properly served with the DC-27 form. The attached exhibit included a fact assertion that Ashley had not been served by the proper officer. Although Ashley’s petition for review could have contained more facts to support the issue being raised, we conclude the petition satisfied the pleading requirements of K.S.A. 77-614(b). Because Ashley raises a procedural issue which was sufficiently identified in his petition for judicial review and considered by the district court, we conclude this court has jurisdiction to address the merits of Ashley’s claim. Service of the DC-27 form Ashley claims he was not properly served with notice of his driver’s license suspension pursuant to K.S.A. 8-1002(c). This raises an issue of statutoiy interpretation, which is a question of law. See Foster, 281 Kan. at 378. K.S.A. 8-1002(c) provides in relevant part: “When the officer directing administration of the testing determines that a person has refused a test and the criteria of subsection (a)(1) have been met or determines that a person has failed a test and the criteria of subsection (a)(2) have been met, the officer shall serve upon the person notice of suspension of driving privileges pursuant to K.S.A. 8-1014, and amendments thereto. If the determination is made while the person is still in custody, service shall be made in person by the officer on behalf of the division of vehicles.” (Emphasis added.) Personal service of the suspension notice is mandatory. Anderson, 18 Kan. App. 2d 347, Syl. ¶ 1. The doctrine of “substantial compliance” is not applicable to the personal service provision of K.S.A. 8-1002(c) because this notice sets in motion the substantive administrative and judicial process by which a driver s license suspension determination is made. 18 Kan. App. 2d at 349. If the suspension notice is not personally served when so required by K.S.A. 8-1002(c), the driver is not required to make the additional showing that he or she was prejudiced by the invalid service. 18 Kan. App. 2d 347, Syl. ¶ 2. Here, Glaser personally handed the DC-27 form to Ashley. Ashley s argument, though, is that the wrong officer served him the form. K.S.A. 8-1002(c) refers to the “officer directing administration of the testing” and then subsequently provides that “service shall be made in person by the officer on behalf of the division of vehicles.” Ashley argues that the phrase “officer directing administration of the testing” refers to die officer who actually administers the breath test. Under Ashley’s interpretation of the statute, Doherty, rather than Glaser, was required to serve him the DC-27 form because Doherty actually operated the testing equipment. No Kansas case has expressly addressed the meaning of the phrase “officer directing administration of the testing” found in K.S.A. 8-1002(c). Under the facts of this case, two officers were involved in the testing procedure: (1) Glaser, who decided that Ashley should take the test and (2) Doherty, who operated the device to perform the test. The district court found that both Glaser and Doherty were involved in the administration of the test and concluded that either officer could have served the suspension notice. Before interpreting K.S.A. 8-1002(c), we review some fundamental principles of statutory construction: “ ‘The fundamental rule of statutory construction to which all other rules are subordinate is that the intent of the legislature governs if that intent can be ascertained. The legislature is presumed to have expressed its intent through the language of the statutory scheme it enacted. When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed rather than determine what the law should or should not be.’ [Citation omitted.]” Pieren-Abbott v. Kansas Dept. of Revenue, 279 Kan. 83, 88, 106 P.3d 492 (2005). When construing statutes and determining legislative intent, courts are not permitted to consider only a certain isolated part or parts of an act, but are required, if possible, to consider and construe together all parts thereof in pari materia. It is the court’s duty to reconcile the different provisions, as far as practicable, so as to make them consistent, harmonious, and sensible. McIntosh v. Sedgwick County, 282 Kan. 636, 642, 147 P.3d 869 (2006). Also, we are reminded that K.S.A. 8-1001 et seq. is a remedial law and shall be liberally construed to promote public health, safety, and welfare. K.S.A. 2006 Supp. 8-1001(q). Finally, “ ‘[a]s a general rule, statutes are construed to avoid unreasonable results.’ ” Pieren-Abbott, 279 Kan. at 89 (quoting In re M.R., 272 Kan. 1335, 1342, 38 P.3d 694 [2002]). To better understand what the legislature meant by the phrase “officer directing administration of the testing’’ found in K.S.A. 8-1002(c), we refer to K.S.A. 2006 Supp. 8-1001(b), where the same language also appears. K.S.A. 2006 Supp. 8-1001(b) provides that a law enforcement officer must request a person to submit to an alcohol test if the officer has reasonable grounds to believe the person was operating a vehicle while under the influence of alcohol and the person has been arrested or otherwise taken into custody for a DUI. K.S.A. 2006 Supp. 8-1001(b) goes on to state that “[t]he law enforcement officer directing administration of the test or tests may act on personal knowledge or on the basis of the collective information available to law enforcement officers involved in the accident investigation or arrest.” (Emphasis added.) This language indicates that the officer directing administration of the test includes the officer who investigates the DUI and determines that reasonable grounds exist to request an alcohol test. Furthermore, in the case of a test refusal, there is no officer who actually administers the test. In this situation, the officer who in vestigates the DUI and requests the driver to take an alcohol test is the only officer who could qualify as the “officer directing administration of the testing.” As such, it would be unreasonable for a court to conclude that the officer who actually operates the testing equipment is the only officer qualified to serve a suspension notice. On the other hand, the officer who actually operates the testing equipment is required by law to certify that (1) the testing equipment used was certified by the Kansas Department of Health and Environment (KDHE), (2) the testing procedures used were in accordance with the requirements set out by the KDHE, and (3) the person who operated the testing equipment was certified by the KDHE. K.S.A. 8-1002(a)(3). This officer is also required to sign the DC-27 form if, in fact, this is not the same officer who certified that reasonable grounds existed to request the testing. Thus, by reviewing K.S.A. 8-1002 in its entirety, it is logical to conclude that the officer who actually operates the testing equipment also qualifies as the “officer directing administration of the testing.” Here, Glaser arrested Ashley for DUI and transported him to the Overland Park police station. Glaser asked Ashley to take the breath test, and Glaser gave the requisite implied consent notices to Ashley before the test was administered. Glaser also supervised the 20-minute alcohol deprivation period. Doherty actually performed the breath testing using the Intoxilyzer 5000 device because Glaser was not certified to operate the device. However, Glaser was present during the testing. After Ashley failed the test, both Glaser and Doherty completed and signed the DC-27 form. Glaser then handed the DC-27 form to Ashley. Doherty was still present when Glaser served Ashley with the suspension notice. Under the facts and circumstances of this case, we agree with the district court that both Glaser and Doherty were qualified to serve Ashley with the DC-27 form pursuant to K.S.A. 8-1002(c). To adopt Ashley’s argument would require a highly technical interpretation of the statute which is inconsistent with the remedial nature of the legislation. Because Glaser was an appropriate officer to serve the DC-27 form, we conclude Ashley was properly served with notice of his driver’s license suspension under K.S.A. 8-1002(c). Accordingly, the district court did not err in upholding KDR’s suspension of Ashley’s driving privileges. Affirmed.	[ -48, -22, -17, -52, -71, -63, 58, -92, 81, -105, 119, 83, -81, -64, 5, 59, -63, 125, 113, 104, -61, -74, 119, 65, -42, -13, -39, 91, -77, 75, -20, -12, 28, -80, -118, -35, 38, -54, -73, 88, -124, 2, -103, -32, 90, -109, 34, 97, -109, 15, 113, -105, -7, 63, 28, -53, -119, 28, -39, -83, -56, -16, -71, 21, -5, 18, -93, 4, -99, 12, -46, 42, -102, -71, 33, 124, -14, -90, -46, -12, 15, -119, -95, -90, 97, 33, 29, -51, -20, -84, -82, 58, -113, 38, -104, 73, 105, 13, -106, 29, 126, 54, 14, -8, 127, 71, 23, 60, -122, -49, -68, -111, 78, 37, -126, 15, -33, 5, -80, 69, -57, -9, 86, 70, 120, 27, -18, -74 ]
McAnany, J.: Sergeant Thomas Hongslo was patrolling in the area of 1-35 and 95th Street in Johnson County at 11:45 p.m. He was a 14-year veteran of the police force with experience and training in drug intervention, including training at the Operation Pipeline School conducted by the Drug Enforcement Administration, as well as two street narcotics schools. He and other officers patrolled the area because of its high incidence of drug activity and their success in making arrests and recovering narcotics. He had found the area to be particularly suited for narcotics activity because of its convenient location and access to pay phones at two gas stations there. In fact, since 1995 there had been 8 drug arrests at the nearby Phillips 66 station and 13 at the nearby Texaco station. In the 16-block area there had been 668 drug arrests since 1995. Records from the Lenexa Police Department disclose that 32% of all drug arrests in that city occurred within a half square-mile area that included these two gas stations. Hongslo was in uniform that night but was driving an unmarked car. He observed a gold Dodge pickup truck with tinted windows parked at the Phillips 66 gas station out of the line of sight of the clerk inside the station. When Hongslo drove past the gold truck he made eye contact with the driver, who saw that Hongslo was wearing a police uniform. Hongslo then drove to the parking lot of an adjoining business and continued to observe the gold truck. After a few minutes, a blue Ford Ranger pickup truck pulled into the gas station and parked directly behind the gold pickup. Howard Cook got out of the passenger s side of the blue truck and walked towards the gold truck. The gold truck started driving away, and Cook slowly jogged toward it and whistled. The gold truck did not stop. Cook returned to the blue truck and the two trucks drove across the bridge spanning 1-35 to another nearby gas station, JB’s One Stop, located at 95th Street and Noland Road. The gold truck backed into a parking space. The blue truck parked 50 feet away. At that point, Cook got out of the blue truck, ran to the gold truck, and got in on the passenger’s side. After less than a minute, Cook returned to the blue truck. The blue truck then drove to the front of the gas station, and Cook got out and went inside the gas station. The gold truck drove away. Based on his training and experience, the behavior of the two individuals, the time of night, the short time Cook spent in the gold truck, and the location where the vehicles were parked, Hongslo believed a drug transaction had taken place. He radioed for Officer Shannon Trevino to stop the gold truck. Hongslo then observed Cook exit the gas station carrying a red soda can. Cook got into the blue truck which left the scene and drove south on 1-35. Hongslo stopped the blue truck. Its driver, Terrance Brown, told Hongslo that he had driven Cook to the gas station to meet someone to get some clothes. Brown denied knowing anything about a drug transaction and consented to a search of the truck. Hongslo then asked Cook why he had made contact with the person in the gold truck. Cook responded that he was meeting the person about a job. In the course of searching the truck Hongslo saw a red Coke can on the dashboard in front of the passenger’s seat. Inside the soda can, Hongslo saw a plastic bag with a white powdery substance which tests later determined to be cocaine. Cook told Hongslo he had purchased the drugs for $20 from the man in the gold truck, but claimed he had purchased the drugs for Brown. Trevino stopped and searched the gold truck. He found several stacks of money together with bags of crack cocaine. Cook moved to suppress the evidence and statements obtained during his arrest. In denying the motion, Chief Judge Tatum stated: “In the case at hand, Officer Hongslo was able to articulate a number of factors to support a reasonable suspicion. Officer Hongslo testified that the area he was observing was a high crime area, known for numerous drug transactions. Officer Hongslo further testified that the defendant’s suspicious conduct, the manner in which the defendants made contact, the time of night, the short time Cook was in Bowen’s truck, the location where the trucks were parked, and the fact that Officer Hongslo had observed this type of behavior many times while investigating narcotics activity in the same high crime area, were all factors that formed the basis of his reasonable suspicion. Each of these factors taken individually would be insufficient to support a finding of probable cause. However, taken together, under the totality of the circumstances, the Court finds that Officer Hongslo was able to articulate sufficient factors to support a finding of probable cause. Therefore, Officer Hongslo was justified in stopping the vehicle in which Cook was a passenger in order to investigate further his reasonable suspicion that criminal activity had been, was, or was about to occur.” A bench trial followed and Cook was convicted of possession of cocaine. Cook now appeals the denial of his motion to suppress, claiming Hongslo’s stop of the blue truck was not based on reasonable suspicion but a mere hunch. The facts material to the district court’s decision on the motion were not in dispute. Hence, we have unlimited review over the legal question whether the district court should have sustained the motion. State v. Porting, 281 Kan. 320, 324, 130 P.3d 1173 (2006). There is no issue about the legitimacy of the search of Brown’s truck after it was stopped or the incriminating statements made by Cook. The sole issue is the legitimacy of Hongslo’s stop of the blue truck. If it was improper, then the physical evidence found and statements made must be suppressed. In Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), the seminal case out of which the police practice of “stop and frisk” has been sanctioned, Officer McFadden, who had many years experience on the Cleveland police force, was assigned an area of downtown to patrol in plain clothes for pickpockets and shoplifters. He observed two men standing on a street comer. One walked down the street, peered into a store window, and then returned to the other man where they conferred for a time. The other man then walked down the street and looked into the same window and returned to the comer where the two men conferred again. This went on about a dozen times. A third man approached and engaged them for a time and then left. The original two men then conferred again and then followed the third man down the street. McFadden suspected the men were casing the store for a robbery, and feared the men might be armed. Thus, he approached them, asked them their names, and patted them down for weapons. Two of the men were carrying revolvers, and they were arrested and charged with possession of a concealed weapon. The Supreme Court acknowledged that the men engaged in “a series of acts, each of them perhaps innocent in itself, but which taken together warranted further investigation.” 392 U.S. at 22. Moreover, the court observed: “It would have been poor police work indeed for an officer of 30 years’ experience in the detection of thievery from stores in this same neighborhood to have failed to investigate this behavior.” 392 U.S. at 23. The Supreme Court concluded that McFadden was exercising a legitimate investigative function when he approached the three men for the purpose of investigating his reasonable suspicion of possible criminal behavior even though there was no probable cause at the time to make an arrest. 392 U.S. at 30; see also Illinois v. Wardlow, 528 U.S. 119, 125, 145 L. Ed. 2d 570, 120 S. Ct. 673 (2000), in which the court observed: “All of this conduct was by itself lawful, but it also suggested that the individuals were casing the store for a planned robbery. Terry recognized that the officers could detain the individuals to resolve the ambiguity.” The ruling in Terry has been codified in Kansas in K.S.A. 22-2402(1) which permits an investigatory detention if it is supported by specific and articulable facts which raise a reasonable suspicion the person stopped has committed, is committing, or is about to commit a crime. Reasonable suspicion is a less demanding standard than probable cause in terms of the quantity and quality of the evidence available to the police. State v. Parker, 282 Kan. 584, 147 P.3d 115 (2006). In determining whether reasonable suspicion existed at the time of a stop, we consider the totality of the circumstances, using common sense and ordinary human experience and giving deference to a trained law enforcement officer s ability to distinguish between innocent and suspicious circumstances. A police officer’s mere hunch will not do. The officer must have a particularized suspicion of wrongdoing. State v. Toney, 253 Kan. 651, 656, 862 P.2d 350 (1993). “ ‘We make our determination with deference to a trained law enforcement officer’s ability to distinguish between innocent and suspicious circumstances, [citation omitted], remembering that reasonable suspicion represents a “minimum level of objective justification.” ’ ” State v. DeMarco, 263 Kan. 727, 735, 952 P.2d 1276 (1998); see State v. Moore, 283 Kan. 344, 154 P.3d 1 (2007). Cook’s conduct, to an untrained eye, may have raised no suspicion whatsoever or, at most, a mere hunch that something funny was going on. The average citizen of Johnson County, familiar with the scene, more likely would look upon the general area as a popular shopping destination with upscale stores such as Nordstrom’s nearby, rather than a center for drug activity. The conduct that justified Officer McFadden’s detention of the defendant in Terry was not on its face illegal and could have been innocent. Similarly, Cook’s conduct could have been entirely innocent. It is certainly not illegal to engage in a meeting late at night at a gas station. When stopped by Honglso, Brown and Cook each provided different but certainly possible innocent scenarios. One had to do with getting some clothes, the other with getting a job. Conduct that is susceptible of an innocent explanation, such as the explanations Brown and Cook later tried to use on Hongslo, may nevertheless cause an officer, trained in drug enforcement and having a familiarity with the drug history of the area, to harbor a reasonable and specific suspicion of illegal drug activity that needs further investigation. We cannot improve on Chief Judge Tatum’s analysis. In overruling Cook’s motion, he cited a multitude of factors from the evidence which, considered together, created a reasonable, articulable, particularized suspicion that Cook had been engaged in a drug transaction, particularly when observed by an officer with Hongslo’s training and experience in enforcing drug crimes in this area known for its high incidence of drug transactions. The district court did not err in denying Cook’s motion to suppress. Affirmed.	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Hill, J.: Steven L. Raibum appeals his conviction for possession of marijuana. Because Raibum is a fugitive from justice, we dismiss his appeal. Raibum was found guilty of possession of marijuana in July 2005. The court imposed a suspended 20-month prison sentence and placed Raibum on probation with community corrections for up to 18 months. On August 10,2005, Raibum’s defense counsel filed a notice of appeal. On September 15, 2005, a community corrections intensive supervision officer asked the court to revoke Raibum’s probation. The probation violation report claims Raibum failed to report as required by his probation restrictions. August 1, 2005, was the last time Raibum spoke with anyone at community corrections. The district court issued a warrant for Raibum’s arrest. According to the State, the warrant has not been executed and Raibum’s whereabouts are unknown. Appellant’s counsel offered no information about where Raibum can be found. We base our dismissal on the “fugitive disentitlement doctrine” found in Molinaro v. New Jersey, 396 U.S. 365, 24 L. Ed. 2d 586, 90 S. Ct. 498 (1970), where the United States Supreme Court dismissed Molinaro’s appeal after discovering he had become a fugitive from justice while his appeal was pending. The Molinaro Court stated: “No persuasive reason exists why this Court should proceed to adjudicate the merits of a criminal case after the convicted defendant who has sought review escapes from the restraints placed upon him pursuant to the conviction.” 396 U.S. at 366. A comprehensive listing of federal circuits that follow this doctrine is found in Annot., Application of Fugitive Disentitlement Doctrine in Federal Criminal Cases, 179 A.L.R. Fed. 291. This doctrine has already been applied in Kansas in State v. Scott, 9 Kan. App. 2d 322, 675 P.2d 942 (1984). The Scott court stated: “A convicted defendant who is a fugitive from justice is not entitled to ask an appellate court to correct alleged trial errors and is deemed to have waived the right to appeal.” 9 Kan. App. 2d at 323. In this appeal, Raibum’s appellate counsel argues that despite what Scott and Molinaro say, the only authorization for this court to dismiss an appeal on its own initiative comes from Supreme Court Rule 5.05 (2006 Kan. Ct. R. Annot. 34). The rule states that “the appellate court may dismiss an appeal on account of a substantial failure to comply with the mies of the court, or for any other reason which by law requires dismissal.” (Emphasis added.) Supreme Court Rule 5.05 (2006 Kan. Ct. R. Annot. 34.) Appellate counsel reads Rule 5.05 to allow an appellate court to dismiss an appeal only as allowed by a statute or if the appellant is not complying with the Supreme Court Rules. Counsel argues this court has no authority to dismiss Raibum’s appeal because Kansas has no statute that specifically addresses this issue, and Raibum, through the work of his appellate counsel, is in full compliance with the Supreme Court Rules. (He ignores that Raibum has failed to report for 2 years, has not complied with the mies of his probation, and is a fugitive from justice.) This argument ignores that “[i]t has been settled for well over a century that an appellate court may dismiss the appeal of a defendant who is a fugitive from justice during the pendency of his appeal.” Ortega-Rodriguez v. United States, 507 U.S. 234, 239, 122 L. Ed. 2d 581, 113 S. Ct. 1199 (1993). This disentitlement rule has been applied in several Kansas cases. See Weser v. State, 224 Kan. 272, 579 P.2d 1214 (1978); State v. Scott, 70 Kan. 692, 79 Pac. 126 (1905); Scott, 9 Kan. App. 2d 322; City of Holton v. Mannix, 6 Kan. App. 105, 49 Pac. 679 (1897). Appellate counsel’s argument is too limiting. Kansas appellate courts routinely decline to address issues raised on appeal for reasons not based on a specific statute or a Rule of the Supreme Court. For example, in Board of Johnson County Comm’rs v. Duffy, 259 Kan. 500, Syl. ¶ 1, 912 P.2d 716 (1996), the Supreme Court wrote: “The general rale is that an appellate court does not decide moot questions or render advisory opinions. The mootness doctrine is one of court policy which recognizes that it is the function of a judicial tribunal to determine real controversies relative to the legal rights of persons and properties which are actually involved in the particular case properly brought before it and to adjudicate those rights in such manner that the determination will be operative, final, and conclusive.” See also State v. Williams, 275 Kan. 284, 288, 64 P.3d 353 (2003), that held “an issue not presented to the lower court will not be considered on appeal.” An appellate court must have discretion to control its docket and allot time and attention to those who raise judicable issues. Also, an appellate court has the discretion to refrain from addressing issues brought by appellants who, because of their fugitive status, will not be affected by any judgment the court may issue. See Eisler v. United States, 338 U.S. 189, 190, 93 L. Ed. 1897, 69 S. Ct. 1453 (1949); Bonahan v. Nebraska, 125 U.S. 692, 692, 31 L. Ed. 854, 8 S. Ct. 1390 (1887); Smith v. United States, 94 U.S. 97, 4 Otto 97, 24 L. Ed. 32 (1876). It is obvious in this case that even if we would grant relief to Raibum assuming there is some basis to remand the matter for a new trial, his absence would prevent that new trial from occurring. A criminal case pending for many more years in district court because the defendant has absconded is no example of judicial economy. Appeal dismissed.	[ 16, -30, -43, 63, 26, -32, 51, 52, 83, -101, 103, -45, -19, -45, -127, 43, -47, 127, 116, 121, -35, -73, 103, -63, 98, -13, -118, -43, 51, 79, -25, -35, 8, 48, -102, 117, 6, 88, 105, -40, -114, 7, -119, 117, -61, 75, -80, 43, 18, 14, 49, 22, -77, 46, 16, 107, -56, 105, 121, -67, -47, -55, -69, 13, -21, 36, -93, 21, -67, -121, 112, 127, -104, 25, 0, -8, 114, -108, -126, 116, 75, -69, -60, 100, -62, -127, 125, 37, -68, -88, 30, 59, 31, -25, -39, 72, 75, 101, -112, -67, 116, 23, 39, 124, 110, -128, 21, 108, -128, -34, -76, -111, 15, 116, -122, -63, -13, -91, 112, 101, -51, -94, 92, 54, 115, 25, -118, -73 ]
McAnany, J.: Ravi Manda appeals an adverse judgment in a personal injury action. The juiy found that Clarissa Kendrick sustained damages of $70,990.40 for which Manda was 70% at fault. Manda challenges the court’s instructions to the jury, the sufficiency of the evidence to support a finding of negligence, and Kendrick’s claimed future medical expenses. The automobile-bicycle collision which prompted this suit occurred at the T intersection where 139th Street meets Mur-Len Road in Olathe. 139th Street approaches from the east and meets Mur-Len, which runs north and south. At this intersection MurLen consists of five lanes of traffic: two northbound lanes, two southbound lanes, and a southbound left-turn lane. The intersection is controlled by traffic lights as well as pedestrian signals. There is a sidewalk on the west side of Mur-Len. From the north side of 139th Street a pedestrian crosswalk extends across the five traffic lanes of Mur-Len to the sidewalk on the far side. There are two sets of signals at the intersection: one is the traditional traffic lights for vehicular traffic, the other is a separate set of signals for pedestrian traffic. Vehicular traffic on Mur-Len has the green light for a period of at least 25 seconds. If the traffic signal system senses westbound vehicular traffic on 139th Street, the light for traffic on Mur-Len will turn red for at least 8 seconds to permit 139th Street vehicular traffic to turn either north or south onto Mur-Len. The pedestrian signals consist of an “orange hand” symbol and a “walking man” symbol located on poles facing the crosswalk at each end. When the “orange hand” is illuminated, it is not safe to cross Mur-Len. When the “walking man” is illuminated, it is safe to do so. Below these illuminated symbols is a button which activates the pedestrian signals. When tire signal button has not been pressed, the “orange hand” light is illuminated for pedestrians intending to cross Mur-Len, regardless of the color of the light for westbound vehicular traffic on 139th Street. Pressing the pedestrian signal button activates the green light cycle for traffic on 139th Street and increases the duration of the red hght for vehicular traffic on Mur-Len from 8 seconds to at least 20 seconds. The “walking man” symbol is then illuminated, indicating it is safe for pedestrians to cross Mur-Len. On the evening of May 20, 2004, Kendrick was on her way to work. She rode her bicycle close to the curb in the westbound iane of 139th Street. When she reached the T intersection she stopped for the red light. She intended to cross Mur-Len to reach the sidewalk on the west side of the street and then proceed northbound on the sidewalk. Rather than pushing the button for the pedestrian signal, she waited for the light to turn green and then proceeded across Mur-Len, riding her bicycle in the crosswalk. The signal for 139th Street traffic turned yellow when Kendrick was less than halfway across the intersection. Manda, who had been traveling southbound in the outside lane of Mur-Len, was either stopped at the light or coming to a stop. His view to the east, the direction Kendrick was coming from, was partially blocked by a large white Yukon Denali SUV stopped at die fight in the inside, southbound through-traffic lane. When the fight turned green for southbound traffic, Manda began to proceed into the intersection. As he did so, Kendrick came from in front of the Denali and into his lane of travel where she was struck by Manda’s automobile. Kendrick was in tire pedestrian crosswalk when she was struck. Jury Instructions The trial court gave the jury the standard PIK instructions relating to Manda’s duty to keep a proper lookout and to exercise proper control over his vehicle in order to avoid colliding with another vehicle using the roadway. In addition, the trial court gave the jury two instructions relating to the duties of bicyclists. Instruction No. 13: "The laws of Kansas provide that every person riding upon a roadway shall be subject to the provisions applicable to the driver of a vehicle, except those provisions which by their nature can have no application. “A person riding a bicycle has the same obligations and is entitled to the same protection under the law as other persons in vehicles upon the highway.” Instruction No. 15: “A ‘pedestrian’ is defined as any person afoot. “A ‘vehicle’ is defined as every device in, upon or by which any person or property is or may be transported upon a highway, except devices moved by human power.” Manda requested two additional jury instructions regarding the duties of a pedestrian, which the trial court refused to give. The first was based on PIK Civ. 3d 121.37: “At the time of this occurrence the plaintiff, Clarissa Kendrick, was required to obey the laws of the state of Kansas regarding pedestrians, and the defendant was required to obey the laws regarding motor vehicles.” Manda’s second proposed instruction was based on K.S.A. 8-1509 and K.S.A. 8-1508 as set forth in PIK Civ. 3d 121.38: “d— Pedestrian Control Signals “The laws of Kansas provide that whenever special pedestrian control signals exhibiting the words walk’ or ‘don’t walk’ or symbols of ‘walking persons’ or ‘upraised palm’ are in place, such signals shall indicate as follows: 1. ‘Flashing or steady walk or walking person.’ Pedestrians facing the signal may proceed across the roadway in the direction of the signal and shall be given the right of way by the drivers of all vehicles. 2. ‘Flashing or steady don’t walk or upraised palm.’ No pedestrian shall start to cross the roadway in the direction of the signal, but any pedestrian who has partially completed (his)(her) crossing on the ‘walk’ signal shall proceed to a sidewalk or safety island while the ‘don’t walk’ signal is showing. “e— Traffic Control Lights— Pedestrians “The laws of Kansas provide that whenever traffic is controlled by traffic control lights the following rules shall apply to pedestrians: 1. Unless otherwise provided by a pedestrian control signal, pedestrians facing any green signal may proceed across the roadway within any marked or unmarked crosswalk. 2. Unless otherwise directed by a pedestrian control signal, pedestrians facing a steady yellow signal shall not start to cross the roadway. 3. Unless otherwise directed by a pedestrian control signal, pedestrians facing a steady red signal shall not enter the roadway. 4. A pedestrian may not proceed across a roadway when the sole green signal is a turn arrow.” During its deliberations, the jury submitted a question to the court, seeking clarification “as to where a bicyclist is expected to be on a roadway.” The court referred the jury to its previously given instructions. Thereafter the jury returned its verdict, finding Manda 70% at fault and assessing damages of $70,990.40. In this appeal Manda criticizes the district court’s failure to instruct the jury on Kendrick’s duties as a pedestrian in a crosswalk. Kendrick claims that Manda’s proposed instructions were inappropriate since she was not a pedestrian at the time of the collision but, rather, was operating her bicycle on the roadway as a vehicle. In Kansas, a bicycle is not a vehicle as Kendrick claims. K.S.A. 2006 Supp. 8-1485 defines a vehicle as “every device in, upon or by which any person or property is or may be transported or drawn upon a highway, except . . . devices moved by human power.” On the other hand, a bicyclist is also not a pedestrian. K.S.A. 2006 Supp. 8-1446 defines a pedestrian as “(a) [a]ny person afoot; (b) any person in a wheelchair, either manually or mechanically propelled, or other low powered, mechanically propelled vehicle designed specifically for use by a physically disabled person; or (c) any person using an electric personal assistive mobility device.” However, if a bicyclist operates a bicycle on a roadway, K.S.A. 8-1587 provides that the bicyclist has the same rights and duties applicable to drivers of vehicles. See Morrison v. Hawkeye Casualty Co., 168 Kan. 303, 312, 212 P.2d 633 (1949). Moreover, although bicyclists are not pedestrians, if they use sidewalks they have the same rights as pedestrians and are not subject to vehicular traffic laws. Schallenberger v. Rudd, 244 Kan. 230, 234-35, 767 P.2d 841 (1989). Both parties rely on Schallenberger to support their positions. Manda argues that, consistent with Schallenberger, Kendrick assumed pedestrian status by entering the crosswalk and, therefore, had not only the rights but also the duties of a pedestrian, which included the duty to follow the pedestrian signals at the intersection. Kendrick argues that the analysis in Schallenberger supports her contention that she had the status of a driver of a vehicle because she was operating her bicycle on the roadway at all times before the collision. Schallenberger is instructive, though not dispositive, since it does not directly address how traffic laws apply to a bicyclist such as Kendrick who, after riding her bike on the roadway occupied by vehicles, used a pedestrian crosswalk to access an adjoining sidewalk used by pedestrians. Schallenberger testified that she was riding her bicycle on the sidewalk and crossed the road at a controlled intersection in order to get to the sidewalk on the other side. In doing so she was struck by Rudd’s automobile as he made a right turn on a red light. Rudd testified that Schallenberger was not on the sidewalk but was riding against the flow of traffic on the left side of the roadway. Schallenberger appealed an adverse judgment, claiming error in the jury instructions that classified her status as that of a vehicle, thus causing the jury to find that either by riding on the sidewalk or against the flow of traffic she was necessarily at fault. The Kansas Supreme Court held that in the absence of some statutory prohibition, bicycles may legally be ridden on the sidewalks with pedestrians. Thus, bicycles may lawfully use the crosswalk with the same rights as pedestrians. The court reversed and remanded the case for a new trial based on the fact that the trial court should have instructed the jury that if Schallenberger was riding on the sidewalk, she had the right of way in using the crosswalk. A number of courts from other jurisdictions have discussed the pedestrian status of bicyclists when using a pedestrian crosswalk. See Belay v. District of Columbia, 860 A.2d 365, 368 (D.C. 2004) (person riding bicycle across street in crosswalk has same rights as a pedestrian); Lakewood v. El-Hayek, 142 Ohio Misc. 2d 129, 872 N.E.2d 1005 (Ohio Mun. 2006) (a person’s mere use of a wheeled device for transportation does not exclude that person from being a pedestrian when crossing from one sidewalk to another in a crosswalk); Pudmaroff v. Allen, 138 Wash. 2d 55, 70, 977 P.2d 574 (1999) (bicyclists are to be treated as pedestrians when using crosswalks to cross a roadway); Nish v. Schaefer, 138 P.3d 1134, 1140 (Wyo. 2006) (bicyclists have the same rights as pedestrians to use crosswalks at intersections). In keeping with the conclusions of other courts which have considered the issue, we equate a bicyclist with a pedestrian under the facts presented here. Kendrick claims that she was operating her bicycle on the roadway at all times and in accordance with vehicular traffic laws. We question this conclusion. Westbound vehicles on 139th had two options on approaching Mur-Len: turn either left or right. They did not have the option of proceeding west across the intersection. Kendrick, on the other hand, rode her bicycle across Mur-Len using the pedestrian crosswalk in order to get to the sidewalk on the other side. K.S.A. 8-1411(b) defines a crosswalk as part of the roadway “distinctly indicated for pedestrian crossing.” The Schallenberger court specifically noted that “users of bicycles . . . using the sidewalk also may lawfully use the crosswalk with the same rights as pedestrians.” 244 Kan. at 235. Kendrick operated her bicycle in an area where westbound traffic on 139th Street had no right to be. In doing so, she enjoyed not only the benefits of being treated as a pedestrian in a crosswalk, but assumed the attendant duties as well. The trial court had the duty to properly instruct the jury on Manda’s theory of the case if there was evidence to support it. See Wood v. Groh, 269 Kan. 420, 423-24, 7 P.3d 1163 (2000); Schallenberger, 244 Kan. at 232. Manda’s defense was that Kendrick failed to use the pedestrian traffic signal which would have extended the red light for traffic on Mur-Len and given her ample time to cross the street safely. Though Instruction No. 13 informed the jury that bicycles operated upon the roadway have the rights and duties of vehicles, the jury received no instruction about the rights and duties of pedestrians. The jury’s later question to the court demonstrates its struggle with this issue. The jury was not given the law applicable to Manda’s theory of the case for which supporting evidence was presented at trial. Accordingly, we must reverse and remand the case for a new trial. Sufficiency of the Evidence 1. Negligence Manda argues that the “only evidence presented at trial indicated that both parties entered the intersection on green lights and neither saw the other. The mere fact that they collided is not evidence of negligence.” Kendrick contends that there is ample evidence in the record to support that Manda failed to keep a proper-lookout and faded to drive within his line of vision. It is true that the mere fact of a collision does not establish negligence on the part of either participant. Also, there is a certain appeal to the argument that a motorist has the right to assume that others will obey the law until there is evidence to the contrary; and Manda, faced with a green light, might not expect a bicycle to suddenly appear in his path. While the facts here present a close question, we are not the factfinders. We view the evidence in the light most favoring the prevailing party, Kendrick. Viewed in that fashion, we are not prepared to say there was no evidence from which a jury could find some fault on the part of Manda. We defer any further discussion, however, since the case must be remanded for retrial. 2. Damages for Future Medical Expenses Finally, Manda argues that there was insufficient evidence at trial to support a juiy award of damages for future medical expenses. We review the evidence of damages, as we reviewed the evidence of fault, in the light most favorable to Kendrick. Warren v. Heartland Automotive Services, Inc., 36 Kan. App. 2d 758, 763, 144 P.3d 73 (2006). Damages need not be established with absolute certainty, and the jury can estimate damages using a reasonable basis for computation and the best evidence available under the circumstances. However, claims for damages that are conjectural and speculative cannot form a sound basis for an award. 36 Kan. App. 2d at 766. Dr. Ronald Karlin treated Kendrick in the Olathe Medical Center emergency room immediately after the accident. He testified by deposition that Kendrick suffered severe strains and sprains but no fractures. Dr. Virginia Walker, who also testified by deposition, provided physical therapy and chiropractic adjustments to Kendrick’s neck, upper back, right shoulder, and lower back from June through November 2004. Kendrick testified that she continued to suffer from head, neck, shoulder, and back pain nearly every day after her treatments with Walker ended. Manda argues that neither Karlin nor Walker opined on the need for future medical treatments or the type or cost of such further treatment. On the other hand, Kendrick relies on Cott v. Peppermint Twist Mgt. Co., 253 Kan. 452, 856 P.2d 906 (1993), for the proposition that future consequences of present injuries are compensable if there is a “recognized medical basis supporting the possibility.” In Cott, plaintiff, age 24 at the time of trial, suffered severe bums to her esophagus when she was mistakenly served lye in a mixed drink at a Topeka nightclub. Two doctors opined that Cott would need to be monitored and treated by a physician for medical problems for the rest of her fife. One of the doctors recommended esophageal replacement surgery. Testimony was also presented about the increased risk of Cott contracting esophageal cancer. Cott was awarded $1,100,000 for her current and future medical expenses. The Kansas Supreme Court upheld the award for future medical expenses, concluding that it was reasonable to foresee the need for future medical expenses, regardless of the different courses of treatment recommended. Accordingly, the jury’s award was not based on mere speculation. Cott, 253 Kan. at 465-66. Here, the trial was on December 12,2005,19 months after Kendrick’s accident. Karlin saw Kendrick on the evening of the accident and then 5 days later. Karlin testified that it is common for a person suffering from the types of injuries sustained by Kendrick to suffer headaches for weeks or even months. He did not further quantify how long he would expect Kendrick’s headaches to continue. He stated that it is typical for patients with Kendrick’s injuries to seek follow-up treatment if they have persistent pain. In June 2004, Kendrick sought follow-up treatment from Walker at Fulk Chiropractic Center. Walker’s treatment of Kendrick ended in November 2004 when Walker concluded that Kendrick had improved as much as possible at the chiropractic level. Walker opined that Kendrick will have future flare-ups of pain in her neck, shoulder, lower back, and right hand. Walker could not predict how or when these flare-ups will occur. Kendrick had not received any care and had not taken any medication for her injuries for over a year before trial. She testified, however, that she continued to suffer from head, neck, shoulder, and back pain nearly every day after her treatments with Walker ended. Kendrick’s medical expenses were $14,007.70. These expenses were for an ambulance, her emergency room treatment at Olathe Medical Center, the cost of an x-ray, an MRI examination, and her chiropractic bills. Over Manda’s objections the court referred in the jury instructions and on the verdict form to Kendrick’s future medical expenses. During closing arguments, Kendrick’s counsel argued: “Ladies and gentlemen, what are the damages? What do we know about the damages? We know they didn’t contest the $14,000 in medical bills. So medical expense 14,070. “What do we know about future medical? We know she’s going to have flareups. Ladies and gentlemen, the treatment she got relieved her pain. My suggestion to you is in future medical you make it the same as her current medical.” The jury awarded Kendrick $14,007.70 for medical expenses to date and the exact same amount for future medical expenses. We are well aware of the cases which hold that the inability of the jury to calculate damages with absolute exactness does not preclude a damage award. See Kansas Dept. of SRS v. Goertzen, 245 Kan. 767, 774, 783 P.2d 1300 (1989) (quoting Vickers v. Wichita State University, 213 Kan. 614, 619, 518 P.2d 512 [1974]). However, we are confronted here with a paucity of evidence to provide any basis for the jury to make its calculation. Kendrick’s closing argument essentially invited the jury to pick a number out of thin air. The jury obliged. The prediction that Kendrick’s future medical expenses will be the same as her medical expenses incurred to date finds no support in the evidence. It is a product of counsel’s argument, not the evidence. The jury’s finding that Kendrick will incur future medical expenses in the sum of $14,007.70 is not supported by the evidence. On retrial, the district court should not instruct on future medical expenses if nothing more is presented on this element of damages than what was presented at the first trial. Reversed and remanded for retrial.	[ -48, 88, -12, -17, 26, 0, 80, -88, 81, -108, -76, 59, -83, -53, 85, 111, -9, 117, -47, 43, 100, -69, 71, -93, -78, -13, -29, 70, -95, -33, 126, -13, 79, 112, -53, 21, 100, -54, -17, 28, -98, 22, 106, -16, -103, -125, -96, 120, 0, 15, 53, 14, -109, 42, 24, -24, -24, 108, -7, -95, -101, -78, -23, 21, -10, 13, -93, 68, -101, 13, 80, 25, -99, 61, 0, -24, 118, -90, -106, 52, 99, -103, -44, -128, 102, 33, 5, -65, -68, -68, 78, 90, 13, -123, 10, 56, 75, 47, -41, -33, 126, 30, 38, 120, 126, 4, 83, -24, 3, -113, -112, -111, -19, -14, -122, -43, -1, 79, 18, 113, -54, -30, 94, -59, -78, -69, -33, -98 ]
Caplinger, J: Spencer B. Durham appeals the district court’s restitution order, arguing the court lacked authority to order restitution for medical expenses incurred on Durham’s behalf following his arrest, as well as overtime salary and lodging expenses incurred by the sheriff s department while guarding Durham during his medical treatment. We conclude the district court properly ordered Durham to reimburse the county for medical expenses incurred pursuant to K.S.A. 2006 Supp. 21-4603d(b)(8), which authorizes the district court to order the defendant to “repay the amount of any medical costs and expenses incurred by any law enforcement agency or county.” However, because we find the term “medical” modifies both the term “costs” and the term “expenses,” we vacate that portion of the district court’s order requiring Durham to pay overtime and lodging, which are nonmedical expenses. Factual and procedural background Durham pled no contest to and was convicted of one count of forgery. While in custody but before entering his plea, Durham swallowed one or two razor blades and was transported from Lyon County to the Kansas University Medical Center for treatment. Lyon County Sheriff s Department officers accompanied Durham during transport to the Medical Center and guarded him during his treatment, incurring overtime salary and lodging expenses. Following a hearing to determine the amount of restitution, the district court ordered Durham to pay total restitution of $22,952.43, which included a $20 bank fee to the victim of the forgery, $21,319.69 for medical expenses, $1,336.37 for the officers’ overtime expenses, and $296.37 for the officers’ lodging expenses. Durham appeals the district court’s restitution order. Discussion On appeal, Durham concedes restitution in the amount of the $20 bank fee was appropriate. However, Durham argues the district court lacked authority to order the payment of medical costs, overtime charges, and lodging expenses as restitution. Durham argues K.S.A. 2006 Supp. 21-4603d(b)(l) requires a causal link between a defendant’s unlawful conduct and the restitution ordered, and no such causal link exists here. Further, Durham suggests that even though the county may seek reimbursement for medical costs when an inmate requires medical attention while in custody pursuant to K.S.A. 2006 Supp. 19-1910, such reimbursement may not be included in a restitution order. We review the amount of restitution and the manner in which it is made to the aggrieved party under an abuse of discretion standard. Statutory interpretation, however, is subject to unlimited review. State v. Dexter, 276 Kan. 909, 912-13, 80 P.3d 1125 (2003). K.S.A. 2006 Supp. 21-4603d sets forth the authorized dispositions for crimes committed after July 1,1993. The statute provides the disposition may include an order to “repay the amount of any medical costs and expenses incurred by any law enforcement agency or county.” K.S.A. 2006 Supp. 21-4603d(a)(8). The statute also provides: “In addition to or in lieu of any of the above, the court shall order the defendant to pay restitution, which shall include, but not be limited to, damage or loss caused by the defendant’s crime, unless the court finds compelling circumstances which would render a plan of restitution unworkable.” K.S.A. 2006 Supp. 21-4603d(b)(l). (1) medical expenses In support of his argument the court lacked authority to order restitution for any expense other than the bank fee, Durham relies on State v. Babcock, No. 92,429, unpublished opinion filed August 12, 2005. There, this court reversed a restitution order for medical expenses incurred by the county on behalf of the prisoner while the prisoner was in custody. The panel reasoned that 19-1910(a), a civil statute, allows the county to seek reimbursement from a prisoner for medical expenses incurred on the prisoner s behalf while in custody, but does not permit the inclusion of such expenses in a restitution order in a criminal case. The Babcock panel recognized that 21-4603d(b)(l) does not specifically exclude reimbursement of medical expenses as restitution. However, the court further noted that no causal connection existed between the defendant’s crime and the medical expenses, as generally required when applying 21-4603d(b)(l). Relying on the general principle that criminal statutes must be construed in favor of the accused, the court rejected the inclusion of medical expenses as restitution. Babcock, slip op. at 10-11. Significantly, the Babcock panel acknowledged that its decision might be rendered moot by recent amendments to 21-4603d, which permitted the district court to order payment of in-custodial medical costs as part of a criminal defendant’s sentence. Babcock, slip op. at 3. As anticipated in Babcock, the criminal code now clearly provides for reimbursement to counties for medical expenses incurred on behalf of custodial prisoners. In 2005, the legislature amended 21-4603d to permit the court to order the defendant to “repay the amount of any medical costs and expenses incurred by any law enforcement agency or county.” L. 2005, ch. 150, sec. 5. The statute does not require the State to prove causation between the defendant’s crime and the medical expenses incurred. K.S.A. 2006 Supp. 21-4603d(a)(8). Therefore, we conclude the district court had statutory authority pursuant to K.S.A. 2006 Supp. 21-4603d(a)(8) to order Durham to pay medical expenses in addition to the $20 bank fee authorized by K.S.A. 2006 Supp. 21-4603d(b)(l), and we affirm that portion of the district court’s order. (2) overtime charges and lodging expenses Next we must determine whether overtime charges and lodging expenses incurred by the county in connection with Durham’s hospital stay fall within the purview of “medical costs and expenses incurred by any law enforcement agency or county” pursuant to K.S.A. 2006 Supp. 21-4603d(a)(8). In making this determination, we are mindful of the general rules of statutory construction: “The fundamental rule of statutoiy construction is that the intent of the legislature governs if that intent can be ascertained. The legislature is presumed to have expressed its intent through the language of the statutory scheme. Ordinary words are given their ordinary meanings. When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be.” Winnebago Tribe of Nebraska v. Kline, 283 Kan. 64, 77, 150 P.3d 892 (2007). When interpreting specific statutory language, Kansas courts also apply the last antecedent rule: “In construing statutes, qualifying words, phrases and clauses are ordinarily confined to the last antecedent, or to the words and phrases immediately preceding. The last antecedent, within the meaning of this rule, has been regarded as the last word which can be made an antecedent without impairing the meaning of the sentence. [Citation omitted.]” Barten v. Turkey Creek Watershed Joint District No. 32, 200 Kan. 489, 504, 438 P.2d 732 (1968). As a general rule, criminal statutes must be strictly construed in favor of the accused. Any reasonable doubt as to the meaning of the statute is decided in favor of the accused. Nevertheless, the rule of strict construction is subordinate to the rule that judicial interpretation must be reasonable and sensible to effect legislative design and intent. State v. Snow, 282 Kan. 323, 340-41, 144 P.3d 729 (2006). K.S.A. 2006 Supp. 21-4603d(a)(8) permits the district court to order repayment of the amount of any “medical costs and expenses incurred by any law enforcement agency or county.” The State simply assumes, without analysis, that overtime and lodging expenses incurred by sheriff s officers while guarding a prisoner during a hospital stay qualify as “medical costs and expenses.” If we apply the last antecedent rule, the term “medical” would modify the term “costs” but not the term “expenses.” Using this interpretation, the term “expenses” would be unrestricted and the defendant could conceivably be ordered to repay any expense incurred by “any law enforcement agency or county.” We do not find such a rationale reasonable or sensible, however, and we decline to apply the last antecedent rule in this context. Instead, we find the terms “costs” and “expenses” as used in K.S.A. 2006 Supp. 21-4603d(a)(8) to be redundant. “Cost” is defined as “[ejxpense; price” and “expense” is defined as “[a]n outlay; charge; cost; price.” Black’s Law Dictionary 345, 577 (6th ed. 1990). Moreover, we note that in addition to the phrase at issue here, the legislature used the phrase “costs and expenses” twice more in K.S.A. 2006 Supp. 21-4603d(a)(8). Specifically, the statute permits the court to order the defendant to repay “any costs and expenses incurred by any law enforcement agency in the apprehension of the defendant” (if any of current crimes is escape or aggravated escape) and “the amount of any such costs and expenses incurred by a county . . . shall be deposited and credited to the same fund the public funds were credited to prior to use.” (Emphasis added.) K.S.A. 2006 Supp. 21-4603d(a)(8). It seems clear that in each of these instances, the term “costs” and the term “expenses” are redundant. Therefore, we decline to attach special or broader significance to the use of the phrase “costs and expenses” as it relates to “medical costs and expenses.” Applying the rule that criminal statutes must be strictly construed in favor of the accused, we conclude the term “medical” as used in K.S.A. 2006 Supp. 21-4603d(a)(8) modifies both the term “costs” and the term “expenses.” We believe this interpretation is reasonable and fulfills the legislature’s design and intent to hold prisoners responsible for medical expenses incurred on their behalf. Because officers’ overtime and lodging expenses are not “medical costs or expenses” as that phrase is used in K.S.A. 2006 Supp. 21-4603d(a)(8), we vacate that portion of the district court’s order requiring Durham to pay $1,336.67 for overtime charges and $296.37 for lodging expenses. The remainder of the district court’s restitution order, the $20 bank fee and medical expenses of $21,319.69, is affirmed. Affirmed in part and vacated in part.	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Green, J.: Albert H. Nelson, III, and Markeyta Nelson Dewey (appellants) are the adult children of Margaret Nelson and Albert H. Nelson, II (Albert). Under the terms of a 1975 property settlement agreement with Margaret, Albert agreed to execute and maintain a will creating a testamentary trust funded with his entire estate and to provide in the trust for the appellants to receive one-half of the trust income. Albert died on June 19, 2003. No petition for administration of Albert’s estate was filed in Kansas. Nearly 2 years after Albert died, the appellants sued Doris Nelson (Albert’s second wife); Oklahoma State University Foundation, an Oklahoma Non-Profit Corporation; Wichita State University, a Kansas Non-Profit Corporation; and Intrust Bank, N.A., as Successor Trustee of the Albert H. Nelson, Jr. Irrevocable Trust (appellees). Although the appellants seek a variety of remedies, their argument was that Albert had breached the terms of the property settlement agreement by conveying various assets to third parties for inadequate consideration. The trial court granted summary judgment in favor of the appellees, determining that the appellants should have brought their claim against Albert’s estate. Under K.S.A. 59-2239, if no petition for administration of a decedent’s estate is filed, an action against the decedent must be brought by starting administration of dece dent’s estate within 6 months of the decedent’s death. Because the appellants failed to file a petition for administration of Albert’s estate within 6 months of Albert’s death and to assert their demand against his estate, their claims are barred by K.S.A. 59-2239. Accordingly, we determine that the trial court properly granted summary judgment in favor of the appellees. Margaret and Albert Nelson were married in 1942. Margaret and Albert had two children, the appellants, during their marriage. Around 1946, Albert started a business in Wichita that was primarily involved in fabricating metal parts for the aviation industry. The business was incorporated in 1966 and is called Globe Engineering Co., Inc. (Globe). Margaret and Albert divorced in 1975. In connection with the divorce proceedings, Margaret and Albert entered into a property settlement agreement. Paragraph 9 of the property settlement agreement states in relevant part: “Husband further covenants and agrees with Wife that Husband will execute and maintain, in full force and effect, a Will creating a testamentary trust to be funded by and with Husband’s entire estate. Said trust will provide that the two (2) children of the parties hereto shall receive one-half (Vz) of the income from the trust after deduction of all taxes, debts, costs and expenses of administration, provided, however, that upon the death of either such child, said child’s share of income shall be paid to the surviving child; provided, further, that the remaining debt, if any, of Husband to Wife under paragraph 2 hereof shall be deducted from the amount otherwise distributable to said children or child from said trust. The payments to said children or child shall be made not less often than annually.” The property settlement agreement was approved by the trial court and incorporated by reference as part of the journal entry and decree of divorce. Margaret never remarried and died in 2001. Approximately 3 years after his divorce from Margaret, Albert married Doris Nelson. Albert remained married to Doris until he died in 2003. Before their marriage, Albert and Doris executed an antenuptial agreement where they agreed that the property brought by each party into the marriage would continue to be the sole and separate property of the respective party. A provision in the antenuptial agreement stated that “each of the parties acknowledge that here tofore there has been full disclosure to and from the other of the nature and extent of their respective property and assets.” In 1987, Albert established a revocable trust to be funded with all of his stock in Globe. Doris was named as the trustee of the revocable trust. The trust provided that after Albert died, one-half of the income generated by the trust assets would be distributed to Doris for life and the remaining one-half of the income would be distributed to appellants for fife. In addition, Albert deeded the real estate on which Globe operated to Doris for “one dollar and love and affection.” The deed was filed in May 1987 in Sedgwick County. Globe Engineering has since paid rent to Doris for its use of the property. In 1987, Albert also designated Doris as the beneficiary of his interest in the Globe Engineering profit sharing plan. In addition, Albert opened a brokerage account with Paine Webber, Inc. The owners of the account were Albert and Doris as joint tenants with right of survivorship. The account was funded with the proceeds from two certificates of deposit that matured that year. In addition, Albert made additions to the account with some of the mandatory distributions he received from the Globe profit sharing plan. In 1991, Albert made a will that provided for the establishment of two testamentary trusts. The first trust, the Charitable Remainder Annuity Trust, was to be funded with one-half of the residue of Albert’s estate. Under the terms of this trust, at least five percent of the net market value of the trust assets were to be distributed yearly to the appellants in equal shares for the rest of their lives. Upon the death of the surviving appellant, the trust assets were to be distributed to Oklahoma State University. Doris was named trustee of the Charitable Remainder Annuity Trust. The second trust, the Doris H. Nelson Income Trust, was to be funded with the remaining one-half of the residue of Albert’s estate. Doris was to receive distributions from the principal, if necessary or advisable, and the entire income from this trust. The same firm represented Albert in his divorce from Margaret, in preparing the antenuptial agreement between Albert and Doris, and in preparing the 1991 estate planning documents. Albert later met with Don Stahr, an attorney with a different law firm, to review his estate plan. Albert and Stahr reviewed paragraph 9 of the property settlement agreement. Stahr advised Albert that depending upon how aggressive he wanted to be, “gifting could eliminate all or substantially all income payment obligations to the children.” Stahr advised Albert that “[g]ifts of your property to a charitable remainder trust or trusts, with income to you and Doris, for your respective lives, would seem to be a good solution.” Stahr prepared a pour-over will, two inter vivos trusts, and a general assignment. Albert executed these documents in June 1995. Doris was present at the time and executed the irrevocable trust and the general assignment. One of the trusts was named the Albert H. Nelson, Jr. Living Trust (living trust). The living trust was designed to replace Albert’s existing will. The living trust designated Albert as trustee during his lifetime and Doris as successor trustee upon Albert’s death or disability. Albert had discretion during his lifetime to pay himself all or part of the income or principal of the trust. Upon Albert’s death, one-half of the assets were to be held in the Doris H. Nelson Income Trust (income trust) and the other half of the assets were to be held in trust for the appellants. The appellants were to receive an annuity equal to six percent of the net fair market value of the assets held in trust for them. The annuity was to be divided in equal shares between the appellants; if one of the appellants died, the entire annuity was to be distributed to the survivor. Upon the death of both appellants, the remaining assets were to be distributed to Oklahoma State University Foundation and Wichita State University Endowment Association in equal shares. Under the terms of the living trust, the income from the trust was to be paid to Doris during her life. When Doris died, the remainder of the assets in the income trust were to be distributed equally between Oklahoma State University Foundation and Wichita State University Endowment Association. The other inter vivos trust was named the Albert H. Nelson Irrevocable Trust (irrevocable trust) with Doris designated as the trustee. Markeyta was designated as successor trustee. All trust income and, if necessary, the principal were to be paid to Doris for the rest of her life. Upon Doris’ death, the remaining assets were to be distributed equally between Oklahoma State University Foundation and Wichita State University Endowment Association. The irrevocable trust authorized the trustee to sell, assign, convert, convey, or dispose of assets in the trust. The pour-over will provided for the devise of any assets owned by Albert at his death to the trustee of the living trust. Several months after the living trust and irrevocable trust were established, Albert conveyed all of his stock in Globe to the two trusts in roughly equal shares. By March 1999, all the Globe shares owned by the trusts had been sold to the Globe employee stock ownership plan. In October 1990, Albert and Doris purchased a residence in Florida. The warranty deed conveyed the property solely to Doris. In 1999, Albert and Doris gave money to the Oklahoma State University Foundation. Some of the money was given to endow a chair in the Department of Engineering in Albert’s name. Albert died in Florida on June 19,2003. In February 2004, Doris suffered serious head injuries in a car accident, which adversely affected her memoiy and accelerated her existing Alzheimer’s disease. At her deposition in this case, Doris did not recall ever reading paragraph 9 of the property settlement agreement or discussing it with Albert. Moreover, Doris indicated that she was unaware that Albert was required to leave property to the appellants. Several days after Albert’s death, Stahr wrote to the appellants and enclosed a copy of Albert’s will and the living trust and explained the operation of the living trust. In his letter, Stahr referenced paragraph 9 of the 1975 property settlement agreement. Moreover, Stahr informed the appellants that paragraph 4 of the living trust provided for the disposition of certain items of personal property and the residence if they were part of the trust estate. Nevertheless, Stahr told the appellants that these items were actually owned by Doris and were not part of the estate. Markeyta later spoke with Stahr’s partner, Eric Ireland, about Albert’s estate. In August 2004, Ireland sent Markeyta a list of the assets to be included on Albert’s estate tax return and described assets that had been held jointly with Doris with a right of survivorship and the assets held by the living trust and the irrevocable trust. The appellants have never filed a petition for administration of Albert’s estate in Kansas. Moreover, the appellants have never filed a claim against Albert or his estate in Florida. In April 2005, the appellants brought the present action against the appellees. The appellants sought a variety of remedies based on Albert’s alleged breach of the property settlement agreement. When this action was commenced, Markeyta was listed as one of the defendants because she was the successor trustee of the irrevocable trust. Several months later, Intrust Bank, N.A., was substituted as the trustee to the irrevocable trust and became a defendant in the lawsuit. The appellants later moved for partial summary judgment, arguing that they were entitled to an order imposing a constructive trust on a portion of the assets Albert had given to Doris. In addition, the appellants argued that they were entitled to an order requiring Doris to account for income generated by the gifted assets since Albert’s death and to a money judgment against her for the amount the appellants should have received under the property settlement agreement. Finally, the appellants asked for the money judgment to include the amount of income that would have been produced since Albert’s death “but for his substantial gifts to others.” The appellees also moved for summary judgment, arguing that the appellants’ claims failed as a matter of law for the following reasons: (1) because the property settlement agreement did not impose the contractual duties identified by the appellants, let alone contractual duties that would bind any of the appellees; (2) because the appellants’ claims were barred or limited by the 5-year statute of limitations relating to an action founded on contract; (3) because the appellants’ claims constitute a demand against Albert’s estate that was barred by their failure to timely assert the demand; and (4) because the appellants’ legal construction of the property settlement agreement constituted an attempt to modify or vacate a judgment in violation of K.S.A. 60-260. In a memorandum decision filed in October 2006, the trial court noted that the essence of the appellants’ lawsuit was that Albert breached the property settlement agreement by failing to execute an estate plan consistent with its terms. The trial court determined that because Albert was the party alleged to have breached the property settlement agreement, the claim must be made against his estate. Accordingly, the trial court denied the appellants’ motion for partial summary judgment and granted the appellees’ motion for summaiy judgment. I. Should the appellants have brought their claim against Albert’s estate? The appellants challenge the trial court’s denial of their motion for partial summaiy judgment and the trial court’s entry of summary judgment in favor of the appellees by arguing that the trial court erroneously determined that they needed to bring their claim against Albert’s estate. “Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.” [Citations omitted.]’ ” State ex rel. Stovall v. Reliance Ins. Co., 278 Kan. 777, 788, 107 P.3d 1219 (2005). To the extent there is no factual dispute, appellate review of a trial court’s order regarding summary judgment is unlimited. Roy v. Young, 278 Kan. 244, 247, 93 P.3d 712 (2004). Further, the parties’ arguments in this case require this court to look at the Kansas nonclaim statute, K.S.A. 59-2239. This court has unlimited review over the interpretation of a statute. Hence, we are not bound by the trial court’s interpretation of the statute. Foster v. Kansas Dept. of Revenue, 281 Kan. 368, 374, 130 P.3d 560 (2006). Appellants’ Cause of Action Although the appellants seek a variety of remedies in this case, they are all based on Albert’s alleged breach of the property settlement agreement due to his failure to carry out an estate plan in accordance with paragraph 9 of the agreement. The trial court determined that because Albert is deceased, the appellants’ claims must be brought against Albert’s estate. The appellants do not challenge that their claims are based on Albert’s breach of the property settlement agreement. Rather, the appellants contend that they were not required to assert their claim against Albert’s estate but could go after the individual or entity who held the transferred assets. It is undisputed that the appellants were the intended third-party beneficiaries of paragraph 9 of the property settlement agreement. Thus, as pointed out by the trial court, the appellants have a claim against Albert to the extent that he failed to fulfill his obligations under the contract. See State ex rel. Stovall v. Reliance Ins. Co., 278 Kan. 777, 107 P.3d 1219 (2005) (third-party beneficiary can enforce contract if he or she is person who contracting parties intended should receive direct benefit). It is well established tihat a decedent no longer has the individual capacity to respond in damages to torts, to pay debts, to cariy out contracts, or to administer his or her estate, and the estate must meet the decedent’s financial obligations. An individual who claims entitlement to all or to a part of a decedent’s estate, whether based upon a tort, an oral or written contract, the decedent’s will, or the statute of intestate succession, must recover, if at all, from the decedent’s estate. In re Estate of Reynolds, 266 Kan. 449, 456-57, 970 P.2d 537 (1998); see also Salvation Army v. Estate of Pryor, 1 Kan. App. 2d 592, 601, 570 P.2d 1380 (1977) (“ ‘[Wjhere a party seeks to enforce a contractual obligation to devise or bequeath a portion of a decedent’s estate, the proceeding constitutes a demand against the estate and not a will contest.’ ”). Thus, because Albert had died and could no longer be sued, the appellants’ claims based upon Albert’s breach of the property settlement agreement should have been brought against Albert’s estate. Kansas Nonclaim Statute In their motion for summary judgment, the appellees contend that the appellants’ claims are now barred due to their failure to timely assert their demand against Albert’s estate. The appellees cite K.S.A. 59-2239, the Kansas nonclaim statute. K.S.A. 59-2239 provides a mechanism for a creditor to petition for administration of a decedent’s estate when no estate has been opened in Kansas. K.S.A. 59-2239(1) states: “All demands, including demands of the state, against a decedent’s estate, whether due or to become due, whether absolute or contingent, including any demand arising from or out of any statutoiy liability of decedent or on account of or arising from any liability as surety, guarantor or indemnitor, and including the individual demands of executors and administrators, shall be forever barred from payment unless the demand is presented with the later of: (a) four months from the date of first publication of notice under K.S.A. 59-2236, and amendments thereto; or (b) if the identity of the creditor is known or reasonably ascertainable, 30 days after actual notice was given, except that the provisions of the testator’s will requiring the payment of a demand exhibited later shah control. No creditor shall have any claim against or lien upon the property of a decedent other than liens existing at the date of the decedent’s death, unless a petition is filed for the probate of the decedent’s will pursuant to K S.A. 59-2220 and amendments thereto or for the administration of the decedent’s estate pursuant to K.S.A. 59-2219 and amendments thereto within six months after the death of the decedent and such creditor has exhibited the creditor’s demand in the manner and ivithin the time prescribed by this section, except as otherwise provided by this section.” (Emphasis added.) K.S.A. 59-2239 is a special statute of limitations governing claims against a decedent’s estate. Union Nat'l Bank & Trust Co. v. Estate of Werning, 233 Kan. 671, Syl. ¶ 1, 665 P.2d 192 (1983). The nonclaim statute starts to run at the decedent’s death or on the publication notice to creditors. K.S.A. 59-2239. The words “all demands” in K.S.A. 59-2239 are all inclusive and include claims and demands of every type and character against a decedent’s estate, except in particular cases where a statute expressly provides otherwise. Werning, 233 Kan. 671, Syl. ¶ 2. Under K.S.A. 59-2239(2), the statute of limitations is extended for tort claims. There is no similar provision for contract claims. K.S.A. 59-2239 bars a creditor from having any claim upon property of the estate unless a petition for probate or administration of the estate is filed within 6 months after the decedent’s death and the creditor’s demand is brought forth in the time specified under the statute. As a result, the burden is placed on the creditor to take action to protect its interests within die time prescribed by K.S.A. 59-2239 or the creditor s claim will be barred. No petition was filed for probate or administration of Albert’s estate within the 6 months following Albert’s death and thus no claim was filed against the estate. Therefore, under K.S.A. 59-2239, the appellants’ claims may be barred. Nevertheless, we need to consider whether an exception to the nonclaim statute is applicable to this case. Fraud or Unconscionable Conduct Citing Pryor, 1 Kan. App. 2d 592, our Supreme Court in Reynolds, 266 Kan. at 456, held: “Nonclaim statutes are considered jurisdictional, and a creditor’s noncompliance with the nonclaim statute means that the district court should disallow any claim not filed within the time limit. This rule is inapplicable, however, if the court finds fraud or other unconscionable conduct. [Citation omitted.]” See also In re Estate of Tracy, 36 Kan. App. 2d 401, 404, 140 P.3d 1045 (1987) (recognizing that nonclaim statute deprives court of jurisdiction if claim is untimely filed). Here, the appellants made no allegations of fraud or unconscionable conduct by Doris or any of the other appellees in their pleadings or in the pretrial order. K.S.A. 60-209(b) requires that the circumstances of fraud be pled with particularity. See Timi v. Prescott State Bank, 220 Kan. 377, 388, 553 P.2d 315 (1976); see also Baker v. Brial, 185 Kan. 322, 341 P.2d 987 (1959) (A charge of fraud, without stating the facts, is insufficient.); Gleason v. Wilson, 48 Kan. 500, Syl. ¶ 2, 29 Pac. 698 (1892) (In a petition alleging that a conveyance was fraudulent against the interests of the grantor’s creditors, the court held that an allegation alleging fraud in general terms [“ ‘that a chattel mortgage was not executed in good faith, but for the purpose of hindering, delaying, and defrauding creditors’ ”] was insufficient. The court further held that facts constituting fraud must be stated specifically.). Moreover, a pretrial order controls the later course of litigation unless the trial court allows the parties to modify it to prevent manifest injustice. See K.S.A. 60-216(e); McCain Foods USA, Inc. v. Central Processors, Inc., 275 Kan. 1, 18-19, 61 P.3d 68 (2002). When there has been no attempt to modify the pretrial order, it is binding and controls the later course of litigation. Wenrich v. Em ployers Mut. Ins. Co., 35 Kan. App. 2d 582, 590-91, 132 P.3d 970 (2006). Further, “[a]n issue or claim for relief that is not contained in the pretrial order should not be entertained by the trial court. [Citation omitted.]” McCain Foods, 275 Kan. at 19. Although the record fails to show that the appellants raised and preserved the issues of fraud or unconscionable conduct in either their pleadings or the pretrial order, the appellants, before the trial court, contended that they did not need to show any wrongdoing by Doris. On the other hand, the appellants argued that if the court determined that Doris’ knowledge of the property setdement agreement was relevant, “the more credible evidence is that Doris was undoubtedly aware of the [property settlement] agreement and its terms.” The appellants pointed to the fact that Doris had signed an antenuptial agreement prepared by the same lawyers who had represented Albert in his divorce from Margaret and that the antenuptial agreement had a provision indicating that Albert and Doris had disclosed the nature and extent of the assets and property that they each owned. Nevertheless, these facts show only that Doris was aware of Albert’s assets and property. The appellants have pointed to nothing in the record that would show Doris or any of the other appellees were aware of the property settlement agreement and were involved in Albert’s alleged breach of the terms of such agreement. “ ‘Speculation does not create a genuine issue of fact; instead, it creates a false issue, the demolition of which is a primary goal of summary judgment.’ ” Forsythe v. Bd. of Educ., Dist. 489, 956 F. Supp. 927, 930 (D. Kan. 1997). Hence, the appellants have not set forth any facts showing fraud or unconscionable conduct by Doris or any of the other appellees involving Albert’s transfer of assets. As a result, the previously stated exception to the nonclaim statute is inapplicable to this case. Constructive Trust Nevertheless, arguing that a constructive trust can be imposed on property improperly given to a third party when a father has failed to fulfill an obligation imposed by a property settlement agreement arising from a divorce, the appellants cite Hile v. DeVries, 17 Kan. App. 2d 373, 836 P.2d 1219 (1992). In Hile, the father had agreed under a property settlement agreement to continue his two children as beneficiaries on at least $50,000 of life insurance. Nevertheless, after the father remarried, he named the stepmother as the beneficiary on his life insurance. When the father died, the stepmother received the entire life insurance proceeds. The children’s mother sued the stepmother. The trial court imposed a constructive trust on $50,000 of the life insurance proceeds. On appeal, this court rejected the stepmother’s argument that a constructive trust could not be imposed absent fraud. This court distinguished Clester v. Clester, 90 Kan. 638, 135 Pac. 996 (1913), the case cited by the stepmother, because it did not involve insurance proceeds. This court cited Tivis v. Hulsey, 148 Kan. 892, 895, 84 P.2d 862 (1938), for the holding that when a party claims an interest in insurance proceeds, those proceeds are held in constructive trust for the rightful claimant. This court determined that the trial court did not err in using its equitable powers to enforce the father’s agreement to maintain $50,000 in life insurance for the benefit of his daughters. 17 Kan. app. 2d at 376. There was no argument made by the appellant in Hile that the claim was barred by the nonclaim statute, K.S.A. 59-2239. Moreover, Hile involved a party claiming an interest in insurance proceeds, and such cases have not required a showing of fraud before the imposition of a constructive trust. Hile was limited to insurance proceeds. See Tivis, 148 Kan. 892. The appellants cite no cases, other than those involving insurance proceeds, where either our Supreme Court or this court have imposed a constructive trust absent a showing of fraud. A review of Kansas case law reveals that our Supreme Court and this court have consistently held that fraud must be proven before a constructive trust will be imposed, unless, as previously mentioned, a party is claiming an interest in insurance proceeds. See Garrett v. Read, 278 Kan. 662, 673-74, 102 P.3d 436 (2004); Woods v. Duval, 151 Kan. 472, 99 P.2d 804 (1940); Cousatte v. Lucas, 35 Kan. App. 2d 858, 868-69, 136 P.3d 484 (2006). Fraud can be either actual or constructive. In order to establish constructive fraud, a party must show the existence of a confidential relationship and a betrayal of that confidence, or a breach of duty imposed by that relationship. See Garrett, 278 Kan. at 674; Cousatte, 35 Kan. App. 2d at 871. Moreover, a confidential relationship is not presumed, and the burden of proving such a relationship existed rests upon the party asserting its existence. Kampschroeder v. Kampschroeder, 20 Kan. App. 2d 361, 365, 887 P.2d 1152, rev. denied 257 Kan. 1092 (1995). Finally, this court has defined a confidential relationship “ ‘ “as any relationship of blood, business, friendship, or association in which one of the parties reposes special trust and confidence in the other who is in a position to have and exercise influence over the first party.” ’ [Citation omitted.]” Heck v. Archer, 23 Kan. App. 2d 57, 63, 927 P.2d 495 (1996). The mere relationship between a parent and a child does not raise a presumption of a confidential and fiduciary relationship. Curtis v. Freden, 224 Kan. 646, 651, 585 P.2d 993 (1978). “For purposes of imposing a constructive trust, a confidential relationship can be based on an agreement between the owner of property and another who will distribute the owner’s property in a specified manner upon the owner’s death.” Heck, 23 Kan. App. 2d at 67. As pointed out earlier, the appellants have failed to set forth any facts showing fraud, either actual or constructive, on the part of Doris or any of the other appellees. Rather, the appellants focus on Albert’s conduct of placing assets beyond the reach of his children and argue that it “had all the earmarks of actual fraud.” Moreover, in arguing that there was constructive fraud, the appellants maintain that the property settlement agreement gave rise to a confidential relationship between Albert and his children and also to fiduciary duties that Albert owed to his children. Nevertheless, all of these arguments relate to Albert’s conduct and not to any conduct by the appellees. Although a confidential relationship may have been created between Albert and Margaret based on the property settlement agreement, the appellees were not parties to the agreement. Moreover, the appellants do not allege that there was a later agreement between Albert or Margaret and the appellees or between Albert and Margaret and the appellees for the appellees to distribute Albert’s property according to the property settlement agreement upon Albert’s death. Because no confidential relationship was created between Albert or Margaret and the appellees or between both Albert and Margaret and the appellees, the appellees could not have breached a confidential relationship. See Staab v. Staab, 158 Kan. 69, 73, 145 P.2d 447 (1944) (confidential relationship found because father [grantor] was uneducated, had placed the utmost confidence in his two sons, and had followed their advice in all matters of business). Moreover, as stated earlier, the appellants never pleaded fraud, either in general or specific terms, in their petition, nor did they allege fraud in the pretrial order. Consequently, the previously mentioned arguments of appellants do not establish a constructive trust claim against the appellees. Kampschroeder v. Kampschroeder The appellants attempt to fit this case within Kampschroeder, 20 Kan. App. 2d 361. In Kampschroeder, the son sued to impose a constructive trust on property jointly held by his stepmother and stepsister after his father died. Before the father’s death, the father and the stepmother had agreed to hold most of their property in joint tenancy. Their intention was that upon one spouse’s death, the other spouse would receive the income from the property and then the property would go to each spouse’s respective children. Thus, the father’s property would go to the son after both the father and stepmother died. After the father died, however, the stepmother placed most of the couple’s assets in her name and her daughter’s name. The trial court imposed a constructive trust on certain assets that should pass to the son upon the stepmother’s death. This court upheld the trial court’s decision on appeal. 20 Kan. App. 2d at 369. This case is different from Kampschroeder because the stepmother in Kampschroeder was the one who had breached the agreement to leave property to the son. The stepmother was alive and could be sued for her actions. In contrast, Albert is the one alleged to have breached the property settlement agreement here. Neither the stepmother (Doris) nor any of the other appellees in this case were ever a party to the property settlement agreement. Because the appellants are alleging that Albert breached the terms of the property settlement agreement, they needed to bring their claim against him or against his estate once he was deceased. Pryor Exception to Nonclaim Statute The appellants also maintain that they fall within the exception to the nonclaim statute outlined by this court in Pryor, 1 Kan. App. 2d 592. In Salvation Army v. Estate of Pryor, 1 Kan. App. 2d 592, 593, 570 P.2d 1380 (1977), John and Gussie McClure, husband and wife, executed a joint, mutual, and contractual will in which each gave the other all personal property and a life estate in all real property, with the power to sell such real property in the event that such action seemed advisable and to use the proceeds, if necessary, for support, maintenance, and comfort. Upon the survivor’s death, the remaining real and personal property was to be sold and divided equally between several institutions, including the Salvation Army. After John died, Gussie executed a new will, leaving $5,000 to her brother and the remainder to her sister, Agnes Pryor. The brother predeceased Gussie, and upon Gussie’s death, Agnes inherited the entire estate. Agnes died testate 18 months later, and her will was duly probated. The Salvation Army timely filed a claim in Agnes’ estate in an effort to recover the money due to it as a result of Gussie’s breach of the joint, mutual, and contractual will and for money rightfully belonging to it as remainderman of a life estate of real property held by Gussie. The trial court determined that the contractual provision of the joint and mutual will should be enforced and imposed a trust for $12,143.55. On appeal, this court in Pryor held that the Salvation Army’s demand should have been filed in Gussie’s estate. This court further held that without clear and convincing proof of a breach of fiduciary duty, actual or constructive fraud, or some other form of unconscionable conduct, the Salvation Army’s claim, to the extent it attempted to recover money due the Salvation Army based on Gussie’s breach of the joint, mutual, and contractual will, was barred by K.S.A. 59-2239. 1 Kan. App. 2d 592, Syl. ¶ 7. Nevertheless, this court held that the Salvation Army’s claim was not barred in its attempts to recover the remainder of a life estate. 1 Kan. App. 2d at 606. Gussie had exercised her authority under the will to sell some real property. Nevertheless, as a life tenant, Gussie was required to keep the proceeds in trust for the benefit of the remainderman subject to her right to receive the income from the corpus and to invade the corpus if necessary for her support, maintenance, and comfort. This court relied on Kline v. Orebaugh, 214 Kan. 207, 519 P.2d 691 (1974), where our Supreme Court adopted Restatement (Second) Trusts § 289, which states: " If the trustee in breach of trust transfers trust property and no value is given for the transfer, the transferee does not hold the property free of the trust, although he had no notice of the trust.’ ” 1 Kan. App. 2d at 605. This court discussed two theories that would allow the Salvation Army to recover against the estate of Agnes for any funds remaining from the sale of the real property. The first was that Agnes took the place of Gussie and effectively became the quasi-trustee with the same fiduciary duty to the remaindermen as Gussie had. The second was that Agnes’ estate would be unjustly enriched at the expense of the remaindermen as a result of the violation of Gussie’s duty to the remaindermen. This court concluded that when the remainderman is able to prove the existence of trust funds and to follow and identify those funds, a constructive trust will be imposed on the funds. 1 Kan. App. 2d at 606. This case is different from Pryor because in this case there was no specific property identified in the property settlement agreement which was to be held in trust for the appellants and from which the proceeds of its sale could be traced. According to the terms of the property settlement agreement, Albert was not required to hold any property in trust for the benefit of his children. The agreement required only that Albert establish a testamentary trust funded by his entire estate. The agreement, however, fails to state what property, if any, was Albert’s estate to be composed of. Because there was no specific property that Albert had contracted to leave to his children, the exception recognized in Pryor is not applicable here. Moreover, the exception to the nonclaim statute outlined in Pryor has not been recognized in later decisions by our Supreme Court and this court. See In re Estate of Reynolds, 266 Kan. 449, 970 P.2d 537 (1998); In re Estate of Watson, 21 Kan. App. 2d 133, 896 P.2d 401 (1995). In Reynolds, Justice Abbott, writing for our Supreme Court, set forth the rule from Pryor as follows: “Nonclaim statutes are considered jurisdictional, and a creditor’s noncompliance with the nonclaim statute means that the district court should disallow any claim not filed within the time limit. This rule is inapplicable, however, if the court finds fraud or other unconscionable conduct.” 266 Kan. at 456. Although Justice Abbott also wrote the decision in Pryor when he sat with this court, no mention is made in Reynolds of the exception outlined in Pryor. Rather, the strong language quoted earlier from Reynolds indicates that the nonclaim statute bars a creditor s claim unless the claim is filed within the time limit under the statute or unless the creditor is able to show fraud or other unconscionable conduct. Our research has revealed that the nonclaim statute has been consistently sustained on two grounds: (1) that the nonclaim statute is a statute of limitations, which places the burden on the creditor to protect its interests; and (2) that there is a duty on the creditor to keep track of both the debtor and the creditor s own property interests. See Sprague v. Copenbarger, 222 Kan. 265, 266, 564 P.2d 486 (1977) (failure to follow mandate of nonclaim statute bars all demands against decedent’s estate); Pryor, 1 Kan. App. 2d at 598, 605 (duty to protect interests rightly falls on those who would make claim against decedent’s estate). Although the appellants have attempted to declare a precise exception to the nonclaim statute, this case is not within that exception. The appellants have not alleged nor have they set forth facts that would show fraud or unconscionable conduct by Doris or any of the appellees that would allow them to avoid the time limits of K.S.A. 59-2239 and sue the appellees directly. The appellants invite us to circumvent the absolute bar of the nonclaim statute. Nevertheless, our nonclaim statute has been in effect for many years. The purpose of this statute is to help facilitate the orderly and speedy administration of probate estates. See In re Estate of Tracy, 36 Kan. App. 2d 401, 405, 140 P.3d 1045 (2006) (recognizing that primary purpose of K.S.A. 59-2239 is speedy settlement of estates in interest of creditors, heirs, legatees, and devisees and to settle titles to real estate). Our courts have held the nonclaim statute to be an absolute bar to all demands against a decedent’s estate that are untimely filed. Following precedent, we decline to disturb the way we have applied the nonclaim statute. Statute of Limitations in Contract Action It is worth noting that the appellees argue that the appellants’ claim is also barred by the 5-year statute of limitations under K.S.A. 60-511(1) relating to contract actions. Significantly, in responding to the appellees’ motion for summary judgment, it appears that the appellants failed to provide any argument as to why the 5-year statute of limitations under K.S.A. 60-511(1) would not apply to this case. Instead, the appellants set forth the 2-year statute of limitations for a constructive trust and the applicable rules. Nevertheless, as discussed previously, the appellants have not set forth any facts that would establish a constructive trust claim against the appellees. It appears that the appellees’ statute of limitations argument may have some merit. Assuming for the sake of argument that the non-claim statute does not bar the appellants’ claims, the appellants’ claims may still be barred by the statute of limitations on the underlying claims. Here, the appellants’ claims are based under a written contract between the decedent and his former wife. As the appellees correctly point out, the appellants would have had 5 years in which to bring the action. See K.S.A. 60-511(1). The appellees further note that a cause of action for breach of contract accrues when the contract is breached, not when the breach or harm is discovered. Crab v. Swindler, Administratrix, 184 Kan. 501, 507, 337 P.2d 986 (1959) (Where a contractual relationship exists between the parties, the cause of action accrues when die contract or agreement is breached, irrespective of knowledge on tire part of the plaintiff of the breach or any actual injury.); Voth v. Chrysler Motor Corporation, 218 Kan. 644, 651, 545 P.2d 371 (1976); Wolf v. Brungardt, 215 Kan. 272, 279, 524 P.2d 726 (1974); Pizel v. Zuspann, 247 Kan. 54, 74, 795 P.2d 42, modified on other grounds 247 Kan. 699, 803 P.2d 205 (1990); Freeto Construction Co. v. American Hoist & Derrick Co., 203 Kan. 741, 746, 457 P.2d 1 (1969); Ware v. Christenberry, 7 Kan. App. 2d 1, 4, 637 P.2d 452 (1981). The majority of Albert’s conveyances, transfers of property, and changes of beneficiary designation occurred more than 5 years before the appellants filed their action on April 12, 2005. For instance, the appellees point out that in May 1987, Albert conveyed the real estate on which Globe operated to Doris for “one dollar and love and affection.” The warranty deed evidencing the conveyance was filed of record with the Sedgwick County Register of Deeds on May 11, 1987. It would seem that Albert committed a wrong or breach of the property settlement agreement when he conveyed, during his lifetime, the Sedgwick County real estate without reservation to Doris. Although the appellants may argue that the statute did not commence to run with respect to Albert’s alleged breach until his death, as the appellees point out, this argument runs counter to Engelbrecht v. Herrington, 101 Kan. 720, 172 Pac. 715 (1917). Elgelbrecht involved an action against an executor seeking to recover the value of land the decedent-father had orally promised to devise to the plaintiff-son, if the son would help work the land and pay the mortgage debt. Before he died, the decedent conveyed the land to a third party for allegedly inadequate consideration. The son argued that his father had breached their agreement, and the executor defended on the basis of the 3-year statute of limitations applicable to oral contract claims. Our Supreme Court affirmed the trial court’s dismissal of the action and rejected the argument that the cause of action did not accrue until the father’s death. The court held that the cause of action accrued when the conveyance was made and further explained: “In this case ... his father absolutely disabled himself from performing his part of the contract in June, 1909, by the conveyance of the land to another. Thereafter, it was beyond tire power of the father to leave or will one-half of the land to the plaintiff. The contract being fully executed on the part of plaintiff and perform anee on the part of his father being a legal impossibility, the contract was at an end and the rights of plaintiff then fully accrued.” 101 Kan. at 724. Here, long before Albert died, he absolutely and irrevocably conveyed his interest in the Sedgwick County real estate to Doris by warranty deed. The deed was recorded in 1987, and no action was filed until April 2005. In deeding the property, Albert rendered legally impossible his alleged obligation to keep the property for the benefit of the appellants. The alleged breach was complete, and any cause of action for breach of contract then accrued. Neither Margaret nor the appellants attempted to enforce their rights under the contract and bring a claim against Albert for his alleged breach of the property settlement agreement. It is apparent that the appellants’ attempt to enforce their rights under the property settlement agreement as it relates to Albert’s conduct before April 2000 is untimely. We, however, need not further address this issue based on our previous holding. Affirmed.	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Leben, J.: Joe and Debra F. appeal the adjudication of their children as children in need of care. The district court concluded that Debra had committed physical abuse against J.F. and that J.F.’s siblings, A.F. and S.F., were likewise children in need of care under K.S.A. 2005 Supp. 38-1502(a)(ll), which authorizes protection for children residing with another child who is physically abused. On appeal, Joe and Debra claim that there was insufficient evidence to find abuse and that the statute is unconstitutionally vague. But our review of the records reveals substantial evidence in support of the district court’s conclusion that J.F. sustained bruising all around his left ear from Debra’s striking him there with a 1-inch-thick wooden paddle. And we do not believe that the statute is so vague that a citizen would be unaware that you may not strike a child on the head with such a paddle. Substantial Evidence Supports the District Court’s Finding of Physical Abuse We review the district court’s factual findings to see whether they are supported by substantial competent evidence. In performing this review, we view the evidence in the light most favorable to the prevailing party. Although the State had the burden below to prove its case hy clear and convincing evidence, that standard does not affect our scope of review on appeal. In re J.J.G., 32 Kan. App. 2d 448, 454, 83 P.3d 1264 (2004). Although Debra never admitted striking J.F. on the ear with her paddle, she did admit to investigators that she had struck J.F. three or four times with the paddle the night before his school reported the abuse that spawned the child-in-need-of-care proceeding. Her admission came after initial denials of even spanking J.F. that night. After she admitted spanking J.F., Debra still denied hitting J.F. on the head but told the sheriff that “anything’s possible” when pressed about whether she might have struck J.F. on the head with the paddle. J.F. had purplish to red bruising on and around his left ear, which was also swollen; he also had bruising on his lower back and on his buttocks. Debra said she spanked J.F. that evening because he had taken too long in the bathtub and was generally being defiant, a habit that was becoming more frequent. At the time this occurred, J.F. was 8 years old and in the second grade. A.F., a fourth-grader, was 9, and S.F., a kindergartner, was 5. All three of the children have special needs, and they had been adopted by Joe and Debra after the children had been removed from their biological parents because of abuse and neglect. Debra’s view of the facts on appeal ignores our standard of review, under which we must accept the factual findings of the district court that are supported by substantial evidence, even when there is contrary testimony. For example, Debra contends that she and Joe never spanked the children when angry based on her testimony at the adjudication hearing. This is contrary to statements Debra made to investigators about her state of mind on the night J.F. was struck. As to the injury to J.F.’s ear, Debra notes that she denied having hit him there and cites some evidence that the bruising to the ear appeared to be more recent than the bruising to J.F.’s bottom. She further cites her own testimony where she speculated that J.F.’s ear might have been hurt while playing with A.F. right before going to school. Again, under our standard of review, this does not undermine the factual finding of the district court. Debra admitted to striking J.F. several times with the paddle, even though she had denied it initially. The district court had the opportunity to evaluate the credibility of her denial of striking J.F. on the ear, and the district court also may well have concluded that her “anything’s possible” remark was a tacit admission. Clearly, Debra inflicted substantial physical punishment on J.F. the night before his school reported the abuse. Substantial evidence supports the conclusion that blows struck by Debra caused all of the bruising observed at the local hospital, including to the ear. There was no dispute in the evidence that A.F. and S.F. were living in the same household as J.F. Thus, they would fit within the statutory provision that accords child-in-need-of-care status to children residing in the same home as another child who is abused. Joe and Debra’s citation to T.G. v. Department of Children and Families, 927 So. 2d 104 (Fla. App. 2006), is not persuasive support for their argument that the evidence of their abuse is insufficient. In T.G., the trial court found one child had been physically abused and removed both that child and others residing in the home. The Florida Court of Appeals reversed the finding of physical abuse, holding that evidence of a single, insignificant bruise that arose from corporal punishment did not constitute physical abuse under the Florida statute. 927 So. 2d at 106. Because removal of the other children rested upon the finding of abuse against one child, the appellate court reversed with respect to all of the children. 927 So. 2d at 108. T.G. is readily distinguishable from our case because the injuries to J.F. did not consist of a single bruise, and there were no blows to the head with a blunt instrument in the T. G. case. We do not find Joe and Debra’s citation to cases allowing parental discipline when interpreting the Kansas Protection from Abuse Act, K.S.A. 60-3101 et seq., persuasive here, either. They cite to Barnett v. Barnett, 24 Kan. App. 2d 342, 945 P.2d 870 (1997), and Paida v. Leach, 260 Kan. 292, 917 P.2d 1342 (1996). In Baida, a child received a cut lip from contact with her braces when her father washed her mouth out with soap. Baida suggested that the Protection from Abuse Act was “not intended to dictate acceptable parental discipline” and determined that the civil relief available under that statute should only be available against a parent when more than “a minor or inconsequential injury” has been caused to the child. 260 Kan. at 300-01. Barnett held, based on Baida and the statutory language, that no relief was available under the Protection from Abuse Act when a father used a switch to strike his 13-year-old son, causing welts. 24 Kan. App. 2d at 344, 348, 350-51. While there was some evidence in Barnett of a red area around the eye that might develop into a bruise, the appellate court emphasized that the boy had testified he recalled only being hit hard once and that he was hit on the back. 24 Kan. App. 2d at 348, 351. Neither Baida nor Barnett involved as serious an injuiy or potential injury as took place when Debra struck J.F. And Baida and Barnett interpret a different statute, the Kansas Protection from Abuse Act, with the conduct at issue in those cases straying far from the primary intended purpose of that statute. Those cases are simply not veiy helpful for interpreting the Kansas Code for Care of Children. The Kansas Statute Broviding That a Child Is a Child in Need of Care If Bhysically Abused Brovides Sufficient Guidance to Meet Constitutional Standards. Joe and Debra’s challenge to the constitutionality of the statute presents a legal question over which we have unlimited review, which means that we determine the legal issue independently. State v. Whitesell, 270 Kan. 259, 268, 13 P.3d 887 (2000). A child is a child in need of care if the child “has been physically, mentally or emotionally abused or neglected or sexually abused.” K.S.A. 2005 Supp. 38-1502(a)(3). At the time of the abuse against J.F., physical, mental, or emotional abuse was defined in K.S.A. 2005 Supp. 38-1502(b) as “the infliction of physical, mental or emotional injury or the causing of a deterioration of a child and may include, but shall not be limited to, maltreatment or exploiting a child to the extent that the child’s health or emotional well-being is endangered.” Though not applicable here, since the abuse to J.F. occurred on October 17, 2006, the Revised Kansas Code for Care of Children, which took effect on January 1, 2007, has provisions mirroring the ones at issue in our case at K.S.A. 2006 Supp. 38-2202(d)(3), 38-2202(d)(ll) , and 38-2202(x). Courts apply a two-part test to determine whether a statute is unconstitutionally vague. We first look at whether the statute gives sufficient warning of the prohibited conduct under common understanding. We then consider whether the statute adequately guards against arbitrary enforcement. In re Comfort, 284 Kan. 183, 199, 159 P.3d 1011 (2007). The Kansas Supreme Court addressed a similar issue to the one now before us in In re Brooks, 228 Kan. 541, 618 P.2d 814 (1980). In that case, the court concluded that the provision of the statute then in effect for terminating parental rights under which a parent found “unfit” to have the custody of a “deprived child” (the predecessor term for today’s “child in need of care”) gave sufficient guidance to satisfy constitutional standards. 228 Kan. at 551. Parental fitness seems to us to be an even more generic and malleable concept than that of physical abuse, but Brooks upheld the constitutionality of a parental-fitness standard. The court in Brooks noted that the standards for vagueness are tighter with respect to criminal statutes than with respect to statutes regulating business. 228 Kan. at 544. Thus, the same statutory standard that might give sufficient guidance to constitutionally regulate business conduct might be impermissibly vague to allow criminal penalties for noncompliance. The court in Brooks held that the vagueness standard for a statute involving termination of parental rights would fit in between the tighter standard for criminal statutes and the looser standard for business-regulation statutes. The court in Brooks also noted that prior case law may provide a settled meaning for a statutory phrase, thus providing sufficient certainly as to die statute’s meaning to guide citizen conduct. 228 Kan. at 544. We believe that the statute’s term “physically abused” uses commonly understood words, at least as applied to the facts of this case. There may be cases at the margin in which a closer question would be presented. But striking a child on the ear with a wooden paddle is not a case at that margin, and “[a] statute is not to be struck down as vague only because marginal cases could be put where doubts might arise.” Brooks, 228 Kan. 541, Syl. ¶ 8. When the words of the statute are considered in combination with the procedures used to determine whether physical abuse has occurred, there is even less cause for concern about vagueness. Procedural safeguards and a heightened burden of proof may provide protection against the potential uncertainty of statutory language in actual practice. See In re Detention of Keeney, 169 P.3d 852, 855 (Wash. App. 2007). The statute at issue here has both. First, the Kansas statutory scheme for children in need of care has a number of safeguards against arbitrary enforcement: • Parents have a right to counsel, and counsel will be provided at state expense for those who cannot afford to hire one. K.S.A. 38-1505(b) (replaced effective January 1, 2007, by K.S.A. 2006 Supp. 38-2205[b]). • Proceedings to adjudicate a child in need of care must begin with a detailed petition that provides “the specific facts relied upon” to support the allegations. K.S.A. 38-1531 (replaced by K.S.A. 2006 Supp. 38-2234). • The child may be taken into protective custody on a showing of probable cause, but a court hearing must be held within 72 hours, excluding weekends. K.S.A. 38-1543 (replaced by K.S.A. 2006 Supp. 38-2243). • Formal discovery may be provided by the court when it would help to expedite the proceedings. K.S.A. 38-1545 (replaced by K.S.A. 2006 Supp. 38-2245). • A guardian ad litem, who has an independent duty to investigate the case, must be appointed to represent the child. K.S.A. 2005 Supp. 38-1505(a) (replaced by K.S.A. 2006 Supp. 38-2205[a]). Second, a child is not adjudicated in need of care until evidence is presented at a court hearing, where the burden is on the State to prove its case by clear and convincing evidence. K.S.A. 38-1555 (replaced by K.S.A. 2006 Supp. 38-2250). And the parents have an opportunity, as Joe and Debra have done here, to challenge the constitutionality of the statute on vagueness grounds. If the statute does not give sufficient guidance to give fair notice that the conduct at issue in some future case was prohibited, a court could then hold the statute unconstitutionally vague as actually applied on the facts of that case. We note that a previous, unpublished case upheld a predecessor statute against the challenge brought here, namely that the statutory phrase of “physical, mental or emotional abuse or neglect” was too broad. In re Interest of Ra. B., No. 64,039, unpublished opinion filed June 1, 1990 (Kansas Court of Appeals), affd on other grounds, unpublished opinion filed January 18, 1991 (Kansas Supreme Court). The court there held that the statute used words of commonly understood meaning and that it provided sufficient guidance to prevent arbitrary enforcement. Although unpublished opinions, like In re Ra. B., are not binding as precedents, we have noted In re Ra. B. because a previous panel of the Court of Appeals also found that the statute used commonly understood words and provided sufficient safeguards against arbitrary enforcement. The cases cited by Joe and Debra on this issue are not persuasive. They rely primarily on State v. Meinert, 225 Kan. 816, 594 P.2d 232 (1979). Meinert held that a criminal child-endangerment statute was too vague because its standard of “unjustifiable physical pain” was incapable of fair understanding and application to the parental discipline of children. 225 Kan. at 819. That was a criminal case, however, in which the most rigorous void-for-vagueness standard is applied. Conclusion There is substantial evidence to support the district court’s find ing of serious physical abuse of J.F., and that finding justified the designation of all three children as children in need of care. Further, at least as applied in this case, the statutory standard for physical abuse was sufficiently clear that it satisfied the applicable standard for constitutionality. The judgment of the district court is affirmed.	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The opinion of the court was delivered by Wertz, J.: The plaintiff (appellee) Walter Shufelberger brought this action against Jim Worden, sometimes known as W. A. Worden, defendant (appellant), to recover for personal injuries sustained, by reason of the alleged negligence of the defendant. The allegations of the pleadings will not be narrated. Suffice it to say that plaintiff charged defendant with negligence in certain specified particulars. Defendant answered, charging plaintiff with contributory negligence and assumption of risk. Replies denying the charges were filed by the respective parties. On the issues as joined the cause proceeded to trial to a jury. The following is a very brief summary of the pertinent facts, as supported by the pleadings and the evidence. The defendant purchased an upright piano from an Augusta resident and borrowed a half-ton pickup truck with Fordomatic drive, and in A1 condition, for the purpose of hauling the piano' to his home. Defendant requested plaintiff to assist him in moving the piano to defendant’s residence, a distance of approximately one mile. Plaintiff consented. Plaintiff was to receive no compensation; this was merely a service rendered to accommodate defendant. Both plaintiff and defendant were experienced truck drivers. By way of a rough surface, deep-rutted alley at the rear of the lot they drove onto the premises where the piano was located, backed the truck up to the porch at the rear of the house, and loaded the piano, which weighed 600 to 700 pounds. One of the casters was missing from the piano and the piano was supported at that end by a board. This prevented the piano from being rolled, resulting in the piano’s having to be pushed onto the bed of the. truck. Plaintiff got into the back of the pickup truck for the purpose of steadying the piano, plaintiff being on the right side and the piano on the left side, and the defendant got into the cab of the truck and proceeded to drive away from the porch toward the alley. The distance between the alley and the point where the piano was loaded was about forty-five to fifty-five feet, and the terrain between the house and the alley was rough. Defendant drove about thirty feet, then when he was approximately twenty feet from the alley he “gunned,” or accelerated, the speed of the truck to fifteen or twenty miles an hour. As they approached the alley the plaintiff yelled, “Take it easy!” About that same time, while defendant was in the process of executing a right turn, the truck hit a rut, or ruts, ranging from four to' seven inches deep. The defendant jammed on the brakes, the plaintiff and the piano were thrown out of the truck and the piano landed on plaintiff’s face and head causing him considerable physical injury and the loss of the industrial use of his eyes. James R. Garrison, an Augusta policeman, called as a witness for the plaintiff, testified that upon receiving word of the injury he proceeded to the location and there found a pickup truck in the alley, the truck was facing northwest, and a piano was lying six feet or more to the southwest of the pickup truck bed; that there was a considerable amount of blood on top of the piano; that in the alley there were ruts approximately four inches deep. Garrison’s testimony was corroborated by another policeman and by a Mr. and Mrs. Lietzke who lived immediately west of the place of the accident. All testified that the ruts were four to seven inches deep, plainly observable to anyone. The evidence disclosed that when the defendant came to pick up the piano he drove into the alley on the east side of the ruts, and it was not necessary, as he left, to drive either into or across the ruts. The ambulance driver testified when he arrived at the scene there was no eyeball in one of the plaintiff’s orbital cavities, that he could see the openings of the nose where the nose had been and that the nose and facial skin and flesh were hanging loose below plaintiff’s chin. Lewis Howerter testified on behalf of plaintiff that the defendant admitted to him on the evening after the accident that, “I feel like it was my fault,” and on cross-examination Howerter reiterated the statement made to him by the defendant. Another witness for the plaintiff, Frank Hoover, testified he had been driving the pickup truck and was familiar with the way it performed; that the brakes were in excellent condition and if the brakes were locked the wheels would either stop or slide; that it was a Ford pickup with Fordomatic drive and when the accelerator was stepped on “it really took out.” Hoover had a conversation with defendant relative to how the accident occurred, and defendant told Hoover he guessed he was driving a little bit fast when it happened and that he hit a , ditch. The record revealed that two other witnesses for the plaintiff also had conversations with the defendant in which he told them he threw plaintiff out of the truck and the piano hit him. The plaintiff testified: “The defendant accelerated the pickup truck pretty hard. He gunned it up to about 15 or 20 miles per hour. He gunned it out to the alley.” The record further disclosed that as they approached the alley plaintiff yelled, “Take it easy!” Then the defendant applied the brakes. He applied the brakes right after plaintiff yelled, “Take it easy!” Plaintiff further testified, and quoted the defendant as saying, “I guess I was going too fast when you hallooed, ‘Take it easy!’ I jammed on the brakes.” Defendant also said that he was going too fast when he jammed on the brakes. Defendant testified that in his opinion á piano would not have fallen out under the circumstances if the rate of speed were from three to four miles per hour. Plaintiff, having had prior experience in hauling pianos, testified he did not consider he occupied a dangerous position while riding in the back of the pickup truck and thought he was perfectly safe. The jury returned a general verdict in favor of the plaintiff and at the same time, in answer to special questions submitted to them by the court, found the defendant was guilty of negligence in driving without due regard, to the condition of the roadway and without due regard to the safety of the plaintiff; that the minimum speed of defendant’s truck immediately prior to and at the time of the accident was ten miles an hour; and that the plaintiff was free from negligence. From an order overruling defendant’s post-trial motions he appeals. Defendant first contends that the verdict and the answers to the special questions were not supported by substantial evidence. Defendant concedes that he is familiar with the many decisions to the effect that this court will not invade the province of a jury and set aside answers to the special questions, and likewise a general verdict, where there is any substantial evidence to support them; however, defendant contends that the verdict and the answers to the special questions in the instant case were based upon mere conjecture. No useful purpose would be served in reiterating the mentioned facts or narrating other evidence contained in the record. Suffice it to say there was ample evidence to show negligence on the part of the defendant and to justify the trial court’s overruling defendant’s motion for a directed verdict at the close of all the evidence; moreover, there was sufficient competent evidence to sustain the general verdict and the answers to the respective special questions finding negligence on the part of defendant as the proximate cause of plaintiffs serious injuries. Defendant argues in his brief that the basic legal principle involved in this appeal is that one who voluntarily submits himself to a known hazard cannot recover for injury arising out of his assumed risk, and although contributory negligence is an affirmative defense, where the evidence discloses that plaintiff was guilty of contributory negligence as a matter of law, he cannot recover. Defendant contends that when the plaintiff got into the truck to support the piano plaintiff assumed the risk and therefore was guilty of contributory negligence as a matter of law, thus barring his recovery. It is not in every instance where one exposes himself to a known danger and injury results that he is denied a right to recover, but only in that class of cases where the danger is so obvious and imminent that an ordinarily prudent person under like circumstances would not subject himself to it. Danger may lurk in any condition and yet may not be of such character that men of ordinary prudence would hesitate to expose themselves thereto. The danger therefrom must be such that knowledge, or imputed knowledge thereof, would cause an ordinarily prudent person to appreciate the risk therefrom. The principle is too well established to require a citation of authorities to support it, that mere knowledge of the danger of doing a certain act without a full appreciation of the risk involved is not sufficient to preclude a plaintiff from recovery, even though there may be added to the knowledge of danger a comprehension of some risk. Mere knowledge of the offending instrumentality does not constitute contributory negligence as a matter of law. (Wainscott v. Carlson Construction Co., 179 Kan. 410, 295 P. 2d 649.) It must be remembered that both plaintiff and defendant were truck drivers with many years of experience; that plaintiff had previously engaged in the moving of household goods; that it was plaintiff’s testimony he did not consider he occupied a dangerous position while riding in the back of the pickup truck; that he thought he was perfectly safe; that he did not deem it unsafe to haul a piano that was not tied down in any way; and that he did not anticipate any danger. With an experienced driver plaintiff had a right to rely on the fact that the defendant would drive carefully because of the rough condition of the terrain leading to the alley, and especially into the alley where the deep ruts existed. Plaintiff was not required to anticipate that such an experienced driver as the defendant would, in the course of forty-five to fifty-five feet, accelerate or “gun” the pickup truck to a rate of fifteen to twenty miles an hour when he had full knowledge that the plaintiff and the 700-pound piano were in the bed of the truck. Whether under the circumstances the plaintiff, as an experienced truck driver and moving man, exercised due care was a proper question to be submitted to the jury. This is the type of action in which every party is entitled to a trial by jury as a matter of right, and it should not be converted into a trial by the court. Negligence is the lack of due care. The instances are relatively rare when the facts are such that the court should say that as a matter of law the negligence alleged has been established, before the court should make such a holding the evidence should be so clear that reasonable minds, considering it, could have but one opinion, namely, that the party, was negligent. (Lawrence v. Kansas Tower & Light Co., 167 Kan. 45, 49, 204 P. 2d 752.) In the instant case we think the contributory negligence of the plaintiff, if any, was clearly a question of fact for the jury. We shall next consider the doctrine of assumption of risk and its application to the facts in the instant case. While assumption of risk is somewhat akin to contributory negligence, these two doctrines of law are not synonymous because contributory negligence arises out of a tort while assumption of risk arises out of an implied contract. Contributory negligence is a matter of conduct. The essence of contributory negligence is carelessness while the essence of assumption of risk is venturousness and embraces a mental state of willingness. Since there may be a voluntary assumption of risk of a known danger, even though the plaintiff exercises due care, the doctrine of assumed risk is applicable even though the person injured was in the exercise of ordinary care. Contributory negligence is based upon the premise of the plaintiff failing to use due care and being negligent, thus falling below the standard to which the plaintiff should conform for his own protection. (Kleppe v. Prawl, 181 Kan. 590, 313 P. 2d 227, 63 A. L. R. 2d 175; 38 Am. Jur., Negligence, § 172, p. 847; 65 C. J. S., Negligence, § 117, p. 709; Sherman & Redfield on Negligence, Vol. 1, § 135, p. 328.) In Blackmore v. Auer, 187 Kan. 434, 444, 357 P. 2d 765, it is said: “Assumption of risk, in the law of master and servant, is a phrase commonly used to describe a term or condition in the contract of employment, either express or implied from the circumstances of the employment, by which the employee or servant agrees that certain dangers of injury, while he is engaged in the service for which he is hired, shall be at the risk of the employee or servant. (56 C. J. S., Master and Servant, § 357, pp. 1148, 1149.) “In Railway Co. v. Bancord, 66 Kan. 81, 71 Pac. 253, it was said: “ ‘. . . But, reduced to its last analysis, the doctrine of assumed risk must rest for its support upon the express or implied agreement of the employee that, knowing the danger to which he is exposed, he agrees to assume all responsibility for, resulting injury. To raise an implied agreement the risk assumed must be known to the employee, or it must be of such nature as, by the exercise of reasonable observation and caution for his own safety, he should have known it. It can never be said that one has agreed to assume responsibility for that of which he had no knowledge, or of the existence of which he is not.chargeable with notice! (p. 88.)” . In Perry v. Schmitt, 184 Kan. 758, 762, 339 P. 2d 36, we held that “The defense of assumption of risk is generally confined to master and servant situations. We have never applied the doctrine as a defense to an action arising under the guest statute, and we are not disposed to do so now.” Without further detailing the testimony we are of the opinion the record before us negates the presence of assumption of risk. In the instant case the defendant failed to show that there was any employer-employee relationship or any contractual relationship, express or implied; nor can it be found in the record that plaintiff received any benefit from the transaction, and in order for assumption of risk to be a defense one or more of the aforementioned conditions must exist. Defense counsel cite no authority where the defense of assumption of risk has been applied in a tort action such as the instant case, and in our limited research we have failed to discover any such authority. Plaintiff was acting purely for the benefit of the defendant, and the defense of assumption of risk is not applicable under the facts in the instant case. In view of what has been said, the judgment of the trial court is affirmed. It is so ordered.	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The opinion of the court was delivered by Parker, C. J.: This is a workmen’s compensation case brought by the claimants, the widow (Darlene Landes) and two minor children (Donna D. and Brenda M. Landes) of a deceased workman (Harvey Landes), against the decedent’s employer. R. L. Smith is named as the employer and respondent and the Exchange Casualty and Surety Company is named as the insurance carrier. An appeal was taken to the district court by the insurance carrier from the award of the Commissioner finding and denominating it to be the insurance carrier. The district court found there was no record that the insurance carrier had notice of the hearings held before the Workmen’s Compensation Examiner on November 17 and December 8, 1960; no evidence taken with respect to the validity of the insurance policy; and then rendered a judgment wherein it remanded the case to the Workmen’s Compensation Commissioner “to determine the equitable defense raised by the insurance carrier, namely: of the existence or not of a valid insurance policy at the time of the accident.” All parties involved have appealed from the judgment of the district court. For the purpose of avoiding the confusion which will arise if we attempt to designate such parties as appellants and cross-appellees, appellant and cross-appellee and appellee and cross-appellant, they will be identified as their names appear in the award of the Workmen’s Compensation Commissioner. As neither the amount nor the propriety of the award is questioned, so far as it affects the employer, it will be necessary for us to review only such facts as reflect on the liability of the Exchange Casualty and Surety Company as tire insurance carrier. The employee was injured from an accident occurring between 6:15 and 6:45 a. m. on July 12, 1960. He died at 7:50 a. m. of the same day. Notice of claim and application for hearing were served on the employer September 16, 1960, and a copy was mailed to the Workmen’s Compensation Commissioner. The case was set for hearing on November 10, 1960, and continued for hearing to November 17, 1960, before one of the Workmen’s Compensation Examiners. On the date last mentioned claimants’ counsel requested, and procured, permission to include the name of the Exchange Casualty and Surety Company on the claim with their agent being Felton T. Payne. On the question of notice to the insurance carrier John R. Fisette, the employer’s counsel, made the following statement: “I have a typewritten letter, sent to the agent, Mr. Felton T. Payne, 907 North Eighteenth Street, Kansas City, Kansas, dated as of October 13, 1960, as agent for Exchange Casualty of Detroit, In re Darline Landes et al. versus R. L. Smith, d/b/a R. L. Movers, Docket No. 39,187. ‘Dear Sir: As per your telephone request as of this date I am forwarding for your consideration, notification of suit before the Workmen’s Compensation Commissioner and also the notice of hearing setting this matter for hearing on Thursday, the 10th day of November, 1960, at 1:30 p. m. I have visited briefly with Mr. Smith relative to this and he advises me that he has a standard Workmen’s Compensation employer’s Liability Policy and the number is W. C. 1278, with the Exchange Casualty and Surety Company and this is a report as required by the policy, of accident involving the death of this employee as above mentioned. Your consideration given this matter will be greatly appreciated and I will await your reply. Yours truly, John R. Fisette, Attomey-at-Law.’ I sent that letter.” Statement of the Examiner: “What was the date of the letter? “John R. Fisette: October 13, 1960, sent it by the U. S. Mail and received no reply; that was the agent that issued the policy. I take it that that is notice that there is a matter pending before this Commission.” As no appearance was made for the insurance carrier at the hearing on November 17, 1960, further hearing of the cause was continued to December 8, 1960, and held on that date although the insurance carrier was not represented. At this hearing the insurance policy in question was introduced as an Exhibit showing the policy period to be from July 12,1960, to July 12,1961,12:01 a. m. standard time at the address of the insured. The extent of the coverage under its terms is not in dispute. There was evidence the policy had not been cancelled and was in full force and effect at the time of the hearing. The examiner found that the insurance carrier had notice of the proceedings and made an award against the respondent employer and his insurance carrier, the Exchange Casualty and Surety Company. This award was approved by the Workmens Compensation Commissioner on the 4th day of January, 1961. Thereafter, and on January 20, 1961, the insurance carrier filed its notice of appeal to the district court. The action taken by the district court has been heretofore stated and will not be repeated. At the outset we are met with the insurance carrier’s challenge of the right of the employer to be heard for the reason that he did not comply with Rule 5 of this court by filing separate specifications of error. The employer filed the first appeal from the judgment of the district court and subsequent appeals were filed by the claimants and the insurance carrier in the order noted. The employer did not file an abstract but did file with this court a written instrument, accepting and concurring in the abstract filed by claimants. Claimants’ abstract does contain specifications of error complying with the requirements of Rule 5. It would serve no useful purpose to discuss the question as to whether or not the employer in accepting and concurring in the abstract filed by claimants, also accepted and concurred in the specifications of error contained in such abstract. Both the employer and the claimants present the same contentions and make like arguments in their separate briefs. Therefore, eliminating the employer from this appeal would neither enlarge nor diminish the legal questions to be considered by this court on appellate review. The claimants and the employer contend that the district court erred in remanding the case to the Workmen’s Compensation Commission for further proceedings. This contention has merit and must be upheld. The Workmen’s Compensation Act provides its own appeal procedure. The district court on appeal considers the matter de novo upon the record taken by the Commissioner; it weighs the evidence and is required to consider the case as if it were one of first impression; and its jurisdiction in compensation cases is simply its power to grant or refuse compensation or to increase or diminish any award made by the Commissioner as justice may require. See, e. g., Coble v. Williams, 177 Kan. 743, 282 P. 2d 425; Neff v. Henry Wagner Transport Co., 177 Kan. 738, 281 P. 2d 1109; Place v. Falcon Seaboard Drilling Co., 186 Kan. 523, 527, 350 P. 2d 788. This court has interpreted G. S. 1959 Supp., 44-556, covering appeals in Workmen’s Compensation cases. In Attebery v. Griffin Construction Co., 181 Kan. 450, 312 P. 2d 598, we said: “Under the provisions of the Workmen’s Compensation Act the district court has no authority to remand a case to the Commission for further proceedings . . .” (p. 461.) More recently in Fleming v. National Cash Register Co., 188 Kan. 571, 363 P. 2d 432, we held: “The workmen’s compensation act prescribes its own procedure for a judicial review of proceedings had before the compensation commission, and on appeal the district court has no jurisdiction to remand the cause to the compensation commissioner to admit further evidence theretofore rejected or ignored by the commissioner; nor is the court authorized to hear evidence supplementing the record shown by the transcript or to grant a trial de novo.” (Syl. fl.) The insurance carrier concedes that this court has laid down the rule that district courts have no authority to remand a case to the Commissioner of Workmen’s Compensation for further proceedings. It contends, however, that the district court did not err in remanding this case to the Workmen’s Compensation Commissioner under the facts presented by the record to avoid a multiplicity of litigation. It insists that this case is more akin to the factual situation found in Willis v. Skelly Oil Co., 135 Kan. 543, 11 P. 2d 980. The Willis case is not authority for remanding a case to the Workmen’s Com pensation Commissioner. In that case the Commissioner limited the evidence presented to a single issue bearing on the question of the claimant having made the necessary demand required by statute, and refused to receive evidence on any other question. In the case at bar the Commissioner received all the evidence submitted and made findings on all of the issues. The opinion in the Willis case makes it crystal clear that under circumstances outlined in the preceding sentence a district court, on an appeal from a compensation award, has no power or authority to remand the case back to the Commissioner for further proceedings. We next have for consideration the question of notice. The Workmen’s Compensation Commissioner found “That the insurance carrier had notice of these proceedings.” The district court found that “In the immediate case there is no record that the insurance carrier had notice of the hearing held on November 17th or of the hearing held on December 8,1960, and was not present at that time.” The claimants and the employer contend that the insurance carrier was notified of the pendency of the claim for compensation. The insurance carrier contends that there is no evidence that the insurance carrier had notice of the proceedings. Confronted with the conflicting findings on the matter as made by the Workmen’s Compensation Commissioner and the district court, we must examine the record. It should be noted that it is not within the province of this court to weigh evidence. However, the question of whether a judgment in a workmen’s compensation case is supported by substantial, competent evidence is a question of law, as distinguished from a question of fact. (Holler v. Dickey Clay Mfg. Co., 157 Kan. 355, 139 P. 2d 846; Pinkston v. Rice Motor Co., 180 Kan. 295, 303 P. 2d 197.) There is no dispute as to the essential facts as to what took place in connection with notice to the insurance carrier. There being no dispute as to the essential facts, whether or not the record discloses notice to the insurance carrier of the hearing is clearly a question of law. (Dorst v. City of Chanute, 185 Kan. 593, 345 P. 2d 698.) The only evidence of notice of the hearing to the insurance carrier must be found in the statement of the attorney for the employer that on October 13, 1960, he sent by U. S. Mail to the agent of the Exchange Casualty and Surety Company the letter, heretofore set out, informing him, pursuant to his telephone request, as to the date the initial hearing was set, i. e., November 10, 1960. As read, the letter was made a part of the record. The insurance carrier makes no denial of the receipt of the letter but contends that the statement of counsel does not constitute proof of notice, and further that it was not given notice of the hearing set for November 17, 1960, and the hearing held on December 8, 1960. The claimants and the employer contend that the facts stated constitute notice to the insurance carrier and proof of such notice. The claimants and the employer further contend that the insurance carrier is bound by the results of the hearing under G. S. 1959 Supp., 40-2212, even though it did not receive notice of such hearings. We will first consider this contention. A brief review of the applicable statutes is necessary. The employer is required to secure compensation to his employees either by insurance or proof that he is financially able to carry his own risk. (G. S. 1949, 44-532.) Where the security is by way of insurance the form and contents of the insurance policy is covered by G. S. 1949, 44-559. Among other things, this section provides for an agreement which reads: “Every policy of insurance against liability under this act shall be in accordance with the provisions of this act and shall be in a form approved by the commissioner of insurance. Such policy shall contain an agreement that the insurer accepts all of the provisions of this act, that the same may be enforced by any person entitled to any rights under this act as well as by the employer, that the insurer shall be a party to all agreements or proceedings under this act, and his appearance may be entered therein and jurisdiction over his person may be obtained as in this act provided, and such covenants shall be enforceable notwithstanding any default of the employer.” G. S. 1949, 44-534, provides that if compensation cannot be settled by agreement between the employer and the employee then “. . . either party may in writing apply to the commissioner for a determination of the compensation due or claimed to be due, . . . and the commissioner shall forthwith mail a certified copy of said application to the adverse party and proceed, upon due and reasonable notice to the parties which shall not be less than twenty (20) days, to hear all evidence in relation thereto and to make findings concerning the amount of compensation, if any, due to the employee.” It should be noted that the provisions of the statute just quoted recognize only the employer and employee insofar as notice is required. All of the above mentioned sections of the statutes were enacted in 1927. Later, and in 1951, G. S. 1959 Supp., 40-2212, was enacted. The first sentence of this section reads: “Every policy issued by any insurance corporation, association or organization to assure the payment of compensation, under the workmen’s compensation act, shall contain a clause providing that between any employer and the insurer, notice to and knowledge of the occurrence of injury or death on the part of the insured shall be notice and knowledge on the part of the insurer; and jurisdiction of the insured shall be jurisdiction of the insurer and the insurer shall be bound by every agreement, adjudgment, award, or judgment rendered against the insured. . . .” (Emphasis supplied.) This statute definitely provides that “jurisdiction of the insured (employer) is jurisdiction of the insurer.” Jurisdiction over the person implies notice. Therefore, notice to the employer of the hearing is notice to the insurance carrier. No decisions are cited dealing directly with implied notice and we have found none. However, there are decisions which go much farther and hold that the insurance carrier is bound by the judgment entered in the proceedings even though not made a party. See, e. g., Standard Surety & Cas. Co. v. Standard Acc. Ins. Co., 104 F. 2d 492, where tire United States Circuit Court of Appeals, after reviewing pertinent provisions of the Kansas Workmen s Compensation Act including 44-559, supra, which was quoted in its opinion at length, said: “. . . Therefore, in the proceedings brought by Susie Evans, the widow of Joe Evans, before the Commissioner of Workmen’s Compensation, the appellant [insurance carrier] was as much a party as though expressly named therein, and was bound by the final judgment entered in those proceedings.’’ (p. 495.) “. . . The contention that the appellee’s equity is insufficient to entitle it to subrogation because the appellant was deprived of its day in court in the compensation case, is without merit, since, by the appellant’s own policy and under the law of Kansas, jurisdiction of its insured was jurisdiction of it, and there was nothing to prevent it from appearing in that case if it had seen fit to do so. . . .” (p. 497.) See, also, Ramsey v. Kramer Motors, Inc., 155 Neb. 584, 52 N. W. 2d 799. In that case, after giving consideration to sections of its statutes similar to those to which we have heretofore referred, the Supreme Court of Nebraska said: “In a workmen’s compensation case the insurance carrier is bound by a judgment against the insured whether the carrier is a party to the action or not.’’ (Syl. IT I.) In the case at bar no one contends, in fact it is not even suggested, that, as between the claimants and the employer, the record discloses anything wrong with the Commissioner’s award in favor of claimants and against the employer. Faced by such a record the district court was required to approve such award and render judgment for claimants against the employer. Moreover, in the face of the same record, under our statutes and the decisions to which we have just referred, it was required to sustain the Commissioner’s award against the insurance carrier and render judgment accordingly. What has been heretofore stated and held makes it obvious it is neither necessary nor required that we give further consideration to, or here determine, questions raised by the parties respecting the propriety of the notice given to the insurance carrier of the hearing to be held by the Examiner on November 10, 1960. One other question merits attention. The insurance carrier contends there was failure of proof of the existence of a valid policy of insurance at the time the accident occurred. The policy of insurance was introduced in evidence. It indicated the policy period from July 12, at 12:01 a. m., 1960, to July 12, 1961, at 12:01 a. m. This was the only evidence of the policy and other evidence, establishing that the accident resulting in the death of the workman occurred within that period of time was uncontroverted. The district court on appeal could not indulge in assumptions affecting the validity of the policy and the insurance carrier could not for the first time inject the question of the validity of such instrument before that tribunal on appeal. The claimants in this, or any other, workmen’s compensation appeal should not be required to stand by while the employer and the insurance carrier settle their personal disputes with respect to such matters. See our recent decision in Hobelman v. Krebs Construction Co. (decided November 10, 1961), 188 Kan. 825, 366 P. 2d 270, where it is held: “The primary purpose of the Workmen’s Compensation Act is to expeditiously provide an award of compensation in favor of an injured employee against all persons who may be liable therefor. As to questions concerning the responsibility for payment under this general liability, the employee is not concerned. Such questions are to be resolved by a court in an independent action unless otherwise specifically provided by statute.” (Syl, ¶ 5.) The judgment of the district court is reversed with instructions to enter judgment in harmony with the award made by the Workmen’s Compensation Commissioner.	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Greene, J.: Schwan’s Food Manufacturing, Inc., and its insurer, Hartford Accident & Indemnity Co., (collectively Schwan’s) appeal the decision of the Kansas Workers Compensation Board (Board) in its work disability award to employee Rafaela Zepeda Deguillen, arguing (i) the employee’s failure to make a good faith effort to retain her employment should bar a work disability award; (ii) the award was calculated in a manner contrary to the applicable statute; and (iii) the order to pay unauthorized medical expenses was contrary to the applicable statute. We affirm Deguillen’s eligibility for and the Board’s calculation of a work disability award, but we reverse the Board’s award of unauthorized medical expenses. Factual and Procedural Background Deguillen was injured in October 2003, complaining of pain reaching into her upper arm, shoulder, and neck. She was put on light duty until she was placed in an accommodated position in May 2005. Schwan’s argues that she was uncooperative following her injury and throughout attempts to accommodate her employment. On June 6, 2005, Deguillen was terminated by a letter from her supervisor stating: “It is with deep regret that I must inform you that Schwan’s has decided to terminate your employment. Our decision is based on the fact that we are unable to reasonably accommodate your work restrictions. Your termination will be effective June 6, 2005. All pay, benefits and other entitlement from your employment will be computed on that basis.” In November 2005, an independent medical examination ordered by the administrative law judge (ALJ) resulted in an opinion of 15% permanent partial impairment of function of the body as a whole and in the following work restrictions: “It will be necessary for her to permanently avoid work that involves movement of the left hand above shoulder level or for frequent reach away from the body more than 15 inches. No hiring should be done at areas more than 15 inches away from the body. Lifting with the left hand between waist and chest level should be limited to 10 pounds occasionally, 5 pounds frequently. She should avoid frequent grasp activity such as is necessary with operation of pliers, scissors and similar hand tools. She should avoid vibrating hand tools. She should avoid frequent flexion and extension of the left wrist greater than 30 degrees.” The ALJ concluded “that no amount of accommodation would have returned Claimant to work.” The ALJ denied permanent partial work disability benefits because Deguillen “failed to exercise a good faith effort to return to work or to find alternative replacement employment.” The ALJ noted the company used a “form letter” to terminate Deguillen but Schwan’s “indeed could have, and would have, accommodated Claimant had she continued to work.” The ALJ also denied reimbursement of claimant’s expenses for Dr. Murati’s unauthorized medical expenses. The ALJ concluded Deguillen had a 14% whole body functional impairment, and awarded her 58.10 weeks of permanent partial disability for a total of $17,155.19 for a 14% functional disability, but denied her a work disability award. Deguillen timely applied for review by the Board. The Board affirmed in part, reversed in part, and modified the ALJ’s award in the following manner: “58.10 weeks of permanent partial disability compensation at a rate of $295.27 per week or $17,155.19 for a 14 percent functional disability followed by 253.15 weeks of permanent partial disability compensation at the rate of $297.53 per week or $75,319.72 for a 75 percent work disability, making a total award of $92,474.91. “As of February 6, 2007 there would be due and owing to the claimant 58.10 weeks of permanent partial disability compensation at the rate of $295.27 per week in the sum of $17,155.19 plus 87.28 weeks of permanent partial disability compensation at the rate of $297.53 per week in the sum of $25,968.42for a total due and owing of $43,123.61, which is ordered paid in one lump sum less amounts previously paid. Thereafter, the remaining balance in the amount of $49,351.30 shall be paid at the rate of $297.53 per week for 165.87 weeks or until further order of the Director. “The claimant is also entitled to $500 in unauthorized medical.” (Emphasis added.) In large part, the Board based its findings and conclusions on: (1) The termination letter stating Deguillen was fired because Schwan’s could not accommodate her restrictions without any mention of her “lack of effort”; (2) there was no evidence presented “that the break crew job represented a job at comparable wages . . . [t]hus, it would be difficult to conclude that claimant abandoned a position that paid at least 90 percent of her preinjuiy average weekly wage”; and (3) Dr. Mills’ recommendations for claimant, which did not include one of the tasks that was part of the so-called accommodated break crew job. Schwan’s has timely appealed. Standard of Review An appellate court’s scope of review on a question of fact arising from an administrative proceeding is defined by die Kansas Act for Judicial Review and Civil Enforcement of Agency Actions. K.S.A. 77-621(c)(7) provides that the court shall grant relief only if an agency action is based on a determination of fact, made or implied, that is not supported by evidence that is substantial when viewed in light of the record as a whole. Substantial evidence in the workers compensation context is evidence possessing something of substance and relevant consequence to induce the conviction that an award is proper; it furnishes a basis of fact from which an issue can be resolved reasonably. The court reviews the evidence in the light most favorable to the prevailing parly and does not reweigh competing evidence or assess the credibility of witnesses. Graham v. Dokter Trucking Group, 284 Kan. 547, Syl. ¶ 1, 161 P.3d 695 (2007). Is the Board’s Work Disability Award Supported by Evidence that is Substantial When Viewed in Light of the Record as a Whole? Schwan’s argues that despite its letter of termination indicating inability to accommodate Deguillen’s restrictions, she should be barred from a work disability award by reason of her failure to exhibit good faith to retain her employment, citing K.S.A. 44-510e(a) and, among other published authorities from our court, Mahan v. Clarkson Constr. Co., 36 Kan. App. 2d 317, Syl. ¶ 2, 138 P.3d 790, rev denied 282 Kan. 790 (2006). The good faith rule had its genesis in Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995), where this court construed K.S.A. 44-510e(a) to required a good faith effort by an employee to retain or find employment within his or her work restrictions after an injury. The purpose of the good faith rule is to prevent employees from taking advantage of the workers compensation system. Cavender v. PIP Printing, Inc., 31 Kan. App. 2d 127, 132, 61 P.3d 101 (2003). The record indeed contains evidence that Deguillen was less than cooperative in retaining her employment after the injury. As summarized by Schwan’s, “[s]he repeatedly demonstrated an unwillingness to cooperate with coworkers and supervisors after her injury in October 2003. On several occasions, while assigned to the return to work pool, employees found her sitting in the break room drinking coffee after her shift began. When asked to return to work, she was uncooperative. Claimant was caught leaving work at the beginning of her shift without approval. When her supervisor met with her to discuss a tardiness issue, she became confrontational and told him he ‘was full of it’ resulting in a written warning for misconduct. Claimant also failed to report to the first aid station as required by company policy. When confronted, she lied and claimed the nursing staff excused her absence. Claimant did not put forth a good faith effort to maintain her employment, a fact which was clearly demonstrated by her repeated disciplinary problems while on light duty.” The Board acknowledged the good faith rule of Foulk but rejected Schwan’s argument here, finding that “she was reporting to work and at no time did [Schwan’s] commence progressive discipline against her” and concluding there were three “flaws” in Schwan’s argument: “First, there is no evidence that the break crew job represented a job at comparable wages. All the record shows is that the job was for 5-Vz hours per day, nothing more. Thus, it would be difficult to conclude that claimant abandoned a position that paid at least 90 percent of her preinjury average weekly wage. . . . “Second, while Dr. Mills concluded claimant was capable of performing the accommodated bréale crew job if the fill position was omitted from her rotation (as that job exceeded her reaching restrictions), [Schwan’s] own representatives testified that this break crew job contemplated someone who was able to do all 4 of the job rotations and not just 3. And while they could accommodate those restrictions for a period of weeks, they could not do so for much more than a month. Thus, claimant’s accommodation was not permanent or longstanding. “Third, [Schwan’s] terminated claimant from the break crew position. Although [Schwan’s] argues that it terminated claimant because she essentially wasn’t putting forth an earnest effort at the job, the termination letter to claimant by [Schwan’s] clearly indicates it can no longer accommodate her restrictions. The letter says nothing about her lack of effort. [Schwan’s] own writing clearly indicates it is no longer able to accommodate claimant’s restrictions.” Regardless of whether the position from which Deguillen was terminated was a permanent job within her restrictions and at a comparable wage, the principal issue in this appeal is whether she was terminated because Schwan’s refused to accommodate her restrictions or because she exhibited no good faith to retain that job. On this issue, we agree with the Board in focusing on the letter of termination from Schwan’s; there is no indication from that letter that Deguillen was terminated for cause or for her lack of good faith. Schwan’s argues on appeal that the letter was a “form” letter and was erroneous in stating the reason for termination, but we cannot disagree with the Board, which obviously weighted that evidence rather heavily on the principal issue. Our standard of review is to review the factual basis for the Board’s order to determine if it is “supported by evidence that is substantial when viewed in light of the record as a whole,” K.S.A. 77-621(c)(7), but that standard does not allow us to reweigh the evidence. A letter of termination to an employee stating the basis of termination is substantial evidence of the reason for termination and maybe overcome only in the rarest of cases. Here, as the Board noted, there was evidence that Deguillen consistently reported to work after her injury and there was only one documented instance of a discipline problem that could be construed as bad faith. If an employer intends to argue that a work disability award is barred by the bad faith of the employee, any documentation of termination should be consistent with, not contrary to, the employee’s lack of good faith as a basis for termination. We conclude the Board’s determination that Deguillen was entitled to a work disability award is adequately supported by the record and must be affirmed. Did the Board Err in Calculating the Award? Schwan’s next argues the Board erred in calculating the award insofar as it exceeded the allowable limit imposed by K.S.A. 44-510e. The argument is articulated by Schwan’s as follows: “[T]he Board utilized an unreasonable calculation method that nullifies the effect of Claimant having worked for 86.43 weeks at comparable wagesa period during which, according to statute, she is not entitled to receive a PPGD [permanent partial general disability] rating in excess of her 14% functional impairmentand reached a decision contrary to statute. “. . . The effect of the statute’s proscription that the permanent partial general disability percentage for any weeks working at comparable wages (here, 86.43 weeks) cannot be higher than the Claimant’s functional impairment rating has been eviscerated by the Board’s calculation. Claimant received the same number of award weeks as if she had suffered a 75% work disability beginning the first day after her injury.” K.S.A. 44-510e(a)(l) contemplates an award that is a multiple of three factors: (wage rate at % preinjuiy gross wage) times (eligible weeks at 415 less all but 15 of the weeks where temporary total disability was paid) times (% permanent partial general disability rating [PPGD]). The issue framed by Schwan’s is how to address the period of accommodation at comparable wages; should this period be deducted from the eligible weeks factor? Our answer is no; the statute does not contemplate further adjustment of this factor in the event of some accommodated weeks following injury. The statutory proscription referenced in Schwan’s argument is stated at K.S.A. 44-510e(a): “An employee shall not be entitled to receive permanent partial general disability compensation in excess of the percentage of functional impairment as long as the employee is engaging in any work for wages equal to 90% of more of the average gross weekly wage that the employee was earning at the time of the injury.” Schwan’s argues that to honor this statutory proscription, the PPGD percentage should be applied to 86.43/415 weeks and for the remaining 328.57/415 of the time period, the wage loss of 75% should be applied to yield a blended PPGD percentage of 62.3% for 415 weeks. Because we do not understand the statute to require such an adjustment or “credit” for accommodated weeks, we disagree with Schwan’s and note that we have previously endorsed a calculation like the one here in Bohanon v. U.S.D. No. 260, 24 Kan. App. 2d 362, 369-70, 947 P.2d 440 (1997). Although Schwan’s argues that the Board’s approach discourages an employer to attempt accommodated employment for an injured worker with restrictions, we disagree. Schwan’s approach would encourage accommodated employment to be terminated after 415 weeks (having reached the maximum “credit”) and leave the worker without any eligibility for work disability, rather than encourage accommodated employment to rehabilitate the worker and accommodate the worker’s disabilities and return to gainful employment. See Hughes v. Inland Container Corp., 247 Kan. 407, 416, 799 P.2d 1011 (1990). So long as the worker is provided an accommodated position with a comparable wage, the employer benefits by the potential reduction in benefits by reason of no work disability. See Griffin v. Dodge City Cooperative Exchange, 23 Kan. App. 2d 139, 147-48, 927 P.2d 958 (1996), rev. denied 261 Kan. 1084 (1997). In other words, the encouragement should be for long-term sustained rehabilitative accommodation rather than a short-term “credit” to the total benefits payable by the employer. Here, the Board honored the statutory formula and the allowable maximum in its award to Deguillen, and we conclude the calculation should be affirmed. Did the Board Violate K.S.A, 2006 Supp. 44-510h(b)(2) in Ordering Reimbursement of Unauthorized Medical Expenses? Finally, Schwan’s argues that the Board’s order of reimbursement of Deguillen’s unauthorized medical expenses up to $500 violated K.S.A. 2006 Supp. 44-510h(b)(2), which provides: “Without application or approval, an employee may consult a health care provider of the employee’s choice for the purpose of examination, diagnosis or treatment, but the employer shall only be hable for the fees and charges of such health care provider up to a total amount of $500. The amount allowed for such examination, diagnosis or treatment shall not be used to obtain a functional impairment rating. Any medical opinion obtained in violation of this prohibition shall not be admissible in any claim proceedings under the workers compensation act.” Here, Deguillen consulted Dr. Pedro Murati initially for an examination, but he subsequently asked Dr. Murati for an impairment rating letter based upon the prior examination. Schwan’s argues this was an attempt to circumvent the statute by artificially separating the exam from the requested and prohibited impairment rating, thus gaining the advantage of the $500 allowance for an improper purpose. We agree. K.S.A. 2006 Supp. 44-510h(b)(2) is clear: When an employee consults his or her own health care provider, the expense of an examination, diagnosis, or treatment is eligible for reimbursement up to $500, but “[t]he amount allowed . . . shall not be used to obtain a functional impairment rating.” It is obvious to this court that an employee’s physician cannot provide an impairment rating without an examination; if an impairment rating is sought based upon a prior examination for which the employee seeks reimburse ment, the unauthorized medical allotment has been used for an improper purpose, in contravention of the statute. Here, the Board admitted that “it might appear that the claimant is doing indirectly what is directly prohibited by statute, namely obtaining a rating report at respondent’s expense,” but it approved the reimbursement relying on Castro v. IBP, Inc., 29 Kan. App. 2d 475, 30 P.3d 1033 (2001). We distinguish Castro, however, because there the opinion on functional impairment was never made part of the record. Here, the Murati impairment rating was made a deposition exhibit, discussed in the deposition, and was considered and referenced by the Board in its discussion of functional impairment. We hold that in order for an unauthorized medical examination to be eligible for reimbursement under K.S.A. 2006 Supp. 44-510h(b)(2), no impairment rating based upon that examination may be made a part of the record, upon penalty that the examination expense may not be reimbursed. In order for an unauthorized medical examination to be eligible for reimbursement under K.S.A. 2006 Supp. 44-510h(b)(2), no impairment rating may be solicited from that physician either as a part of the initial engagement or thereafter. Although employees are not prohibited from seeking independent advice on work-related injuries and may seek reimbursement for up to $500, the clear intent of the legislature is to prohibit such funds being applied to an improper impairment rating. We conclude the Board erred in awarding $500 in unauthorized medical expenses under these circumstances and reverse this aspect of the Board’s order. In summaiy, we affirm Deguillen’s eligibility for a work disability award together with the Board’s calculation of that award. We reverse the Board’s award of $500 in unauthorized medical expenses. Affirmed in part and reversed in part.	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Buser, J.: This is an inverse condemnation action brought by George R. Isely, as Trustee of the Mildred L. Isely Trust, et al. (Lessors), against the City of Wichita (City), regarding land owned by the Lessors and leased to Starr Holdings, L.L.C. (Lessee). The Lessors filed suit against the City seeking payment of just compensation as a result of the City’s construction and maintenance of a roadway and utilities on the land pursuant to an easement granted by the Lessee. Both the Lessors and the City filed motions for summary judgment. The district court granted summary judgment in favor of the City, and the Lessors appeal. We reverse and remand. Factual and Procedural Background The Lessors are successors in interest to H.A. Loshbaugh and Vera M. Loshbaugh, who granted a 99-year lease to College Hill Development Corp., Inc. in 1959. The Lessee is successor in interest to this developer. The land totals about 52,700 square feet and is located on the southwest comer of Hillside and Central streets in Wichita. On October 25, 2000, the Lessee signed a “Public Street And Utility Easement” which the parties stipulated “purports to grant the City a permanent right-of-way and easement for the purpose of construction and maintenance of a roadway and utilities along and under” the land. The easement covers about 8,000 square feet along the north and west sides of the land. There was no stated limit on the easement’s duration. Following dedication of the easement, the City constructed “acceleration/deceleration/tum lane improvements” to both Hillside and Central streets on the burdened portion of the land. The Lessors did not authorize or consent to the Lessee’s act of providing the City with the easement. The lease did not contain language permitting or prohibiting the Lessee’s action or controlling its effect upon the Lessors. Rental payments under the lease were unaffected by the City’s construction of street improvements. The City paid neither the Lessors nor the Lessee for the easement. Prior to filing this action the Lessors demanded that the City either initiate condemnation proceedings or provide compensation. The City refused the Lessors’ demand. In district court, the City made the following argument for summary judgment: “[The City] makes no claim that it has a permanent easement for the improvements that occupy a portion of the [land]. Likewise, [the City] understands that its rights to occupy the [land] within the [easement] are only as good as the rights that [Lessee] has in the [land]. Consequently, upon termination of [Lessee’s] rights under the lease . . . , [the City] concedes that its rights to occupy the [easement] would not be binding on the [Lessors], “[Nevertheless], until the [Lessors] have some right to occupy the [land], the [City’s] maintenance of street improvements over a portion of the [land] does not infringe any of [Lessors’] property rights.” The City maintained that only upon expiration of the lease should “decisions ... be made by the parties as to whether there is a need for acquisition of the [Lessors’] rights to that portion of the [land] affected by the [easement] or whether the [City] will abandon any claim to the [easement].” The district court adopted the City’s rationale: “(1) The court sympathizes with [Lessors’] position. However, the court’s interpretation of the applicable law requires a ruling in [tire City’s] favor. “(2) The law permits the [Lessee] to grant an easement for the period of the lease. Improvements by way of turn lanes for existing city streets were constructed on the easement. At first glance this appears to be a ‘taking.’ However, [Lessors] are not currently entitled to possession of the property until 2058, absent a default or abandonment by tire [Lessee]. [The City] acknowledges the easement lasts only for the term of the lease. As soon as the [Lessee’s] right to possession ends under the lease, the easement terminates. [Lessors] will then be entitled to possession of the [land], including the area covered by the easement, and improvements. There is no ‘taking’ until the [Lessors] are entided to possession and unless [the City] refuses to relinquish possession of the property covered by the expired easement.” The Lessors filed a timely appeal. Discussion A “landowner asserting a claim of inverse condemnation must prove not only that the landowner owns an interest in the real property but that the alleged condemner has taken all or a part of that interest without compensating the landowner.” Hiji v. City of Garnett, 248 Kan. 1, 9, 804 P.2d 950 (1991). The Lessors argue the City took its property interests by occupying a portion of the land where the City has constructed permanent turn lanes and adjacent improvements. This is a question of law reviewed de novo on the uncontroverted facts. See Kau Kau Take Home No. 1 v. City of Wichita, 281 Kan. 1185, 1190, 135 P.3d 1221 (2006); cf. Botkin v. Security State Bank, 281 Kan. 243, 248, 130 P.3d 92 (2006). “[Bjoth the Fifth Amendment to the United States Constitution and Article 12, Section 4 of the Kansas Constitution guarantee payment for private property appropriated to public use.” Hiji, 248 Kan. at 12. The Lessors rely on the Fifth Amendment, which is “applicable to the states by way of the Fourteenth Amendment.” Deisher v. Kansas Dept. of Transportation, 264 Kan. 762, 770, 958 P.2d 656 (1998). Kansas statutes also codify these constitutional guarantees: “Private property shall not be taken or damaged for public use without just compensation.” K.S.A. 26-513(a); accord Deisher, 264 Kan. at 770. “[T]he constitutional requirement of just compensation for the taking of private property for public use is addressed to every sort of interest which the citizen may possess in the physical thing taken.” City of Topeka v. Estate of Mays, 245 Kan. 546, 550, 781 P.2d 721 (1989) (citing United States v. General Motors Corp., 323 U.S. 373, 378, 89 L. Ed. 311, 65 S. Ct. 357 [1945]). Neither the district court nor the City cited authority showing that the Lessors lacked a compensable interest. Instead, the district court and the City focused on the fact that, under the lease terms, the Lessors are not entitled to possession of the land until 2058. Without present possession of the land, the district court concluded there was no taking from the Lessors for purposes of inverse condemnation until 2058. There is, however, the general rule that “[t]he ability to exercise every one of the ‘sticks’ or rights in the ‘bundle’ of fee simple rights at the time of a taking is not a prerequisite to establishing a valid property interest under the Fifth Amendment; thus, present possessory rights are not necessary.” 29A C.J.S., Eminent Domain § 72, p. 198; see also 2 Nichols on Eminent Domain § 5.02[4][b] (3d rev. ed. 2006). In City of Overland Park v. Dale F. Jenkins Revocable Trust, 263 Kan. 470, 949 P.2d 1115 (1997), for example, our Supreme Court considered the apportionment of an award between a lessor and a lessee of land condemned for the purpose of acquiring rights-of-way and easements for the construction and improvement of an intersection. Our Supreme Court presumed the lessor had a compensable interest, noting “[i]t has long been the rule that where leased property is taken ... , it is ordinarily valued as though held in a single ownership . . . and the compensation ... is apportioned by the district court between the lessor and lessee according to their respective interests.” 263 Kan. 470, Syl. ¶ 2. The court also identified the respective interests: “ ‘The lessor is entitled to compensation for injuries to his reversion, and the lessee for injuries to his leasehold interests.’ ” 263 Kan. at 477-78 (quoting 29A C.J.S., Eminent Domain § 190, p. 457); see also 5 Nichols on Eminent Domain § 16.04 (3d rev. ed. 2006) (discussing compensation for street widening). This suggests that the Lessors, although not in current possession of the land, had a compensable interest subject to being taken for purposes of inverse condemnation. The City argues it does not owe compensation in this case because its easement, which by stipulation “purports to be permanent,” is by operation of law actually limited to the duration of the lease: “The [Lessors] . . . [set] up a straw man with their constant use of the term ‘permanent’ to refer to the nature of the improvements constructed on the [easement] rather than to the duration of the [easement] which is the important concept.” No public easement is permanent in an absolute sense; the fee holder retains a reversion in the case of abandonment, if nothing else. See Board of Education of U.S.D. 512 v. Vic Regnier Builders, Inc., 231 Kan. 731, 735, 648 P.2d 1143 (1982). The mere fact that the land might someday revert to Lessors (or their successors) does not control the analysis. Instead, “[t]he paradigmatic taking requiring just compensation is a direct government appropriation or physical invasion of private property.” Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 537, 161 L. Ed. 2d 876, 125 S. Ct. 2074 (2005). The City’s limited authority to occupy the land for the 51 years remaining on the lease does not alter the facts on the ground — the City’s roadway currently occupies a portion of Lessor’s land. In Hendler v. United States, 952 F.2d 1364, 1375-77 (Fed. Cir. 1991), for example, a dispute arose over the permanent or temporary nature of wells the government had installed on private property. The United States Court of Appeals for the Federal Circuit held the relevant consideration for the takings analysis was the characteristics of the wells themselves: “ ‘In this context, ‘permanent’ does not mean forever, or anything like it. A taking can be for a limited term — what is ‘taken’ is, in the language of real property law, an estate for years, that is, a term of finite duration as distinct from the infinite term of an estate in fee simple absolute. [Citation omitted.] “There is nothing ‘temporary’ about tire wells the Government installed on plaintiffs’ property .... Years have passed since the Government installed the first wells. The wells are some 100 feet deep, lined with plastic and stainless steel, and surrounded by gravel and cement. Each well was capped with a cement casing lined with reinforcing steel bars, and enclosed by a railing of steel pipe set in cement. . . . “. . . All takings are ‘temporary,’ in the sense that the government can always change its mind at a later time, and this is true whether the property interest taken is a possessory estate for years or a fee simple acquired through condemnation . . . 952 F.2d at 1376. We believe the Federal Circuit’s reasoning is sound and applicable to die facts of this case. The City’s physical occupation of the Lessors’ land is as “permanent” as the wells installed in Hendler, whatever the eventual length of the occupation. Not only are the roadways similarly fixtures of concrete and steel, they are regularly traveled by the public. See Nollan v. California Coastal Comm’n, 483 U.S. 825, 832, 97 L. Ed. 2d 677, 107 S. Ct. 3141 (1987) (“a ‘permanent physical occupation’has occurred . . . where individuals are given a permanent and continuous right to pass to and fro, so that the real property may continuously be traversed”). There are cases which state as a rule that lessors may not recover for temporary takings which end before the leasehold expires. See Tony Guiffre Distributing v. Wash. Metro. Area, 740 F.2d 295, 299 (4th Cir. 1984); State Dept. of Highways v. Donnes, 219 Mont. 182, 184-85, 711 P.2d 805 (1985). These cases (which do not cite authority for their statement of one rule) appear to focus on a lack of damages to the lessor’s interests under the particular facts. See Guiffre, 740 F.2d at 299; Donnes, 219 Mont. at 185. The governmental action in these cases was also in the nature of a trespass rather than the type of physical occupation at issue in our case. See Guiffre, 740 F.2d at 297 (temporary use of parking lot for equipment storage); Donnes, 219 Mont. at 185 (temporary use of haul road and generation of dust from gravel pit). “The cases state or imply that a physical invasion is subject to a balancing process, but they do not suggest that a permanent physical occupation would ever be exempt from the Takings Clause.” Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 432, 73 L. Ed. 2d 868, 102 S. Ct. 3164 (1982) (occupation under regulatory authority). In the present case, the district court made no findings on the Lessors’ damages, holding instead that their interests were not taken as a matter of law. Given the City’s physical occupation of the Lessors’ land, this holding was in error. See Kingsway Cathedral v. Dept. of Transp., 711 N.W.2d 6, 10 (Iowa 2006) (“Whether a taking has occurred is determined by the character of the invasion and not by the amount of damages. [Citation omitted.]”). We conclude that “temporariness — if the city succeeds at some point in showing that its action is not permanent — constitutes litde more than relevant evidence in determining the amount of damages.” Kick’s Liquor Store v. City of Minneapolis, 587 N.W.2d 57, 60 (Minn. App. 1998). The district court’s granting of summary judgment in favor of the City is reversed, and the matter is remanded for entry of partial summary judgment in favor of the Lessors and for a trial on the issue of damages. Reversed and remanded.	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Caplinger, J.: The Board of Education of Unified School District 453 (Board) appeals the district court’s decision remanding filis case to the Board for a due process hearing pursuant to K.S.A. 72-5446. We hold that because the due process hearing has not yet been conducted, the district court’s order is not a final, appealable order and the appeal must be dismissed as interlocutory. Factual and procedural background Leslie A. Nickels had been a teacher for Unified School District 453 for 3 years when she was notified by the Board on May 1, 2006, that her contract would not be renewed for the following school year. Nickels filed a notice of hearing with the Board pursuant to K.S.A. 72-5446. In the notice, she alleged her constitu tional right to employment was abridged by the nonrenewal of her teaching contract. Further, she asserted her contract was not renewed because of her age. In a letter dated May 12, 2006, the Board denied Nickels’ request for hearing, stating that the hearing procedures provided by K.S.A. 72-5446 were not applicable to the circumstances alleged in Nickels’ notice. The Board noted that the statute requires that Nickels provide notice that her contract had “been nonrenewed by reason of her having exercised a Constitutional right,” but Nickels claimed only that her constitutional right to employment had been abridged. The Board further asserted that it was not aware of a constitutional right to employment, and Nickels’ notice alleged only violations of federal and state statutes. Nickels appealed to the district court, claiming, “The only issue to be determined is [Nickels’] right to a due process hearing pursuant to K.S.A. 72-5446 as a result of the abridgment of her constitutional right to not be discriminated against in her employment on the basis of her age.” The district court determined Nickels’ allegations fall within the statute, and therefore she was entitled to a due process hearing as provided by K.S.A. 72-5446. The Board appeals, asking this court to conclude the district court erred in finding Nickels is entitled to a hearing. Discussion Prior to the filing of appeal briefs, the motions panel of this court issued an order to the parties to show cause why this appeal should not be dismissed as interlocutory. Both parties filed written responses and subsequently filed briefs addressing the merits issues. The court retained the appeal, and the parties addressed both the jurisdictional and merits issues at oral argument. Is the district court’s order a final, appealable orderP The district court did not specifically remand this matter to the Board, but did specifically order further action by the Board, i.e., a due process hearing pursuant to K.S.A. 72-5446. K.S.A. 77-623 provides “petitions for judicial review of agency action are reviewable by the appellate court as in other civil cases.” Pursuant to K.S.A. 60-2102(a)(4), a party has the right to appeal a “final decision” in any action. The jurisdictional question before this court, then, is whether the district court’s decision ordering a due process hearing is a final, appealable decision. If not, the appeal is interlocutory and must be dismissed. In her response to the show cause order, Nickels argues this court lacks jurisdiction because the Board has not yet held a due process hearing as ordered by the district court. Nickels relies upon Holton Transport, Inc. v. Kansas Corporation Comm’n, 10 Kan. App. 2d 12, 13, 690 P.2d 399 (1984), rev. denied 236 Kan. 875 (1985), where this court held that the district court’s order remanding an administrative proceeding to the agency for additional findings of fact was not a final, appealable order. In attempting to distinguish Holton Transport, the Board points out that the district court in that case had remanded to the agency for a more specific and concise statement of its findings. Holton Transport, 10 Kan. App. 2d at 12. The Board suggests that because no findings have been made and no hearing held in this case, the appeal must be retained. Our Supreme Court rejected jurisdiction in an analogous factual situation in NEA-Topeka v. U.S.D. No. 501, 260 Kan. 838, 925 P.2d 835 (1996). There, after the school district refused to process a grievance or arbitrate a teacher dispute because it contended the teachers were not members of the bargaining unit, the teachers’ union sought arbitration under the contract. When the school district refused to submit to arbitration, the union sought and obtained an order from the district court compelling arbitration of the teachers’ contracts. The school district appealed, and the court, on its own motion, raised a jurisdictional issue questioning whether the order to submit to arbitration constituted a final, appealable order. The court in NEA-Topeka concluded that if the trial court had denied the motion to arbitrate, no other action could have been taken by either party and the order would have been final and appealable. However, because the trial court ordered arbitration, “the parties must submit to arbitration and then challenge the ar bitrator’s decision before there is a final order which is appealable to an appellate court.” NEA-Topeka, 260 Kan. at 843. Significantly, the court in NEA-Topeka cited Holton Transport approvingly in noting: “This is consistent with several other rules regarding final, appealable orders. For instance, an order granting a new trial, which is similar to an order compelling arbitration, is generally not a final or appealable order. Oertel v. Phillips, 197 Kan. 113, 415 P.2d 223 (1966). A trial court order remanding an administrative proceeding to an administrative agency for additional findings of fact, which is similar to an order compelling arbitration, is not a final or appealable order. Holton Transport, Inc. v. Kansas Corporation Comm’n, 10 Kan. App. 2d 12, 690 P.2d 399 (1984), rev. denied 236 Kan. 875 (1985).” 260 Kan. at 843. This case is even closer factually to NEA-Topeka than Holton Transport. In NEA-Topeka, the Board refused to submit to arbitration; thus, no factual findings or determination had been made when the teachers’ union sought an order compelling arbitration from the district court. Here, the Board refused to conduct a due process hearing, and no factual findings had been made when the plaintiff sought an order from the district court compelling a due process hearing. Finally, in NEA-Topeka, the district court ordered arbitration, while the district court in this case ordered a due process hearing. We conclude that because the due process hearing ordered by the district court has not yet been conducted, the Board’s appeal to this court is not a final, appealable order and the appeal must be dismissed as interlocutory. Dismissed.	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Greene, J.: Tobias W. Wilkerson appeals the district court’s summary denial of his motion under K.S.A. 60-1507, arguing the court erred in finding the motion untimely and that his motion entitles him to an evidentiary hearing in order to prevent manifest injustice. Concluding the motion was indeed untimely and declining to address the issue of manifest injustice because it was not asserted or considered in the district court, we affirm. Wilkerson pled guilty to aggravated robbery and aggravated battery in exchange for the State’s recommendation of concurrent sentences at the low number in the grid box for both counts, subject to successful completion of Labette Correctional Conservation Camp (Labette). In November 2003, after completion of Labette, he was sentenced to 60 months’ probation with an underlying prison term of 78 months. In June 2004, Wilkerson’s probation was revoked, but his- probation was reinstated after serving 60 days in jail. His probation was again revoked in September 2004, and this time he was ordered to serve the underlying sentence. He filed an appeal from this probation revocation, and during the pendency of that appeal, he filed a motion to correct an illegal sentence. The district court dismissed that motion for lack of jurisdiction due to the pending appeal, and this court ultimately affirmed the probation revocation. State v. Wilkerson, No. 93,314, unpublished opinion filed October 21, 2005. On November 7, 2005, Wilkerson filed his pro se motion pursuant to K.S.A. 60-1507, arguing ineffective assistance of counsel in connection with his original plea agreement and sentence. Notably, the motion was limited to challenges related to his original plea and sentence rather than his probation revocation, and the motion did not allege a need for the district court to consider his motion in order to prevent manifest injustice. The district court summarily denied the motion, concluding it was time barred. Wilkerson initially argues the district court erred in finding his motion untimely. He argues that his motion was timely because it was filed within 1 year of this court’s opinion in his appeal of the second probation revocation. That appeal was terminated by decision on October 21, 2005, and his 60-1507 motion was filed less than 3 weeks later on November 7, 2005. Because there is no factual dispute surrounding the content of the motion or the material dates to determine timeliness, this issue frames a pure issue of law involving the interpretation and application of K.S.A. 60-1507(f), and we exercise unlimited review. See State v. Bryan, 281 Kan. 157, 159, 130 P.3d 85 (2006). The operative statute provides that in the absence of a showing of manifest injustice, motions under K.S.A. 60-1507 must be filed within 1 year of: “(i) The final order of the last appellate court in this state to exercise jurisdiction on a direct appeal or the termination of such appellate jurisdiction; or (ii) the denial of a petition for writ of certiorari to the United States supreme court or issuance of such court’s final order following granting such petition.” K.S.A. 60-1507(f). Here, Wilkerson did not pursue a direct appeal of his conviction or his sentence, thus any opportunity for appellate jurisdiction to review his plea, his resulting conviction, or his sentence on direct appeal expired when he failed to file a notice of appeal within 10 days of the sentencing, or in mid-November 2003. His motion filed 2 years later is time barred as to matters surrounding the plea, conviction, or sentence. Apparently, Wilkerson urges us to consider his motion within 1 year of his “direct appeal” of the probation revocation as timely under 60-1507(f) without regard to its content. This we cannot do. The appeal of a probation revocation may properly be considered a “direct appeal” thereof, but it may not raise issues related to the original conviction or sentence. See State v. Carr, 274 Kan. 442, 451, 53 P.3d 843 (2002) (distinguishing between judgment of sentence and judgment of probation revocation); see also State v. Tripp, 237 Kan. 244, Syl. ¶ 3, 699 P.2d 33 (1985) (appeal of probation revocation may not challenge original sentence). Wilkerson’s motion was not time barred to the extent he wished to assert a proper challenge to aspects of the probation revocation, including ineffective assistance of counsel at that proceeding. The problem with his motion is that it does not challenge any aspect of the probation revocation, but rather attempts to challenge aspects of his plea and his sentence when no motion to set aside his plea was filed and no direct appeal was taken from any aspect of these initial proceedings. With regard to Wilkerson’s attempts to argue manifest injustice for the first time on appeal, we decline to reach the issue. We hold that manifest injustice sufficient to extend the time limitations of K.S.A. 60-1507(f) is generally fact sensitive in part and must be raised in the motion itself or at least presented to the district court or it will not be considered on appeal. Here, Wilkerson failed to preserve the issue of manifest injustice under K.S.A. 60-1507(f)(2), and we decline to consider it for the first time here. Issues not raised before the trial court cannot be raised on appeal. State v. Shopteese, 283 Kan. 331, 339, 153 P.3d 1208 (2007). Affirmed.	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Hill, J.: Christopher L. Uhlig was convicted of possessing methylenedioxymethamphetamine, a drug commonly known as ecstasy. The ecstasy was found by a court services officer when she searched his bedroom. Uhlig unsuccessfully sought to suppress the drug evidence and now asks us to overturn his conviction because of this warrantless search. But probationers do not enjoy the absolute liberty to which every citizen is entitled. For example, one condition of Uhlig’s juvenile probation required him to submit to searches “at home, school, work or elsewhere” as directed by his court services officer. Before this search, Uhlig admitted to the officers that during a delay in allowing the officers entry into his bedroom, he was trying to hide his cigarettes from them. Possession of tobacco was a violation of his probation. Based on those facts, we hold that the officers had reasonable suspicion to search his room. We affirm the trial court’s denial of the motion to suppress. Uhlig further contends that we should suppress any statements he gave to the officers because they had not warned him of his constitutional rights as required by the Miranda decision. Warnings must be given to all in custody before their interrogation. Because Uhlig was not in custody during the search of his room when he replied to the officers’ questions, we hold the officers were not required to give a Miranda warning. We affirm the trial court’s denial of Uhlig’s motion to suppress his answers to the officer’s questions. We first review some principles of the law of search and seizure when dealing with searches of probationers. Next, we look at what the record reveals about the actions of Uhlig and the officers with respect to the search. Finally, we decide if the officers needed to give the Miranda warning in order to make Uhlig’s answers admissible. The law recognizes different search standards for probationers. Generally, probable cause is required to search a person’s home. But, our Supreme Court employs different standards when evaluating the reasonableness of searches of convicts. Three United States Supreme Court cases, Griffin, Knights, and Samson, provide the foundation for the Fourth Amendment search and seizure analysis necessary in this case. These standards began to diverge with the ruling by the Court in Griffin v. Wisconsin, 483 U.S. at 870-71, 97 L. Ed. 2d 709, 107 S. Ct. 3164 (1987), where the Court upheld a Wisconsin regulation that permitted the warrantless search of a probationer’s residence as long as there are “reasonable grounds” to believe that the probationer is violating probation. The Griffin Court held that the State of Wisconsin was justified in replacing the probable cause standard used in the Fourth Amendment with a reasonable grounds standard due to the “special needs” of the government when it must supervise probationers. 483 U.S. at 873. The Court explained that probationers do not enjoy “ 'the absolute liberty to which every citizen is entitled, but only . . . conditional liberty properly dependent on observance of special [probation] restrictions.’ [Citation omitted.]” 483 U.S. at 874. The Court reasoned that such a policy would encourage rehabilitation of the probationer, reduce the likelihood of recidivism, and protect the community. A state’s operation of its probation system presents a “special need” for intense supervision to assure that probation restrictions are in fact observed by probationers. 483 U.S. at 875. We must point out that in Griffin, the officers had independent information that the probationer was violating probation, facts which led them to conduct the search in the first place. Here, the officers were conducting a random search and had no knowledge of any probation violation sufficient to cause them to make the visit to Uhlig’s home. What was planted in Griffin bloomed in United States v. Knights, 534 U.S. 112, 151 L. Ed. 2d 497, 122 S. Ct. 587 (2001), where the Court upheld the warrantless search of a probationer that was supported by reasonable suspicion. In Knights, the probation agreement required Knights to submit his person, property, and place of residence to search at anytime, with or without a search warrant or reasonable cause. After seeing some bomb-making materials in Knights’ truck, police officers, knowing he was on probation, searched his apartment. This search was upheld. We must first point out that the Knights Court refused to rule whether the acceptance of the probation conditions amounted to a consent to search. Instead, the Court decided the matter by using general Fourth Amendment analysis techniques of first examining all of the circumstances of the search and including the probation condition as a salient circumstance. The Court identified the balance between privacy and governmental needs with these words: “The touchstone of the Fourth Amendment is reasonableness, and the reasonableness of a search is determined ‘by assessing, on the one hand, the degree to which it intrudes upon an individuals’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.’ ” 534 U.S. at 118-19 (quoting Wyoming v. Houghton, 526 U.S. 295, 300, 143 L. Ed. 2d 408, 119 S. Ct. 1297 [1999]). Ultimately, the Court held that the balance of these governmental considerations and the privacy rights of the individual requires no more than reasonable suspicion to conduct a search of a probationer’s house. “Although the Fourth Amendment ordinarily requires the degree of probability embodied in the term probable cause,’ a lesser degree satisfies the Constitution when the balance of governmental and private interests makes such a standard reasonable.” 534 U.S. at 121. A different cause standard was once again used in Samson v. California, 547 U.S. 843, 857, 165 L. Ed. 2d 250, 126 S. Ct. 2193 (2006), where the court upheld a search in which the officer searched a parolee for no reason other than the fact that he was a known parolee. In Samson, the parole agreement stated that Samson was subject to search or seizure at any time by a parole or other peace officer, with or without a search warrant or probable cause. A police officer, knowing that Samson was on parole, searched Samson and found drugs in his jacket pocket. This search was upheld using the same technique of balancing Samson’s privacy rights (substantially reduced by his parole status) and the needs of California to supervise its parolees. The Samson Court refused to require a showing of reasonable suspicion, as used in Knights: stating: “Imposing a reasonable suspicion requirement . . . would give parolees greater opportunity to anticipate searches and conceal criminality. [Citations omitted.] This Court concluded that the incentive-to-conceal concern justified an ‘intensive’ system for supervising probationers in Griffin. That concern applies with even greater force to a system of supervising parolees.” 547 U.S. at 854. The Samson Court placed significance on the fact that the probationer had been informed of the probationary search condition and was unambiguously on notice of its terms, as was similarly noted in Knights. 547 U.S. at 852; see Knights, 534 U.S. at 119. Also pertinent to this case, Samson makes a distinction between probationers and parolees. The Court held that “parolees have fewer expectations of privacy than probationers, because parole is more akin to imprisonment than probation.” 547 U.S. at 850. This statement suggests to us a continuum: • Prisoners have no expectation of privacy (see Hudson v. Palmer, 468 U.S. 517, 530, 82 L. Ed. 2d 393, 104 S. Ct. 3194 [1984],) and lack Fourth Amendment rights (they can therefore be searched at any time for any reason); • parolees have a slight expectation of privacy and therefore can be searched in the absence of reasonable suspicion, but not arbitrarily or capriciously (Samson, 547 U.S. at 855-56); and • probationers have a higher expectation of privacy than parolees, but no standard is set forth. Such lessons are clear. The law of search and seizure varies based upon the status of the individual searched. First, Griffin indicates that probable cause is not required when a search of a probationer is made because of the special needs of the government. According to Griffin, a state regulation only requiring reasonable grounds to search is constitutionally sufficient. Second, Knights teaches that reasonable suspicion is sufficient when a search of a probationer is made. The reasonableness of the search is determined by applying a balancing test that gives much weight to the government’s strong interest in allowing the search. Third, Samson indicates that no suspicion is required when a search of a parolee is made, but the opinion fails to set the standard for probationers. Uhlig’s actions created a reasonable suspicion to search. Court services officer Sandra Miller, accompanied by Overland Park Police Officer Robert Flemming, visited the home of Uhlig in March 2005. This visit was conducted according to a condition of Uhlig’s probation agreement that stated “The CSO (court services officer) and/or Law Enforcement Officers have the authority to visit the respondent at home, school, work or elsewhere, and the Respondent shall submit to searches as directed by CSO.” This consent-to-search provision is the basis of the “Night Light” program in that district. Night Light visits are random visits conducted between 5 and 10 p.m. by court services officers in order to ensure that probationers are complying with the terms and conditions of probation. In that district, the court services officer conducting the visit is accompanied by a law enforcement officer. If the officers are denied admission into the homes, the matter is referred back to the court. The officers apparently do not try to force entry and search. Before arriving at Uhlig’s home, the officers had no reason to believe that Uhlig had violated his probation. The officers were met at the door by Uhlig. The officers explained who they were, that they were there for a Night Light visit, and asked if they could enter the house and search the probationer’s room in compliance with the probation conditions. Uhlig consented, opened the door, and motioned for the officers to enter. The officers entered the home and asked Uhlig to get his father. (It was their practice to seek the consent of a parent for admission to a juvenile’s home in order to inform the parents about why they were there.) Uhlig stated that his father was upstairs sleeping and went upstairs to get him. While the officers waited at the entry, they heard things being moved around upstairs and saw no sign of Uhlig’s father. The officers then learned from Uhlig’s sister that Uhlig was actually in his own room. After a couple of minutes, Officer Flemming called out to Uhlig to come back down. Concluding that there had been plenty of time for Uhlig to have retrieved his father, the officers proceeded up the stairs. The officers testified that they also moved up the stairs for their own safety because they were not sure what Uhlig was doing. They met Uhlig on his way downstairs. Flemming asked Uhlig why he was upstairs for so long. Uhlig responded that he was hiding his cigarettes. Possession of cigarettes was a violation of provision No. 14 of Uhlig’s juvenile probation. After hearing that he was hiding cigarettes, the officers went to Uhlig’s bedroom where court services officer Miller found some pills in a tin box inside the pocket of a jacket lying on the bed. Police officer Flemming asked Uhlig what the pills were, and Uhlig replied that he did not know. Flemming then asked Uhlig where he got the pills, and Uhlig admitted that he had found them. Laboratory testing revealed that the pills contained methylenedioxymethamphetamine. Uhlig asked the district court to suppress the drug evidence. His motion was denied. When reviewing a district court’s denial of a motion to suppress, this court considers all of the circumstances and examines the evidence in a light most favorable to the State. State v. Hardyway, 264 Kan. 451, 459, 958 P.2d 618 (1998). We hold Uhlig’s attempt to delay the officer’s search and his admission of attempting to conceal cigarettes was an undeniable violation of his probation and gave the officers reasonable suspicion to search his room. Uhlig was aware of the terms and conditions of his probation since they were written in plain language. The officers advised him why they were there. Uhlig then attempted to hide contraband from them and admitted that to them. This case is in clear contrast with United States v. Freeman, 479 F.3d 743, 748 (10th Cir. 2007), where the Tenth Circuit Court of Appeals refused to uphold the search of a parolee because: (1) there was no special enforcement officer (similar to a CSO) present, and (2) the Kansas Department of Corrections regulations specifically required reasonable suspicion in order to conduct a warrantiess search of a parolee. Like this case, though, the search in Freeman was random and Freeman invited the officers into his home after they explained that they were officers and that they were there for a curfew check according to Freeman s parole agreement. But Freeman refused to give consent to search when the officers asserted the right to search the home. The officers searched the bedroom of the parolee despite this refusal, asserting that they were doing so for safety purposes due to the presence of another person in the bedroom. 479 F.3d at 745. A handgun was found by one of the officers on a shelf in the bedroom. As a parolee, Freeman could not possess a firearm. We conclude that Freeman does not alter our view that these two officers had a reasonable suspicion that contraband could be found in Uhlig’s room. Uhlig asks us to rule that reasonable suspicion is required in all cases dealing with searches of probationers. We decline to so rule because there was reasonable suspicion for these officers to search Uhlig’s room and no such rule is needed to make this decision. Balancing the State’s need to supervise its probationers with Uhlig’s diminished expectation of privacy due to his status as a probationer, we hold the district court was correct when it denied Uhlig’s motion to suppress the fruits of the search. Uhlig was not in custody when he answered the officers’ questions. Uhlig contends his statements to the officers should have been suppressed. Our standard of review of such questions requires an examination of facts and law: “In reviewing a district court’s decision regarding suppression, this court reviews the factual underpinnings of the decision by a substantial competent evidence standard and the ultimate legal conclusion by a de novo standard with independent judgment. This court does not reweigh evidence, pass on the credibility of witnesses, or resolve conflicts in the evidence. [Citation omitted.]” State v. Ackward, 281 Kan. 2, 8, 128 P.3d 382 (2006). In fact, when reviewing a district court’s denial of a motion to suppress, this court “ ‘consider^] the totality of the circumstances and view[s] the evidence in a light most favorable to the government.’ ” Hardyway, 264 Kan. at 459. Specifically, our Kansas Supreme Court has ruled that “courts must examine ‘all of the circumstances surrounding the interrogation’ [citation omitted] and determine ‘how a reasonable person in the position of the individual being questioned would gauge the breadth of his or her “freedom of action.” ’ [Citation omitted.]” State v. Jones, 283 Kan. 186, 193, 151 P.3d 22 (2007). The issue here is whether Uhlig was in custody for purposes of the warning required by Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966). Kansas courts consider various factors when determining whether a person is “in custody” for purposes of Miranda. See State v. Ewing, 258 Kan. 398, 403, 904 P.2d 962 (1995) (defendant was in custody when officer ordered him to stop at gunpoint and asked who shot the victim), State v. Woolverton, 284 Kan. 59, 70-73, 159 P.3d 985 (2007) (defendant not in custody when questioned in stairwell of his own apartment building). Therefore, we must review the facts from the record. The record discloses that the officers were in Uhlig’s home with his consent. When Officer Flemming asked Uhlig what he had been doing upstairs, he responded that he was hiding cigarettes. Although that is an admission of a probation violation, it was not an admission of a crime that the Miranda warning protects. It has been held that a probationer may be required to answer questions concerning matters relevant to probation that pose no realistic threat of incrimination in a separate criminal proceeding. See, e.g., State v. Lumley, 267 Kan. 4, 11, 977 P.2d 914 (1999); State v. Aldape, 14 Kan. App. 2d 521, 523, 794 P.2d 672, rev. denied 247 Kan. 705 (1990). Uhlig was not placed under arrest or detained. Uhlig simply answered Officer Flemming’s two questions regarding the pills, and the facts indicate no showing of coercion or threat by Flemming in obtaining these responses. Furthermore, Uhlig was in his own home, a place of familiarity within his own environment. Officer Flemming did not draw a weapon, place Uhlig in handcuffs, or give any indication that Uhlig was under arrest. We do not consider Uhlig in custody for purposes of Miranda under these circumstances. Uhlig also contends that he was effectively prevented from asserting his Fifth Amendment privilege because doing so would have caused him to commit a violation of his probation. We do not think so. The terms of probation employed here did not state that Uhlig must waive his Fifth Amendment rights. It only required him to obey persons of authority, a requirement that relates primarily to his probation relationship, not his potential interaction with police officers regarding other crimes. Furthermore, Uhlig has never claimed that he only spoke out of fear of a probation revocation. These facts are different than those in Minnesota v. Murphy, 465 U.S. 420, 79 L. Ed. 2d 409, 104 S. Ct. 1136 (1984), where the probationer made incriminating statements to his probation officer during a routine probation meeting. The Court held that the fact that he was on probation and was required to be truthful to his probation officer according to the terms of his probation agreement did not turn his voluntary statements into involuntary statements. The Court stated, “The answers ... to questions put to him are not compelled within the meaning of the Fifth Amendment unless the witness is required to answer over his valid claim of the privilege.” 465 U.S. at 427. The Court explained that the Fifth Amendment speaks to compulsion, and that the privilege does not preclude a witness from testifying voluntarily regarding matters that may incriminate the witness. 465 U.S. at 427; United States v. Monia, 317 U.S. 424, 427, 87 L. Ed. 376, 63 S. Ct. 409 (1943). Again, Uhlig was not required to answer over some claim of privilege. We see no Fifth Amendment violation here.	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Marquardt, J.: Scott A. Reinhardt appeals the trial court’s order to reopen a divorce property division more than 4 years after the decree and division of property were final. We reverse and remand with directions. Dilene and Scott were married in 1996 and had three children. Dilene filed for divorce in July 1999. A divorce decree was filed in July 2000, with a later property settlement agreement approved and filed by the trial court in December 2000. In March 2005, Dilene filed a motion to set aside or amend the final divorce judgment, claiming that Scott “committed fraud” by failing to reveal his ownership interest in the property he owned in Russell County, Kansas, at the time of the divorce. In response to the motion, Scott admitted that he did own an interest in the property during the marriage; however, it had been deeded to him by family members, a fact of which he had been unaware. Scott had paid nothing for the property and had received no rents or profits from it. The record on appeal reveals that the grantors retained a life estate in the property. Scott contended that he did not obtain a fee simple interest in the real estate until December 2001, and he did not pay taxes on the property until December 2003. In a brief to the trial court, Dilene urged the trial court to grant her relief pursuant to K.S.A. 60-260(b)(6), in an exercise of the trial court’s power to “equitably distribute the marital property not previously distributed prior to judgment.” In its journal entry, the trial court indicated that it was persuaded by Dilene’s arguments because the original property settlement was approved based on the representations Dilene and Scott made at that time. The trial court also disapproved of Scott’s tactic of “arguing that [he] isn’t guilty of any fraud because [he] didn’t know about the property.” The trial court granted Dilene’s motion, without citing a subsection of K.S.A. 60-260(b). Scott timely appeals. Because Dilene’s motion was predicated on his commission of fraud under K.S.A. 60-260(b), Scott believes the 1-year statute of limitations bars Dilene’s motion. Scott contends that the catch-all remedy of K.S.A. 60-260(b)(6) should not apply to the allegations of Dilene’s motion, as it is merely an attempt to circumvent the time bar. In determining whether the trial court had jurisdiction to consider the application of K.S.A. 60-260(b), this court applies a de novo standard of review. However, in determining whether the trial court erred in its application of the statute to the facts, appellate review is restricted to determining whether the trial court abused its discretion. In re Marriage of Bleich, 23 Kan. App. 2d 982, 985, 939 P.2d 966 (1997). K.S.A. 60-260(b) allows relief from a final judgment for several reasons, including: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under K.S.A. 60-259(b); and (3) fraud. A motion claiming any of these reasons must be filed within 1 year after the judgment was entered. K.S.A. 60-260(b)(6) allows a trial court to vacate a judgment for “any other reason justifying relief from the operation of the judgment.” The statute requires only that a motion pursuant to K.S.A. 60-260(b)(6) be filed “within a reasonable time.” The general rule applied by both state and federal courts is that the first five grounds of K.S.A. 60-260(b), which are specific, and the sixth, the general catch-all, are mutually exclusive. A party cannot circumvent the 1-year limitation applicable to the first three grounds of K.S.A. 60-260(b) by invoking the residual clause. K.S.A. 60~260(b)(6) is not available if the asserted grounds for relief are within the coverage of another provision of K.S.A. 60-260(b). In re Marriage of Leedy, 279 Kan. 311, 323, 109 P.3d 1130 (2005). In Dilene’s original motion to set aside the judgment, she overtly accused Scott of committing fraud by failing to reveal his ownership interest in the real property. Regardless of whether Dilene’s contention is meritorious, the claim would place this action squarely within K.S.A. 60-260(b)(3) and its 1-year time bar. Moreover, Scott did not receive his fee simple ownership interest until after the divorce was granted. Our review of this issue is somewhat hindered by the fact that the trial court never explicitly referred to a subsection of K.S.A. 60-260(b) in the final journal entry. However, the original property settlement agreement was filed in December 2000, and Dilene’s motion to set aside was not filed until March 2005. Therefore, the only possible ground for relief available to Dilene was K.S.A. 60-260(b)(6). We believe that since one of the other enumerated subsections of K.S.A. 60-260(b) applies to the facts of this case, the trial court’s reliance on K.S.A. 60-260(b)(6) was erroneous. The trial court did not have jurisdiction to reopen the divorce, redistribute property, or distribute Scott’s real property. Therefore, we reverse and remand to the trial court with instructions to reinstate the December 2000 property settlement agreement.	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Malone, J.: E.L.D. (Stepfather) appeals the district court’s denial of his petition for stepparent adoption of two minor children, G.L.V. and M.J.V. T.J.D. (Mother) consented to the adoption, but T.L.V. (Father) did not consent. Stepfather asked the district court to grant the adoption without Father’s consent pursuant to K.S.A. 2006 Supp. 59-2136(d), alleging Father had failed or refused to assume the duties of a parent for 2 consecutive years preceding the filing of the petition for adoption. On appeal, Stepfather claims the district court misinterpreted K.S.A. 2006 Supp. 59-2136(d) and failed to consider the best interests of the children in determining whether the adoption should have been granted. We disagree with Stepfather’s contentions and affirm the district court’s decision to deny the adoption. G.L.V. and M.J.V. are twin brothers, born on October 17,1994. Mother and Father were never married and only lived together briefly. In 1994, Mother filed a paternity action in Brown County District Court. The district court determined paternity and ordered Father to pay child support. Approximately 3 weeks after the children were born, Father left and did not see the children again until 1997. In 1997, the district court awarded Father visitation with the children during weekends, but Father only visited the children two or three times. Between 1997 and 2005, Father did not have any contact or relationship with his children. However, the children did develop a relationship with Father’s parents and other members of his family. Although Father was ordered to pay child support in 1994, his initial payments were sporadic. However, since April 2003, Father has had regular employment and has consistently been paying monthly child support obligations through an income withholding order. Father currently pays $366 per month child support for G.L.V. and M.J.V., and he also covers the children on his health insurance plan. From April 2003 through June 2006, Father paid $21,003.86 of an obligation of $14,274, with the overage being applied to the arrearage. In March 2004, Mother married Stepfather. On June 13, 2006, Stepfather filed a petition for adoption of G.L.V. and M.J.V. with the Atchison County District Court. In the petition, Stepfather asked the district court to grant the adoption without Father s consent because Father had almost no contact with the children for 9 years and had never voluntarily paid child support. The district court held an evidentiaiy hearing. Father testified he was now married and has three children and a stepchild with his current wife. Father acknowledged he failed to stay in touch with G.L.V. and M.J.V., but he claimed that Mother took every step possible over the years to interfere with his visitation rights. According to Father, at one point the sheriff s office told him he would need to go back to court to resolve the visitation problems, but he did not have the financial means to do so. Stepfather did not testify at the hearing. However, Mother testified and denied that she ever prevented Father from visiting the children. She testified that her husband was the only father figure G.L.V. and M.J.V. have ever known. According to Mother, Stepfather regularly helps the boys with their homework, and he actively participates with them in their scouting and sporting events. The district court took the matter under advisement and filed a memorandum opinion denying the adoption. The district court determined it could not grant the adoption without Father s consent because Father had provided substantial financial support for the children in the 2 years preceding the filing of the adoption petition. Stepfather timely appeals. Stepfather claims the district court erred in denying his petition for adoption of G.L.V. and M.J.V. Specifically, Stepfather argues the district court misinterpreted K.S.A. 2006 Supp. 59-2136(d) and failed to consider the best interests of the children to be the “overriding factor” in determining whether the adoption should have been granted. Stepfather acknowledges that under the statute and case law prior to 2006, Father’s consent to the adoption would have been necessary because Father had provided substantial financial support to the children in the 2 years preceding the filing of the petition. However, in 2006, the legislature amended 59-2136(d) by adding a provision that the court may consider the best interests of the child and the fitness of the nonconsenting parent in determining whether a stepparent adoption should be granted. According to Stepfather, this changed the manner in which 59-2136(d) should be construed. Stepfathers argument requires this court to interpret K.S.A. 2006 Supp. 59-2136(d). The interpretation of a statute is a question of law over which this court has unlimited review. An appellate court is not bound by the district court’s interpretation of a statute. In re Adoption of S.J.R., 37 Kan. App. 2d 28, 32-33, 149 P.3d 12 (2006). “ ‘The fundamental rule of statutory construction is to ascertain the legislature’s intent. The legislature is presumed to have expressed its intent through the language of the statutory scheme. Ordinary words are given their ordinary meanings. A statute should not be read to add language that is not found in it or to exclude language that is found in it. When a statute is plain and unambiguous, the court must give effect to the legislature’s intent as expressed rather than determining what the law should or should not be. [Citation omitted.]’ ” In re S.J.R., 37 Kan. App. 2d at 33. Also, when it is claimed that consent to an adoption is not required by reason of a parent’s failure to fulfill parental obligations, adoption statutes are strictly construed in favor of maintaining the rights of natural parents. In re Adoption of S.E.B., 257 Kan. 266, 273, 891 P.2d 440 (1995). Prior to 2006, K.S.A. 59-2136(d) stated: “In a stepparent adoption, if a mother consents to the adoption of a child who has a presumed father under subsection (a)(1), (2) or (3) of K.S.A. 38-1114 and amendments thereto, or who has a father as to whom the child is a legitimate child under prior law of this state or under the law of another jurisdiction, the consent of such father must be given to the adoption unless such father has faded or refused to assume the duties of a parent for two consecutive years next preceding the filing of the petition for adoption or is incapable of giving such consent. In determining whether a father’s consent is required under this subsection, the court may disregard incidental visitations, contacts, communications or contributions. In determining whether the father has failed or refused to assume the duties of a parent for two consecutive years next preceding the filing of the petition for adoption, there shall be a rebuttable presumption that if the father, after having knowledge of the child’s birth, has knowingly failed to provide a substantial portion of the child support as required by judicial decree, when financially able to do so, for a period of two years next preceding the filing of the petition for adoption, then such father has failed or refused to assume the duties of a parent.” K.S.A. 59-2136(d) provides that in a stepparent adoption, the consent of the natural parent must be given to the adoption unless the parent has failed or refused to assume the duties of a parent for 2 consecutive years next preceding the filing of the petition for adoption or is incapable of giving such consent. This “parental duties” test was interpreted by the Kansas Supreme Court in In re Adoption of K.J.B., 265 Kan. 90, 959 P.2d 853 (1998). In In re K.J.B., the only financial support the father provided to his children came from social security benefits, and the father had only incidental contacts with the children over several years. The district court granted the stepparent adoption without the father’s consent, finding that the father had failed or refused to assume his parental duties pursuant to K.S.A. 59-2136(d). 265 Kan. at 92-94. The Kansas Supreme Court reversed. The court determined that, under K.S.A. 59-2136(d), a parent’s duties include both the duty of financial support and the natural and moral duty to show affection, care, and interest toward his or her child. In re K.J.B., 265 Kan. 90, Syl. ¶ 3. The court discussed these parental duties by comparing them to a “ledger” in which the love and affection parental duty and the financial support parental duty occupy separate sides of the ledger. See In re Adoption of C.R.D., 21 Kan. App. 2d 94, 897 P.2d 181 (1995) (Lewis, J., concurring). The court strictly construed the stepparent adoption statute in favor of maintaining the rights of natural parents and concluded that K.S.A. 59-2136(d) required a failure on both sides of the ledger before a court could grant the adoption without the consent of the natural parent. 265 Kan. at 101-02. The ledger approach was later confirmed by the Supreme Court in In re B.M.W., 268 Kan. 871, 2 P.3d 159 (2000). In In re B.M.W., the stepfather argued the father’s consent to an adoption was unnecessary because the father had failed to provide affection and care for the child and had paid court-ordered child support only after a threat of contempt proceedings. Nevertheless, the district court found the father had paid a substantial portion of his child support obligation in the 2 years preceding the filing of the adoption petition; thus, the district court refused to grant the adoption without the father’s consent. 268 Kan. at 872-74. The Kansas Supreme Court affirmed. The court reviewed the legislative histoiy of K.S.A. 59-2136(d). Relying on In re K.J.B., the court upheld the ledger approach and confirmed that a parent must fail both the “love and affection” side of the ledger and the “financial support” side of the ledger before an adoption can be granted without the parent’s consent. 268 Kan. at 881. The court determined that K.S.A. 59-2136(d) does not distinguish between voluntary and involuntary payments in assessing whether a parent has financially supported a child. 268 Kan. at 884. The court also noted that “neither the best interests of the child nor the fitness of the nonconsenting parent are controlling factors” under K.S.A. 59-2136(d). 268 Kan. at 881. In 2006, the legislature enacted House Bill 2665, which added the following sentence to the end of K.S.A. 59-2136(d): “The court may consider the best interests of the child and the fitness of the nonconsenting parent in determining whether a stepparent adoption should be granted.” K.S.A. 2006 Supp. 59-2136(d); L. 2006, ch. 22, sec. 1. The amended statute went into effect on March 23, 2006, and, thus, applied in this case. L. 2006, ch. 22, sec. 3. This case focuses on the effect of the 2006 amendment to the statute. At the adoption hearing, Stepfather argued that under K.S.A. 2006 Supp. 59-2136(d), the court should not only consider the best interests of G.L.V. and M.J.V., but such consideration should be the overriding factor in determining whether to grant the adoption. In interpreting the language added by H.B. 2665, the district court focused on the word “may” and found that the amendment granted a district court discretion to consider the best interests of the child, but did not make this the overriding factor in determining whether to grant a stepparent adoption. The district court concluded that the precedents of In re K.J.B. and In re B.M.W. dictated that the adoption petition be denied and that the 2006 statutoiy amendment did not change this outcome. On appeal, Stepfather offers two possible interpretations of the amended statute. First, Stepfather argues the statute allows a district court to grant a stepparent adoption without the natural parent’s consent if two of the following three factors are present: (1) the natural parent failed to visit or communicate with the child; (2) the natural parent failed to provide a substantial part of the child’s support; or (3) the stepparent adoption is in the child’s best interest or the natural parent is unfit. Second, and in the alternative, Stepfather argues the best interests of the child is the overriding factor in determining whether to grant a stepparent adoption. In deciding the case, the district court determined that K.S.A. 2006 Supp. 59-2136(d) was ambiguous and turned to the statute’s legislative history to interpret the effect of the 2006 amendment. In its memorandum decision, the district court found that the original version of H.B. 2665 stated that a district court “shall” consider the best interests of the child in a stepparent adoption. The district court also found that the House Judiciary Committee amended the bill to change the word “shall” to “may.” The district court relied on this change in finding that the legislature did not intend to make the best interests of the child the overriding factor in a stepparent adoption. Contrary to the district court’s findings, the original version of H.B. 2665 did not amend K.S.A. 59-2136(d). Instead, it only amended 59-2136(h), which is a general provision that sets forth the factors a district court should consider when determining whether to terminate parental rights in an adoption case. See In re S.J.R., 37 Kan. App. 2d at 36-37 (K.S.A. 2006 Supp. 59-2136[d] is the controlling subsection in stepparent adoption cases, not subsection [h]). The original version of H.B. 2665 amended 59-2136(h) by adding the following italicized language: “In making a finding whether parental rights shall be terminated under this subsection, the court: (1) Shall consider and weigh the best interest of the child . . . .” The House Judiciary Committee later amended H.B. 2665 by changing the above-mentioned “shall” in 59-2136(h) to “may” and also by adding the best interests of the child language to 59-2136(d). House J. 2006, p. 1234. Although the district court’s recitation of the legislative history of K.S.A. 2006 Supp. 59-2136(d) was not completely accurate, it was still appropriate for the district court to focus on the word “may” in the amendment to the statute. The legislature clearly intended to allow courts to consider the best interests of the child in adoption cases, as evidenced by its amendments to both subsections (d) and (h) of K.S.A. 59-2136. This appears to have been in response to prior Kansas Supreme Court decisions that indicated that neither the best interests of the child nor the fitness of the nonconsenting parent were controlling factors in a stepparent adoption. In re B.M.W., 268 Kan. at 881; In re K.J.B., 265 Kan. at 95; In re S.E.B., 257 Kan. at 274. However, the amendment does not state that the best interests of the child shall be the controlling factor in a stepparent adoption. By adopting the discretionary term “may” instead of the mandatory term “shall,” it appears that the legislature did not intend to make the best interests of the child the overriding factor, as Stepfather argues. We also note that, during the 2006 legislative session, House Bill 2914 was introduced, which would have added the following language to K.S.A. 59-2136(d): “The failure of a father to provide a substantial portion of the child support because such father has been convicted and is imprisoned shall not be sufficient to rebut such rebuttable presumption. Failure of die father to either provide a substantial portion of the child support as required by judicial decree or perform the other duties of a parent shall be sufficient for the court to determine that such father’s consent is not required in a stepparent adoption. The court may consider the best interests of the child and the fitness of the nonconsenting parent in determining whether a stepparent adoption should be granted.” (Emphasis added.) H.B. 2914 would have allowed a district court to grant a stepparent adoption if the natural parent failed either the duty to provide financial support for the child or the duty to communicate and visit with the child. In other words, H.B. 2914 would have accomplished the exact result Stepfather is advocating in this appeal. Although this bill was introduced and referred to the House Judiciaiy Committee, it died in committee. House J. 2006, pp. 1218, 1222, 2543. The fact that the legislature passed H.B. 2665, rather than H.B. 2914, further supports the interpretation that the legislature did not intend to change the parental duties test in determining whether a stepparent adoption can be granted without the natural parent’s consent. As noted above, the Kansas Supreme Court has consistently held that to grant a stepparent adoption without the natural parent’s consent under K.S.A. 59-2136(d), the district court must find that the natural parent failed to fulfill his or her parental duties by both failing to provide financial support to the child and failing to communicate and visit with the child. In re B.M.W., 268 Kan. at 881; In re K.J.B., 265 Kan. at 100-02; see also In re S.E.B., 257 Kan. at 274 (courts are required to take into consideration the period of time father was incarcerated in assessing whether father has provided financial support). This judicial construction of the stepparent adoption statute has been in place for several years, yet when the legislature amended the statute in 2006, it did not amend the section addressing consent and parental duties. “When the legislature fails to modify a statute to avoid a standing judicial construction of that statute, the legislature is presumed to agree with the court’s interpretation.” In re B.M.W., 268 Kan. at 881. A plain reading of K.S.A. 2006 Supp. 59-2136(d) does not support Stepfather’s argument on appeal. The statute provides that “the consent of such father must be given to the adoption unless such father has failed or refused to assume the duties of a parent for two consecutive years next preceding the filing of the petition for adoption or is incapable of giving such consent.” (Emphasis added.) The language added by H.B. 2665 merely states that the district court “may consider the best interests of the child and the fitness of the nonconsenting parent in determining whether a stepparent adoption should be granted.” This language does not change the parental duties test delineated earlier in the subsection. Simply put, the court may consider the best interests of the child and the fitness of the nonconsenting parent in a stepparent adoption case, but it can only grant the adoption without the natural parent’s consent if the natural parent has failed to fulfill his or her parental duties under the statute. Even if K.S.A. 2006 Supp. 59-2136(d) is construed as requiring the court to consider the best interests of the child and the fitness of the nonconsenting parent in a stepparent adoption, the record indicates the district court did, in fact, consider these factors in this case. In particular, the district court’s memorandum decision stated: “No argument has been made that the father is unfit. As noted earlier, the father has married and has three children and a stepchild with his current wife. No evidence has been introduced to indicate a lack of care for these children. “Consideration of the best interest of the children does not clearly favor one parent over the other. Each attorney made strong arguments on behalf of their client. The father noted that it was important for the children to have contact with extended family members and would like for the children to get to know their siblings and to continue the relationship that they have established with his parents and other members of his family. The petitioner argued that it is important for the children to have the stability of a known father figure and that he has been the one to serve in that capacity. The petitioner is the only father that the boys have known. It was probably best stated by Brenda Vaughn that both parents have the children[’s] best interest at heart, they just differ as to what those interestfs] are. “The Court is aware of the emotional investment that both parents have in the outcome of this case and that an appeal would be possible by the party that the Court rules against. So that the record is complete should this case be appealed, the Court notes that the father is African American and the mother and the petitioner are Caucasian. Severing ties with the father not only severs ties with his family but also may sever cultural ties.” (Emphasis added.) The district court did more than consider the “financial support” ledger and the “love and affection” ledger as required by In re K.J.B. and In re B.M.W. The district court also considered Father’s fitness as a parent, the children’s emotional stability, the children’s bonding with other family members, and the children’s cultural ties with Father who is African-American. It is clear the district court complied with K.S.A. 2006 Supp. 59-2136(d) and considered the best interests of G.L.V. and M.J.V. in determining whether the stepparent adoption should be granted. Thus, even if the district court misconstrued K.S.A. 2006 Supp. 59-2136(d), its judgment must be upheld as long as it was supported by substantial competent evidence. An appellate court does not weigh the evidence or pass on the credibility of witnesses and must review the evidence in the light most favorable to the party prevailing below. In re Adoption of R.W.B., 27 Kan. App. 2d 549, 550, 7 P.3d 306, rev. denied 270 Kan. 898 (2000). It is difficult to ascertain exactly what the legislature was tiying to accomplish with tire 2006 amendment to the stepparent adoption statute. If the legislature was attempting to abrogate the “two-sided ledger” parental duties test enunciated by the Kansas Supreme Court in In re K.J.B. and In re B.M.W., it failed to accomplish this goal. The language establishing the parental duties test, as construed by the court, has not been stricken from the statute. By tacking on the 2006 amendment, the legislature has made the statute more difficult for courts to apply. On the one hand, the father’s consent must be given to a stepparent adoption unless the father has failed to assume his parental duties for 2 consecutive years immediately preceding the filing of the petition for adoption. These duties include both financial support and love and affection. On the other hand, the court may consider the best interests of the child and the fitness of the nonconsenting parent in determining whether a stepparent adoption should be granted. It is difficult to reconcile these inconsistent provisions. K.S.A. 2006 Supp. 59-2136(d) needs further clarification from the legislature. If the legislature intends that a natural parent’s consent for a stepparent adoption is not required if the natural parent fails to provide either financial support or love and affection for 2 consecutive years immediately preceding the filing of the petition for adoption, this should be clearly stated. Likewise, if the legislature desires the best interests of the child to be the controlling factor in a stepparent adoption, it can easily say so. As long as the language remains unclear, however, courts shall continue to strictly construe the statute in favor of maintaining the rights of natural parents. In re S.E.B., 257 Kan. at 273. In summary, we interpret the 2006 amendment to K.S.A. 59-2136(d) to mean just what it says. The court may consider the best interests of the child and the fitness of the nonconsenting parent in determining whether a stepparent adoption should be granted. However, the amendment does not abrogate the parental duties test previously enunciated by the Kansas Supreme Court in In re K.J.B. and In re B.M.W. The consent of the natural parent must be given to the adoption unless the natural parent has failed or refused to assume the duties of a parent for 2 consecutive years next preceding the filing of the petition for adoption or is incapable of giving such consent. This requires a failure on both the “love and affection” side of the ledger and the “financial support” side of the ledger before a court can grant a stepparent adoption without the consent of the natural parent. Here, Father had provided substantial financial support for G.L.V. and M.J.V. in the 2 years preceding the filing of the petition for adoption. Thus, the district court did not err in denying Stepfather’s petition for adoption without Father’s consent. Affirmed.	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The opinion of the court was delivered by Price, J.: This is an action to recover for personal injuries sustained by plaintiff when she was struck by an advertising sign which fell from a business building in Atchison. The appeal and cross-appeal are from rulings on a demurrer to portions of the separate amended answer of one defendant. Defendant, J-G Decorating Store, Inc., is the owner of the store and building from which the sign fell. This defendant will be referred to as the “store owner.” Defendant, J. M. Roderick, d/b/a Roderick Neon Company, installed the sign on the building. This defendant will be referred to as the “sign company.” Highly summarized, the petition alleges that at some time in 1956 the defendants contracted with each other that the sign company would construct, erect and install the sign on the building of the store owner; that all knowledge and information concerning the designing, construction, installation, inspection and maintenance of the sign, and all control of the same, has at all times been in the exclusive possession of defendants, their officers, agénts and employees; that the injuries sustained by plaintiff were directly and proximately caused by the substantially concurrent negligent acts of defendants, their officers, agents and employees, in one, or some, or all of the following particulars — that they failed to design, construct, install and maintain the sign in a manner protecting the public and plaintiff from injury; that they failed to warn plaintiff of the fact the sign was insecure when they knew, or in the exercise of reasonable care should have known, that the sign was insecure and unsafe to the public and plaintiff; that they failed and neglected to properly inspect the sign and the building to which it was attached or cause them to be inspected and to discover the insecure and unsafe condition of the sign, and that they maintained the premises, and particularly the sign, in a defective and dangerous condition, all of which was hidden from plaintiff. It then is alleged that on the afternoon of July 31, 1959, while plaintiff was walking on the public sidewalk adjacent to the build ing in question, the sign crashed downward together with bricks and debris from the building, striking plaintiff and causing severe personal injuries — which, for our purposes, need not be detailed. The separate answer of the sign company contained certain denials and admissions, not here material, and then admitted that on February 29, 1956, it entered into a contract with the store owner whereby it, the sign company, constructed and erected the sign on the building owned by the store owner, and that at the time of the accident complained of such sign was the property of the store owner. The separate answer of the store owner contained certain denials and admissions not here material, and further alleged that it and the sign company entered into a written lease on February 29, 1956, under the terms of which the sign company leased to the store owner the neon sign in question; that under the terms of such lease the sign company was, and remained, the owner of the sign and had the duty and responsibility, and was under the obligation, to keep it in good, sufficient and adequate repair and to take such steps as were necessary to prevent it from falling, and that if the sign was caused to fall because of improper installation, or because of improper inspection or maintenance, the fault was with the sign company. It further alleged that if plaintiff suffered personal injuries at the time and place alleged, such injuries and damages were not caused by any act of carelessness or negligence on the part of defendants, but were caused solely by an inevitable accident, or by an act of God. A copy of the written contract referred to was attached to the answer as an exhibit. It, omitting formal parts, reads: “Lease and Service Agreement. “The Roderick Neon Company, a Missouri Company, as lessor, and The JG Decorating Store, Inc., as lessee do hereby mutually agree as follows: “(1) Lessor agrees to construct and erect a two (2) sided sticlcout sign 3' x 8' with JG in red neon on an alternating flasher and Paint and Wallpaper in power green neon to burn stead [sic] with balance of copy in painted lettering only, and to lease said sign to the lessee for a period of thirty-six (36) months, commencing upon the day said sign is erected and expiring at midnight of the day thirty-six full months (36) thereafter. “(2) Lessor will maintain said sign after installation in good working order and condition and in case said sign shall fail to operate at anytime lessor shall cause said sign to be put in proper repair and working order as promptly as practical after receiving notice of such failure from lessee. “(3) Lessee agrees to pay to lessor or its assigns as rental for said sign the sum of $13.70 monthly payable at the office of the lessor, the first payment being due the day sign is erected and payable in advance on the same day of each calendar month thereafter. “At the end of thirty-six (36) months said sign may be purchased by lessee upon payment of one (1) dollar, and the lessors liability ends with purchase by lessee. “(4) The sign shall at all times be deemed the personal property of lessor until the aforementioned conditions of this agreement have been completely complied with. “In witness whereof, the parties have caused this agreement to be executed in duplicate this 29th day of February, 1956.” Plaintiff filed a motion to require the answer be made definite and certain by stating when the sign was erected, whether the payments mentioned in the contract were made, and by stating whether it was contended by the store owner that the sign was still the exclusive property of the sign company. This motion was sustained. Defendant store owner then filed its separate amended answer, and in paragraph 3 thereof alleged substantially the same matters contained in its original answer, and in addition alleged that the sign was erected by the sign company some time subsequent to April 11, 1956, the exact date being unknown; that the store owner made payments of $13.70 monthly rental charges provided by the contract, and specifically denied that the payment of one dollar was ever made to the sign company. In paragraph 4 of this separate answer of the store owner it was alleged that if plaintiff suffered personal injuries as alleged in her petition, such injuries were not caused by any act of carelessness or negligence on the part of the defendants, “but were caused solely by an inevitable accident or by a severe wind and thunder storm which was an act of God.” Plaintiff filed a demurrer to the allegations of paragraphs 3 and 4 of the separate amended answer on the ground that neither paragraph alleged facts sufficient to constitute a defense or a partial defense to the petition. This demurrer was sustained as to paragraph 3, and overruled as to paragraph 4. Defendant store owner has appealed from the order sustaining the demurrer to paragraph 3. Plaintiff has cross-appealed from the order overruling the demurrer to paragraph 4. In contending the trial court erred in sustaining plaintiff’s de murrer to paragraph 3 of its separate amended answer, defendant store owner argues that a defendant may set up in an answer all available defenses (G. S. 1949, 60-710) to controvert the claim of a plaintiff; that it is entitled to rely on the written contract to establish the fact that it employed an expert in the business (the sign company) to install the sign; that having employed one skilled in that line of business to install the sign a jury might well believe that it, this defendant, was not negligent in any matter pertaining to the sign, and that where one party to an action states his version of a document the opposing party should be permitted to set out the correct agreement. Although defendant store owner affirmatively states that it does not contend that by being permitted to plead and prove the existence of the contract, plaintiff, as a matter of law, would not be entitled to recover against it, we believe such defendant misconstrues the actual effect of the order sustaining the demurrer to paragraph 3 of the separate amended answer. The written contract and allegations concerning it were not stricken from that answer. The effect of the ruling in question was merely that such defendant’s allegations and conclusions with respect to the construction of the contract were insufficient to constitute a defense. Apparently the theory of the trial court was that, as a matter of law, liability to the public did not depend entirely upon ownership of the sign. As we read the contract, which is set out above, it is in the nature of a “rental and service agreement” whereby the sign company is obligated to maintain the sign in proper repair and working order in return for the monthly payments, with the further provision that at the end of thirty-six months the sign may be purchased by the store owner upon payment of one dollar, at which time the sign company’s liability to keep the sign in good working order shall end, and that until the aforementioned conditions have been completely complied with the sign shall be deemed to be the personal property of the sign company. The contract contains nothing about liability of either party for negligence with respect to the public, and in its brief the store owner inferentially concedes the general rule to the effect that ordinarily a party cannot contract away his liability for negligence as far as a third party is concerned. At oral argument of this appeal some discussion was had as to whether, upon the trial of the case, the written contract would be admissible in evidence. At this stage of the case we do not know what the evidence will disclose and therefore express no opinion on that question, but in the very nature of things the ownership of the sign, along with all of the other facts and circumstances which may be developed, is a factor to be taken into consideration in the determination of liability as between the two defendants. In our opinion it may not be said the trial court erred in sustaining the demurrer to paragraph 3 of the separate amended answer. And likewise, without further discussion, we believe it may not be said the trial court erred in overruling the demurrer to paragraph 4 of the separate amended answer in which it is alleged that plaintiff’s injuries “were caused solely by an inevitable accident or by a severe wind and thunder storm which was an act of God.” As to both the appeal and cross-appeal the rulings are affirmed.	[ -48, 110, -40, -115, 26, 98, 58, -6, 117, -96, -75, 83, -83, -61, 13, 127, -1, 125, -47, 42, -14, -77, 19, -86, -42, -5, -77, 85, -71, 95, -10, -10, 76, 112, 66, -105, -26, -54, -59, 30, 10, 1, 11, -32, 57, 0, 48, 59, 36, 74, 49, -99, -13, 45, 28, -61, 104, 44, 105, 45, -63, -72, -55, 5, 125, 23, 17, 38, -98, -57, -8, 26, -104, -79, 0, -24, 114, -74, 6, -76, 109, -119, 4, -95, 98, 32, 17, -81, -20, -8, 47, 66, -115, -89, -126, 24, 9, 39, -99, -97, -19, 16, 4, 126, -3, 21, 23, 108, 11, -122, -76, -79, -25, 113, 30, 95, -17, -125, -77, 97, -49, 44, 93, 86, 114, -105, -49, -68 ]
The opinion of the court was delivered by Mason, J.: Edward DeHardt sustained injuries through his automobile, in which he with others was riding, being run into at a . railroad crossing. He sued the company and recovered a judgment, from which the defendant appeals. There was evidence tending to show these facts, which the jury may be deemed to have found: The automobile came from the north along a highway which crossed eight or nine tracks, the first and second being nine or ten feet apart. The traveled part of the road was nine or ten feet wide. An ice-house stood just east of the highway and north of the first track. A coal car was standing on the first track, its west end being three or four feet east of the traveled part of the road, the east end being about even with the ice-house. A box car was standing still on the second track about the same distance east of the road. The automobile crossed the first track, and as its wheels reached the second track an engine backed two other box cars against the one already referred to and threw it against the automobile, or else the engine, having previously been standing still, coupled to the three cars, suddenly started up with the same result. The whistle was not sounded nor the bell rung. The principal contention made is that as a matter of law the plaintiff (or his chauffeur, for whose conduct he was admittedly responsible) was guilty of contributory negligence in driving upon the track without having used reasonable diligence to ascertain whether it was safe to do so — that under the rule applied in a number of cases, the latest of which is Wehe v. Railway Co., 97 Kan. 794, 156 Pac. 742, it was the duty of the driver to stop his car and see whether the track was clear before attempting to cross, if the situation was such that he could not ascertain the fact in that regard without doing so. Where one end of a string of' cars is standing still near a crossing, an engine being at the other end, ordinary prudence does not require a traveler to stop and look up the track before attempting to cross, because whatever risk he runs is that the engine may suddenly start up, and stopping his own vehicle and going upon the track to look would not give him any additional information as to the likelihood of that taking place, (Railway Co. v. Dawson, 64 Kan. 99, 67 Pac. 521; Railway Co. v. Wilkie, 77 Kan. 791, 90 Pac. 775; Notes, 15 Ann. Cas. 732; 11 L. R. A., n. s., 963.) Where a single freight car, or a small group of cars, is standing near the crossing, it would be possible to ascertain, by looking from a point in the road close to the track, whether a train is about to run into it and drive it across the highway. But wé do not think it can be said as a matter of law that the driver of an approaching vehicle is guilty of negligence if he neglects to take this precaution. He is bound to act upon the assumption that a train may at any moment be approaching upon an otherwise unoccupied track, until he has employed all reasonable means to assure himself to the contrary. He may not rely on the fact that no signal -has been given, for that affirmative precaution on the part of the trainmen may be thoughtlessly omitted. But if he sees that the track-is obstructed by a detached car or string of cars the probability of injury resulting to him from a train coming from that direction is so far diminished that we think the question whether ordinary prudence forbids his attempting to cross without further investigation is a fair one for a jury. As was said in Stoy v. Louisville, etc., R. Co, 160 Ind. 144: “It is true that at an ordinary grade crossing the traveler- must first vigilantly exercise his senses before placing any reliance upon the supposition that the company will perform its duty, ... but this holding is based upon the fact that the danger of a train dashing over the crossing is too great to justify a reliance upon such supposition alone; but where inert and detached cars stand on either side of a crossing, we think that the traveler’s conduct should be viewed in the light of the situation as it presented itself to him.” (p. 152.) (See, also, 33 Cyc. 1036; Cleveland, etc., R. Co. v. Penketh, 27 Ind. App. 210; Murray v. Fitchburg Railroad, 165 Mass. 448; Davis v. Michigan Central R. Co., 142 Mich. 382; St. L. S. W. Ry. Co. v. Bowles, 32 Tex. Civ. App. 118; Copley v. Union Pac. R. R. Co., 26 Utah, 361.) In behalf of the defendant it is argued that the evidence conclusively shows that the cars were moving when the automobile approached the crossing. There was positive testimony to that effect, but there was also positive testimony to the contrary. To several questions submitted as to whether the occupants of the automobile could have seen the cars approaching if they had looked from different points the jury answered: “Could not see the cars approaching.” The form of the answer suggests that the jury meant that the cars could not be seen approaching because at the time indicated they were not moving. There was evidence to support the findings as so interpreted, and such interpretation must be adopted if. necessary to sustain the verdict. It is contended that the negligence found by the jury does not afford a basis of liability. To a question calling for a statement of the negligence of which the defendant was found guilty the jury answered: “By obstructing the view of the crossing with coal car and not properly flagging the road crossing.” They also found specifically, however, that the whistle was not sounded nor the bell rung, and answered in the negative a question whether a switchman was at the front end of-the front car as it approached the crossing. These findings must be interpreted together and given any construction of which they are fairly susceptible that will support the judgment. The reference to the absence of a flagman does not eliminate the failure to give signals as a form of negligence relied on (Springer v. Railroad Co., 95 Kan. 408, 148 Pac. 611), but rather seems to indicate that the jury meant that it was incumbent upon the company to provide either a flagman or some of the other precautions found to have been omitted. It is argued that no showing was made that the presence of a flagman would have prevented the accident. We think the reasonable presumption is that a flagman properly stationed to keep track of the operation of the trains would have known of the likelihood of the engine starting up (or of the engine forcing two of the cars against the third) and given an effective warning of the fact. A new trial is asked on the ground that one of the attorneys for the plaintiff asked several witnesses, who had been in the automobile at the time of the accident, whether the railway company had settled with them, and on objections to the questions being sustained made an offer to prove that this was the case; and that in the course of his argument he referred to a settlement having been made with them. The trial court instructed the jury not to consider the matter, and its judgment implies a finding that no prejudice resulted. We do not regard the record as compelling a contrary conclusion. The judgment is affirmed.	[ -16, 122, -40, -81, 26, 104, 50, -38, 101, -63, -89, -45, -83, -37, -123, 51, -2, -65, 80, 43, -9, -109, 23, -93, -78, 83, -77, -123, 23, -54, 100, -42, 76, 32, 10, -43, 102, 74, 69, 94, -50, 62, -70, -24, 25, 48, -76, 120, 4, 78, 113, -114, -61, 46, 24, -57, 41, 44, 75, -83, -48, 112, -120, 7, 127, 18, -93, 36, -98, 39, 104, 24, -104, 49, 12, -4, 115, -90, -107, -12, 41, -103, 8, -30, 103, 33, 21, -17, -20, -72, 14, -22, 15, -89, 52, 25, -119, 37, -97, -103, 115, 20, 6, 126, -2, 93, 95, 116, 1, -117, -76, -127, -19, 118, -106, 5, -53, -83, 18, 113, -54, -14, 94, 5, 122, -101, -33, -74 ]
The opinion of the court was delivered by Marshall, J.: This is an action to recover specific personal property. Judgment was rendered against the plaintiff and in favor of defendants Roundtree and Bisel on their motions for judgment on the pleadings. The plaintiff appeals. The plaintiff’s pleadings consisted of an ordinary petition and affidavit in replevin. The action .was dismissed as to defendant W. H. Posten. Defendants Roundtree and Bisel filed, separate answers. Each of these answers disclosed the follow ing facts: That on September 9, 1915, defendant Bisel commenced an action on a promissory note before defendant Posten, a justice of the peace, against O. H. McQuary, jr., and Minnie Alta McQuary, for the recovery of $152.62; that summons was served and an order of attachment was issued on September 10,1915; that the order of attachment was levied on the property in controversy in the present action; that on September 16, 1915, R. M. Dunning,'the plaintiff in the present action, filed an interplea in the action before the justice of the peace, in which interplea the plaintiff, Dunning, alleged that he was the owner of the property in controversy and prayed that the attachment be dissolved and that he be given possession of the property; that the action before the justice of the peace was tried as to all parties on September 16, 1915; that the plaintiff, Dunning, introduced evidence to establish the allegations of his interplea; that defendant Bisel demurred to that evidence; that the demurrer was sustained by the court, and that judgment was rendered against Dunning for costs; and the judgment was rendered against O. H. McQuary, jr., for $169.10 and costs. No reply was filed in the present action to the answer of either of the defendants. The plaintiff contends that his proceeding before the justice of the peace was under section 152a of the justices’ civil code, while the defendant argues that the plaintiff’s interplea was filed under section 45 of the code of civil procedure. Section 152a of the justices’ civil code, in part, reads: “When a constable shall levy on or attach property claimed by any person or persons other than the party against whom the execution or attachment issued, the claimant or claimants shall give three days’ notice in writing to the attachment or execution creditor, his attorney or his agent, . ... of the time and place of the trial of the right to such property, which trial shall be had before some justice of the township, at least one day prior to the time appointed for the sale of such property.” Under the facts disclosed by the pleadings in the present case, the notice provided for in this statute was not given. Section 45 of the code of civil procedure reads: “Any person claiming property, money, effects or credits attached as the property, money, effects or credits of another, may interplead in the cause, verifying the same by affidavit made by himself, agent or attorney, and issues may be made upon such interpleader, and shall be tried as like issues between plaintiff and defendant and without any unnecessary delay. In all cases of interpleader, costs may be adjudged for or against either party, as in ordinary cases.” In his interplea the plaintiff, Dunning, claimed the property-attached. The property was of the kind described in section 45 of the code of civil procedure. The instrument filed was denominated “Interpleader of E. M. Dunning.” It was verified by E. M. Dunning. It was tried at the same time and, presumably, in the same manner as the issues between the plaintiff and the defendant in the action before the justice of the peace were tried. The instrument filed by Dunning did not comply with any of the provisions named in section 152a of the justices’ civil code, but did comply with all of the requirements of section 45 of the code of civil procedure. It must be held that the plaintiff, Dunning, did interplead under that section, and that he must abide all the consequences following the trial of his interplea. Those consequences are that the plaintiff, Dunning, is bound by the judgment rendered by the justice of the peace on that interplea, and can not maintain another action for the recovery of the property. (James Clark & Co. v. Wiss & Ballard, 34 Kan. 553, 555, 9 Pac. 281; Meegan v. Pettibone-Gentry Co., 85 Kan. 536, 538, 118 Pac. 64.) The plaintiff insists that no judgment was rendered against him by the justice of the peace, and that for that reason the proceeding before the justice of the peace is not a bar to the prosecution of this action. The language used by the justice of the peace in his transcript is as follows: “Demurrer to evidence filed by plaintiff, N. M. Bisel, court sustained demurrer, and rendered judgment against claimant for costs.” That' language clearly and conclusively shows that the plaintiff’s claims to the ownership of the property were decided against him, and that judgment was rendered against him for costs, which was the only judgment that could have been rendered against Dunning in that action. The judgment is affirmed.	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The opinion of the court was delivered by Porter, J.: In June, 1913, M. J. Robertson was engaged in the retail grocery business at Kansas City, and held a policy in the American Insurance Company covering loss to the amount of $1200 on his stock and fixtures, which were destroyed by fire on the night of June 10. The insurance policy was destroyed in the same fire. Robertson was indebted to the Ridenour-Baker Grocery Company of Kansas City, Mo., something in excess of $1400 for merchandise. On the day following the fire an agent of the grocery company asked him to assign his- insurance to the company toward payment of the account, and he agreed to do so. Together they went to the local agent of the insurance company, stated their desires, and Robertson thereupon executed and delivered to the agent of the grocery company the following order: “Felix Fulton, Agent, “Kansas City Kansas, 6/11/13. American Insurance Co., K. C. Kans. “The payment of loss under Fire Policy No. 42560, American, you will please pay to Ridenour-Baker Grocery Co. and I will endorse draft to them when same is received by you. M. J. Robertson,” The grocery company immediately notified the insurance company of the assignment and took up the adjustment of the loss, finally agreeing to accept $1000 in full payment of the loss. Eleven months after the fire and after the grocery company had agreed upon a settlement, but before the insurance had been paid, W. H. Robertson, father of the insured, began a suit in the district court against his son on some claim of a cause of action, and caused a garnishee summons to be served upon the insurance company. M. J. Robertson, though served with a summons, made no defense to the action,-and a judgment was entered in the father’s favor for the amount claimed. The insurance company answered, denying that it owed anything to M. J. Robertson, alleging that he failed to make proofs of loss under the policy, and also set up the assignment of the insurance to the grocery company, the adjustment and agreement under the assignment by which the insurance was to be paid to the grocery company, and asked permission to pay the $1000 into the hands of the clerk of the court. The request was granted, the money was deposited in court, and the grocery company and the two Robertsons set up by appropriate pleadings their claims to the fund. M. J. Robertson filed an answer not contesting the claims of his father, but asserting in general terms that the assignment was “illegal, fraudulent, and void.” On the trial the district court found in favor of the grocery company, and ordered the fund paid to it. W. H. Robertson and M. J. Robertson appeal from the judgment. A number of trivial objections are urged in support of the contention that it was error to admit in evidence the assignment of the insurance. It is said it was not directed to the insurance company, but to its local agent; it is said he was the agent of the insured. But he was likewise the agent of the insurer, and no reason is suggested why he could not in such a matter represent both insured and insurer. However, it was not essential that the order be directed to the insurance company, and the insured was there to represent himself and needed the services of no agent. We think there can be no question but that the instrument was admissible in evidence and that it amounts to an equitable assignment of whatever claim the assignor had against the insurance company upon the policy mentioned therein. There is no merit in the contention that the assignment was without consideration. It was given to secure a preexisting indebtedness of the assignor. (McCubbin v. City of Atchison, 12 Kan. 166.) In James Clark & Co. v. Wiss & Ballard, 34 Kan. 553, 555, 9 Pac. 281, it was held that “a debt due for goods sold and delivered, and resting for evidence on a book account, may be assigned, and such assignment is valid if made by mere delivery.” And any chose in action may be assigned, no particular form of words or of instrument being necessary. “Any language or act which makes an appropriation of a fund amounts to an -equitable assignment of that fund.” (2 A. & E. Encycl. of L. 1055.) “It may be in the form of an order on the debtor or holder of the fund assigned to pay the debt or fund to another person.” (4 Cyc. 42. As applied to orders for the payment of money due on an insurance policy, see Spratley v. Hartford Ins. Co., 1 Dill. 392, 22 Fed. Gas. 973.) There was abundant evidence to show the correctness of the account of Ridenour-Baker company. It is useless to contend that there was prejudicial error in admitting in evidence statements of a witness who testified that he was in charge of the city credits of the grocery company, and that the entries, though not made in his presence, were made under his supervision. They were entries made in the regular course of busi - ness, and were admissible under the rule of section 384 of the code. (Richolson v. Ferguson, 87 Kan. 411, 124 Pac. 360; Cockrill v. Railway Co., 90 Kan. 650, 136 Pac. 322.) “The modern notion of the admissibility of evidence is that it is more important to get the truth than to quibble over imprac tical distinctions between facts and conclusions,” (Bank v. Robinson, 93 Kan. 464, syl. ¶ 2, 144 Pac. 1019.) The cause being one in the nature of a bill of inter-pleader, the whole controversy was equitable in character, and not one in which either party was entitled to a jury. Moreover, upon the undisputed facts in the case, the plaintiff was not entitled to recover; and if it had been a jury case, the court might properly have directed a verdict for the grocery company. It should be stated that, although there was no evidence that the loss under the policy exceeded $1000, the grocery company offered and was permitted by the court to credit the account of Robertson with the full amount of the policy. The judgment is affirmed.	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The opinion of the court was delivered by Burch, J.: The action was one by the parents of a deceased workman for compensation for his death. The plaintiffs recovered, and the defendant appeals, the contention being that the plaintiffs were not dependents within the meaning of the workmen’s compensation act. The statute involved contains the following provisions: “ ‘Dependents’ means such members of the workman's family as were wholly or in part dependent upon the workman at the time of the accident. And ‘members of a family’ for the purpose of this act means only widow or husband, as the case may be, and children; or if no widow, husband or children, then parents. . . . The amount of compensation under this act shall be : (a) Where death results from injury: (1) If the workman leaves any dependents wholly dependent upon his earnings, an amount equal to three times his earnings for the preceding year but not exceeding thirty-six hundred dollars and not less than twelve hundred dollars. . . . (2) If the workman does not leave any such dependents, but leaves any dependents in part dependent upon his earnings, such proportion of the amount payable under the foregoing provisions of this section as may be agreed upon or determined to be proportionate to the injury to the said dependents.” . . . (Gen. Stat. 1915, §§ 5903, 5905.) The court made the following findings of fact: “(a) That on the 12th day of February, 1915, the said Rue Fennimore was killed by an accident arising out of and in the course of his employment with the said defendant coal company; and “(b) That the said Rue Fennimore, deceased, was nineteen years of age at the time of his death; and “(c) That the said plaintiffs, James Fennimore and Myrtle Fennimore, are the father- and mother of the said Rue Fennimore, deceased, and that he was the only child of said plaintiffs; and “ (d) That the said Rue Fennimore, deceased, was unmarried at the time of his death, and that he had never been married and that he died without issue, and left said plaintiffs as his sole and only surviving heirs at law; and “(e) That the said Rue Fennimore, deceased, had always lived at home with his father and mother; and “(f) That the earnings of the said Rue Fennimore, deceased, for the year next preceding his death were $600; and “(g) That the said Rue Fennimore, deceased, contributed to the support and maintenance of his said parents the sum of $25 per month out of his earnings; and “(h) That the said plaintiffs were in part dependent upon the earnings of the said deceased at the time of his death; and “ (i) That the said plaintiffs were dependent upon the earnings of the deceased to the amount and extent of $25 per month, at the time of his death; that the said plaintiffs were dependent upon the earnings of the said deceased to the extent of five tenths (%o) of such earnings; and “ (j) That by reason and in consequence of the death of the said Rue Fennimore, deceased, the said plaintiffs were damaged in the sum of $900.” There was evidence that the family lived in a home which cost $1450 and was owned by the father. He owned 240 acres of land in Missouri, which was rented, and from which he received $400 or $500 in the year 1915. The net income from the farm was not inquired about. The father owned an automobile which he traded for, and which the son took care of and used to make money with when he was not working. The father owned one-fourth of the capital stock of the defendant company. The company was capitalized for $30,000, and the father had paid about $5000 on his stock subscription. Income from this source and, the value of the stock were not inquired about. The father also worked for the company for wages, receiving $125 a month. His liabilities were not inquired about, but he had no money in the bank and no money loaned out. The mother had no money or property. She did her own housework and washing, with the aid of her son, who washed dishes, helped on wash days, and the like. He turned his money over to his mother to the extent of perhaps $35 per month. It is argued that the parents were not dependent on the son because the father had too much property and too large an income. The question whether or not the plaintiffs were partially dependent on the earnings of their son was a question of fact, and a finding of the fact of partial dependency is conclusive on appeal if there be any evidence to support it. The statute is a blind guide to the determination of the question of fact. Dependents are said to be members of the workman’s family who are dependent on him. The definition includes the term to be defined. Earnings of the workman come in as a factor of dependency in the provision relating to the amount of compensation to those who were wholly dependent. Injury comes in in the provision relating to the amount of compensation to partial dependents. But there is no definite standard of dependency, either total or partial. Perhaps the legislature used the word “dependent” in the dictionary sense of relying on the workman’s earnings for support. Support for what? The bare necessities of life, without which existence would be impossible, or support according to some standard? If according to some standard, what standard ? One to which the dependent was accustomed, or one which the court might think reasonable under all the circumstances? Cases interpreting workmen’s compensation acts may be found in an exhaustive annotation in L. R. A. 1916 A, 23, and in the Corpus Juris treatise, “Workmeri’s Compensation Acts,” published by the American Law Book Company as an advance article of the Cyc. — Corpus Juris system. In many of these cases the courts undertake to define the word “dependents” and' to state tests of dependency. As the supreme court of Michigán remarked in the case of Miller v. Riverside Storage & Cartage Co. (Mich. 1915), 155 N. W. 462, these definitions and tests, suggested by the facts of particular cases, do not supply a rule, because universal standards of independence can not be set up. Accepting the statute just as. it came from the legislature, the court is of the opinion that the question before the district court was not one of how the domestic economies of the Fennimore family might have been arranged, or ought to have been arranged, but how they were arranged; and if the father and mother did in fact depend , in part on the son’s earnings, so that they suffered injury by being deprived of what they had relied on, they were entitled to recover. This being true, the finding of partial dependency is abundantly sustained. The judgment of the district court is affirmed.	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The opinion of the court was delivered by West, J.: Of the numerous defendants the Dobson Investment Company, State Bank of Ottawa and F. C. Dobson appeal from certain judgments in favor of a number of material-men in litigation arising out of the construction of a building on ground formerly owned by the bank. The assignments of error chiefly relied on have reference to the priority of liens and to the amount of judgment rendered in favor of the Elder Mercantile Company. The parties and issues were so numerous that the court made thirty-eight findings of fact and nineteen conclusions of law. The State Bank of Ottawa owned a certain lot. The Ottawa Investment Company was organized with substantially the same membership as that of the bank, with a capital stock of $10,000, the lot being purchased for $7500 in money and constituting the assets of the investment company. The latter company,, desiring to build on the lot, had plans made and executed á trust deed to secure the payment of $50,000, which deed was placed of record. The work began, and before any money was secured the State Bank paid the bills as they came in for the labor and material going into the building. The investment company deposited $10,000 of the bonds as security for the advances, borrowed $5000 from a Kansas City bank; the company and its president, C. F. Dobson, indorsed the note individually and caused the company to deposit $5000 of the bonds with the Kansas City bank, and the money so borrowed was placed in the State Bank to cover an overdraft. Soon the overdraft grew to $10,000, and the note for $5000 having become due, it was paid by Dobson, who took it up and also the $5000 bonds, the investment company consenting that he should hold these as security,'and iater, by agreement with Dobson, the bank' and the investment company, the bank became the owner of the $10,000 bonds which had been de posited with it and Dobson became owner of the $5000 bonds held by him as security, and the indebtedness of the investment company to Dobson and ¿he bank was canceled. On June 1, 1914, the work on the building ceased. The material-men had made agreements with the investment company to furnish material, and liens therefor were filed. Late in September the investment company contracted with Peacock & Son, with the consent of Dobson and the State Bank, to, complete the building according to the original plans unless thereafter modified. In payment the investment company was to issue bonds in the sum of $65,000, secured by a first-mortgage lien on the real estate, building and contents, and issue its preferred stock to the amount of $35,000. The contract contained a stipulation that all bonds of the existing issue then outstanding and the mortgage securing the same should be canceled. Dobson was to accept in lieu of his $5000 of the old bonds a promissory note of the investment company for that amount. The investment company was to secure the consent and agreement of the State Bank to accept $10,000 of the new bonds for $10,000 of the old bonds held by it. The obligation of the contractors to proceed with the construction of the. building was conditioned upon the retirement and cancellation of the other bonds and upon the contractors’ being able to make satisfactory settlement of the obligations and debts of the investment company. The contract contained a warranty that the title was clear save the mortgage for the $50,000 bond issue, only $17,500 of which was outstanding. The contract also contained this provision : “All materials now in said, building or on the ground or in the street or otherwise furnished or delivered to said company for the purpose of constructing or erecting said building shall be and become the property of said contractors as part of the consideration of this contract and said company agrees to put said contractors in possession of the said building for the purpose of said construction and in possession of the said property and warrants the title of said property to said contractors subject to the aforesaid claims.” Shortly after the signing of this contract it was suggested that the investment company did not, have legal authority to issue the bonds and stock provided for, and thereupon, at the suggestion of the Peacock firm, the Dobson Investment Com pany was organized out of the same personnel as had constituted the Ottawa Investment Company, capitalized at $65,000. At this time Dobson was vice president of the bank, and Finley, a member of the Dobson company and the investment company, was its cashier. The bank had been consolidated with another, and in February, 1915, was transacting business across the street from the incompleted building involved herein, and the bank officials at all times knew that Peacock & Son were proceeding with its completion, and Dobson and Finley, and the bank knew that Peacock & Son had not furnished the surety bond for the faithful handling of the stock and bonds and for the completion of the building mentioned in the contract between them and the investment company. The Dobson Investment Company issued a trust deed upon the real estate in question, signed by Dobson as president and Finley as secretary, which trust deed recited that it was a first lien upon the real estate. It was executed June 25, 1915, and recorded August 18 following. The assets of the investment company were transferred, to the Dobson company in April, 1915. October 31, 1914, the Elder Mercantile Company contracted with Peacock & Son for the completion of the heating, plumbing, gas fitting and compressed-air vacuum lines, having heretofore perfected a lien for the work done before the construction of the building ceased, June 1, 1914. Under this contract of October 31,1914, the bond, which under the former contract Peacock & Son were to furnish assuring the early completion of the building, was waived, and the agreement that if Peacock & Son were paid in bonds they need not pay the Elder Mercantile Company until they realized on such bonds, was stricken out of the original contract, and it was agreed, among other things, that payment for work, material and labor should be made as otherwise provided in such original' contract. Under the contract thus modified the Elder Mercantile Company furnished labor and material to a large amount. Peacock & Son abandoned the work about December 15,1915. They failed to give the Dobson Investment Company or the Ottawa Investment Company the bond provided for in the contract of September 24, 1914, and the bank and investment company and Dobson refused to surrender the bonds of the Ottawa Investment Company and to have the mortgage securing such bonds released of record. In August, 1915, the Dobson Investment Company delivered to Peacock & Son $40,000 of the bonds of the Dobson company on condition that such delivery should not operate as a waiver of the right to the bond already mentioned. The court found that the work done by Peacock & Son on the building and the work and material furnished by the lien claimants added to its value $1.5,000, and that to complete the building as it stood at the time of the trial, according to the plans, would cost about $32,000. The court concluded. that by the contract of' September 24, 1914, Peacock & Son assumed the obligations of the Ottawa Investment Company for labor and material that had theretofore gone into the building. Judgments were rendered'for the various lien holders. The State Bank of Ottawa, F. C.'Dobson and the Ottawa Investment Company were given judgments for the amounts due them, such judgments to be second liens upon the property in question. Peacock & Son’s judgment was decreed to be the third lien, and the material-men were decreed to have concurrent liens prior to both. It is claimed that the contractors and subcontractors abandoned the work on June 1, 1914. But the court found that no steps were taken to resume the work until the 24th of September, when the investment company entered into a written contract with Peacock & Son. That the time intervening between this and the date of actual resumption of work “was consumed by the organization of the new company, the preparation of the bonds and trust deeds, a vast amount of correspondence between the Peacocks and their attorney in Cincinnati, Ohio, . . . and many other details in connection with the transaction carried on almost exclusively by correspondence.” It was the Ottawa Investment Company which was constructing the building, and while the work ceased it was not from any purpose or intention on its part to abandon it, for the contract with the Peacock firm provided for the completion of the work according to the original plans and also recognized the claims of the materialmen whose liens had been filed after the work had ceased. The contract recited that the investment, company was indebted to certain persons for labor and material furnished for the building in the sum of $5433.16; that the title to the real estate was clear save for the mortgage of $50,000, and that “any other debts or liabilities of said company, or any amount for which liens of either head of subcontractors or materialmen or others can be claimed or taken or otherwise asserted on said real estate or building or any part thereof, do not exceed in the aggregate the sum of fifty-four hundred thirty-three and 16Aoo ($5433.16) dollars.” The contract between the Peacock firm and the Elder company recited: “There having already been furnished labor and material on above contracts to the amount of Fourteen Hundred Fifty-three Dollars and Sixty-six cents ($1453.66) with 6% interest from July 16th, 1914; that the said Elder Mercantile Co., agrees to cancel their lien upon the filing of a sufficient bond assuring the early completion of the building, with the understanding that they will be paid that amount on the completion of the building and will continue the above mentioned contracts.” Thus it appears that both the Peacock firm and the company with which it contracted recognized the claims and liens of the Elder Mercantile Company when arrangements were made for resuming the work and completing the building. The investment companies and the Peacock firm having by their contracts and by their actions recognized and treated the province of the Peacock firm as one to complete and not to begin the construction of the building, and having recognized the rights of the materialmen to the amounts for which they had filed liens, such materialmen, upon furnishing more labor and material, would plainly have the right when the work was finally abandoned by the Peacock firm to file liens for such additional labor and material as they had furnished. While in a technical sense it might be said that the liens filed before the Peacock firm came into the matter were premature, this, even if so, would make no substantial difference, owing to the recognition of their claims and liens by all concerned. In other words, when the work ceased on June 1, 1914, if the materialmen had no knowledge or notice of any intention of the Ottawa Investment Company to proceed further with the building or any reason to think that the work had been abandoned they were justified in filing the liens. (Davis v. Bullard, 32 Kan. 234, 4 Pac. 75; Shaw v. Stewart, 43 Kan. 572, 23 Pac. 616; Lumber Co. v. Savings Bank, 52 Kan. 410, 34 Pac. 1045; Hotel Co. v. Hardware Co., 56 Kan. 448, 43 Pac. 769.) ■ On the other hand, if, as the fact appears, the Ottawa Investment Company had no intention or purpose of abandoning the work, but intended to provide for its completion as soon as possible and did not so advise the materialmen it could not complain because they filed liens on the theory of abandon-' ment. But, however this may be, having in fact proceeded to contract for the completion of the building and then having recognized the claims, and liens of the materialmen, "and the firm with which they contracted having likewise recognized them, it would certainly be harsh and unfair to hold that on the mere question of the time of their filing such claims or liens should be avoided or impaired. It is forcibly contended that as the mortgage securing the original bonds held by the appealing defendants was of record the lien claimants were bound to take notice thereof and have no right to priority thereover. It is quite true that the lien of a materialman may not ordinarily supersede an existing mortgage upon property for the improvement of which he furnishes labor or material, but this is not an ironclad rule which under no circumstances can have an exception. In this case the officers of the bank, and of the investment companies, and Mr. Dobson himself were largely the projectors and managers of the entire building scheme. Practically the same men who constituted the bank constituted in turn the two investment companies, Mr. Dobson and Mr. Finley being prominent in all three, all having actual and visual knowledge of the progress-of the work; and.when the contract with the Peacock firm provided that the bonds of the Dobson Investment Company should be a first lien on the property, then certainly as between the complaining parties and that firm the Dobson Investment Company bonds would take precedence over the Ottawa Investment Company bonds. It is urged, however, that all the lien claimants knew of the contract between the Ottawa Investment Company and the Peacock firm and referred to it in their contracts, and by their admissions therein are estopped to deny the validity of the original mortgage. It is argued that as the labor and material to finish the building were to be paid for in stock and bonds of the Dobson Invest ment Company, the subcontractors were bound to take notice of this agreement, and had no right to file liens against the property. It is further contended that in all but three of the contracts with Peacock & Son the subcontractors waived the right to file mechanics’ liens, and that having done this they could not afterwards change their minds and file liens which could be recognized by law. Bloom, in his supplement to the Law of Mechanics’ Liens, page 223, says: “An agreement to waive the lien of one who performs labor upon or furnishes materials for a building must be certain and must be clearly and unequivocally established; and if such agreement is subject to conditions subsequent which are not performed by the other party the claimant does not waive his lien.” (Concord Apartment House Co. v. O’Brien, 128 Ill. App. 437; Nice v. Walker, 153 Pa. 123; Holm v. Chicago, Milwaukee & P. S. R. Co., 59 Wash. 293; Pacific Lumber & Timber Company v. Dailey, 60 Wash. 566.) As Peacock & Son failed to carry out their part of the contract to furnish bond, it is argued that in effect the subcontractors failed to carry out their agreement; that it was their duty to see that the original contract was fully performed; that if it had been fully performed they would not have been entitled to a lien, and that by failure to'carry it out they should have no greater rights. This provision to pay in bonds was stricken out of the second contract between the Peacock firm and the Elder company. The court found that Peacock & Son wholly failed to give the Dobson Investment Company or the Ottawa Investment Company the bond provided for, and by reason of such failure the State Bank, the Ottawa Investment Company and Dobson refused to surrender their bonds and to have the mortgage securing them released. The court further found that the Dobson Investment Company delivered $40,000 of its bonds, although without waiving the right to the bond agreed to be furnished by the Peacock firm. Also, that in each of the contracts between Peacock & Son and the lien claimants the latter agreed that they would not take or assert any lien, but that they made these contracts relying on the terms and conditions of the contract between the Peacock firm and the Ottawa Investment Company and did not waive their right to liens except upon condition that such contract be complied with. The court expressly found that none of the lien claimants except the Elder company had any knowledge while per forming labor and furnishing material that Peacock & Son had failed to furnish the bond provided for in their contract with the investment company or that the bank and Dobson had failed to have the mortgage of the Ottawa Investment Company cancelled. The court concluded as matters of law that the Peacock firm assumed the obligations of the Ottawa Investment Company for labor and material already furnished, that the appealing defendants should have judgment for the amount of their bonds and a second lien therefor upon the property, and that the Dobson Investment Company bonds should be canceled. It would seem, therefore, that the lien claimants proceeded on the theory that the contract between the investment company and the Peacock firm would be or had been complied with. While doubtless it was their duty to take knowledge of the contract, we know of no rule which requires them to take notice of its violation or nonfulfillment. “A person making a subcontract is presumed to make it knowing the agreement of the principal contractor, but no subsequent agreement of the principal contractor can be set up to the subcontractor’s disadvantage.” (Shaw v. Stewart, 43 Kan. 572, 579, 23 Pac. 616.) A subcontractor’s rights will not be affected by any subsequent agreement between the owner and contractor to which they have been assigned or by any act of waiver of the original contractor. (Nixon v. Cydon Lodge, 56 Kan. 298, 43 Pac. 236.) “His subcontract is subordinate to the principal contract with the owner, and is presumed to be made with knowledge of its existence, although he is not bound by all of its terms.” (Lang v. Adams, 71 Kan. 309, 311, 80 Pac. 593.) The parties most interested in the construction and completion of the building were the ones who best knew of this noncompliance and also knew that these claimants were putting their labor and material into the building and would naturally expect to be paid therefor. -Having permitted this situation to continue, having without advising them of the failure of the Peacock firm to furnish the bond permitted the materialmen to add their property to the betterment of the building, it would seem most inequitable to permit these parties now, by reason of the failure of the Peacock firm to give the bond which they contracted to give, to step in ahead óf the lien claimants with the mortgage which was retained after having expressly contracted that the Dobson Investment Company mortgage should be a first lien. The mortgagee may safely witness the construction of a building upon the property mortgaged and the use of material therefor furnished subsequent to the date of his mortgage, but if instead of merély resting on the priority of his security he agree with the contractor that his mortgage is to be a second lien, and knowingly permit the materialman to act on the strength of his agreement that the contractor is to have the first lien, it certainly can not lie in the mouth of the mortgagee thereafter to claim a lien superior to that of the materialman. While mechanics’ liens and the rights thereunder are statutory, their foreclosure and adjustment are not governed exclusively by the rigid rules of law, but to them also apply the familiar principles of equity. In the cited case of Shaw v. Stewart, this language was used: “The foreclosure of a mechanics’ lien under the statute is an equitable proceeding, in which the powers of the court are evoked to mould the remedy, within the provisions of the statute, to suit the circumstances of the case. In this action the equities are with the plaintiffs.” (p. 578.) In Lumber Co. v. Arnold, 88 Kan. 465, 129 Pac. 178, it was said: “It is true, as suggested, that a lien for labor or materials can only attach by virtue of the statute as applied to the facts, and that no lien of this kind can be created by force of equitable rules. At the same time courts are established for the purpose of doing justice and not to assist a party to obtain an unconscionable advantage; and in a case like this slight circumstances might be considered sufficient evidence that the holder of the legal title acquiesced in the purchaser taking possession of the lots and in contracting for the material. If he permitted the purchaser to take possession under the oral contract and to make the improvements he ought to be estopped to deny that the purchaser obtained the equitable title.” (p. 471.) Within the spirit of these declarations the .lien claimants are entitled to priority. In the claim of the Elder Mercantile Company the actual cost constituted one item to which was added twenty per cent profit. Some criticism is made of this, but certainly it can not be expected that materialmen are to furnish their goods without any profit whatever, and there is no showing that twenty per cent is an unfair or unreasonable charge iii this respect, and therefore it was not error to allow it. However, an additional charge of $860.85 was made for twenty per cent profit on the balance of the uncompleted contract, that is to say, if the Elder company had been permitted to go ahead and furnish $4304.29 worth more of material it would then have been entitled to a profit thereon of twenty per cent, or $860.85. As this amount was not furnished, and as the material which otherwise would have gone into this building was still the property of the company, no ground exists for charging this twenty per cent profit on something which never was furnished or used. Various other points are argued but under the circumstances do not need to be considered. No error appears in the record touching the matters complained of save the excess claim just referred to. The judgment, modified by deducting from the lien of the Elder Mercantile Company $860.85, is affirmed.	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The opinion of the court was delivered by West, J.: The board of education of the city of Humboldt appeals from a judgment setting aside its order of October 21, 1914, purporting to detach certain territory from an adjacent school district. The board felt the need of more property on which to raise taxes. A=half section of land lying adjacent and in school district No. 17 would increase the valuation by $1,452,395, and while it would limit the latter district to less than a quarter of a million dollars assessed value it would add to the taxes of two industrial plants located on the half section $10 a day and $3 a day respectively. There was not a child of school age on the half section. One family consisting of man and wife lived in a house. Another family consisting of a man and wife lived in a tent where they had sojourned for some time by the sufferance of one of the plants for which the husband worked. They had a daughter who had recently married. August'24, 1914, the board met in special session— “For the purpose of considering ways and means whereby a part or all of District No. 17 might be annexed to District No. 16, also miscellaneous items preparatory to the opening of school. After considerable discussion it was moved and seconded that the President appoint a committee to interview the patrons of District No. 17, in regard to annexation to District No. 16. Motion carried. President appointed on this committee Wm. Manion and J, M. Lintner and they to secure such help as they desire.” October 21 another special meeting was called, at which time another member was added to the committee. The signatures of the family living in the tent and that of their married daughter were obtained. The manner of obtaining the latter is one of the interesting features of the case. Assuming, without deciding, that they were real residents of the desired territory and not mere transients, it is to be observed that one of the members of the committee secured the services of the family physician of the desired signers. The man, Mr. Achey, who was working for one of the plants, objected to signing for fear trouble would arise, and the solicitors assured him there would be none. “They said, it wouldn’t make us any trouble; if be any, it would be on them and they said the trouble would be on them; they would be in all the trouble if there was any trouble come up. “Q. What was the trouble talked about? A. Well, the trouble was about us moving or anything of that kind, if we had to get out of the land; I still wanted to work for them when they had more work to do and such as that. “Q. To what extent did they say they would protect you in the event any trouble should occur? A. They said, they would stand by us until the day of resurrection if any trouble came up, for they would' stay with us.” There is no dispute that substantially this assurance was given. It appears that after the employer learned of the signature Mr. Achey was ordered off the premises, and on suggesting that he hated to lose his job was told that the way to retain it was to take his name from the paper. The Acheys then went to see a member of the committee who told them where there were some houses they could look at and if suitable to report to him. “He said there was some houses down below there, we could go look at them and if they suited us, to come back and let him know; we went down and looked at them; it got pretty cold but we come back up and he made arrangements for to get them for us, which one; we told him which one and he made arrangements to get one for us. . . . made arrangements over telephone.” Witness further testified that the member said if any one came to them for rent to send them to him. At the time of the trial the witness was still living at the same place and had not paid any rent. The county superintendent testified that on October 21 the president of the board of education held up to her the order of the board attaching the territory. “He held it while I read it. When I got through I looked straight at him and he said I would rather you would not say anything about this for a few days. ... He never left the paper with me, but took it away.” She did not file it because she was enjoined by the Oakland school district not to do so. The trial court in a long written memorandum giving reasons for the decision remarked, among other things, that neither of the applicants presented the application to the board or was present at any action taken thereon, nor so far as the evidence disclosed manifested any interest whatever in the matter. The petition alleged that the Acheys were induced to sign against their will by the assurance that if any trouble arose or if the company should ask them to remove from the grounds the solicitors would see that they had a place to live and would stand by them until the day of resurrection, that the signing of the application by the Acheys and their daughter was not in good faith by either the petitioners or the solicitors, and that the daughter, Susie Ryder, wás not a bona fide resident and elector within' the boundaries of the attached territory. The petition expressly charged, that the board of education unlawfully and deceitfully, and in collusion with the Acheys and their daughter, conspired to secure improperly, illegally and fraudulently the attachment of the territory in the manner hereinafter set forth. The court in the memorandum referred to said: “From a careful and conscientious examination and consideration of the pleadings, and all the evidence introduced on the trial and within the statutes and authorities hereinbefore cited and quoted from, ^and in connection with the reasons hereinbefore in this memorandum set forth, I am impelled to the conclusion that it is my duty to find the issues in favor of the plaintiffs and cross-petitioners, and against the defendant Board of Education.” The statute provides that territory outside, the city limits or adjacent thereto may be attached to such city for school purposes, “upon application to the board of education of such city by a majority of the electors of such adjacent territory”; and that upon the presentation of such application if the board deems it proper, “and to the best interests of the schools of said city and territory seeking to be attached” (Gen. Stat. 1915, § 9129), it may issue the order. In this case the order of exercises was reversed. The application came from the board and not from the adjoining territory. But aside from this, the very first thing manifestly requisite in any such proceeding is good faith and not a mere scheme or device by craft and overinfluence to secure an addition to the taxable property of a city. That the latter and not the former marked every step in this proceeding is apparent upon the facts in the. record from ’ beginning to end. A very natural supposition is that in order for attached territory to be benefited the school children living thereon are to have the privilege of attending the city schools, but when such territory does not contain a child of school age it is difficult to see how such benefit can accrue. Suffice it to say that the trial court was abundantly justified in the conclusions reached and in the reasons suggested in the memorandum. 'The judgment is affirmed.	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The opinion of the court was delivered by West, J.: The plaintiff while working for the defendant in his car works, engaged in rebuilding and repairing cars, fell from a scaffold and hurt his back. He sued for compensation and recovered $281, being $312 for 52 weeks at $6 a week, less credit for payments, $30.96. The defendant appeals, reciting eleven specifications of error, only five of which are presented in the brief and only two of which have any merit. These have reference to the testimony in support of the findings and to the allowance made. The evidence shows clearly enough that the plaintiff received a severe wrench to his back, and the proof was abundantly sufficient to justify the court in finding, as it did, that it would be at least a year from the time he was injured before he could do hard work. Because some physicians, in addition to certain X-ray examinations, went through with mechanical series of tests and found good responses, and failed to find enough traumatic signs on the outside of the back to convince them of material injury to the inside, it is argued that his injury was imaginery; but the testimony of the plaintiff, three fellow workmen, the foreman of the car works, three physicians and others convinced the trial court and convinces us that he was not feigning pain or inventing proof. Some time after the injury he secured employment as foreman of a section gang, his duties being that of boss and requiring no manual labor or much physical exertion. This was a job of uncertain duration, although, while it lasted it was more remunerative than the work in ydiich he got hurt. When injured, he was earning $10.50 a week. In the fourth finding, after referring to plaintiff's temporary employment as foreman, the court said: “However, as above stated, he can perform such work, although he can not do a full day’s work at hard labor on account of his injuries, and it will be at least a year from the time of his’ injuries before he can do hard work. In his efforts to do the work of a section foreman he has ¡Suffered physical pain.” Then follows the conclusion of law: “The plaintiff is entitled to recover in this case from the defendant the sum of $281.00 and his costs, the above being the amount of compensation to which he would be entitled for one year. íhe court allows no interest and does not discount the future payments as the year will expire in .about six weeks. The amount arrived at is as follows: 52 weeks at $6.00 ......................... $312.00 Credit by Cash ........................... 30.96 $281.00 The statute, section 5905 of General Statutes of 1915, provides : “Where total incapacity for work results from injury, periodical payments during such incapacity; commencing at the end of the second week, equal to fifty per cent of his average weekly earnings computed as provided in section 12 but in no case less than six dollars per week or more than fifteen dollars per week.” The section further prescribes that in case of partial incapacity the payments shall not be less than twenty-five or more than fifty per cent of the average weekly earnings, but in no case less than $3 a week. At the time of his injury the plaintiff was engaged in hard manual labor. The court found that it would be at least a year before he could return to that kind of work, the meaning of which is that while he might be able to get employment involving no hard manual labor he would for at least a year be totally incapacitated from performing the kind of work he was doing when injured. Without attempting to estimate to what extent his partial incapacity might go beyond a year the trial court let the matter end with the expiration of that time, and relieved the defendant from any further liability, and denied the plaintiff any further compensation. The trouble with this result arises from a statement in finding No. 2, which reads: “The plaintiff was employed by the defendant'to work at his car works on the first Monday of June, 1914, and was injured in the line of his employment on January. 18, 1915. He was but partially disabled from performing manual labor. He was confined to his room for three weeks, a part of the time in bed.” Plaintiff’s counsel say in their brief that this expression means that the plaintiff was not totally disabled for the entire period fixed by the statute — eight years. One physician testifying for the defendant said: “Prognosis as to injured backs is' a pretty subject. He may have a stiff back five yeats, and he may have one for twenty.” The findings .must be reconciled if possible, and it is plain from the entire journal entry that the court believed and allowed for total incapacity for one year, and awarded him compensation on that basis. It is quite apparent that he did not regard him as merely partially incapacitated for that length of time, although it may well have been believed that such partial incapacity might cover considerable time after the expiration of the year. Section 5906 provides that in case of partial incapacity the payments shall equal as nearly as possible fifty per cent of the difference between the average earnings before the accident and the average amount which the workman is most probably able to earn in some suitable employment or business after the accident, subject to certain limitations. It will be observed that the court found that the plaintiff had been employed as foreman at a salary of $60 a month, which was considerably more than his former earnings,, but that there was nothing found as to the/length of time he might be employed, hence the court did not make, and does not appear to have been requested to make, any finding as to the probable earnings in some other suitable business or employment, and had he done so and taken the temporary earnings as foreman as a basis he could not have allowed the plaintiff anything. The facts that an allowance was made for total incapacity, and an express finding of total incapacity for a year was made, lead to the conclusion that the expression in finding No. 2 could not have been intended as contradictory to finding No. 4. . It is settled that when one is totally or .partially incapacitated for hard manual labor he is not to be denied compensation because he obtains employment, even at better wages, at a task which he is physically able to perform. (Gailey v. Manufacturing Co., 98 Kan. 53, 157 Pac. 431; Dennis v. Cafferty, 99 Kan. 810, 163 Pac. 461.) The judgment is affirmed.	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The opinion of the court was delivered by Mason, J.: In June, 1916, the commissioners of Sedgwick county decided that it was- desirable to build a jail at a cost of $120,000. An election was held at which a majority of those voting declared in favor of issuing bonds for the purpose. In September a contract was entered into with the Eberhardt Construction Company for the building of the jail. Work under the contract was begun by purchasing material and equipment, a part of which was placed upon the ground. Two of the commissioners were succeeded by newly elected officers in January, and in that month the board notified the company that it had canceled the contract, adding that this was done upon the opinion of the county attorney that the election referred to and the acts taken in reliance thereon were without authority of law. The company seeks by mandamus to require the board to carry out the contract. An alternative writ has been issued, and the defendants have filed an answer presenting the contention that even if the contract were valid its performance could not be enforced by mandamus, and that it is void because of a defect in the publication of the notice of the election. The case is submitted upon a motion for judgment on the pleadings. Upon the question of procedure the defendants rely upon a line of decisions to the effect that a municipality will not be compelled by mandamus to perform specifically its ordinary business contracts. (26 Cyc. 291; State v. Mortensen, 69 Neb. 376.) The plaintiff relies chiefly upon a recent decision of this court in which the contractor was permitted to test the validity of a contract- for the building of a bridge by mandamus against the county board for its enforcement. (Bridge & Iron Co. v. Labette County, 97 Kan. 142, 154 Pac. 230, 98 Kan. 292, 158 Pac. 8.) It was said in the opinion in that case that the remedy by an action for damages was not fairly adequate — that the profit to accrue'to the plaintiff from the building of the bridge could not be definitely ascertained in advance of performance. The specific relief there sought was to require the defendants to close the site of the bridge against traffic and to give the plaintiff possession of the site for the purpose of building the bridge. The principle applicable to that situation has been thus stated: “Where under the terms of a contract entered -into by a municipality and its contractor for the performance of such work it is provided, or necessarily implied, that the municipality shall do and perform certain things essential to the performance of such work under the contract, and as preliminary thereto, if the municipality refuse, it may be compelled by mandamus.” (2 Bailey on Habeas Corpus, § 262, p. 1098.) Where a valid contract has been entered into for the making of a public improvement in pursuance of a vote of the people, officials charged with a ministerial duty in that connection may be compelled to act in conformity thereto by mandamus at ihe instance of any one having a substantial interest in the matter. The circumstance that the persons whose action is sought to be controlled constitute the governing body of the municipality concerned does not render them immune from being required to perform a positive duty which is laid upon them by virtue of their office, and which involves no exercise of discretion. Where they seek to justify nonaction on their part solely by a reason which is founded upon a doubtful conception of their legal obligations — where the controversy grows out of a dispute over a pure question of law, an authoritative answer to which will necessarily end the matter — the practice in this state is to permit the issue to be determined in mandamus, although in some jurisdictions the interpretation of a statute by executive officers will not be interfered with by courts in that manner. . It does not follow that where the controlling body of a public corporation, in the exercise of its judgment as to governmental policy, sees fit to. refuse to proceed with a contract to which it has committed itself, preferring to answer in damages for any resulting loss to the contractor rather than to carry out a course which it has determined not to be for the best interests of the community, it can be compelled to perform specifically its engagements by a writ of mandamus. It will be assumed, without deciding, that the present case falls within the class to which mandamus is applicable. The statute requires that a notice of an election to vote upon the question of issuing bonds to cover the cost of a county building shall be published in the official paper, “for not less than thirty days preceding the day such special election is to be held.” (Gen. Stat. 1915, § 2553.) Here the election was held on August 1, 1916. The notice was published in the official paper (a weekly) in the issues of June 30, July 7, July 14 and July 21, but not in the issue of July 28. The language of the statute, requiring a publication to be .made in a paper “for” a given number of days before an event, is held to mean that the publication must run during the entire period — be continuous from a time that far in advance until the date named, and therefore, although the first publication is made sufficiently early, the omission of the notice in the last issue of the paper before the event is to take place results in a failure to meet the legal requirement. (McCurdy v. Baker, 11. Kan. 111.) The fact that the election was set upon the day of the holding of the state primary did not alter its status as a special election, held at a time selected by the commissioners, as distinguished from a general election, held at a time designated by the statute. (Note, 90 Am. St. Rep. 69-70.) The failure to publish the notice of a special election for the full time required by law is a fatal defect, rendering the election void and preventing the lawful issuance of bonds which depend upon it for their validity. ' (The State, ex rel., v. Staley, 90 Kan. 624, 135 Pac. 602, and cases there cited; School District v. Davis, 98 Kan. 200, 157 Pac. 844.) Formal defects in a published notice of an election, which do not diminish its efficiency in giving information by which the action of voters may be affected, are not necessarily fatal. (Railroad Co. v. Scott County, 82 Kan. 795, 109 Pac. 684; City of Perry v. Davis, 97 Kan. 369, 154 Pac. 1127.) But, as was pointed out in The State, ex rel., v. Staley, just cited, the omission of the notice from one issue of the paper in which the law required it to be inserted might possibly have deprived some voters of an opportunity to take part in the election, and thereby have influenced the result. The county board had no power to provide for the erection of a permanent building without a vote of the people. (Gen. Stat. 1915, § 2552; The State, ex rel., v. Comm’rs of Marion Co., 21 Kan. 419.) The contract which it undertook to make with the plaintiff was therefore in excess of its legal authority and unenforceable. . The plaintiff seeks to avoid the effect of these considerations by invoking the principle by which it is held that where the action of a public body depends upon authorization by prior proceedings its finding as to the result of such preliminary steps, made in good faith, is conclusive. (The State, ex rel., v. Holcomb, 95 Kan. 660, 149 Pac. 684; Stevenson v. Shawnee County, 98 Kan. 671, 159 Pac. 5.)' The cases cited involve the ascertainment of facts concerning which there might be some room for a difference of opinion. The time for which a notice has been published in a newspaper is a subject which admits of exact knowledge and absolute proof, and a finding contrary to the fact can not be made the basis of' official power. That the publication of the notice of an election to vote bonds for the full period prescribed by the ■statute is a jurisdictional prerequisite to their issue is too firmly established by prior decisions of this court to be regarded as an open question. It has been held that a failure to publish the notice of a sheriff’s sale for the prescribed time is a mere irregularity which does not render the sale void. (Rounsaville v. Hazen, 33 Kan. 71, 5 Pac. 422.) But in that situation no question of jurisdiction is involved. The confirmation of the sale is a judicial decree, not open to collateral attack except for fraud. (Capital Bank v. Huntoon, 35 Kan. 577, 11 Pac. 369; 17 Cyc. 1267.) A subsequent showing that the notice of sale had been omitted altogether would not avoid the effect of the confirmation. (2 Freeman on Executions, 3d ed., § 286, p. 1657; Herman on Executions, § 342, p. 515.) . It is also suggested that as the board was acting within the scope of its apparent authority, under color of an election presumably held according to law, for the regularity of which the commissioners themselves vouched, the plaintiff was justified in assuming that all the necessary steps had been duly taken, was not required to make a minute examination of the proceedings, and should be protected in its rights under the contract which it entered into in good faith in reliance on the action of the board. This reasoning, if sound, would in effect allow the board by indirection to exer cise a power denied it by the statute — to accomplish a result which the law expressly forbids. The limitation on the power of the board is for the protection of the taxpayers, and acts done by the commissioners in excess of their legal power can not work an estoppel against the public so as to require the performance of an executory contract entered into without authority, or to require recognition of the obligations of such a contract after its partial execution, beyond making compensation for benefits actually received. (10 R. C. L. 707.) See, in this connection, Ritchie v. City of Wichita, 99 Kan. 663, 163 Pac. 176. We do not regard the situation as one for the application of the principle by which the recital in municipal bonds that the acts on which the right to issue them depends have been duly performed is held to be conclusive against the municipality after they have passed into the hands of an innocent purchaser. That rule results from an application of a doctrine peculiar to negotiable instruments. The question whether the county should now be compelled to abide by the contract is very different from the question whether it should be compelled to pay for benefits it had received if the contract had already been carried out. The writ is denied.	[ -12, -22, -4, -36, -54, 64, 18, -104, 89, -79, 100, 83, -87, -38, 20, 107, -65, 125, 84, 121, 65, -78, 35, 107, -42, -13, -13, -59, -69, 77, -12, -58, 76, 49, 10, -107, -26, -64, 69, 28, -50, -124, 8, -21, -48, 65, 48, 27, 48, -118, 49, -82, -13, 32, 16, -61, 41, 44, 91, 45, 81, -15, -72, -107, 125, 6, -79, 38, -104, -121, -8, 52, -104, 49, 12, -24, 115, -74, -58, -12, 9, -103, -88, 102, 98, 3, -107, -49, -20, -40, 30, -10, -119, -89, -108, 24, 34, 9, -74, -99, 117, 86, 6, 126, -26, 5, -41, 108, -127, -53, -10, -29, 15, 62, -110, 69, -49, 0, 17, 112, -58, -10, 94, -9, 51, 31, -113, -3 ]
The opinion of the court was delivered by Mason, J.: The Wichita Union Terminal Railway Company was organized- under the laws of Kansas for the purpose of acquiring and maintaining at Wichita joint'terminal facilities for four railroads, including that of the Kansas City, Mexico & Orient Railway Company. Subscriptions to its stock were made in behalf of the four- companies in equal shares, and the stock was issued accordingly. Oh April 18, 1911, a call was made for a payment of ten per cent of the par value of the stock, to which all the holders responded. On October 27, 1911, a further assessment of $40 a share was made, amounting to $10,000 for each company, which was paid by all excepting the Orient Railway Company. A union station was built, which was used by the four companies referred to under an operating agreement by which they contributed equally to the expenses and shared equally in the revenue. These four companies united in a stock trust agreement by which they pledged the stock as collateral security to the trustee of the mortgage securing the bonds of the terminal company. On July 16, 1914, all the assets of the Orient Railway Company were sold under a decree of the federal district court to a new corporation, known as the Kansas City, Mexico & Orient Railroad Company. On October 29, 1914, a letter was written to the treasurer of the terminal company by a committee representing the Orient Railroad Company, offering to turn over some two-year gold notes of the latter company at par in payment of the overdue stock subscription. Negotiations followed which the terminal company regards as having culminated in an acceptance of the proposition. The Orient Railroad Company contends that - the offer was withdrawn before its acceptance. The terminal company brought this action against the Orient Railroad Company for $10,000, alleging that to be the value of the gold notes. A hearing was had, chiefly upon an agreed statement. The plaintiff recovered a judgment, from which the defendant appeals. The case turns chiefly upon the effect of the negotations referred to, which were wholly in writing. On October 23, 1914, the board of directors of the Orient Railroad Company adopted a resolution which was recorded in these words: “Thereupon a resolution was offered, and on motion, duly seconded and unanimously carried, by which the president of the company and Mr. Moore were authorized to negotiate with The Wichita Union Terminal Railway Company for settlement of the claim .of the company for unpaid balance of ten thousand dollars ($10,000) due it on subscription of The Kansas City, Mexico & Orient Railway Company, said settlement to be made in two-year six-per-cent gold notes of this company, if possible; or if. not, then in cash to be paid in installments from time to time, upon the best possible terms.” On October 29, 1914, this committee wrote to the treasurer of the terminal company, saying: “With regard to the unpaid balance on Orient subscriptions: We would like very much to get this matter closed up and out of the way, but, as you know, our earnings are very small — barely sufficient to meet operating expenses and other charges, consequently we are unable to make the payment out of earnings. We have, however, some Two Year 6% Gold Notes, dated April 30th, 1914, and we would be pleased to turn over to your company enough of these notes at par, with indorsement of interest paid to date of settlement, to pay the face value of the claim. "For your information will say, these notes are a part of the $6,000,000 Two Year Gold Notes issue of''» the reorganized Railroad Company and are secured by a pledge of all of the outstanding stock (except qualifying shares) and of all of the issued and outstanding bonds of the Railroad Company. “We would be pleased to have you consider this proposition and advise.” In a reply written on November 5, 1914, the treasurer of the terminal company said: “I do not know anything about the market value of the notes referred to, and, as the other three owning lines have paid their stock assessment in full, it hardly seems proper for me to accept anything but the cash in this case. ... I shall be glad to submit your proposition to the various Directors at the next meeting, if it is the best offer you can make.” On November 6, 1914, the president of the Orient Railroad Company answered: “Acknowledging receipt of your letter of the 5th instant, file C-570, have to say, the settlement proposed in my letter of the 29th ultimo is really the only one which we can make at this time, and I trust that the Directors may see their way clear to accept the same.” On January 13, 1915, the directors of the terminal company voted to accept the offer of the Orient Railroad Company to deliver the gold notes in settlement of the unpaid assessment, and notice thereof was at once given. In the meantime, however, on January 2, 1915, this letter had been sent by the Orient Railroad Company to the terminal company: “The Kansas City, Mexico & Orient Railroad Company acquired all of the property of its predecessor, The Kansas City, Mexico & Orient Railway Company, under a decree of foreclosure in the District Court of the United States for the District of Kansas, First Division, in the suit therein pending of the United States & Mexican Trust Company et al., Complainants, vs. The Kansas City, Mexico & Orient Railway Company et al., Defendants, being Equity Consolidated Cause No. 1262. In subdivision 18 of said decree it was provided: “ ‘That the purchaser shall have the option to be exercised within six months from and after the sale of adopting or repudiating any or all executory contracts of the railway company.’ “You are further advised that The Kansas City, Mexico & Orient Railway [road] Company was the purchaser under said decree and ac-acquired the said property subject to and governed by the said provision in said decree as well as each and all of the other provisions in said decree contained. “Within the provisions of said decree and within the time therein specified The Kansas City, Mexico & Orient Railroad Company hereby gives notice of its intention to cancel, and the cancellation or repudiation of the certain operating agreement between the above-named Companies and The Kansas City, Mexico & Orient Railway Company covering the Union Station and properties of the Wichita Union Terminal Railway Company at Wichita, Kansas, as well as all other contracts undertaking promises or agreements in connection with said Union Station or the operation thereof, the said cancellation to take effect upon the service of this notice or under and pursuant to such arrangements as the parties may mutually agree upon. “This notice is served pursuant to the action of the proper officers and authorities of The Kansas City, Mexico & Orient Railroad Company heretofore duly taken.” On December 18, 1914, a draft made upon the Orient Rail- - road Company by the treasurer of the terminal company for. a part of the taxes of that year was refused payment, the refusal being based upon “negotiations for disaffirmance of contract.” The defendant maintains that no recovery can be had by the plaintiff unless a contract resulted from the offer and acceptance, referred to, because its pleadings presented no other theory. The petition, however, alleged that all the property of the Orient Railway Company, including the stock in the terminal company, had been purchased for, and been taken possession of by the defendant. This was a sufficient allegation, when not attacked by motion, that the defendant had accepted the ownership of the stock and therefore had become chargeable with the unpaid assessment against it. A transfer of corporate stock on the books of the company ordinarily is necessary to relieve the seller from liability upon his subscription and may be necessary to render the buyer chargeable therefor. (1 Cook on Corporations, 7th ed., § 258, p. 737.) But even where such transfer has not been made, if the corporation and the buyer by any unequivocal act, such as the payment and acceptance of a dividend, indicate a recognition of his having become a stockholder, the seller is released and the buyer becomes liable. (1 Cook on Corporations, 7th ed., § 258, p. 739; Note, 14 Ann. Cas. 898, 900; Foster v. Row, 120 Mich. 1, 16. See, also, Robinson-Pettit Co. v. Sapp, 160 Ky. 445; Basting v. Northern Trust Co., 61 Minn. 307.) Granting that the mere taking physical possession of the stock by the Orient Railroad Company did not make it a stockholder in the terminal company, its offer to pay the overdue subscription showed an election to regard itself as the owner, and the terminal company recognized its title when it demanded payment from it. There was evidence that after entering upon the operation of the railroad the defendant received payment of the share of the revenue of the union station which by the terms of the operating agreement was to be paid to the Orient Railway Company. This was as much a recognition of that company’s ownership of the stock as the payment and acceptance of a terminal company dividend would have been, if ownership of stock in that corporation is regarded as essential to a participation in the operating agreement. We think the trial court was .justified in holding the defendant liable on the theory that it was the purchaser of the stock, whether or 'not a contract was made- to deliver the gold notes. This conclusion is strengthened if the connection between the two matters is deemed to be so intimate that stock in the terminal company would not be an object to any owner except one who had the privilege of using the union station. It is argued that the state court can not determine the matter of the defendant’s liability on this basis, because the federal court reserved jurisdiction of such questions. The federal court reserved jurisdiction to determine and enforce any' liabilities assumed by the purchaser under the terms of the decree. But the liability of the defendant on the theory suggested is based, not on its having purchased the property of the Orient Railway Company, and thereby having become chargeable with its obligations, but upon its having chosen, after such purchase, to be regarded as the owner of the stock on which the subscription had not been paid. The defendant asserts that the letter of October 23, 1914, was not an offer the acceptance of which would constitute a contract; that the resolution of October 29 did not authorize the committee to conclude a settlement, but merely .to conduct negotiations subject to the final approval of the directors. We think the language of the resolution authorizing the committee to negotiate for a settlement “to be made in two-year six per cent gold notes of this Company, if possible,” implied that it was empowered to make a definite offer to settle on the basis indicated. Moreover, the petition alleged that the committee “duly authorized to act for the defendant” made the proposition referred to, which was a definite offer to deliver the gold notes in payment of the claim, and the allegation of authority, not having- been denied under oath, must be taken to be true. We do not regard the letter of January 2 as amounting to a withdrawal of the offer to pay the assessment with gold notes. It does not in terms refer to that matter, but states that the Orient Railroad Company cancels and repudiates the operating agreement, “as well as all other contracts undertaking promises or agreements in connection with said Union Station or the operation thereof.” The reference in the quoted clause is clearly to contracts made by the Orient Eailway Company, such as the stock trust agreement. These the letter undertakes to cancel and repudiate under the authority of the portion of the decree which it correctly quotes, but it does not purport to withdraw the offer which the Orient Eailroad Company had made to delivér its gold notes in payment of the stock subscription. In behalf of the defendant it is argued that its decision to end-its connection with the union station and the contracts relating thereto practically destroyed the subject matter of its offer made to the terminal company. In order to avail itself of the provision of the decree allowing the purchaser of the property of the Orient Eailway Company six months within which to adopt or repudiate its existing executory contracts, it would seem that the new company was required to elect once for all which it would do; that when it accepted an advantage under such a contract, or in any way asserted successorship to the rights of the old company with respect thereto, it committed itself finally to the adoption of the contract, and could not thereafter repudiate the corresponding obligations; that in accepting a part of the revenue of the union station it had adopted the operating agreement; and that in offering to turn over its gold notes in payment of the subscription it had definitely elected to retain the ownership of the stock, and to assume the burdens incidental thereto. But in any event, the offer to pay the assessment was not necessarily bound up with the contracts relating to the station. The right to use the station may have been one of the principal advantages of the ownership of the stock, but with that element eliminated there was no want of consideration for the payment of the subscription. The right to vote the stock and the right to receive dividends were sufficient to constitute a legal consideration, and these rights could only be acquired by the payment of the assessment. A further argument is made that if the letter of October 29 was an offer to enter into a contract, it was not accepted within a reasonable time. The treasurer of the terminal company in replying to the letter said that the proposition would be laid before the directors at their next meeting. No objection' was made to this arrangement. In fact, the letter of November 6 indicated a willingness to await the action of the directors. There is nothing to suggest that the directors’ meeting of January 13 was not the first that was held after the receipt of the proposal. We do not regard the delay as unreasonable. Objection is made to the admission of the evidence that the defendant had accepted a share of the revenue of the union station. If the question whether the defendant had effectually repudiated the operating agreement was involved this evidence was relevant to that issue. Otherwise it was not prejudicial. The judgment is affirmed.	[ -16, 116, -12, 95, 10, -26, 46, -102, 96, -96, 39, 83, -55, -55, 21, 121, -58, 45, -48, 123, 118, -105, 23, -85, -46, -45, 121, -51, -71, 93, -28, -42, 77, 32, 106, 21, 6, -62, 71, 28, -50, 4, -88, -32, -3, 32, 52, 123, 54, 78, 17, -34, -13, 40, 24, -61, 104, 62, -1, -87, -47, -7, -86, -57, -1, 22, 0, 0, -98, -121, -64, 62, -112, 53, 61, -88, 83, -26, -122, -12, 109, -7, 77, 42, 99, 97, 5, -81, 30, -104, 46, -8, -115, -25, 52, 24, -96, 97, -65, 29, -107, 7, 7, 126, -6, 5, -101, 124, -127, -114, -74, -125, 31, 110, -102, 23, -5, -111, 19, 96, -56, -94, 77, 87, 62, -101, -113, -68 ]
The opinion of the court was-delivered by Burch, J.: The action was one for damages for injury to live stock occurring in course of transportation from West Plains, Mo., to Princeton, Kan. The plaintiff recovered, and the defendant appeals, the principal'question being whether or not the shipment was interstate. West Plains is a station on the St. Louis & San Francisco Railway. Princeton is a station on the Atchison, Topeka & Santa Fe Railway. The plaintiff loaded an emigrant car with household goods and horses at West Plains, and billed the car to Kansas City, Mo., over the Frisco. The car was there delivered to the Santa Fe, and was rebilled by the Santa Fe to destination. The Santa Fe hilling read from Argentine, Kan., to Princeton. Argentine is separated from Kansas City by the line between the two states, but the Santa Fe yards at Argentine extend into,Kansas City. The car was placed on the Santa Fe tracks by the Frisco. The car in fact passed in course of continuous transportation, without unloading, from West Plains to Princeton. The plaintiff testified that the Frisco agent at West Plains would not bill the car to any' place in Kansas unless the horses were inspected. In order to avoid inspection the plaintiff billed the shipment to Kansas City, intending to drive the horses from there to Princeton. On the way to Kansas City, or when the car arrived there, he changed his mind, and after inspection the horses went on in the car with the household goods. The horses were injured while on the line of the Santa Fe. The court allowed the jury to* determine the character of the shipment, under an instruction that they might find it was not interstate if they found the plaintiff’s original intention was to ship the horses by rail to Kansas City and then take them overland to Princeton. The jury found the shipment was not interstate. « The only conflict in the evidence was whether the Frisco, when it placed the car on the Santa Fe tracks, left the car on the Kansas side, or the Santa Fe switch engine which picked up the car crossed the state line to get it. The court does not regard this matter as material, and applying the law to the undisputed facts, concludes that the shipment was interstate. The plaintiff relies on the case of Gulf, Colorado & Santa Fe Rly. Co. v. Texas, 204 U. S. 403. In that case corn was shipped from Hudson, S. Dak., to Texarkana, Tex. While in transit the corn was sold. After arrival at Texarkana and after a delay of five days the purchaser reshipped the corn to Goldthwaite, Tex., to fulfill a contract. It was held that the shipment was intrastate. At the commencement of transportation the corn had no destination but Texarkana. The carrier’s contract with the shipper ended there. While the corn was in transit the shipper parted with title. The purchaser paid for the corn and received it at Texarkana. Not until then did he have any control over its destination. The purchaser might have fulfilled his contract with his customer at Goldthwaite with other corn. He did not start to fulfill this contract until after the carriage initiated by the original shipper had been completed, and the subsequent forwarding of the corn to Goldthwaite was an independent shipment. The plaintiff also cites the case of Chi., Mil. & St. P. Rly. v. Iowa, 233 U. S. 334. A coal company at Davenport, Iowa, received cars of coal from the state of Illinois over various railroads and paid the transportation charges to Davenport. The cars would be placed on an interchange track and the coal company would then bill them to designated points, according to the demands of its trade. The railway company refused to receive coal billed to stations on its own line in Iowa in cars of other companies. The state railroad commission ordered it to accept such billing. It was held that the local billing was intrastate and that the railroad commission had jurisdiction over the subject. The decision was controlled by the following finding of the railroad commission, which the court approved : “Under the admitted facts, the city of Davenport became a distributing point for coal shipped by the consignor. The certainty in regard to the shipments of coal ended at Davenport. The point where the same was to be shipped beyond Davenport, if at all, was determined after the arrival of the coal at Davenport.” (p. 342.) Neither of the cases cited governs the present controversy. It is well settled that the essential character of commerce,, as disclosed by all the facts, and not its incidents, such as local or through bills of lading, determines its character as interstate or otherwise. (Texas & N. O. R. R. Co. v. Sabine Tram Co., 227 U. S. 111; Louisiana R. R. Comm. v. Tex. & Pac. Ry., 229 U. S. 336; Atchison & Topeka Ry. v. Harold, 241 U. S. 371.) In this instance, Kansas City was at no time the destination of the horses, any more than it was the destination of the household goods in the same car. All the articles in the car were destined from the beginning for Princeton. To avoid the burdens of inspection, the plaintiff at first intended to change the method of transporting the horses' on arrival at Kansas City, but with the exception that the horses were to be unloaded there for driving all the property placed in the car started on a continuous journey, not to Kansas City, but to Princeton. On the way to Kansas City, or on arrival there, the plaintiff concluded not to substitute driving for railway transportation of the horses from Kansas City to Princeton,, and the car with its original contents proceeded uninterruptedly to its- previously determined destination. The necessary rebilling was a mere incident to the shipment as to both the horses and the household goods. In taking the car from the Frisco the Santa Fe was apprised of the fact that it was completing a shipment originating on that road. To hold that the Santa Fe billing was an independent, intrastate matter, would open the way to evasions which would deprive congress of control over interstate commerce. The bills of lading issued by both railroads required an action to be commenced within six months. This was not done. There was evidence of conduct on the part of Santa Fe employees which under local rules might have amounted to a waiver of the limitation. Since the shipment was interstate, the railway company could not favor the plaintiff by granting him a grace period within which to bring suit. It is said there was no evidence that the form of contract used was the form adopted for interstate shipments. Neither was there any evidence that it was not the form adopted for completing interstate shipments received by the Santa Fe at Argentine and requiring rebilling. Illegal preferences by the railway company will not be presumed, and the shipment being governed by federal law, which condemns discrimination by waivers of contract limitations, the parties were bound by the contract made. The judgment of the district court is reversed and the cause is remanded with direction to enter judgment for the defendant.	[ -16, 98, -11, -65, 74, -30, 58, -104, 96, -5, 36, 83, -51, -63, -107, 105, -18, 61, 85, 58, -12, -121, 71, -45, 83, -13, -77, -49, 63, 73, 108, 102, 79, 112, 10, -43, 102, 74, 65, 28, -114, 36, -119, -24, -39, -128, -76, 106, 22, 75, 49, -113, -1, 46, 24, -61, 41, 40, -21, 37, -55, 113, -6, 71, 119, 6, 1, 100, -73, 37, -56, 46, -112, 49, 32, -67, -37, -28, -110, -44, 41, -55, 9, 38, 103, 33, 29, -113, 110, -88, 46, -39, -113, -90, 20, 25, 35, 97, -98, -97, 116, 18, 7, -2, -7, 13, 31, 116, 7, -117, -112, -125, -17, 118, 16, 87, -21, -91, 19, 97, -50, -78, 93, 7, 56, -101, -113, -2 ]
The opinion of the court was delivered by Porter,. J.: The action was to recover damages for the failure of defendant to ship 4000 bushels of wheat during the month of August, 1914, according to a contract between the parties. There was a verdict and judgment for defendant, from which plaintiffs appeal. Wallingford Brothers, grain merchants at Wichita, on July 10, 1914, bought by telephone from the defendant, a grain company at Bushton in Rice county, 5000 bushels of No. 2 hard wheat at sixty-seven cents a bushel, basis Bushton, subject to destination weights and grades, for August shipment via Missouri Pacific Railway. The contract was confirmed by correspondence. The petition set forth these .facts, and further that on August 4 defendant tendered on the contract one car of wheat billed to New Orleans as instructed by plaintiffs, and that on August 5 defendant wired plaintiffs, “Can you use wheat on contract billed to you ajt Chicago? Wire answer” ; to which plaintiffs at once replied, instructing defendant to bill the wheat to plaintiffs at Chicago. It averred that defendant failed and refused to ship the remaining. 4000 bushels during the month of August, although importuned by plaintiffs to do so; and that upon such refusal the plaintiffs, pursuant to "the contract, went into the open market and purchased for defendant’s account at the then reasonable price, the same amount of No. 2 hard wheat, paying therefor 39.9 cents a bushel above the contract price. Plaintiffs asked judgment for $1596, the amount of the difference in prices. The answer admitted the sale by phone to plaintiffs of 5000 bushels of wheat of the grade mentioned, but alleged the wheat was to be paid for by sight draft with bill of lading attached as each car was loaded, which draft the plaintiffs were to pay when presented at Wichita. It denied that the written confirmation of plaintiffs correctly stated the terms of the verbal contract. It averred that on August 1 the defendant, following instructions in letters from plaintiffs that the wheat be shipped to New Orleans for export, shipped one car of wheat and drew on plaintiffs for $720, but that on August 4 the draft, upon presentation to plaintiffs, was protested and payment thereon refused. The answer further alleged that the contract “was canceled by the breach of plaintiffs and their refusal to pay said draft and the demand by plaintiffs to ship said wheat on arrival drafts, and that, at no time until plaintiffs broke said contract by refusing to pay for said wheat did defendant refuse to deliver the same. Thát after plaintiffs failed to take said wheat and pay for same ac-. cording to agreement, and protested the draft drawn therefor, it refused to ship any more wheat to plaintiffs, and is without fault, that it had a right to cancel said contract and that it did so, and is not indebted to plaintiffs.” Attached to the answer were copies of correspondence between the parties, including letters from plaintiffs in July directing that the wheat be billed to New Orleans for export; also plaintiff’s letter dated August 1 confirming a telegram of the same date. The letter reads: “We wired you to-day as follows: ‘Hold billing of wheat until further notice from us.’ While we don’t want you to think that we are not going to protect our contracts sooner or later, since the embargo has been extended on Galveston an'd on account of the unsettled condition prevailing throughout the entire world such as foreign wars, impending railroad strikes, etc., we have advised each one of our customers not to bill anything for us until the situation clears up. Bankers everywhere are uneasy and this embargo already has forced us to carry an immense lot. of wheat and at present we don’t care to jeopardize our credit or our commercial standing by trying to do the • impossible. If you find you have to bill grain and can make drafts payable on arrival of car at destination, no doubt we can take care of a limited amount of it. If you care to handle it in this way, you may write us and we will write you billing. You do not need to telephone or telegraph as that is a needless expense. We are indeed very sorry for the prevailing conditions, but these are things' of which we have no control.” The reply admitted that payment of defendant’s draft for the first car of wheat was refused, but it alleged that on August 4, the day it was presented, plaintiffs called defendant by phone and explained that owing to the outbreak of the European war an embargo placed by railroads on shipments to Gulf ports, and the refusal of banks to discount drafts with bills of lading attached, plaintiffs could not then take care of the draft, but that if defendant would call back the draft and draw an arrival draft on the car, they would arrange for its payment and would give the defendant billing for the rest of. the 5000 bushels to markets other than Gulf ports for export. It alleged that defendant agreed to withdraw the draft and await plaintiffs’ further instructions as to handling the wheat purchased. The reply denied that defendant canceled the contract for the reason alleged, and on the contrary averred that defendant recognized the same as valid and reaffirmed it by wiring plaintiffs on August 5, after it was advised of the nonpayment of the draft, asking if plaintiffs could use the wheat billed to Chicago, to which plaintiffs at once replied affirmatively and directed defendant to bill the wheat to Chicago. The manager of plaintiffs’ business at Wichita testified that he talked with Mr. Miller, defendant’s manager, on the afternoon of August 4, and told him the draft attached to the bill of lading had not been paid and explained the unsettled conditions which made it impossible for them to protect it; that at that time he knew the draft had been presented, but did not know it had been protested; that Miller said he could have the draft held for a few days, and that he told Miller it might be possible they could bill the rest of the wheat to Chicago as some grain was moving that way. He testified that on August 5 he received from defendant the following letter, dated August 4: “As per conversation over the phone this p. m. with your Mr. Wallingford about the protest on /draft for car No. 99247 B. & O., wish to say that, while we were talking over the phone, our banker came in with a telegram saying that the draft had been protested, hence we thought that the best course to pursue was to let it be returned, and when we get your instructions, we will have the draft, and can then-follow out your instructions. We are sorry that you did not get us in time, so that we could have saved you the protest.” It was on August 5 that defendant wired asking if plaintiffs could use the wheat at Chicago, to which plaintiffs replied in the affirmative and directed that the wheat be billed to Chicago. The evidence shows without dispute that on August 4 the market price of wheat, basis Bushton, ranged from sixty-two and one-half to sixty-seven cents. On August 5 the price was sixty-seven cents, the same as the contract price at which defendant had agreed to deliver. This was the date of the telegram just referred to. On August 6, when defendant wrote plaintiffs rescinding the contract and stating as reasons therefor that plaintiffs had refused on August 4 to. pay the $720 draft, the price at Bushton had risen to seventy-four cents. On the 7th, when plaintiffs received the letter notifying them of defendant’s intention to rescind the contract, the price had risen to about seventy-eight cents, and after that, in the language of one witness, it “went up like a sky-rocket.” Among the findings of the jury in answer to questions submitted by plaintiffs are the following: “1. What, if anything, did plaintiffs fail to do, that they should have done under their contract with defendant of July 10, 1914, the contract in question? A. They should have taken care of sight' draft for car in transit to New Orleans. Also, they breached their contract with defendant when they informed him they could n’t handle wheat only with delivery draft attached — (on Aug. 1st?). “2. If you find that plaintiffs failed to do anything that they should have done under their contract with defendant, then state on what date defendant, or its agent, first learned of such failure or default on the part of plaintiffs. A. On August 4 by telephone. Also when he received letter referred to above in answer to No. 1. “3. On what date did plaintiffs first learn from defendant that defendant wished to cancel the contract of July 10, 1914? A. When he got defendant’s letter of August 6th. “4. Was defendant informed on August 4th, 1914, that plaintiffs had not taken up its draft for $720 attached to bill of lading showing shipment of one car of wheat by defendant to plaintiffs on the contract in question? A. Yes. “5. After defendant learned that plaintiffs had not taken up its draft for the purchase price of the car of wheat shipped by it to them, said draft being for the purchase price of said car of wheat, did not defendant ask for and get from plaintiffs instructions relative to the billing of the rest of the wheat covered by the contract? A. Yes, he asked for prompt and got delayed instructions, but not in accordance with the original contract. “8. After defendant company had learned that plaintiffs had not paid for the car of wheat shipped by it to them on contract, by failing to pay the draft presented to them on August 4, 1914, with bill of lading attached, what, if anything, did defendant say or do, which induced plaintiffs to believe that it intended to ship the rest of the 5000 bushels of wheat covered by the contract of July 10, 1914? A. Sent telegram asking if plaintiff could use wheat on contract billed to him at Chicago. “9. Did plaintiffs, at the time that they failed to take up the draft of defendant presented to them for payment on August 4, 1914, say or indicate to defendant that they renounced the rest of the 5000 bushel contract, and did not intend to be bound thereby? A. No, they did not. “10. At the time that defendant first learned of any failure on the part of plaintiffs to comply with every part of their contract with defendant of July 10, 1914, was the price of No. 2 hard wheat, basis Bushton under the same terms as covered' by said contract, higher or lower than the price of wheat on the same basis at the time when plaintiffs first learned from defendant tliat defendant desired to cancel its said contract with plaintiffs? A. Lower. “11. ■ Was the reasonable market value of wheat at Bushton, under the same terms as expressed in the contract between plaintiffs and defendant, higher or lower than the contract price on August 4, 1914? A. Slightly lower. “13. Was the reasonable market value of wheat at Bushton, under the same terms as expressed in the contract between the plaintiffs and defendant, higher or lower than the contract price on August 6, 1914? A. Slightly higher. “14. Could plaintiffs, immediately after learning that defendant wanted to cancel its contract with plaintiffs of July 10, 1914, or at any time thereafter during the month of August, 1914, have bought in the amount of wheat unshipped by defendant on said contract at a price basis Bushton, equal to or lower than the contract price of sixty-seven cents per bushel basis Bushton? A. No.” In answer to questions submitted by defendant the jury made the following findings “Did not the plaintiff commit the first breach of the contract by failing to pay the sight draft for the car of wheat shipped August 1, 1914? A. Yes. < “Did not plaintiffs, at about six o’clock in the evening of August 4, 1914, promise the manager of defendant company that he would write fiim full instructions and make arrangements to care for the draft which had been protested and that he would so write him that night? A. Yes. “Did the plaintiffs pay or arrange to pay or provide for the payment of the sight draft which was protested or write the defendant with reference to the same as agreed in the conversation over the telephone the evening of the 4th of August, 1914, at any time before August 6, 1914? A. No. “Did the defendant send the telegram of August 5, 1914, ‘Can you use wheat on contract billed to Chicago? Wire answer,’ relying on the promise of the plaintiff made over the telephone to write instructions on the night of August 4, 1914, with reference to the payment of the draft which had be’en protested? A. Yes. “Did not defendant after sending telegram of August 5, 1914, receive back the draft protested with the bill of lading attached? A. Yes. “Did not defendant, after receiving back the protested draft and bill of lading, notify plaintiffs by the letter of August 6, 1914, that the contract was canceled for the reasons stated in the letter? A. Yes. “Did the plaintiffs, ever at any time before bringing this action, offer to pay to’ defendant the protested draft with the cost of the protest fees thereon? A. No. “Did the defendant ever waive plaintiffs’ breach of the contract in failing to pay the draft? A. No. The including of the words ‘on contract’ in telegram of August 5th, saved such telegram' from being a waiver.” Plaintiffs’ letter confirming the purchase of the wheat by phone was accepted and retained by the defendant, except for a slight change in one particular which has no bearing upon the controversy, and therefore the terms of the contract as stated in the written confirmation are controlling. (Strong v. Ringle, 96 Kan. 573, 152 Pac. 631.) In the opinion in that case it was said : “In order to avoid the consequences of misunderstandings, defects of memory, in some instances hypertrophy of memory, and in other instances equivocation or downright untruthfulness, those engaged in the grain business have adopted a method of rendering the result of their oral negotiations definite and certain. After oral negotiations have been concluded one of the parties immediately states the result in writing and submits the writing to the other for approval. It is the duty of the recipient of the writing to communicate his objections to the other party, if he have any, and to decline performance if unwilling to be bound by it.” (p. 575.) The written confirmation, after stating the terms as to prices, destination and weights, reserved the right to change destination of all shipments, and also the right to buy in the grain for the seller’s account if shipments were not made according to contract. It contained other provisions which plaintiffs contend should be construed so as not to require payment for the wheat until it was delivered and accepted at New Orleans. They contend that the court erred in construing the contract when it charged that plaintiffs breached it by failing to pay the draft for the first car before it reached its destination, and in charging the j ury that defendant was not obliged to ship the rest of the wheat unless it waived this breach of the contract. In the view we have taken of the case it is not deemed necessary to consider these contentions. The theory upon which plaintiffs brought the action was that defendant had waived any right to rescind the contract it may have had by reason of plaintiffs’ failure to pay the draft for the first car of wheat. This became, and throughout the trial continued to be, the determinative question. The plaintiffs requested a number of instructions upon the law of waiver based upon the rule declared in Capper v. Paper Co., 86 Kan. 355, 121 Pac. 519. These instructions were refused. It is true the court instructed that if the jury believed from the evidence that anything was said or done under the contract by the defendant to induce plaintiffs to believe that failure to pay the draft was waived the defendant would be estopped to claim afterwards a breach by reason of nonpayment; but the court had already given instruction No. 7, which allowed the jury to excuse defendant from the consequences of such waiver, provided they found that defendant “afterwards, without fault on the part of the plaintiffs, arbitrarily breached the contract by refusing to fulfill it, on some other ground than that of the fault of the plaintiffs.” The jury found that defendant did induce plaintiffs to believe it was going to ship the rest of the wheat but that this constituted no waiver. The letter written by defendant on the evening of August 4, following the telephone conversation in reference to the protested draft, is itself sufficient to establish the waiver. It shows not only the cordial relations between the parties, but the entire absence of any purpose on the part of defendant to rescind the contract, at least while the price of wheat remained where it was. The letter reads: “As per conversation over the phone this p. m. with your Mr. Walling-ford about the protest on draft for car No. 99247 B. & 0., wish to say that, while we were talking over the phone, our banker came in with a telegram saying that the draft had been protested, hence we thought that the best course to pursue was to let it he returned, and when we get your instructions, we will have the draft, and can then follow out your instructions. We are sorry that you did not get us in time, so that we could have saved you the protest.” Followed, as this letter was, the next day by a telegram asking if plaintiffs could use the “wheat on contract” billed to Chicago, the jury could do no less than find that defendant did induce plaintiffs to believe that it intended to ship the rest of the wheat. But the jury found that this did not constitute a waiver of the nonpayment of the draft. This finding makes it apparent that the jury were misled by instruction No. 7, which permitted them to explore the field of speculation in an effort to discover “some other ground” upon which to avoid the waiver. And so, when asked the question, “Did defendant ever waive plaintiffs’ breach of the contract in failing to pay the draft?” the jury answered: “No. The including of the words 'on contract’ in the telegram of August 5 saved such telegram from being a waiver.” On the contrary, instead of saving the message from constituting a waiver, the use of the words “on contract” only served to eliminate any possible doubt as to what particular wheat the defendant wanted permission to ship to Chicago. The courts do not need the aid of a jury to translate the meaning or declare the legal effect of plain, unambiguous language used in a telegram relating to everyday business affairs, and will not permit the rights of parties to be frittered away by ah arbitrary finding of a jury declaring the legal effect of such an instrument to be something opposed to reason and common sense. Besides, in so far as the finding becomes a question of law, it is for the courts to determine and not for the jury. (See Capper v. Paper Co., supra.) The plaintiffs insist it was error to deny their motion for judgment on the special findings. The jury were asked to state what if anything plaintiffs did or failed to do that they should have done under the contract. The answer was: “They should have taken care of sight draft for car in transit to New Orleans. Also they breached their contract with defendant when they informed him they could n’t handle wheat only with delivery draft attached— (on August 1st?).” The jury also found that defendant first learned on August 1 by letter that plaintiffs would require arrival drafts, and first learned of the failure to pay the draft on August 4. They further found that plaintiffs were not notified until August 6 that defendant would not furnish the rest of the wheat; and that after defendant had learned that plaintiffs had allowed the draft to be protested, and after notice of the refusal to accept sight drafts before arrival of the wheat at destination, the defendant induced plaintiffs to believe that it intended to ship the rest of the wheat covered by the contract. Filed April 7, 1917. It would be unconscionable to permit the defendant to rescind the contract after the wheat had suddenly advanced in price and to base its right to rescind upon grounds which it had notice of and was willing to forgive so long as the price of wheat remained at or below the level of prices when the contract was made. In Capper v. Paper Co., 86 Kan. 355, 121 Pac. 519, ah instruction was approved which charged in substance that if plaintiff failed to make payments'as provided in the contract, and this provision had not been waived, the defendant had a right to cancel; but if the jury should find from the evidence that anything said or done under the contract induced plaintiff to believe that this condition was waived the defendant would be estopped from afterwards claiming nonperformance. In the present case the evidence and the findings are, that defendant, with notice of the very things which the jury declare constituted the breach by plaintiffs, induced plaintiffs to believe that they would ship the rest of the wheat, in other words, it waived the breach; and it then follows as a matter of law that defendant could not afterwards,’ and when the price of wheat had risen, take advantage of the breach and rescind the contract. The plaintiffs were entitled to judgment upon the findings for the amount paid by them as shown by the findings for the wheat defendant failed to deliver. The judgment is reversed and the cause remanded with directions to render judgment in accordance herewith. OPINION DENYING MOTION FOR MODIFICATION OF JUDGMENT. There is a motion asking for a modification of the judgment, the claim being that the price at which plaintiffs bought in the wheat on September 4, is not the true measure of damages. The wheat, however, was not bought, as the de fendant claims, for “August delivery.” According to the confirmation it was purchased for “August shipment,” and if defendant had shipped the wheat on August 31, as it had the right to do, and had drawn drafts with bills of lading attached, September 4 would have been the time when, in the regular course of business, the drafts would have been presented. Plaintiffs* testimony is that they never' notified the defendant that they would not accept the wheat; and their letter to defendant dated August 7 was sufficient notice that plaintiffs expected to look to defendant for the wheat. The special findings are that at no time between August 6 and September 4 could the plaintiffs have bought in the wheat at or lower than the contract price. It was a matter of pure speculation whether by extending to defendant the full time for delivery the damages would be less or greater. It is true, as defendant asserts, the time of shipment or delivery during the month of August was wholly optional with defendant, but defendant exercised ho option except to say on August 6 that it would not deliver at all. In Mercantile Co. v. Lusk, 45 Kan. 182, 25 Pac. 646, the general rule stated in Benjamin on Sales, section 1118, in a case where the buyer refuses to accept, was quoted as follows: “ ‘The date at which the contract is considered to have been broken is that at which the goods were to have been delivered, not that at which the buyer may give notice that he intends to break the contract, and to refuse accepting the goods.’ (5 M. & W. 475; 96 111. 13; 108 111. 170.)” (p. 183.) • And it was said that the exact converse of this rule should be applied to a case where a seller breaches the contract by refusing to deliver. Among the authorities cited is Windmuller v. Pope, 107 N. Y. 674, 14 N. E. 436, holding that the time of delivery, and not the time when the seller gives notice that he intends to break the contract, is the rule. The plaintiffs, in a brief filed in opposition to the motion to modify the judgment, concede that if at any time between August 6 and the expiration of the time for delivery plaintiffs could have bought in the wheat at or lower than the price agreed upon, it would have been the duty of plaintiffs to have done so, in accordance with the rule declared in Lumber Co. v. Lumber Co., 86 Kan. 131, 119 Pac. 321. But the finding of the jury is that this could not have been done. In a case just decided (Flour Mills Co. v. Dirks, post, p. 376), the contract as extended gave the seller until January 15 to deliver the wheat, and the measure of damages was held to be the difference between the contract price and the market price, at the place of delivery on January 15, The time of shipment was during the month of August, and in the circumstances of this case the measure of damages is the difference between the contract price and the market price at the place of delivery at the time the wheat would have been delivered if shipped at the close of August 31. 'It has been held that the burden rests upon, or rather that it is incumbent upon, the defaulting seller, where the bargain was for delivery by installments, to produce evidence that the buyer could have gone into the market and obtained another similar contract on such terms as would mitigate his damages. (See authorities cited in Mercantile Co. v. Lusk, supra, where this rule as to evidence was adopted.) The defendant offered no evidence of any kind upon the measure of damages, choosing to stand upon his right to cancel the contract, and now for the first time raises the question. The fact that plaintiffs could have elected to sue at once upon notice of defendant’s intention to breach the contract (Caley v. Mills, 79 Kan. 418, 100 Pac. 69) does not control the measure of damages. Plaintiffs did not elect to sue until the expiration of the full period in which defendant might have shipped the wheat. In a recent case, Flour Co. v. Brandt, 98 Kan. 587, 158 Pac. 1120, the general rule declared in Stewart v. Power, 12 Kan. 596, and Mercantile Co. v. Lusk, supra,'was recognized as the correct one, that the purchaser should buy in at the time and place of delivery. In the .case at bar delivery was to be at Wichita on shipments maiie at any time during August. In the opinion in Flour Co. v. Brandt, supra, it was said: “The damage to plaintiff was caused by the defendant. He could have prevented damage to the plaintiff by performing the contract on any of the days that he might select. He refused to perform his contract and compelled the plaintiff to adopt such measures as he deemed best to reduce his losses. The defendant ought not to be permitted to cast on the plaintiff the burden of reducing" these losses and then say that the plaintiff could have better reduced the losses by purchasing wheat on a different day.” (p. 588.) The motion to modify the judgment is denied.	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The opinion of the court was delivered by Johnston, C. J.: Two actions were brought against the C. Hoffman & Son Milling Company, the Hoffman Elevator Company, C. Hoffman, C. B. Hoffman and'the Chicago, Rock Island & Pacific Railway Company — one by J. H. Feighley and the other by John J. Widler, to'recover damages for'injuries resulting from an overflow of the Smoky Hill river, alleged to have been caused by the joint action and wrong of the defendants. It appears that a number of actions were commenced by other plaintiffs, all growing out of the same circumstances, of which one has already been appealed to and determined by this court. (Arnold v. Milling Co., 93 Kan. 54, 143 Pac. 413.) The situation along the river, the location of the Hoffman dam and the obstruction at the railroad bridge are described in the opinion in that case. . Upon the evidence produced in that case it was decided, among other things, that the overflow on the Arnold land was caused by the obstruction at the railroad bridge and not by the Hoffman dam. After that decision and before these cases were tried the railway company and the re-, spective plaintiffs settled their differences, and through their attorneys entered into stipulations which were practically the same in each case, one of which was in the following terms: “It is hereby stipulated and agreed by and between J. F. Feighley and the Chicago, Rock Island and Pacific Railway Company, that the above entitled action shall be and is dismissed as to the defendant the Chicago, Rock Island and Pacific Railway Company, with prejudice. The plaintiff hereby reserves any and all” rights or causes of action against any of the other defendants. It is the intention of the plaintiff herein to preserve his rights to continue his suit and claim against all of the other defendants and to proceed against them.” The stipulation in each case was filed in court and thereafter the actions were dismissed as to the railway company. At the trials the court sustained demurrers to the evidence of each plaintiff, who appeals. The question is presented whether or not under the stipulation the plaintiffs could still proceed against the other defendants. It is contended that the plaintiffs having sued the defendants as joint tort-feasors, each wrongdoer must be considered as approving the acts of the others and to have made their acts his own. The plaintiffs might have elected to sue them separately, but it is argued that having sued them jointly and the act of each being the act of all, the discharge of one amounts to a satisfaction of the injuries done by all. It is therefore insisted that the release given by the plaintiffs to the railroad company of a joint liability operates to extinguish the entire damages and as a release of the codefendants of the railway company. The question presented by the defendants was before the court in Edens v. Fletcher, 79 Kan. 139, 98 Pac. 784, and every phase of it was carefully considered. It was not the inténtion of the parties that the payment made by the railway company and the release given to it should operate as a release of the others, and ordinarily the law gives effect to the intention and agreements of the parties which are based upon adequate' consideration and are not contrary to good morals or public policy. All understood that only a partial compensation of the damages was made by the railway company as it settled with plaintiffs by paying about thirty per cent of the amount of their claims, and to leave no doubt there was a specific reservation of all rights and causes of action against the other defendants, and an express statement of an intention to continue the suit against them for the remaining liability. In the Edens-Fletcher case, supra, it was recognized that the authorities were in conflict on the question, but it was decided that the better rule, and one which is well sustained by modern authority, is that the intention of the parties between whom the agreement of release is made shall control. It was held that: “An acknowledgment by the plaintiff of satisfaction against two of several defendants, who are sued as joint wrong-doers, will not release the others, where the instrument offered to show such release shows that it was not intended to have such effect. Where such acknowledgment of satisfaction contains an express reservation of the right to proceed against the other j'oint wrong-doers, who are codefendants with those released, and other expressions in the instrument are not inconsistent with the retention of such right, the intention of the parties that the instrument should not operate as a release of such codefendants sufficiently appears.” (Syl.) In the opinion, written by Mr. Justice Benson, it was made too clear for doubt that the view taken was not in conflict with earlier Kansas decisions, and all of the objections were so completely answered and the governing rules , so clearly stated as to leave no room for doubt or further contention as to the position of this court or any occasion for a reconsideration of the question. The rule there announced was followed in the recent case of City of Topeka v. Brooks, 99 Kan. 643, 164 Pac. 285. Some contention is made that the evidence failed to establish a cause of action against the defendants. The question arises on a ruling sustaining a demurrer to the plaintiffs’ evidence, and if the evidence fairly tended to' show that the dam and obstructions placed in the river contributed to throw back or hold the water upon the plaintiffs’ land the demurrer should have been overruled. Some of the testimony does not support the plaintiffs’ contention and there is confusion and conflict in it as to the injurious effect of the dam, but evidence was introduced fairly tending to show that the dam placed in the river by the defendants obstructed the flow, eliminated the channel, filled the bed with silt and other deposits, and all together operated to flood plaintiffs’ lands, causing injury and loss. Some of the testimony shows that the plane of high water was lower below than above the dam during the flood. The conflicting testimony and claims that the water was so high that the obstruction of the dam was without serious effect is one to be tried out by the jury and not by the court. Authorities are not needed to show that upon a demurrer to evidence the court can not accept some and disregard other testimony produced by plaintiff. It may not settle conflicts in the evidence nor draw inferences which conflict with any supporting evidence offered by the plaintiff. Putting aside the testimony unfavorable to plaintiff the court must accept every fact and conclusion which the evidence most favorable to the plaintiff tends to prove, and if after allowing all inferences favorable to him the testimony on his behalf tends to support the issues presented the demurrer must be overruled and the case sent to the jury. On that basis this was clearly a case for the jury. ¡It is said that a different result was reached in the Arnold' case, where the facts must have been substantially the same as in these cases. Evidence in that case, unless reproduced in this one, can be given no effect here. Rules of law determined in other cases may be applied, but every case is governed by its own facts, and ¡we can not consider facts in a former appeal which are not in evidence here, not even if it had been brought to review former judgments in these cases. (C. B. U. P. Rld. Co. v. Andrews, Adm’r, 34 Kan. 563, 9 Pac. 213; Sanford v. Weeks, 50 Kan. 339, 31 Pac. 1088; Parkhurst v. National Bank, 55 Kan. 100, 39 Pac. 1027; Railway Co. v. Mosher, 76 Kan. 599, 92 Pac. 554.) Something is said to the effect that the dam was built in a manner and to a height authorized by statute, but if it be granted that the dam is no higher than the statute provides that would not relieve defendants from liability for damages to those injured by its construction. The ácts granting the right to construct the dam and increase its height expressly provided that it should not overflow the farms or lands outside of the natural banks of the river, nor was the owner of the dam relieved from liability for damages resulting from the building or raising of the dam. (Laws 1869, ch. 46; Laws 1870, ch. 64.) The demurrer to the evidence should have been overruled, and therefore the judgment is reversed and the cause remanded for a new trial. Dawson, J., not sitting.'	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The opinion of the court was delivered by West, J.: James W. Harkness died January 28, 1914, at Colorado City, Colo., having made his will on the 17th. He was sixty-seven years of age and left as his heirs his widow, Jane Harkness; two sons, Charles E. and Claude ;■ two daughters, Mary E. Peterson and Elizabeth L. DeCrow, children by a former wife; and Brannon H., a son by his widow, Jane Harkness ; Myrtle Crozier, widow of a son, William R. Harkness by the former wife, and three grandchildren, the offspring of William R. For some time the testator had been in poor health. In 1913 he gave up his farm in Scott county, Kansas, and went to California, .thence back to Colorado City where he bought property and settled down to .pass his remaining years. He had some trouble with his kidneys for several months before his death. On January 2, he had a spell of nosebleed and called Dr. Gilmore. The doctor saw him again on the 4th, and on the 6th Mr. Harkness called at the office and settled the bill. On the 8th of January Dr. Fanning gave Mr. Harkness a prescription for nosebleed but made no examination. The former of these physicians gave it as his opinion that the testator was not able to transact ordinary business from the second day of'January until his death. The latter, that he was thus disqualified from January 17. Certain other physicians testified theoretically to the usual effect of Bright’s disease upon the mental condition of the patient. The daughter, Mrs. DeCrow, a school teacher, testified, among other things, that her father was in very poor health when he went to California in 1913; that he was “bloated like a stuffed toad, walking down the street.” She next saw her father in August, 1913, at Colorado City, found him looking fine but troubled in mind. She knew this by things .he would say and by the way he would do them. He met her at the train and had something to say about some controversy with his wife a short time before. She next saw him on the 18th of January, 1914. “Of course he was n’t expecting me, but he had been looking for me the day before; so when I went in he threw up his hands, and said, ‘Oh, my God,’ and he went into a fit or something. . . . Well, as I said, he threw up his hands and his face contracted, and then he went to throwing up; and he was n’t in a condition to talk for at least half an hour. . . . Then he turned over and went to talking; and said he had given me up coming; that he thought I wasn’t coming; and then he went and told me how sick he was.” She remained with him until the 28th, when he died. “Q. Tell the jury how he talked. A. Well, his principal talk lay upon the fact that he was sick and was going to die. He would n’t have been in bed, he said, but Dr. Gilmore came down there and treated him like a brute and done all sorts of things to him. He said he had given him some kind of medicine. And then he went on and told about this Dr. Fanning. He said he had given him poison and that was what put him where he was; if it had n’t been for him he would n’t have been in bed, he said. He said that was what was the matter with him. “Q. Now, how long were you with him after you arrived on the 18th? A. Until his death. I was with him all the time except at night. “Q. How much of the time were you with him? A. Well, we kept turn about. My stepmother kept watch part of the time and I part of the time.” The witness further testified that from what she saw and the conversation with him, and from her own knowledge of her father, he was certainly not rational the day she arrived. This suit was brought by Mrs. DeCrow and other heirs to set aside the will on the grounds of mental incapacity, and undue influence on the part of the wife. The latter testified that she not only did not influence him to make the will but tried to keep him from making one for fear it would make trouble with the children as she knew she would keep half of the property under the law. The jury found mental incapacity only. The defendants assign error in giving instructions eight and ten, in refusing defendants’ first instruction, and in overruling their motion for a new trial. J. D. Custer, a stone mason, testified that he was acquainted with Mr. Harkness about six months, saw him on the 11th, 14th, 21st and 23d of January, 1914, and at that time his actions were not in all respects that of a man of ordinary intelligence; that Mr. Harkness was not right when he was suffering from his disease; “was rational sometimes and not right at other times.” He did not see him on the 17th. N. B. Wallace, seventy-three years old, deposed that Mr. Harkness lived in the house next door to him for about three months, told him what property he had, that he wanted to buy a home for himself and wife, and expected to live there and educate his little boy, and expected the balance to go to his children. He seemed out of his mind at times and at other times not. Conversations indicated a very sensible condition of mind and the witness did not know that he was not at all times competent to transact ordinary business such as he had to transact. Charles Harkness, a son, testified that he saw his father after he went to. California the latter part of September of that year, and he looked in better health than when he went, but could not stand to walk much, seemed to be bloated. “His mind seemed to be fairly well, although he asked the witness to advise him in some business matters.” L. S. Boyer testified that he was'well acquainted with Mr. Harkness, had looked after his business for a number of years. Mr. Harkness was poor when he came to the county, but accumulated about four quarters of land and a considerable number of cattle, and some horses, and seemed to be in comfortable circumstances. He had a talk with him in September, 1913, about the disposition of his property, talked a good deal about his property in 1902 and 1903. In September, 1913, he said he didn’t intend to make a will. The testimony on behalf of defendants requires somewhat extended notice. Mr. Hilligoss, fifty-nine years of age, real estate agent of Colorado City, was acquainted with testator about a year, ’had some business relations with him, called on him every day up to his death. “Harkness was capable of transacting ordinary business up to his last illness.” Mr. Adams knew Harkness about six months prior to his death, met him every few days, walked with him from church, met him at the “checker game,” called on him at his last sickness. Said his capacity to transact business was as good as anybody’s as far as witness could judge by his conversation ; this condition continued up to within a week of his death: he had his last talk with Harkness about a week before he died; his mental condition was good then. On the 17th of January, the day he made his will, he was confined to his room, and his mind was as good as it ever had been. Mrs. Hilligoss, a nurse, was acquainted with the testator from late in the spring of 1913 until his death, lived close, visited at the house many times during his last illness; was at the house the day Mr. Harkness made his will, both before and after he made it; had a conversation with him relative to the' will both before he made it, in the morning, and after he made it in the evening of the same day. Mr. Harkness told witnesses he was “all ready to go with the exception of one thing and that is my will.” After he made the will the witness called in and greeted Mr. Harkness with “How are you?” He said, “I am ready to go or I am ready to stay, I have made my will.” He told witness he left his property to Mrs. Harkness and the boy. After this, witness was in once or twice a day. Asked as to his mental condition she answered: “Well, I should say, yes. If he should have deeded his property to me I should not have questioned it a minute.” In one conversation Mr. Harkness told her of the neglect of him by his children when he had been sick, that he wanted the boy Bran-non raised on part he had given him. Dr. Wolf, sixty-one years of age, was acquainted with Mr. Harkness, met him and treated him a number of times up to the first of January, 1914.- He was at all times in perfect mental condition; observed his mental condition and universally found him a keen, clear-headed business man; he was at all times in perfect mental condition; he had kidney and bladder trouble. Witness testified that there was nothing about the disease or ailment that would necessarily or seriously impair his mental capacity. George Stuntz, pastor of the Methodist Episcopal Church, Colorado City, saw Mr. Harkness as often as one would see an acquaintance who seemed to be well and who lived in another part of the city. Saw him frequently during his last sickness, saw him every day from the 17th of January until he was taken to the hospital; conversed with him frequently; “Hark ness always conversed in a rational manner.” He was rational at all times when he saw him except the last time, which was two or three days before he died, when he, the witness, didn’t think he was entirely rational. Louisa Adams knew the testator six months before his death; saw him frequently before his last illness; the last week before he was taken to the hospital she saw him every day; heard him talk to others; his conversations were rational; when she was with him his mind seemed clear; did not see him on the 17th but did see him two or three days afterward; he was rational. Phillip Bouchey lived next door. Was called in to witness Mr. Harkness’ will; had known him six months; talked to him every day, sometimes two or three times a day; will was executed January 17, 1914; Harkness sat up in a chair to sign the will; it was read over to him; to the best of witness’ judgment Harkness was of sound mind when he executed the will. The will was read to Mr. Harkness by Mr. Eickards; that Harkness called his attention to a mistake in his name; and had it changed and then said it was all right. Addie Bouchey also witnessed the will. She saw Mr. Harkness most every day, talked to him and heard him talk to others; he talked in a rational manner; was present to witness the execution of the will, January 17, 1914; Mr. Harkness was sitting up' in a chair; in the best judgment of the witness he was of sound mind and memory when he executed the will. Witness was with him about half an hour at the time the will was executed. ■ J. N. Eickards of Colorado City, practicing attorney, was called on the 17th to draw his will. From his various conversation with Harkness and two he had with him the day before he drew the will, Mr. Harkness’ mind was perfectly clear so far as he was able to discern and thought it was. He called at Harkness’ house twice the day he drew the will, about half an hour the first time and probably ten minutes the last time. Mrs. Hollister, stepdaughter, arrived January 21, 1914, and remained until his death and said the condition of his mind was good; j ust as good as it ever was. Chauncey Harris formerly lived in Scott county, Kansas, and had known Mr. Harkness many years. Saw him fre quently after he moved to Colorado City, and saw him about every day in his last illness; was present and witnessed his will; his mental condition on the day he made his will was as good as it ever was. Harkness had told him at one time after he moved to Colorado that when his first wife died his children wanted him to divide up his property, and Charlie told him it was the law to divide up, and he told him that he would n’t do it. The day the will was executed the witness was called to the house about six o’clock in the morning. Mr. Harkness said, “Harris, I am a very sick man. I believe I had better make my will.” On being assured that he was n’t going to die he said, “Well, I am awful sick.” So witness said he tried to cheer him up and make him think he was not so sick as he thought he was; that was the day before he made his will. “I told him I would get a lawyer if I could find one in town. I found Mr. Rickards and asked him.” On January 16, Mrs. Harkness, in a converation with the witness, said she did n’t want her husband to make a will but that he wanted to do it. Witness was present when Mr. Rickards made the draft of the will. “That Mr. Harkness dictated the contents without memoranda; even describing his lands; witness was present when the will was signed; Harkness was sitting up in a rocking chair.” Other witnesses testified as to expressions of Mr. Harkness as to the way he had been treated by his children and of his determination that they should not have the property. Leaving out formal parts, the will, executed January 17, was as follows: “After the payment of- all of my just debts and funeral expenses, I give and bequeath to my son, Charles H. Harkness, the sum of Five Dollars. To my daughter, Mary E. Peterson, Five.Dollars. To my son, Claude Harkness, the sum of Five Dollars. And to the direct heirs of my deceased son, Will Harkness, Five Dollars. And to my daughter, Bessie DeCrow, Five Dollars. “I give, devise and bequeath all my propérty of every kind, and nature, real and personal or mixed, to my beloved wife, Jane Harkness, and to my beloved son, Brannon B. Harkness, who is also a son of Jane Harkness, share and share alike, provided, however, ’should my son Brannon B. Harkness survive his mother, Jane Harkness, then it is my will that he shall take all of the property going to my wife, Jane Harkness. “I do hereby nominate and appoint Homer Rector, Executor of this my last will and testament, hereby authorizing him to adjust release and discharge as he may deem best, the debts and claims due me. I also authorize my Executor, if it shall become necessary, to dispose of any of my real estate that he may sell on such terms as may seem best to him, not to exceed one half of my real property situate in Scott County, Kansas, and to execute and acknowledge deeds in due form therefor. Homer Rector resides in Scott Co., Kansas. “I do hereby revoke all former wills by me made. ' “In testimony whereof I have hereunto set my hand and seal this 17th day of January, 1914. ■ Ms James W. x Harkness.” It can not escape notice that this will bears facial indications of having been dictated by one in full possession of his faculties. “It is a rule of law because it is a rule of common experience that a creation of the mind may be of such a character and may occur under such circumstances that it proves the sanity of the creative act.” (Wisner v. Chandler, 95 Kan. 36, 60, 147 Pac. 849.) The defendants requested the following instruction, which was refused: “Evidence that a testator was afflicted with Bright’s disease and diabetes, and that such affliction affected his mind before the will was made, and his mental condition continued to grow worse until his death is not conclusive proof of incapacity to make a will; but you are instructed that if the evidence establishes the fact that the will under consideration in this cause was a product of James W. Harkness’ unaided and uninfluenced mind at the time it was made and that he understood its Contents and so wished to dispose of his property, you must find for the defendants and uphold the will, regardless of testimony that a person so affected would be incapable of attending to, and transacting ordinary business.” The court’s instruction numbered V4- was substantially the same as the one requested and refused, except it omitted the expression “regardless of testimony that a person so affected would be incapable of attending to, and transacting ordinary business.” . But this omission did not render the refusal of the requested instruction erroneous. In instructions 8 and 10, complained of by the defendants, the jury we?e told (8) that a person to be incapacitated to make a will “need not be insane or incapable of understanding ordinary business transactions. The testator may be capable of transacting ordinary business affairs of life and sane on other matters, but if the will was influenced and the direct offspring of an unfounded and insane delusion it can not be sustained, and in this case, although you may believe from the evidence that James W. Harkness was capable of transacting the ordinary business affairs of life, at or about the time he executed said will, yet if you also believe that at the time of the making of said will in controversy he was influenced in making said will and that the provisions in said will, cutting off the children by his first wife substantially from any of his property, was the offspring of an unfounded and insane delusion without the slightest pretense or color of truth, that his children of his first wife were unkind to him or mistreated him, then the will can not stand and your verdict will be for the plaintiff.” Instruction No. 10 was: “In weighing the testimony in this case the jury are not confined in their consideration to the positive testimony of witnesses, but shall consider every fact which may be established by circumstantial evidence, if in their judgment any fact is established by circumstantial evidence, and if in the mind of the jury a fact in connection with this case has been clearly established by circumstantial evidence, the jury may accept such evidence of such fact, although opposed by direct and positive testimony of witnesses, although they are not bound to do so.” The obvious purpose of these instructions was to advise the jury that although the testator may have been mentally capable in other respects, if they should find from the evidence, circumstantial or otherwise, that he had an insane delusion that his children had not treated him kindly, which delusion caused him to make the will as he did, it could not stand. A similar instruction was upheld in Medill v. Snyder, 61 Kan. 15, 68 Pac. 962. It was there remarked, however, that as the court máde its, own findings of fact from the evidence the instruction was not of great consequence. In Harbison v. Beets, 84 Kan. 11, 113 Pac. 423, in discussing the insane delusion there found to exist it was said: “He knew what he was doing, but he had an insane reason for doing it. This is really not more mysterious than other manifestations of insanity, for its effects are often inconsistent and inscrutable.” (p. 18.) In Wisner v. Chandler, 95 Kan. 36, 147 Pac. 849, speaking of a notion entertained by the testator, it was said: “It was not a figment of the testator’s imagination. It was not a delusion springing from a mind disordered by disease. It had a solid basis in reality. However much it may be regretted that the testator could not forgive, as Mrs. Wisner probably did, his resentment was human and natural, and if he magnified his injury and illogieally and unjustly carried his resulting prejudice too far, so that it extended to the family over which Charles presided, he was not possessed of an insane delusion- within the purview of any well-considered decision of which this court is aware.” (p. 50.) A careful examination of the entire record discloses some reason for Mr. Harkness’ feeling that his children had not treated him as a parent deserves or as he might expect from his own flesh and blood who lived within reach and failed to call on him in time of sickness. Also that there had been some discussion and irritation over his failure to divide up the property when his first wife died. While the language of the eighth instruction may state a correct principle of law, the difficulty is in finding its application to the facts herein shown. The son Charles testified that his brothers Claude and Will and his youngest sister, Mrs. DeCrow, remained with the father a part of the time after his marriage; that the relations were always pleasant between his father and himself as well as his brothers and sisters; that he never knew of any “serious difficulty between his father and any of the children.” After seeing his father in September of the year he went to California he never again saw him alive. “Did not know he was sick until they brought him home a corpse.” Reverend Mr. Stuntz testified that “Mr. Harkness had told him of some trouble he .had had with his son at a public gathering.” Chauncey Harris testified that— “Harkness had told him at one time after he moved to Colorado that when his first wife died, his children wanted him to divide up his property and Charlie told him it was the law to divide up and he told him that he would n’t do it. In the meantime, he said, whenever he had a new colt he would always give it to one of the children, and told them they could claim that colt; and at this time they all got mad and each of them took their horses and left him one old horse and left him alone.” John Hollister testified that just after the loss of his first wife Mr. Harkness told him that he “had to divide up his property with the children, and he didn’t seem to like it; he thought by dividing up little would be left for him; I tried to convince him he did n’t have to; we talked for about two miles and as I left him he says, ‘John, if I don’t have to divide my property, they shan’t have a bit of it.’ I could n’t get it into my head that the children would want him to divide the property, and I asked him if Charlie said he had to divide his property at this time and he said, ‘Yes.’ ” George Crofton testified that he and Charles Lamb took care of Mr. Harkness for nearly two weeks when he was sick while a widower, that the children did not come near and did nothing for him; “he was pretty sick, and he just had the care we gave him.” While some of these statements of the testator were denied, they still remain as portions of the evidence. Mrs. DeCrow admitted that she went to the lawyer who drew the will and asked him if he thought a man who could make that sort of a will could be in his right mind. The petition nowhere charges any insane delusion. It charges 'mental inability and imbecility arising from- disease and worry, and charges the active influence of the second wife to induce him to devise and bequeath all his property to her and the minor son, of which there was no syllable of testimony, but there is no charge of any unfounded or insane delusion as to the way his children had treated him. The tenth instruction is another correct statement of an abstract proposition of law of very doubtful application to the facts of this case. But it can hardly be said that it amounted to affirmative prej udicial error. The second instruction given by the trial court was as follows: “The Court instructs the jury that in deciding whether or not James W. Harkness was of sound mind at the time of making the will in controversy you have a right to take into consideration the reasonableness or unreasonableness of the manner in which he disposed of his property, as a circumstance to be considered with all the other circumstances in the case; and if you believe that a man of sound mind would not have been likely to have discriminated against the children of his first wife in favor of a child of his then present wife, then you have a right to consider this circumstance in connection with all the other circumstances in the case in determining whether or not James W. Harkness had the mental capacity to execute the will in question.” This was doubtless taken from or suggested by an instruction considered in Howard v. Carter, 71 Kan. 85, 93, 80 Pac. 61, in reference to the alleged mental soundness of the grantor in certain deeds involved in that case. But in Blodgett v. Yocum, 80 Kan. 644, 103 Pac. 128, somewhat similar language was used in charging the jury, and this court said: "This instruction was erroneous. It practically told the jury that if they regarded the disposition which the deceased made of her property as unreasonable they might infer that at the time she executed the deeds she was of unsound mind or unduly influenced, or both. . . . A person of sound mind who is not unduly influenced may make such disposition of his property by deed or will as he desires, without regard to its fairness or unfairness. He may give to one child the bulk of his property and cut the other off with a shilling.” (pp. 646, 647.) This was followed by Coblentz v. Putifer, 81 Kan. 905, 106 Pac. 1011, reversing the judgment on the authority of Blodgett v. Yocum. In Coblentz v. Putifer, 87 Kan. 719, 125 Pac. 30, it was said: “While the instruction given was not as broad as the one in the Blodgett case, it did nevertheless without defining reasonableness authorize the jury to decide for themselves the reasonableness of the contract and use their own judgment thereon as a basis for setting it aside. It will not do to say that a person of sound mind may make any sort of conveyance he desires, but that if he makes a conveyance which appears'to the jury, unreasonable they may infer therefrom that he was of unsound mind, or unduly influenced. Such a rule would put wills and conveyances not within the control of the person who had accumulated the property but within the control of strangers whose experiences and ideas might differ widely from those of the person who had exercised the jus disponendi." (p. 726.) In the Wisner case it was said: “The right to make a will is given in order that the devolution of property under the statute of descents and distributions may be cut off according to the testator’s own will. The law does not require that a will shall be natural or reasonable or sensible or kind. The popular notion of the testamentary right does not accord with the legal notion. It is the duty of the courts and of the legal profession to follow the law.” (95 Kan. 66.) The defendants’ last assignment of error was in overruling the motion for a new trial, one ground of which motion was “error of court in instructions given to jury,” so that the matter is properly before us for consideration. We have given more space to the recital of evidence in this case than is usual in order that the real situation may be disclosed. While no serious rupture appears to have occurred between Mr. Harkness and his children by his first wife, still there was evident dissatisfaction on the part of some of them at least that he did not divide up his property with them, and there was evidence ihdicating failure on their part .to show him the attention he might well expect in time of sickness. No trouble appears to have arisen between the children and their stepmother, and it was but natural that as the former had become mature and doubtless able to take care of themselves he should desire the bulk of his property to go. to his second yokefellow and their child, whose lack of robust health made him a peculiar object of solicitude. Amidst all the theories of all the- schools of social economics practical people have not yet gone beyond the fundamental theory of the real ownership of property and the right to dispose thereof as the owner sees fit. After a man has by a lifetime of effort and economy accumulated a competency it is for him and not for some j ury of strangers to say in what manner he shall dispose of it among his heirs and devisees. Neither is it the duty of the latter to explain to a jury why the testator saw fit to divide it one way rather than in another. It is none of the jurors’ business. It is for them and for the court, in the absence of mental incapacity or undue, influence, to respect the wishes of the testator in regard to his own property and its disposition when the summons comes for him to join the innumerable caravan. While the courts of other states and numerous text-writers seem to accord much more leeway to jurors and much less power of disposition to owners of property this court is on record for giving proper respect to the desires of a qualified testator. It is impossible to read the abstracts without the conviction that the principle to which this court is committed was departed from by instruction No. 2 and that the danger line was approached if not reached in instruction No. 8. The evidence that at the time the will was executed the testator was possessed of sufficient testamentary capacity is convincing if not overwhelming. In this condition of affairs courts have no right to disregard the will and wishes so clearly drawn and expressed, and for the reasons indicated the judgment is reversed, and the cause remanded for further proceedings in accordance herewith.	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Davis, J.: The defendant, Jimmie D. Oyler, Sr., appeals the forfeiture of cigarettes and money seized by the State of Kansas at the time of his arrest. He contends that the State of Kansas lacks civil jurisdiction to proceed with a forfeiture action because he is a Cherokee Indian and because his smokeshop is located on Indian land. Jimmie D. Oyler, Sr., owns and operates Shawnee Jim’s Indian Country Smokeshop (Smokeshop) located in rural Johnson County, Kansas. Oyler is an enrolled member of the Cherokee Nation. The Smokeshop is on Shawnee Reserve 206 which Oyler claims is Indian land. The Kansas Department of Revenue determined that Oyler was not eligible to possess or sell cigarettes without Kansas tax stamps and denied his request for permission to allow a wholesaler to sell untaxed cigarettes to him. In August 1988, the Kansas Director of Taxation notified Oyler that he was violating Kansas law for selling non-taxed cigarettes from his Smokeshop and ordered Oyler to cease and desist. On December 2, 1989, Kansas Bureau of Investigation Special Agents Nathan Yonally and Richard Marchewka, working undercover, entered the defendant’s Smokeshop and purchased three cartons of cigarettes. None of the cigarette packages had Kansas tax stamps on them and Agent Yonally did not pay sales tax. The defendant did not ask the agent if he was an Indian- The defendant was tried and convicted on three counts of possession of more than 200 cigarettes without the required tax indicia (K.S.A. 79-3321) and three counts of selling cigarettes at retail that did not bear the Kansas tax indicia (K.S.A. 79-3321). We affirmed the defendant’s convictions in State v. Oyler, 15 Kan. App. 2d 78, 803 P.2d 581 (1990). At the time of the defendant’s arrest, 8,888 cartons of cigarettes, money from cigarette sales, and records concerning sale of cigarettes were seized. An order to show cause why the seized property should not be forfeited was filed. The defendant’s motion to dismiss for lack of subject matter jurisdiction was denied without opinion by the trial court. The cigarettes seized were ordered forfeited as contraband and sold, and the proceeds from the sale were placed with the Johnson County District Court. Defendant appeals from the trial court’s grant of the State’s motion for summary judgment on the issue of forfeiture. The facts are not in dispute. The sole issue raised by the defendant involves his contention that the State of Kansas lacks jurisdiction to proceed with forfeiture because he is a Cherokee Indian and his smokeshop is on Indian land. In State v. Oyler, 15 Kan. App. 2d 78, we held that the State of Kansas possessed criminal jurisdiction over Jimmie D. Oyler, Sr., under the provisions of 18 U.S.C. § 3243 (1988). Based on its exercise of criminal jurisidiction over the defendant, the State at the time of defendant’s arrest seized the property in question as contraband. K.S.A. 79-3323 defines contraband as it relates to' this case as “[a]ll packages of cigarettes, in quantities of twenty (20) packages or more, not bearing indicia of tax payment as required in this act.” Forfeiture actions are proceedings in rem: “Forfeiture statutes are premised on the notion that the thing to be forfeited has itself offended society, either because it is contraband or has been used to violate laws deemed of special social importance. [Citations omitted.] . . . Although enforced through proceedings in rem, forfeitures are penal in nature. [Citation omitted.]” State v. One 1978 Chevrolet Corvette, 8 Kan. App. 2d 747, 749-750, 667 P.2d 893 (1983). The State’s jurisdiction in this case is not derived from civil jurisdiction over the person of the defendant but is based on in rem proceedings against the goods seized as contraband. Moreover, the forfeiture in this case is penal in nature. The State of Kansas possessed criminal jurisdiction over the defendant for violation of the Kansas cigarette tax and sales tax laws. State v. Oyler, 15 Kan. App. 2d 78. It is from the criminal action and seizure of contraband that the State of Kansas has jurisdiction to proceed in rem with the forfeiture of the contraband. It also follows that the State of Kansas possesses jurisdiction over the defendant due to the penal nature of the forfeiture under the provisions of 18 U.S.C. § 3243. Having concluded that criminal jurisdiction was conferred upon the State of Kansas by the provisions of 18 U.S.C. § 3243, it becomes unnecessary to determine whether the State of Kansas has civil jurisdiction over the defendant. We acknowledge that neither Kansas nor the United States Congress has acted to assume civil jurisdiction over Indians in the State of Kansas. However, contrary to the defendant’s contention, such legislation is not necessary in this case because the State of Kansas properly assumed criminal jurisdiction over the defendant which was sufficient to support the in rem forfeiture action. Affirmed.	[ -112, -27, -7, 28, 24, -16, 56, 50, 90, -77, 102, 83, -19, -54, 5, 123, -29, 93, 81, 120, -26, -73, 127, 1, -42, -69, -40, -33, -79, 75, -27, -10, 8, -80, -118, 29, 6, 98, -27, -36, -114, 0, -72, -48, 81, 67, 40, -21, 2, 10, 113, 4, -23, 58, 30, -63, 72, 44, 75, -103, 65, -8, -7, -43, 63, 30, -95, 4, -120, 5, -48, 107, -102, 49, 80, -24, 115, -90, -122, 84, 7, -103, -127, 96, -29, 36, 29, -19, -84, 8, 46, 91, -99, -121, -104, 88, 67, -84, -100, -99, 124, 50, 11, -6, -22, 20, -33, 60, -121, -114, -80, -109, 46, 120, 2, 23, -33, 35, 48, 97, -57, -12, 93, 85, 56, 26, -114, -43 ]
Rulon, J.: The Kansas Department of Revenue appeals the determination by the district court that Joseph M. Creamer was entitled to a reinstatement of his suspended driver’s license. The issue turns on an interpretation of K.S.A. 1985 Supp. 40-3104(i)(4); now K.S.A. 1990 Supp. 40-3104(j). We conclude that Creamer was not entitled to the reinstatement of his license ánd reverse the district court’s decision. On April 17, 1986, Creamer was involved in an accident in which Johnny S., his wife Marsha, and their children, J.S. and C.S., were injured. C.S. died of her injuries, but the others recovered. Creamer was convicted of vehicular homicide and his driver’s license was revoked in October 1986. In August 1987, Creamer was placed on probation. As a condition of probation, Creamer was required to pay approximately $29,000 in restitution, which he has since paid. Creamer applied for and received a driver’s license in October 1987, and his driving privileges were formally reinstated in November 1987. On September 27, 1989, the Kansas Department of Revenue, Division of Vehicles, suspended Creamer’s driving privileges pursuant to K.S.A. 1985 Supp. 40-3104 (the statute in effect at the time of the accident, since amended). That statute provided that the Secretary of Revenue was to suspend the license of any driver involved in an accident. However, the suspension would not apply: “(4) to any person who has been released from liability, has entered into an agreement for the payment of damages, or has been finally adjudicated not to be liable in respect to such accident. Evidence of any such fact may be filed with the director.” (Emphasis added.) K.S.A. 1985 Supp. 40-3104(i). Creamer sought judicial review of the suspension of his license, claiming that his payment of restitution ordered by the district court in the vehicular homicide case constituted “an agreement for the payment of damages,” thereby removing the grounds for suspension. At trial, the Department of Revenue argued that K.S.A. 1985 Supp. 40-3104(i)(4) requires an agreement for the payment of all civil damages recoverable and that a restitution payment in a criminal case will not suffice. Marsha testified that neither she nor her husband ever brought a civil suit against Creamer, either for their own injuries or on behalf of their deceased child. She also said that J.S. was nine years old at the time of the accident. The parties agree that the statute of limitations set forth in K.S.A. 60-513 now bars any claims that might be brought by Marsha or Johnny, but that J.S.’s claims will not be time barred until April 17, 1994. The Department of Revenue argued at trial that as long as Creamer remains potentially liable for civil damages arising from the accident, his driver’s license should not be reinstated. The district court found that “defendant has entered into an agreement for the payment of damages pursuant to the requirements of K.S.A. 40-3104.” The Department of Revenue was or dered to reinstate Creamer’s driving privileges. The Department of Revenue timely appealed. The Department contends that the phrase “has entered into an agreement for the payment of damages” refers to all civil damages that might be recovered. Creamer contends that an agreement to pay some damages, even if not all potentially recoverable, is enough. The phrase “has entered into an agreement for the payment of damages” has been part of K.S.A. 40-3104 since 1979. See L. 1979, ch. 149, § 1; L. 1984, ch. 174, § 2; L. 1986, ch. 182, § 1. There is no meaningful legislative history indicating why this phrase was inserted into the statute and it has never been construed by any Kansas appellate court. The only Kansas case dealing with the phrase is Barnes v. Kansas Dept. of Revenue, 238 Kan. 820, 714 P.2d 975 (1986), in which the statute was held constitutional, but the specific issue herein was not discussed. In essence, the issue we must resolve is whether an order of restitution imposed as a condition of probation in a criminal case constitutes “an agreement for the payment of damages.” We must apply principles of statutory interpretation in the absence of any other controlling law. “The fundamental rule of statutory construction is that the intent of the legislature governs. [Citation omitted.] When construing a statute, a court should give words in common usage their natural and ordinary meaning.” Hill v. Hill, 13 Kan. App. 2d 107, 108, 763 P.2d 640 (1988). The Kansas Department of Revenue argues that an agreement to pay restitution in a criminal case has no effect on civil liability, and cites several persuasive cases to this effect. Among them is Aetna Casualty v. Collins, 143 Mich. App. 661, 663, 373 N.W.2d 177 (1985), in which the Michigan Court of Appeals stated: “A restitution order as a condition of probation ... in a criminal case does not act as a bar to the recovery of damages in a civil action arising out of the same incident.” Previously, in People v. Heil, 79 Mich. App. 739, 748, 262 N.W.2d 895 (1977), the Michigan Court of Appeals stated: “The probation statute does not create a substitute for an action for civil damages. Criminal and civil liability are not synonymous. . . . Civil liability need not be established as a prerequisite to the requirement of restitution as a probation condition.” In State v. Fleming, 125 N.H. 238, 241, 480 A.2d 107 (1984), the Supreme Court of New Hampshire stated: “A victim’s right to bring a civil action is not affected by an order of restitution.” The Department points out that the restitution was calculated only on the basis of out-of-pocket expenses and did not include any nonpecuniary damages recoverable under civil law. Creamer admits that the restitution order had ho effect on his potential civil liability to J.S. Creamer contends, however, there is no reason to read the words “all civil damages” into K.S.A. 1985 Supp. 40-3104(i). He supports this contention with citation to K.S.A. 40-3102, which states the purpose of the entire Kansas Automobile Injury Reparations Act: “The purpose of this act is to provide a means of compensating persons promptly for accidental bodily injury arising out of the ownership, operation, maintenance or use of motor vehicles in lieu of liability for damages to the extent provided herein.” Creamer urges that his payment of restitution furthers the objective of prompt compensation of victims. We also note that the statute contemplates payment for “bodily injury” and not nonpecuniary damages such as pain and suffering. The district court made the following conclusion of law when called upon to construe the statute in question: “[T]he plain language of the statute says that a person who has been — who has entered into an agreement for the payment of damages is exempt from the operations of this statute. That does not say a person who has entered into an agreement for payment of all compensable damages, nor does it say a person who has entered into an agreement for the payment of civil damages; it says, ‘A person who has entered into an agreement for the payment of damages.’ “The plain language of that statute, I believe, includes the agreement entered into by this defendant in this case, the defendant in a criminal case who enters into an agreement to pay restitution. I believe that that satisfies the language of the statute, and I so hold.” We decline to affirm the district court’s holding for two reasons. First, a restitution order in a criminal case is not an “agreement” in the ordinary sense of the word; rather, it is a mandatory condition of probation imposed by a judicial authority. “Agreement” is defined as “the coming together in accord of two minds on a given proposition.” Black’s Law Dictionary 67 (6th ed. rev. 1990). K.S.A. 21-4610(4) mandates that when granting probation, “the court shall order the defendant to comply with each of the following conditions: (a) Make reparation or restitution to the aggrieved party for the damage or loss caused by the defendant’s crime.” Clearly, a restitution order does not constitute an agreement between the court and the defendant. Second, the other two conditions set forth in K.S.A. 1985 Supp. 40-3104(i) for the reinstatement of a license, a release from liability and an adjudication of no liability, clearly refer only to civil liability. We are convinced the language “has entered into an agreement for the payment of damages” recognized the existence of settlement agreements in civil cases. We recognize that where a potential plaintiff is a minor, our interpretation of the statute could keep some drivers waiting for years for the return of their licenses. However, this hardship does not persuade us to allow a restitution order in a criminal case to substitute for a settlement agreement in a civil cause of action. Until Creamer has settled his civil liability to J.S. in some way, the Department is within its authority to withhold his license. Reversed and remanded for further proceedings.	[ -48, -55, -47, -116, 31, -128, 43, 54, 81, -45, -89, 83, -85, -38, 5, 57, -30, 125, 21, 41, -105, -77, 87, -120, -6, -69, -103, 87, -13, 77, 116, -76, 78, 48, 2, 21, 36, -53, 69, 88, -114, -122, -87, -16, 88, 3, 52, 105, -58, 13, -15, -113, 19, 62, 16, 69, 109, 44, 27, -85, -63, -16, -85, 5, -17, 86, -95, 20, 60, 13, 80, 27, -98, 57, 48, -24, 50, 38, -126, -12, 43, -119, 4, -26, 100, 53, 21, -51, -68, -68, 46, -46, 29, -90, -97, 88, 67, -115, -106, 31, 119, 54, 8, -4, -4, 69, 93, -84, -97, -34, -108, -111, -49, 55, 14, 73, -17, -124, 50, 113, -52, -10, 84, 103, 114, -101, -45, -74 ]

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